Interpretation of Article 3 of the European Convention on Human Rights

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This article describes the interpretation of Article 3 of the European Convention on Human Rights (prohibition of torture ) by the European Court of Human Rights .

text

Legally binding version in English

"Article 3 - Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Legally binding version in French

"Article 3 - Interdiction de la torture
Nul ne peut être soumis à la torture ni à des peines ou traitements inhumains ou dégradants."

Translation into the German language

"Article 3 - Prohibition of Torture
No one may be subjected to torture or inhuman or degrading punishment or treatment."

Interpretation of Art. 3 ECHR by the European Court of Human Rights (ECHR)

Prohibited area

In contrast to the freedom rights of the Convention, Article 3 does not describe an area of ​​protection, but rather prohibits certain behavior with the absolute prohibition of torture and inhuman or degrading treatment. This can also be due to an omission if the state has positive obligations to act. For example, according to the case law of the European Court of Human Rights , member states are obliged to clear up allegations of torture through an effective investigation.

In addition to treatment, Article 3 also mentions the concept of punishment. In the case law of the ECHR, however, no independent meaning has been derived from this, but rather the inhuman / degrading punishment has been viewed as a “treatment” within the meaning of the provision.

Absolute claim

The absolute prohibition of torture (in each of the variants of the offense, i.e. torture, inhuman or degrading treatment) represents a fundamental value of democratic societies. It applies without restriction, even if the state is to ward off acute and considerable dangers (e.g. to protect against terrorism or organized Crime). The lack of immanent limitation regulations can ultimately only be justified with the systematic importance for the legal system as such. The absolute prohibition of torture is a fundamental element on which our legal system is based and the absence of which it would call into question as a whole.

It is part of mandatory international law ( ius cogens ) and is based on human dignity . However, the protection of human dignity can only be effectively guaranteed if one categorically excludes the justification of acts falling under the prohibition of torture from the outset. Actions that intervene in them are fundamentally not amenable to weighing (and thus justification). Article 3 can therefore not be overridden by the member states by treaty, even in national emergencies.

Relevance threshold

Article 3 only prohibits actions that reach a certain degree of severity. The ECHR assesses this on a case-by-case basis. In doing so, he takes into account all circumstances, such as the type and situation of the action, its duration, the physical and mental effects on the victim and their need for protection. This in turn can result from his age, gender or state of health. The purpose of the actions, the underlying intentions and motives are also taken into account.

Treatments that are generally accepted by society, such as the execution of a prison sentence or the imposition of physical exercises during military service, generally do not reach this relevance threshold without the addition of special circumstances.

Since the ECHR interprets the convention as a “living instrument”, ie taking into account current economic and social circumstances, the requirements for the relevance threshold change over time. In the past, this has led to an increase in the level of human rights protection as the ECHR has lowered the requirements for reaching the relevance threshold over time. In 1978 the European Court of Human Rights ruled Ireland g. United Kingdom states that various interrogation methods used on prisoners in Northern Ireland (putting bags over their heads, being forced to stand against a wall with arms outstretched for long periods of time, sleep deprivation, exposure to loud noise, dieting with water and bread) are inhumane treatment, however do not represent torture. In the case decided by the European Court of Human Rights in 2014, Husayn g. Poland was also concerned with interrogation techniques used in secret CIA interrogation centers in Poland (shaving, undressing, wearing diapers while banning the use of the toilet, isolation, putting bags over the head, exposure to loud noise or light, Cold, dieting). In the 2014 judgment, the ECHR classified these interrogation techniques as torture. There is therefore some evidence that he would classify the interrogation methods, judged to be inhuman in 1978, as torture today.

Reaching the threshold automatically violates Article 3 of the ECHR. Nevertheless, for the determination of fair compensation (Art. 41 ECHR) and possibly for the effects on the usability of evidence in criminal proceedings under Art. 6 ECHR, it is relevant to determine whether abuse reaches such a level of severity that torture can be assumed.

The delimitation of inhuman or degrading treatment - torture

The ECHR understands inhumane treatment to be behavior that causes bodily harm or leads to intense physical or mental suffering. When assessing the degree of severity, the specific circumstances are also taken into account, so that deliberate and systematic action, the duration of the treatment and the need for protection of the victim are taken into account. In the Jalloh case, the ECHR classified the forced medical administration of emetics through the nose and through an injection as inhuman in order to secure a plastic package that had previously been swallowed by the person concerned. The police suspected the applicant of dealing with narcotics. Since he did not take the emetics voluntarily, he had to be forcibly fixed on the floor by four police officers in order to enable the measures to be carried out. The applicant, who spoke no German, subsequently vomited up a bag containing 0.2182 grams of cocaine.

The ECHR understands degrading treatment to be behavior that leads to fear, distress or feelings of inferiority which are likely to degrade or humiliate the victim. The treatment does not necessarily have to be intentional, i.e. with the aim of humiliation. However, deliberate action is an aggravating circumstance, in the presence of which the relevance threshold of Article 3 is reached sooner. A racist background also makes things more difficult.

In contrast to inhuman and degrading treatment, accusations of torture are accompanied by additional stigmatization . The differentiation is made on the one hand according to the severity of the abuse. For example, the ECHR has described torture on a number of occasions as deliberate inhumane treatment that causes very serious or cruel suffering. He first posed in 1996 in the Aksoy g. Turkey (December 18, 1996, Az. 21987/93, § 63) found a violation of Article 3 due to torture. The applicant had been hung up by his hands cuffed behind his back for a long time while in custody. On the other hand, the purpose pursued, such as the receipt of a confession or information, serves as a distinguishing feature from inhuman treatment. The ECHR also used the definition of torture in Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Positive duties to act

Article 3 - as well as other articles of the ECHR - results in positive action obligations for the member states in addition to mere omission obligations. On the one hand, there is a procedural obligation to clarify every conclusive accusation of treatment that violates Article 3. The scope of the investigation obligations is the same as under Article 2 of the ECHR. In the Ribitsch g. Austria (4.12.1995, Az. 18896/91) found a violation of Article 3 by the ECHR, since Austria could not clarify the injuries suffered by the complainant in custody. While the duty to investigate initially only extended to cases of abuse by civil servants or other state employees, it has now been made clear that the duty to inform also applies to actions by private individuals.

On the other hand, Article 3 stipulates the material duty to act to prevent torture or inhuman and degrading treatment through effective preventive measures. The member states are obliged to ensure that no one is subjected to such abuse within their sovereign sphere of influence. This includes, among other things, deterrence through the creation of appropriate criminal provisions that enable effective criminal prosecution and punishment of the perpetrators. But also through active victim protection in order to avoid recurrence. For example, the ECtHR affirmed a violation of Article 3 in cases of domestic violence in which the state had not adequately protected the victim from spouses (who had already been convicted for it).

Other sources of international law on the prohibition of torture

Article 1 of the UN Convention against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984) defines torture as

"Any act through which a person is deliberately inflicted with great physical or emotional pain or suffering, for example in order to obtain a statement or a confession from him or a third party (...)."

In contrast to Art. 3 ECHR, the term torture does not automatically include all cruel, inhuman or degrading treatment, as these are mentioned separately in Article 16. The International Covenant on Civil and Political Rights provides for the prohibition of torture and cruel, inhuman or degrading treatment or punishment in Article 7.

swell

  • Decision database of the ECHR last accessed on August 9, 2015
  • David Harris, Michael O'Boyle, Colin Warbrick: Law of the European Convention on Human Rights. 3. Edition. Oxford Univ. Press, 2014, ISBN 978-0-19-960639-9 .
  • Anne Peters, Tilmann Altwicker: European Convention on Human Rights. 2nd Edition. Beck, 2012, ISBN 978-3-406-63216-7 .
  • Francis Geoffrey Jacobs, Robin CA White, Clare Ovey: The European Convention on Human Rights. 6th edition. 2014, ISBN 978-0-19-965508-3 .
  • Frédéric Sudre: Les grands arrêts de la Cour européenne des droits de l'homme. 7th edition. 2015, ISBN 978-2-13-061877-5 .

Individual evidence

  1. ↑ Gäfgen g. Germany, GK, 01.06.2010, Az. 22978/05, § 117
  2. ↑ cf. Chahal g. United Kingdom, November 15, 1996, Ref. 22414/93; G. Germany, GK, 01.06.2010, Az. 22978/05
  3. ↑ cf. Art. 15 para. 2 ECHR
  4. ↑ cf. Ireland g. United Kingdom, Pl, January 18, 1978, Az. 5310/71
  5. ↑ cf. Jalloh g. Germany, GK, 11.07.2006, Az. 54810/00
  6. ↑ cf. Aksoy g. Turkey, December 18, 1996, Az. 21987/93, § 64
  7. ↑ cf. Tyrer g. United Kingdom, April 25, 1978, no. 5856/72, § 30; Ocalan g. Turkey No. 2, 18.03.2014, Az. 24069/03, 197/04, § 101
  8. ↑ cf. Ireland g. United Kingdom, Pl, January 18, 1978, Az. 5310/71, § 181
  9. ↑ cf. Tyrer g. United Kingdom, April 25, 1978, Az. 5856/72; Selmouni g. France, GK, July 28, 1999, Az. 25803/94, § 101
  10. ↑ Pl, January 18, 1978, Az. 5310/71
  11. ↑ July 24, 2014, Az. 7511/13, § 511
  12. ↑ cf. Jalloh g. Germany, GK, 07/11/2006, Az. 54810/00, § 68
  13. ↑ cf. Peers g. Greece, April 19, 2001, Az. 28524/95
  14. ↑ cf. Moldovan and other g. Romania, 07/12/2005, Ref. 41138/98
  15. ↑ cf. El-Masri g. Former Yugoslav Republic of Macedonia, GC, December 13, 2012, Az. 39630/09, § 197
  16. ↑ cf. Ilhan g. Turkey, GC, 27.06.2000, Az. 22277/93, § 85
  17. ↑ cf. Assenov and others g. Bulgaria, October 28, 1998, Az. 24760/94, § 102
  18. ↑ cf. MC v. Bulgaria, 04.12.2003, Az. 39272/98, § 151 - A
  19. ↑ cf. z. B. Opuz g. Turkey, June 9, 2009, Ref. 33401/02; B. g. Moldova, July 16, 2013, ref. 61382/09