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Article III
Teaching Block II
QUESTION 1 – TORTURE AND INHUMAN
OR DEGRADING TREATMENT
• Ireland v UK 1978
• “[The] assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age
and state of health of the victim.”
MINIMUM LEVEL OF SEVERITY
• Torture
Special Stigma
• Inhuman Treatment
• Inhuman Punishment
• Degrading Treatment
• Degrading Punishment
Threshold
• Definition?
• Not in Article 3
• The Greek Case 1969
• The purpose
• “[Torture] is generally an aggravated form of inhuman treatment”
• Ireland v UK 1978
• “deliberate inhuman treatment causing very serious and cruel suffering.”
• Special stigma
• Criteria: duration/physical and mental effect/victim’s age/sex/health
HUMAN DIGNITY
• the Convention prohibits in absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the conduct of the person concerned.
• A slap […] by law-enforcement officers on persons under their control, highlights the
superiority and inferiority which by definition characterise the relationship between the former
and the latter.
• Any interference with human dignity strikes at the very essence of the Convention.
BOUYID V BELGIUM
• Dissenting opinion:
• There are forms of treatment which, while interfering with human dignity, do
not attain the minimum level of severity required to fall within the scope of
Article 3
YOUSIF V COMMISSIONER OF POLICE FOR
THE METROPOLIS [2016] EWCA CIV 364
• Iraqi refuge with mental disorders, arrested for “road rage”, Stated
records of suicide attempts.
• Moved naked – with arms behind his back with bare min use of force.
• Held: No violation.
• On Bouyid:
• Bouyid involved the culmination of a campaign; in those circumstances,
deliberate police misbehaviour continuing that campaign, not even
remotely justifiable as necessary but rather to humiliate and
debase which otherwise may not have reached the threshold of
severity.
ALSERAN V MINISTRY OF DEFENCE [2017]
EWHC 3289 (QB)
• Various forms of ill-treatment, some of which violated Art 3. One incident did
not; kicks and blows were inflicted on Mr Alseran at the time of his capture.
• On Bouyid:
• It would not be consistent with the nature and status of article 3 to treat any
unlawful use of force by a state agent, however minor, as a violation of the right
which it protects.
• Court also mentioned that regard must be had to the context in which the ill-
treatment was inflicted: The context was a war.
INHUMAN TREATMENT
• Ireland v UK 1978
• Likely to cause ABH or intense physical/mental suffering
• Premeditated and intentional
• Applied for long periods of time
If the states owes an obligation to avoid deprivation of material needs (in M.S.S
case through Reception Directive)
Human dignity is key in this context to capturing the way in which material
deprivation engages Art 3.
QUESTION III: CUSTODY AND
DETENTION
PROBLEM QUESTIONS- GENERAL STRUCTURE
• Preliminary points
• Is the respondent a PA?
• Is there a “Victim”?
• Did the alleged breach occur within the “Jurisdiction”?
• Can the relevant time limits be satisfied?
• Substantive Points
• Is the relevant Article engaged?
• Is the Article breached (i.e. is what occurred a breach of one or more of the obligations in
the Article)?
• Obligations are negative/positive/procedural
• Can the breach be justified?
POSITIVE OBLIGATION: SPECIAL
PROTECTIVE MEASURES
• Did the authorities know (or ought to have known) of a real and immediate
risk that an identified individual would be subject to torture, inhuman or
degrading treatment?
• Did the authorities fail, within the scope of their powers, to take reasonable
measures to provide effective protection against acts of ill-treatment?
• Complete sensory isolation, coupled with total social isolation, can destroy the
personality and constitutes a form of inhuman treatment which cannot be justified
by the requirements of security or any other reason
• Solitary confinement will not though, of itself, constitute inhuman treatment where
this done for security reasons and the person still has social contact with others.
• Depends on the particular conditions, the stringency of the measure, its duration,
the objective pursued and its effects on the person concerned
Cases:
• Ramirez Sanchez v. France
• Shahid v. Scottish Ministers (Scotland), [2015] UKSC 58
• X v.Turkey (no. 24626/09)
ACCESS TO HEALTH CARE
Example;
• R (on the application of BA) v The Secretary of State for the Home Department [2011] EWHC 2748
• R (On the Application of S) v Secretary of State for the Home Department [2011] EWHC 2120
• R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC
979
• R (on the application of MD) v Secretary of State for the Home Department [2014] EWHC 2249
SANITATION IN PRISON
Decision in regard to Article 3 was not founded merely on the conditions which
prevailed in Prison Barlinnie, Glasgow where the petitioner had been detained,
but upon the whole circumstances as they had affected the petitioner,
including the physical and mental effects and the state of his health.