Course 13

Question 1

What is inhuman or degrading treatment?

Answer 1

• Inhuman or degrading treatment or punishment: also sometimes used “cruel” (US constitution):
• Remarkably for decades, the ECHR applied art. 3 without saying what was meant by it.
• Grand Chamber case: Case of Tanase v. Romania (2019): it has to be an intentional act so if it was a mere accident (eg. Traffic accident), that has nothing to do with art. 3 of the European convention.
• Level of severity: a minimal level has to be reached.
  
  • This depends on the circumstances: duration of the treatment, physical and mental effects, the sexes, age, state of health of the victim. Also the purpose of the ill treatment, it is not necessary that the ill treatment must be inflicted with the purpose of hurting an individual but it is a very important element. Generally: when the victim is not in a vulnerable state: eg. People detained who have just arrived = ill treatment.

Question 2

Is there a difference between inhuman treatment and degrading treatment?

Answer 2

• Not so easy to distinguish: inhuman treatment usually entails some actual bodily injury or intense physical suffering = it hurts. Degrading treatment is more about humiliating, doing things that are against human dignity = principle that underlies the whole convention and certainly art. 3 when it is about the prohibition of degrading treatment.

Question 3

What is torture under art. 3?

Answer 3

• Development in the case law, prompted by developments in international human rights law.
• Torture is not simply inhuman or degrading treatment. Under the European convention, there are not really legal consequences attached to notion of torture. There are certain legal consequences attached to torture and to torture only in other human right treaties, but not in article 3.
  
  • Nevertheless, sometimes the court will specify that it is in fact torture = special stigma and it says a lot about that state that has inflicted that treatment. States really want to avoid this.

Question 4

What was the case Ireland vs. UK?

Answer 4

• One of the first cases of the ECHR: techniques that had been used by the British army against the IRA from Northern Ireland: ECHR held that it must be about the degree of intensity of suffering and torture then is ill treatment causing very underlined, very serious and cruel suffering. It’s about the most cruel suffering that you can imagen. That would be torture.

Question 5

What are the elements for an act to constitute torture?

Answer 5

• But torture is more than that: 3 elements for an act to constitute torture in the UN Convention against torture:
  1. Severe pain or suffering = physical or mental suffering.
  2. Ill treatment must be inflicted with a certain purpose = aim plays a role: eg. In order to obtain a confession from that persons. Also ill treatment in order to intimidate. Not only to that person, but also those who are close to that person who might have information.
  3. Acts of torture must be committed by a public official: this is not relevant for art. 3 but the UN convention limits the scope of application to state actors = part of the scope of the protection, scope of the application that is offered.

Question 6

What was the case Selmouni vs. France?

Answer 6

• Case Selmouni vs. France: first time where the European Court could pronounce itself on the issue so interesting to see if they would follow the United nations. This was a case about a drug dealer that was detained. The court noted 2 things:
  1. Acts were sufficiently serious to qualify as torture
  2. The acts had been inflicted upon the applicant in order to obtain a confession = essential element.
• So conclusions from this short overview is that while the European court had a rather restricted view on what constituted torture because of this united nations conventions against torture, it finally adopted a wider definition of what constituted torture is.
• Treatment of vulnerable persons in need of special protection.

Question 7

What are the negative obligations when it comes to art. 3?

Answer 7

The obligation not to commit acts of torture or other ill treatment = ill treatment covers inhuman treatment and torture. This is an absolute prohibition: Article 3 enshrines one of the most fundamental values, ill treatment cannot be justified. So this is not like art. 8 or art. 10 where there are interferences possible when they are provided by law, when there is a legitimate aim and when they are necessary to achieve that legitimate aim. This is not the case for art. 3. Once it has been established = inhuman or degradation torture  article 3 is violated.

• This means: no margin of appreciation because this can only be accepted where a state has choices to be made.
• Cases involving expulsion of people who were suspected of being terrorists and the countries wanted to send them back as soon as possible but the ECHR has developed a case law:
  
  • State cannot remove a person from her own country to another country where person runs a real risk of having to undergo ill treatment prohibited by article 3.
  • Some states try to claim that this not apply to the terrorists because it is their own fault but the ECHR says no: this is an absolute prohibition, regardless of the conduct of the person: states may not violate art. 3 for whatever reason they invoke.

Question 8

What is the ill treatment by state agents?

Answer 8

• Ill treatment by state agents or state bodies: this is the negative obligation of states positive obligation can be by one individual by another individual.
  
  • First category: ill treatment by police and security forces:
• All MS of the Council of Europe are regularly confronted with these issues.
• Case Selmouni vs. France: he said that he had been subjected to various forms of ill treatment, hit, urinated on, kneeled down. He was examined by doctors and there had been signs.
• Court:
  • When someone enters a police office, he will be under control of public authority. If he comes in healthy and enters with injuries = presumption that something has happened while he was under control of the authorities and then it is up to authorities to offer a plausible explanation.
    • Court found here that the facts had been sufficiently proven that there was in fact inhuman and degrading treatment inflicted upon the individual.
• Question: does this constitute torture?
  • Court indeed came to the conclusion that Mr. Selmouni had been subjected to acts of torture.

Question 9

What is the case El Masri?

Answer 9

Another Case: El Masri vs. Former Yugoslav Republic of Macedonia:

• Man who was arrested when he arrived in Macedonia and arrested by the CIA and he was brought to Afghanistan where he was further tortured but it was a complete mistake and they dropped him somewhere in Albania = case is mostly about that secret rendition.
• Also short episode about the ill treatment by police officers in Macedonia.
• European Court: Macedonian authorities knew or ought to know what would happen to mr. Masri when he would be taken over by the American authorities and they did not ask for assurances (how could they as such a little country so theoretical).
  
  • Still violation of art. 3 because this extraordinary rendition outside the legal framework is outside the legal framework.

Question 10

Case Bouyid vs. Belgium?

Answer 10

• Case concerned an allegation by two brothers, one of whom was a minor at the time, that two police officers had slapped them in the face while they were under the officers’ control at their family’s local police station in the district of Saint-Josse-tenNoode (Brussels). Violation of Article 3 in that they had been subjected to degrading treatment Violation of Article 3 as the applicants had not had the benefit of an effective investigation.
• Controversial case: the man is slapped in the face and they bring a case against the investigator and the criminal complaints are discontinued because of the lack of evidence of a criminal offence.
• ECHR: examines the case from the point of view of the substantive obligation of the state not to inflict ill treatment on individuals but also from the point of view from the procedural obligation to investigate an incident and there is an arguable claim that article 3 has been violated.
• Court adopts a very strict attitude: whenever a person is confronted with law enforcements, any use of force that is not strictly necessary by the conduct of the individual concerned, must be considered as diminishing human dignity, and is therefore an infringement of article 3.
  
  • Question here: is the level of severity met in this case? ECHR: any physical violence must be considered a violation of art. 3 when it comes to the public authorities.
  • You always need to check whether the violence has reached the degree of severity normally, unless you are dealing with violence committed by state agents = always a violation of art. 3 = zero tolerance for violence.
• Expectation by ECHR: police officers are sufficiently trained on how to deal with such situations.

Question 11

Case MSS vs. Belgium and Greece:

Answer 11

• Case about an asylum seeker who had entered Europe in Greece and he was sent back by the Belgian authorities to Greece, where his asylum request would have to be examined. He complained against both Belgium and Greece because the conditions there were terrible and also complaint against Belgium because they had exposed him to these conditions. The authorities knew but they were unable or unwilling to do anything or to offer a dignified way of living.
  
  • Court found that he suffered a degrading treatment from the Greek authorities.
• This does not necessarily mean that asylum seekers should receive gracious treatment from the national authorities: case Hunde vs. the Netherlands.

Question 12

Case Hunde vs. the Netherlands?

Answer 12

• About an undocumented migrant who stayed in the Netherlands while he was under the obligation to leave the country: illegal. He complained that he had received zero assistance from the Dutch authorties.
• Court: adopts a different view than in the MSS case: art. 3 does not contain an obligation for states to provide free and unlimited health care to anyone living or staying on the territory. Mr. Hunde refused to leave, there was no obstacle for him to return to Ethiopia.
• The court also noted that if there was a medical emergency, Mr. Hunde would have received received free medical treatment, but such a situation did not arise in this case. So the Court found, that the Dutch authorities did not fall short under their obligations under Art 3.

Question 13

What is the third category of art. 3?

Answer 13

Leading case about overcrowded prison cells where the Court sets out some general principles with regard to average number of square meters of each of these detainees:

• and if that is less than 3 sqm per detainee, then there is a strong presumptions that Art 3 is violated; that this is against the dignity of prisoners, unless there are strong compensating factors.
• If a detainee has a personal space between 3 and 4 sqm, then there must be some aggravating circumstance before the Court will conclude that there is violation of Art 3.
• And when each detainee on average has more than 4 sqm in a cell; detention cell, the presumption is, that Art 3 has not been violated. But of course, there may be still specific elements, that might bring the Court to concluded, that there is violation.

This is now the scheme that has been apply consistently by the European Court in a number of other cases.

Question 14

Case of Bamouhammad v Belgium from 2015

Answer 14

• Very dangerous prisoner who had some various serious psychological problems “Farid Le Fou”: acted very violently and the consequence was that he was transferred from prison to prison.
• Court found that he was not treated, no psychological supervision because he was never long enough in prison to receive protection. And actually the Court noted, that all sorts of expert reports; that this person should not be in a prison; this is the worst thing you can do to him and he will do terrible things as long as he is an prison. So this went completely wrong; the authorities did not look for alternatives. There was here degrading treatment and a violation of Art 3.

Question 15

Clasens vs. Belgium

Answer 15

• Walloon prison and there was a strike in the prison so the prisoners were guarded by soldiers and they could not receive visitors and could also not come out their cells.
• European Committee for prevention for Torture visited Belgium prisons and said this is a horrible situation, we have not seen before in any other prisons. Prisoners are so neglected; they were not looked after. Also Belgian courts had ordered the Belgian state to act but the Belgian minister of justice was unable to act.
• So after weeks an agreement was reached but there was a violation of art. 3: a degrading treatment inflected on the prisoners.
• Belgian students may know, that already before this judgement was handed down, a law was adopted, an act of the 23 of March 2019, which provides for the minimum services to be guaranteed at any moment in prisons and to maintain such a minimum service. The authorities now have also the power to order specific staff numbers to return to their work place.

Question 16

Case MSS vs. Belgium and Greece:

Answer 16

• Mr. MSS was detained in a Greek asylum center and because of the overcrowding in the detention center, Mr. MSS was not treated as one would expect –> violation of art. 3.
• Violation of Greece of art. 3.
• But Court also turned to the violation of Belgium: Belgium ought to have known the conditions so Belgium should have dealt with the asylum request and not send him back to greece = violation of the applicant’s rights under art. 3.

Question 17

Case Khlaifia and Others vs. Italy: Grand Chamber 2016

Answer 17

• About the massive influx of African asylum seekers coming from Tunisia in the aftermath of the Arab spring on an island of Italy but way too little space so they were moved to Palermo and then back to Tunisia.
• Issue about the conditions in Lampedusa and the boats in Palermo. In this case, the Court understood very well the difficulties encountered by the Italian authorities, because of this massive influx of asylum seekers. This does not mean, that the prohibition of ill-treatment does not exist anymore; it is an absolute prohibition. But taking into account the circumstances, the Court found, that neither in the reception center nor on the ship in Palermo the situation was such, that it violated Art 3 of the Convention.

Question 18

Case Soering vs. the UK: 1989

Answer 18

• Death penalty: article 2 exists:
  • There are protocols that tend to abolish the death penalty but there is the issue whether the death penalty where a person is detained or the risk of death penalty in a non-European state = would this amount to ill treatment and prohibited by art. 3.
• First case where the death penalty played a role: Mr. Soering ended up in an American prison where he escaped and he was arrested and extradited to the US but his extradition gave rise to an important judgement of the ECHR.
  
  • Speaks about the death penalty and the human right risks related. It also mentions the obligation of states under art. 3 = expulsion or extradition of aliens. Mr. Soering was effectively extradited to the US, with insurance that the death penalty would not been asked against him. And indeed there was no death penalty.
    
    • Mr. Soering is free now and he still claims he did not commit the murders.
• Extradition of mr. Soering: death row syndrome: it puts a strain on prisons that amounts to inhumane or degrading that could not go further at the time = violation of the right to life.
  
  • If a State sends a person to a state where there is a real possibility of ill treatment = prohibited under the convention: the convention itself obliges the state not to board or extradite this person.
  • First time stated in this case but later repeated.

Question 19

What was the case Vinter vs. UK?

Answer 19

• People sentenced to life-long prison sentences in the UK = “lifers, whole life sentence”, they will never be able to leave the prison, no possibility of an early release.
• They argued that this violates art. 3. Court holds that an irreducible life sentence may be an issue under art. 3: he does not matter anymore because there is no possibility of release.
• Problem here: there was a possibility of release, by a government but it was a purely discretional power (eg. When someone was dying, he could be released to die at home) and the court said this is not enough: there is no real opportunity of being released:
  
  • No clear circumstances under which a person can be released because the minister set himself very strict standards.
  • So, the Court found, that this irreducible life sentence violated Art 3.
• This is for me a significant case, because it shows how important dignity is. These are murderers but they are still humans; every human must be treated with human dignity, this is what characterizes a state that shows respect for human rights; that cares for human beings; that takes into account the fact that murderers may also become citizens that could go back into society and fulfil their role.

Question 20

What was the practice of secret rendition?

Answer 20

• US was after 9/11 very tough on terrorists so when they found a suspect terrorist in European state, they knew about the ECHR and they knew that they could not violate the human rights so they set up a schema of secret renditions renditions implying the cooperation of certain states who were willing cooperate with the United States for some time (a few days, maybe only one day) such a suspect on their territory to allow then CIA people come in to take over to take over that person to put that person on an airplane chartered by the CIA and fly away from the European soil to a country were human were not that much respected, where interrogation technics that were used did not comply with human rights standards so it to get information out of that person.
• Years before the existence of that system was known, human rights organisations and the media that for the first time put out this system of secret rendition. The parliamentary assembly of the Council of Europe was very active in exploring that further. And years later several cases came before the European court where such victims of these activities of the CIA turned themselves against the European States that go operated with the US.
• First one: El Masri v. Former Yugoslav Republic of Macedonia.

Question 21

Case: Paposhvili v. Belgium

Answer 21

• Grand Chamber case: involving a Georgian national who had committed offences of theft. He was declared a person non grata, he had to leave Belgium but at the point that this decision was made, he became seriously ill.
  
  • Medical case of importance: he needed donor stem cell transplant and that would only be possible in Belgium, not in Goergia.
• So: was there an obligation for Belgium not to deport him to Goergia.
  
  • Rule 39 measure = interim measure: In this case the Court asked the Belgian government not to deport mister Paposhvili to Georgia as long as the case was spending.
  • He died before the court could hand down the case but conclusion: if a person is close to die or if that person is in a situation where if he were deported to another country, his state of health would be dramastically reduced = the state could not expulse/export.

Question 22

What are the positive obligations under art. 3?

Answer 22

1. Positive obligations of a substantive nature: Protect an individual individual against ill-treatment by the state but most of the time ill-treatment by private individuals. A state is not directly responsible for what a private individual does but a state has a reasonability to prevent that private individuals will inflict ill-treatment on other individuals. How is such prevention / protection guaranteed?
   
   • Effective legal framework, effective criminal law provisions and an equally effective enforcement machinery: some acts are so grave that there needs to be criminal sanctions available.
   • Sometimes it appears in cases that are being brought before the European Court that certain acts that can be qualified as ill-treatment are not falling under criminal law. That there is a gap in criminal law and that then may indicate that the state did not fulfil its positive obligation under article 3 of the Convention.
2. Procedural obligations

Question 23

Case O’Keeffe v. Ireland: 2014?

Answer 23

• Grand Chamber case about sexual abuse in 1970’s catholic schools in Ireland by the principal and Ms. O’Keeffe did not realize at the time what was going on but other children had complained and the school authorities were aware.
• She obtained a compensation but the Irish court held that the state itself was not responsible for what had happened because they were not responsible for what happened in the catholic schools.
• European Court in 2014: it was the responsibility of the state to protect the integrity of the children in schools = positive obligation:
  
  • Question: was the protection enough that was offered by the state.
  • Court looked at the legal framework and they found that everything was in control of the school itself –> ECHR said this was a shortcoming: system system that continued without a possibility for the state to be duly informed so that it could take effective action. So, no mechanism of detection of what is going on in a private institution and therefore a violation of article 3 of the convention.

Question 24

the case Opuz v. Turkey

Answer 24

• In some more is needed than only a legal framework: one can expect preventie operational measures.
• Domestic violence with art. 2 and 3: authorities knew that there was a danger and they did not take enough action, did not take the complaint seriously.
• It has inspired the MS of the Council of Europe to draft a convention on the projection of in particular women against domestic violence. “The Istanbul convention.”
  
  • A convention that is in fact codifying the case-law of the European court. Most member states of the Council of Europe find that these is a very good convention (They have ratified).
  • There are now a few states who object to a specific article in the Convention of Istanbul arguing this is imposing up on us a certain view. How to see women in society and how to see the relationship between men and women. It has not corresponded to our views. Therefore, we do not want to ratify this convention (Eastern European states).

Question 25

What is the procudural obligation for positive obligation under art. 3?

Answer 25

* Obligation for an effective investigation: If and when an incident arguably an incident of ill-treatment of an individual has occurred. In that case – because this is a serious act, there is an obligation under the authorities to investigate what has happened & if they found that ill-treatment has taken place, to take measures against the perpetrators of these acts.

Question 26

What is meant by an "effective investigation"?

Answer 26

* The investigation required under article 3 is different from the investigation required under article 2. It must be an effective investigation. 1. Authorities must act under their own motion: the acts are so serious that the criminal investigation must immediately be opened. 2. The investigation must be effective which means in the first place that it must be an adequate one = the investigation must allow for an investigation of all the relevant elements, not only limited to the direct perpetrator. All the circumstances must be investigated. Independent investigators from the suspects: really important when it comes to acts commited by state agents. 3. Degree of public scrutiny: that in any event the victim itself must be able to participate to a certain degree in investigation 4. Requirement of promptness: immediate reaction and also reasonable expedition =\> the investigation itself must be done with the necessary expedition.

Question 27

Does the requirement of an effective investigation extend to the trial stage?

Answer 27

* Yes: the proceedings as a whole have to be effective: the authority may not give the impression that perpetrators will remain without punishment: A situation of impunity must be avoided. So, if there has been a trial & if the perpetrators are acquitted, although all the evidence is on the table. Or they are found guilty but receive ridicules sentence, then the court will also say: ‘this is not an effective investigation. It did not end in an effective way.’

Question 28

How do we prevent ill treatment?

Answer 28

* Prevention is always better than trying to cure something that has occurred. That is something that within the Council of Europe was very quickly realised and for that reason a separate convention has been adopted =\> European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. * Adopted in 1987: specific independent committee of experts: the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

Question 29

What does the CPT do?

Answer 29

* Tries to prevent ill-treatment: often occurs where people are depriced of their liberty: Prisons, places of detention, of illegal migrants’ places, institutions where psychiatric patients are detained. * CPT can visit those places (often the states are warned). They make a report and the state then gets the possibility to reply to the report and often they are published. * Does this help? Yes! naming and shaming is something states really dislike. * Also used by the European Court as evidence in individual cases. * CPT does not examine complaints but it can describe in a general way what is wrong with a certain place. CPT has also developed some standards for the conditions of detention of persons deprived of their liberty. * Mursic case: CPT was much more than the European Court so the CPT was a little unhappy.

Question 30

What is the difference between the CPT and the European court?

Answer 30

* Difference in roles: CPT makes recommendations. * European Court hands down judgements that are binding for the states.

Question 31

What is the system at the UN level against torture?

Answer 31

* The same system exists also at the UN-level where you have the Convention against Torture. And then an optional protocol to that Convention, the so- called sub-committee on the prevention on torture etc etc. This acts very much like the European Committee for the Prevention of Torture. * But what is important in the UN Convention? That it also obliges instead of ratified this optional protocol, to set up a national organ, to play the same role as the International Committees to go and inspect places of detention, to view what is going on. There are not too many states that are party to this optional protocol. Some of them refused to do that precisely because of this obligation to set up a domestic committee to inspect prisons…