Article 3
What does article 3 say?
‘No one shall be subjected to tortue or to inhuman or degrading treatment or punishment’
- 3 tier; increasing severity of treatment
No exceptions
No Justifications
No Suspensions
One of the most fundamental rights, and as close to being absolute as it can get
As you see, it is different from article 2 as there are no exceptions, not even limited exceptions
The use of totrue is not permitted no matter how compelling the reason may be
And yet… it is still used across the world, and it did not prevent some of the CoE states resorting to toture in
the war on terror after 9/11
In order to find a breach, a minimum threshold must be established. Once this is evidence, no justification can
be provided - a violation is found
The question arises as to when this minimum threshold will be satisfied?
No concrete answer answer, it will largely depend on context and the victim themselves
Article 3 within the case Law
Selmouni v France (2000)
Facts;
The applicant was arrested for drug trafficking by the french police.
During the three days he spent in police custody he was subject to some serious ill treatment;
He reported being repeatedly punched, kicked and hit the objects’ which include a baseball bat, being urinated
over by a police a police officer who demanded that he suck his penis, and being threatened with a blowlamp
and syringe; he also alleged that he was anally raped by an officer using a truncheon, who told the claimant
that ‘you arabs enjoy being screwed’
Domestic Proceedings;
- Medical Report
A medical report submitted in response to the allegations noted at least 22 separate injured concluding that
‘lesions of a traumatic origin were sustained at a time which correspond to the period of police custody’
The police officers concerned claimed that the ib=njuries were sustained as a result of a struggle upon arrest
However, a doctor reviewing Mr Selmouni’s medical notes commented that although some of the injuries could
be attributed to such a struggle, others were not seen on the first examination
Mr Selmouni initial did not report the rape, therefore there was no medical examination, the doctor said that
this was due to feelings of shame.
- Domestic Courts
The court rejected a number of Mr Selmouni’s arguments. In doing so, it made the following observations;
Neither the medical certificates nor the expert reports support the allegation of anal penetration
The expert report prepared by the court doctor does not allow a causal link to be established between Mr
Selmouni’s loss of visual acuity and the blows he received
The acts of violence inflcited on Ahmed Selmouni which he alleges should be classified as acts of torture or
barbarism were not inflicted before or during the commission of a crime
The court did however find a number of officers guilty of the charge of assault occasioning total unfitness for
work
The ECtHR found a violation and supported the applicants claims that the treatment reached the severity of
tortue. The police caused the victim extreme suffering for the purpose of obtaining a confession
, This case is paramount as it marked a new era in the development of interpretation of article 3, switching the
emphasis from the conduct of the accused to the suffering of the alleged victim
Article 3; three levels of severity
Increasingly stricter requirement for the minimum threshold as the severity increases
Torture is the narrowest category where you would expect the least amount of cases to qualify
Definition of each level of severity
- Prohibition against torture
Prohibition against torute codified within multiple international treaties
Article 3 ECHR
Article 5 UDOHR
Article 7 ICCPR
+ Many others the UN convention against torture, the african charter on human and peoples rights , the
american convention on human rights
Absolute Prohibition on Torture across the world
No leader would ever admit that they support torture or that they use torture as one of their interrogation
techniques
But the problem is, what is menat by torture?
Definition of torture
United Nations Torture Convention of 1987;
‘Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining… information or a confession, punishing, or intimidating or coercing… or for any
reason based on discrmination of any kind, when such pain or suffering is inflicted by.. Public official or other
person acting in an official capacity
Council of europe narrowly defined;
‘Deliberate inhuman treatment causing serious and cruel suffering’
The inter-american convention to prevent and punishment torture defines torture more broadly;
‘Use of methods upon person intended to obliterate the personality of the victim or to diminish his physical or
mental capacities, even if they do not cause physical pain or mental anguish
ECtHR case law
Aksoy v Turkey (1997)
Facts; applicany complained he had been suspended form his arms (Palestinian hanging) casuing paralysis of
both arms)
Decision; Court considers that where individual is taken into police custody in good health but found to be
injured on release, incumbent on state to provide plausible explanation
Ill treatment was of such serious and cruel nature that it can only be described as torture
We already said that there can be no justifications for committing acts of torture… however, states still exploit
a problematic loophole
Extraordinary Rendition
What is it?
- No universally agreed definition
- Statterthwaite; ‘the transfer of an individual, without the benefit of a legal proceeding in which the
individual can challenge the transfer, to a country where he or she is at risk of torture ‘; i.e; without legal
safeguards
- Primary purpose is to detain and interrogate persons suspected of terrorist activities to obtain
intelligence BUT at the same time not to be legally responsible for the acts committed
What does article 3 say?
‘No one shall be subjected to tortue or to inhuman or degrading treatment or punishment’
- 3 tier; increasing severity of treatment
No exceptions
No Justifications
No Suspensions
One of the most fundamental rights, and as close to being absolute as it can get
As you see, it is different from article 2 as there are no exceptions, not even limited exceptions
The use of totrue is not permitted no matter how compelling the reason may be
And yet… it is still used across the world, and it did not prevent some of the CoE states resorting to toture in
the war on terror after 9/11
In order to find a breach, a minimum threshold must be established. Once this is evidence, no justification can
be provided - a violation is found
The question arises as to when this minimum threshold will be satisfied?
No concrete answer answer, it will largely depend on context and the victim themselves
Article 3 within the case Law
Selmouni v France (2000)
Facts;
The applicant was arrested for drug trafficking by the french police.
During the three days he spent in police custody he was subject to some serious ill treatment;
He reported being repeatedly punched, kicked and hit the objects’ which include a baseball bat, being urinated
over by a police a police officer who demanded that he suck his penis, and being threatened with a blowlamp
and syringe; he also alleged that he was anally raped by an officer using a truncheon, who told the claimant
that ‘you arabs enjoy being screwed’
Domestic Proceedings;
- Medical Report
A medical report submitted in response to the allegations noted at least 22 separate injured concluding that
‘lesions of a traumatic origin were sustained at a time which correspond to the period of police custody’
The police officers concerned claimed that the ib=njuries were sustained as a result of a struggle upon arrest
However, a doctor reviewing Mr Selmouni’s medical notes commented that although some of the injuries could
be attributed to such a struggle, others were not seen on the first examination
Mr Selmouni initial did not report the rape, therefore there was no medical examination, the doctor said that
this was due to feelings of shame.
- Domestic Courts
The court rejected a number of Mr Selmouni’s arguments. In doing so, it made the following observations;
Neither the medical certificates nor the expert reports support the allegation of anal penetration
The expert report prepared by the court doctor does not allow a causal link to be established between Mr
Selmouni’s loss of visual acuity and the blows he received
The acts of violence inflcited on Ahmed Selmouni which he alleges should be classified as acts of torture or
barbarism were not inflicted before or during the commission of a crime
The court did however find a number of officers guilty of the charge of assault occasioning total unfitness for
work
The ECtHR found a violation and supported the applicants claims that the treatment reached the severity of
tortue. The police caused the victim extreme suffering for the purpose of obtaining a confession
, This case is paramount as it marked a new era in the development of interpretation of article 3, switching the
emphasis from the conduct of the accused to the suffering of the alleged victim
Article 3; three levels of severity
Increasingly stricter requirement for the minimum threshold as the severity increases
Torture is the narrowest category where you would expect the least amount of cases to qualify
Definition of each level of severity
- Prohibition against torture
Prohibition against torute codified within multiple international treaties
Article 3 ECHR
Article 5 UDOHR
Article 7 ICCPR
+ Many others the UN convention against torture, the african charter on human and peoples rights , the
american convention on human rights
Absolute Prohibition on Torture across the world
No leader would ever admit that they support torture or that they use torture as one of their interrogation
techniques
But the problem is, what is menat by torture?
Definition of torture
United Nations Torture Convention of 1987;
‘Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining… information or a confession, punishing, or intimidating or coercing… or for any
reason based on discrmination of any kind, when such pain or suffering is inflicted by.. Public official or other
person acting in an official capacity
Council of europe narrowly defined;
‘Deliberate inhuman treatment causing serious and cruel suffering’
The inter-american convention to prevent and punishment torture defines torture more broadly;
‘Use of methods upon person intended to obliterate the personality of the victim or to diminish his physical or
mental capacities, even if they do not cause physical pain or mental anguish
ECtHR case law
Aksoy v Turkey (1997)
Facts; applicany complained he had been suspended form his arms (Palestinian hanging) casuing paralysis of
both arms)
Decision; Court considers that where individual is taken into police custody in good health but found to be
injured on release, incumbent on state to provide plausible explanation
Ill treatment was of such serious and cruel nature that it can only be described as torture
We already said that there can be no justifications for committing acts of torture… however, states still exploit
a problematic loophole
Extraordinary Rendition
What is it?
- No universally agreed definition
- Statterthwaite; ‘the transfer of an individual, without the benefit of a legal proceeding in which the
individual can challenge the transfer, to a country where he or she is at risk of torture ‘; i.e; without legal
safeguards
- Primary purpose is to detain and interrogate persons suspected of terrorist activities to obtain
intelligence BUT at the same time not to be legally responsible for the acts committed
