#14824 - Torture And Terrorism - Criminal Justice, Security, & Human Rights

A1:

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

A16:

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

A3: prohibition on torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

• British government faced serious acts of terrorism by members of Irish Republican Army (IRA) and loyalist groups in Northern Ireland

• British government introduced special powers of arrest and detention without trial and powers were widely used, chiefly against the IRA

• Notices of derogation under A15(1) were lodged with the Secretary-General of the Council of Europe, in view of the ‘public emergency threatening the life of the nation’

• Government of the Republic of Ireland brings an application, alleging that:

1. Extrajudicial detention infringed A5 (right to liberty) and was not saved by A15

2. Various interrogation practices – in particular the so called 5 techniques including wall-standing, hooding and deprivation of sleep and food and other practices amounted to torture and inhuman or degrading treatment contrary to A3

3. The use of special powers primarily against the IRA members constituted discrimination in violation of A14

• The commission found that the 5 techniques and other practices did amount to torture but found no discrimination and that the derogations from A5 were justified under A15

• Ireland referred the case to the court (although the offending practices had been discontinued and the British government did not contest the allegations of findings in connection with the 5 techniques) and renewed its original submissions and asking the Court in addition to address a consequential order to the British government requiring it to institute criminal and disciplinary proceedings against the particular persons responsible for breaches of A3

• A practice incompatible with the Convention consisted of an accumulation of identical or analogous breaches which were sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system but a practice itself did not of itself constitute a violation separate from such particular breaches

• Higher authorities of a state were strictly liable for the conduct of their subordinates, on whom they were duty bound to impose their will and could not shelter behind their inability to ensure it was respected

• Concept of a burden of proof resting on either party did not apply but the standard was BRD

• Ill-treatment has to attain a minimum level of severity to fall within A3, the assessment of which was necessarily relative, depending on all the circ’s, including:

• Duration of treatment

• Physical/mental effects

• Sex, age or state of health of victim

• Although the 5 techniques were not officially authorised in writing, they were taught orally at a training centre = practice established

• The 5 techniques were applied in combination, with premeditation, for hours at a time, causing at least intense physical and mental suffering and acute psychiatric disturbances = inhuman treatment

• The 5 techniques were such as to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance = degrading

• However, the 5 techniques did not occasion suffering sufficient in intensity/cruelty to constitute torture

• 1971 ill-treatment accompanying the 5 techniques – many held in custody were subjected to violence by the police which was repeated and occurred in the same place, taking similar forms = a practice which led to intense suffering and sometimes substantial physical injury = inhuman treatment (*but not torture)

• Ill-treatment at the Ballykinler military camp was discreditable and reprehensible but not degrading and not contrary to A3

• Court has no power to direct a State to institute criminal or disciplinary proceedings in accordance with its domestic law

• Case to be used as an example of practice falling outside of torture, but within inhuman treatment in breach of A3

• *Note: push for this case to be reheard by the ECHR with the backing of the Irish government; new evidence; wanting the case reheard bc of the belief that the acts constituted torture

• Applicant arrested and detained on suspicion of involvement in drug trafficking

• Argued he was ill-treated in policy custody in breach of A3 (and A6(1) and also that proceedings in respect of complaint against PO’s not conducted within a reasonable time and claimed just satisfaction under (A41)

Exhaustion of domestic remedies?

• Dismissal of the argument that domestic remedies had not been exhausted by the applicant (*see case if this comes up)

Prohibition of torture: accepting the facts

• State under an obligation (whatever the outcome of the domestic proceedings) to provide a plausible explanation for the appellant’s injuries, given the fact that the applicant was taken into police custody in good health but found to be injured at the time of release

• Accepted the Commission’s findings of facts in the main and supported the conclusion that the applicant’s allegations were proved BRD (particularly as such as a burden can be satisfied from the co-existence of sufficiently strong, clear and concordant inferences)

• The existence of several medical certificates containing precise and concordant information and the lack of an plausible explanation of how the injured had been caused justified the Commission’s conclusion but Court’s analysis differs from the Commission’s opinion:

• Court considers that it is required to rule on allegations not supported by medical reports France submitted arguments in the alternative on the seriousness of the facts and the ways they might be classified under A3 and in those observations, the government debates the seriousness of the alleged injuries

• The Government didn’t at any time contest the other a=facts alleged

• Court also points out that facts were taken as established by the Criminal Court (*except allegations of rape and loss of visual acuity) and by the Versailles CA (*except sexual assault allegations)

• Therefore, court feels the facts can be assumed to be established

• Not proved that he was raped as the allegation was made too late to be proved/disproved by medical evidence and a causal link could also not be established on the basis of the medical report between the applicant’s alleged loss of visual acuity and the events occurring during police custody

Prohibition on torture: distinguishing torture from inhuman or degrading treatment based on the severity of the pain and suffering

• A3 enshrines one of the most ‘fundamental values of democratic societies’ by prohibiting in absolute terms torture or inhuman or degrading treatment or punishment no provision made for exceptions/derogations

• Distinction is made between torture and inhuman/degrading treatment (*distinction also made by UN as seen in A1 and A16) appears that it was the intention for the Convention to attach a...