Article 3: Torture – Degrading and Inhumane Treatment & Punishmen

1. General Considerations

  • Key Provisions:

    • Absolute character refers to inviolability against exceptions (cfr. Article 15).

    • Minimum Level of Severity:

      • Established by the ECtHR in Bouyid v. Belgium (28 September 2015).

    • Threats as Sufficient:

      • In Gäfgen v. Germany (1 June 2010), the ECtHR indicated that threats may meet the threshold of severity.

    • Behavior Context:

      • It's crucial to consider various types of behavior within the specific context to evaluate severity.

2. Acts Classification

  • In Selmouni v. France (28 July 1999), the Court emphasized that actions termed "inhuman and degrading" might now be classified differently due to evolving human rights standards.

  • Higher protection standards necessitate a firmer stance in evaluating breaches of fundamental human rights.

Categories of Treatment (Page 4)

Torture

  • Definition:

    • The most severe form of ill-treatment, inflicted deliberately with intent.

    • Often involves state agents directly or indirectly.

    • Reference: Article 1 of the UN Convention Against Torture (UN-CAT).

Torture Definition (Page 5)

  • Key Elements:

    • Severe physical or mental pain inflicted intentionally.

    • Aimed at purposes such as:

      • Obtaining information or confessions.

      • Punishing individuals for suspected actions.

      • Intimidating others based on discrimination.

    • Clearly excludes pain from lawful sanctions.

    • Selmouni Reference:

      • Defined severe pain and suffering; previously discussed in Ireland v. UK (18 January 1978) as creating a unique stigma for deliberate inhuman treatment.

Inhumane and Degrading Treatment (Page 6)

  • Lack of Convention Definition:

    • In Kudla v. Poland (26 October 2010), it was noted that even ill-treatment must reach a minimum severity level to fall under Article 3.

    • Factors Influencing Severity:

      • Nature of treatment,

      • Context and method of execution,

      • Duration and effects on the victim's well-being.

Understanding Inhumane and Degrading Treatment (Page 7)

  • Inhuman Treatment:

    • Evaluated based on planning, frequency, and resulting physical or mental suffering.

  • Degrading Treatment:

    • Leads to feelings of humiliation and inferiority, negatively affecting personal dignity.

  • Suffering from legitimate treatment or punishment does not qualify as degrading.

Negative Obligations under Article 3 (Page 9)

  • Absolute Prohibition:

    • In Saadi v. Italy (28 February 2008), the Court reiterated the irrelevance of the crime linked to the applicant concerning Article 3.

Examples of Breach (Page 10)

  1. Ill-treatment by Authorities:

    • Referenced cases: Selmouni v. France, Gäfgen v. Germany, Bouyid v. Belgium.

  2. Vulnerable Individuals:

    • M.S.S. v. Belgium and Greece (21 January 2011).

  3. Prison Conditions:

    • Cases include Kudła v. Poland and Kalashnikov v. Russia.

  4. Social Care Home Conditions:

    • Stanev v. Bulgaria (17 January 2012).

  5. Death Penalty Cases:

    • Soering v. UK (7 July 1989) and Al-Saadoon and Mufdhi v. UK.

  6. Life-long Sentences:

    • Vinter v. UK (9 July 2013).

  7. Deportation Issues:

    • Soering v. UK and other related cases.

  8. Sexual Violence:

    • M.C. v. Bulgaria (4 December 2003).

  9. Treatment of Minors:

    • Tyrer v. UK and Campbell and Cosans v. UK.

Positive Obligations (Page 13)

  • State Duty Under Article 1:

    • States must safeguard individuals from ill-treatment, including acts by private individuals.

    • Tanase v. Romania reinforces the state's responsibility in prevention.

Substantive Obligations: Preventive Measures (Page 14)

  1. Effective Criminal Provisions:

    • No impunity for torture or ill-treatment.

    • Reference: UN Convention Against Torture—obligation to extradite or prosecute.

  2. Preventive Operational Measures:

    • Highlighted in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium.

Procedural Obligations: Effective Investigation (Page 15)

  1. Investigation Requirements:

    • Must establish facts and identify perpetrators.

  2. Authority Engagement:

    • Must act independently and thoroughly.

  3. Investigation Effectiveness:

    • Adequate collection and analysis of evidence.

  4. Investigation Independence:

    • Those responsible for the investigation must be independent from external influence.

  5. Public Scrutiny:

    • Varies depending on the case but must ensure access for victims.

Prevention Mechanisms (Page 18)

  • European Convention for the Prevention of Torture (1987):

    • Monitoring by the European Committee for the Prevention of Torture.

    • Findings influence the European Court of Human Rights.

  • Optional Protocol to UN Convention Against Torture (2002):

    • Reinforces preventive mechanisms at international level.