Chapter 9 Guidance on answering the self-test questions

1. What makes Article 3 an ‘absolute’ right?

The peremptory text (which unlike Article 8 admits of no grounds for restricting the right) and the fact that even in times of war or emergency facing the life of the nation, it is not possible to derogate from the right. International law more generally (in treaty form but also as jus cogens) also imposes an absolute ban at least on torture.

2. Define ‘torture’ and ‘inhuman treatment’; compare with the definition in UNCAT.

In Ireland v United Kingdom (1979–80) 2 EHRR 25, the ECtHR defined torture as ‘deliberate inhuman treatment causing very serious and cruel suffering’ and inhuman treatment is treatment that causes great suffering of either a physical or psychological kind, applied with intention and for significant periods of time. UNCAT section 1 is similar but it also makes a necessary link with the involvement, directly or indirectly, with state officials and is more specific about the purposes for which the suffering is imposed. The link to officials is not a requirement under the Convention.

3. Define ‘degrading treatment’.

Following a case such as Pretty v UK degrading treatment is such as to arouse in victims feelings of fear, anguish, and inferiority which is humiliating and debasing and is capable of breaking physical and moral resistance. Motive is not so important as with torture. Some forms of discrimination may amount to degrading treatment.

4. In what circumstances, if at all, does an investigative duty, similar to that in Article 2, arise in respect of Article 3?

If credible assertions of a breach of Article 3 for which the state is responsible are made. As with Article 2 the scope and nature of the investigation will depend upon circumstances.

5. What made the ECtHR hold that the applicants were ‘tortured’ in El Masri and other ‘extraordinary rendition’ cases?

The acquiescence of Macedonia and Poland (both are Convention states) in the torture etc. that was committed by non-Convention countries such as the USA or Afghanistan.

6. In what circumstances might Article 3 require states to support asylum seekers and other destitute people?

If they would otherwise be left destitute, taking into account the likely availability of non-state, charitable, relief (e.g. Limbuela v SSHD).

7. How can a state’s duties towards medical patients under Article 3 be balanced with their duties under Article 2?

This will depend upon the circumstances. To save a person’s life but at the expense of their basic dignity (i.e. leaving them in degrading situation) raises difficult issues of balance. The absolute nature of Article 3 (subject to the will of the patient as reflected in Article 8) may mean that Article 2 is outweighed).

8. On what grounds can Article 3 be used to prevent the deportation of a person from the UK to another country which is not a signatory of the ECHR?

If they are likely to suffer treatment in the receiving country that breaches Article 3. The extra-territorial approach of Article 3 further illustrates its absolute nature.