Welcome back to the ECHR series! Last time we looked at Article 2: Right to Life. This week we are looking at Article 3, the prohibition of torture. This is probably one of the most well known rights, usually incorporated into many national constitutions and international conventions.
Article 3 simply says:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
It’s one of the shortest, least qualified rights, but it is absolute. There is no possibility to derogate under Article 15 and there are no exceptions. It does not fall within the margin of appreciation.
There is some tension whether or not Article 3 should be absolute. The knee jerk reaction is to say that torture is never allowed, something that everyone can support and understand. But what about situations where lives can be saved if a suspect is threatened into giving information? What if a kidnapped victim is in danger and their hostage taker is in custody but refusing to speak?
These were the circumstances of the case in Gafgen v Germany. The applicant was detained following the disappearance of an 11-year-old boy. Gafgen kidnapped the boy, brought him to his apartment where he strangled him, disposed of his body and then contacted the boy’s parents for ransom. The police arrested Gafgen when he arrived to collect the ransom money. The police genuinely believed the boy to be alive and threatened Gafgen with torture and sexual assault. Within ten minutes Gafgen relented and told the police that the boy was already dead. He confessed on a number of occasions to the murder. The question before the court was whether or not this violated Mr Gafgen’s rights under Article 3. The Court held that while the threats did not meet the “threshold” for torture, they did violate the other half of Article 3; freedom from degrading or inhuman treatment.
Legal writer Steven Greer posed the question of whether the Court were putting Gafgen’s rights above the innocent child, as the police genuinely believed him to be alive (S. Greer, “Is the Prohibition on Torture, Inhuman and Degrading Treatment or Punishment Really “Absolute” in International Human Rights Law” (2015) Human Rights Law Review 1-37). Was this fair to put the “criminal’s” rights above that of an innocent child? Should the Article be absolute? Natasa Mavronicola responds to Mr Greer’s article very well in her article (S. Greer, “Is the Prohibition on Torture, Inhuman and Degrading Treatment or Punishment Really “Absolute” in International Human Rights Law” (2015) Human Rights Law Review 1-37). She makes the point that Article 3 applies against the State, not the individual. Comparing the State’s treatment of Mr Gafgen’s rights with Mr Gafgen’s treatment of the child’s rights was not even or correct. She also made the very intelligent point that even though the right is absolute, it does not mean the national authorities cannot commit torture, it is just unlawful to do so. If a police officer does engage in behaviour that violates Article 3, he must be charged before a court of law. If the circumstances were such to save the life of innocent parties, that could be taken into account as a mitigating factor during sentencing.
Probably the most controversial prohibition of torture case is that of Ireland v United Kingdom. In this case the Court held that the UK had not engaged in behaviour that amounted to torture, though they did engage in inhuman and degrading treatment or punishment. The Northern Irish police engaged in five techniques when interrogating prisoners during the Troubles, these included forcing prisoners to stand with their entire weight on their fingertips against the wall, sleep deprivation, food deprivation, and water deprivation. The Irish government appealed this decision, in 2018 the Grand Chamber upheld the Chamber Judgment that torture had not occurred. I personally cannot agree with the Court’s decision. This case is very political. It is very rare that one country will take a case against another.
In Soering v United Kingdom, Soering faced trial for murder in the US, with the possibility of the death sentence. There is an associated obligation under Article 3 on States not to put a person in a position where he or she will suffer such treatment at teh hands of other States. The UK argued that even if he was extradited, it was not definite that he would be subjected to the death penalty. The Court held that the death penalty did not automatically trigger Article 3, but the treatment of death row prisoners did. Death row prisoners have an eight year waiting period, to allow for exhausting of appeals etc, and therefore live in the “shadow of death” everyday. This was an interesting interpretation of Article 3. It definitely stretches the wording to incorporate a matter that would appear to only arise under Article 2.
That’s it for this week! I hope you’ve learned something about Article 3 and its interpretation. There is some controversy surrounding this right, not as much as there is under Article 2. There are a large number of cases under Article 3 ranging from torture to inhuman or degrading treatment. This is particularly topical right now with regards to treatment of Asylum Seekers in Direct Provision Centres. Over 1,400 children are currently in Direct Provision Centres in Ireland. Please take a look at the Irish Refugee Council to learn more about Direct Provision.
Thank you for reading!