Article 3 - European Convention On Human Rights

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Article 3 - Prohibition on Torture

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It is an unqualified right and encompasses torture, inhuman and degrading treatment.

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Ireland v UK

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Five techniques - wall standing, hooding, subjection to noise and deprivation of sleep, food and drink were found not to be torture. Court said it should "attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering" within the meaning of torture.

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Torture

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Aksoy v Turkey - court found torture for the first time when he had been hosed down with high power hoses and subject to "Palestinian hanging" as he went to hospital immediately after being released and the paralysis in his arms was strong evidence of the Palestinian hanging. His treatment met the definition in Ireland.

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Aydin v Turkey

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Rape by a state official could be sufficient to constitute torture.

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Selmouni v France

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Amounted to torture when he was beaten, subject to verbal abuse, sexual humiliation and police officers had urinated over him. Court said they will take a tougher approach and find torture in more cases where the treatment before would be merely inhuman.

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Razzakov v Russia

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He'd been hung out and put in painful positions and electrocuted and it was held to be torture as it was quite extreme. Shows that Selmouni does not really extend the definition of torture.

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Inhuman Treatment

1. Physical violence

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Tomasi v France - punching and kicking a detainee as a matter of law was inhuman treatment. Here his bruises supported his claim of being kicked and punched in detention.

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Ribitsch v Austria

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State must not use physical violence unless the behaviour of the detainee requires to use of force and even then it must be proportionate force. Also, where someone has suffered an injury during detention the state has the burden to give a plausible explanation for the injury.

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Jalloh v Germany

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Police suspected he had swallowed drugs to conceal evidence so the police chief ordered he be given drugs to force him to regurgitate it. Strasbourg said this was inhuman treatment as if they’d been a bit more patient there would have been other natural ways to get hold of the drugs and also this practice was unique to this city in Germany.

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2. Mental Suffering

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Kurt v Turkey - mother witnessed her son being arrested and enquired about him for five years while the authorities claimed ignorance about him. She claimed her mental suffering from witnessing his arrest and then his disappearance amounted to sufficient psychological suffering to be inhuman treatment and Strasbourg agreed.

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Cakici v Turkey

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Court took a restrictive view of Kurt and said there must be special factors present before a family member of a disappeared person can claim to be a victim of a breach of Article 3.

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Relevant elements for Cakici

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Will include the proximity of the family tie - in that context a certain weight will attach to the parent-child bond - the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries”. The essence of such a violation “rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of[that] that a relative may claim directly to be a victim of the authorities' conduct.”

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Gafgen v Germany

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Threat of torture could amount to torture, inhuman or degrading treatment depending on the circumstances, especially considering "the severity of the pressure exerted and the intensity of the mental suffering caused".

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3. Conditions of detention

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Iorgov v Bulgaria - severe regime of imprisonment he had been held in for over three years amounted to inhuman and degrading treatment. He was kept in his cell for 23 hours a day, food was served in his cell and he was not allowed to eat with other prisoners. Two visits a month, limited contact with staff and prisoners during a daily one-hour walk.

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Hurtado v Switzerland

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Under Article 3 the State has a positive obligation to protect the physical well-being of persons in custody and therefore the lack of adequate medical treatment in such a situation must be classified as inhuman treatment.

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Keenan v UK

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He suffered inhuman treatment due to the lack of specialist mental care given while in prison as when his medication was changed he became violent, was put in solitary confinement and hung himself.

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4. Extradition/Deporation

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Soering - MS can be liable when they extradite someone to a non-MS "...where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country…”. Satisfied on the facts as he'd be subject to the "death row phenomena".

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Aspects of the death penalty which can breach Article 3 (from Soering)

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The manner in which it is imposed or executed, the personal circumstances of the condemned person and disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution.

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Ocalan v Turkey

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If there is a trial which is a breach of Article 6 and as a result someone is given the death penalty that itself will be a breach of Article 3.

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Cruz Varas v Sweden

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Soering test applied to deportation decisions, but no significant or credible case that the claimant would be persecuted (i.e. subject to torture or inhuman/degrading treatment) on return so no breach. Soering test is hard to satisfy.

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Chahal v UK

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Real risk to him if returned so court prevented him being deported. Also the character of a person is not relevant to the application of Art 3 as it is unqualified.

Saadi v Italy - court refused to change this legal approach in light of 9/11.

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D v UK

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He had HIV and the advanced stage of his illness meant he suffered real risk of a breach of Article 3 is they sent him back to the Caribbean as he would not receive the same level of medical care so the court found in his favour, saying these were exceptional circumstances.

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N v UK

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She also had HIV but it was different to D as she had been diagnosed earlier so it could be controlled. There was no onus on the UK to provide medical care for her so found in their favour.

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Inhuman Punishment

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Chember v Russia - 350 knee bends for his barracks not being in order was inhuman punishment as the officer who imposed it knew that he had a weak back.

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Degrading Treatment

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Yankov v Bulgaria - shaving of his head by prison guards amounted to a breach of Article 3 due to the circumstances as he'd made critical comments about the guards and also had to appear at a hearing 9 days later.

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East African Asians

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Racial discrimination that they had been subject to amounted to degrading treatment in the circumstances.

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Kalashnikov v Russia

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Horrendous prison conditions amounted to degrading treatment. 24 people in a cell, 8 beds, an open toilet, the light constantly on, infestation of vermin and some inmates had infectious diseases such as TB.

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Svinarenko & Slyadnev v Russia

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Holding defendants in criminal cases in metal cages in the courtroom was degrading treatment.

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Degrading Punishment

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Tyrer v UK - corporal punishment was degrading treatment. Court said “…the humiliation or debasement involved must attain a particular level and must in any event be other than the usual element of humiliation [involved in a criminal conviction]. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case,and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.”

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Costello-Roberts v UK

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7 year old boy was hit by his Head Teacher with a heeled shoe but the majority of the Court found no breach.

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Protective measures

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A v UK - Court said “children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity”.

Z and others v UK - Court said that states must take “reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge”.

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Whole Life Sentences

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Vinter and others v UK - majority of the Grand Chamber found that the "whole life sentences" imposed in the UK were not compatible with Article 3 as there had to be at least the possibility of being released if the individual became completely rehabilitated during their imprisonment. Has to be a review mechanism too. British system has now changed and Strasbourg says it is now compatible.