Inhuman Treatment [ECHR]

Interpretation of Article 3

The Court’s approach to the interpretation of Article 3 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective.  Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (Bouyid v. Belgium [GC], 2015,§ 81).

The prohibition in question is absolute, no derogation from it being permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime or influx of migrants and asylum-seekers, irrespective of the conduct of the person concerned
State obligations under Article 3

Article 3 has been commonly applied in contexts in which the proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction

However, the Court has also considered that States have positive obligations under Article 3 of the Convention, which comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Scope of Article 3

Severity Required

The prohibition under Article 3 of the Convention does not relate to all instances of ill-treatment . According to Court’s well-established case-law, in general, ill- treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, such as duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim

In order to determine whether the threshold of severity has been reached, other factors may be taken into consideration, in particular: (a) the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it, although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 of the Convention; (b) the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions; and (c) whether the victim is in a vulnerable situation (
When assessing whether a person has been subjected to ill-treatment attaining the minimum level of severity, in particular those inflicted by private individuals, the Court takes into account an array of factors, each of which are capable of carrying significant weight. All these factors presuppose that the treatment to which the victim was “subjected” was the consequence of an intentional act.

However, where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any conduct by the latter vis-à-vis an individual which is considered to diminish human dignity and thus constitute a violation of Article 3 of the Convention

Torture

The prohibition of torture has achieved the status of jus cogens or of a peremptory norm in international law. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court will have regard to the distinction embodied in Article 3 between this notion and that of inhuman or degrading treatment. It was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering; the same distinction is drawn in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment “UNCAT”
In addition to the severity of the treatment, there is a purposive element, as recognised in the UNCAT, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information or a confession, inflicting punishment or intimidation
Having regard to the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions, acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. The Court has taken the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (Selmouni v. France [GC], 1999, § 101).

Instances

For instance, treatment was found to amount to “torture” when:

• the applicant was stripped naked, with his arm tied together behind his back and suspended by his arms (“Palestinian hanging”) by State agents while in police custody in order to extract a confession (Aksoy v. Turkey, 1996, § 64);
• the applicant was raped and subjected to a number acts of other physical and psychological ill-treatment while in custody
• the applicants were deprived of sleep, subjected to “Palestinian hanging” and “falaka”, sprayed with water, beaten for several days while in custody in order to extract a confession
• the applicant, a detainee who was on hunger strike, was forced fed, despite the absence of medical necessity and with the use of handcuffs, a mouth-widener, a special rubber tube inserted into the food channel and, in the event of resistance, with the use of force
• the applicant was subjected to combined and premeditated measures involving handcuffing, hooding, forcibly undressing, forcibly administrating a suppository while held on the ground without any medical necessity, in the framework of “extraordinary rendering”, geared to obtaining information from the applicant or punishing or intimidating him
• severe beatings by police officers resulting in the death of the applicants’ relative

The Court has held that, a particular type of conduct, such as rape of a detainee by an official of the State, must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of the victim. Moreover, rape leaves deep psychological scars on the victims which do not respond to the passage of time as quickly as other forms of physical and mental violence. The victim also experiences the acute physical pain of forced penetration, which leaves her feeling debased and violated both physically and emotionally

The Court has not ruled out that a threat of torture can also amount to torture, as the nature of torture covers both physical pain and mental suffering. In particular, the fear of physical torture itself may in certain circumstances constitute mental torture. However, it has underlined that the classification of whether a given threat of physical torture amounted to psychological torture or to inhuman or degrading treatment depended upon all the circumstances of a given case, including, notably, the severity of the pressure exerted and the intensity of the mental suffering caused (Gäfgen v. Germany [GC], 2010, § 10

Inhuman Treatment or Punishment

The distinction between torture, inhuman treatment or punishment and degrading treatment or punishment derives principally from a difference in the intensity of the suffering inflicted (Ireland v. the United Kingdom, 1978, § 167). The Court has considered treatment or punishment to be

“inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering For instance, treatment or punishment was held to be “inhuman” when:

• the applicant was threatened with torture while in police custody ,where the applicant was subjected to the fear of being executed by foreign authorities where the applicant, previously ill-treated, was subjected to harsh detention conditions in complete isolation with the prospect of being subjected to torture);
• the applicants’ homes and property were intentionally destroyed by security forces, depriving the applicants of their livelihoods and forcing them to leave their village
• the applicant suffered uncertainty and apprehension over a prolonged and continuing period due to the disappearance of his relative where the applicant witnessed the extrajudicial execution of several of his relatives and neighbours as well as the authorities’ inadequate and inefficient response after the events);
• The applicant, a conscript suffering from health problems, was subjected to excessive level of physical exercise imposed as punishment
• The applicant was serving his life sentence for a long time in poor conditions and under a very restrictive regime (Simeonovi v. Bulgaria [GC], 2017, § 90).

Degrading Treatment or Punishment

Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others.

For a punishment to be “degrading” and in breach of Article 3, the humiliation or debasement involved must attain a particular level. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution . A punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control and it is never permissible to have recourse to punishments which are contrary to Article 3, whatever their deterrent effect may be.

In this regard, the Court has emphasized that there is a particularly strong link between the concepts of “degrading” treatment or punishment within the meaning of Article 3 of the Convention and respect for “dignity”. For instance, treatment or punishment was held to be “degrading” when:

• a severely disabled person was detained in inappropriate conditions where she was dangerously cold, risked developing sores because her bed was too hard or unreachable, and was unable to go to the toilet or keep clean without the greatest of difficultywhere the applicant, paraplegic, could not leave his cell nor move about the prison independently);
• he applicants hair was forcefully shaved by the prison administration, without any justification or legal basiswhere the applicant’s glasses were confiscated after his arrest for five months, without justification and legal basis);
• an unaccompanied foreign minor had to live in precarious conditions in a shantytown due to the authorities’ failure to execute a judicial placement order
• use of force on the applicants when searching their home was not strictly necessary
• judicial corporal punishment was inflicted on the applicant
• the authorities failed to ensure that a twelve-year old child, who witnessed the arrest of his parents, was looked after by an adult, and was informed about the situation while his parents were held in police custody (Ioan Pop and Others v. Romania, 2016, § 65).
• the applicant was detained for a lengthy time in a severely overcrowded and unsanitary environment in prison
• the applicant was subjected to a strip search in an inappropriate manner, such as the making of humiliating remarks where the applicant was stripped naked in front of a female prison officer and prison guards examined his sexual organs as well as the food he had received without gloves);
• the detention of an asylum-seeker for three months on police premises pending the application of an administrative measure, with no access to any recreational activities and without proper meals where, pending their request for asylum, the applicants were confined in inadequate conditions not fit for a lengthy stay in an airport transit zone as well where asylum seekers were destitute and lived rough for several months due to administrative delays preventing them from receiving the support for which the law provided);
• twenty-seven LGBTI activists were subject to vicious verbal abuse and random physical attacks by a mob of counter demonstrators and the promised police protection was not provided in due time or adequately where, following a televised interview, the applicant – a well-known member of the LGBTI community – was the target of a sustained and aggressive homophobic campaign, including an arson attack on her club, as well as receiving death threats and subjected to physical mobbing and hate speech);
• as a result of the procrastination of the health professionals in providing access to genetic tests, the applicant, who was pregnant, had had to endure six weeks of painful uncertainty concerning the health of her foetus and, when she eventually obtained the results of the tests, it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to a legal abortion
• the applicant was handcuffed during a bus journey lasting around 20 hours in the context of forced deportation (

Relationship between Articles 2 and 8 of the Convention

In principle when a person is assaulted or ill-treated by State agents, their complaints will fall to be examined under Article 3 of the Convention (However, in exceptional circumstances, depending on considerations such as the degree and type of force used and the nature of the injuries, use of force by State agents which does not result in death may disclose a violation of Article 2 of the Convention, if the behaviour of the State agents, by its very nature, puts the applicant’s life at serious risk even though the latter survives (

Moreover, where a treatment falls short of treatment proscribed by Article 3, it may, however, fall foul of Article 8 which, inter alia, protects physical and moral integrity, aspects of the right to respect for private life
The Court has, for example, found that treatment, which had failed to reach the minimum level of severity under Article 3, breached Article 8 when:

• military personnel were investigated and discharged because of their sexual orientation (Smith and Grady v. the United Kingdom,
• a waste-treatment plant close to the applicant’s home caused a nuisance (López Ostra v. Spain,
• there was a lack of courtesy by prison officers when strip searching visitors in prison, but no verbal abuse or physical contact (Wainwright v. the United Kingdom,);
• the applicant was attacked by a pack of stray dogs due to the failure of the authorities to implement adequate measures against stray dogs (Georgel and Georgeta Stoicescu v. Romania, 2011, § 45).