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.
