JUSTICE commentary

In the present context of the global ?war on terror?, many countries within and outside the EU have failed to uphold their commitment to prohibit torture and inhuman/degrading treatment. Serious concerns have been raised regarding the actual conditions in which Taliban / al-Qaeda suspects are being detained at the Camp X-Ray prison camp in Guantanamo Bay US naval base.[6] After September 11, many countries implemented laws[7] and policies that could facilitate acts of torture. Moreover, the absolute nature of the prohibition against torture has been questioned, raising serious concerns that some states are unwilling to accommodate even the most fundamental of human rights in the implementation of counter-terrorism measures[8].

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Indeed, the obligation against torture, inhuman or degrading treatment is so strong, that states are not only prohibited from practicing it themselves, but they are also prohibited from allowing others to be returned, removed or deported to countries where torture is practiced.[9]

Article 4 covers three separate categories of prohibited treatment or punishment: (1) torture; (2) inhuman treatment/punishment; and (3) degrading treatment/punishment. In each case ill-treatment ?must attain a minimum level of severity?. The threshold level is a minimum one: it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age[10] and state of health[11] of the victim, etc,?.[12] The distinction between the 3 grounds is typically one of intensity of treatment.[13]

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As with most rights, Article 4 is primarily directed against member states, their agents and servants. States are responsible, for example, for rapes[14] committed by its soldiers because no adequate measures had been taken to prevent them or to effect disciplinary measures after the event[15]. The responsibility of states is even recognised for acts committed by private persons, in situations where the state retains a degree of control or regulation. This is the case for instance when disciplinary corporal punishment is inflicted to students in private schools[16].States are under the obligation to secure for children the right to education that includes appropriate limits on school discipline and adequate protection to children?s physical and emotional integrity.[17]

There is no single, accepted definition of what constitutes ?torture?.? It is generally defined in broad terms like ?deliberate inhuman treatment causing very serious and cruel suffering?[18], whether physical or mental.

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?Deliberate? means that suffering must be inflicted intentionally. This includes intentional infliction of suffering for purposes of obtaining information, a confession, or to adminster a punishment.[19] Similarly, persons who are subjected to severe beatings[20] or raped[21] in police custody; persons deprived from eating, drinking or sleeping while in custody or people deprived of medical treatment[22] can considered to be victims of torture.

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Torture does not only have to be physical pain but can include the deliberate infliction of mental suffering,[23] ?by creating a state of anguish and stress by means other than bodily assault?.[24] Such actions as mock executions, death threats,[25] threats of rape[26], various humiliating acts and threats of reprisals against a detainee?s family[27] may all constitute mental suffering for the purposes of Article 4.

Like torture, inhuman treatment or punishment must attain a minimum level of severity. However, unlike torture, it is not necessary for the suffering to be intended in order to constitute inhuman treatment (although in practice it is likely that such an intention will be present). The main difference lies in the degree of suffering caused.[28] Clearly, less intense suffering is required than in the case of torture.

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Conduct giving rise to inhuman treatment may take various forms, including:

In most cases, assaults leading to inhuman treatment/punishment have been committed in custody or detention.[29] Examples of ill-treatment in custody or detention include individuals undergoing severe beatings; the application of electric shocks; squeezing someone?s head in a vice; pulling out hair; kicking of genitals; dripping of water on the head; intense noises to prevent sleep;[30] incidents of rape[31], etc.

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On the other hand, the mere fact that a person sustains injuries in the course of being arrested does not mean that they have necessarily suffered inhuman treatment.[32] This would only be true if the police had used excessive force (this involves a question of whether the force used was proportionate in the circumstances). For instance, using force to arrest a violent suspected drug trafficker which results in a fractured rib and bruises does not automatically amount to inhuman treatment.[33]

Interrogation techniques such as wall standing, hooding, subjection to noise, deprivation of sleep and deprivation of food and drink have all been considered to be amounting to inhuman treatment.

Overcrowded prisons with inadequate heating, toilets, sleeping arrangements, recreation and provision for contact with the outside world normally[39] amount to inhuman treatment. But so does the withholding of food and water[40], sensory isolation coupled with complete social isolation[41] and the withholding of medical treatment[42] from detainees. Not only poor conditions in prisons can lead to inhuman treatment but also mental hospitals with deplorable overcrowding in the dormitory and with bad sanitary conditions.

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The State is generally responsible concerning the treatment of prisoners. For instance, it has been held that the State is under the obligation to establish a range of minimum standards for all those aspects of prison administration that are essential to humane conditions and positive treatment in modern and progressive systems[43]. But a state cannot normally be responsible for self-imposed conditions of detention for example when detainees decide to smear their cells with waste food and urine or when they refuse to wear prison uniforms. However, the prison authorities must, despite a prisoner?s obstructive attitude, exercise their custodial role in a humane and flexible way, reviewing the situation constantly in order to protect the health and well-being of a person in their custody but with due regard for the ordinary and reasonable requirements of imprisonment.[44]

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The fact that conditions of detention do not comply with the 1973 Council of Europe Standard Minimum Rules for the Treatment of Prisoners, replaced by the 1987 European Rules[45] does not necessarily mean that there is a breach of the right not to be tortured or subjected to inhuman and degrading treatment or punishment.

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States enjoy a certain margin of appreciation in respect of conditions of detention when dealing with presumed terrorists[46].

The decision to extradite a suspect in breach of an extradition treaty or national law (including extradition for a political offence) is not itself contrary to Article 4. States have the right ?to control the entry, residence and expulsion of aliens?[49] and are free to conclude and carry out extradition agreements.[50] Moreover, States have the right, as a matter of well-established international law and subject to their treaty obligations to control the entry, residence and expulsion of aliens.[51]

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However, it will be a breach of Article 4 to deport, remove or extradite someone to a country where they face a real risk of torture or inhuman treatment. Such treatment may not always be deliberate, e.g. if a person is ill[52], his extradition or deportation may cause him such suffering as to amount to inhuman treatment, particularly if there are no facilities to provide appropriate care in the country of destination.[53] Similarly, a deportation that separates a mother from her young child could fall under Article 4, although this situation would more often be considered by the courts under the right to respect for family life.[54]

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The ill-treatment feared as a consequence of expulsion must be severe. There must be a real risk of ill-treatment, not a vague or speculative threat.[55] For instance, a general climate of violence in the destination country is not enough.[56] In order to assess such a risk, there is a duty on the removing state to consider the foreseeable consequences of removal in the light of the general situation in the receiving country[57] and the individuals? personal circumstances (e.g. someone?s state of health[58], his young age[59] or, if there is a real risk of their being imprisoned, the conditions of their imprisonment).[60]? The removing state may have regard to assurances and safeguards given by the receiving state, but only where it is clear that they will be effective.

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Degrading treatment or punishment is treatment that humiliates or debases its subject.[61] It must arouse in the victim a feeling of fear, anguish and inferiority and possibly break her or his physical or moral resistance.[62] The humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment.[63] The level of severity must be assessed having regard to the circumstances of each case.[64]

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Most cases concerning degrading treatment/punishment turn on their facts and it is difficult to extract principles of general application. For example: refusing to allow a suspect to change clothing soiled by his own defecation;[65] detaining a severely disabled person in conditions where the person risks to be dangerously cold, risks developing sores because the bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty;[66] having to spend a considerable part of the day practically confined to a bed in a cell with no ventilation and no window; or even obliging a detainee to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands.[67]? All these prison conditions complained of diminish the detainee?s human dignity and arouse feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. However, the wearing of a prison uniform,[68] the transportation or other appearance in public of a remand or convicted prisoner in handcuffs;[69] or in uniform[70] does not automatically result in degrading punishment.

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Claims of degrading treatment or punishment have also been considered in other contexts, such as the requirement to submit someone to a psychiatric examination[71], the failure to recognise a transsexual?s new sex[72], the humiliation suffered by defamatory remarks made by a public authority[73] or the constant surveillance by the police[74].

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Disciplinary corporal punishment in schools can also amount to degrading punishment.[75] For example, the whacking on the bottom with a gym shoe of a seven-year old boy without the parents consent can be regarded as degrading[76]or the caning of a person who is caught smoking.[77]? This can even include corporal punishment administered by parents or child-minders,[78] although claims concerning private or family life that involve allegations of degrading treatment are more likely to fall under that article.[79]

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