HUMAN RIGHTS 4 - ALWAYS PROHIBITED OR “ALMOST” ALWAYS PROHIBITED? PROHIBITION OF TORTURE
Pavel Molek


INSTRUMENTS
¢Literal trailer from reality – where and when?
¢Where are the first instruments?
¢Implicitely:
—U.S. Bill of Rights:
—VIII. „Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.“
—Declaration of the Rights of Man and of the Citizen
—„9. As all persons are held innocent until they shall have been declared guilty, if arrest shall
be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall
be severely repressed by law.“

INSTRUMENTS
¢Explicitly: UDHR:
—„Article 5
—No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.“
—
—Art. 7 ICCPR:
—„No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.“

INSTRUMENTS
¢ECHR:
—„Article 3
—Prohibition of torture
—No one shall be subjected to torture or to inhuman or degrading treatment or punishment.“
¢European Charter:
—„Article 4  Prohibition of torture and inhuman or degrading treatment or punishment
—No one shall be subjected to torture or to inhuman or degrading treatment or punishment.“ –
Konstantinidis?

INSTRUMENTS
—UN Convention against Torture 1984: Committee Against Torture (CAT) - why is it useful to have a
separate procedure for monitoring torture? What is it good for? What states were the inspiration?
—& Optional Protocol to the Convention against Torture (OPCAT) - Subcommittee on Prevention of
Torture (SPT) 1984
—Article 19
—1. The States Parties shall submit to the Committee, through the Secretary-General of the United
Nations, reports on the measures they have taken to give effect to their undertakings under this
Convention, within one year after the entry into force of this Convention for the State Party
concerned. Thereafter the States Parties shall submit supplementary reports every four years on any
new measures taken, and such other reports as the Committee may request.
—

INSTRUMENTS
¢Article 20
¢If the Committee receives reliable information which appears to it to contain well-founded
indications that torture is being systematically practised in the territory of a State Party, the
Committee shall invite that State Party to co-operate in the examination of the information and to
this end to submit observations with regard to the information concerned.
¢Taking into account any observations which may have been submitted by the State Party concerned as
well as any other relevant information available to it, the Committee may, if it decides that this
is warranted, designate one or more of its members to make a confidential inquiry and to report to
the Committee urgently.
¢If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of
the State Party concerned. In agreement with that State Party, such an inquiry may include a visit
to its territory.
¢Article 22
¢A State Party to this Convention may at any time declare under this article that it recognizes the
competence of the Committee to receive and consider communications from or on behalf of individuals
subject to its jurisdiction who claim to be victims of a violation by a State Party of the
provisions of the Convention.

INSTRUMENTS
—European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
1987 (no definition, just procedure connected with Art. 3 ECHR)
—„Article 2
—Each Party shall permit visits, in accordance with this Convention, to any place within its
jurisdiction where persons are deprived of their liberty by a public authority.“
—
¢
¢

INSTRUMENTS
¢Common Art. 3 of Geneva Conventions 1949:
—„In the case of armed conflict not of an international character occurring in the territory of one
of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,
the following provisions:
—(1) Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any
other cause, shall in all circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To
this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
—(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture; …“
—
—

ABSOLUTE OR ALMOST ABSOLUTE?
¢Is it absolute or opened to balancing test?
—Absolute = no limitation, no derogation, no balancing
—No limitation: language:
—„No one shall be subjected to torture or to inhuman or degrading treatment or punishment.“
—No derogation: Art. 15:
—„Derogation in time of emergency
¢1. In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the
extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law.
¢2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 § 1 and 7 shall be made under this provision.“
¢

ABSOLUTE OR ALMOST ABSOLUTE?
¢No balancing….what is balancing?
¢Balancing in proportionality test (example of Grogan):
—Is there a legitimate purpose?
—Necessity (is there alternative measure less intrusive and equally effective?)
—Balancing (costs and gains)
—Ticking bomb dilemma
—ECHR Gafgen v. Germany 1.6.2010 (torture, life and fair trial)
¢

ABSOLUTE OR ALMOST ABSOLUTE?
¢10.  J. was the youngest son of a banking family in Frankfurt am Main. He got to know the
applicant, a law student, as an acquaintance of his sister. On 27 September 2002 the applicant
lured J., aged eleven, into his flat in Frankfurt am Main by pretending that the child's sister had
left a jacket there. He then killed the boy by suffocating him.
¢12.  Subsequently, the applicant deposited a ransom note at J.'s parents' place of residence
stating that J. had been kidnapped and demanding one million euros. The note further stated that if
the kidnappers received the ransom and managed to leave the country, then the child's parents would
see their son again. The applicant then drove to a pond located on a private property near
Birstein, approximately one hour's drive from Frankfurt, and hid J.'s corpse under a jetty.
¢13.  On 30 September 2002 around 1 a.m. the applicant picked up the ransom at a tram station. From
then on he was under police surveillance. He lodged part of the ransom money into his bank accounts
and hid the remainder of the money in his flat. That afternoon, he was arrested at Frankfurt am
Main airport with the police pinning him face down on the ground.
¢14. He was then questioned by M. with a view to finding J. The applicant intimated that the child
was being held by another kidnapper. He subsequently indicated that F.R. and M.R. had kidnapped the
boy and had hidden him in a hut by a lake.
¢15.  Early in the morning of 1 October 2002, before M. came to work, Mr Daschner (D.), Deputy
Chief of the Frankfurt police, ordered another officer, Mr Ennigkeit (E.), to threaten the
applicant with considerable physical pain, and, if necessary, to subject him to such pain in order
to make him reveal the boy's whereabouts. D.'s subordinate heads of department had previously and
repeatedly opposed such a measure. Detective officer E. thereupon threatened the applicant with
subjection to considerable pain at the hands of a person specially trained for such purposes if he
did not disclose the child's whereabouts. According to the applicant, the officer further
threatened to lock him into a cell with two huge black men who would sexually abuse him. The
officer also hit him several times on the chest with his hand and shook him so that, on one
occasion, his head hit the wall. The Government disputed that the applicant had been threatened
with sexual abuse or had been physically assaulted during the questioning. For fear of being
exposed to the measures he was threatened with, the applicant disclosed the whereabouts of J.'s
body some ten minutes thereafter.
¢

ABSOLUTE OR ALMOST ABSOLUTE?
¢ECHR answer to Art. 3: Contrasting the applicant's case to those in which torture has been found
to be established in its case-law, the Court considers that the method of interrogation to which he
was subjected in the circumstances of this case was sufficiently serious to amount to inhuman
treatment prohibited by Article 3, but that it did not reach the level of cruelty required to
attain the threshold of torture.
¢To Art. 6: The Court concludes that in the particular circumstances of the applicant's case, the
failure to exclude the impugned real evidence, secured following a statement extracted by means of
inhuman treatment, did not have a bearing on the applicant's conviction and sentence. As the
applicant's defence rights and his right not to incriminate himself have likewise been respected,
his trial as a whole must be considered to have been fair. Accordingly, there has been no violation
of Article 6 §§ 1 and 3 of the Convention.

DEFINITION OF TORTURE
¢Torture * inhumane * degrading treatment


DEFINITION OF TORTURE
¢United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which came into force on 26 June 1987 Article 1:
¢„1.For the purposes of this Convention, torture means any 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 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 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.“
¢Is it now clear….?

DEFINITION OF TORTURE
¢In Europe – vague definition not to limit ECHR: rather prevention (which two states had troubles
with torture in Europe on a regular basis?)
¢Examples: Aydin v. Turkey – rape in prison (1997), Aksoy – Palestinian hanging (1996), Ireland v.
U.K. – five techniques (1978):
—(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress
position", described by those who underwent it as being "spread eagled against the wall, with their
fingers put high above the head against the wall, the legs spread apart and the feet back, causing
them to stand on their toes with the weight of the body mainly on the fingers";
—(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least
initially, keeping it there all the time except during interrogation;
—(c) subjection to noise: pending their interrogations, holding the detainees in a room where there
was a continuous loud and hissing noise;
—(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
—(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at
the centre and pending interrogations.
—How would you clasify it?

DEFINITION OF TORTURE
¢ECHR clasification:
—„167. In order to determine whether the five techniques should also be qualified as torture, the
Court must have regard to the distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. In the Court’s view, this distinction derives principally from a
difference in the intensity of the suffering inflicted. The Court considers in fact that, whilst
there exists on the one hand violence which is to be condemned both on moral grounds and also in
most cases under the domestic law of the Contracting States but which does not fall within Article
3 of the Convention, it appears on the other hand that it was the intention that the Convention,
with its distinction between "torture" and "inhuman or degrading treatment", should by the first of
these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel
suffering….

DEFINITION OF TORTURE
—Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX)
adopted by the General Assembly of the United Nations on 9 December 1975, which declares: "Torture
constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or
punishment".
—Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and
degrading treatment, although their object was the extraction of confessions, the naming of others
and/or information and although they were used systematically, they did not occasion suffering of
the particular intensity and cruelty implied by the word torture as so understood.
—168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman
and degrading treatment, which practice was in breach of Article 3.“
—
¢

DEFINITION OF INHUMANE TREATMENT
¢Less intensive: Ireland v. U.K. 1978 and „five techniques“…..
¢….but prohibited nevertheless: United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which came into force on 26 June 1987 Article 16, paragraph
1:
— “1.  Each State Party shall undertake to prevent in any territory under its jurisdiction other
acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as
defined in Article 1, when such acts are committed by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.“
¢

DEFINITION OF DEGRADING TREATMENT
¢Humiliation in the eyes of others or yourself – typically public corporal punishments:
—ICCPR: Osbourne v. Jamaica  2000 (Jamaica left Optional Protocol because of those cases)
—In October 1994, the author was convicted by the Westmoreland Circuit court, Savannah-la-Mar,
along with a co-accused for illegal possession of firearm, robbery with aggravation and wounding
with intent. He is serving a sentence of 15 years' imprisonment with hard labour and is subject to
receive 10 strokes of the tamarind switch.
Vyprask

DEFINITION OF DEGRADING TREATMENT
—Tyrer v. U.K. 1978:
¢Mr. Anthony M. Tyrer, being aged 15 and of previous good character, pleaded guilty before the
local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his
school. The assault, committed by the applicant in company with three other boys, was apparently
motivated by the fact that the victim had reported the boys for taking beer into the school, as a
result of which they had been caned. The applicant was sentenced on the same day to three strokes
of the birch in accordance with the relevant legislation.
¢How would you classify it?

DEFINING DEGRADING TREATMENT – CORPORAL PUNISHMENTS
¢„The Court must also recall that the Convention is a living instrument which, as the Commission
rightly stressed, must be interpreted in the light of present-day conditions. In the case now
before it the Court cannot but be influenced by the developments and commonly accepted standards in
the penal policy of the member States of the Council of Europe in this field.
¢The Attorney-General for the Isle of Man drew particular attention to the fact that the punishment
was carried out in private and without publication of the name of the offender. Publicity may be a
relevant factor in assessing whether a punishment is "degrading" within the meaning of Article 3,
but the Court does not consider that absence of publicity will necessarily prevent a given
punishment from falling into that category: it may well suffice that the victim is humiliated in
his own eyes, even if not in the eyes of others.
¢

DEFINING DEGRADING TREATMENT – CORPORAL PUNISHMENTS
¢33. Nevertheless, the Court must consider whether the other circumstances of the applicant’s
punishment were such as to make it "degrading" within the meaning of Article 3. The very nature of
judicial corporal punishment is that it involves one human being inflicting physical violence on
another human being. Furthermore, it is institutionalised violence that is in the present case
violence permitted by the law, ordered by the judicial authorities of the State and carried out by
the police authorities of the State. Thus, although the applicant did not suffer any severe or
long-lasting physical effects, his punishment - whereby he was treated as an object in the power of
the authorities - constituted an assault on precisely that which it is one of the main purposes of
Article 3 to protect, namely a person’s dignity and physical integrity. Neither can it be excluded
that the punishment may have had adverse psychological effects. The institutionalised character of
this violence is further compounded by the whole aura of official procedure attending the
punishment and by the fact that those inflicting it were total strangers to the offender.“

JUVENILE CORPORAL PUNISHMENTS
¢The boundaries are changing:
—Selmouni v. France 1999 (you know part of the story):
—„Having regard to the fact that 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. It takes the view that the increasingly high standard being
required in the area of the protection of human rights and fundamental liberties correspondingly
and inevitably requires greater firmness in assessing breaches of the fundamental values of
democratic societies.“

TREATING PRISONERS
¢Selmouni v. France 1999:
—The police arrested Mr Selmouni in connection with a drug-trafficking investigation.
—Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police
officers against whom he later made a complaint. Having been questioned and taken back to the court
cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department
at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty
department read as follows:
—“Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On
examination, several superficial bruises and injuries found on both arms. Bruises on outer left
side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase
with deep respiration.“
—Description by Selmouni: „In the evening of the same day, when there were fewer staff on the first
floor, I was questioned again by six police officers, who were particularly brutal to me. I was
punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1
a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me
go out into a long office corridor where the officer I presumed was in charge grabbed me by the
hair and made me run along the corridor while the others positioned themselves on either side,
tripping me up. They then took me into an office where a woman was sitting and made me kneel down.
They pulled my hair, saying to this woman ‘Look, you’re going to hear somebody sing’.
—
—
—

TREATING PRISONERS
¢Selmouni v. France 1999:
—„95.  The Court reiterates that Article 3 enshrines one of the most fundamental values of
democratic societies. Even in the most difficult circumstances, such as the fight against terrorism
and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols
Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible
under Article 15 § 2 even in the event of a public emergency threatening the life of the nation.“
—„102.  The Court is satisfied that a large number of blows were inflicted on Mr Selmouni. Whatever
a person’s state of health, it can be presumed that such intensity of blows will cause substantial
pain. …. the marks of the violence Mr Selmouni had endured covered almost all of his body.
—103.  The Court also notes that the applicant was dragged along by his hair; that he was made to
run along a corridor with police officers positioned on either side to trip him up; that he was
made to kneel down in front of a young woman … Besides the violent nature of the above acts, the
Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of
their condition.
—

TREATING PRISONERS
¢Selmouni v. France 1999:
—„104.  The Court notes, lastly, that the above events were not confined to any one period of
police custody during which – without this in any way justifying them – heightened tension and
emotions might have led to such excesses. It has been clearly established that Mr Selmouni endured
repeated and sustained assaults over a number of days of questioning.
—105.  Under these circumstances, the Court is satisfied that the physical and mental violence,
considered as a whole, committed against the applicant’s person caused “severe” pain and suffering
and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the
purposes of Article 3 of the Convention.“
—Does it make a difference for the state and for the applicant?
—Having regard to the extreme seriousness of the violations of the Convention of which Mr Selmouni
was a victim, the Court considers that he suffered personal injury and non-pecuniary damage for
which the findings of violations in this judgment do not afford sufficient satisfaction. It
considers, having regard to its previous conclusions, that the question of the application of
Article 41 is ready for decision and, making its assessment on an equitable basis as required by
that Article, it awards him FRF 500,000.
¢

TREATING PRISONERS
—Peers v. Greece 2001 (Brit in Greek prison, 2 months without windows, claustrophobic, Turkish
toilet, no ventilation….yes…civis europaeus sum!)
—Papon v. France 2001 (Vichy, arrested when aged 88 for 10 years, 2002 released, died 2007)
—New: Vinter v. U.K.: 9. 7. 2013, No. 66069/09, 130/10 a 3896/10, life imprisonment without chance
for release might be violation of Art. 3

MENTAL HARM
¢Explicitely mentioned only by Art. 13 of Arabian Charter 1997:
¢ المادة 13
¢أ- تحمى الدول الأطراف كل إنسان على إقليمها من أن يعذب بدنيا أو نفسيا أو أن يعامل معاملة قاسية أو
لا إنسانية أو مهينة أو حاطة بالكرامة وتتخذ التدابير الفعالة لمنع ذلك وتعتبر ممارسة هذه التصرفات أو
الإسهام فيها جريمة يعاقب عنها،
¢ب- لا يجوز إجراء تجارب طبية أو علمية على أي إنسان دون رضائه الحر.
¢
¢„Article 13
¢(a) The States parties shall protect every person in their territory from being subjected to
physical or mental torture or cruel, inhuman or degrading treatment. They shall take effective
measures to prevent such acts and shall regard the practice thereof, or participation therein, as a
punishable offence.
¢(b) No medical or scientific experimentation shall be carried out on any person without his free
consent.“
¢But in ECHR case law acknowledged too Selcuk and Asker v. Turkey 1998; or Kurt v. Turkey 1998
(mental harm of mother caused by dissapearence of her arrested son)

SPECIFIC SITUATIONS
—Unbearable life conditions: Larioshina v. Russia 2002 (low pension, potentially inhumane….)
—Late conscript in 70 years: Tastan v. Turkey 2008: „31.  La Cour considère que le recrutement et
le maintien du requérant sous les drapeaux dans les circonstances décrites ci-dessus, ainsi que le
fait qu’il ait dû participer à des entraînements réservés à des recrues beaucoup plus jeunes que
lui, alors qu’il avait, quant à lui, plus de soixante-dix ans, ont été une épreuve particulièrement
douloureuse et ont porté atteinte à sa dignité. Ils ont causé une souffrance allant au-delà de
celle que pourrait comporter pour tout homme la contrainte consistant à accomplir le service
militaire, et ont constitué en soi un traitement dégradant au sens de l’article 3 de la
Convention.“
—Intensive discrimination in immigration procedure: African Asians v. U.K. 1973

EXTRADITION AS A RISK OF TORTURE?
¢Art. 3 of UN Convention:
—„1. No State Party shall expel, return ("refouler") or extradite a person to another State where
there are substantial grounds for believing that he would be in danger of being subjected to
torture.
—2. For the purpose of determining whether there are such grounds, the competent authorities shall
take into account all relevant considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.“

EXTRADITION AS A RISK OF TORTURE?
¢Human Rights Comittee: Ng. v. Canada
¢ECHR case law
—Soering v. UK 1989 (murderer not extradited to Virginia because of „death row phenomenon“)
—Dalia v. France 1998 (limits of Soering case law, heroin smuggler extradited to Algeria without
risk of mistreatment)
—D. v. U.K. 1997 (St. Kitts and Nevis)
—Now N. v. U. K. 2008 (Uganda, not terminal stage of HIV)

SAADI - DISCUSSION
¢What is „the rule“ here?
¢To balance or not to balance, that is the question….

EXTRADITION IN EUROPEAN CHARTER
¢„Article 19
¢Protection in the event of removal, expulsion or extradition
¢1. Collective expulsions are prohibited.
¢2. No one may be removed, expelled or extradited to a State where there is a serious risk that he
or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or
punishment.“

INDIVIDUALITY….
¢What is your „room 101“……?