Article 3 | Anti-torture and inhumane treatment
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Art.3 European Convention on Human Rights provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).
In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture” and “degrading treatment” in the receiving states, advanced by intervening NGOs, are hard to disprove.
Following the judgment in D v United Kingdom (1997) 24 EHRR 423, that an HIV patient could not be returned to a state of origin where medical treatment was inadequate, Art. 3 has been extended to cover conditions of impoverishment and social decay in non-Convention states. In R(Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 the House of Lords applied this extended right to overrule legislation denying social support to asylum seekers who fail to submit their claims as soon as “reasonably practicable”. That the denial of social support was deemed to amount to torture and inhuman treatment shows how far the Convention has developed its reach as a social and economic rights instrument, where claims to social services, accommodation and a high standard of medical care can be made out under the prohibition that was drafted into the Convention in order to prevent the repeat of the sort of atrocities perpetrated in Nazi Germany. Indeed, in 2008 the Strasbourg Court stated in terms that the prohibtion on deportation extends to
the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.(N v UK, 27 May 2008)
The Strasbourg Court has recently started to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In the recent case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. Domestic courts may also be rowing back from their generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 and our post on the case.
However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups. This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.
The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).
