Article 3 Notes

Article 3 prohibits torture and other forms of ill-treatment but does not expressly state that its terms are absolute o However, the idea that Article 3 contains absolute rights is generally accepted o The terms of the Article are quite vague Masks the volume and variety and complexity of the issues engendered by its terms Not unusual for a treaty which sets normative standards Expected that skeletal norms will be fleshed out through subsequent state practice, the adoption of more specific treaties like the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and judicial elaboration The Greek Case set out three broad areas of prohibition in A3 which are distinct but related o 1. Inhuman treatment covers at least such treatment that causes severe suffering, mental or physical o 2. Degrading treatment (whether punishment or not) is where it grossly humiliates a person before others or drives him to act against his will or conscience o 3. Torture is used to describe inhuman treatment which has a purpose, such as the obtaining of information or confessions or the infliction of punishment, and it is generally an aggravated form of inhuman treatment That purpose is an element has raised questions about whether torture can take place in an unofficial context Provided that the sadistic infliction of suffering can be regarded as being for a purpose, the additional requirement of officiality makes no difference in practice This view is borne out by the Courts approach that the distinction between torture and inhuman treatment derives from a difference in the intensity of the suffering o Effect of the distinction? This distinction determines the compensation awarded under A50 All forms of ill-treatment are prohibited with equal force no matter which end of the spectrum they fall within Whether ill-treatment falls within the scope of A3 depends on whether it attains a minimum level of severity to trigger the provisions application o The threshold is relative o Depends on all the circumstances of the case, such as duration of treatment, mental and physical effects, and in some cases the sex, age and state of health of the individual The notion of an absolute right o Article 3 does not state that the rights are absolute o This characterization has emerged from general human rights discourse and litigation o In practice, the tendency has been for practitioners and academic writers to assume that te absence of permissible limitations, exceptions or derogations provides a sufficient basis for the conclusion that the prohibitions are absolute A3 rights are not subject to exception even in times of war or other public emergencies This was confirmed in Ireland v UK: The Convention prohibits In absolute terms torture and Inhuman and degrading treatment or punishment,.. There can be no derogation therefore even In the event of a public emergency threatening the life of the nation The case law gives an impression of shifting boundaries as regards

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the character and scope of the absolute nature of the prohibitions of A3the Court is guided in its decision-making by principles like effective protection and margin of appreciation The courts practice under A3 is not based on objective criteria but on the effects of various subjective factors on the particular facts of each caseleading to decisions which can be hard to reconcile at first sight This suffices for now because no litigant has contested the concept of absolute right or absolute prohibition Alan Gerwith has defined absolute rights as meaning rights that cannot be overridden in any circumstances, so that it can never be infringed and must be fulfilled without exception Absolute rights demonstrate a superior claim to be respected. In this sense there are 3 levels at which rights may be said to be absolute Look at: Does Article 3 of the ECHR enshrine absolute rights Michale K Addo In view of the importance of the prohibition of torture and other forms of illtreatment after WW2, it is critical that notions of absolute right should be defined as precisely as possible Theoretical characteristics: Not admitting of exceptions, limitations or derogations even in time of war or public emergency An absolute prohibition should leave no room for doubt about its scope if doubts emerge the benefit must be given to the victim Potential violatoers (like governments) should only be given limited discretion in respect of such a right The violation of a absolute right must be followed by suitable redress: full and effective redress covering both direct and indirect aspects of the infringement Cannot be subject to reservations and in the event of conflict between an absolute right and others, the latter must always give way These characteristics of an absolute right complement and flesh out the skeletal definition used by the Court In a dynamic human rights regime: The Conventions supervisory organs must determine its scope with reference to the facts of each case It is a process which does not lend itself to objective analysis Consideration has to be subjective: for instance, what humiliates one person may not humiliate another Judge Fitzmaurices dissenting opinion in the Ireland case provides a good example of the subjectivity of the process By the very nature of the assessment process, there is a serious risk of inconsistency in A3 decisions Being guided by the practical circumstances of each case couples with the principle of effectiveness the Court has refused to be tied down by theoretical consideratios I.e. they do not see to be unduly concerned about potential inconsistencies in the case law as long as they succeed in protecting human rights effectively in practice E.g. compare Tyrer and Costello RobertsFactual similarities where the latter was caned on the ass three times whereas the former was caned in a juvenile court Tyrer war a state v individual violation (vertical) whereas CR was a horizontal (inter-individual) violation: Easier to hold a state liable for violations arising from the actiosn of a state institution The Tyrer situation was arguably more disturbing ad needing a firmer hand this may well be the courts view based on the idea of effective protection At the end of the day, absolute right is a term of art which is by nature

imprecise and can be understood only in a particular context Justifiability: o The reference to unjustifiable ill-treamtent is an indiciation of the subjective process involved in the application of A3 o When first used in the Greek Case it caused concern but in Ireland it was cleared up that there could be no justification for treatment in breach of A3 o The notion of justifiability applies only to the assessment of individual facts in the particular context in which they occur and not to the determination of a violation of Article 3 as such. o Justifiability is a yardstick for assessing the weight to be attached to factors such as the nature of the victim and the circumstances in which the illtreatment is said to have arisen. o Case-by-case assessment of this kind can lead to uncertainty in the jurisprudence of the supervisory organs, but this must be regarded as an inevitable part of the decision-making process. o The principle of justifiability played a particularly important role in the Commission's opinion in Soering, where one of the questions was whether the death-row phenomenon attained the necessary level of severity to violate Article 3. The Commission concluded that the threshold was not reached The Commission concluded that the death-row phenomenon was justified by the principle of due process and could therefore be beneficial to the victim. Its reasoning is attractive in principle, but in practice it is more difficult to sustain.

Extending the scope of Article 3 for Ill-treatment D v UK: o Case involving extradition of a HIV man to St. Kitts held to be in violation of A3 o The UK tried playing with a technicality by saying he had never entered the UK and hence he was recommended for deportation despite his illness o The ECHR held that regardless of whether or not he ever entered the UK in a technical sense, he was physically present there and thus within the jurisdiction of the State. o Although A3 was thus far applied in contexts where the risk to the individual emanated from intentionally inflicted acts of public authorities, the court was not prevented from scrutinizing an applicants claim where the source stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities o To limit the application of A3 in this way would be to undermine the absolute character of its protection The case demonstrates the flexible nature of the notion of ill-treatment and the threshold for it o To reach firm conclusions as to the nature and effect of treatment or punishment because it occurs clearly departs from the principle of assessment after the event o Whilst endorsing that principle in Soering, the court said that: it is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention by the State However this changes if an extradition would foreseeably result in a departure of a principle, in view of the irreparable damage alleged o Other reasons include: the principle of effective protection, belief that the convention is designed to promote and maintain democratic ideals, the fact that A3 admits of no exceptions and that A3 represents an absolute standard

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The exception should only be applied in cases where the nature and effects of the ill-treatment in question are known, from previous experience, to violate the guarantees of A3 Any speculation is thus limited to the question of whether the ill-treatment is likely to occur In Soering the UK government argued that speculative ill-treatment is prohibited under A3 only if it is certain and imminentsuch a standard can be achieve only where the treatment is required by law (and death penalty is not necessarily inevitable) The court disagreed. Concluded that a real risk of exposure to the known illtreatment was sufficient although a mere possibility of ill-treatment is insufficient The accepted standard, which lies somewhere between certtaity and possibility can be fairly high provided it accords with the wider principles of effective protection and prevention of irreparable damage In theory, the Court was absolutely correct in seeking to prevent the occurrence of acts likely to breach A3. In reality, a declaration of the legal implications of a states future conduct has minimal legal significance and it is for the state to decide whether to heed the declaration. In Soering, the UK extradited him to the US to stand trial for charges where the death penalty did not applyawkward judgment Despite the judicial uncertainty here, taking the alternative route would defeat the essence of preventive protectionthe risk of ill-treatment has to be protected and not the fact of ill-treatment

Room for improvement by Strasborg Arguable that the severity thresholds are unduly high Arguable that the benefit of the doubt is not always given to the victim o Kaas v Germany: Injuries sustained by the applicant during a routine arrest were evidence that excessive force had been used by the police in breach of Article 3. The evidence as to how the injuries were sustained turned out to be inconclusive and on that basis the Court, following the decision of the national courts but departing from the opinion of the Commission, held that there had been no violation. o This departed from established police in Tomasi v France: where an individual sustains injury while under government (police) control, the onus lies on the respondent government to rebut the presumption that the injury was inflicted by public officials. o This undermined the spirit of absolute guarantee in A3

Duty to Rescue the Nearby Needy It is accepted that expulsion by a Contracting State may give rise to a violation of A3 if substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to A3 N v UK

o Case about the deportation of a seriously ill foreign national to her country of
o origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment. The majority rejected the claim of the applicant to stay in the UK

Comparing N and D o The court put emphasis firstly on the fact hat Ms Ns plight would stem from natural causes and not from human action, and second, on the diea that the Convention is primarily not concerned with wrongs that result from socioeconomic deprivation o Prior to N, the sole example of a medical asylum application where the Court found that the threshold of severity was attained was D v UK (D)St. Kitts case The claim in N was approached similarly to D, implying that both cases involved the same principles, but that a line could be drawn to separate them based on the level of the applicants misfortune o Court suggested that unlike D, N did not face an extreme degree of suffering was not close to death, was fit to travel and it was not clear whether she would have access to drugs but would have family there o Can be argued that there were qualitatively distinct duties for the ECHR to address in both cases. In D the question was whether A4 imposes a humanitarian obligation to let someone stay in a country where the conditions might be less distressing