Article 3, the most precise article of the convention reads that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Within this short article neither the definition of torture or inhuman or degrading treatment or punishment is given nor does the article provide the exact limits with us to define the torture and other forms of mal-treatment. On the other hand article itself provides an absolute right in which no derogation is permitted even in the war times.[1] Simply “No One” generalization while encompasses everyone, neither does exclude any matters nor any kind of necessity or circumstances. Thus in one hand the nature of article 3 is open ended in the terms of answering what constitutes torture or other forms of mal-treatment, on the other hand it is absolute and specific in the terms of providing absolute guarantee to those it protects. These two important features of the article 3 provide the European Court of Human Rights (Hereafter the Court) with a very broad sense of discretionary interpretation power in the application of article. It’s the Court’s judicial discretion determines the standards and criteria for what constitutes torture or other forms of ill-treatment.
In regard to article 3, The Court has developed a very comprehensive case law. The Court’s case law is the primary source for the analysis of Court’s interpretation of torture and other forms of ill-treatment. In such analysis however an inconsistency easily may be noticed. The Court itself has recognised this fact in the Selmouni v. France case by the reading that “Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future.” [2]
However such inconsistency should not be understood as a result of lack of limited and narrow article on the subject. On contrary, this inconsistency may be the inevitable and the positive result of constantly changing definition of nature of the article and as a result the most significant indicator of the dynamic nature of the Court’s interpretation. Therefore the inconsistency in the Court’s interpretation while is the result of a pragmatic and practical approach of the Court to enable the article to be workable and functional to cope with its changing and difficult nature, but also is the most important proof to show us how the convention is a living instrument.
DYNAMIC NATURE OF ARTICLE 3
Article 3 reads mainly four types of abuses: torture, inhuman treatment, degrading treatment and degrading punishment. That is the article deals with variety of wide range of acts those from Palestinian hanging to corporal punishment, from rape to poor detention conditions. In the article 'degrading treatment or punishment' is the most general and 'torture' the most specific form of abuse.[3] In regard to torture the Court, still not so specific, has put forward some main standards. Beyond all torture should involve very intense suffering and also intention. The Court defined torture as “a deliberate inhuman treatment causing very serious and cruel suffering” [4]
However the dividing line between torture and inhuman and degrading treatment and degrading punishment is so indefinite. Determination of either an act constitutes torture or in human or degrading treatment depends on variety of conditions. Court’s case law in regard to this difference provides that;
“The Court also recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.”[5]
For example in the Price v. UK case the detention conditions for an applicant who is four-limb deficient as a result of phocomelia and also suffers from problems with kidneys, is constituted degrading treatment contrary to Article 3, although Court also stated in its judgement that `there is no evidence in this case of any positive intention to humiliate or debase the applicant`.[6] There is no doubt that without any evidence for the intention to humiliate applicant, the same conditions would not constitute a degrading treatment for a healthy applicant. In an analysis of Court’s case one can easily increase the number of such examples. Such as, one comparison may be made between the Tyrer and Costello-Roberts cases.[7] On these two similar cases the Court made different conclusions. About this comparison Michael K. Addo and Nicholas Grief stated that; “The one real difference between the two cases lay in the fact that Tyrer was sentenced by a Court and Costello-Roberts by his headmaster. The other factors were either similar or only superficially different.”[8] Another good example may be the comparison between the Soering V UK case and Cruz Varas V. Sweden case. Where in the former case reasoned that extradition of the applicant would violate the article 3 on the other hand the Court the latter case reasoned that there is no real risk that the applicant would be ill treated in his return.[9] It is seen that Court’s application of article 3 may change form case to case. As Clare Ovey pointed out “expulsion to a country with poor medical facilities may constitute "inhuman or degrading treatment" for a man dying of AIDS, but not for someone in good health.”[10]
Thus it is seen that the Article 3 itself is flexible enough which may be applied differently to different persons under different conditions or in different times. Its dynamic nature inevitably does not accept formative standards. Court’s discretion is the most important determinant in the application of article to the cases.
ECHR as a Living Instrument
“…the convention is a living instrument which…must be interpreted in the light of present day conditions.”[11]
In the Tyrer V UK case, Court reasoned that corporal punishment whether was acceptable by the inhabitants for years (Isle of Man), is not suitable with the present day conditions and should be regarded as degrading punishment. Whereas the Court as called in the Ireland V. UK case an inhuman and degrading treatment could be classified differently in the future, just like an act which was even legal, in the light of present circumstances may be regarded as illegal and may constitute a breach of the convention. Thus what may present day conditions encompasses, determines the operation area of the article 3. The Court’s case law in one hand consistently follows its precedents, on the other hand modernises itself by setting up new precedents for the future in the light of present day conditions. Thus as A Mowbray mentioned “…the living instrument doctrine has enabled the Court to creatively update the interpretation of a number of convention articles in varied situations.”[12]
CONCLUSION
Article 3 of the convention, as mentioned has unclear and general terminology. It is not certain that whether the authors of the convention thought about the Court’s creativity in the interpretation of this article, but it is also sure that article itself provides the Court with an excellent opportunity to use its creativity and interpret the article in conformity with the rising contemporary standards of Human Rights. As it is argued in the paper, the inconsistency in the case law of the Court may be understood by the impacts of two important reasons. First one is the changing nature of the article according to conditions and circumstances which are like those mentioned in the Ireland v. UK case.[13] Second one is the changing nature of the article according to present day conditions (thus according to rising contemporary human right standards as well) Simply the dynamic nature of the article causes dynamic interpretation of the Court which results in an inconsistency among decisions of the Court. However this does not mean that inconsistency has an effect on the legal quality of the article. Contrary, the article itself by providing ‘everyone’ with an absolute freedom from torture and other forms of ill-treatment, ‘irrespective from victim’s conduct’ [14]constitutes one of the strictest prohibitions in the convention.
Therefore paper put forward an argument by claiming the inconsistency of the Court’s decisions is the cause of dynamic nature of the Torture Article of the convention. The justice and legal quality of article accordingly depends on whether the degree of inconsistency in the decisions of the Court is compensated by the degree of the efficiency of the application of the article in those decisions.
REFERENCES
- Alastair Mowbray, “The Creativity of the European Court of Human Rights”, Human Rights Law Review. 5: 1 (2005) p:57-79
- Ovey, C. (2001) Prohibition of Refoulement: The meaning of Article 3 of the ECHR, ELENA International Course on the European Convention on Human Rights in relation to Asylum, 26-28th January 2001, Strasbourg, [cited 7 Nov. 2007]; available from World Wide Web: <http://www.ecre.org/elenahr/art3.pdf > [one screen].
- M. O'Boyle, C. Warbrick, D.J. Harris, Law of the European Convention on Human Rights (London: Butterworths, 1995)
- Michael K. Addo and Nicholas Grief, “Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?” European Journal of International Law 9 (1998) p:510-524
[1] Art 15(2), ECHR, No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
[2] Selmouni v. France (25803/94) [1999] ECHR, para 101
[3] Michael K. Addo and Nicholas Grief, “Does Article 3 of The European Convention on Human Rights
Enshrine Absolute Rights?” European Journal of International Law 9 (1998) p. 515
[7] Michael K. Addo and Nicholas Grief, “Does Article 3 of The European Convention on Human Rights
Enshrine Absolute Rights?” European Journal of International Law 9 (1998) p. 518
[8] Ibid. p.518
[9] M. O'Boyle, C. Warbrick, D.J. Harris, Law of the European Convention on Human Rights (London: Butterworths, 1995) p.75-78
[10] Ovey, C. (2001) Prohibition of Refoulement: The meaning of Article 3 of the ECHR, ELENA International Course on the European Convention on Human Rights in relation to Asylum, 26-28th January 2001, Strasbourg, [cited 7 Nov. 2007]; available from World Wide Web: <http://www.ecre.org/elenahr/art3.pdf > [one screen].
[12] Alastair Mowbray, “The Creativity of the European Court of Human Rights”, Human Rights Law Review. 5: 1 (2005) p. 69
[13] “…such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.” (Ireland V. UK (5310/71) [1978], para 162)
