Article 3: Strasbourg

Question 1

What are the ECtHR’s major principles when it comes to Article 3?

Answer 1

• Treatment must reach a “minimum level of severity”
• That level is context-dependent; the age, vulnerability etc. of the person may matter
• The treatment must go beyond the element of suffering or humiliation ordinarily associated with a given type of legitimate treatment or punishment

Question 2

In Ireland v UK, what were the “five techniques” used by the RUC?

Answer 2

1. Wall-standing in a “stress position”
2. Hooding
3. Continuous noise
4. Sleep deprivation
5. Food and drink deprivation

(And this all went alongside repeated beatings, leading to one guy being “massively” injured)

Question 3

In Ireland v UK, what did the Court say was the difference between “torture” and “inhuman/degrading treatment”?

Answer 3

They said it “derives principally from a difference in the intensity of the suffering inflicted”.

Question 4

In Ireland v UK, who specifically was responsible for the treatment of the prisoners?

Answer 4

The RUC - but it was taught to them orally by the British authorities at an intelligence conference in April 1971

Question 5

In Ireland v UK, what was the British state’s response to the “five techniques” becoming widely publicised?

Answer 5

They said they wouldn’t do it again - initially tentatively (the PM, Heath, in Parliament in 1972) and then the Attorney-General promised this before the Strasbourg Court.

Many victims also successfully claimed compensation in the courts.

Question 6

A v UK (1998)

Answer 6

A child was beaten by his stepfather with a cane such as to cause bruising

He was acquitted of ABH as he had a “reasonable excuse” of “reasonable chastisement”

Court: This breached the UK’s positive obligations under A3 to protect children against A3 mistreatment

Question 7

Costello-Roberts v UK (1993)

Answer 7

A boy at a private school was punished by being hit three times with a gym shoe on the buttocks.

Court: This did not breach A3, because it did not reach the minimum level of severity. There was no evidence of lasting effects.

Question 8

Bouyid v Belgium (2016)

Answer 8

Any use of force on someone in custody which isn’t made necessary by their conduct will breach A3.

Here, a police officer slapped two uncooperative youths detained in a police station.

It was about the attack on dignity, rather than the physical severity.

Question 9

Paposhvili v Belgium (2017) says that states should not expel a person if it would lead to a loss of medical treatment, leading to a…

Answer 9

“Serious, rapid and irreversible decline in health, resulting in:
- intense suffering or
- a significant reduction in life expectancy”

Question 10

Aerts v Belgium (1998)

Answer 10

A man is detained for a period of months in the psychiatric wing of a prison, when the reason for his detention is his mental health, rather than his being on remand or charged.

Violation of A5.1: there must be a connection between the reason for detention and the place/type of detention; someone held under 5.1(e) can’t be in a prison.

No violation of A3.

Question 11

Kudla v Poland (2000)

Answer 11

A man is detained on remand for years in a prison, without getting the proper psychiatric help he needs (he attempts suicide twice).

No violation of A3.

(But A5.3 was violated due to the length of time on remand.)

Question 12

Slyusarev v Russia (2010)

Answer 12

A man is held for several months without his glasses, which had been taken from him when he entered detention.

Violation of A3. This could not be explained in terms of the practical demands of imprisonment. Considering the suffering and its duration, A3 breached.

Question 13

Gafgen v Germany (2010)

Answer 13

Gafgen had abucted an 11-year-old boy. The police subjected him to a threat of serious pain: an interrogation lasting 10 minutes. He gave away the location of the body as a result. Evidence obtained as a result of this was used in his trial (although the confession itself wasn’t).

Held: Violation of A3, but no violation of A6.

Question 14

Kafkaris v Cyprus (2003)

Answer 14

A man is sentenced to a whole-life tariff.

Court finds that there could be “an issue” with tariffs with no prospect of release. However, on the facts that didn’t apply, because the President, with the A-G’s agreement, could order release. There was therefore a review mechanism, even if limited.

Question 15

What was the saga relating to whole-life tariffs and the back-and-forward between Strasbourg and the UK?

Answer 15

England’s Crime (Sentences) Act 1997 s30 allowed a power to release a prisoner on compassionate grounds (with guidance saying it would be if they had a short time to live and the risk of reoffending was minimal).

R (Bieber) (2008) found that was enough to make the sentence “reducible”.

Vinter v UK (2013) found otherwise. They said there needed to be a clear policy at the time of sentencing re review and what the prisoner needs to do to get out. It was a “right to hope”.

R v McLoughlin (2014) said the ECtHR were wrong to say the law wasn’t clear.

Hutchison v UK (2015) saw Strasbourg back down.