Prohibition of torture under Art. 3

Question 1

Is the right enshrined in Art. 3 absolute?

Answer 1

Yes, the right is absolute and unqualified

Thus, no derogation under Art. 15 in time of war or national emergency is allowed.

Question 2

What 3 categories are prohibited by Art. 3?

Answer 2

1) Torture
2) Inhumane treatment or punishment
3) degrading treatment or punishment

Question 3

Case that demonstrates the unqualified nature of Art. 3?

Answer 3

Gäfgen v Germany.
A man had kidnapped a young boy and was subsequently arrested by police. Unbeknownst to the police, the man had already killed the boy. The police believed the boy’s life to be in danger and threatened the applicant with violence i if he did no tell them were the boy was.
Court stated, that even in situations were another persons life is believed to be in danger, the prohibition in Art. 3 cannot be diverged from.

Question 4

What are the State obligations under Art. 3?

Answer 4

3 obligations

1) Positive (substantive)
2) Positive (procedural)
3) Negative (substantive)

Question 5

What are the threshold for severity under Art. 3?

Answer 5

Actions must attain a “minimum level of severity” in order to fall within the scope of Art. 3

This applies to all three categories

Question 6

What constitutes a “minimum level of severity”?

Answer 6

Jalloh v Germany.
Court stated that the assessment of the level of severity is relative; it depends on all circumstances of the case, i.e., duration of the treatment, its physical and mental effects and possibly the age and state of health of the victim

Question 7

Consequence of distinction?

Answer 7

Admissibility of evidence

• evidence obtained under torture should never be relied on as evidence
• evidence obtained ill - treatment can be used during trial, IF it can be proven that the ill - treatment did not have a bearing outcome on hthe confession
• confession obtained under till - treatment should never be relied on as evidence

Gäfgen v Germany
Confession during interrogation subject to threat of ill - treatment, but applicant had confessed again during trial, which is why the Court found the confession to be admissible.

Question 8

What is the concept of administrative practice?

Answer 8

Evidence shows that a conduct has been repeated and accepted at a more senior level of Government

Not merely an isolated incident, but a pattern or system

Thus, it’s more serious than an isolated incident

Question 9

What is the defintion of torture?

Answer 9

Presupposes;

• high level of severity
• intentional or deliberate infliction (you can’t torture someone by accident)
• inflicted in the pursuit of a purpose

Question 10

What is the difference between torture and inhumane treatment and degrading punishment?

Answer 10

Frequently one of degree

Ireland v UK.
Members of the IRA were arrested and detained in the UK and subjected to different interrogation techniques, such as wall - standing, hoodning, sleep deprivation and restricted diet. They all developed psychiatric symptoms as a result.
Court stated that this amounted to inhumane and degrading treatment, but not torture.

Court stated that the difference between inhumane treatment and torture principally lies in the intensity of the suffering and cruelty.
Torture is deliberate cruel treatment causing very serious suffering.

Question 11

First case the Court found a State guilty of torture?

Answer 11

Aksoy v Torture.
Applicant had been stripped naked, arms tied together and suspended from the ceiling. He had been in severe pain and the goal had been to obtain evidence from the applicant.
The Court found that the respondent State was guilty of inflicting torture on the applicant.

Question 12

Definition of inhumane treatment and punishment?

Answer 12

Lesser degree of severity than torture

• physical or physiological violence
• does not have to be inflicted intentional

Question 13

Definition of degrading treatment and punishment?

Answer 13

Lesser degree of severity than torture

• element of humiliation
• provoking fears and inferiority
• forcing the victim to act against ones will

Question 14

What about corporal punishment?

Answer 14

Court has previously held that corporal punishment constituted degrading treatment.

Tyrer v UK.
A 15 - year old was sentenced to birching by the local court. A doctor and the boys father were present during the punishment, where they boy had to take his pants off and was being held down. The Court found that the punishment had an element of humiliation and amounted to degrading treatment in violation of Art. 3

Question 15

Does the standards for degrading and inhumane treatment change over time?

Answer 15

Tyrer v UK.
Court stated that it had to take into account commonly accepted standards in CoE member states, when assessing whether or not a treatment is in violation of Art. 3 (living instrument - approach)

Question 16

Does the State have any obligations under Art. 3 outside its jurisdiction?

Answer 16

Yes.
States risk violating Art. 3 if they extradite a person to another State, where they are at risk of being subjected to treatment contrary to Art. 3

Question 17

Case where Court recognized this?

Answer 17

Soering v UK
Case concerned extradition of the applicant to the US, where he would face being punished with the death penalty. “Death row phenomenon”, i.e., the mental effect it has on someone sitting in death row knowing that they will be executed at some point, has been held to constitute an inhumane form of punishment in violation of Art. 3.
Therefore the Court stated that the UK would violate Art. 3 if they extradited the applicant to the US.

Question 18

Can the State avoid violating Art. 3 when extraditing to a non - contracting State?

Answer 18

Yes, the State can obtain insurance from the receiving country.

The insurance has to be reliable and likely

Question 19

Can the human rights situation in a State exclude the use of insurance?

Answer 19

Yes, it may be so unlikely that the insurance is reliable, that the State cannot just rely blindly on the insurance

Question 20

What about cases regarding unlawful renditions?

Answer 20

Cases regarding extraordinary renditions have examined European States complicity in the CIA’s removal of suspected terrorists to secret interrogation facilities in non - European states

Question 21

Case concerning unlawful rendition?

Answer 21

El - Masri v Macedonia
The applicant was a German national who got detained by Macedonian authorities during a trip there.
The authorities subjected him to ill - treatment, before handing him over to CIA - agents and flown with a bag over his head to Afghanistan, where he was subjected to torture.
Macedonia was found to have violated Art. 3 by subjected the applicant to ill - treatment themselves, but also by handing him over to CIA - agents, who were well known for their interrogation methods.

Question 22

What does the States substantive positive obligation entail?

Answer 22

States are required to take positive measures to ensure private individuals effective protection against treatment in contradiction to Art. 3 conducted by non - state objects

Question 23

What does the States procedural positive obligation entail?

Answer 23

A duty to investigate acts of ill - treatment

- by both state agents and non - state objects

Question 24

What does the States negative obligation entail?

Answer 24

To refrain from violating Art. 3

Question 25

Treatment of people in police custody under Art. 3

Answer 25

If a person comes out of police custody with new injuries, the State must provide a satisfactory explanation in order to avoid violation of Art. 3

Question 26

Securing evidence after arrest in contradiction to Art. 3?

Answer 26

Jalloh v Germany.
Applicant was arrested for suspicion of drug dealing and was seen swallowing a small plastic bag upon arrest. The prosecutor authorized the use of an emetic in order to get the applicant to throw up the evidence. The applicant resisted, so the emetic had to be administered by force.

The Court recognized the importance of securing evidence, but also noted that the procedures designed to do so require further consideration.
Factors such as intrusiveness, pain held up against the seriousness of the offence must be considered.
The Court held that the forced administration of the emetic had amounted to inhumane treatment in violation of Art. 3

Question 27

Prison conditions under Art. 3?

Answer 27

Prisoner have a right to receive medical assistance, especially so if the prisoner constitute a suicide risk

Question 28

Case law on prison conditions?

Answer 28

Neshkov and Others v Bulgaria.
Court stated that in order for prison conditions to violate Art. 3, they must go beyond the inevitable element of suffering and humiliation connected with deprivation of liberty itself.

The authorities must ensure that a person is detained under conditions compatible with respect for human dignity.
The conditions of detention must not subject the detainee to distress og hardship exceeding the unavoidable level of suffering inherent in detention and the prisoners health and well being must be attended to.

Overcrowding, lacking access to fresh air no health care led to the Court finding a violation of Art. 3

Question 29

Can the length of detention violate Art. 3?

Answer 29

Yes.
The length of detention must be proportional to the severity of the offence committed in order not to violate Art. 3.

Imposing a life sentence is not pr. defintion a violation, but can be if its not proportional to the offence

Question 30

Can strip searches violate Art. 3?

Answer 30

Yes, if they have no genuine relation to security concerns

Question 31

Is use of solitary confinement in violation of Art. 3?

Answer 31

No, not pr. definition.
Even years in solitary confinement can be in accordance with Art. 3, but this presupposes that the necessity of the measure is assessed on a regular basis and thus prohibiting it from becoming arbitrary

Solitary conferment can never be imposed upon a prisoner indefinitely

Question 32

What are the requirements to the States procedural obligation under Art. 3?

Answer 32

Investigations intro treatment in violation of Art. 3 must be:

• thorough
• expedient
• independent
• with capacity to lead to the identification of the perpetrators