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Article 3 Notes

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Article 3: Prohibition of Torture Introduction "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency. Chahal v UK - illustrates absolute nature of the prohibition. UK wished to deport Chahal to India arguing that he had been involved in terrorist activities and posed a risk to the national security of the UK. The Strasbourg court said: "Art 3 enshrines one of the most fundamental values of democratic society. The court is well aware of the immense difficulties faced by states in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the V's conduct". Saadi v Italy - despite attempts to persuade the Strasbourg court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose continued presence might be seen to be a threat to the host country, the Grand Chamber re-affirmed the absolute nature of the prohibition: "As the prohibition of torture and inhuman and degrading treatment or punishment is absolute, irrespective of the V's conduct...the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Art 3". The Strasbourg court described the argument based on the balancing of the risk of harm if the person is removed against their dangerous to the host state as "misconceived". Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host state presented a security risk; this was not compatible with the absolute nature of Art 3. NA v UK - the assessment of the real risk of ill-treatment in the country of destination will always be a rigorous one. One disappointing recent development is the frequency with which violations of Art 3 are found by the court. This reflects only in part its increasing willingness to find violations in a broader range of situations than in earlier years. Bradley - difficulties masked by the general language of Art 3. It is obvious that in order to maintain social order governments must, and usually ought to be, in the business of inflicting unwanted treatment on their citizens. While it may be readily agreed that the use of "torture, inhuman and degrading treatment or punishment" for this purpose is unacceptable, once a particular is at issue, especially in light of its use in connection with a particular social problem, serious differences are bound to emerge. Like many domestic courts with similar constitutional provisions, the ECtHR has struggled to define the boundary between tolerable and intolerable punishment and treatment.

Defining the terms Article 3 is only concerned with conduct which attains "a minimum level of severity" Ireland v UK - in order for conduct to fall within Art 3, it must "attain a minimum level of severity". This test will apply whatever the category of conduct in issue. The effect of setting a significant threshold is that trivial complaints, and even activity which is undesirable or illegal, will not fall within the scope of the prohibition in Art 3 unless it causes sufficiently serious suffering or humiliation to the V. Selmouni v France - the Strasbourg court indicated that interpretation of the convention as a living instrument could result in acts classified in the early case-law as inhuman or degrading treatment being classified as torture in the future. Presumably it would follow that conduct which previously had not attained the threshold for categorization as inhuman or degrading treatment might be so categorised in the future. Jalloh v Germany - Grand Chamber restated the court's long-standing view: "...ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim..." Moldovan v Romania - attacks on an applicant's honesty and way of life which were motivated by racial discrimination constitute an aggravating factor when considering whether treatment accorded to him reached the minimum level of severity. Wainwright v UK - the Strasbourg court found that strip searches of visitors (one of whom has a learning difficulty) to a prison, which were not carried out in accordance with national rules in a number of respects and accused the individuals significant distress, did not reach the minimum level of severity to fall within Art 3, though they did constitute a violation of Art 8. The Strasbourg court now subjects allegations of violations of Art 3 to a particularly thorough scrutiny even if there has been domestic proceedings and investigations in the allegations. The enquiries in the national legal order must themselves be very thorough, and represent a genuine attempt to find out what happened and who may be responsible for any reprehensible conduct. The concept of an administrative practice Where the factual evidence shows that the complained of action, even though it is unlawful, has been repeated time and again by agents of the state, and where there has been official tolerance of the conduct at more senior level, this has come to be known as administrative practice. Ireland v UK - the Strasbourg court characterised an administrative practice as: "an accumulation of identical or analogous breaches which are sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system...".

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