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HUMAN RIGHTS LAW

Article III
Teaching Block II
QUESTION 1 – TORTURE AND INHUMAN
OR DEGRADING TREATMENT

• All absolute and incapable of justification (Ahmed v Austria (1997))

• Minimum level of severity – Triggers mechanism of Article 3

• Ireland v UK 1978
• “[The] assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age
and state of health of the victim.”
MINIMUM LEVEL OF SEVERITY

• Torture
Special Stigma

• Inhuman Treatment
• Inhuman Punishment
• Degrading Treatment
• Degrading Punishment
Threshold

• [Normal vicissitudes of life]


TORTURE

• Definition?
• Not in Article 3
• The Greek Case 1969
• The purpose
• “[Torture] is generally an aggravated form of inhuman treatment”
• Ireland v UK 1978
• “deliberate inhuman treatment causing very serious and cruel suffering.”
• Special stigma
• Criteria: duration/physical and mental effect/victim’s age/sex/health
HUMAN DIGNITY

• Bouyid v Belgium (2015) A single slap- degrading treatment

• the Convention prohibits in absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the conduct of the person concerned.
• A slap […] by law-enforcement officers on persons under their control, highlights the
superiority and inferiority which by definition characterise the relationship between the former
and the latter.

• Any interference with human dignity strikes at the very essence of the Convention.
BOUYID V BELGIUM

• Dissenting opinion:
• There are forms of treatment which, while interfering with human dignity, do
not attain the minimum level of severity required to fall within the scope of
Article 3
YOUSIF V COMMISSIONER OF POLICE FOR
THE METROPOLIS [2016] EWCA CIV 364

• Iraqi refuge with mental disorders, arrested for “road rage”, Stated
records of suicide attempts.
• Moved naked – with arms behind his back with bare min use of force.

• Held: No violation.
• On Bouyid:
• Bouyid involved the culmination of a campaign; in those circumstances,
deliberate police misbehaviour continuing that campaign, not even
remotely justifiable as necessary but rather to humiliate and
debase which otherwise may not have reached the threshold of
severity.
ALSERAN V MINISTRY OF DEFENCE [2017]
EWHC 3289 (QB)

• Various forms of ill-treatment, some of which violated Art 3. One incident did
not; kicks and blows were inflicted on Mr Alseran at the time of his capture.

• Held: Use of force more than necessary But no degrading motivation. No


violation

• On Bouyid:
• It would not be consistent with the nature and status of article 3 to treat any
unlawful use of force by a state agent, however minor, as a violation of the right
which it protects.
• Court also mentioned that regard must be had to the context in which the ill-
treatment was inflicted: The context was a war.
INHUMAN TREATMENT

• Ireland v UK 1978
• Likely to cause ABH or intense physical/mental suffering
• Premeditated and intentional
• Applied for long periods of time

• “The notion of inhuman treatment covers at least such treatment as deliberately


causes severe suffering, mental or physical, which, in the particular situation, is
unjustifiable.” (first Greek Case 1969)
• “the suffering occasioned must attain a particular level before a punishment can be
classified as "inhuman" within the meaning of Article 3” (Tyrer v UK 1978)
• Gafgen v Germany – Threats of torture amounted to inhuman treatment but not
torture
QUESTION II: DESTITUTION

R v SSHD [2005] UKHL 66

Lord Brown; unhelpful to attempt to analyse obligations arising under article 3


as negative or positive, and the state’s conduct as active or passive.
The real issue in all these cases is whether the state is properly to be regarded
as responsible for the harm inflicted (or threatened) upon the victim

NB: M.S.S. v Belgium and Greece [2011] ECHR 108


Did the applicant, who was wholly dependent on State support, find herself
faced with official indifference in a situation of serious deprivation or want
incompatible with human dignity?
QUESTION II: DESTITUTION

Destitution not within Art 3, unless:

If the states owes an obligation to avoid deprivation of material needs (in M.S.S
case through Reception Directive)

Total dependency of the individual on the State.

Human dignity is key in this context to capturing the way in which material
deprivation engages Art 3.
QUESTION III: CUSTODY AND
DETENTION
PROBLEM QUESTIONS- GENERAL STRUCTURE

• Preliminary points
• Is the respondent a PA?
• Is there a “Victim”?
• Did the alleged breach occur within the “Jurisdiction”?
• Can the relevant time limits be satisfied?

• Substantive Points
• Is the relevant Article engaged?
• Is the Article breached (i.e. is what occurred a breach of one or more of the obligations in
the Article)?
• Obligations are negative/positive/procedural
• Can the breach be justified?
POSITIVE OBLIGATION: SPECIAL
PROTECTIVE MEASURES

• Did the authorities know (or ought to have known) of a real and immediate
risk that an identified individual would be subject to torture, inhuman or
degrading treatment?

• Did the authorities fail, within the scope of their powers, to take reasonable
measures to provide effective protection against acts of ill-treatment?

• Z v United Kingdom [2001] 34 EHRR 97


ASSESSMENT

• In order for a punishment or treatment associated with it to be


“inhuman” or “degrading”, the suffering or humiliation involved must
in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment
or punishment

• Nevertheless, Article 3 requires the State to ensure that prisoners


are detained in conditions that are compatible with respect
for their human dignity, that the manner and method of the
execution of the measure do not subject them to distress or
hardship of an intensity exceeding the unavoidable level of suffering
inherent in detention and that, given the practical demands of
imprisonment, their health and well-being are adequately secured
SOLITARY CONFINEMENT

• Complete sensory isolation, coupled with total social isolation, can destroy the
personality and constitutes a form of inhuman treatment which cannot be justified
by the requirements of security or any other reason

• Solitary confinement will not though, of itself, constitute inhuman treatment where
this done for security reasons and the person still has social contact with others.

• Depends on the particular conditions, the stringency of the measure, its duration,
the objective pursued and its effects on the person concerned

Cases:
• Ramirez Sanchez v. France
• Shahid v. Scottish Ministers (Scotland), [2015] UKSC 58
• X v.Turkey (no. 24626/09)
ACCESS TO HEALTH CARE

1. A negative obligation exists on the state to not expose the person to


detention conditions that exacerbate or prolong the ill-health or mental
distress of the vulnerable detainee.

2. There is also a positive obligation on the state to safeguard dignity and


ensure that the health of a detainee is adequately secured, providing him
with requisite medical assistance.

Example;
• R (on the application of BA) v The Secretary of State for the Home Department [2011] EWHC 2748
• R (On the Application of S) v Secretary of State for the Home Department [2011] EWHC 2120
• R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC
979
• R (on the application of MD) v Secretary of State for the Home Department [2014] EWHC 2249
SANITATION IN PRISON

• Napier v The Scottish Ministers [2004]

Decision in regard to Article 3 was not founded merely on the conditions which
prevailed in Prison Barlinnie, Glasgow where the petitioner had been detained,
but upon the whole circumstances as they had affected the petitioner,
including the physical and mental effects and the state of his health.