Seminar 3 - Torture Flashcards
(24 cards)
Types of Torture
1) Punitive - Punishment
2) Interrogational -
3) Terroristic - Make people scared
It is an absolute right, why?
Intrinsic nature of the act on the individuals - Harmed for life usually
External nature of use - Hatred gathers to individuals etc
Uncontrollable nature of the act - Hard to administrative, becomes entrenched easily
Main legislation around it
UDHR - Article 5
ICCPR - Art 7, Art 4(2) derogation
ECHR - Art 3
Convention Against Torture and Cruel, Inhuman and Degrading punishment or treatment is main legislation surrounding this
CAT articles
Article 1 - Torture is any act which inflict severe pain or suffering on an individual whether it is physical or mental intentionally done so for reasons of gaining information, intimidating, but done by a public official or someone acting in an official capacity.
Art 2 - Effective measures to prevent torture in any territory under jurisdiction
Art 3 - No extradition when risk of torture (non-refoulment principle)
Art 4 - Criminalizing torture
Art 10 - Training law enforcement personnel
Art 12 - Impartial investigation of allegations of torture
Art 15 - Inadmissibility of evidence gained from torture (exclusionary rule)
Art 16 - State must try to prevent any acts which are not defined as torture within their territory but are instead cruel, inhuman or degrading treatment/punishment
Acosta v Uruguay
Even if there is a constitutional change so there is a new government in place, then it does not mean that the new government are not liable for the torture that was committed as the victims still deserve to have compensation.
Osbourne v Jamacia
Just because it is legal under domestic law does not mean it is legal under the Convenant, in this case found that the corporal punishment constitutes cruel, inhuman and degrading treatment contrary to Art 7
Article 3 of CAT
1) No state party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2) Competent authorities shall take into account all relevant considerations, where applicable, so existence of consistent pattern of violations of Art 7
Non-Refoulment cases
Chitat Ng v Canada - Extradition to America which would lead to death by asyphixation
Settling on principles (Committee cases) - Khan v Canada - Couldn’t deport to Pakistan as threat of torture. ‘Personally at risk’
Dewage v Australia - Couldn’t be returned to Sri Lanka as there was ‘Individual concerned would be personally at a foreseeable and real risk of being subjected to torture’
ECtHR - Othman v UK - Real risk of being subjected to treatment contrary to art 3
CAT General Comment No 1 (1997) - Risk must be assessed on grounds that go beyond mere theory or suspicion, but does not have to meet test of high probability, individual at risk but have established that they will be in danger of being tortured and the grounds
Non-Refoulment already returned
CAT - Agiza v Sweden (Context after 9/11 in relation to UN Security Council Resolution)
HRC - Alzery v Sweden
Both cases rely on diplomatic assurances being given to the country and then still the individual being tortured, even on the country that is getting rid of them soil.
Non-Refoulment European stance
Soering v United Kingdom (Death row phenomenon)
Chahal v United Kingdom
Saadi v Italy
Othman v United Kingdom
Chahal test
Substantial grounds have to be shown for believing that the person would face a real risk of being subjected to torture in the receiving country
Saadi v Italy
Tried to expel Saadi for inciting and membership in a terrorist organisation, so wanted to deport him back to Tunisia. They justify it under grounds of national security. The UK got involved and wanted to back them up in claiming that the risk of torture could not be weighed against the reasons Italy put forward. Italy tried to get diplomatic assurances that the applicant would not be subjected to torture but also pointed out Tuinisa were also obligated to the relevant international treaties and conventions, and apparently has guaranteed prisoners rights.
Held that they may be sufficient but not in this case, as they merely restated the law that was in place if the so called reliable sources engaged in the behaviour couldn’t be reliable.
Othman v United Kingdom
Jordan wanted to try him based upon evidence gained via torture but he was in the UK under asylum, and wanted to remain indefinitely. Tried to deport him which he then fought. Held although he may have been subjected to torture the diplomatic assurances worked in this place as they did not hold it was a contradiction of Art 3 but of Art 6 as he could not possibly get a fair trial as it was probable that they would have used evidence gained via torture to try him.
Assurances - There will be an examination of whether they face a real risk, in relation to general human rights situation and the particular characteristics of the applicant. Factors involved in assessment: Terms have been disclosed to court, assurances are specific or general or vague, who has given them if they can be binding, effective system of protection in the state
Ahmand v United Kingdom
US wanted to place 6 individuals in prison for multiple crimes, but they claimed that the ADX prison they would be sent to is contrary to Art 3 rights. Stated that in a domestic context easy to see if something has happened whether it is torture or inhuman treatment, but in another country in a prospective assessment it is much harder.
Exclusionary Rule
CAT Art 15 - States must prevent use of statements gained via torture to invoke evidence in a trial against someone.
A and Others v Secretary of State
Indefinite detention of foreign prisoners, then they were threatened with deportation without trial on basis there was some evidence that the individuals posed a threat to national security. Evidence used to detain them gained via torture in Pakistan.
Clash of visions of HR, Exclusionary rule it can’t be used at all but alternative position that the origin is irrelevant to the weight of the evidence. Leave it to the judge. They coupled it with national security.
After 9/11 used emergency powers to put in Anti-Terrorism, Crime and Security Act 2001. Alleged that the Secretary of State relied on evidence of third party evidence obtained via torture.
HoL hold the line that torture is not okay. They reject UK’s argument. But is this right?
Decision - Evidence obtained via torture might not be lawfully admitted against a party (Does not matter who carried them out)
Conventional approach to burden of proof inappropriate, so use test of admissibility laid down in Art 15 of Torture Convention
Although UK is dualist it is relevant as this principle comes from various sources, which act in harmony to have a unifying principle that a evidence obtained via torture should be suppressed.
Evloev v Kazakhstan
Emphasised that the broad scope of Art 15 is in line with the abolsute nature of the prohibition of torture
Gafgen v Germany
Court considers that trial’s fairness and the effective protection of the absolute prohibition of torture are only at stake if there has been shown that the breach of art 3 had a bearing on the conviction or sentence. He kidnapped a child and then murdered it, blackmailed parents so the police threatened him with considerable suffering so he confessed. Held that some of the evidence obtained via this was admissible.
Destchowitz
Warrant Torture - This would mean that Judges can warrant torture in certain circumstances, however where do you draw the line? If one thing is legal then may draw more illegal torture underground.
Lucan
Ticking time bomb - It escalates quickly if okayed, such as in Argentina
Middleton
Diplomatic Assurances - Might not be able to trust the government that are claiming they won’t torture the individual, and they’re likely to deny torture if it does happen anyway.
Marvronicola
Ahmand case - Only one that the UK government happy with, ADX not a breach of Art 3 per se, reiterarted it can’t be derogated from even in ticking time bomb, although makes the idea that Art 3 means something different in Colerado and UK
Volen
Soering - UK tried to argue unfair to be liable for what happens outside of state
Sometimes diplomatic assurances may be allowed but could harm relations between the countries if broken
Giuffe
DP - Although it’s meant to reduce the risk it doesn’t as no monitoring mechanism for them
Just because they don’t face it now doesnt mean they won’t in the future
