Protection against Torture Flashcards
What legal instruments are the main protections against torture?
The ECHR, article 3.
The UNDHR 1948, article 5.
The 1987 UN International Convention against Torture and other Cruel, Inhuman and Degrading Treatment
There is also the European Convention on the Prevention of Torture, 1987, focused especially on detention.
Why is there no explicit definition for torture in the ECHR or CAT?
To avoid excluding cases. Whether something is torture or ill-treatment or degrading has to be a case by case decision. Although, the ECtHR has made clear that not any form of harsh punishment can be considered torture or ill-treatment, it has to meet a certain severity level. However, various factors such as the circumstances, the duration of treatment, age, gender, state of health of the victim must be taken into account.
What are a few important ECtHR cases regarding torture?
Ireland v UK, 1978. Soering v UK, 1989 Akson v Turkey, 1995 Aydin v Turkey, 1997 Svinareko and Slyadnev v Russia, 2014 Torregiani and Others v Italy, 2013 Varga and Others v Hungary, 2015 GC, Ilascu and Others v Moldova and Russia, 2004 Hirsi Jamaa and Others v Italy, 2012 Sharifi and Others v Italy, 2014 Herczegfalvy v Austria, 1992
How is the prohibition against torture defined in art 1 CAT?
Torture, for the purpose of the convention, is deemed to mean any act which inflicts severe pain and suffering - which is inflicted for certain purposes - and is inflicted by, with consent of, at the instigation of or the acquiescence of a public official or other person acting in official capacity. The purposes can be: to obtain information or confession from the victim or 3rd person, to punish him, to intimidate or coerce, or for discrimination of any kind.
What does art 3 of the ECHR state?
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
Which article of the ECHR refer to collective expulsion of migrants and how is that relevant to torture?
Art 4, Protocol 4 forbids the collective expulsion of migrants, for example in the form of pushing boats back into the sea. It is relevant for the prohibition to torture since the prohibition means that signatory states are not allowed to send a person back to a different country in which he or she will be subjected to torture or other cruel inhuman degrading treatment.
What is important to know about the prohibition of torture?
It is one of the absolute and non-derogable laws, which means that even in state of war or other forms of emergency, states are not allowed to derrogate from the ban of torture. Some other rights, as defined in Art 15 of ECHR, are - to the extent necessary - allowed to be derogated from. But not torture, and a few other rights.
Which ECtHR cases are relevant in regards to deciding what counts as torture?
Ireland v UK, 1978, in which the five techniques were determined to constitute torture. Additionally the Court made it clear that minimum threshold must be determined based on circumstances of a case: duration of treatment, physical and mental effects of the treatment, sex, age and health of the victim.
Soering v UK: The Court made it clear that it also depends on all circumstances of the case, such as nature and context of the treatment, the manners and methods of its execution, as well as the previously decided factors.
Aydin v Turkey: rape in certain circumstances can be considered torture.
Aksoy v Turkey: “Palestinian hanging”. Court argued that certain acts are not only violent, but also have the purpose to humiliate the victim. Duration is relevant to determine whether it is an isolated behaviour or part of a pattern over a number of days.
Which ECtHR cases are relevant in regards to expulsion of migrants?
Hirsi Jamaa and Others v Italy. The applicants were a group of migrants found by Italian officers and sent back to Libya without a chance to claim asylum, make their cases heard, or having their individual situation examined. Collective expulsion –> violation of art 4 prot 4. There was a risk of torture or illtreatment if returned –> violation of art 3. No right to effective remedy –> violation of art 13. Additionally, it was the first time the Court had to consider whether art 4 prot. 4 applied to a third state, carried out outside of national territory, but since the applicants had been under control of Italian authorities for a short time it was deemed to be a valid application.
Sharifi and Others v Italy –> collective expulsion, from Italy to Greece. No access to asylum application. Feared expulsion to their home countries. Greece violated art 13 (right to effective remedy) and art 3 (protection from torture). Italy violated art 13, art 3 and art 4.
ECtHR cases relevant for health care settings
Herczegfalvy v Austria, 1992. Psychiatry. In this case, it was determined to not be torture, due to the Gov’s argument that it was medically necessary. However, the Court opened up for the possibility that the use of force etc. in Psychiatric Hospitals could be torture, unless medically necessary.
ECtHR cases relevant for detention
Torregiani and Others v Italy - overcrowded prisons, the size of cells should be at least 4 square meters per person, but it is less. Under art 46, the Court called on Italy to fix it, but they did not and were condemned multiple times.
Varga and Others v Hungary. Overcrowded facilities. Inhuman and degrading. Aggravated seriousness due to lack of privacy when using lavatories, inadequate sleeping arrangements, poor ventilation, insect infestation, restrictions on showers.
GC, Ilascu and Others v Moldova and Russia. The applicant was a politician from the opposition party, detained for 8 years and then sentenced to death. On death row he had no contact with his lawyers, no visits from family, he was deprived of food, his cell was unheated, he could very rarely take showers. Lack of medical care which cause his health to deteriorate. Torture.
Svinarenko and Slyadnev v Russia: the victims were put in a metal cage during the trial, it was considered a violation of human dignity in breach with art 3. “Treatment is considered degrading when it humiliates or debases an individual, shows a lack of respect for or diminishing his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance”. The suffering or humiliation must go beyond what is inevitable with a given form of legitimate treatment.
What are the five techniques and in which ECtHR case were they mentioned?
Ireland v UK, 1978. They refer to:
- Wall standing, e.g. putting victim in position of stress for multiple hours.
- Hooding, e.g. heavy hood on the victims head, even during interrogation.
- Deprivation of sleep.
- Subjection to noise
- Deprivation of food and drink.
Torregiani and Others v Italy
ECtHR ruled that overcrowded prisons, which does not fulfil the obligation of more than 4 square meters per person, is in violation with art 3. The Court told Italy to fix it based on art 46 but Italy didn’t and was condemned several times.
Ireland v UK 1978
Important case because it ruled that the five techniques (wall standing, hooding, deprivation of sleep, deprivation of food and drink, subjection to noise) is torture + it ruled that circumstances such as duration of treatment, physical and mental effect, age, sex and health of victim must be taken into account.
Soering v UK
Court ruled that all circumstances of a case must be taken into account, both those already determined in Ireland v UK but also the manners and methods of treatment and the nature and context of it.
