Torture and the European Convention on Human Rights (ECHR)

Article 3 of the European Convention on Human Rights

A basic human right exists for individuals not to be subjected to torture or to inhuman or degrading treatment or punishment contained within Article 3 of the European Convention on Human Rights (ECHR).

Does this also apply to the UK Law?

Article 3 of the ECHR is enshrined into the laws of England and Wales following the implementation of the Human Rights Act 1998 coming into force in October 2000.

What does this therefore mean?

This means that under the provisions of the Human Rights Act 1998 the UK Government has a duty to ensure that no one is subjected to torture or to inhuman or degrading treatment.

Is this human right a qualified right?

Certain of the rights contained within the European Convention on Human Rights and the Human Rights Act are qualified rights. If a right is said to be a qualified right then it means that in certain circumstances there may be other factors which can override the human rights of an individual. Probably the best example of a human right being overridden is for the purpose of national security.

The right contained in Article 3 of the ECHR however, is a right which is deemed to be so fundamental to a civilised society that it is an absolute right.

When a right is described as an absolute right it means that it cannot be overridden in any circumstances whatsoever.

Torture

What is meant by torture?

Torture is defined as deliberate ill-treatment of a human being which leads to very serious suffering.  It can be mental or physical and in certain situations will constitute a combination of the two.

Inhuman or degrading treatment

What is meant by inhuman treatment?

Inhuman treatment will often follow along similar lines to torture but will be less severe. However, it can also be both physical and mental in nature. Inhuman treatment can be found due to the physical treatment of an individual but can also be in relation to the conditions in which an individual person is held.

The immediate threat of torture can also fall within the definition of inhuman treatment.

What is meant by degrading treatment or punishment?

Degrading treatment or punishment operates across a broader definition than inhuman treatment. When making a decision on what form of treatment will be included as degrading such things as the particular attributes of the person in question may be taken into consideration. However, in this situation for certain treatment to be regarded as degrading it would have to be established that other people sharing the same characteristics would also find it degrading.

In what situations could it be possible that actions may be found to be in contravention of Article 3 ECHR?

The actions of people in the following situations are ones which have the possibility of falling within Article 3 ECHR:

  • The treatment received by individuals held in prisons or other forms of custody – this could include detention centres for asylum seekers
  • The treatment received by individual patients in hospital
  • The deportation of a foreign citizen to a country where it is likely that they may then be subjected to torture or to inhuman or degrading treatment or punishment
  • The failure by public authorities to prevent a child becoming the victim of abuse
  • The sentence imposed by a court following a conviction

Would it be possible for an individual higher up the chain of command to be guilty of an offence?

It is possible that an individual higher up the chain of command could be held liable for the actions of his subordinates even when he was not present or even aware of the actions taking place.

This is due to the right guaranteed by Article 3 ECHR being deemed as so fundamental to a civilised society.

Are the courts likely to find an individual or body in contravention of Article 3 ECHR?

The courts currently apply a very strict test when considering whether or not there has been a breach of the human right guaranteed by Article 3 ECHR.

This means that only the very worst examples are likely to satisfy the test.