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 L’EUROPECONSEILDE L’EUROPE0
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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 Europe’s 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.
5
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 equal value to that of thelaws enacted by the Parliament.
The Convention must also be understoodfrom the standpoint of its “object and purpose”, asthe Court has put it, to protect individual humanbeings within the values of a democratic society,which means that its provisions must be inter-preted and applied so as to make its safeguardspractical and effective. This principle of effectivenesshas very concrete consequences for the applica-tion of Article 3 of the European Convention.
Another central characteristic of the Conven-tion text is that its interpretation is dynamic. Thatis, it is reflective of changing social mores, stan-dards and expectations. It was in a case dealing
6
2 Protocol No. 11, which
came into force on 1 Novem-
ber 1998, dissolved the
former European Commis-
sion of Human Rights and
created the current perma-
nent European Court of
Human Rights.
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with Article 3 of the Convention that the Court tookthe opportunity to point out that the Convention isa living instrument which must be interpreted inthe light of present-day conditions. In that case,the Court determined that judicial corporal punish-ment of juvenile offenders, which was acceptablein 1956, was no longer acceptable by Conventionstandards in 1978.3
Particularly the Court noted that, in determin-ing whether the behaviour offended the Conven-tion, it “cannot but be influenced by thedevelopment and commonly accepted standardsin the penal policy of the member States of theCouncil of Europe in this field.”4
Accordingly, the Court is (and must be) influ-enced by changes and convergence of standardsaccepted in all member states. The purpose of thishandbook is to assist judges and prosecutors at alllevels in ensuring that the prohibition on torture, in-human and degrading treatment and punishmentis fully respected in conformity with the obligationsimposed by Article 3 of the Convention. To do soone must first unravel this seemingly self-explana-tory provision, and through a combination of thecase-law and the interpretative principles dis-cussed above, determine what in practical, as wellas legal terms, the implementation of the guaran-tee means for practitioners in the judicial system.
7
3 Tyrer v. the United Kingdom,
judgment of 25 April 1978,
Series A no. 26.
4 Ibid., §31.
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Introduction to Article 3
In the oft-repeated words of the EuropeanCourt of Human Rights,
Article 3 enshrines one of the mostfundamental values of democratic society.Article 3 of the Convention states thatNo one shall be subjected to torture or toinhuman or degrading treatment orpunishment.At fifteen words, Article 3 of the Convention is
one of the shortest provisions in the Convention.5
However, the brevity of the article should not belieits depth. National authorities cannot afford to becomplacent when understanding what it means torespect and enforce this provision.
Notwithstanding the depressing consistencywith which reliable reports testify that torture con-tinues to be practised around the world, the prohi-bition on torture is not just a prohibition containedin the Convention, but is also part of customary in-ternational law, and is considered tobe jus cogens.6
A large panoply of international norms hasbeen adopted to combat the scourge of torture:
from Article 5 of the 1948 Universal Declaration ofHuman Rights “No one shall be subjected totorture or cruel, inhuman or degrading treatmentor punishment” to the 1998 Rome Statute of the In-ternational Criminal Court which declares torturecommitted as part of a widespread or systematicattack against civilians to be a crime againsthumanity.
In addition to the Convention, most Council ofEurope states are also parties to the following trea-ties which all prohibit torture.7
� the four 1949 Geneva Conventions� the 1966 UN International Covenant on Civil
and Political Rights, Article 7: “No one shall besubjected to torture or to cruel, inhuman ordegrading treatment or punishment”
� the 1984 UN Convention against Torture andother Cruel, Inhuman or Degrading Treatmentor Punishment (CAT)
� the 1987 European Convention for the Preven-tion of Torture and Inhuman and DegradingTreatment or Punishment
8
5 Article 4 of Protocol No. 2
provides that “Collective ex-
pulsion of aliens is prohib-
ited”. This is the shortest
article of the European
Convention on Human
Rights and its protocols.
6 See Prosecutor v. Furundzija,
10 December 1998, case no.
IT-95-17/I-T; Prosecutor v..
Delacic and Others, 16 No-
vember 1998, case no. IT-96-
21-T, §454; and Prosecutor
v. Kunarac, 22 February
2001, case no. IT 96-23-T
and IT-96-23/1, §466.
7 For signatures and
ratifications of Council of
Europe conventions, see
http://conventions.coe.int/.
For United Nations treaties,
see http://untreaty.un.org/.
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The prohibition of torture is also to be foundin almost all domestic legal systems.
The inclusion of the prohibition on tortureand inhuman and degrading treatment at Constitu-tional level is an important element in ensuringthat such prohibited behaviour does not occurwithin the jurisdiction of a member state. Howeverthe existence of the prohibition is not, in and ofitself, sufficient to meet the obligations imposedby the Convention, and there have been many vio-lations of Article 3 notwithstanding such provi-sions in the legal systems of member states.
It would also be misleading to suggest that en-forcing Article 3 is chiefly based on the need tocom-bat only torture. Cases of actual torture are ofcourse the most grave and acute forms of the viola-tion of Article 3, but the protection of Article 3 isagainst many different types of assault on humandignity and physical integrity. As was discussedabove, it is the case-law and application of the Con-vention which gives it its lifeblood, and a review ofthat case-law demonstrates how broad theprohibition in Article 3 is, and how it should begiven practical application.
The factual situations which have given rise tocomplaints of alleged violations of Article 3 rangefrom complaints that persons in police custodyhave been ill-treated or that conditions of detentionwere inhuman or degrading, and complaints that a
deportation would expose the deportee to inhumantreatment in the recipient, third state, to complaintsthat the courts have failed to protect victims fromthe abuse of other private individuals.
The range of cases brings out a number ofpoints about the scope of Article 3, which we willexplore in detail later.� First, there is a large range of types of behav-
iour, as well as specific acts, which may fallfoul of Article 3.
� Potential perpetrators of Article 3 violationsare therefore similarly diverse.
� Whether specific behaviour or acts do offendArticle 3 is to be determined on the basis ofboth objective and subjective tests.
� Article 3 contains both substantive aspectsas well as procedural aspects, such as an obli-gation to investigate prima facie allegations oftorture and other inhuman treatment.
� Article 3 can be infringed by both deliberateinfliction of ill-treatment and also by negli-gence or failure to take specific action, orprovide adequate standards of care.
� Article 3 imposes both negative and positiveobligations: that is an obligation to refrainfrom certain action, and obligations to takepositive action to secure individuals theirrights and to protect them from prohibitedtreatment.
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The scope of Article 3
De minimis rule
It is not all types of harsh treatment which fallwithin the scope of Article 3. The Court, from thebeginning, has made it clear that ill-treatmentmust attain a minimum level of severity if it is to fallwithin the scope of Article 3. However, it has alsobeen recognised that the borderline betweenharsh treatment on the one hand, and a violationof Article 3 on the other, may sometimes be diffi-cult to establish.8
In the seminal case on Article 3, Ireland v. theUnited Kingdom,9 the Court made it clear that theassessment of the minimum level of severity is rela-tive: it depends on all the circumstances of thecase, such as the duration of the treatment, itsphysical and mental effects and, in some cases,the sex, age and state of health of the victim.10
These words have been repeated again and againin the case-law of the Court.11 In Soering, the Courtadded that the severity “depends on all the circum-stances of the case, such as the nature and contextof the treatment or punishment, the manner andmethod of its execution” as well as the factorsabove.12
It has in the past been acknowledged by theStrasbourg system that what is classified as unac-
ceptable ill-treatment may also vary from place toplace. The Commission has noted:
It appears from the testimony of a number ofwitnesses that a certain roughness of treatmentof detainees by both police and military authori-ties is tolerated by most detainees and eventaken for granted. This underlines the fact thatthe point up to which prisoners and the publicmay accept physical violence as being neithercruel nor excessive, varies between differentsocieties and even between different sections ofthem.13
It is the case that different societies, and in-deed individuals within a particular society, canhave different perceptions of what amounts to ill-treatment. Specific treatment directed againstwomen or children for example, taking into ac-count religious or cultural tenets, could be viewedas more severe by some groups than others. Theextent of the psychological effects which particulartreatment has on someone can often depend onan individual’s culture.
However, in the area of ill-treatment and theprotection afforded by Article 3 it is evident thatthere is growing convergence of standards andpractices which leads to much greater objectivity
10
8 McCallum v. the United
Kingdom, Report of 4 May
1989, Series A no. 183,
p. 29.
9 Ireland v. the United King-
dom, 18 January 1978,
Series A no. 25.
10 Ibid., §162.
11 See, amongst other authori-
ties, Ireland v. the United
Kingdom, p. 65; and more re-
cently Tekin v. Turkey, judg-
ment of 9 June 1998, ECHR
1998-IV, §52; Keenan v. the
United Kingdom, judgment
of 3 April 2001, §20;
Valašinas v. Lithuania, judg-
ment of 24 July 2001, §120;
and specifically with relation
to torture Labita v. Italy, judg-
ment of 6 April 2000, ECHR
2000-IV, §120.
12 Soering v. the United King-
dom, judgment of 7 July
1989, Series A no. 161,
§100.
13 Greek Case, 5 November
1969, YB XII, p. 501.
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in assessing the minimum threshold.14 The work ofthe European Committee for the Prevention of Tor-ture (CPT), which we will look at in detail later, hascontributed significantly to this in the area oftreatment of detainees.
Definition
The three broad areas of prohibition in Arti-cle 3 have been described as being distinct but re-lated. According to the European Commission ofHuman Rights in the Greek Case,
It is plain that there may be treatment to whichall these descriptions apply, for all torture mustbe inhuman and degrading treatment, and in-human treatment also degrading.To understand what type of behaviour is for-
bidden, and how that behaviour is to be classified,it is necessary to understand what the legal implica-tions for each term set out in Article 3 are. Article 3can be broken down into five elements:� torture� inhuman� degrading� treatment� punishment
Torture
Torture as a term of art has its own discretelegal implication. The Court has expressed the view
that the intention of the drafters of the Conventionin using both the terms “torture” and “inhuman ordegrading treatment” was to make a clear distinc-tion between them.15
Specifically, the Court considered that the in-tention was that a special stigma should attach todeliberate inhuman treatment causing very seriousand cruel suffering.16 The Court on that occasion re-ferred to Article 1 of Resolution 3452 (XXX)adopted by the General Assembly of the UnitedNations on 9 December 1975, which declares:
Torture constitutes an aggravated anddeliberate form of cruel, inhuman or degradingtreatment or punishment.
The European Court of Human Rights, al-though it has identified the elements which charac-terise treatment or punishment as torture, hasnever tried to define exactly what the term means.However it has endorsed in part the definition pro-vided in the United Nations Convention AgainstTorture, which came into force on 26 June 1987.17
At Article 1, the Convention states that
the term torture means any act by whichsevere pain or suffering, whether physical ormental, is intentionally inflicted on aperson for such purposes as obtaining from himor a third person information or a confession,punishing him for an act he or a third person
11
14 The emergence of common
acceptable standards, particu-
larly with respect to the treat-
ment of detainees of all
kinds, is best reflected in the
reports of the European
Convention for the Preven-
tion of Torture (“the CPT”),
and its reports and recom-
mendations on best prac-
tices. For reports of the CPT,
see its website http://
www.cpt.coe.int/ and in par-
ticular its report, “Substan-
tive” sections of the CPT’s
General Reports.
15 Ibid. p. 186. See recent au-
thority such as Dikme v.
Turkey judgment of 11 July
2000, §93.
16 Ibid., §167.
17 See, particularly, Akkoç v.
Turkey, judgment of 10 Octo-
ber 2000, §115; Salman v.
Turkey, judgment of 27 June
2000, §114.
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has committed or is suspected of having commit-ted, or intimidating or coercing him or a thirdperson, or for any reason based on discrimina-tion of any kind (emphasis added)From the foregoing it is possible to extract
three essential elements which constitute torture:� the infliction of severe mental or physical pain
or suffering� the intentional or deliberate infliction of the
pain� the pursuit of a specific purpose, such as gain-
ing information, punishment or intimidation
Intensity
The Court has stated that the distinction be-tween torture and other types of ill-treatment is tobe made on the basis of “a difference in the inten-sity of the suffering inflicted”. The severity, or inten-sity of the suffering inflicted can be gauged byreference to the factors referred to above:� duration� physical and mental effects� the sex, age and state ofhealth of the victim� the manner and method of its execution.
The subjective elements of this criteria – thesex, age and state of health of a victim – are rele-vant to the assessment of the intensity of particu-lar treatment. However the mitigating weight thatsuch relative factors are given, in the assessment
of whether acts amount to torture, must beminimal. Acts which objectively inflict sufficientseverity of pain will be considered torture, whetheror not a person is male or female, or of particularlystrong constitution or not. The Court has recog-nised this in Selmouni,18 where it noted that thetreatment inflicted in that case was not only violentbut would be heinous and humiliating for anyone,irrespective of their condition.19
The first case in which the Convention organshad to address a complaint of torture was an inter-state case against Greece, for practices carried outby the military junta governing Greece at the time.The Commission was the only body to investigatethe claims, as the then Greek government de-nounced the Convention soon after the investiga-tion. However the Commission found that therewere practices of inflicting falanga (beating thesoles of the feet with a blunt instrument), severebeatings, electro-shock treatment, mock execu-tions, and threats to shoot and kill the victims.20
The Commission concluded that there had beenacts of both torture and ill-treatment.
In the second inter-state case, Ireland v. theUnited Kingdom, the Commission had unanimouslyfound that the combined use of the so-called “fivetechniques” in the case before it, so-called “disori-entation” or “sensory deprivation” techniques con-stituted a practice of inhuman treatment and of
12
18 Selmouni v. France, judg-
ment of 28 July 1998, ECHR
1999-V.
19 Ibid. §103.
20 Greek Case, Commission
Report of 5 November 1969,
Yearbook 12.
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torture in breach of Article 3. The so-called “fivetechniques” were� wall-standing: forcing the detainees to remain
for periods of some hours in a “stressposition”, described by those who underwentit as being “spreadeagled against the wall,with their fingers put high above the headagainst the wall, the legs spread apart and thefeet back, causing them to stand on their toeswith the weight of the body mainly on thefingers”;
� hooding: putting a black or navy coloured bagover the detainees’ heads and, at leastinitially, keeping it there all the time exceptduring interrogation;
� subjection to noise: pending their interroga-tions, holding the detainees in a room wherethere was a continuous loud hissing noise;
� deprivation of sleep: pending their interroga-tions, depriving the detainees of sleep;
� deprivation of food and drink: subjecting thedetainees to a reduced diet during their stayat the centre and pending interrogations.The Court, however, did not agree with the
Commission and by a majority classified the treat-ment as inhuman treatment rather than torture.The Court found that as the five techniques wereapplied in combination, with premeditation andfor hours at a stretch, they caused at least intense
physical and mental suffering to the persons sub-jected to them and also led to acute psychiatricdisturbances during interrogation. They thereforefell into the category of inhuman treatment withinthe meaning of Article 3. The techniques were alsodegrading since they were such as toarouse in theirvictims feelings of fear, anguish and inferioritycapable of humiliating and debasing them and pos-sibly breaking their physical or moral resistance.However, they did not occasion suffering of theparticular intensity and cruelty implied by the wordtorture.
Intention
It has already been noted that, in thedefinition of torture used by the Court, torture isfurther characterised by being a deliberate form of in-human treatment. In Aksoy v. Turkey, in its firstjudicial determination that an individual had beentortured, the Court noted that “this treatmentcould only have been deliberately inflicted”. TheCourt went on to say that in fact “a certain amountof preparation and exertion would have been re-quired to carry it out”. The treatment spoken of wasso-called “Palestinian hanging” where the victim issuspended by his arms, tied behind his back.21
More recently, in Dikme v. Turkey, the Courtlikewise found that the treatment inflicted on thevictim consisted of “at the very least a large num-
13
21 Aksoy v. Turkey judgment of
18 December 1996, ECHR
1996-VI, Vol. 26, §64.
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ber of blows and other similar forms of torture”.The Court considered that such treatment wasintentionally meted out to Mr Dikme by agents ofthe State in the performance of their duties.
Purposive
The word torture is often used to describe inhu-man treatment which has a purpose, such as theobtaining of information or confessions, or the in-fliction of punishment. The Court has noted on anumber of occasions that the purposive element isrecognised in the definition of torture in the 1987United Nations Convention, and that the defini-tion refers to torture in terms of the intentional in-fliction of severe pain or suffering with the aim, interalia, of obtaining information, inflicting punish-ment or intimidating. In Dikme the Court deter-mined that the infliction of ill-treatment wascarried out with the aim of extracting a confessionor information about the offences of whichMr Dikme was suspected.22 In other cases wheretorture has been inflicted on detainees, the Courthas similarly found that the treatment was in thecontext of interrogation with the aim of extractinginformation or a confession.23
Actus reus
In the first case where the Court held that therewas torture, Aksoy v. Turkey, the victim had been
subjected to “Palestinian hanging”, in other words,he was stripped naked, with his arms tied togetherbehind his back, and suspended by his arms. Thisled to a paralysis of both arms which lasted for sometime. The seriousness and cruelty of this treatmentled it to be described as torture by the Court.
In Aydin v. Turkey the applicant alleged, interalia, that she was raped in police custody. TheCourt, in finding on the evidence that she had beenraped, stated that
rape of a detainee by an official of the Statemust be considered to be an especially graveand abhorrent form of ill-treatment given theease with which the offender can exploit thevulnerability and weakened resistance of hisvictim. Furthermore, rape leaves deep psychologi-cal scars on the victim which do not respond tothe passage of time as quickly as other forms ofphysical and mental violence. The applicantalso experienced the acute physical pain offorced penetration, which must have left herfeeling debased and violated both physicallyand emotionally.The Court went on to hold that the rape
amounted to torture in breach of Article 3 of theConvention.
In Selmouni v. France the applicant was aDutch and Moroccan national who was impris-oned in France. The applicant was subjected to
14
22 Akkoç, op. cit., §64; Dikme,
op. cit., §95.
23 See Aksoy v. Turkey, judg-
ment of 18 December 1996,
ECHR 1996-VI; and Akkoç
and Salman, op. cit.
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a large number of intense blows covering almostall of his body. He was dragged along by his hair;made to run along a corridor with police officerspositioned on either side to trip him up; made tokneel down in front of a young woman to whomsomeone said “Look, you’re going to hear some-body sing”; he was urinated over; and wasthreatened with a blow lamp and then asyringe.24
As noted above the Court observed that theseacts were not only violent, but that they would beheinous and humiliating for anyone, irrespective oftheir condition. The element of the duration of thetreatment was also taken into consideration in thiscase, and the fact that the above events were notconfined to any one period of police custody, butrather were part of a repetitive and sustained pat-tern of assaults over a number of days ofquestioning, aggravated the situation.
The Court again found that it was satisfiedthat the physical and mental violence, consid-ered as a whole, committed against the appli-cant’s person caused “severe” pain andsuffering and was particularly serious andcruel. Such conduct must be regarded as acts oftorture for the purposes of Article 3 of theConvention.25
In Akkoç v. Turkey, the victim in this case hadamongst other things been subjected to electric
shocks, hot and cold water treatment, blows tothe head and threats concerning the ill-treatment of her children. This treatment leftthe applicant with long-term symptoms ofanxiety and insecurity, diagnosed as post-traumatic stress disorder and requiring treat-ment by medication. Just as in Selmouni theCourt considered the severity of the ill-treatment suffered by the applicant, and the sur-rounding circumstances, to justify a finding oftorture.
In Dikme v. Turkey the blows inflicted onMr Dikme were such as to cause both physicaland mental pain or suffering, which could onlyhave been exacerbated by the fact that he wastotally isolated and that he was blindfolded. TheCourt found therefore that Mr Dikme was there-fore treated in a way that was likely to arouse inhim feelings of fear, anxiety and vulnerabilitylikely to humiliate and debase him and break hisresistance and will. The Court also took intoaccount the duration of the treatment andnoted that the treatment was meted out to himduring lengthy interrogation sessions to whichhe was subjected throughout his time in policecustody. Coupled with the intentional inflictionof the treatment with a purpose of extracting in-formation, the Court held that the violence in-flicted on the applicant, taken as a whole and
15
24 Op. cit., §103.
25 Ibid. §105.
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having regard to its purpose and duration, was par-ticularly serious and cruel and was capable ofcausing “severe” pain and suffering. It thereforeamounted to torture within the meaning of Arti-cle 3 of the Convention.
Inhuman or degrading
Ill-treatment that is not torture, in that it doesnot have sufficient intensity or purpose, will beclassed as inhuman or degrading. As with all Arti-cle 3 assessments, the assessment of thisminimum is relative.26
In the Greek case, the Commission stated thatthe notion of inhuman treatment covers at leastsuch treatment as deliberately causes severe suf-fering, mental or physical, which in the particu-lar situation is unjustifiable.Treatment has been held by the Court to be
“inhuman” because, inter alia, it was premeditated,was applied for hours at a stretch, and causedeither actual bodily injury or intense physical andmental suffering. Many instances of inhuman treat-ment arise in the context of detention, where vic-tims have been subjected to ill-treatment whichhas been severe, but not of the intensity requiredto qualify the treatment as torture.
It can also apply to a range of behaviouroutside of detention where victims are exposed todeliberate cruel acts which leave them in extreme
distress. In the cases of Mr Asker, Mrs Selçuk,Mrs Dulas and Mr Bilgin the applicants’ homeswere destroyed by members of the security forcesconducting operations in the areas where the appli-cants lived. Both the Commission and Court foundthat the destruction of the homes constituted anact of violence and deliberate destruction in utterdisregard of the safety and welfare of the appli-cants who were left without shelter and in circum-stances which caused anguish and suffering.27 Thiswas inhuman treatment within the meaning of Arti-cle 3 of the Convention.
Degrading treatment is that which is said toarouse in its victims feelings of fear, anguish and infe-riority, capable of humiliating and debasing them.This has also been described as involving treatmentsuch would lead to breaking down the physical ormoral resistance of the victim,28 or as driving the vic-tim to act against his will or conscience.29
In considering whether a punishment or treat-ment is “degrading” within the meaning of Arti-cle 3, regard should be had as to whether its object isto humiliate and debase the person concerned andwhether, as far as the consequences are con-cerned, it adversely affected his or her personalityin a manner incompatible with Article 3.30 However,the absence of such a purpose cannot rule out afinding of a violation of Article 3.
16
26 See, amongst other authori-
ties, the Tekin v. Turkey judg-
ment of 9 June 1998, ECHR
1998-IV, §52.
27 Selçuk and Asker v. Turkey,
judgment of 24 April 1998,
ECHR 1998-II, p. 19, §78;
Dulas v. Turkey, judgment of
30 January 2001, §55; Bilgin
v. Turkey, 16 November
2000, §103.
28 Ireland v. the United King-
dom, p. 66, §167.
29 Commission’s opinion in the
Greek Case, Chapter IV,
p. 186.
30 Ranninen v. Finland judg-
ment of 16 December 1997,
ECHR 1997-VIII, p. 2821-22,
§55.
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Relative factors such as age and sex of the vic-tim can have a greater impact in assessing whethertreatment is degrading, in contrast to whethertreatment is inhuman or torture, as the assess-ment of whether an individual has been subjectedto degrading treatment is more subjective. In thiscontext, the Court has also held that it may well suf-fice that the victim is humiliated in his own eyes,even if not in the eyes of others.
In one case before the Court,31 a 15-year-oldboy had been sentenced to corporal punishment,namely three strokes with a birch rod. The appli-cant was made to take down his trousers and under-pants and bend over a table, where he was held bytwo policemen whilst a third administered the pun-ishment, pieces of the birch breaking at the firststroke. The applicant’s father lost his self-controland after the third stroke “went for” one of thepolicemen and had to be restrained. The birchingraised, but did not cut, the applicant’s skin and hewas sore for about a week and a half afterwards.
The Court found that this punishment incor-porated the element of humiliation and attainedthe level inherent in the notion of “degradingpunishment”.
Whilst factors such as the publicitysurrounding particular treatment may be relevantin assessing whether a punishment is “degrading”within the meaning of Article 3, the absence of
publicity does not necessarily prevent a given pun-ishment from falling into that category.
Treatment v. punishment
Most of the behaviour and acts which fall foulof Article 3 could be classified as “treatment”. How-ever, in certain circumstances it is clearly a form ofpunishment which is being imposed on the victim,and it must be determined whether that punish-ment is inhuman or degrading.
Whilst it can be argued that there is a naturallyinherent humiliation in being punished per se, it isrecognised that it would be absurd to hold thatjudicial punishment generally, by reason of itsusual and perhaps almost inevitable element ofhumiliation, is “degrading” within the meaning ofArticle 3. The Court rightly requires that some fur-ther criterion be read into the text. Indeed, Arti-cle 3, by expressly prohibiting “inhuman” and
“degrading” punishment, implies that there is a dis-tinction between such punishment and punish-ment in general.
Therefore the prohibition on degrading treat-ment does not necessarily have any bearing on thenormal judicial sentence, even where the sentencepassed may be severe. The Court has indicatedthat it would only be in exceptional circumstancesthat a heavy sentence would raise an issue underArticle 3. It is in this instance that one could argue
17
31 Costello-Roberts v. the
United Kingdom, Series A
no. 247-C, p. 59, §30.
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that states enjoy a discretion or a margin of appreci-ation in terms of what “punishment” they pass onconvicts. Nevertheless, as we have seen above, in1978 the Court ruled that a system of judicial corpo-ral punishment for juvenile offenders in use in theUnited Kingdom violated Article 3.
The Court decided that this was so becausethe very nature of judicial corporal punishment isthat it involves one human being inflicting physicalviolence on another human being. Furthermore,the Court deemed it to be institutionalised vio-lence, that is violence permitted by the law,ordered by the judicial authorities of the State andcarried out by the police authorities of the State. Itwent on to hold that the institutionalised characterof the violence was further compounded by thewhole aura of official procedure attending the pun-ishment and by the fact that those inflicting it weretotal strangers to the offender.
Thus, although the applicant did not sufferany severe or long-lasting physical effects, his pun-ishment – whereby he was treated as an object inthe power of the authorities – constituted an as-sault on his dignity and physical integrity. TheCourt also considered significant the fact that thepunishment may have had adverse psychologicaleffects.
Similar use of corporal punishment in schoolshas also been found to be degrading. In that case
the Commission was of the opinion that thepunishment inflicted on the applicant caused himsignificant physical injury and humiliation, whichattained such a level of seriousness that it consti-tuted degrading treatment and punishment withinthe meaning ofArticle 3of the Convention. The Com-mission considered that the State was responsiblefor this ill-treatment in so far as the English legalsystem authorised it and provided no effectiveredress.32
Another area of institutionalised treatmentwhich falls to be considered under the umbrella ofthe Article 3 protection is that of enforced medicaltreatment. However the Court has indicated that
“the established practice of medicine” will holdprecedence in the assessment of whether suchtreatment is permissible. It held that as a generalrule, a measure which is a therapeutic necessitycannot be regarded as inhuman or degrading.33
It is wholly understandable that the Court,particularly exercising a supervisory role as it does,is reluctant to intervene in an area such as that ofmedical expertise, where it itself has no specificcompetence. National courts too are cautious ofintervening in this field. Nevertheless, nationaljudges and prosecutors would be advised to payattention to this area, to the development ofnational jurisprudence in this area and anyemerging convergence on the standards to be
18
32 Y v. the United Kingdom,
8 October 1991, Series A
no. 247-A; 17 EHRR 233.
33 Herczegfalvy v. Austria,
24 September 1992, Series A
no. 24, §82.
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applied in this field. There are a growing number ofnorms being set and adopted through resolutionsand recommendations of the minimum standardswhich apply to the treatment of patients, particu-larly psychiatric patients, and detainees who arepatients.34
In on-going debates which may focus onsuch issues as religious belief about medical
treatment and euthanasia, the question willalso arise as to whether the absolute right tohuman dignity is infringed where an individual isforced to accept certain medical treatment.Development of a broader consensus on thesematters will also help determine whether certainenforced medical treatment would be an assaulton human dignity.
Article 3 in the context of the Convention
The Court consistently and repeatedly ranksArticle 3, the prohibition on torture and inhumantreatment, along with Article 2, the right to life, asone of the most fundamental rights protected bythe Convention, whose core purpose is to protecta person’s dignity and physical integrity.
Unlike some of the other articles of the Con-vention, Article 3 is stated in absolute and un-qualified terms. In contrast to, for exampleArticles 8 to 11, there is no second paragraphsetting out the circumstances when it is permis-sible to engage in torture, inhuman or degradingtreatment or punishment. There is therefore noroom for limitations by law on the provision.
The unconditional terms of Article 3 alsomean that there can never, under the Convention
or under international law, be a justification for actswhich breach the article. In other words, there canbe no factors which are treated by a domestic legalsystem as justification for resort to prohibited be-haviour – not the behaviour of the victim, the pres-sure on the perpetrator to further an investigationor prevent a crime, any external circumstances orany other factor.
The Court is consistently quick to remindstates that the victim’s conduct cannot be consid-ered in any way as a justification for resort to pro-hibited behaviour. The Court has often reiteratedthat even in the most difficult circumstances, suchas the fight against terrorism and organised crime,the Convention prohibits in absolute terms tortureand inhuman or degrading treatment or punish-
19
34 Parliamentary Assembly Rec-
ommendation 1235 (1994)
on psychiatry and human
rights.
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ment. Whether or not any individual has commit-ted a terrorist or other serious criminal offence, oris suspected of such, it is irrelevant for determiningwhether the treatment inflicted on that person in-fringes the prohibition against ill-treatment.
The Court acknowledges that there are unde-niable difficulties inherent in the fight againstcrime, particularly with regard to organised crimeand terrorism. It also recognises the needs of theinvestigation into such crime. In this respect, theCourt accepts that in the prosecution of suchcrime, certain exceptions to the rules of evidenceand procedural rights can be permitted. Howeverthese same difficulties cannot in any way result inlimits being placed on the protection to be af-forded in respect of the physical integrity of individ-uals. The prohibition on resort to ill-treatmentduring interrogations and interviews, together withthe prohibition on use of any evidence obtained byresort to such behaviour, remains absolute.35
Similarly, irrespective of the crimes at stake,states are not permitted to sanction nor imposepunishments on the grounds that they would havea deterrent effect, where the punishments wouldbe contrary to Article 3.36 In this context it shouldbe noted that the Court has been slow to intervenesimply on the grounds that a judicial sentence issevere with respect to the length of imprisonmentimposed. However should the imprisonment be
subject to strict conditions or a sentence involveelements which go beyond imprisonment, thoseconditions will fall to be assessed for their compati-bility with Article 3.
The absolute prohibition in Article 3 alsomeans that it is not permitted to derogate from theprohibition even in times of war. While Article 15 ofthe Convention permits states, in times of war andother public emergencies, to derogate, to the ex-tent necessary, from the normal applicable stan-dard of protection guaranteed by the majority ofarticles of the Convention and its protocols, thereis no provision for derogation from Article 3.Rather, Article 15.2 makes it clear that even in theevent of a public emergency threatening the life ofthe nation, a state which has signed up to the Con-vention is not permitted to ill-treat individuals inany way prohibited by Article 3.37 No level of con-flict or terrorist violence diminishes the right of indi-viduals not be ill-treated.
This unconditionality has extra-territorial ef-fect. It extends to protect individuals from being ex-posed to ill-treatment beyond the territory of amember state and by individuals for whom themember state is not responsible. There are anumber of cases which deal with the application ofArticle 3 to cases of expulsion or deportation of indi-viduals. In those cases, even where there may be fac-tors such as a prior extradition treaty, the need to
20
35 Tomasi v. France, judgment
of 27 August 1992, Series A
no. 241-A §115.
36 Tyrer, op. cit., p. 15. See also
below, the discussion on pro-
hibited punishment.
37 Ireland v. the United King-
dom, judgment of 18 January
1978, Series A no. 25, §163;
Selmouni v. France, ECHR
1999-V, §95.
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bring to justice suspected terrorists who have fled ajurisdiction, or indeed the national security of thedeporting state, nothing would absolve a state of itsresponsibility not to send an individual to anotherstate where they face a real risk of ill-treatment.
Finally, it should also be noted that the abso-lute prohibition applies equally to the case of treat-ment of persons detained on medical grounds and/or subject to medical treatment. In a case wherethere had been a complaint of such treatment theCourt reiterated that
while it is for the medical authorities todecide, on the basis of the recognised rulesof medical science, on the therapeutic meth-ods to be used, if necessary by force, to pre-serve the physical and mental health ofpatients who are entirely incapable of decid-ing for themselves and for whom they aretherefore responsible, such patients never-theless remain under the protection ofArticle 3, whose requirements permitof no derogation38 (emphasis added).
21
38 Herczegfalvy v. Austria,
24 September 1992, Series A
no. 24, §82.
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Application of Article 3 in context
Detention
The context in which most violations of Arti-cle 3 occur is with respect to the treatment of de-tainees. Here, the obligations of Article 3 areperhaps most plainly and explicitly relevant. There-fore it is the actions of members of the police,armed or security forces, and members of theprison service which are most often under scrutinyfor whether or not they violate Article 3. However,persons involved in “civil detention”, such as thosewho deal with medical, particularly psychiatricpatients, may also be implicated.
Those who are deprived of their liberty, andtherefore under the full control of the authorities,who are most vulnerable to and at risk of abuse ofstate power against them. The exercise of this con-trol must therefore be subjected to strict scrutinyfor compliance with Convention standards. It is oflittle surprise that the European Committee for thePrevention of Torture (CPT) is explicitly mandated
to visit persons deprived of their liberty in order toexamine their treatment, with a view to strengthen-ing, if necessary, the protection of such personsfrom torture and from inhuman or degradingtreatment or punishment.39
In respect of persons deprived of their liberty,the starting point for assessing whether any ill-treatment has taken place is a determination ofwhether or not physical force has been used at allagainst the detainee in the first instance. The ruleof thumb set by the Court is that recourse tophysical force which has not been made strictlynecessary by the detainee’s own conduct is in prin-ciple an infringement of the right set forth in Arti-cle 3.40 This is derived from the fact that thepurpose of Article 3 is to protect human dignityand physical integrity and therefore any recourseto physical force diminishes human dignity.41
22
39 Article 1 of the European
Convention for the Preven-
tion of Torture.
40 Ribitsch v. Austria, judgment
of 4 December 1995, Re-
ports of judgments and deci-
sions 1996 p. 26, §34; Tekin,
pp. 1517-18, §§52 and 53;
and Assenov and others
v. Bulgaria, judgment of 28
October 1998, Reports 1998-
VIII, §94
41 Ibid.
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One of the most obvious indications ofrecourse to physical force will be visible signs ofphysical injuries or observable psychologicaltrauma. Where a detainee shows signs of injuries, orill-health, either upon release or at any stage duringtheir detention, the burden will be on the detainingauthorities to establish that the signs or symptomsare unrelated to the period or fact of detention.
If the injuries were related to the period orfact of detention, and a result of use of physical
force by the authorities, then the detainingauthorities should be in a position to establishthat it was necessitated by the detainee’s ownconduct and that only such force as was abso-lutely necessary was used. The burden of proofis firmly on the detaining authorities to providea plausible account of how the injuriesoccurred. The account must be assessed for itscredibility and the circumstances for their com-patibility with Article 3.42
Arrest and interrogation
The potential for violations of Article 3, in thecontext of detention, arises at each stage of deten-tion – from the moment a person is placed underdetention, usually by way of arrest or apprehen-sion by a police or military officer, to the time whena person is released from custody.
In Ilhan v. Turkey, the applicant was severelybeaten at the time of his arrest. The beatings, in-cluding to the head, were carried out, inter alia, withrifle butts when the security forces “captured” theapplicant who was in hiding. A significant period oftime then lapsed before the applicant had accessto medical treatment. This treatment amounted, inthe Court’s view to torture.
In the case of Assenov v. Bulgaria, although itwas not ultimately possible to establish how theinjuries occurred, or who was responsible, the inju-ries sustained were also caused during his arrest. InRehbock v. Slovenia the applicant sustained facial inju-ries during his arrest. The police submitted that theinjuries were the result of resisting arrest. The useof force, however, was excessive and unjustifiedand the authorities could provide no basis forexplaining why the injuries sustained were so seri-ous: the arrest had been planned and therefore therisks assessed, the police far outnumbered the sus-pects, and the victim was not brandishing aweapon at the police.43
23
42 Tomasi v. France judgment
of 27 August 1992, Series A
no. 241-A, pp. 40-41,
§§108-111; Ribitsch v. Aus-
tria judgment of 4 December
1995, Reports of judgments
and decisions 1996, p. 26,
§34; Aksoy v. Turkey judg-
ment of 18 December 1996,
p. 17 §61.
43 Assenov v. Bulgaria judg-
ment of 28 October 1998,
Reports 1998-VIII.
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In cases of torture, where ill-treatment is in-flicted for the purpose of obtaining information ora confession, then the violation is most likely to oc-cur during the initial arrest period, when interviewsor interrogations are taking place. This is morelikely to be a police station than a prison. This isalso reflected in the cases which have come beforethe Court, and the experience of the CPT whonoted that
The CPT wishes to stress that, in its experience,the period immediately following the depriva-tion of liberty is when the risk of intimidationand physical ill-treatment is at its greatest.44
The CPT has also noted that for both adultsand juveniles, the risk of being deliberately ill-treated is higher in police establishments than inother places of detention.45
The interpretation and application of Article 3in accordance with the principle that the Conven-tion is a “living instrument which must be inter-preted in the light of present-day conditions”means that certain acts which had previously beenclassified as “inhuman and degrading treatment”as opposed to “torture” might be classified differ-ently in future. In Selmouni v. France the Courtnoted:
… the increasingly high standard being re-quired in the area of the protection of humanrights and fundamental liberties correspond-ingly and inevitably requires greater firmness
in assessing breaches of the fundamental valuesof democratic societies.46
This was endorsed by the Court in Dikme.47
Since the mid-1990s, the Court has beenseized again with allegations that individuals havebeen victims of torture in the detention centres ofmember states. There here are a number of caseswhere behaviour has been deemed to constitutetorture under the Convention. These include:
� Palestinian hanging: suspension by the arms,tied behind the back (Aksoy v. Turkey48)
� severe forms of beating (Selmouni v. France,Dikme v. Turkey)
� severe beatings, combined with denial of med-ical treatment (Ilhan v. Turkey)
� electric shocks (Akkoç v. Turkey)
� rape (Aydin v. Turkey)
� falaka/falanga: beatings on the soles of the feet(Salman v. Turkey, Greek case49)
In the cases of Tomasi, Ribitsch, and Tekinamongst others, the Court found that the detain-ees had been subjected to inhuman treatment inthe form of beatings.
All of these cases happened during periods ofdetention. This reinforces how essential it is that,at this stage of detention, the legal system shouldprovide fundamental safeguards against ill-treat-ment. The three key safeguards are
24
44 6th General Report of the
CPT (1996), para. 15, and
similar comments in 9th Gen-
eral Report of the CPT
(1999), para. 23.
45 9th General Report of the
CPT, para. 23.
46 Selmouni.
47 Op. cit., §92.
48 Aksoy v. Turkey judgment of
18 December 1996, Reports
1996-VI.
49 Greek case, Commission
Report of 5 November 1969,
Yearbook 12.
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� the right of the detainee to have the fact of hisdetention notified to a third party of hischoice (family member, friend, consulate)
� the right of access to a lawyer� the right to request a medical examination by
a doctor of his choice.These should apply from the very outset of
deprivation of liberty. 50
During the initial period of detention particu-larly, the detaining authorities must be able toaccount accurately for the movements of any detain-ees, for who may have had access to the detaineesand where detainees were at any given moment.
In cases where a defendant complains of ill-treatment, judges should expect the detainingauthorities to provide rebuttal evidence that any in-juries or medical conditions which the detaineeexhibits were either not sustained in detention, orwere the result of legitimate action which can bedocumented. The Court has said that
Where death occurs in custody in connectionwith even minor injuries, there is a heightenedburden on the Government to provide a satisfac-
tory explanation. In this context, the author-ities bear the responsibility to ensurethat they keep detailed and accuraterecords concerning the person’s detentionand place themselves in the position thatthey can account convincingly for any in-juries [emphasis added].51
The CPT has also previously drawn attentionto this duty. They advised that
the fundamental safeguards granted to personsin police custody would be reinforced (and thework of police officers quite possibly facilitated)if a single and comprehensive custody recordwere to exist for each person detained, in whichwould be recorded all aspects of his custody andaction taken regarding them (when deprived ofliberty and reasons for that measure; when toldof rights; signs of injury, mental illness, etc.;when next of kin/consulate and lawyer con-tacted and when visited by them; when offeredfood; when interrogated; when transferred orreleased, etc.).52
25
50 2nd General Report of the
CPT, (1992), para. 36.
51 Salman v. Turkey.
52 2nd General Report of the
CPT, para. 40.
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Conditions of detention
Conditions of detention may sometimesamount to inhuman or degrading treatment. This isalso an area where there is a continuous evolutionin the basic standards that are acceptable acrosssocieties.53 The work of the CPT is a significant andcrucial contribution in this area.
Conditions of detention refers both to the generalenvironment in which prisoners are detained andto the prison regime and specific conditions inwhich inmates are kept. Assessing whether the sur-roundings of a prisoner, or the conditions imposedon him or her are in conformity with the Conven-tion, the circumstances of the prisoner – his or herage and sex and health, the danger posed by theprisoner – must be taken into account, as well aswhether the prisoner is on remand or not.
A person detainedon remand, andwhose crimi-nal responsibility has not been established by a finaljudicial decision, enjoys a presumption of inno-cence, which applies not only in respect of the crimi-nal procedure but also to the legal regime governingthe rights of such persons in detention centres.
Likewise, some prisoners will have specialneeds, and the failure to attend to them will giverise todegrading treatment. In Price the victim was afour-limb-deficient as a result of medical problems
during gestation, with numerous heath problemsincluding defective kidneys, and was imprisonedfor seven days for contempt of court in the courseof civil proceedings. The sentencing judge took nosteps, before committing the victim to immediateimprisonment – a sentence which the Court consid-ered to be particularly harsh – to ascertain whereshe would be detained or to ensure that it would bepossible to provide facilities adequate to cope withher severe level of disability. The conditions inwhich she was then detained were wholly inade-quate to meet her medical condition. Whilst therewas no evidence of any positive intention to humili-ate or debase the applicant, the Court consideredthat to detain a severely disabled person in condi-tions where she is dangerously cold, risks develop-ing sores because her bed is too hard orunreachable, and is unable to go to the toilet orkeep clean without the greatest of difficulty, consti-tute degrading treatment contrary to Article 3.
The evolving norms of detention require thatpractices or routine treatment common to prisonsystems be regularly reviewed to ensure that theycontinue to comply with the standards of Article 3,or that specific treatment which in and of itself may
26
53 In earlier cases the Court and
the former Commission did
seem reluctant to conclude
that conditions of detention
violated Article 3. There
were even cases where there
had been acknowledged vio-
lations of international stan-
dards on detention, but no
violation found. See Deci-
sion of 11 December 1976,
Yearbook 20; Decision of 11
July 1977 DR 10; Krocher
and Moller v. Switzerland,
Commission report of 16 De-
cember 1982, DR 34.
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not be degrading is not executed in a manner whichrenders it degrading.
The imposition of solitary confinement, or se-clusion, has often been the basis for complaints ofinhuman or degrading conditions,54 but neither theCourt nor the CPT has deemed solitary confine-ment per se contrary to Article 3. Nevertheless, par-ticular vigilance should be paid to persons who areheld, for whatever reason (for disciplinary pur-poses; as a result of their “dangerousness” or their
“troublesome” behaviour; in the interests of a crim-inal investigation; at their own request), inconditions akin to solitary confinement. Forexample, should the solitary confinement be pro-longed, or imposed on a remand prisoner or ajuvenile, the matter may be different.
The CPT has held that solitary confinementcan, in certain circumstances, amount to inhumanand degrading treatment.55 The severity of thespecific measure, its duration, the objective pur-sued by it, the cumulative effect of any further con-ditions imposed, as well as the effects on theindividual’s physical and mental well-being, will allbe factors in assessing whether a specific instanceof solitary confinement or segregation is in viola-tion of the article.56
Strip-searching is another treatment whichprisoners may have to endure, but in certain cir-cumstances it can also be degrading. The Court
has found that, whilst strip searches may benecessary on occasions to ensure prison securityor prevent disorder or crime, they must be con-ducted in an appropriate manner. Obliging a maleto strip naked in the presence of a woman, andthen touching his sexual organs and food with barehands, showed a clear lack of respect for the appli-cant, and diminished in effect his human dignity.The Court found that, as it must have left him withfeelings of anguish and inferiority capable ofhumiliating and debasing him, that the searchamounted to degrading treatment within the mean-ing of Article 3 of the Convention.57
Other practices and policies, such as hand-cuffing prisoners or use of other modes of restraintor other disciplinary measures, such as deprivationof outdoor exercise or visitation rights, must alsobe subject to review and scrutiny to ensure that themanner in which they are not imposed is not abu-sive, nor give rise to degrading treatment.
In the Greek case58 the Commission concludedthat conditions of detention which were over-crowded and had inadequate facilities for heating,sanitation, sleeping arrangements, food, recreationand contacts with the outside world were degrading.Conditions like these, particularly overcrowding, arestill problematic today and continue to violate thestandards demanded by the Convention.
27
54 Decision of 11 December
1976, Yearbook 20; Decision
of 11 July 1977, DR 10;
Krocher and Moller v. Swit-
zerland, Commission Report
of 16 December 1982, DR
34.
55 2nd General Report of the
CPT, para. 56.
56 Decisions of 11 July 1973,
Collection 44; 8 July 1978,
DR 14; and 9 July 1981.
57 Valašinas v. Lithuania judg-
ment of 24 July 2001.
58 Yearbook 12, 1969.
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In one case, for at least two months, aprisoner had to spend a considerable part of each24-hour period practically confined to his bed in acell with no ventilation and no window, whichwould at times become unbearably hot. He alsohad to use the toilet in the presence of another in-mate and be present while the toilet was beingused by his cellmate. The Court considered thatthe prison conditions complained of diminishedthe prisoner’s human dignity and arose in him feel-ings of anguish and inferiority capable of humiliat-ing and debasing him and possibly breaking hisphysical or moral resistance. Moreover, the Courthas held that failure to make efforts to improve con-ditions, where there had been complaints aboutthe standards, denoted lack of respect for the de-tainee. In sum, the Court considered that the condi-tions of the applicant’s detention in thesegregation unit of the prison amounted to degrad-ing treatment within the meaning of Article 3 of theConvention.59
In another case, the prisoner was confined inan overcrowded and dirty cell with insufficient sani-tary and sleeping facilities, scarce hot water, nofresh air or natural daylight and no yard in which toexercise. Reports from the CPT corroborated the al-legations of the prisoner. In its report the CPTstressed that the cell accommodation and deten-tion regime in that place were quite unsuitable for a
period in excess of a few days, the occupancylevels being grossly excessive and the sanitaryfacilities appalling.
In conclusion the Court held that the condi-tions of detention of the prisoner, in particular theserious overcrowding and absence of sleeping facil-ities, combined with the inordinate length of theperiod during which he was detained in suchconditions, amounted to degrading treatment con-trary to Article 3.60
The outcome of these cases suggests that inthe present day, in particular since the establish-ment of the CPT and the increase of NGOs monitor-ing prison conditions, there is little tolerance ofprison conditions which fail to meet internationalstandards. One can expect the Court to exercise in-creased levels of scrutiny and vigilance and de-mands will be made of national authorities to dothe same.
As Article 3 permits no qualification, explana-tions to the effect that inadequate conditions suchas overcrowding or lack of sleeping or sanitationfacilities are result of economic or other inheritedorganisational or endemic factors will not justifyfailings.61 The CPT has also pointed out that ill-treatment can take numerous forms, many ofwhich may not be deliberate but rather the result oforganisational failings or inadequate resources.62
28
59 Peers v. Greece judgment of
19 April 2001.
60 Dougoz v. Greece judgment
of 6 March 2001.
61 In a series of cases involving
the length of civil proceed-
ings the Court has repeatedly
emphasised that there is a
duty on states to organise
their judicial system in such
a way as to comply with the
requirements of a fair trial (Ar-
ticle 6). See, for example:
Multi v. Italy, Series A no.
281-C; Susmann v. Germany
judgment of 16 September
1996, Reports 1996-IV. In
the case of Article 3 the obli-
gation on states to organise
their system of detention to
ensure that individuals are
not kept in degrading condi-
tions will be even more
pressing.
62 2nd General Report of the
CPT, para. 44.
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Specific situations and practices which maybe deemed to be degrading under Article 3, eitheralone or in combination, are: overcrowding,63 lackof outdoor exercise for all prisoners, lack of con-tact with the outside world, inadequate standardsof hygiene and toilet facilities,64 and lack of ade-quate medical or dental care.65 Authorities are
under an obligation to protect the health of per-sons deprived of liberty.66 The lack of appropriatemedical treatment may amount to treatment con-trary to Article 3.67
Detention on medical grounds
In particular, the assessment of whether thetreatment or punishment concerned is incompa-tible with the standards of Article 3 has, in the caseof mentally ill persons, to take into considerationtheir vulnerability and their inability, in some cases,to complain coherently or at all about how they arebeing affected by any particular treatment.68
In a case against the United Kingdom, theCourt found that the lack of effective monitoring ofthe victim’s condition and the lack of informed psy-chiatric input into his assessment and treatmentdisclosed significant defects in the medical careprovided to a mentally ill person known to be a sui-cide risk.
The belated imposition on him of a serious dis-ciplinary punishment – seven days’ segregation inthe punishment block and an additional 28 daysadded to his sentence, imposed two weeks after
the event and only nine days before his expecteddate of release – may well have threatened his phys-ical and moral resistance and was not compatiblewith the standard of treatment required in respectof a mentally ill person. The Court considered thatit must be regarded as constituting inhuman anddegrading treatment and punishment within themeaning of Article 3 of the Convention.69
In the context of psychiatric detention, in acase against Austria from 1983, Mr Herczegfalvycomplained that his medical treatment violated Ar-ticle 3, in that he had been forcibly administeredfood and medicines, isolated, and attached withhandcuffs to a security bed. Although the Commis-sion considered that the manner in which the treat-ment was administered had not complied with therequirements of Article 3, in that the measures had
29
63 7th General Report of the
CPT (1997), para. 13: “The
CPT has been led to con-
clude on more than one occa-
sion that the adverse effects
of overcrowding have re-
sulted in inhuman and de-
grading conditions of
detention.”
64 The CPT has highlighted this
specifically with reference to
hygiene needs of women.
10th General Report of the
CPT, para. 31: “The specific
hygiene needs of women
should be addressed in an ad-
equate manner. Ready access
to sanitary and washing facili-
ties, safe disposal arrange-
ments … as well as provision
of hygiene items, such as san-
itary towels and tampons, are
of particular importance. The
failure to provide such basic
necessities can amount, in
itself, to degrading
treatment.”
65 3rd General Report of the
CPT (1993), para. 30: “An in-
adequate level of health care
can lead rapidly to situations
falling within the scope of
the term ‘inhuman and de-
grading treatment’.”
66 Hurtado v. Switzerland,
Comm. Report of 8 July
1993, Series A no. 280, p.
16, §79.
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been violent and excessively prolonged, the Courtdisagreed.
The Government had submitted, inter alia,that the medical treatment was urgent in view ofthe deterioration in the applicant’s physical andmental health and that it was the patient’s resis-tance to all treatment together with his extreme ag-gressiveness towards the hospital staff, whichexplained why the staff had employed coercivemeasures including the use of handcuffs and thesecurity bed. They further submitted that the soleaim had always been therapeutic, and that themeasures had been discontinued as soon as thecondition of the patient permitted this.
Although the Court noted that the position ofinferiority and powerlessness, typical of patientsconfined in psychiatric hospitals, called for in-creased vigilance in reviewing whether the Conven-tion has been complied with, it overturned theCommission’s assessment. The Court did expressconcern over the length of time during which thehandcuffs and security bed were used; however, itdetermined that the evidence before it was not suf-ficient to disprove the government’s argumentthat, according to the psychiatric principlesgenerally accepted at the time, medical necessityjustified the treatment in issue.
However, standards of accepted treatment ofpsychiatric patients are also evolving. Special vigi-
lance needs to be paid when resort to instrumentsof physical restraint – such as the handcuffs men-tioned above, or straps, straight jackets, etc. – ismade. This should only very rarely be justified, anda legal system which permits regular use of suchtechniques, or where such use is not expresslyordered by a doctor or immediately brought to theattention of a doctor with a view to seeking his ap-proval, is likely to have problems complying withthe Convention.
If, exceptionally, recourse is had to instru-ments of physical restraint, they should be re-moved at the earliest opportunity. Prolongationwill give rise to a violation of Article 3. Moreoversuch instruments should never be applied, or theirapplication prolonged, as a punishment. If the pur-pose or object of their use is punishment, this wouldlikely fall foul of Article 3.
The CPT has publicly made clear that where ithas encountered psychiatric patients to whom in-struments of physical restraint have been appliedfor a period of days it does not consider it to haveany therapeutic justification and amounts, in itsview, to ill-treatment.70
The practice of seclusion (i.e. confinementalone in a room) of violent or otherwise “unmanage-able” patients is also a matter which raisesconcerns over compliance with Article 3. The CPT
30
67 Ilhan v. Turkey, ECHR 2000-
VII.
68 Herczegfalvy v. Austria judg-
ment of 24 September 1992,
Series A no. 244, §82; Aerts
v. Belgium judgment of 30
July 1998, Reports 1998-V,
p. 1966, §66.
69 Keenan v. the United King-
dom judgment of 3 April
2001.
70 8th General Report of the
CPT, para. 48.
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has set out that in the case of psychiatric patients,seclusion should never be used as a punishment.71
Where seclusion is used for purposes beyondpunishment, the CPT recommends that it shouldbe the subject of a detailed policy spelling out, inparticular: the types of cases in which it may beused; the objectives sought; its duration and theneed for regular reviews; the existence of appropri-ate human contact; and the need for staff to be es-pecially attentive. In view of the clear emergingtrend in modern psychiatric practice in favour ofavoiding seclusion of patients, and in the light ofdoubts over the therapeutic effects of seclusion,the absence of the requisite conditions will callinto question the compliance of the practice withArticle 3.
In respect of specific treatment of psychiatricpatients, there are also several areas where the con-sensus on whether or not they constitute degrad-ing treatment is also growing. One such area is
electroconvulsive therapy (ECT). Whilst it is still arecognised form of treatment according to gener-ally accepted psychiatric principles, the CPT hasexpressed particular concern about the administra-tion of ECT in unmodified form (i.e. without anaes-thetic and muscle relaxants). It is of the opinionthat this method can no longer be considered asacceptable in modern psychiatric practice.Specifically, it deemed the process as such to bedegrading for both the patients and the staffconcerned.72
As the administration of ECT could, even in itsmodified form, be considered degrading if it wereto humiliate the patient in the eyes of others, theCPT has also concluded that ECT must be adminis-tered out of the view of other patients (preferablyin a room which has been set aside and equippedfor this purpose), by staff who have been specifi-cally trained to provide this treatment.
Other points of detention
Detention is not limited to prisons or policecells. Wherever persons are deprived of theirliberty, then the standards surrounding that deten-tion fall to be considered under the requirements
of Article 3. The variety of custodial settings inwhich immigration detainees can be held, includ-ing holding facilities at points of entry such asports and airports, are typical of this.
31
71 8th General Report of the
CPT, para. 49.
72 Ibid., para. 39.
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The CPT has often found point-of-entryholding facilities to be inadequate, in particular forextended stays. More specifically, CPT delegationshave on several occasions met persons held fordays under makeshift conditions in airportlounges. It is axiomatic that such persons shouldbe provided with suitable means for sleeping,granted access to their luggage and to suitablyequipped sanitary and washing facilities, and al-lowed to exercise in the open air on a daily basis.Further, access to food and, if necessary, medicalcare should be guaranteed.73
Deportation
There is a significant and increasing body ofcase-law where the Court has held that an expul-sion or deportation of an individual to a countrywhere they may be subjected to treatment inviolation of Article 3 incurs the responsibility of thedeporting state under the Convention.
This principle was first established in theSoering case where the United States sought the ex-tradition from the United Kingdom ofa fugitive whofaced murder charges in the state of Virginia. Theapplicant sought to have the extradition halted onthe grounds that should he be convicted of murderin the United States, he would face the death pen-alty, and more specifically the so-called “death-row phenomenon”, which he claimed amounted to
inhuman treatment. The death-row phenomenonis a combination of conditions of detention(namely a very strict and severe high-securityprison regime, which a prisoner could endure foryears owing to the length of the appeals process)and the mental anguish of living in the ever-presentshadow of death. In Soering’s case his age at thetime of the offence – under 18 – and his thenmental state also contributed to the Court’s deter-mining that the conditions did amount to inhumanand degrading treatment. The Court then ruledthat for the United Kingdom to extradite to theUnited States under those circumstances wouldgive rise to a violation of Article 3.
The series of cases which followed on fromSoering cemented the principle that where substan-tial grounds can be shown for believing that an indi-vidual, if expelled, faces a real risk of beingsubjected to torture or to inhuman or degradingtreatment or punishment in the receiving country,then the responsibility of the sending state will beengaged on the grounds that if it were to expel theindividual, the exposure of the individual to pro-scribed ill-treatment would be a direct conse-quence of its action.74
It is therefore essential that a rigorous scru-tiny be conducted of an individual’s claim that hisor her deportation to a third country will exposethat individual to treatment prohibited by Article 3.
32
73 7th General Report of the
CPT, para. 26.
74 Soering v. the United King-
dom judgment of 7 July
1989, Series A no. 161,
p. 35, §§90-91.
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The existence of automatic and mechanical appli-cation of provisions such as a short time-limit forsubmitting an asylum application must be consid-ered at variance with the protection of the funda-mental value embodied in Article 3 of theConvention.
The question of whether the decision-makingprocess as a whole offers suitable guaranteesagainst persons being sent to countries where theyrun a risk of torture or ill-treatment is the focus forthe CPT too, as this best serves their preventiverole. The CPT has expressed its desire to explorewhether the applicable procedure offers the per-sons concerned a real opportunity to present theircases, and whether officials entrusted withhandling such cases have been provided with ap-propriate training and have access to objectiveand independent information about the humanrights situation in other countries. The CPT also rec-ommends that, in view of the potential gravity ofthe interests at stake, a decision involving the re-moval of a person from a state’s territory should besubject to appeal before another body of an inde-pendent nature prior to its implementation.75
Cases where the Court has determined that adeportation would give rise to issues under Arti-cle 3 include the deportation of an Indian nationalwho supported a Sikh separatist movement in Pun-jab back to India; the deportation of an Iranian
woman back to Iran where she would face nearcertain death as an alleged adulterer; and the de-portation of a political opponent, who had previ-ously been tortured, back to Zanzibar.76
Disappearances
The phenomenon of disappearances raise aninteresting issue with respect to potential viola-tions of the Article 3. Disappearances occur where aperson is taken into unacknowledged detention byagents of the state or by persons acting on behalfof or with the acquiescence of the official authori-ties. Unacknowledged detentions often result inthe eventual confirmed death of the disappearedperson or complete silence about the fate of the
“disappeared” person, leaving relatives andfriends to believe that the person has died. Thissort of situation raises two questions: how is thedignity of the person who is the subject of the unac-knowledged detention affected? and what is theimpact on the family and loved ones of the disap-peared person?
The Court chooses not to address the disap-pearance of a person per se as degrading or inhu-man treatment, but to deal with it under Article 5(deprivation of liberty). The Court does recognisethat there may in some cases be evidence that anindividual was ill-treated before they “disap-peared”.77 However, it has pointed out that the
33
75 7th General Report of the
CPT, para. 34.
76 Jabari v. Turkey judgment of
11 July 2001.
77 Kurt v. Turkey and Kaya
v. Turkey.
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treatment which a disappeared person may havesuffered whilst “disappeared” can only be a matterof speculation. The Court’s position is that theacute concern which must arise in relation to thetreatment of persons apparently held without offi-cial record and excluded from the requisite judicialguarantees is an added and aggravated aspect ofthe issues arising under Article 5 (deprivation ofliberty) rather than Article 3.
Nevertheless, the Court has recognised thatthere is a duty to examine the impact of a disap-pearance on the relative of the disappearedperson. In Kurt v. Turkey, where the applicant com-plained about the disappearance of her son at thehands of the Turkish army and local “villageguards”, the applicant had approached the publicprosecutor in the days following her son’s disap-pearance in the definite belief that he had beentaken into custody. She had witnessed his deten-tion in the village with her own eyes and his non-appearance since that last sighting made her fearfor his safety. However, the public prosecutor gaveno serious consideration to her complaint. As aresult, she was left with the anguish of knowing thather son had been detained and that there was acomplete absence of official information as to hissubsequent fate. This anguish had endured over aprolonged period of time.
In these circumstances, as well as finding thatthe complainant was the mother of the victim andherself the victim of the authorities’ complacencyin the face of her anguish and distress, the Courtfound a breach of Article 3 in respect of the appli-cant. The Court, however, explicitly stated that theKurt case does not establish any general principlethat a family member of a “disappeared person” isthereby a victim of treatment contrary toArticle 3.
Whether a family member is such a victim willdepend on the existence of special factors whichgive the suffering of the applicant a dimension andcharacter distinct from the emotional distresswhich may be regarded as inevitably caused to rela-tives of a victim of a serious human rights violation.Relevant elements will include the proximity of thefamily tie – in that context, a certain weight will at-tach to the parent-child bond – the particular cir-cumstances of the relationship, the extent towhich the family member witnessed the events inquestion, the involvement of the family member inthe attempts to obtain information about the dis-appeared person and the way in which the authori-ties responded to those enquiries.
In the case of Ta� �� �����, the Court foundthat having regard to the indifference and callous-ness of the authorities to the applicant’s concernsand the acute anguish and uncertainty which hesuffered as a result, the applicant was a victim of
34
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the authorities’ conduct, to an extent whichbreached Article 3. Similarly in Timurtas and Cicekthe applicants were parents of the disappearedwho had suffered from the indifference and callous-ness of the authorities.
The Court has emphasised that the essenceof such a violation does not so much lie in the factof the “disappearance” of the family member butrather concerns the authorities’ reactions and atti-tudes to the situation when it is brought to their at-tention. It is especially in respect of the latter that arelative may claim directly to be a victim of theauthorities’ conduct.78
Discrimination
In Abdulaziz, Cabales and Balkandali v. the UnitedKingdom, the Commission had found that institu-tional racism amounted to degrading treatment.On the facts the Court disagreed with the Commis-
sion; however, it did accept the principle that suchdiscrimination could amount to degrading treat-ment. This approach has been endorsed by the cur-rent permanent Court. In the examination of anapplication from a group of individuals who weredismissed from the British Armed Forces for theirsexual orientation, the Court said that it
would not exclude that treatment which isgrounded upon a predisposed bias on the part ofa … majority against a … minority could, inprinciple, fall within the scope of Article 3.79
However, the Court found that although thepolicy, together with the investigation and dis-charge which ensued, were undoubtedly distress-ing and humiliating for each of the applicants,having regard to all the circumstances of the case,the treatment did not reach the minimum level ofseverity which would bring it within the scope of Ar-ticle 3 of the Convention.80
35
78 Cak�c� v. Turkey judgment of
8 July 1999, Reports 1999,
§§98-99.
79 Abdulaziz, Cabales and
Balkandali v. the United
Kingdom judgment of 28
May 1985, Series A no. 94,
p. 42, §§90-91.
80 Smith and Grady v. the
United Kingdom, judgment
of 27 September 1999.
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Positive obligations under Article 3
The rights in the European Convention, ifthey are to be properly enjoyed, must be givenpractical and effective safeguards. In the con-text of ill-treatment preventive and protectivesafeguards against ill-treatment are essential.Many of these safeguards are to be found in thenational legal system, in the protection they af-ford to individuals from all types of assault, as
well as through the rights of victims to seek re-dress against those who commit assault.
These positive obligations can be divided intotwo categories: the requirement that the legal sys-tem provide protection from assault from other indi-vidualsandnot justagentsof thestate, theso-calledDrittwirkung effect; and the procedural obligations toinvestigate alleged instances of ill-treatment.
Procedural rights under Article 3
Articles 1 and 3 of the Convention place anumber of positive obligations on states designedto prevent, and provide redress for, torture andother forms of ill-treatment. In Assenov and Othersv. Bulgaria the Court held that where an individualraises an arguable claim that he has been seriouslyill-treated by the police or other agents of the stateunlawfully and in breach of Article 3, that provision,read in conjunction with the state’s general duty
under Article 1 of the Convention to“secure toevery-one within their jurisdiction the rights and freedomsdefined in … [the] Convention”, requires that thereshould be an effective official investigation. Theinvestigation should be capable of leading to theidentification and punishment of those responsible.However, in each case the state’s obligation appliesonly in relation to ill-treatment allegedly committedwithin its jurisdiction.
36
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In Labita v. Italy the Court confirmed this obliga-tion, since otherwise the general legal prohibitionof torture and inhuman and degrading treatmentand punishment would, despite its fundamental im-portance be ineffective in practice and it would bepossible in some cases for agents of the state toabuse the rights of those within their control withvirtual impunity.
Drittwirkung effect
In recent years a number of cases havecome before the Court which involve inflictionof degrading or inhuman treatment on individu-als, but by private individuals rather than anagent of the State.
In addressing these cases the Court has setout how far-reaching the scope of Article 3 is, andalso highlighted one of the areas where the posi-tive obligations of Article 3 are to the forefront.These types of situation highlight the responsibil-ity imposed on the State to put in place preventivemeasures and mechanisms which do protect indi-viduals from inhuman treatment, whatever thesource of that ill-treatment.
As has been pointed out above, the obliga-tion on High Contracting Parties under Article 1 ofthe Convention to secure to everyone within theirjurisdiction the rights and freedoms defined in theConvention, taken together with Article 3, requires
states to take measures designed to ensure that in-dividuals within their jurisdiction are not subjectedto torture or inhuman or degrading treatment, in-cluding such ill-treatment administered by privateindividuals.
In a groundbreaking case in the United King-dom a young boy was beaten badly by his stepfa-ther. The stepfather was prosecuted in the courtsfor assault; however, United Kingdom law permit-ted a parent to plead the defence of “parentalchastisement” where there was a charge of assaultby a parent on a child.81 The child and his fatherchallenged the law before the European Court ofHuman Rights, pointing out that in effect itamounted to failure to have a legal system whichprotected individuals from prohibited treatment.The Court agreed with the victim and noted thatstates are required to take certain measures toensure that individuals within their jurisdiction arenot subjected to torture or inhuman or degradingtreatment or punishment.82
Similarly, in recent cases the Court has made itclear that states are required to take measures de-signed to ensure that individuals within their juris-diction are not subjected to torture or inhuman ordegrading treatment, including ill-treatment ad-ministered by private individuals. Those measuresshould provide effective protection, in particular,of children and other vulnerable persons and in-
37
81 Judgment of 23 September
1998, 1998-VI.
82 A v. the United Kingdom
judgment of 23 September
1998, 1998-VI, §22.
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38
clude reasonable steps to prevent ill-treatment ofwhich the authorities had or ought to have hadknowledge. The same applies directly to situationswhere individuals are under the direct responsibil-ity or charge of local authorities, for example undertheir care and supervision.
Other claims of neglect by social services inthe United Kingdom have also been found toviolate Article 3. In that case, four child applicantssuffered abuse from private individuals which, itwas not contested, reached the threshold of in-human and degrading treatment. This treatmentwas brought to the local authority’s attention. Thelocal authority was under a statutory duty toprotect the children and had a range of powersavailable to them, including removal from theirhome. The children were, however, taken into emer-gency care only at the insistence of the mother, at a
much later date. Over the intervening period offour and a half years, they had been subject in theirown home to “horrific experiences”, as the childconsultant psychiatrist who examined themstated. The United Kingdom Criminal InjuriesCompensation Board had also found that thechildren had been subject to appalling neglectover an extended period and suffered physical andpsychological injury directly attributable to a crimeof violence.
Whilst the European Court acknowledged thedifficult and sensitive decisions facing social ser-vices and the important countervailing principle ofrespecting and preserving family life, it found thatthe present case left no doubt as to the failure ofthe system to protect the child applicants fromserious, long-term neglect and abuse.83
83 Z and others v. the United
Kingdom judgment of
10 May 2001.
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Responding to allegations of ill-treatment
The prohibition on torture demands a highstandard of vigilance on the part of judicial authori-ties, and exposes the judicial authorities to the riskof themselves compounding violations of Article 3as well as giving rise to discrete violations by theirown actions.
In addition to the prima facie obligation onthe judicial authorities themselves not toengage in any prohibited behaviour, such as inthe imposition of an illegal punishment, there isan overriding obligation for the judicial authori-ties to investigate allegations of violations of Ar-ticle 3. As violations of this article are seriousbreaches of core and fundamental human rightsguarantees, the investigations into allegationsmust themselves be of a high standard – theymust be thorough, effective and capable of lead-ing to the identification of any perpetrators andtheir punishment.
To carry out this task, the judicial authoritiesmust be able to identify and correctly analyse when
behaviour offends the prohibition in Article 3 andbe able to grant the appropriate redress where aviolation has occurred.
Failure to adequately respond to allegationsof violations may in and of itself give rise to a sepa-rate and discrete violation ofArticle 3 on the part ofthe judicial authorities. This can arise because theprocedural aspects of Article 3 have not been ful-filled, or because the actions or failures to act onthe part of the judicial authorities have themselvescaused such anguish to those seeking a remedy.
Judicial authorities must have the tools attheir disposal to offer and give effect to effectiveprotection topersons from prohibitive behaviour.
That means that the legal system needs to beadequately structured, and used, to provide effec-tive protection. Gaps in the legal system will leavethe judicial authorities exposed to potentially vio-lating Article 3.
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Investigating allegations of torture
The standard which the Court adopts inassessing evidence of violations of Article 3 is
“beyond reasonable doubt”. Such proof mayfollow from the coexistence of sufficiently strong,clear and concordant inferences or of similarunrebutted presumptions of fact.84
When domestic authorities are charged withinvestigating alleged incidents of torture, or in-human treatment, the burden of proof will nor-mally depend on whether the investigation iswithin the criminal sphere or in a civil context.
However, there are aspects of the burden ofproof which domestic authorities must also applywithin their investigations, if they are to complywith the requirements of Article 3. For example, theCourt has made it clear that where an individual istaken into police custody in good health but isfound to be injured at the time of release, theburden is on the authorities to provide a plausibleexplanation as to the causing of the injury.85
In a domestic context, this requires that theinvestigating authorities must also commencetheir investigation and inquiries on the basis that ifvictims provide prima facie evidence that they areinjured at the time of release from custodyalthough they were healthy at the time that they
were taken into custody the burden is on the detain-ing authorities to provide a plausible explanationas to how those injuries were sustained.
As with an investigation under Article 2, aninvestigation into an allegation of torture or in-human treatment should be capable of leading tothe identification and punishment of thoseresponsible. Otherwise, the general legal prohibi-tion of torture and inhuman and degradingtreatment and punishment would, despite itsfundamental importance, be ineffective in practiceand it would be possible in some cases for agentsof the State to abuse the rights of those within theircontrol with virtual impunity.
Those investigations must be sufficientlythorough and effective to satisfy the aforemen-tioned requirements of Article 3. Judges andsupervisors of such investigations should beparticularly vigilant for flaws in the investigativeprocess which the Commission and Court havefound to exist in other systems. Those reviewinginvestigations should ensure that:
� Public prosecutors or investigating officers donot omit to, or are not inhibited from question-ing, or taking statements from members of
40
84 Ireland, para. 161.
85 Tomasi v. France judgment
of 27 August 1992, Series A
no. 241-A, pp. 40-41,
§§108-111; Ribitsch v. Aus-
tria judgment of 4 December
1995, Reports 1996, p. 26
§34; Aksoy v. Turkey judg-
ment of 18 December 1996,
p. 17 §61.
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the security forces or police with regard toallegations of misconduct.
� Public prosecutors or investigating officerstake the necessary steps to verifydocumentary materials which may reveal thetruth or otherwise of claims of ill-treatment,e.g. custody records, or to pursue anycontradictions, inconsistencies or gaps in theinformation provided by the police or securityforces.
� Prosecutors take steps to seek independent,corroborative evidence, including forensicevidence with respect to the allegation oftorture. In the case of Aydin v. Turkey, althoughthe applicant had lodged a complaint that shehad been raped in detention, the publicprosecutor failed to seek the appropriatemedical test, sending the victim for a virginitytest instead of a test to establish evidence offorced sexual intercourse.
� Prosecutors have not permitted delays todevelop before seeking evidence, orstatements from applicants or witnesses.
� Prosecutors react promptly to visible signs ofill-treatment or complaints of ill-treatment. InAksoy v. Turkey, although the Public Prosecutormust have seen the extensive injuries causedto the applicant he failed to react. Similar
situations arose in the cases of Tekin andAkkoç.
� Public prosecutors pursue investigationsagainst perpetrators who are agents of theState, actively or vigorously. In some cases,instead of pursuing the perpetrators oftorture, public prosecutors have choseninstead to prosecute the apparent victim ofthe misconduct. For example in Ilhan v. Turkey,where the applicant was injured on arrest hewas prosecuted for failing to stop on order ofthe security forces, while no action was takenagainst the security forces who mistreatedhim.
� Public prosecutors do not display adeferential or blinkered attitude towardsmembers of the law-enforcement or securityforces, with a tendency to ignore or discountallegations of wrongdoing on their part. Inparticular, public prosecutors must not makeassumptions that the agents of the State arein the right and that any signs of ill-treatmentare the result of lawful action, or have beennecessitated by the behaviour of thecomplainant. This is often the case whereallegations of torture are made.86
Another area where scrutiny of the standardsapplied to an investigation needs to be high is thearea of medical and forensic examinations. As the
41
86 Aydin v. Turkey judgment,
op. cit., para. 106; Aksoy
v. Turkey, Comm. Rep., op.
cit., para. 189; Cak���
v. Turkey, Comm. Rep.,
para. 284.
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production of credible medical reports mayconstitute the deciding factor between twoopposing stories, it is important that the evidencebe not only available, but also independent andthorough. The Court has previously found there tobe problems with the inadequate nature of theprocedural rights of Article 3 in cases where therehas been� inadequate forensic medical examinations of
detainees, including lack of examination byappropriately qualified medicalprofessionals;87
� the use of brief, undetailed medical reportsand certificates which do not include a de-scription of the applicant’s allegations or anyconclusions;
� a practice of handing over an open report topolice officers;
� inadequate forensic examinations ofdeceased persons, including reports whichdo not include thorough descriptions ofinjuries;
� failure to take photographs or make analysesof marks on the body or examinations carriedout by doctors with insufficient expertise.It is also essential that no legal impediments
be placed in the way of the jurisdiction of publicprosecutors to prosecute certain categories ofoffences committed by State officials, such as
compromising the independence of theprosecutor in his or her decision to prosecuteperpetrators of torture.
Another problematic aspect of investigationscan be the lack accessibility of applicants or therelatives of alleged victims to the structures ofremedies, including a failure to give information asto the progress of any proceedings or the results ofinvestigations; and a lack of information, or delayin information, being passed on to relatives ofpersons involved in the incident.
All of the above flaws will only serve toaggravate the existing violations if there are allega-tions of widespread abuse.88 The implications ofthis are discussed below.
Failure to investigate
Where allegations are not properly orconsistently investigated, the law-enforcementauthorities run the risk of sowing the seeds for acycle of impunity for perpetrators of inhumantreatment. Where such impunity exists, anadministrative practice or policy of toleration ofviolations of Article3 could be said to exist.
In the first in a series of cases from NorthernIreland in the 1970s, individuals had claimed thatthey were not only victims of individual acts oftorture, but that they were victims of a practice inviolation of the Convention.89
42
87 Akkoç v. Turkey, Comm.
Rep., op. cit.; Aydin v.
Turkey judgment, op. cit.,
para. 107.
88 Labita v. Italy, Appl. No.
26772/95, §121, ECHR
2000-IV; Dikme v. Turkey,
Appl. No. 20869/92, 11 July
2000.
89 Donnelly and others v. the
United Kingdom, 4 DR 4.
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The elements that constitute a practice are repe-tition of acts and official tolerance. Repetition of actsmeans a substantial number of acts which are theexpression of a general situation. Official tolerancemeans that, though acts are clearly illegal, they aretolerated in the sense that the superiors of thoseimmediately responsible, though cognisant of suchacts, take no action to punish them or to preventtheir repetition; or that a higher authority, in the faceof numerous allegations, manifests indifference byrefusing any adequate investigation of their truth orfalsity;or that in judicialproceedingsa fairhearingofsuch complaints is denied.90
Therefore, the concept of official tolerancereflects far more than official endorsement of aparticular practice. Rather it includes the attitudeof the authorities in reacting to the existence of apractice or to evidence that a practice exists. Inthis regard the question of official tolerancefocuses on action taken on behalf of the authori-ties to bring an end to the repetition of acts and theeffectiveness of those steps in achieving that aim.The Commission has ruled that
an administrative practice may exist in theabsence of, or even contrary to specificlegislation … The question to be decided iswhether or not the higher authorities have beeneffective in bringing to an end the repetition ofacts.91
The liability under the Convention to ensurethat the Convention is not violated by agents of theState means that action taken by the authoritiesshort of preventing repetition of acts can not beconsidered as a defence to the existence of officialtolerance. To this end the governments should beable not just to show examples of sporadicprosecutions (particularly concerning only caseswhich have received a high level of public andmedia attention) but to demonstrate that on aregular basis investigations and prosecutions ofalleged offenders are taking place.
It follows that compensation alone, in theabsence of action being taken against perpetratorsof violations of the Convention, would in effectpermit a state, for example in the case of torture, topay for the right to torture
A failure to investigate not only breaches ofthe procedural aspects, but also the impact of anon-responsive system, can give rise to vicariousliability for family members: again in the Kurt casethe Court found that the applicant had suffered abreach of Article 3 having regard to the particularcircumstances of the case. It referred particularlyto the fact that she was the mother of a victim of aserious human rights violation and herself thevictim of the authorities’ complacency in the faceof her anguish and distress.
43
90 Greek case, Report, pp. 195-
196.
91 Decision of 6 December
1983, 35 DR 143, 164.
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Other international standards
Recommendations
In addition to the European Convention onHuman Rights, there are a number of otherinternational standards which the judicialauthorities should consider when addressing thefull implementation of safeguards to combattorture. They include:
� the 1957 and 1977 United Nations StandardsMinimum Rules for the Treatment ofPrisoners;
� Council of Europe Standard Minimum Rulesfor the Treatment of Prisoners,Recommendation No. R (73) 5 of the Commit-tee of Ministers of the Council of Europe
� European Prison Rules, RecommendationNo. R (87) 3 of the Committee of Ministers ofthe Council of Europe
� the 1979 Declaration on the Police, Resolu-tion 690 of Parliamentary Assembly of theCouncil of Europe
� the 1979 United Nations Code of Conduct forlaw-enforcement officials
� the United Nations 1988 Body of Principlesfor the Protection of all Persons under AnyForm of Detention or Imprisonment
� the United Nations 1990 Rules for theProtection of Juveniles Deprived of theirLiberty
� the 1985 United Nations Standard MinimumRules for the Administration of JuvenileJustice (“the Beijing Rules”)
Co-operation with the CPT andobservation of their recommendations
The Council of Europe has also adopted theEuropean Convention for the Prevention of Tortureand Inhuman and Degrading Treatment orPunishment in 1994. All member states of theCouncil have ratified this convention.92
Under the convention, a committee (“theCPT”), composed of as many independent andimpartial experts as there are States Parties, drawn
44
92 The sole exception, at the
time of going to press (July
2003), was Serbia and
Montenegro, which had only
recently become a member
of the Council of Europe.
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from various professions, is set up to conductperiodic and ad hoc visits in any places under thejurisdiction of a contracting state where personsare deprived of their liberty by a public authority(such as prisons, police and gendarmerie stations,public or private hospitals admitting internedpatients, administrative detention centres forforeigners and disciplinary premises in militaryenclosures).
In such places, the experts are entitled tocommunicate freely and without witnesses withpersons deprived of their liberty, on the model ofvisits conducted by the International Committeeof the Red Cross (ICRC). The essential feature of theconvention is the principle of co-operationbetween the CPT and the States Parties. Thecorollary of the obligation of the State to co-operate is the confidentiality of the entireprocedure. The report on the visit and detailedrecommendations sent to the Government areconfidential unless the Government decides topublish them. The first amending protocol to theConvention opens the convention to non-memberstates of the Council of Europe which theCommittee of Ministers invite to accede to it.
The CPT, in each of its visits, makesrecommendations on ways to improve safeguards(legal or practical). As has been set out above,individuals deprived of their liberty are particularly
vulnerable to potential infliction of torture orinhuman treatment. It can also be part of a generalpattern in which conditions of detentionthemselves are gravely damaging to the mentaland physical health of detainees and can amountto ill-treatment or even torture.
All authorities who deal with detainees shouldpay specific attention to the recommendationsmade by the CPT as to how conditions andsafeguards may be improved.
For example, where there are problems ofovercrowding, leading to appalling conditions ofdetention, this often stems partly from laws andpractices allowing for long pre-trial detention notjustified by particular danger of flight or risk ofcollusion of the suspect. Where such laws andpractices still exist they should be amended toprevent situations of over-crowding. A particularconcern in this respect is the situation of childrenin pre-trial detention, as children are morevulnerable to ill-treatment.
The CPT has also noted in previous reportsthat the prevailing economic circumstances canrender it difficult to meet all of the Committee’srequirements, notwithstanding the goodwill of theauthorities concerned. So it has begun to reflecton whether a more proactive approach might beadopted as regards the implementation of itsrecommendations and to suggest that, in appropri-
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ate cases, positive measures intended to assiststates to implement the Committee’s recommen-dations could contribute to solving this problem.
Forensics
The CPT has pointed out in a public statementthat, if the conditions of independence,specialised training and a wide mandate are notmet with respect to forensic doctors, then thesystem will create the perverse effect of renderingit all the more difficult to combat torture and ill-treatment.93
It is therefore of the utmost importance thateach legal system provide an independentinstitute, staffed with specialised forensics and awide mandate which will act as a safeguard againstthose who seek to commit torture and inhumantreatment.
In addition to the need for forensics as a toolto investigate allegations of torture, it is importantthat forensics be used in the combat against crime.All too often, inhuman treatment or torture isresorted to in order to obtain a confession orinformation to allegedly assist in the solving crime.Where there are few forensic resources to assist inthe fight against crime, then the pressure to extractinformation by way of resort to inhuman treatmentwill be greater.
Complementary to this is the requirementthat all judges and prosecutors must be com-pletely intolerant of any use of inhuman treatmentto illicit information from a detainee or a suspect.Information which is obtained by resort to suchmethods must automatically become inadmissibleevidence and should be disregarded. Emphasisshould be placed on the unreliability ofinformation obtained in circumstances whereresort to inhuman treatment or torture is made.
A clear problem arises when a publicprosecutor is advised by a detainee that he or shehas been subject to unlawful treatment, but thepublic prosecutor displays no interest in thematter. Efforts must be made to stamp out anytendency to seek to defend the police rather thanto view objectively the matter underconsideration.
Whether a family member is a victim of aprocedural breach of Article 3 as a result of theinactivity of the judicial authorities, will depend onthe existence of special factors which gives thesuffering of the applicant a dimension andcharacter distinct from the emotional distresswhich may be regarded as inevitably caused torelatives of a victim of a serious human rightsviolation.
In this context it is of utmost importance thatthere be a system for the independent and
46
93 CPT’s public statement on
Turkey, 1996.
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thorough examinations of persons on release fromdetention. The European Committee for thePrevention of Torture (CPT) has also emphasisedthat proper medical examinations are an essentialsafeguard against ill-treatment of persons incustody.
Such examinations must be carried out by aproperly qualified doctor, without any policeofficer being present and the report of the examina-tion must include not only the detail of any injuriesfound, but the explanations given by the patient asto how they occurred and the opinion of the doctoras to whether the injuries are consistent with thoseexplanations.
The practices of cursory and collectiveexaminations illustrated by the present caseundermine the effectiveness and reliability of thissafeguard. Both the former Commission and theCourt have endorsed this position.94
Behaviour of the law-enforcement forces
In fact, most cases of ill-treatment happenduring detention in police facilities, in the firsthours of arrest, when no access to a lawyer or adoctor and no contact with the family are allowed.The aim is generally to extract a confession.
To combat this, judicial authorities shouldmake all efforts to ensure that the rights of thedetainees are both protected by law and imple-
mented in practice. Such rights include proceduralrights such as proper recording and registering ofdetainees, indicating when an individual is detained,by whom, where the individual is to be detained andany movement or transfer of the individual.
Other safeguards include access to a lawyerand a doctor in the early stages of detention. Alldetentions must also be subject to the rule of lawand to review by an appropriate judicial officer.
All measures, legislative, administrative,judicial or other, to prevent torture and ill-treat-ment should be taken and enforced by the judicialauthorities. Those measures include respect forthe right to liberty and security and the right to afair trial, review of interrogation rules, legislationthat evidence obtained through the use of torture,including confessions, is excluded from judicialproceedings, regular independent inspections ofall places of detention, respect for the principle ofnon-refoulement, organisation of information onpreventing torture as well as training, especially forprosecutors and judges, law-enforcement, policeand military forces and health personnel.
A strict regime of vigilance during this crucialperiod is essential, to ensure that safeguardsagainst torture are as effective as possible.
Finally , there should also be discouragementof reliance on confessions as a mode of evidence,so that law-enforcement officers are not tempted
47
94 Aydin v. Turkey, judgment of
10 October 2000.
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48
to seek to obtain confessions using inappropriateforce.
Situations of tension and conflict
Whilst it might be accepted that the prohibi-tion of torture is absolute, security concerns arestill often invoked to justify the worst practices ofwidespread ill-treatment.
Any efforts to undermine the protectionagainst torture against the background of conflictmust be prevented. It is imperative that investigat-ing and judicial bodies respect the absolute natureof the guarantee against torture, and ensure intheir work that in times of conflict, temptation tojustify resort to prohibited behaviour is nottolerated. The same efforts should be made toensure that where in times of conflict, incidents oftorture or inhuman treatment have occurred thatthose responsible are held accountable.
Groups at risk
Judicial and investigating authorities shouldbe particularly sensitive to the fact that there arecertain groups who are often particularly at risk ofbeing tortured or ill-treated. This is often the casefor members of minorities – as well as refugees andother foreigners.
A second group at risk is composed ofpersons making use of their freedom of expres-
sion, association and assembly (political oppo-nents, journalists, human rights defenders), as wellas lawyers complaining about the treatment in-flicted on their clients. However, while members ofthis last group can sometimes bring their cases tointernational attention, the ordinary victims of, forinstance, beating – which is said to be widelypractised – often do not even dare to complain.
Investigations and prosecutions
Engaging in prompt and impartialinvestigation, wherever there are reasonablegrounds to believe that an act of torture has beencommitted, prosecuting the perpetrator and, iffound guilty, imposing adequate punishment areessential to fulfil the obligations under Articles 1, 3and 13 and to create a preventive mechanismagainst those who would otherwise engage inprohibited behaviour.
Redress
Victims should be provided with promptredress, including rehabilitation. This obligationexplicitly exists in the United Nations Conventionagainst Torture, to which most Council of Europestates have also acceded.
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Directorate General of Human RightsCouncil of EuropeF-67075 Strasbourg Cedex
http://www.coe.int/human_rights/
These human rights handbooks are intended as a very practicalguide to how particular articles of the European Convention onHuman Rights have been applied and interpreted by the EuropeanCourt of Human Rights in Strasbourg. They were written with legalpractitioners, and particularly judges, in mind, but are accessiblealso to other interested readers.
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