Maltreatment Issues [ECHR]

Forced Interventions

A measure which is a therapeutic necessity from the point of view of established principles of medicine cannot, in principle, be regarded as inhuman and degrading. The Court must, nevertheless, satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (Jalloh v. Germany ).

Force-feeding that is aimed at saving the life of a detainee who consciously refuses to take food cannot in principle be regarded as inhuman and degrading. The Court must, nevertheless, satisfy itself that the medical necessity has been convincingly shown to exist and that the procedural guarantees for the decision to force-feed are complied with (Ciorap v. Moldova,). Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike should not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the Convention (Nevmerzhitsky v. Ukraine,

In Herczegfalvy v. Austria, 1992, which involved, inter alia, the force-feeding of a psychiatric patient who refused to take food, the Court found the treatment justified by medical necessity and that therefore it did not violate Article By contrast, the Court found that the force-feeding of a prisoner on hunger strike in protest of prison conditions was not prompted by valid medical reasons but rather with the aim of forcing him to stop his protest and performed in a manner which exposed him unnecessarily to great physical pain and humiliation amounted to torture

In the case of Gorobet v. Moldova, 2011, the Court found no medical necessity to subject the applicant to forty-one days of confinement and forced psychiatric treatment in hospital and that such unlawful and arbitrary treatment had aroused in the applicant feelings of fear, anguish and inferiority amounting to degrading treatment
In, the Court did not find evidence establishing beyond any reasonable doubt that the treatment given to the applicant in prison, even if forced, was contrary to Article 3, having regard, notably, to the fact that the applicant was suffering from serious mental disorders, had twice made attempts on his life and that he had been put on medication to relieve his symptoms, where the applicant complained, inter alia, about the sexological treatment administered allegedly without his informed consent).

The Court has held that sterilisation constituted a major interference with a person’s reproductive health status. It may be legitimately performed at the request of the person concerned, for example as a method of contraception or for therapeutic purposes where the medical necessity had been convincingly established.

In V.C. v. Slovakia, 2011, where the applicant, a Roma, was sterilised without her informed consent immediately after she gave birth via c-section, the Court concluded that, although there was no indication that the medical staff had acted with the intention of ill-treating the applicant, they had nevertheless acted with gross disregard for her right to autonomy and choice as a patient. Such treatment was therefore in breach of Article 3 of the Convention

Removal of drugs and other Evidence

The Court has underlined that even where it is not motivated by reasons of medical necessity, Article 3 of the Convention does not, as such, prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him evidence of his involvement in the commission of a criminal offence. However, any recourse to a forcible medical intervention to obtain evidence of a crime must be convincingly justified on the facts of a particular case. This is especially true where the procedure is intended to retrieve from inside the individual’s body real evidence of the very crime of which he is suspected. The particularly intrusive nature of such an act requires a strict scrutiny of all the surrounding circumstances. In this connection, due regard must be had to the seriousness of the offence in issue. The authorities must also demonstrate that they took into consideration alternative methods of recovering the evidence.

Moreover, as with interventions carried out for therapeutic purposes, the manner in which a person is subjected to a forcible medical procedure in order to retrieve evidence from his body must not exceed the minimum level of severity prescribed by the Court’s case-law on Article 3 of the Convention. Relevant factors in this regard include: whether the person concerned experienced serious physical pain or suffering as a result of the forcible medical intervention; whether the forcible medical procedure was ordered and administered by medical doctors; whether the person concerned was placed under constant medical supervision, and whether the forcible medical intervention resulted in any aggravation of the state of health of the applicant and had lasting consequences for his or her health (Jalloh v. Germany [GC], 2006, §§ 72-74).

Military service

Mandatory military service often involves elements of suffering and humiliation, as do measures depriving a person of his liberty. However, many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill-treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (Chember v. Russia, 2008, § 49).
11. Nevertheless, the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured by, among other things, providing him with the medical assistance he requires (Chember v. Russia, 2008, § 50).
12. Even though challenging physical exercise may be part and parcel of military discipline, the Court has stressed that, to remain compatible with Article 3 of the Convention, it should not go beyond the level above which it would put in danger the health and well-being of conscripts or undermine their human dignity (Chember v. Russia, 2008, § 51).

Conditions of detention

For detention specifically to fall under Article 3 of the Convention, the suffering and humiliation involved must go beyond the inevitable element of suffering and humiliation connected with the deprivation of liberty itself. That said, the authorities must ensure that a person is detained in conditions compatible with respect for human dignity, that the manner and method of execution of a custodial sentence or other type of detention measure do not subject the person concerned to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, this person’s health and well- being are adequately secured

Medical treatment in detention

Article 3 imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical care . In this regard, the mere fact that a detainee has been seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate.

The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis.

The suffering of a victim’s relatives

The Court has always been sensitive in its case-law to the profound psychological impact of a serious human rights violation on the victim’s family members who are applicants before the Court. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitable stemming from the aforementioned violation itself (Janowiec and Others v. Russia [GC], 2013, § 177

The pheomenon of disappearances imposes a particular burden on the relatives of missing persons, who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. Thus, the Court’s case-law recognised from early on that the situation of the relatives may disclose inhuman and degrading treatment contrary to Article 3.
In the case of Orhan v. Turkey, 2002, the applicant complained that the disappearance of his eldest son and two brothers caused him suffering in breach of. The Court noted that the applicant had been present and had witnessed his son and brothers leaving the village with soldiers and that they had disappeared almost eight years previously. All these factors led the Court to find that the uncertainty and apprehension suffered by the applicant over a prolonged and continuing period had caused him severe mental distress and anguish constituting inhuman treatment contrary to Article 3

A more restrictive approach is taken by the Court in situations where the person is taken into custody but later found dead, following a relatively short period of uncertainty as to his fate. In a
series of Chechen cases in which the applicants had not witnessed the killing of their relatives but had found out about their deaths only on discovery of their bodies, the Court considered that no separate finding of a violation of Article 3 was necessary, given that it had already found a violation of Article 2 of the Convention in its substantive and procedural aspects.

Human Bodies

The Court has held that the human quality is extinguished on death and, therefore, the prohibition on ill-treatment is no longer applicable to corpses. However, the treatment of dead bodies has given rise to a violation of Article 3 with respect to the deceased’s relatives (§§ 84-87).

In Khadzhialiyev and Others v. Russia, 2008, the Court found a violation of Article 3 where the applicants were unable to bury the dismembered and decapitated bodies of their children in a proper manner, since only parts of the remains had been found

In Akkum v. Turkey ,2005, Article 3 was violated in respect to a father who was presented with the mutilated body of his son ( In Elberte v. Latvia, 2015, the Court found a violation of Article 3 on account of the removal of tissue from the applicant’s deceased husband without her prior consent or knowledge and contrary to domestic law

Asylum

The case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium, 2006 concerned the detention and deportation of an unaccompanied minor asylum seeker. The Court, having regard to the conduct of the national authorities, found that the first applicant – mother of the detained child of five years of age – had suffered deep distress and anxiety as a result of her daughter’s detention. In view of the circumstances of the case, the Court concluded that the level of severity required for a violation of Article 3 had been attained

In a case where the applicant’s son died in prison from AIDS due to inadequate medical care, the Court, taking into account a number of factors, including the many attempts by the applicant to draw attention to her son’s situation and the cynical, indifferent and cruel attitude towards her appeals demonstrated by the authorities, both before her son’s death and during the subsequent
investigation, found that she had been a victim of inhuman treatment (Salakhov and Islyamova v. Ukraine,).

Age of criminal responsibility

In V. v. the United Kingdom, 1999, and T. v. The United Kingdom, 1999, the Court considered whether the attribution to the applicants of criminal responsibility in respect of acts committed when they were ten years of age could give rise to a violation of Article 3 of the Convention. It found that there was not, at that stage, any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility.

Even if England and Wales were among the few European jurisdictions to retain a low age of criminal responsibility, the age of ten could not be said to be so young as to differ disproportionately from the age-limit followed by other European States.

Grossly disproportionate sentences

The Court accepts that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention, a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition.
For example, the Court did not accept that an applicant’s extradition would give rise to a real risk of treatment contrary to Article 3 of the Convention in a case where the evidence suggested that the applicant could be sentenced to anything up to thirty-five years’ imprisonment if extradited to the United States, but there was no minimum sentencing requirement.

The death penalty

In Al-Saadoon and Mufdhi v. the United Kingdom, 2010, the Court noted that all but two of the member States had signed Protocol No. 13 concerning the abolition of the death penalty in all circumstances and all but three of the States which had signed it had ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, were found to be strongly indicative that Article 2 had been amended to prohibit the death penalty in all circumstances. Capital punishment has therefore become an unacceptable form of punishment that is no longer permissible under Article 2 as amended by Protocols Nos. 6 and 13 and which amounts to “inhuman or degrading treatment or punishment” under Article 3 (A.L. (X.W.)
v. Russia, 2015, § 64).

Article 3 of the Convention prohibit the extradition, deportation or other transfer of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (Al-Saadoon and Mufdhi v. the United Kingdom,

Life imprisonment

The Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. However, to be compatible with Article 3, such a sentence must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation.

A life sentence does not become irreducible by the mere fact that in practice it may be served in full (Murray v. The Netherlands [) However, respect for human dignity requires prison authorities to strive towards a life sentenced prisoner’s rehabilitation (Murray v. the Netherlands . It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds. A review limited to compassionate grounds is therefore insufficient (Hutchinson v. the United Kingdom

The criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty, and also reflect the relevant case-law of the Court. This means that prisoners who receive a whole life sentence are entitled to know

Extradition and expulsion

The Court has underlined that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Khasanov and Rakhmanov v. Russia). A right to political asylum is not contained in either the Convention or its Protocols. However, deportation, extradition or any other measure to remove an alien may give rise to an issue under Article 3 and hence engage the responsibility of the Contracting State under the Convention, where substantial grounds have been shown for believing that the person in question, if removed, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to remove the individual to that cou