Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?

1 Introduction: The Scope of Article 3

The brevity of Article 3 of the European Convention on Human Rights² (ECHR or `the Convention'), which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, masks the volume and variety as well as the complexity of the issues engendered by its terms.³ Of course, this is not unusual for a treaty which sets normative standards. It is to be expected that skeletal norms will be fleshed out through subsequent state practice, the adoption of more specific treaties such as the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,⁴ and especially judicial elaboration.

Through judicial elaboration it has been established that the three broad areas of prohibition in Article 3 are distinct but related. According to the Commission of Human Rights in the Greek Case,⁵

It is plain that there may be treatment to which all these descriptions⁶ apply, for all torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable.

The word `torture' is often used to describe inhuman treatment which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.⁷

In the exercise of their supervisory jurisdiction involving Article 3,⁸ the Court and the Commission of Human Rights have dealt with a variety of matters which could not have been predicted by the architects of the Convention.⁹ However, the nature of the subject-matter alone is not enough to bring ill-treatment within the scope of Article 3. Ill-treatment must attain a minimum level of severity in order to trigger the provision's application. Inevitably, the threshold is relative. The Court has held that it `depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim'.¹⁰

The infringement of Article 3 can involve a wide range of acts, from those which humiliate the victim to acts of extreme brutality. The distinction between the three categories of infringement identified in Article 3 is useful for the purpose of applying the appropriate label to a particular form of abuse. It may also affect the amount of compensation awarded under Article 50.¹¹ Nevertheless, all forms of ill-treatment which fall within the scope of Article 3 are prohibited with equal force no matter which end of the spectrum they fall. It covers physical as well as mental ill-treatment¹² in both official and private contexts.¹³ However, `torture' has been isolated as a specific form of infringement which involves not only intense suffering but also a purpose, such as extracting information or a confession or subduing a detainee's resolve.<sup>14</sup> This emphasis by the Commission on `a purpose, such as the obtaining of information or confessions ...' may have contributed to the confusion as to whether torture as such (vis-à-vis other forms of ill treatment) can take place in an unofficial (non-institutional) context.¹⁵ The subject has not generated any significant debate, although there is a consensus of opinion, at least within the context of the ECHR to the effect that a narrow and limited interpretation is unhelpful. According to one author: `Provided that the sadistic infliction of suffering can be regarded as being for a purpose, this additional requirement probably makes no difference in practice.'<sup>16</sup> This unimportance of an official or institutional purpose to trigger a breach under Article 3 would seem to be borne out by the Court in its view that the distinction between torture and inhuman and degrading treatment `derives principally from a difference in the intensity of the suffering inflicted'.¹⁷ Similarly, in recent consistent line of juridical thinking, the Commission has indicated unequivocally that the infliction of pain and suffering which is contrary to Article 3 is unacceptable `whoever were to inflict the punishment, be it parent or teacher'.¹⁸

2 Convention for the Protection of Human Rights and Fundamental Freedoms 1950, text reprinted in I. Brownlie, Basic Documents on Human Rights (1992), at 236.

3 See F. G. Jacobs and R. C. A. White, The European Convention on Human Rights (1996), at Ch. 5.

4 Text reprinted in Brownlie, supra note 1, at 383. See further Evans, `The European Convention for the Prevention of Torture: Operational Practice', 41 (1992) ICLQ 590; Evans and Morgan, `The European Convention for the Prevention of Torture: 1992-1997', 46 (1997) ICLQ 663.

5 12 (1969) YECHR.

6 That is, `torture or inhuman or degrading treatment or punishment'.

7 Ibid, at 186. Similar elaboration can be found in Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the text of which is reprinted in Brownlie, supra, note 1, at 38.

8 See further Addo and Grief, `Is There a Policy behind the Decisions and Judgments Relating to Article 3 of the European Convention on Human Rights?', 20 ELRev. (1995) 178.

9 Article 3 has covered the following:
a) ill-treatment in custody (Tomasi v. France, Judgment of 27 August 1992, Series A, No 241; (1993) 15 EHRR 1);
b) detention (Application No. 8463/78, Kröcher and Möller v. Switzerland (1982) 26 D&R. 24);
c) corporal punishment (Tyrer v. United Kingdom, Judgment of 25 April 1978, Series A, No. 26; 2 EHRR 1; Applications Nos. 9114/80, 9403/81 and 10592/83, Three Corporal Punishment Cases v. United Kingdom, (1987) 30 YECHR 84);
d) immigration and refugees (Application No. 4626/70, 35 East African Asians v. United Kingdom (1979) 13 D&R. 5, Cruz Varas v. Sweden, Judgment of 20 March 1991, Series A, No. 201; (1992) 14 EHRR 1);
e) extradition (Cruz Varas v. Sweden, loc. cit.; Soering v. United Kingdom, Judgment of 7 July 1989, Series A, No. 161; (1989) 11 EHRR 439, Chahal v. United Kingdom, Judgment of 15 November 1996; (1997) 23 EHRR 413); and
f) HIV and AIDS (D v. United Kingdom, Judgment of 2 May 1997; (1997) 24 EHRR 423).

10 Ireland v. United Kingdom, Judgment of 18 January 1978, Series A, No. 25; (1978) 2 EHRR 25, para. 162.

11 Compensation for damage is awarded on an equitable basis. See e.g. Tsirlis and Kouloumpas v. Greece, Judgment of 29 May 1997.

12 See D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (1995), at 61 and the cases referred to therein.

13 For ill-treatment in an official context, see Ireland v. United Kingdom, supra note 9, and Tomasi v. France, supra note 8; in a private context, see Costello-Roberts v. United Kingdom, Judgment of 25 March 1993, Series A, No. 247-C; (1995) 19 EHRR 112.

14 See the definition in the Greek case, supra note 4, at 186 and also the Report of the Commission in Application No. 5310/71, Ireland v. United Kingdom, 25 January 1976, Series B, No. 23-I, at 388.

15 Indeed, an analogous definition in Article 1(1) of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1984) defines torture as severe pain and suffering ... "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".'

16 Harris, O'Boyle and Warbrick, supra note 11, at 60.

17 Ireland v. United Kingdom, supra note 9, para. 167.

18 See the Report of the Commission in Y v. United Kingdom in Series A, No. 247-A; (1992) 17 EHRR 238, para. 44 and Application No. 25599/94, A v. United Kingdom, Report of the Commission adopted on 18 September 1997, para. 40.

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