26 September and 20 October 2008: TortureMaria Lundberg, NCHR1 JUR 5710 Institutions and Procedures Prohibition of Torture

26 September and 20 26 September and 20 October 2008: TortureOctober 2008: Torture Maria Lundberg, NCHRMaria Lundberg, NCHR 11

JUR 5710 JUR 5710 Institutions and Institutions and

ProceduresProcedures

Prohibition of TortureProhibition of Torture


Prohibition of TortureProhibition of Torture

””No one shall be subject to No one shall be subject to torture or to inhuman or torture or to inhuman or degrading treatment or degrading treatment or punishment”punishment” - - Art. 3 ECHR (cf. Art. 7 Art. 3 ECHR (cf. Art. 7 ICCPR “or to cruel, inhuman…. In ICCPR “or to cruel, inhuman…. In particular, no one shall be subject without particular, no one shall be subject without his free consent to medical or scientific his free consent to medical or scientific experimentation.” )experimentation.” )


Deprivation of libertyDeprivation of liberty

““All persons deprived of their liberty shall be treated with All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the humanity and with respect for the inherent dignity of the human person.” - Article 10.1 ICCPRhuman person.” - Article 10.1 ICCPR– The Human Rights Committee refers to a number of UN The Human Rights Committee refers to a number of UN

standards applicable to those deprived of their liberty (Gen. standards applicable to those deprived of their liberty (Gen. Comment No 21, para. 5)Comment No 21, para. 5)

““Everyone has the right to liberty and security of person. No Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by cases and in accordance with a procedure prescribed by lawlaw » - Article 5.1 ECHR » - Article 5.1 ECHR

“…“…The Committee shall by means of visits, examine the The Committee shall by means of visits, examine the treatment of persons deprived of their liberty with a view of treatment of persons deprived of their liberty with a view of strengthening, if necessary, the protection of such persons strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or from torture and from inhuman or degrading treatment or punishment.”punishment.” – – Article 1 European Conv. for the Prevention Article 1 European Conv. for the Prevention of Torture and Inhuman or Degrading Treatment or of Torture and Inhuman or Degrading Treatment or PunishmentPunishment


Prohibition of TortureProhibition of Torture Absolute natureAbsolute nature

– No limitationsNo limitations– No derogations – see Art. 15 ECHR and Art. 4 ICCPR, No derogations – see Art. 15 ECHR and Art. 4 ICCPR, – No exceptional circumstances whatsoever, whether a No exceptional circumstances whatsoever, whether a

state of war or a threat of war, internal political instability state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a or any other public emergency, may be invoked as a justification of torture. (justification of torture. (Art. 2.2 UN Conv. Against Torture, and Art. 2.2 UN Conv. Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT))1984 (CAT))

– Humanitarian law Humanitarian law (Common Art. 3.1 (a) of the four Geneva (Common Art. 3.1 (a) of the four Geneva Conventions, 1949)Conventions, 1949)

– International Criminal Law International Criminal Law (Art. 7.1(f) – Crimes against (Art. 7.1(f) – Crimes against humanity, Art. 8.2(a)(ii) – War crimes, Statute of the humanity, Art. 8.2(a)(ii) – War crimes, Statute of the International Criminal Court, 1988 ( ICC))International Criminal Court, 1988 ( ICC))

– The principle ofThe principle of n non-refoulement on-refoulement (Art. 3.1 CAT; cases (Art. 3.1 CAT; cases ECHR)ECHR)


A fundamental valueA fundamental value

This absolute prohibition of torture and This absolute prohibition of torture and of inhuman or degrading treatment of inhuman or degrading treatment shows that Article 3 (art.3) enshrines shows that Article 3 (art.3) enshrines one of the fundamental values of the one of the fundamental values of the democratic societies making up the democratic societies making up the Council of Europe.Council of Europe. ( (Soering,Soering, Judgment 7 July Judgment 7 July

1989, A.161, para 88).1989, A.161, para 88). Its purpose is to protect both the dignity Its purpose is to protect both the dignity

and the physical and mental integrity of and the physical and mental integrity of the individualthe individual. . (CCPR General Comment 20, para (CCPR General Comment 20, para

22))


A fundamental valueA fundamental value

Soering cont. para. 88:Soering cont. para. 88:

It would hardly be compatible with the It would hardly be compatible with the underlying values of the Convention, that underlying values of the Convention, that "common heritage of political traditions, "common heritage of political traditions, ideals, freedom and the rule of law" to ideals, freedom and the rule of law" to which the Preamble refers, were a which the Preamble refers, were a Contracting State knowingly to surrender a Contracting State knowingly to surrender a fugitive to another State where there fugitive to another State where there were were substantial grounds for believingsubstantial grounds for believing that that he would be in danger of being subjected to he would be in danger of being subjected to torture, however heinous the crime torture, however heinous the crime allegedly committedallegedly committed


SourcesSources TreatiesTreaties

– ICCPRICCPR– CAT (UN, 1984)CAT (UN, 1984)– Optional Protocol to CAT (UN, 2002)Optional Protocol to CAT (UN, 2002)– ECHRECHR– European Conv. For the Prevention of Torture and European Conv. For the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment, (C of Inhuman or Degrading Treatment or Punishment, (C of E, 1987)E, 1987)

– The Inter-American Convention to Prevent and Punish The Inter-American Convention to Prevent and Punish Torture, (OAS, 1985)Torture, (OAS, 1985)

Customary law? Customary law? – Article 38.1(b) “a general practice accepted as law“Article 38.1(b) “a general practice accepted as law“

Jus cogens? Article 53 VCLTJus cogens? Article 53 VCLT


Definition (1)Definition (1)

Treaty based - CAT (UN, 1984), Article 1Treaty based - CAT (UN, 1984), Article 1 For the purposes of this Convention, torture means any act For the purposes of this Convention, torture means any act

by which by which severe pain or sufferingsevere pain or suffering, whether , whether physical or physical or mentalmental, is intentionally inflicted on a person , is intentionally inflicted on a person for such for such purposes aspurposes as obtaining from him or a third person obtaining from him or a third person information or a confession, punishing him for an act he or information or a confession, punishing him for an act he or a third person has committed or is suspected of having a third person has committed or is suspected of having committed, or intimidating or coercing him or a third committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any person, or for any reason based on discrimination of any kind, when such pain or suffering kind, when such pain or suffering is inflicted byis inflicted by or at the or at the instigation of or with the consent or acquiescence of instigation of or with the consent or acquiescence of a a public official or other person acting in an official public official or other person acting in an official capacitycapacity. It does not include pain or suffering arising only . It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This from, inherent in or incidental to lawful sanctions. This article is without prejudice to any international instrument article is without prejudice to any international instrument or national legislation which does or may contain provisions or national legislation which does or may contain provisions of wider applicationof wider application


Definition (2)Definition (2) Art. 7 ICCPR (CCPR General Comment 20, Art. 7 ICCPR (CCPR General Comment 20,

paras. 5-7):paras. 5-7): No definition – Art. 7 relates not only to No definition – Art. 7 relates not only to

acts that cause physical pain but also to acts that cause physical pain but also to acts that cause mental suffering.acts that cause mental suffering.– Corporal punishmentCorporal punishment– Prolonged solitary confinementProlonged solitary confinement– Death penalty carried out that cause the least Death penalty carried out that cause the least

physical or mental suffering (Charles Chitat Ng physical or mental suffering (Charles Chitat Ng v. Canada (Comm. 469/1991), paras. 16.3 and v. Canada (Comm. 469/1991), paras. 16.3 and 16.4) 16.4)

– Medical or scientific experimentation without Medical or scientific experimentation without the free consentthe free consent


Definition (3)Definition (3) ECHR – No definitionECHR – No definition Torture is never justifiableTorture is never justifiable Threshold:Threshold: As was emphasised by the Commission, ill-treatment As was emphasised by the Commission, ill-treatment

must attain must attain a minimum level of severitya minimum level of severity if it is to fall if it is to fall within the scope of Article 3. The assessment of this within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of and, in some cases, the sex, age and state of health of the victim, etcthe victim, etc.. ((Ireland v. the United Kingdom,Ireland v. the United Kingdom, Judgment 18 January Judgment 18 January 1978, Ser. A. 25, para 162)1978, Ser. A. 25, para 162)


Definition (4)Definition (4) ””It is plain that there may be treatment to It is plain that there may be treatment to

which all these descriptions apply,…The which all these descriptions apply,…The notion of inhuman treatment covers at least notion of inhuman treatment covers at least such treatment as deliberately causes such treatment as deliberately causes severe suffering, which, in the particular severe suffering, which, in the particular situation, is unjustifiable. The word ”torture” situation, is unjustifiable. The word ”torture” is often used to describe inhuman treatment is often used to describe inhuman treatment which has a purpose… and it is generally an which has a purpose… and it is generally an aggravated form of inhuman treatment….be aggravated form of inhuman treatment….be degrading if it grossly humiliates him before degrading if it grossly humiliates him before others or drives him to act against his will or others or drives him to act against his will or conscience.” conscience.” ((Denmark, Sweden, Norway and the Denmark, Sweden, Norway and the Netherlands v. GreeceNetherlands v. Greece, Report of 5 November 1969, Yearbook , Report of 5 November 1969, Yearbook XII (1969), p. 186).XII (1969), p. 186).



The five techniques ... they caused, if not actual The five techniques ... they caused, if not actual bodily injury, at least intense physical and mental bodily injury, at least intense physical and mental suffering to the person subjected thereto and also suffering to the person subjected thereto and also led to acute psychiatric disturbances during led to acute psychiatric disturbances during interrogation. They accordingly fell into the interrogation. They accordingly fell into the category of inhuman treatment .... The category of inhuman treatment .... The techniques were also degrading since they were techniques were also degrading since they were such as to arouse their victims’ feelings of fear, such as to arouse their victims’ feelings of fear, anguish and inferiority capable of humiliating and anguish and inferiority capable of humiliating and debasing them and possibly breaking their debasing them and possibly breaking their physical and moral resistance. (Ireland physical and moral resistance. (Ireland , , Judgment, para. 167)Judgment, para. 167)



Physical and mental suffering:Physical and mental suffering: [T]he infliction of mental suffering by creating a [T]he infliction of mental suffering by creating a

state of anguish and stress by means other than state of anguish and stress by means other than bodily assaultbodily assault ( (Greek caseGreek case, Commission p. 461). , Commission p. 461).

Provided it is sufficiently real and immediate, a Provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 mere threat of conduct prohibited by Article 3 may itself be in conflict with that provision. Thus, may itself be in conflict with that provision. Thus, to threaten an individual with torture might in to threaten an individual with torture might in some circumstances constitute at least “inhuman some circumstances constitute at least “inhuman treatment” treatment” ((Campbell and Cosans v. the United Campbell and Cosans v. the United Kingdom (Appl. 7511/76; 7743/76), Judgment 25 Kingdom (Appl. 7511/76; 7743/76), Judgment 25 February 1982, para. 26February 1982, para. 26).).


Definition (6)Definition (6) ””As a result, she has been left with the anguish of As a result, she has been left with the anguish of

knowing that her son had been detained and that knowing that her son had been detained and that there is a complete absence of official information there is a complete absence of official information as to his subsequent fate. This anguish has as to his subsequent fate. This anguish has endured over a prolonged period of time.” (Kurt v. endured over a prolonged period of time.” (Kurt v. Turkey (Appl. 24276/94), Judgment 25 May 1998, Turkey (Appl. 24276/94), Judgment 25 May 1998, para. 133; see also para. 134)para. 133; see also para. 134)– A mother of the victim of a human rights violation A mother of the victim of a human rights violation

(refererred to practice of the HRCmmttee)(refererred to practice of the HRCmmttee)– Authorities gave no serious consideration to her Authorities gave no serious consideration to her

complaintscomplaints– Prolonged period of time of anguishProlonged period of time of anguish

A victim of complacency of the authorities in face A victim of complacency of the authorities in face of her anguish and distress (para. 134)of her anguish and distress (para. 134)


Never justifiable but Never justifiable but circumstances decides…circumstances decides…

It appears from the testimony of a number It appears from the testimony of a number of witnesses that a certain roughness of of witnesses that a certain roughness of treatment of detainees by both police and treatment of detainees by both police and military authorities is tolerated by most military authorities is tolerated by most detainees and even taken for granted (...). detainees and even taken for granted (...). This underlines the fact that the point up to This underlines the fact that the point up to which prisoners and the public may accept which prisoners and the public may accept physical violence as being neither cruel nor physical violence as being neither cruel nor excessive, varies between different societies excessive, varies between different societies and even between different sections of and even between different sections of them.them. ((Denmark, Sweden, Norway and the Netherlands v. Denmark, Sweden, Norway and the Netherlands v. GreeceGreece, Report of 5 November 1969, Yearbook XII (1969), p. , Report of 5 November 1969, Yearbook XII (1969), p. 501).501).


Positive obligationsPositive obligations Protection against tortureProtection against torture State: The nature of the right safeguarded under State: The nature of the right safeguarded under

Article 3 of the Convention (art. 3) has Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of fundamental importance of the prohibition of torture (see paragraph 62 above) and the torture (see paragraph 62 above) and the especially vulnerable position of torture victims, especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic any other remedy available under the domestic system, an obligation on States to carry out a system, an obligation on States to carry out a thorough and effective investigation of incidents thorough and effective investigation of incidents of torture (Aksoy v. Turkey (Appl.21987/93), of torture (Aksoy v. Turkey (Appl.21987/93), Judgment 18 December 1996, para. 98)Judgment 18 December 1996, para. 98)


Positive obligationsPositive obligations Private parties: Z and others v. The United Kingdom (Application (Application

no. 29392/95), Judgment 10 May 2001, para. no. 29392/95), Judgment 10 May 2001, para. 73:73: The Court reiterates that Article 3 enshrines one of the most The Court reiterates that Article 3 enshrines one of the most

fundamental values of democratic society. It prohibits in absolute fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment inhuman or degrading treatment, including such ill-treatment administered by private individuals (see administered by private individuals (see A. v. the A. v. the UnitedUnited KingdomKingdom, judgment of 23 September 1998, , judgment of 23 September 1998, Reports of Judgments Reports of Judgments and Decisionsand Decisions 1998-VI, p. 2699, § 22). These measures should 1998-VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had treatment of which the authorities had or ought to have had knowledge (see, knowledge (see, mutatis mutandismutatis mutandis, , Osman v. the Osman v. the UnitedUnited KingdomKingdom, Judgment of 28 October 1998, , Judgment of 28 October 1998, ReportsReports 1998-VIII, 1998-VIII, pp. 3159-60, § 116).pp. 3159-60, § 116).


Positive obligationsPositive obligations

ICCPR:ICCPR: CCPR General Comment 20, paras 13-15:CCPR General Comment 20, paras 13-15:

PenalizingPenalizing Procedural rightsProcedural rights Amnesties are incompatibleAmnesties are incompatible


Extraterritorial effectExtraterritorial effect

Art. 7 ICCPR (CCPR General Comment 20, Art. 7 ICCPR (CCPR General Comment 20, para. 9): : Not expose persons to the danger para. 9): : Not expose persons to the danger of torture, etc upon the return to another of torture, etc upon the return to another country by way of extradition, expulsion, or country by way of extradition, expulsion, or refoulementrefoulement

Charles Chitat Ng v. Canada (Comm. Charles Chitat Ng v. Canada (Comm. 469/1991), para. 14.1 “whether by 469/1991), para. 14.1 “whether by extraditing Mr. Ng to the [US], Canada extraditing Mr. Ng to the [US], Canada exposed him to a real risk of a violation of exposed him to a real risk of a violation of his rights under the Covenant” and para his rights under the Covenant” and para 14.214.2


Extraterritorial effectExtraterritorial effect Soering, para. 90Soering, para. 90

– (See also Chahal v. The United Kingdom (Appl. 22414/93), (See also Chahal v. The United Kingdom (Appl. 22414/93), Judgment of 15 November 1996) Judgment of 15 November 1996)

not normally for the Convention institutions to pronounce on not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the the existence or otherwise of potential violations of the Convention. Convention. – a decision to extradite him would, if implemented, be contrary a decision to extradite him would, if implemented, be contrary

to Article 3 (art. 3) by reason of its foreseeable consequences in to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) (see paragraph 87 the safeguard provided by that Article (art. 3) (see paragraph 87 above).above).

Para. 91Para. 91– hence engage the responsibility of that State under the hence engage the responsibility of that State under the

Convention, where substantial grounds have been shown for Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting countrytreatment or punishment in the requesting country

Documents

26 September and 20 October 2008: TortureMaria Lundberg, NCHR1 JUR 5710 Institutions and Procedures Prohibition of Torture