European Human Rights Protection

Prohibition of Torture

HP: They want to find out where are placed some bombs for a terroristic attack. The only way for the authority is to obtain the information from the terrorist. Even in this case, torture is absolutely intolerable from the strictly legal point of view. The Supreme Court of Canada consider possible some exceptions in extreme cases.

Art 3: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Prohibition of torture: jus cogens

This article is very general, and the court at the interpretative level have to figure it out. 1994 > UN Torture Convention: binding only for the state which had ratified it but it is normally used like a guidance. This definition is limited in comparison with the idea of torture which prevails at the international level.

Article 1: 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.

There is an internal conflict, civil war, the definition of "Public officer" cover the faction which have control of a given territory. Torture can be imputed to all the factions, not only to the official government of the state.

Art 3 Eu Convention on HR > the definition of torture is the one described by the Torture Convention, but it can be committed also by private citizen.

Inhuman or degrading treatment> when condition of people do not respect the minimum standard establish by the Court (like no electricity, prison overcrowded, no healthy conditions).

Torture is higher pain, those treatment cause less pain but are still under the standard.

Inhuman treatment: determines physical suffering

Degrading treatment: psychological suffering

Punishment: when it is not proportional to the crime committed

The court does not distinguish and usually they say only that art 3 is violated. Since torture imply an intense level of suffering, the compensation should be higher.

Art 4> slavery

and force labour, sometimes those two are very similar and it can be very difficult to distinguish between them. The rights which must be guaranteed also in time of emergency are art 2, 3, and 4 paragraph 1, so in time of public emergency slavery continue to be prohibited while force labour can be practice by the states. So it is important to distinguish between the two.

Art 3 is interrogable in this entirety. The only practical indication between torture and degrading treatment is the compensation. Since torture imply an intense level of suffering, the compensation should be higher, but it depends on the cases.

6. CASE IRELAND V THE UNITED KINGDOM

• Partition of Ireland in 1921 – Six predominantly Protestant counties became a part of the UK.
• Catholic minority were victims of unequal treatment – campaigned for civil rights.
• Protestant/Unionist/Loyalist community identify as British.
• Catholic/Nationalist community identify as Irish, want Irish

• Paramilitary groups (IRA, UVF) fighting in Northern Ireland, mainland UK and Ireland.
• Applicant government (Ireland) wanted confirmation of the Commission's findings which stated that there had been practice of torture by the British Army and the Royal Uslster Constabulary.
• The British Army and Royal Ulster Constabulary arrested and interrogated those suspected of being involved with IRA activity.
• Interrogation were very one-sided. Focus almost solely on the IRA, not the UVF or Unionist paramilitaries.
• Complaint by the Irish Government concerned the extrajudicial powers used by the British and RUC in arresting and interrogating potential suspects and the five methods used. The suspects were then interned in prisons without trial.
• The five methods used were: wall standing, deprivation of sleep, deprivation of food and drink, hooding and subjection to noise. This was referred to as 'interrogation in depth'.

did not contest these claims. 24The Irish Army was vert well known at the time, it was considered like a terrorist group by the British and like a Liberation Army by the Irish.

The Court decided:

• Commission said there was elements of 'inherent bias' in Northern Ireland in favour of one community – the Unionists/Protestants.
• Medical findings became the most crucial evidence, because witnesses on behalf of the suspects and victims were deemed to not be appropriate.
• Operations of interrogations in depth led to the obtainment of a significant amount of intelligence.
• Where is the line between torture and inhuman treatment? Ill treatment must have a 'minimum level of severity', whether it be physical or emotional/mental.
• There can be no derogation from Article 3 – stated in Article 15, paragraph 2.
• Respondent government guilty of practicing 'inhuman and degrading treatment' but the five techniques used did not

amount to torture.

Conclusion of the Court: the five techniques did not amount to torture but to inhuman and degrading treatment, the treatments are not of the intensity of torture.

Paragraph 167 > The Court states that the distinction between torture and the other inhuman treatments derive from the difference of the suffering inflicted. Torture is a form of inhuman treatment characterized by a particular high intensity of the suffering.

7. CASE REZNIVES VS ROMANIA

It is about the treatment of detained people in prison. The standard are high and this treatments have to be consistent with the HR.

Complains> overcrowding in the cells, inadequate sanitarian facilities, lack of hygiene, poor quality foods all under the standard of the art 3.

Sometimes there are some structural problems in the countries, which characterize the situation of alle the prisoners, and when this happens, the Court makes recourses to the “pilot judgment procedure”.

PILOT JUDGEMENT PROCEDURE> when there

There are many claims about the same situation, the violation is suspended for some time and the respondent state has to take some measures to remove the structural problems, such as the reform of the prison system. If the state complies within the time set by the Court, there will be no violation. If the state does not act, then the Court will proceed to evaluate all the claims against the state.

This procedure is just a way to give the state the possibility to find a solution to a recurrent problem.

8. CASE SOERING V UNITED KINGDOM

Here is the part on the merit.

The Court found a potential violation of article 3, the violation involves a potential victim, very likely to be a victim if the UK decides to extradite him.

Violation of art 3 not for the death penalty but for the period in the death row, waiting for death, and it was considered inhuman and degrading treatment by the Court, due to the fragile mental condition of Soering.

> First case: Art 3 applied extraterritorial in the