Article 3
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.”
This provision corresponds with Art.4 of the EU Charter which has the same wording.
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 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. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3. When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015. Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).
Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008). In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012). Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).
Domestic courts may be rowing back from their earlier 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. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD [2015] EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.
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.
Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. In Othman (Abu Qatada) v UK [2012] ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.
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).
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