JUR 5710 Institutions and Procedures

1. JUR 5710 Institutions and Procedures Prohibition of Torture Maria Lundberg, NCHR

2. Prohibition of Torture • ”No one shall be subject to torture or to inhuman or degrading treatment or punishment” - Art. 3 ECHR (cf. Art. 7 ICCPR “or to cruel, inhuman…. In particular, no one shall be subject without his free consent to medical or scientific experimentation.” ) Maria Lundberg, NCHR

3. Deprivation of liberty • “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” - Article 10.1 ICCPR • The Human Rights Committee refers to a number of UN standards applicable to those deprived of their liberty (Gen. Comment No 21, para. 5) • “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law » - Article 5.1 ECHR • “…The Committee shall by means of visits, examine the treatment of persons deprived of their liberty with a view of strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.” – Article 1 European Conv. for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Maria Lundberg, NCHR

4. Prohibition of Torture • Absolute nature • No limitations • No derogations – see Art. 15 ECHR and Art. 4 ICCPR, • No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. (Art. 2.2 UN Conv. Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT)) • Humanitarian law (Common Art. 3.1 (a) of the four Geneva Conventions, 1949) • International Criminal Law (Art. 7.1(f) – Crimes against humanity, Art. 8.2(a)(ii) – War crimes, Statute of the International Criminal Court, 1988 ( ICC)) • The principle of non-refoulement (Art. 3.1 CAT; cases ECHR) Maria Lundberg, NCHR

5. A fundamental value • This absolute prohibition of torture and of inhuman or degrading treatment shows that Article 3 (art.3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. (Soering, Judgment 7 July 1989, A.161, para 88). • Its purpose is to protect both the dignity and the physical and mental integrity of the individual. (CCPR General Comment 20, para 2) Maria Lundberg, NCHR

6. A fundamental value • Soering cont. para. 88: • It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed Maria Lundberg, NCHR

7. Sources • Treaties • ICCPR • CAT (UN, 1984) • Optional Protocol to CAT (UN, 2002) • ECHR • European Conv. For the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, (C of E, 1987) • The Inter-American Convention to Prevent and Punish Torture, (OAS, 1985) • Customary law? • Article 38.1(b) “a general practice accepted as law“ • Jus cogens? Article 53 VCLT Maria Lundberg, NCHR

8. Definition (1) • Treaty based - CAT (UN, 1984), Article 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. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application Maria Lundberg, NCHR

9. Definition (2) • Art. 7 ICCPR (CCPR General Comment 20, paras. 5-7): • No definition – Art. 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering. • Corporal punishment • Prolonged solitary confinement • Death penalty carried out that cause the least physical or mental suffering (Charles Chitat Ng v. Canada (Comm. 469/1991), paras. 16.3 and 16.4) • Medical or scientific experimentation without the free consent Maria Lundberg, NCHR

10. Definition (3) • ECHR – No definition • Torture is never justifiable • Threshold: • As was emphasised by the Commission, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. 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, etc.(Ireland v. the United Kingdom, Judgment 18 January 1978, Ser. A. 25, para 162) Maria Lundberg, NCHR

11. Definition (4) • ”It is plain that there may be treatment to which all these descriptions apply,…The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, which, in the particular situation, is unjustifiable. The word ”torture” is often used to describe inhuman treatment which has a purpose… and it is generally an aggravated form of inhuman treatment….be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.” (Denmark, Sweden, Norway and the Netherlands v. Greece, Report of 5 November 1969, Yearbook XII (1969), p. 186). Maria Lundberg, NCHR

12. Definition (4) • The five techniques ... they caused, if not actual bodily injury, at least intense physical and mental suffering to the person subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment .... The techniques were also degrading since they were such as to arouse their victims’ feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance. (Ireland , Judgment, para. 167) Maria Lundberg, NCHR

13. Definition (5) • Physical and mental suffering: • [T]he infliction of mental suffering by creating a state of anguish and stress by means other than bodily assault (Greek case, Commission p. 461). • Provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 may itself be in conflict with that provision. Thus, to threaten an individual with torture might in some circumstances constitute at least “inhuman treatment” (Campbell and Cosans v. the United Kingdom (Appl. 7511/76; 7743/76), Judgment 25 February 1982, para. 26). Maria Lundberg, NCHR

14. Definition (6) • ”As a result, she has been left with the anguish of knowing that her son had been detained and that there is a complete absence of official information as to his subsequent fate. This anguish has endured over a prolonged period of time.” (Kurt v. Turkey (Appl. 24276/94), Judgment 25 May 1998, para. 133; see also para. 134) • A mother of the victim of a human rights violation (refererred to practice of the HRCmmttee) • Authorities gave no serious consideration to her complaints • Prolonged period of time of anguish • A victim of complacency of the authorities in face of her anguish and distress (para. 134) Maria Lundberg, NCHR

15. Never justifiable but circumstances decides… • It appears from the testimony of a number of witnesses that a certain roughness of treatment of detainees by both police and military authorities is tolerated by most detainees and even taken for granted (...). This underlines the fact that the point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive, varies between different societies and even between different sections of them.(Denmark, Sweden, Norway and the Netherlands v. Greece, Report of 5 November 1969, Yearbook XII (1969), p. 501). Maria Lundberg, NCHR

16. Positive obligations • Protection against torture • State: The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture (Aksoy v. Turkey (Appl.21987/93), Judgment 18 December 1996, para. 98) Maria Lundberg, NCHR

17. Positive obligations • Private parties: Z and others v. The United Kingdom (Application no. 29392/95), Judgment 10 May 2001, para. 73: • The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the UnitedKingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the UnitedKingdom, Judgment of 28 October 1998, Reports 1998-VIII,  pp. 3159-60, § 116). Maria Lundberg, NCHR

18. Positive obligations • ICCPR: • CCPR General Comment 20, paras 13-15: • Penalizing • Procedural rights • Amnesties are incompatible Maria Lundberg, NCHR

19. Extraterritorial effect • Art. 7 ICCPR (CCPR General Comment 20, para. 9): : Not expose persons to the danger of torture, etc upon the return to another country by way of extradition, expulsion, or refoulement • Charles Chitat Ng v. Canada (Comm. 469/1991), para. 14.1 “whether by extraditing Mr. Ng to the [US], Canada exposed him to a real risk of a violation of his rights under the Covenant” and para 14.2 Maria Lundberg, NCHR

20. Extraterritorial effect • Soering, para. 90 • (See also Chahal v. The United Kingdom (Appl. 22414/93), Judgment of 15 November 1996) • not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. • a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) (see paragraph 87 above). • Para. 91 • hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country Maria Lundberg, NCHR