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Article 3 Notes

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ARTICLE 3

I. The Nature of the Right A. Absolute prohibition Tomasi v France: Torture not justified even to fight terror.

B. Relative assessment Ireland v UK: Held here that the treatment did not amount to torture/degrading inhuman treatment. Court acknowledged that there is an element of relativity under Article 3. But must reorient the inquiry to the particular victim in question. "Ill-treatment must attain a certain minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim..." (para 162)

C. Art 3 covers 3 separate cat of prohibited treatment or punishment: (a) Meaning of Torture Denmark, Norway, Sweden and the Netherlands v. Greece Apps

* Torture = an aggravated form of inhuman treatment with purpose.

* Degrading treatment = grossly humiliates Ireland v. UK: Concerned case where IRA prisoners were ill treated by soldiers questioning them, see your essay from last year.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1.1 "an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating him or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or 1

acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Aydin v Turkey: First time torturer found in case of rape. 17 year old girl detained and raped by security forces and subject to mental and physical cruelty. These acts were deliberately inflicted in order to illicit information. Court found that accumulation of acts clearly amounted to torture, but individual acts would also have been torture by themselves. Selmouni v France Key: the Convention is a "living instrument which must be interpreted in the light of present-day conditions". the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. Facts: Man, suspected ruggy, being held in prison, claimed he lost an eye, claimed he was raped, and threatened with syringe, and threshold of severity for torture was altered: Menesheva v Russia: Key: burden of proof rests on the authorities to provide a satisfactory and convincing explanation of injuries Facts: Court said they would look at severity of treatment, and would look at other Treaties. She was 19 year old girl who refused to admit police to flat at midnight. They didn't have a warrant. They came back next day, so they ordered her arrest for forceful resist, and was then beaten in police station, threatened, and wasn't allowed to call for medical assistance. Back to flat, then again back to flat, then back to police, no records, no warrant. No doc evidence, but medical evidence confirmed her story. In these circumstances there was clearly torture. (b) Meaning of 'inhuman or degrading punishment' Tyrer v UK Key: "degrading" = the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation associated with judicially sanctioned punishment. (para 30) Facts: Offence in Isle of Man, 1970s, punishment was strokes of the birch. So 15 year old boy was convicted of assaulting fellow school student. Court found this was degrading punishment. Abasement has to reach a particular level, and in this case it did. Looked at fact that it would be carried out in institutional setting.

Costello-Roberts v UK (1993) Key: Private school disciplinary code was not degrading punishment. But note the

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