Inhumane and Degrading Treatment To No Extent: The Undefined Application Limits of Article 3 ECHR

Introduction

In 1953, as the world still reeled from the horrors of the Second World War, the European Convention of Human Rights set out to enshrine some very fundamental values that echoed a universal awakening at that time to the need for protection of basic human rights. As time brings new problems to the forefront of the Court’s jurisprudence, many argue that the scope of the articles has now been blurred and broadened to an excessive degree that has nothing to do with the rudimentary intentions of the original Convention drafters. This accusation is particularly attributable to Article 3 cases. The Court has developed this simple worded provision into a scope that includes some surprising actions under the definition of ‘torture, inhuman and degrading treatment’. Two issues need to be addressed from the outset: firstly, what the scope of Article 3 is and secondly the exact meaning of ‘excessive’. Through an exploration of the three main thresholds of Article 3 – torture, inhumane treatment and degradation, this paper embarks to answer these questions in order to provide a proper analysis on whether the current state of the law is at an acceptable standard.

What is the Scope of Article 3?

Article 3 is simplistically worded, leaving it open to mostly subjective interpretation and application. In just one sentence, it expressly states, “no one shall be subjected torture, inhuman or degrading treatment or punishment.”[1] Prima facie, these three acts are what one would conclude it to be limited to. Indeed the earlier case law reflected this notion as it dealt mainly with what one would stereotypically expect it to cover, namely ill treatment of political detainees[2] and prisoners[3] by state authorities[4].  Laws LJ encompasses these arguments on the scope of Article 3 in his judgment in Limbuela where he along with other Court of Appeal judges expressed concern over extending Article 3, and interpreted it as pertaining to mainly the prevention of violence by a state or its servants, with a very narrow applicability in any other case.[5]

On the other hand, subsequent case law reveals that this simplicity is quite deceptive, and is in fact a large source of perplexity as it provides little guidance for the actual scope of the Article 3. One cannot give a definitive scope to Article 3 as a whole. Much legal and academic commentary on the features of Article 3 proves this point. For example, Judge Fitzmaurice, in his discussion of the European Court of Human Rights’ method of determining what constitutes torture, states blatantly that it is of little use to speak ‘within the meaning or scope or intention of Article 3’ because the article itself gives no meaning or guidance as to what its scope was meant to be – the test will largely be subjective and made in light of the specific circumstances of each case.[6]

Article 3 is also treated in legal jurisprudence as an absolute right, meaning that the rights it protects can never be justifiably derogated from in any circumstances. Cases including Tomasi[7] and Selmouni[8] have been decided according to this view. However, as Addo and Grief argue, there is no real consensus about even the notion of an absolute right[9]. There is a great deal of imprecision amongst supervisory bodies applying human rights laws about the scope of such rights, including Article 3. Therefore, if obscurity is what surrounds the interpretation of this right, then it can hardly be said that there is one specific scope within which its jurisprudence can be confined. This ambiguity makes it difficult to term case law in this area as blatantly excessive. Moving beyond what Laws LJ and his fellow critics believe to be the scope of Article 3 is very much plausible.

The High Threshold of Torture

While the courts and scholars continue to grapple with the conceptual ambiguities of Article 3, one aspect that the Court continues to be firm about is its stance on the torture prohibited in the Article. As its own category of ill treatment, it continues to be stringently denounced in every form. To constitute a breach of Article 3 and amount to torture, the harm inflicted must have been inflicted deliberately, causing cruel and serious suffering,[10] and is normally for a purpose such as investigation, punishment, or extracting information.[11] This threshold has been, and quite largely continues to be, a very difficult one to meet. A prime example is the aforementioned Ireland case. Though this judgment is a prominent source of definitions and guidance on the torture threshold, the Court did not view heavy sleep deprivation and the forcing of prisoners to stand for hours as suffering cruel enough to constitute torture; however, it found the UK to be in violation of Article 3 under the heading of inhuman and degrading treatment.[12] While acts such as rape in custody by a state agent,[13] suspension by the arms causing permanent disability,[14] and electric shock treatment to obtain a confession[15] have been held to cross the threshold, they have only been done so due to the extremely severe subsequent ramifications of the torture on the victims. Otherwise, even being cut systematically by a knife while in custody, despite its brutal nature, is only enough to amount to inhuman treatment, not torture.[16]

It was recently suggested in the case of Selmouni v France that this threshold needs to be lowered, and that those acts  in the past that may have been viewed as inhuman or degrading treatment may now qualify as torture[17]. This judgment can be used to back the claim that Article 3 is being expanded to an excessive degree, thus subjecting sovereign states to the enormous stigma of being found guilty of torture. Lowering the threshold may put a label on less serious acts and for no reason put states into embarrassment for a breach of international human rights obligations.  It is to protect states in a sense from this scenario that the Court of Human Rights has so far held such a high threshold for torture, but has classified a variety of offenses as inhuman and degrading treatment.

While these concerns are justified on the part of states that already have to deal with external interference from the ECHR on their activities, the other side of the argument is very much worth heeding to. Selmouni is a decision not meant to expand an already overused right to an excessive degree, but one that is trying to bring jurisprudence in this area up to date with modern day human rights standards. The Courts are becoming much more demanding of states in their compliance with Article 3, which is justified by the need for the protection of human rights and basic liberties; they thus demand strict punishment and investigations of infringements of values fundamental to a free and private life. Reverting back once again to Judge Fitzmaurice’s judgment in Ireland, the argument that lowering the threshold to catch deserving “intermediate forms of maltreatment” not provided for elsewhere in the Convention in order to maintain a high ideal of human rights, carries much merit. It is one thing to be concerned about a State’s reputation and freedom to carry out its affairs, but this in comparison with the need to protect human rights and dignity, especially for something as serious as torture, is nowhere nearly as convincing a concern.

The conclusion to draw at this stage, therefore, is that firstly, the continually high threshold for torture means that it is very difficult to deem Article 3’s expansion in this respect excessive. Furthermore, even if the threshold is lowered, it is justified on the basis of the ideals of human dignity demanded in a democratic society such as modern Europe.

Inhuman and Degrading Treatment

The torture threshold, due to its strict nature, is not as worrisome  an area as  the more attainable thresholds of inhuman and degrading treatment or punishment. Significant expansion in this area is what has given rise to accusations that Article 3 is being applied excessively. Inhuman treatment requires a minimum level of severity, as phrased in A v UK.[18] Many cases brought under Article 3 that allege torture find themselves caught in this lower, but nevertheless severe threshold instead, including Ireland, Egmez, and Gafgen.[19] Greater flexibility has also translated into greater controversy with respect to the two areas which inhuman treatment and punishment can now extend to cover. Firstly, there is the doctrine that a state’s extradition or deportation of an individual back to a country where they have a real risk of suffering inhuman or degrading treatment is a violation of Article 3, even though immigration is a sovereign matter.[20] This principle has been stretched further than physical violence or psychological anguish[21] to even include preventing a state from deporting someone because they would not receive adequate medical care in their home country.[22] Another potentially excessive Article 3 intrusion in this area is the fact that a state can be held responsible for individuals’ acting inhumanely by failing to take steps to provide protection from abuse, thus breaching the positive obligation that states have under Article 3 to do so.[23]

Treatment will be degrading, according to Pretty v UK,[24] if it humiliates a person with disrespect that diminishes their dignity or creates fear, anguish or feelings of inferiority that can damage an individual’s physical and moral resistance. Again, one has the expected examples of detention conditions,[25] but there are some very broad applications to issues such as insufficient social benefits[26] and humiliation from defamatory statements made by a public authority.[27]

The problems raised with broadening the scope of inhuman and degrading treatment to these extents are evident from these cases. Interfering with immigration policy and making the state liable for private individuals’ actions will never be acceptable to sovereign nations. While this is understandable, one must also dig deeper to understand that the nature of many of these decisions is very stringent. The decision in D v UK, for example, though seemingly broad for the immigration implications it could have, is extremely narrow. In the very similar case of N v UK, where a woman’s life would have been no longer than a few years if she was returned to her home country because of the inadequacy of medical treatment for HIV available there, the Court refused to follow the same path it had in D, saying that it would only stop such extraditions in exceptional cases. As argued by O’Cinnede, decisions to rescue the destitute are often said to be feasible “in principle”, but, apart from very exceptional circumstances, a state failing to provide adequate health care or social benefits is not subjecting its citizens to inhuman treatment.[28] For example, the “Soering Principle” on deportation has been applied to several cases and has been ruled to be absolute[29], but has subsequently failed on the facts to prevent deportations[30].

From the sternness of these decisions one can therefore conclude that, though there have been some very broad decisions, they are the exceptions. The rule in the ECHR continues to be stringent in determining a breach of Article 3.  In light of increasingly higher standards for human rights protection, it remains to be seen how long such an approach will continue to survive. The potential for the exceptions to eventually become the rule should neither be underestimated nor be feared. As the ECHR’s jurisprudence proves, no matter how it interprets Article 3, it will forever be careful not to overstep the fine line that would render its judgments invasive of national member state policies.

Conclusion

The thresholds are being lowered for reasons of policy and prevention, and the court is continually strict. Since there is little consistency in the case law, as every case is decided subjectively, we cannot say there are any defined limits that can be crossed. The ambiguity around its scope, the high threshold of torture, and the stringency surrounding inhuman treatment all lead to the conclusion that the European Court of Human Rights has expanded Article 3 not to an excessive scope, but to one that has a high regard for modern intuitions of human rights.

 

Richa Sandill

University College London 


[1] Article 3, European Convention of Human Rights

[2] For example, see The Greek Case (1969) 12 YB

[3] Ireland v. United Kingdom, (5310/71) [1978] ECHR 1

[4] J. Vorhaus, “On Degradation” (2002) 31(4) Common Law World Review 374 – discusses the traditional focus of Article 3 jurisprudence on cruelty by states and their representatives.

[5] R. (on the application of Limbuela) v Secretary of State for the Home Department [2004] EWCA Civ 540 at paragraph 77.

[6] Ireland v U.K. B23-I, p.388 Com.Rep. (1976) – Judge Fitzmaurice’s judgment, paragraph 12.

[7] Tomasi v France, (App. No. 12850/87), decision of 27/8/1992;

[8] Selmouni v. France (2000) 29 EHRR 403

[9] Addo, M. and Grief, N. ‘Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?’ Eur J Int Law (1998) 9 (3) 510

[10] Ireland v U.K. B23-I, p.388 Com.Rep. (1976)

[11] Ihlan v Turkey (App. No. 22494/93), decision of 27/06/2000

[12] When considering Ireland, it may also be useful and important to note that it was quite a politically motivated decision, due to the uproar and turmoil that would have been caused had the U.K. been indeed found guilty of torture.

[13] Aydin v Turkey (1997) 25 EHRR 251

[14] Aksoy v Turkey (1996) 23 EHRR 553

[15] Mikhevev v Russia  (App. No. 77617/01), decision of 26/1/2006

[16] Egmez v Cyprus (2000) 34 EHRR 753

[17] Selmouni v. France (2000) 29 EHRR 403 at para 101

[18] A v UK  (App. No.3455/05), judgment of 19/2/2009

[19] Gafgen v Germany (App. No.22978/05), decision of 1/6/2010

[20] Soering v United Kingdom (1989) 11 EHRR 439; Vilvarajah and Four Others v UK, (App. No. 13163/87), decision of 30/10/1991

[21] Chahal v. The U.K ., (22414/93) [1996] ECHR 54; Soering v UK

[22] D v UK [1997] 24 EHRR 423

[23] X, Y, and Z v UK (2001) 34 ECHR 97 – The court found a breach of article 3 after a failure of state’s social services system to provide children with protection from serious long-term neglect and abuse by their parents, which the services ought to have known about.

[24] Pretty v UK (2002) 35 EHRR 1

[25] Kalashnikov v Russia, (App. No. 47095/99), decision of 15/10/2002

[26] Larioshina v Russia, (App. No. 56869/00), decision of 23/04/2002

[27] East Africans Cases 3 EHRR 76 at 80 (1973)

[28]  O’Cinnede, C. “A modest proposal: destitution, state responsibility and the European Convention on Human Rights.”E.H.R.L.R. 5 (2008) 583-605

[29] Saadi v UK, (App. No. 13229/03), decision of 29/01/2008

[30] For example, Cruz Varas and Others v. Sweden, 46/1990/237/307


Leave a Reply