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Torture is tricky. Nobody quite knows exactly what it means and the international human rights conventions which do dare to define it fail to speak with one voice. My post will provide the reader with a whistle-stop tour of this rather bleak subject and how it is treated specifically at the level of the European Convention on Human Rights (ECHR). Article 3 provides us with a frugal definition:
‘No one shall be subjected to torture or inhumane and degrading treatment’.
Clearly this leaves much to be desired; but its simplicity is in some ways a virtue. The Convention was once described as a ‘living tree capable of growth and expansion within its natural limits’. As such, what is missing from the definition above has been subsequently fleshed out by the European Court of Human Rights (ECtHR). During the conflict in Northern Ireland, between 1971 and 1975 specifically, the British implemented a policy of extra-judicial arrest and internment of those suspected of involvement with, mainly, the Irish Republic Army (IRA). Ireland v. United Kingdom was a claim brought by Ireland in relation to Britain’s treatment of those detained. They were alleged to have utilised the ‘5 techniques’: forcing prisoners to stand in ‘stress positions’, placing heavy hoods on their heads, subjecting them to loud noise, depriving them of sleep and of nourishment (food and water).
The European Court had the following to say:
‘Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.’
So, there was a violation of article 3, although the five techniques did not amount to torture. Jumping ahead to 1999, in Selmouni v France a man was held by police on drug smuggling charges. His bruised and battered body and mind were examined and deciphered by medical practitioners. A bleak tale of beatings, threats with a blowtorch and sexual humiliation were revealed. The Court felt that this did indeed amount to torture. Their judgement was welcome as they focused on where the power resided, explaining that:
‘[t]he acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him …’
They added that:
‘the ‘minimum severity’ required for the application of Article 3 [is] relative; it depends on all the circumstances of the case.’
The relativity of torture captures the difficulty in attempting to lay down hard-and-fast rules. However, these cases tell us that where the perpetrator is a state official, the victim is inferior, the level of harm is severe in the circumstances and is conducted for a specific purpose, torture is likely to have occurred.
But what about inhumane or degrading treatment? Naturally, as we saw in Ireland v United Kingdom, the level of harm required is lower. In fact, last year’s Bouyid v Belgium made clear that the level of harm can be much lower. Two juveniles were slapped in the face by police officers. The Grand Chamber of the European Court handed down a thought-provoking judgement. They focused primarily on the superior/inferior relationship between the officers and the youngsters. But, even more interestingly they explained that:
‘A slap to the face affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses – sight, speech and hearing – which are used for communication with others’.
The Court’s focus on the face being the apex of individuality and on the power relationship between the officers and their captives highlights a shift towards greater protection of human dignity, but also a broadening of the scope of Article 3 as a whole. This sentiment was captured in Selmouni v France where it was said that acts which were classified in the past as ‘inhumane and degrading treatment’ as opposed to ‘torture’ could be classified differently in future.
All of the cases we have seen so far have involved what are called ‘negative’ obligations. These are the bare bones of Article 3. They simply require that a state refrain from torturing you and nothing more. However, states will sometimes be held accountable where they fail to protect private individuals from the violence of each other. In A v. United Kingdom, for example, the UK violated Article 3 after an English court found that a father-in-law who regularly beat his son with a garden cane was merely ‘reasonably chastising’ him. A violation was also found in Z v. United Kingdom where four adults took their case to court claiming that social services knew that they were being abused but refused to put them into foster care when they were younger. Instead, they simply conducted regular visits. This, the European Court felt, was insufficient.
By way of a conclusion, violence can take many forms. When it is solely between private individuals it will usually be dealt with by the state as mere crime. Where a public official is involved, like in Bouyid v Belgium, the victims right not to be tortured or treated inhumanely may be violated. But governments also have a duty to protect us from other private citizens in some situations, like in Z v. United Kingdom, where social services knew what was happening but failed to respond effectively.