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  • The prohibitionof torture

    Aisling Reidy

    A guide

    to the implementation

    of Article 3

    of the European Convention

    on Human Rights

    Human rights handbooks, No. 6COUNCIL

    OF EUROPECOUNCIL

    OF EUROPECONSEILDE LEUROPECONSEILDE LEUROPE0

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  • The prohibitionof torture

    Human rights handbooks, No. 6

    A guide

    to the implementation

    of Article 3

    of the European Convention

    on Human Rights

    Aisling Reidy

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  • 2

    The human rights handbooks series

    Handbook No. 1: The right to respect for pri-vate and family life. A guide to the imple-mentation of Article 8 of the EuropeanConvention on Human Rights. Ursula Kilkelly(2001)

    Handbook No. 2: Freedom of expression.A guide to the implementation of Article 10 ofthe European Convention on Human Rights.Monica Macovei (2001)

    Handbook No. 3: The right to a fair trial.A guide to the implementation of Article 6 ofthe European Convention on Human Rights.Nuala Mole and Catharina Harby (2001)

    Handbook No. 4: The right to property.A guide to the implementation of Article 1 ofProtocol No. 1 to the European Conventionon Human Rights. Monica Carss-Frisk (2001)

    Handbook No. 5: The right to liberty and secu-rity of the person.A guide to the implementation of Article 5 ofthe European Convention on Human Rights.Monica Macovei (2002)

    Handbook No. 6:The prohibitionof torture.A guide to the implementation of Article 3 ofthe European Convention on Human Rights.Aisling Reidy (2003)

    The opinions expressed in this publication are those of the author and do not engage the responsibilityof the Council of Europe. They should not be regarded as placing upon the legal instruments men-tioned in it any official interpretation capable of binding the governments of member states, the Coun-cil of Europes statutory organs or any organ set up by virtue of the European Convention on HumanRights.

    Directorate General of Human Rights

    Council of Europe

    F-67075 Strasbourg Cedex

    Council of Europe, 2002Cover photo: ICRC/Fred Clarke

    First impression, July 2003Printed in Germany

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  • Contents

    Introduction to the Convention . . . . . 5

    Introduction to Article 3 . . . . . . . . 7

    The scope of Article 3 . . . . . . . . . . 9

    De minimis rule . . . . . . . . . . . . . . 9

    Definition . . . . . . . . . . . . . . . . 10

    Torture . . . . . . . . . . . . . . . . . . 10

    Intensity . . . . . . . . . . . . . . . . . 11

    Intention . . . . . . . . . . . . . . . . . 12

    Purposive . . . . . . . . . . . . . . . . 13

    Actus Reus . . . . . . . . . . . . . . . . 13

    Inhuman or degrading . . . . . . . . . . 15

    Treatment v. punishment. . . . . . . . . 16

    Article 3 in the context

    of the Convention. . . . . . . . . . . . 18

    Application of Article 3 in context. . . 20

    Detention . . . . . . . . . . . . . . . 20

    Arrest and interrogation . . . . . . . . 21

    Conditions of detention . . . . . . . . 24

    Detention on medical grounds . . . . . 27

    Other points of detention . . . . . . . 29

    Deportation . . . . . . . . . . . . . . . 30

    Disappearances . . . . . . . . . . . . . 31

    Discrimination . . . . . . . . . . . . . . 33

    Positive obligations under Article 3 . . 33

    Procedural rights under Article 3 . . . . 34

    Drittwirkung effect . . . . . . . . . . . . 34

    Responding to allegations

    of ill-treatment. . . . . . . . . . . . . 36

    Investigating allegations of torture . . . 37

    Failure to investigate . . . . . . . . . . . 39

    Other international standards . . . . . 41

    Recommendations . . . . . . . . . . . 41

    Co-operation with the CPT and observation

    of their recommendations . . . . . . . 41

    Forensics . . . . . . . . . . . . . . . . . 43

    Behaviour of the law-enforcement forces 44

    Situations of tension and conflict. . . . . 44

    Groups at risk . . . . . . . . . . . . . . 45

    Investigations and prosecutions . . . . . 45

    Redress. . . . . . . . . . . . . . . . . . 45

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  • Introduction to the Convention

    The European Convention on Human Rights(hereinafter the Convention) was signed in Romeon 4 November 1950, and came into force on 3 May1953. Today, in 2003,1 forty-four states have rati-fied the European Convention on Human Rights.

    In practically all these states the Convention,as well as creating legal obligations under interna-tional law, is also part of domestic law. In this waythe European Convention on Human Rights is partof the legal system and it is mandatory for thedomestic courts and all public authorities to applyits provisions. In national proceedings individualsmay directly invoke its text and case-law, whichmust be applied by the national courts. Moreover,the national authorities, including the courts, mustgive the Convention priority over any national lawconflicting with the Convention.

    This is in keeping with the overall scheme ofthe Convention, which is that the initial and pri-mary responsibility for the protection of the rightsset forth in the Convention lies with the contract-ing states. Article 1 of the Convention obliges each

    contracting state to secure to everyone within theirjurisdiction the rights and freedoms defined in theConvention. The European Court of Human Rightsis there to monitor states action, exercising thepower of review.

    This relationship between the legal systemsof contracting states and the Court the subsidi-arity principle whereby the enforcement of the Con-vention by the national authorities goes hand inhand with European supervision, has given rise tothe existence of a so-called margin of apprecia-tion. The doctrine of the margin of appreciationrecognises that in many instances national authori-ties are in a better position to decide on a particu-lar case or issue. This is particularly true wherethere is a wide range of options as to how a mattercan be resolved. However, the margin of apprecia-tion is applied differently depending on the valueat stake, and the existence of common standardsapplied across many member states, and accord-ingly the degree of discretion allowed to the statesvaries.

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    1 As at 30 June 2003.

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  • In the context of Article 3, which prohibits tor-ture, the article at the focus of this handbook, it isdebatable as to whether there is a margin of appre-ciation at all.

    For national legal and political systems to ob-serve the obligations of the Convention it is appro-priate that the protections and guaranteesafforded by it are incorporated at all levels of thosesystems. In particular, those responsible for thedrafting, implementation and enforcement of lawsand regulations must be in a position to integratethe provisions of the Convention in their func-tions. This can only be achieved through a thor-ough knowledge of the Convention.

    The European Convention on Human Rights ismuchmorethan just the textof the treaty.During thelife of the Convention, additionalprotocolsbroaden-ing its scope have been adopted, and hundreds ofcases have been resolved before the organs of theConvention namely the former European Commis-sion of Human Rights (the Commission) and theEuropean Court of Human Rights (the Court).2

    It is primarily through this jurisprudence ofboth the Court and the Commission that an under-standing and appreciation of the scope of the Conven-tion has been developed. In dealing with thousandsof applications from individuals who alleged thattheir rights protected by the Convention had beenviolated, the Commission and the Court developed

    sets of principles and guidelines on theinterpretation of Convention provisions. They haveelaborated in detail on the scope of the protectionprovidedbytheConvention,andwhatStatesPartiesmust do to comply with the guarantees of fundamen-tal rights that are afforded by the Convention.

    This jurisprudence, or case-law of the Conven-tion organs, is the lifeblood of the Convention, andeach case sets out standards and rulings whichapply equally to all States Parties, irrespective ofwhich State Party was the respondent state. In thisrespect, one must understand that nowadays eventhe traditionally civilian legal systems practise amixed civilian and common-law system where thejurisprudence is given eq