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> Article 3 - Prohibition of Torture or Inhumane or Degrading Treatment
Article 3: Prohibition of Torture or Inhuman or Degrading Treatment
Absolute nature of Article 3
Article 3 is absolute in nature, meaning that there are no circumstances in which it can be derogated from, nor can there be any justification for failure to observe it. This means that even very unpleasant individuals who have committed very serious crimes can benefit from its protection.
In Soering, the claimant was mentally ill and had horribly murdered two people in the United States . His extradition to stand trial there was being sought. In Chahal, the claimant was accused of being a terrorist extremist and a danger to the national security of the United Kingdom, but the ECtHR in Chahal v United Kingdom (1997) 23 EHRR 413 found that because right is absolute his removal to India was not permitted:
‘79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, 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.
80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.’
Whether Article 3 is breached or not in an individual case is a question of fact, based on measuring up all the relevant considerations – so it is always necessary to examine the impact of the feared future treatment on this individual. The courts say that (e.g. Ireland v United Kingdom (1978) 2 EHRR 25 at para 162):
‘…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 or punishment, the manner and method of its execution, its duration and its physical or mental effects.’
The right operates so as to prevent removal of a person within a country’s territory to another territory in which there would be a breach of Article 3 of the ECHR. It is, however, irrelevant from an immigration perspective whether the breach of which the claimant complains will be one that amounts to torture, inhuman treatment or degrading treatment. For the purposes of understanding Article 3 is it is nevertheless important to explore the nature of each type of ill treatment.
Torture
In Ireland v UK (1978) 2 EHRR 167 torture was defined as “deliberate inhuman treatment causing very serious and cruel suffering”. This was a thought to be a very high threshold, and very few cases were found to reach this high level.
In Selmouni v France (1999), the ECtHR revised this approach and derived assistance from the UN Convention against Torture, and ultimately adopted a definition which could be summarised as the situation where “physical and mental violence, considered as a whole, committed against the applicant’s person caused ‘severe’ pain and suffering and was particularly serious and cruel”. Although still high, the threshold at which torture is set is now lower than before the Selmouni case.
In the case of Aydin v Turkey (1998) 25 EHRR 251 the ECtHR found that rape amounted to torture.
Inhuman treatment or punishment
Ireland v UK (1978) 2 EHRR 167 saw the European Court finding that a combination of forms of ill-treatment of detainees (deprivation of food, drink and sleep, hooding, subjection to noise and being stood up against a wall) amounted to inhuman and degrading treatment.
‘167. The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3).’
Pretty v United Kingdom (2002) 35 EHRR 1 at para 52 shows that natural illness, if made worse by certain conditions, may cross the threshold:
‘As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering… Where treatment humiliates or debases an individual showing a lack or 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 the treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible….’
Keeping a person on 'death row' awaiting execution can constitute inhuman punishment, see Soering v United Kingdom (1989) 11 EHRR 439.
Degrading treatment or punishment
In Ireland v UK the court said the following about the nature of degrading treatment:
‘The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.’
The ECtHR has held that prison conditions can amount to degrading treatment, and even inhuman treatment. See for example Kalashnikov v Russia (2002) 36 EHRR 587:
“…. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention…
Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.
When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant."
In East African Asians v UK (1981) 3 EHRR 76 the court concluded that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment
“[207] ... that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 ... The Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race; that publicity [sic] to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.”
The Tribunal in S&K [2002] UKIAT 05613 (3 December 2002) (starred) found that racial motivation could cause the threshold to be crossed, for example where ill-treatment is motivated by racial grounds.
“We do not doubt that discrimination on the ground of race is a factor that should be taken into account in deciding whether a breach of Article 3 has been established. It may in some circumstances tip the balance.”
Unavailability of medical treatment abroad
It is argued in some cases that a difference in medical treatment between the UK and the country to which a person is to be removed will cause suffering or death and that removal would therefore breach the person’s human rights and engage the UK ’s responsibilities.
Such arguments can be pursued in two ways, although these are not mutually exclusive. One is to argue the suffering will be so serious as to amount to a breach of Article 3, relying on a principle established in the case of D v UK (1997) 24 EHHR 423. The other is to argue that although the suffering would not be so serious as to engage Article 3, a lower threshold applies to breaches of Article 8 and this article would instead be breached, relying on the case of Bensaid v UK (2001) 33 EHRR 205.
As will be seen below, the courts have virtually eliminated the possibility of arguing medical treatment cases on the basis of Article 3 but have failed explicitly to address the nexus with Article 8, which is dealt with later in this chapter.
In N v SSHD [2005] UKHL 31 the House of Lords examined the position of an AIDS sufferer being removed to a country where inferior treatment to that she was receiving in the UK would be available. In this case the country was Uganda . It is worth quoting extensively from the judgment to illustrate how unwavering it is. For example, it was accepted that the claimant would die in unpleasant circumstances within approximately one year if removed, as Lord Hope made abundantly clear at paragraph 20 of the judgment:
‘The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak. It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering. It is easy to sympathise with her in this predicament.’
At paragraph 48 Lord Hope summarises his conclusions on the line of Strasbourg authorities on similar medical treatment cases:
‘The conclusion that I would draw from this line of authority is that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. It makes no difference however criminal his acts may have been or however great a risk he may present to the public if he were to remain in the expelling state's territory. On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by "very exceptional circumstances". But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents.’
At paragraph 50 Lord Hope then outlines the circumstances that would have to be satisfied of a case were to be successful:
‘What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa . For the circumstances to be, as it was put in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying.’
Lord Hope and Baroness Hal e were at pains to state that their formulations of the test were in effect the same, and Lord Brown and Lord Nicholls also explicitly endorse Lord Hope’s test. Baroness Hal e expresses the test thus at paragraph 69:
‘In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.’
Given the high standards of medical care a person will normally receive once inside the UK and the traditional duration of the asylum process, very few claimants will still be seriously ill by the time they are eligible for removal even if they were very ill on arrival. With increasing fast-tracking and a shorter appeals process, this may start to change in future.
An analysis of what needs to be established in a medical treatment case suggests the following information should be obtained:
Effect of the act of removal
Circumstances might be different where medical problems ensue other than from a want of resources, however, where the human rights interference is caused not by the difference in treatment between here and abroad and the medium term repercussions of that difference, but where the act of removal actually causes a deterioration in physical or mental health. See J v SSHD [2005] EWCA Civ 629 where it was the trauma of removal bringing with it an enhanced risk of suicide rather than any “want of resources” that led to the human rights interference.
Article 3 is absolute in nature, meaning that there are no circumstances in which it can be derogated from, nor can there be any justification for failure to observe it. This means that even very unpleasant individuals who have committed very serious crimes can benefit from its protection.
In Soering, the claimant was mentally ill and had horribly murdered two people in the United States . His extradition to stand trial there was being sought. In Chahal, the claimant was accused of being a terrorist extremist and a danger to the national security of the United Kingdom, but the ECtHR in Chahal v United Kingdom (1997) 23 EHRR 413 found that because right is absolute his removal to India was not permitted:
‘79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, 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.
80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.’
Whether Article 3 is breached or not in an individual case is a question of fact, based on measuring up all the relevant considerations – so it is always necessary to examine the impact of the feared future treatment on this individual. The courts say that (e.g. Ireland v United Kingdom (1978) 2 EHRR 25 at para 162):
‘…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 or punishment, the manner and method of its execution, its duration and its physical or mental effects.’
The right operates so as to prevent removal of a person within a country’s territory to another territory in which there would be a breach of Article 3 of the ECHR. It is, however, irrelevant from an immigration perspective whether the breach of which the claimant complains will be one that amounts to torture, inhuman treatment or degrading treatment. For the purposes of understanding Article 3 is it is nevertheless important to explore the nature of each type of ill treatment.
Torture
In Ireland v UK (1978) 2 EHRR 167 torture was defined as “deliberate inhuman treatment causing very serious and cruel suffering”. This was a thought to be a very high threshold, and very few cases were found to reach this high level.
In Selmouni v France (1999), the ECtHR revised this approach and derived assistance from the UN Convention against Torture, and ultimately adopted a definition which could be summarised as the situation where “physical and mental violence, considered as a whole, committed against the applicant’s person caused ‘severe’ pain and suffering and was particularly serious and cruel”. Although still high, the threshold at which torture is set is now lower than before the Selmouni case.
In the case of Aydin v Turkey (1998) 25 EHRR 251 the ECtHR found that rape amounted to torture.
Inhuman treatment or punishment
Ireland v UK (1978) 2 EHRR 167 saw the European Court finding that a combination of forms of ill-treatment of detainees (deprivation of food, drink and sleep, hooding, subjection to noise and being stood up against a wall) amounted to inhuman and degrading treatment.
‘167. The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3).’
Pretty v United Kingdom (2002) 35 EHRR 1 at para 52 shows that natural illness, if made worse by certain conditions, may cross the threshold:
‘As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering… Where treatment humiliates or debases an individual showing a lack or 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 the treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible….’
Keeping a person on 'death row' awaiting execution can constitute inhuman punishment, see Soering v United Kingdom (1989) 11 EHRR 439.
Degrading treatment or punishment
In Ireland v UK the court said the following about the nature of degrading treatment:
‘The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.’
The ECtHR has held that prison conditions can amount to degrading treatment, and even inhuman treatment. See for example Kalashnikov v Russia (2002) 36 EHRR 587:
“…. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention…
Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.
When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant."
In East African Asians v UK (1981) 3 EHRR 76 the court concluded that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment
“[207] ... that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 ... The Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race; that publicity [sic] to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.”
The Tribunal in S&K [2002] UKIAT 05613 (3 December 2002) (starred) found that racial motivation could cause the threshold to be crossed, for example where ill-treatment is motivated by racial grounds.
“We do not doubt that discrimination on the ground of race is a factor that should be taken into account in deciding whether a breach of Article 3 has been established. It may in some circumstances tip the balance.”
Unavailability of medical treatment abroad
It is argued in some cases that a difference in medical treatment between the UK and the country to which a person is to be removed will cause suffering or death and that removal would therefore breach the person’s human rights and engage the UK ’s responsibilities.
Such arguments can be pursued in two ways, although these are not mutually exclusive. One is to argue the suffering will be so serious as to amount to a breach of Article 3, relying on a principle established in the case of D v UK (1997) 24 EHHR 423. The other is to argue that although the suffering would not be so serious as to engage Article 3, a lower threshold applies to breaches of Article 8 and this article would instead be breached, relying on the case of Bensaid v UK (2001) 33 EHRR 205.
As will be seen below, the courts have virtually eliminated the possibility of arguing medical treatment cases on the basis of Article 3 but have failed explicitly to address the nexus with Article 8, which is dealt with later in this chapter.
In N v SSHD [2005] UKHL 31 the House of Lords examined the position of an AIDS sufferer being removed to a country where inferior treatment to that she was receiving in the UK would be available. In this case the country was Uganda . It is worth quoting extensively from the judgment to illustrate how unwavering it is. For example, it was accepted that the claimant would die in unpleasant circumstances within approximately one year if removed, as Lord Hope made abundantly clear at paragraph 20 of the judgment:
‘The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak. It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering. It is easy to sympathise with her in this predicament.’
At paragraph 48 Lord Hope summarises his conclusions on the line of Strasbourg authorities on similar medical treatment cases:
‘The conclusion that I would draw from this line of authority is that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. It makes no difference however criminal his acts may have been or however great a risk he may present to the public if he were to remain in the expelling state's territory. On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by "very exceptional circumstances". But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents.’
At paragraph 50 Lord Hope then outlines the circumstances that would have to be satisfied of a case were to be successful:
‘What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa . For the circumstances to be, as it was put in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying.’
Lord Hope and Baroness Hal e were at pains to state that their formulations of the test were in effect the same, and Lord Brown and Lord Nicholls also explicitly endorse Lord Hope’s test. Baroness Hal e expresses the test thus at paragraph 69:
‘In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.’
Given the high standards of medical care a person will normally receive once inside the UK and the traditional duration of the asylum process, very few claimants will still be seriously ill by the time they are eligible for removal even if they were very ill on arrival. With increasing fast-tracking and a shorter appeals process, this may start to change in future.
An analysis of what needs to be established in a medical treatment case suggests the following information should be obtained:
- Diagnosis of patient – what is their medical condition?
- Prescribed treatment – what treatment is being given or is planned for the patient?
- Current prognosis – given the medical condition and the proposed treatment, what outcome is likely for the patient and what will be their quality of life?
- What treatment would be available if the patient is removed abroad?
- Future prognosis - what would be the likely outcome and quality of life for the patient were he or she to receive the treatment available abroad?
Effect of the act of removal
Circumstances might be different where medical problems ensue other than from a want of resources, however, where the human rights interference is caused not by the difference in treatment between here and abroad and the medium term repercussions of that difference, but where the act of removal actually causes a deterioration in physical or mental health. See J v SSHD [2005] EWCA Civ 629 where it was the trauma of removal bringing with it an enhanced risk of suicide rather than any “want of resources” that led to the human rights interference.
