Torture and ill-treatment

Question 1

What are the factors to be taken into account when assessing whether torture or ill-treatment occurred?

Answer 1

There must be a minimum level of severity! If not attained, goes under Art. 8

1. Duration of treatment
2. Physical and mental defects
3. Sex of the victim
4. Age of the victim
5. State of health of the victim

Question 2

What is torture?

Answer 2

1. Deliberate/intentional infliction of harm
2. Must involve particularly severe pain/suffering
3. Stigma - Bad reputation or feeling ashamed

Question 3

What is inhuman or degrading treatment?

Answer 3

There is no clear distinction between inhuman or degrading treatment but there are some differences.

Inhuman:

• No ‘intention’
• Treatment must go beyond the inevitable humiliation of a legitimate punishment or treatment

Degrading:

• Gross humiliation
• Being driven to act against one’s will or conscience

Question 4

What are the justifications for torture or ill-treatment?

Answer 4

There are none! Ever (even under Art.15)! The prohibition is absolute.

Question 5

Did the State breach its positive obligation when it did not allow Pretty to die?

Answer 5

Nope!

1. Treatment must meet minimum level of severity - A mental or physical condition can meet this level if is it exacerbated by measures for which the authorities can be held responsible
2. No state involvement in this case - The refusal to let die did not exacerbate the situation of Pretty
3. No positive obligation to remove harm by termination of life

Question 6

What are the obligations under Art. 3?

Answer 6

1. Negative - The MS must refrain

2. Positive - The MS must ensure that individuals within their jurisdiction are not subject to torture or IDT