#3628 - Article 3 - European Human Rights Law

Article 3: Prohibition of Torture

Introduction

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

The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency.

Chahal v UK – illustrates absolute nature of the prohibition. UK wished to deport Chahal to India arguing that he had been involved in terrorist activities and posed a risk to the national security of the UK. The Strasbourg court said: “Art 3 enshrines one of the most fundamental values of democratic society. The court is well aware of the immense difficulties faced by states in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the V’s conduct”.

Saadi v Italy – despite attempts to persuade the Strasbourg court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose continued presence might be seen to be a threat to the host country, the Grand Chamber re-affirmed the absolute nature of the prohibition: “As the prohibition of torture and inhuman and degrading treatment or punishment is absolute, irrespective of the V’s conduct...the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Art 3”.

The Strasbourg court described the argument based on the balancing of the risk of harm if the person is removed against their dangerous to the host state as “misconceived”. Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host state presented a security risk; this was not compatible with the absolute nature of Art 3.

NA v UK – the assessment of the real risk of ill-treatment in the country of destination will always be a rigorous one.

One disappointing recent development is the frequency with which violations of Art 3 are found by the court. This reflects only in part its increasing willingness to find violations in a broader range of situations than in earlier years.

Bradley – difficulties masked by the general language of Art 3. It is obvious that in order to maintain social order governments must, and usually ought to be, in the business of inflicting unwanted treatment on their citizens. While it may be readily agreed that the use of “torture, inhuman and degrading treatment or punishment” for this purpose is unacceptable, once a particular is at issue, especially in light of its use in connection with a particular social problem, serious differences are bound to emerge. Like many domestic courts with similar constitutional provisions, the ECtHR has struggled to define the boundary between tolerable and intolerable punishment and treatment.

Defining the terms

Article 3 is only concerned with conduct which attains “a minimum level of severity”

Ireland v UK – in order for conduct to fall within Art 3, it must “attain a minimum level of severity”. This test will apply whatever the category of conduct in issue. The effect of setting a significant threshold is that trivial complaints, and even activity which is undesirable or illegal, will not fall within the scope of the prohibition in Art 3 unless it causes sufficiently serious suffering or humiliation to the V.

Selmouni v France – the Strasbourg court indicated that interpretation of the convention as a living instrument could result in acts classified in the early case-law as inhuman or degrading treatment being classified as torture in the future. Presumably it would follow that conduct which previously had not attained the threshold for categorization as inhuman or degrading treatment might be so categorised in the future.

Jalloh v Germany – Grand Chamber restated the court’s long-standing view: “...ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim...”

Moldovan v Romania – attacks on an applicant’s honesty and way of life which were motivated by racial discrimination constitute an aggravating factor when considering whether treatment accorded to him reached the minimum level of severity.

Wainwright v UK – the Strasbourg court found that strip searches of visitors (one of whom has a learning difficulty) to a prison, which were not carried out in accordance with national rules in a number of respects and accused the individuals significant distress, did not reach the minimum level of severity to fall within Art 3, though they did constitute a violation of Art 8.

The Strasbourg court now subjects allegations of violations of Art 3 to a particularly thorough scrutiny even if there has been domestic proceedings and investigations in the allegations. The enquiries in the national legal order must themselves be very thorough, and represent a genuine attempt to find out what happened and who may be responsible for any reprehensible conduct.

The concept of an administrative practice

Where the factual evidence shows that the complained of action, even though it is unlawful, has been repeated time and again by agents of the state, and where there has been official tolerance of the conduct at more senior level, this has come to be known as administrative practice.

Ireland v UK – the Strasbourg court characterised an administrative practice as: “an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system...”.

This has a double significance. First, at the stage of admissibility, the usual requirement to exhaust domestic remedies may well be disregarded. Secondly, on consideration of the merits, the finding of an administrative practice, implying official tolerance of the pattern of conduct, is clearly far more serious than an isolated incident of improper conduct by individuals.

Defining torture

The United Nations General Assembly’s definition of torture in the 1975 Declaration states that: “torture constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment”.

Ireland v UK – the leading authority. Concluded that: “it was the intention that the Convention with its distinction between torture and inhuman treatment should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.”

While it is possible to discern some obscure distinctions between inhuman and degrading treatment, torture appears to lack any independent content (Bradley). The court views torture simply to be “inhuman and degrading treatment which is more intense with respect to the suffering inflicted”. Torture must cause “very serious and cruel suffering” (Ireland v UK).

The distinction between torture and inhuman treatment is frequently one of degree. In every case the determination of whether there has been torture, inhuman or degrading treatment must be decided in the light of all the circumstances of the case.

Ireland v UK – the Strasbourg court suggested that the following factors were relevant in determining the existence of inhuman treatment:

• The duration of the treatment

• Its physical or mental effects

• The sex, age and state of health of the victim.

Tyrer v UK – the Court said that the nature and context of the punishment itself, and the manner and method of its execution should be considered in determining whether a punishment constituted degrading treatment,

Selmouni v France – the threshold of seriousness required and the need to consider the relative nature of the conduct in context indicate that the prohibition in Art 3 is not a static one, but receives a living interpretation and must be considered in the light of present-day circumstances.

Ireland v UK – the Irish government alleged that persons in custody in NI had been subjected to treatment which constituted torture and inhuman and degrading treatment and punishment within the meaning of Art 3 and that such treatment constituted an administrative practice. In issue were 5 techniques for interrogating detained persons in depth, consisting of covering their heads with hoods, obliging them to stand for long periods against a wall with the limbs outstretched, subjecting them to intense noise, depriving them of sleep, and feeding them on a diet of bread and water.

After a committee of enquiry in the UK looked into these techniques and consideration by Privy Counsellors, the prime minister announced that the interrogation techniques would be discontinued. The commission’s report concluded that the 5 techniques amounted to torture and inhuman treatment in breach of Art 3. The Irish government referred the case to the court. Rather to the surprise of many, it concluded that the 5 techniques did not amount to torture, though they did constitute inhuman and degrading treatment.

The case is especially important for its contribution to the case-law on the definition of the terms in Art 3, but it contains many mixed signals. While the majority limited the finding to inhuman and degrading treatment, several judges in the minority concluded that the 5...