Has the European Court of Human Rights expanded the scope of Article 3 ECHR to an excessive degree?

Introduction Article 3 of the European Convention of Human Rights, prohibits torture and inhuman or degrading treatment or punishment. Although the brevity of Article 3 itself does not classify it as an absolute right, Strasbourg case law has shown that it is to be considered as such.1Article 3 proscribes three categories of treatment i) torture, ii) inhuman treatment and iii) degrading treatment or punishment. Case law has also established that these three distinct but related areas exist2. Torture refers to aggravated inhuman treatment which has a purpose (extracting information or confessions) or the infliction of punishment. It is generally seen as an aggravated form of inhuman treatment. Treatment or punishment is degrading if it is grossly humiliating to the victim. The increasingly high standards in the area of human rights have ensured the organic nature of the treaty. Treatment not considered torture in Ireland v UK3, may be classified as such if similar incidents happened now. The scope of Article 3 includes not only physical maltreatment but also psychological maltreatment4, discrimination5, corporal punishment6 and, neglect or maltreatment by a public authority7. It is evident from the case law that the scope of Article 3 is quite extensive. The expansion of Article 3 in torture has not been excessive. The current attitude of the Court, to include psychological torture cannot be considered too expansive as, with the need for fast and efficient interrogation and advancements in science, Contracting States might be tempted to resort to methods that may be able to slip through previous considerations of what constituted torture. However, cases which may be able to slip through the current Article 3 applications of what constitutes inhuman or degrading treatment do exist. Medical asylum is one such area where Contracting States have been able to deport applicants on very narrow
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See further, M. K. Addo and N. Grief, Does Article 3 of The European Convention of Human Rights Enshrine Absolute Rights?, Eur J Int Law (1998) 9 (3): 510 2 The Greek Case 12 (1969) YECHR 3 (1979-80) 2 E.H.R.R. 25; the Court decided that although the treatment could be qualified as inhuman and degrading treatment under Article 3, it did not amount to torture or a breach of Article 3. The Court relied on the definition of torture adopted by the UN General Assembly. 4 Akkoc v Turkey (2000) 34 EHRR 1173 5 East African Asians Case (1973) 3 EHRR 76 6 Tyrer v U.K. (1978) 2 EHRR 1; A v U.K. (1999) 27 EHRR 611 7 KL v U.K. (1998) 26 EHRR CD 113

interpretations of Article 3 and preceding case law. The scope of Article 3 needs to be further expanded and a need for a wider application of the extraordinary circumstances test set out in D v United Kingdom8 is required.

Expansion of torture not excessive Article 3 proscribes torture and judicial determination has shown that it is the most severe form of maltreatment covered by Article 3. There are no blanket standards applied, instead a case by case approach is followed. This is justified as the same maltreatment applied to different individuals would result in differing levels of anguish and suffering depending on their age, sex, physical condition, psychological condition, etc. The lowering of threshold in cases such as Selmouni v France9 indicate that what wasnt torture once might be considered so now. Psychological Torture. The scope of torture has also extended to include psychological or mental maltreatment. In cases which they have been considered torture, it occurred along with physical maltreatment and there is yet to be a case of torture found where purely psychological maltreatment was used. However, in the Greek case and Ireland, the Court seems to suggest that using non-physical methods of maltreatment may be considered torture. Subsequent cases have listed incommunicado detention10, threats to ones family11, humiliation of being paraded naked12, mock executions13 as well mental suffering from other forms physical ill-treatment14. With the constant threat to national security through terrorism and the like, Contracting States might be tempted to get around the non-derogable nature of Article 3 by resorting to refined forms of maltreatment where the victim is physically untouched. The advancement of medical sciences and knowledge of how the mind functions may result in further developments (if one can call it that) in more efficient forms of inflicting suffering without inflicting physical harm. Advancements in the study of pain may result in methods where the pain centres of the brain can be controlled and the victim can feel tremendous pain without any physical sign of maltreatment on the
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(1997) 24 EHRR 423 (1999) 29 EHRR 403 10 Dikme v Turkey 2000-VIII 11 Akkoc v Turkey 34 EHRR 1173 12 Aydin v Turkey 25 EHRR 251 13 Ilascu v Moldova and Russia 40 EHRR 1173 14 ibid

body. Severe psychological maltreatment by burning or defacing religious books in front of victims of the same faith, forcing them to participate in activities abhorrent to their faith or personal beliefs may also be considered torture now. It would be difficult for such forms of maltreatment to be considered torture, if the tests in past cases like Ireland15 were used. There is a need to maintain the current attitude of the Court to allow further expansion of the scope of torture.

Need for expanding the scope of Inhuman and Degrading Treatment Inhuman and degrading treatment includes discrimination, corporal punishment, neglect or maltreatment by a public authority. These are relatively straightforward violations of Article 3 when compared to cases where violations of social rights were claimed. The Court has been unclear in the past as to what constitutes a minimum level of severity and the Court is right to exercise discretion16. I am inclined to agree with general argument in favour of enshrining social rights17 but it would be expanding the scope of Article 3 too far if social rights were to be enforceable under the convention. They are long term policy decisions which may need to be addressed separately under a different convention. However, medical asylum claims should be admitted under Article 3, especially in cases discussed below where the condition of the applicants were quite grim and yet the Court decided to deport them. Medical Asylum. The ECtHR has been reluctant to enforce social rights under Article 3. The reasoning of the Court is that the Convention itself is directed at the protection of civil and political rights rather than social and economic rights18. This seems to indicate an inclination of the Court to draw a distinct line between what can and what cannot be considered inhuman and degrading treatment as opposed to an organic approach. The test laid down in D v UK is of exceptional circumstances, which is a very nebulous term. Subsequent cases have been considered as distinguished from D v UK on these grounds19. The reason the Court decided that these cases did not pass the exceptional circumstances test was because i) the applicant in D was in the final stages of his illness and was close to death, whereas none of the applicants had reached such a stage yet (they
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It was decided that The five techniques were to be considered as inhuman and degrading treatment, not torture. 16 See A. Cassese, Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions? 2 EJIL 141 (1991) 17 See generally, V. Mantouvalou, The Case for Social Rights, in C. Gearty and V. Mantouvalou, Debating Social Rights, (Oxford Hart Publishing 2010) 18 N v United Kingdom (App no 26565/05) 19 Karara v Finland no 40900/98; SCC v Sweden (dec) no 46553/99; Bensaid v UK [2001] ECHR 44599/98 (Applicant was Schizophrenic); Arcila Henao v the Netherlands (dec) no 13669/03, Ndangoya v Sweden (dec) no 17868/03

had the same disease, AIDS, except Bensaid) and, ii) the medical treatment the applicants were receiving in the Contracting State was available in principle in their respective home countries as well. This is a very superficial and non-humanitarian application of the test. Even though the Court, had knowledge of the socio-economic conditions of each applicant and their home countries, their applications were rejected just based on the fact that the treatment was available. The ability of the applicants to have access to the medical treatment was not considered as relevant. In some of the cases, the Court clearly has knowledge that the applicant would have considerable difficulty in access. For example, in Ndangoya the applicant was from a rural area and the medication he required could be acquired only at considerable cost and extended travel to urban medical centres. Similarly, in Bensaid, the applicant had to travel a considerable distance and the religious affiliation of his family would make it highly unlikely that he would receive any medical treatment in his home country, Algeria. The justification for maintaining the high threshold decided in D is stated in the majority opinion in N. The justifications were i) a finding contrary to the high threshold would place too much of an economic burden on Contracting States and, ii) the Convention is essentially directed at the protection of civil and political rights20. I am inclined to agree with the opinion of the dissenting Judges Tulken, Bonello and Spielmann who have emphasised that the budgetary implications of finding for the applicants should not be a consideration of the Court. Article 3 imposes an absolute obligation on Contracting States and there can be no derogation under any condition.21 Besides, the reason of financial strain hasnt stopped the Court establishing a breach in previous cases.22 Academics have also argued against the reasoning used by the majority judges in N23. The floodgate argument is not an appropriate legal consideration for the Court to have rather it is a political concern and neither has there been any statistics to prove that refugees flee their home countries to enjoy better privileges elsewhere.24 The Convention does not make watertight distinctions between social rights and civil and political rights. The mere fact that an interpretation of the Convention may extend into social and economic rights cannot be a reason against such an interpretation25. A New Test. The exceptional circumstances test is currently applied in such a way that only if the applicant is in such an advanced stage of illness that his death is imminent, he may be allowed to stay in the Contracting State and receive medication. A better application of the test would be to
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N at para 44 A reference to Saadi v Italy [2008] ECHR 37201/06, para 138 is made. 22 Gaygusuz v Austria App No17371/90; Koua v France App No 40892/98 23 See V. Mantouvalou, N v UK: No Duty to Rescue the Nearby Needy?, at p. 825 24 ibid , p. 826-27 25 Airey v Ireland [1979] ECHR 6289/73

additionally consider i) the type of illness that the applicant has and ii) his ability to access medical treatment in his country of origin. Applicants with diseases like AIDS which have a very high death rate unless constant medication is taken, should be allowed to stay in the Contracting State. Considering all three aspects in the test of exceptional circumstances, the Court may also be able to favourably balance individual rights and the demands of the general interest of the community. By keeping applicants with dangerous communicable diseases like AIDS in a much more secure environment with access to good medical aid, the danger of an epidemic of such diseases may also be contained.

Conclusion The ECHR is a very organic treaty which requires a constant review of standards by the ECtHR for it to be effective. The ECtHR jurisprudence regarding violations of certain social rights to be considered under Article 3 may need further expansion, but the expansion of the scope of Article 3 regarding other areas is not excessive. Recently, a United Nations Report has declared that internet access is a human right26, so can the Court expect a claim of violation of Article 3 for lack of internet access? It is not an entirely unbelievable thought.

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See, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion th and expression, Frank La Rue, published 16 May, 2011