Article 3: short power points

ARTICLE 3
The protection against torture, inhuman or degrading treatment or punishment is fundamental to the Convention.
It contains both substantive obligations and procedural obligations, such as the obligation to investigate alleged breaches.
Article: severity
Article 3 can be broken down into 5 elements: torture, inhuman, degrading, punishment and treatment.
The conduct must attain “minimum level of severity” for each category (Ireland v UK).

Threshold of ill-treatment
Relevant factors:
duration of the treatment,
physical or mental effects,
purpose of the treatment (to humiliate or debase the victim?)
sex, age and state of health of the victim -see for example Jalloh v Germany and Price v UK

Definition of torture (1)
The prohibition on torture also part of customary international law and many international instruments.

A high threshold applies because a special stigma attached to deliberate infliction of inhuman treatment causing very serious and cruel suffering.

Definition of torture (2)
The definition in UNCAT:

The infliction of severe mental or physical pain or suffering;
The intentional or the deliberate infliction of the pain;
The pursuit of a specific purpose (gaining information, punishment or intimidation).

Adopted for ECHR Akkoc v Turkey

The Dividing Line?
Ireland v UK : the five techniques of
wall-standing,
hooding,
subjection to noise,
deprivation of sleep, and
deprivation of food and drink
During the interrogating suspected terrorists was inhuman and degrading treatment but not torture.
Treatment on arrest or in custody
In custody the threshold for inhuman treatment is lowered.
Any recourse to physical force in respect of a person deprived of his liberty not strictly necessary is an infringement of Article 3 because it has the effect of diminishing the human dignity of the individual involved – Ribitsch v Austria.

In custody
Bouyid v Belgium, a slap in custody is breach:
“diminishes human dignity constitutes a violation… [and the] use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”
Deliberately cruel acts may be inhuman treatment: Selcuk & Asker v Turkey , Dulas v Turkey & Bilgin v Turkey

Discrimination and Article 3
Discrimination against an individual or group of individuals may amount to a violation of Article 3 – East African Asians v UK Comm Report, Cyprus v Turkey

Onus on state
State must provide an explanation for an injuries caused to a detainee in police custody and demonstrate that they were necessary and that no more force than was necessary was used (Tommasi v France).
Arrest and Art 3: Examples

Use of force must be strictly necessary and proportionate (Tzekov v Bulgaria).

Strip search in own home because it was invasive and debasing and not necessary and justified for security reasons – Weiser v Austria .

Restraint (1)
Handcuffing during the course of an arrest in general will not reach the minimum level of severity necessary to amount to degrading treatment, provided the arrest is lawful and does not involve any more force or public exposure than is necessary in the circumstances -Raninen v Finland .
Restraint (2)

Where handcuffs are used in the course of an unlawful detention or arrest or goes beyond what is necessary in the circumstances there may be a violation.
Gordiyenko v Ukraine violation where Court “not convinced that it was indispensable to use the force against the applicant, including his handcuffing”

Restraint (3)

Restraint accompanied by beating likely to be violation – Rehbock v Slovenia.
Handcuffing and mechanical restraint must not be used as punishment (Tyrer v UK).

Procedural Protections (1)
Judges play key role to guarantee rights to:
have the fact of detention notified to family, friend or consulate;
confidential access to a lawyer, visited by lawyer and right for lawyer presence during interrogation; and
access to doctor and medical examination, out of hearing and preferably out of sight of police officers.
(2nd General Report of CPT, Korobov v. Ukraine)

Detention
Detention conditions violate Article 3 where they degrade the prisoner (Peers v Greece; Kalashnikov v Russia).
In assessing conditions consider:
age,
sex,
health,
danger they pose,
any special needs that require special care,
and whether unconvicted prisoner.
Police Custody
cell should be reasonable size for the number of people,
adequate lighting and ventilation,
a means of rest,
clean mattress and blanket,
clean toilet facilities and access to washing,
regular food and one full meal a day and other refreshment (CPT standards).

Prison conditions: factors
length of detention,
overcrowding,
absence of sleeping facilities (Dougouz v Greece),
sanitary conditions,
natural light,
access to outdoors,
short periods in bad conditions may be violation (Fedotov v. Russia,Sizarev v Ukraine)
Solitary confinement

Solitary confinement should not be prolonged,
not imposed on a remand or juvenile prisoner,
sensory and social isolation combined are unjustifiable as these can destroy personality(X v Denmark).
Access to care in prison

Absence of healthcare could result in a violation (McFeeley v UK, Keenan v UK).
Kudla v Poland: Conditions detention should not exceed level of suffering in inherent in detention and health and well being need to be secured by provision of medical attention.

Other Conditions
Force-feeding an individual may amount to inhuman or degrading treatment (X v Germany).
Nevmerzhitsky v Ukraine force feeding on hunger strike only if necessary to save life.
Handcuffing of prisoners with terminal illnesses to a hospital bed can amount to a violation of Article 3 (Henaf v France).

Female detainees

access to sanitary and washing facilities,
provision of female hygiene items, and
safe disposal arrangements blood-stained articles.
Medical staff should have training in women’s health issues (CPT, Third General Report).

Sexual assaults in custody
Rape of detainee by official amounts to torture Aydin v Turkey.
Obligation to protect detainees from sexual and other assaults by other prisoners.
Women should be held in separate accommodation.

Searches

Intimate & Strip searches may constitute degrading treatment
must be conducted in an appropriate manner which did not unnecessarily diminish the detainees human dignity (Valasinas v Lithuania).

Treatment in detention – special needs

Price v UK and D.G. V Poland keeping a prisoner, a wheelchair user, and/or detaining for 18 months in prison that was unsuitable for persons with physical disabilities was violation.
Article 6 issues (1)

Evidence obtained by torture will not be admissible in court under any circumstances, even where it does not constitute crucial or decisive key evidence against the accused (Yusuf Gezer v. Turkey).
Article 6 issues (2)
Evidence obtained against the will of the accused may need to be excluded by Article 6 – but not where the evidence on which the conviction was based was not related to the coercion.
Use of evidence discovered by threats of ill-treatment not contrary to Article 6 where the defendant admitted his guilt later (Gäfgen).

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