Prohibition of torture (Article 3 of the ECHR)

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The judgments in which the Court expressed its standpoint of principle:

Article 3 of the ECHR enshrines one of the fundamental rights of a democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the ECHR prohibits in absolute terms torture or inhuman or degrading treatment. Unlike most of the substantive clauses of the ECHR and its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.⁶⁶⁰

As to the deprivation of liberty, any recourse to physical force by the State which has not been made strictly necessary by the individual’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.⁶⁶¹ The requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals.⁶⁶²

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, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.⁶⁶³ In this sense “ill-treatment” involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.⁶⁶⁴

The distinction between inhuman and degrading treatment and torture derives principally from a difference in the intensity of the suffering inflicted and that a special stigma is attached to deliberate inhuman treatment causing very serious and cruel suffering. Although it is not necessary to distinguish inhuman and degrading interrogation techniques, a distinction had to be drawn between treatment that is inhuman and degrading and treatment that may amount to torture. For example, ill-treatment is considered torture within the meaning of Article 3 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment if the victim has received a number of blows, and whatever a person’s state of health, such intensity of blows will cause significant pain. Furthermore, the ill-treatment is considered torture if the victim is repeatedly humiliated and threatened with further ill-treatment and it is reasonable for the victim to suspect that such threats would be carried out. The length of ill-treatment is also important, as is the impossibility of predicting the duration and period of repetition of torture.⁶⁶⁵ Therefore, torture is a deliberate, inhuman treatment causing very serious cruel suffering.⁶⁶⁶ The aim of inflicting pain or suffering is obtaining from the individual or a third person information or a confession, punishing him for an act he/she or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.⁶⁶⁷

Article 3 of the ECHR also contains a positive obligation that requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.⁶⁶⁸ If the victim is ill-treated by a third person and if the ill-treatment can be considered as inhuman and degrading treatment within the meaning of Article 3 of the ECHR, and the perpetrator is not convicted, if such treatment is justified according to the national law, then the national law did not provide adequate protection against treatment within the meaning of Article 3 of the ECHR, which amounted to violation of that provision.⁶⁶⁹

The obligation of authorities and institutions to provide protection also includes the attitude towards the bodies and representatives of international organisations which are entrusted in Bosnia and Herzegovina, in accordance with international law, with tasks and duties in the realm of power referring to the state sovereignty. The immunity which these international protagonists enjoy does not exempt the state institutions from the obligation to protect its citizens against violations of human rights and freedoms.⁶⁷⁰

The conditions of detention per se, without any allegation of deliberate ill- treatment by the police, prison guards or other persons, can already amount to a violation of Article 3 of the ECHR. This can be due to prolonged isolation, deprivation of light or uninterrupted exposure to artificial light, overcrowding, absence of heating, poor sanitary conditions, lack of exercise or, more likely, an accumulation of such conditions.⁶⁷¹ To be subjected to constant threats and humiliations, to be kept in a period of prolonged uncertainty concerning one’s fate and to be deprived of proper food and access to clean clothes constitute inhuman and degrading treatment.⁶⁷² In the case of severe prison conditions including isolation, which are dictated by the extreme security requirements surrounding persons deprived of liberty which are considered to be extremely dangerous (such as terrorists are), the authorities have a wider margin of appreciation to assess whether such prison conditions are necessary.⁶⁷³ Inhuman treatment can also occur in the case where a prisoner is deprived of medical treatment.⁶⁷⁴ The investigative judge who fails to take any steps to investigate a person’s allegations on maltreatment by the police while in custody⁶⁷⁵ violated the positive obligation to protect the person’s right not to be subjected to inhuman and degrading treatment. In such circumstances, the judge is competent to assess the evidence.⁶⁷⁶

The appellant/applicant is obliged to submit evidence proving that he/she has been a victim of inhuman and degrading treatment or torture. On the other hand, the authorities have the obligation to provide effective protection to a person allegedly a victim of such treatment (the possibility of filing charges, interrogation of his/her allegations, court proceedings, etc.). It is necessary to examine whether the State has fulfilled that obligation in each particular case. Article 3 of the ECHR does not require that the perpetrator must always be convicted.⁶⁷⁷ In the case of a denial of the allegations on inhuman treatment, the evidence proving that a person has been the victim of such treatment must be produced, as well as evidence showing certain recognizable injuries. A mere, arbitrary allegation without precise evidence is not enough. On the other hand, if certain injuries can be recognized, the State bears the burden to produce evidence capable of proving that the relevant authorities cannot be held responsible for them, where a person is taken into custody in good health and is, after release from custody, found injured.⁶⁷⁸ The establishment of the existence of inhuman treatment during police custody is based on three factors: first, no one claims that the marks on the person’s body are the result of events pre-dating his arrest, carried out by the applicant himself, or caused by an escape attempt; second, that person drew attention to his marks at his first appearance before the investigative judge; and, finally, different doctors, including an official of the prison authorities, must issue certificates containing precise and concurring medical observations and indicating dates for the occurrence of the injuries which corresponded to the period spent in police custody.⁶⁷⁹

There is a violation of the prohibition of torture or inhuman or degrading treatment in the case of enforced disappearance of a person and, as a rule, that violation relates to the victim himself/herself,⁶⁸⁰ and potentially to members of the family of the victim.⁶⁸¹ As to the victim himself/herself, this view of the Human Rights Chamber is based on Article 1 of the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the UN General Assembly (A/RES/47/133), providing that any act of enforced disappearance constitutes a violation of the right not to be subjected to torture and other cruel, inhuman and degrading treatment or punishment. It makes reference to the practice of the UN Human Rights Committee which has held that the abduction and disappearance of the victim and prevention of contact with his family and with the outer world constitutes cruel and inhuman treatment.⁶⁸²

An enforced disappearance can also – although not in every case⁶⁸³ – constitute a violation of the rights of family members of the victim under Article 3 of the ECHR.⁶⁸⁴ In this sense, Article 3 is considered as the “right to know the truth”.⁶⁸⁵ Whether a family member’s right under Article 3 of the ECHR has been violated by the enforced disappearance of the victim depends, on the one hand, on the special factors (considered as to the victim) which additionally determine the suffering of the family members when their close relative becomes a victim of violations of human rights and freedoms. These factors are: proximity of the family tie (with weight attached to parent-child relationships), particular circumstances of the relationship between the missing person and the family member, extent to which the family member witnessed the events resulting in the disappearance (however, the absence of this factor may not deprive the family member of victim status) involvement of the family member in attempts to obtain information about the missing person (however, the absence of complaints may not necessarily deprive the family member of victim status) and response, reactions, and attitude of the authorities to the complaints and inquiries for information about the fate of the missing person. In addition, the overall context of the disappearance, i.e., a state of war, the breadth of armed conflict, the extent of the loss of life, is also relevant, as well as the amount of anguish and stress caused to the family member as a result of the disappearance.

The essential reason for finding the violation is not the enforced disappearance itself but the reaction and attitude of the authorities in such a situation (considered as to the authorities). First of all, this latter, in certain cases, can amount to the violation of the relatives’ right under Article 3 of the ECHR. Complacency, intimidation, and harassment by authorities may be considered aggravating circumstances. The extent to which the authorities conducted a meaningful and full investigation into the disappearance is also relevant as well as the extent to which the authorities provided a credible, substantiated explanation for a missing person last seen in the custody of the authorities. The amount of credible information provided to the authorities to assist in their investigation is also relevant and finally, whether the authorities were involved in the disappearance.⁶⁸⁶

Article 3 obliges the State to establish an institutional framework necessary for the effective protection of human rights and freedoms. If the Law on Missing Persons⁶⁸⁷ provides for the establishment of an institute and fund to establish the fate of missing persons, then this law must be implemented; otherwise, this could constitute a violation of the obligations to provide protection under Article 3 of the ECHR.⁶⁸⁸

The victim of a criminal offence and his/her relatives are entitled under Article 3 of the ECHR to an investigation into the criminal offence and possible punishment of the perpetrator of the criminal offence. This relates not only to the offences against physical persons but all criminal offences.⁶⁸⁹ The victim or other persons have the obligation to report the criminal offence.⁶⁹⁰ The investigation and other measures must be effective, but their result does not have to be positive.⁶⁹¹ However, in order to make a decision on the termination of an investigation, amnesty or pardon, there must be a legal basis and reasoning; otherwise, the rights of the victim and his/her relatives under Article 3 of the ECHR can be violated.⁶⁹² Based on Article 3 of the ECHR, there is no right to reach a precise result of the criminal prosecution, for example, a punishment.⁶⁹³

The extradition of foreigners can entail obligations under Article 3 of the ECHR if there are substantial grounds for believing that there is a risk that a person, if extradited, will be subjected to treatment in violation of Article 3 of the ECHR in the receiving country. In such circumstances, Article 3 requires the State not to extradite such a person to that country.⁶⁹⁴ The obligation which falls upon the State which carries out the extradition of a person under Article 3 is not conditional upon informing the person to be extradited of the risk of him/her being subjected to torture or inhuman or degrading treatment in the receiving country. Quite to the contrary, the obligation of the State which carries out the extradition is to exclude such a possibility.⁶⁹⁵ Although there are a number of decisions wherein the States were found responsible under Article 3 of the ECHR, since they carried out the extradition despite the high-security conditions of detention or danger of torture in the receiving countries,⁶⁹⁶ the Human Rights Chamber has not taken any decision establishing the violation of Article 3 of the ECHR for extradition or expulsion to a State whose high- security conditions were so invasive as to amount to a violation of Article 3 of the ECHR. Detention of highly dangerous individuals requires the authorities to strike a very delicate balance between the requirements of security and basic individual rights. An extraditing State is not in a position and cannot be required to carry out this balancing exercise by referring to Article 3 of the ECHR.⁶⁹⁷ Moreover, the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a person would be in danger of being subjected to torture upon his return to that country. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in specific circumstances.⁶⁹⁸

In applying these principles, the Human Rights Chamber, in the case of Boudellaa et al., came to the conclusion that BiH and the Federation of BiH, taking account of all circumstances, might not have started from the assumption that the applicant would be subjected to inhuman or degrading treatment in Guantánamo Bay. Therefore, the handover of the applicant to the U.S. military forces was not in violation of Article 3 of the ECHR.⁶⁹⁹ The circumstances in the Durmo Case were different. In that case the Human Rights Chamber, based on a report of the UN Committee against Torture and Amnesty International came to the conclusion that the applicant, due to the alleged terrorist activities, could be subjected to torture in Egypt and that the FBiH should have been aware of it.⁷⁰⁰

Overview of the case-law with regards to Article 3 of the ECHR

Inhuman and degrading treatment or torture has not been found in the following cases:

• notice of electricity and water supply cut-off for unpaid bills;⁷⁰¹
• handcuffing the convicted person in order to take him to a medical examination;⁷⁰²
• telephone disconnection;⁷⁰³
• expulsion of a foreigner to Camp X-Ray in Guantanamo, Cuba, USA;⁷⁰⁴
• hospitalisation of a prisoner in the psychiatric hospital for epilepsy ;⁷⁰⁵
• criminal proceedings were not conducted⁷⁰⁶ or the criminal proceedings were terminated due to the lack of evidence;⁷⁰⁷
• difference in classification of a criminal offence.⁷⁰⁸
• Inhuman and degrading treatment has been found in the following cases:
• expulsion of a foreigner to Egypt despite the fact that he faced a risk of being subjected to torture, inhuman or degrading treatment in the receiving country;⁷⁰⁹
• captivity during which the person was kept in a state of prolonged uncertainty as to his fate, including threats of death;⁷¹⁰
• passive conduct of the State authorities to investigate the enforced disappearance of the person;⁷¹¹
• passive conduct of the State authorities with regards to the criminal offence against the property of the injured party⁷¹² or body of the injured party;⁷¹³
• producing fear in order to extort information or a confession from the person by handcuffing him, blindfolding him, exposing him to a loud music and flashing lights and by placing him in a cold container and putting him before a make-believe firing squad;⁷¹⁴
• preventing the competent criminal authorities from prosecuting the perpetrators of criminal offences committed while on official duty;⁷¹⁵
• physical and verbal ill-treatment particularly on the grounds of ethnic affiliation, notably if it causes deep mental traumatism;⁷¹⁶
• conditions of deprivation beneath human dignity, punching, malnutrition, prison overcrowding, cold in the room, minimum sanitary facilities;⁷¹⁷
• kicking and punching;⁷¹⁸
• inflicting serious bodily injury by unnecessary use of arms;⁷¹⁹
• Incommunicado detention and uncertainty as to one’s own fate in the prison.⁷²⁰
• Torture was found in the following cases:
• Failure to undertake the effective prosecution of the perpetrator of a criminal offence;⁷²¹
• Ill-treatment to extort information or confession by handcuffing, tying to the radiator, beating with a small baseball bat and rubber hose, kicking;⁷²²
• Failure to provide necessary medical treatment, which caused severe pain.⁷²³