Text Box: Judgments of the European Court of Human Rights Prohibition of torture and inhuman or degrading treatment

60th anniversary of the European Convention on Human Rights

Strasbourg Court´s judgments: Prohibition of torture and inhuman or degrading treatment

On the occasion of the 60th anniversary of the European Convention on Human Rights, during 2010 the Council of Europe is highlighting the case-law of the European Court of Human Rights, with regard to the rights and freedoms the Convention protects. The fight against torture being at the core of Council of Europe´s activities, on 26 June the organisation commemorates the International Day in Support of Victims of Torture.

Article 3 of the Convention, under the heading “Prohibition of torture”, states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Unlike other Convention clauses, it allows for no exceptions. When interpreting this article in its judgments, the European Court of Human Rights has stated that even in the most difficult circumstances, such as the fight against terrorism, the Convention completely prohibits torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned.

The Court has also interpreted that in order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity, and it is necessary to assess the circumstances of the case, such as the duration of the treatment, its physical or mental effects and other factors such as the purpose for the ill-treatment.

In its judgments the Court has considered that “inhuman treatment” occurs when it was premeditated, applied for a hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. On the other hand, it has considered “degrading treatment” existed when it created feelings of fear, anguish and inferiority capable of humiliating and debasing the victims and possibly breaking their physical or moral resistance, or drove them to act against their will or conscience.

The Court, when determining whether a particular form of ill-treatment should be classified as torture, points out that - among other factors - this would be the case when there is a deliberate inhuman treatment causing very serious and cruel suffering, and it is carried out with a purpose. The Court has concluded that to threaten an individual with torture may constitute at least inhuman treatment.

Police questioning - Gäfgen v. Germany

In one of the most recent judgments delivered by the Court, the application had been filed by Magnus Gäfgen, currently in prison after being convicted in 2003 to life imprisonment for abducting and murdering an 11 year old boy. The applicant alleged that he had been subjected to torture during an interrogation when police officers threatened him with ill-treatment in order to make him confess the whereabouts of the victim, and that the ensuing trial against him had not been fair.

In previous proceedings, the German courts had already concluded that the police threats had breached national law and the European Convention on Human Rights, and that his confession during the investigation could not be used as evidence. However they allowed the use of further evidence and a new confession by the applicant to convict him. As a result of the applicant’s allegations and an investigation, the police officers involved in the case were subsequently prosecuted and convicted.

In its final judgment, the Strasbourg Court concluded that the applicant had had a fair trial. The Court, although accepting that the police officers´ motivation had been to save a child’s life, considered they had subjected the applicant to inhuman treatment, falling within the scope of Article 3.

The Court concluded that the German authorities had violated Article 3 because, although they had acknowledged that the policemen had breached the Convention, they had not afforded the applicant sufficient redress. The Court found that the penalties imposed on the police officers for ill-treatment were not severe enough to have a deterrent effect to prevent further violations of similar nature.

Risk of being exposed to torture – Saadi v. Italy

In the case of Saadi v. Italy the Court held that if the decision of the Italian authorities to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention. The applicant, Nassim Saadi, who lived in Milan, claimed to have been sentenced in 2005 in Tunisia, in his absence, to 20 years’ imprisonment for membership of a terrorist organisation, and that if deported, he would be exposed to the risk of being subjected to torture or inhuman and degrading treatment.

The Court considered that applicant belonged to the group at risk of ill-treatment and that there were substantial grounds for believing that there was a real risk that he would be subjected to treatment contrary to Article 3 if deported.

Torture and lack of investigation – Chitayev and Chitayev v. Russia

According to the applicants, Arbi Chitayev and his brother Adam Chitayev, during the hostilities in Chechnya in 2000 between the Russian army and Chechen rebel fighters, state officers searched their home several times. After one of the searches they were detained and interrogated about the activities of the Chechen rebel fighters. The applicants alleged before the Court that they were tortured to force them to make false confessions.

The Court noted that the medical documents drawn up the day after the applicants’ release confirmed the presence of various injuries. Having regard to the applicants’ consistent and detailed allegations, corroborated by the medical documents, the Court concluded that the Government had not satisfactorily established that the applicants’ injuries were caused otherwise than by the treatment they underwent while in detention.  The Court found that the applicants’ suffering was particularly serious and cruel, and amounted to torture, in violation of Article 3.

The Court considered that there was also a violation of Article 3 because the Russian authorities did not carry out a thorough and effective investigation, and violations of Article 5 (right to liberty and security) and Article 13 (right to an effective remedy).

Impunity of perpetrators of torture - Bati and Others v. Turkey

In the case of Batı and Others v. Turkey, the Court found a violation of the right not to be subjected to torture and of the right to an effective domestic remedy of 15 Turkish citizens. In 1996, as part of a police operation against an illegal Marxist organisation, the TKEP/L (Communist Labour Party of Turkey/Leninist), the Istanbul police arrested the applicants and held them for questioning.

The applicants lodged a complaint with the Court alleging they were subjected to several types of ill-treatment during detention. They also complained that the authorities did not investigate the case effectively nor did they ensure that the state agents who had been charged with torture or ill-treatment were tried promptly. The result of this was that the main perpetrators of acts of violence have enjoyed virtual impunity, despite the existence of incontrovertible evidence against them.

Repeated assaults during questioning – Selmouni v. France

In a judgment delivered in 1999 in the case of Selmouni v. France, the Court held that there had been a violation of Article 3 and Article 6 § 1 (right to a hearing within a reasonable time). In 1991 the applicant, Ahmed Selmouni, was held in custody and questioned for four days by police officers in connection with drug-trafficking. Medical examinations showed later that a number of injuries to his body had been caused during his custody.

The Court concluded that while in police custody the applicant had been exposed to physical and mental pain and suffering with the purpose of making him confess the offences he was suspected of having committed. The Court found that the violence committed against him had caused severe pain and suffering and had been particularly serious and cruel, and was considered to amount to torture for the purposes of Article 3.

Mammadov (Jalaloglu) v. Azerbaijan

The applicant, Sardar Jalaloglu Mammadov, commonly known as Sardar Jalaloglu in political circles, was the Secretary General of the Democratic Party of Azerbaijan, one of the opposition parties that considered the presidential elections of 15 October 2003 illegitimate because of alleged falsifications. In October 2003 opposition supporters held unauthorised public demonstrations in Baku, protesting against the results of the elections, which ended with violent clashes with the police.

According to the applicant, after the demonstrations police officers entered his home without a warrant and took him to the Ministry of Internal Affairs where he was charged with “organising public disorder” and “use of violence against state officials” for his alleged role in the clashes. He was allegedly ill-treated. Several days later he was examined by the state doctors who observed injuries on his body. He lodged an application with the Strasbourg Court in 2004.

The Court held that there had been violations of Article 3 as regards the ill-treatment in police custody and the lack of effective investigation; and of Article 13. As to the Government's argument that the applicant failed to present sufficient evidence of ill-treatment by the police, the Court noted that, while the Government disputed the applicant's allegations of ill-treatment, they did not provide any reasonable explanation as to when and how these injuries were caused. The Court also found there have been numerous flaws and omissions in the official investigation, and therefore concluded that no effective investigation was carried out.

For more details on these and other judgments concerning Article 3, please consult the Court's database HUDOC  (http://www.echr.coe.int/echr/en/hudoc ).

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                                                                    Updated: June 2010