ARTICLE 3

ARTICLE 3

1. should Article 3 be further qualified?

   • Tyrer v UK (1979) held birching was degrading treatment, despite no long lasting effects, the applicant was treated as an object and this constituted an assault
     • ticking time bomb situations
   • Sir Gerald Fitzmaurice in a separate opinion stated 'the gloss that has to be placed upon the literal effect of the Article relates not only to what constitutes or amounts to torture; but to what may in certain circumstances justify its infliction such as encompassing a greater good of saving a life of the recipient, or in saving many lives'

2. PROOF OF STATE RESPONSIBILITY

   • ECtHR must be satisfied beyond reasonable doubt that the State is responsible
   • illegality of torture eg. extraordinary rendition
     • Macedonia was first to be accused of this, for collaboration with CIA programme
   • A v SoS for Home Department (No.2) (2005) can evidence obtained thought torture be relied upon? HoL held that evidence which may have been obtained through torture should be admitted; there was a difference of opinion whether it could be proved that the evidence was obtained by torture before it could be excluded
   • Mamatkulov v Turkey (2005) HoL disagreed on the burden of proof, it the applicant could raise a reasonable suspicion that there was torture evidence being relied upon, then the court has a duty to investigate

3. can torture be legitimate in certain circumstances?

   • can states fulfil their obligations under Article 2 ECHR if they cannot obtain information through torture?
   • would it not be better to regulate these activities instead of prohibiting?

4. Deliberate ill-treatment by officials

   • Ribitsch v Austria (1996) established that people detained by the police must be treated properly and not subjected to treatment that violates Article 3
   • Raninen v Sweden (1998) a conscientious objector handcuffed by military police

5. Punishment; as deliberate ill treatment on the part of officials arising in all public life aspects

   • Corporal punishment;Tyrer v UK (1979)
   • Schools; Costello-Robers v UK (1993)
     • Education and conscience issues
   • these cases show a lack of approval coming into play through these cases
   • some schools sent out letters and some parents have said they would consent to the use of corporal punishment; this is inconsistent
   • Parents and carers fall under state responsibility, in regards to making sure punishment does not become too severe
     • A v UK (1999) between the ages of 6-9 years old applicant was beaten by step father with garden cane and showed marks of injury, Step father was convicted of assault, but was acquitted, Judges accepted his defence of reasonable chastisement; under the circumstances the punishment reached the threshold of severity to constitute a violation of article 3 and the state had failed to provide protection for Article 3

6. PRISONS

   • Prisoners; Convention has no equivalent to Article 10 of the ICCPR, which details what rights should be given to prisoners
     • (1) general requirement; humanity and dignity (2) evolution of rights for prisoners, committees set up to inspect prisons and needs to be compatible (3) treatment for prisoners, with the aim of which shall be their reformation and social rehabilitation
     • Peers v Greece (2001) UK national convicted of drug offences in Greece (heroin addict) kept in a small cell with an open toilet, which was small, overcrowded and had little natural light. ECtHR held this was a violation, prison conditions can diminish human dignity and give feelings of anguish and inferiority - there is a threshold for degrading treatment
     • Keyhayov v Bulgaria (2005) held that there can only be a violation if a minimum level of severity is exceeded, it can be violated without intention to cause suffering/humiliation/degrading from the authorities
     • Kalashinikov v Russia (2003) held a violation for prison conditions occurs when they go beyond what is necessary for imprisonment
       • imprisonment or special prison regime does not give rise to a violation
     • Valasinas v Lithuania (2001) found the special prison regime was compatible, regarding food and space; issue with the conducting of a strip search, which was held to violate Article 3
     • Napier v Scottish Ministers (2005) prisoner alleged cell sharing, peeing in bottles, defecating in chamber pots and a range of other degrading treatment violated Article 3; this was upheld by the ECtHR
     • Keenan v UK (2001) Article 3 does not prohibit States imprisoning the ill, old, frail or those with mental/physical disabilities
       • Article 3 does require the nature of the regime is properly adapted to the person. Price v UK (2002) woman with severe physical disabilities
   • purpose is for security reasons, not to humiliate
   • Lorse v The Netherlands (2003) arms and drug offenders kept in a special unit, with regular check ups and weekly strip searches done ad hoc. Court held this was a violation and not proportionate to achieve the needed security levels
   • Treatment
     • Herczeggalvy v Austria (1992) therapeutic necessity cannot be regarded as inhuman or humilating. Hunger strike by a mentally incapable prisoner, it was administered negligently, likely the state will have discharged its duties and there must be an adequate framework
     • patient autonomy? competent patients may insist on treatment/withdrawal of treatment
       • NHS Trust A v M (2001) suggests Article 3 can only apply to a patient who is aware of their suffering

7. Hunger Strikes and Force Feeding

   • 2006 UN declared force-feeding amounted to torture under Article 1 of UNCAT
     • extremely painful
   • Hunger Strikes are an important expression of views, there is no other outlet
     • non-violent resistance
   • World Medical Assembly (1975) prohibited force-feeding, advising that when a rationale patient refuses to eat, they should not be force fed
   • involves forcibly restraining a person and inserting a tube, cases extreme pain and bleeding and vomiting;issues of dignity and degrading treatment

8. 'SUPERMAX' PRISON

   • Babar Ahmad v UK (2010) ECHR delays extradition of four men from the UK to US amid concerns that US 'Supermax' prisons violate human rights
     • Court requested further information from the parties and extended interim measures to suspend the extradition
       • Used US cases to gain information to make the decision
     • similiar to Soering (death row phenomenon)
     • ECtHR rejected all complaints, except 2; information was needed on conditions of detention, extent of US Constitutions prohibition of cruel and unusual punishment and length of sentence; this information is used to determine whether there would be a violation
   • does not violate the 8th Amendment for cruel and unusual punishment
     • Sattar v Gonzales (2010) limited contact with family and lawyers does not amount to a violation of 8th Amendment
     • Ajaj v US (2009)
     • Hill v Pugh (2003) Court rejected claim that prison conditions were cruel and unusual (isolation 23 hours a day/five days a week and 24 hours the other days) minimum food, shelter, clothing and physical requirements were met

9. Asylum seekers and welfare

   • dealing with vulnerable people, with unintended suffering and hardship
   • civil servants take decisions about welfare which affect people. Positive duty on states to ensure that the activities of others for which it has responsibility, are taken to avoid suffering
   • O'Rourke v UK (2001) person sleeping rough, held there was no violation as they were responsible for their own misfortune
   • R(Limbuela) v SoS for Home Department (2005) contention that asylum seekers are not allowed benefits or allowed to work, charitable provision can be hard to come by, this was reviewed. Article 3 was violated, Limbuela begged for food and slept rough, became ill - no general rule followed, suggested an official may violate the duty if they do not have general susitence

10. Deportations

    • most states reserve the right to deport foreign nationals who do not enjoy an unqualified right to live in the state
    • eg. as part of punishment for serious offences, immigrants/failed asylum seekers whose right to be in the UK has expired, foreign nationals in UK Government view presence as against public interest, threat against national security
    • there should be no deportation if there is a 'real risk' of violating Article 2/3 in the receiving state
      • Protocol 13 means that you are unable to deport to a country which uses the death penalty
      • Soering v UK (1989) constant anguish of waiting for execution - death row phenomenon
      • R(Wellington) v SoS for Home Department (2008) held deportation to US to face life imprisonment with limited chances of parole was not a breach of Article 3
    • Chahal v UK (1997) Court established a number of key principles; (1) state has the right to control the entry (2) this must be exercised given regards to Article 3 (3) unable to remove if they face risk of violation in receiving country
      • An indian national, suspected of terrorism and was seen as a national threat
      • national interests of the State could not be invoked to override individuals interests

11. PUBLIC INTEREST

    • Ahmed v Austria (1997) the activities of the individual, however undesirable cannot be a consideration
    • Article 3 is more absolute on issues of refugees
    • Article 33 UNCR allows expulsion of refugees if there are 'reasonable grounds for regarding as a danger to the security of the country, constitutes a danger to the community of that country'
    • Saadi v Italy (2008) sought to recall Soering and Chahal
    • Some have sought to overcome the restraints in Chahal (1) adopted policy of seeking diplomatic assurances from states, more formalised view of assurance (2) some states intervene as a third party
    • Saadi v Italy (2008) Tunisian national arrested on suspicion of involvement in international terrorism, during imprisonment an Italian court ordered his deportation
      • 2007 Italian government asked Tunisia for diplomatic assurances, requested reassurances for Saadi
        • As a third party, the UK argued the Chahal principle was too rigid, needed to be more felxibility to deal with national security and war on terror
      • Grand Chamber decision; states are not allowed to combat terrorism at all costs (right to life); balancing act cannot be accepted, as protection of Article 3 is absolute (implied positive obligation argument); risk and dangerousness cannot be measured against each other, as they are independent from one another; higher standard of proof argument was rejected as 'intellectually dishonest'; risk of ill treatment, should be closely scrutinsed; Diplomatic assurance did not displace risk of ill-treatment
        • failed to changed the Chahal principle
          • diplomatic assurances were not seen as useful
    • Trabelsi v Belguim (2014) extradition of applicant, questioned on risk - before ECHR, despite interim measures Belgium have extradited applicant, asked to pay him compensation; US provided assurances, but these were not seen to protect Article 3 rights
    • Al-Saadoon and Mufdi v UK (2010) ECtHR two Iraqi nationals claiming detention and transfer violated Article 2,3,6 and 13. specifically exposed to unfair death penalty and unfair trial. UK said at time of transfer there was no belief of risk.
      • ECtHR dismissed this and said the UK did nothing to ensure applicants rights were guaranteed, there was no record of negotiations and failing to gain binding assurance violated ECHR