Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3 ECHR
| Author | Yutaka Arai-Yokoi |
| Published date | 01 September 2003 |
| DOI | 10.1177/016934410302100303 |
| Date | 01 September 2003 |
| Subject Matter | Part A: Article |
GRADING SCALE OF DEGRADATION: IDENTIFYING
THE THRESHOLD OF DEGRADING TREATMENT OR
YUTAKA ARAI-YOKOI*
Abstract
Among international human rights instruments, the rich jurisprudence on Article 3 of
the European Convention on Human Rights (ECHR) has yielded meaningful and
workable principles for defining the normative parameter of freedom from torture and
other forms of maltreatment. While identification of torture has been limited to a small
number of straightforward cases of assault giving rise to physical and mental anguish
of an especially aggravated character, the overwhelming majority of cases raised under
Article 3 have related to degrading or inhuman treatment or punishment. By focusing
upon threshold cases involving freedom from degrading treatment or punishment, the
least serious absolute right under Article 3, this article seeks to delineate the boundaries
of the effective guarantee provided by this absolute right in the Strasbourg organs
judicial policy. The examination suggests an encouraging sign that the Strasbourg
organs have funnelled considerable vigour and creativity into their law-making policy,
elaborating on the most succinct provision in the ECHR. They have capitalised on the
graduating scale of degrading treatment so as to diversify the protective scope of Article
3, in a continued search for progressive European public order. They have supplied to
individual victims a horizon of possible arguments, which can unfold along lines
conducive to the shaping and restructuring of the emerging European constitutional
system.
1. INTRODUCTION
Freedom from torture and other forms of ill-treatment is recognised as a
right of paramount significance under international human rights law.
1
Among international human rights instruments, the rich jurisprudence on
Article 3 of the European Convention on Human Rights has yielded
Netherlands Quarterly of Human Rights, Vol. 21/3, 385-421, 2003.
@ Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 385
* Lecturer in International Law and International Human Rights Law, Kent Law School,
University of Kent, United Kingdom, and Deputy Director of LL.M. Programme, Brussels
School of International Studies, Belgium. The author is grateful to Professors Robyn Martin
and James Crawford for their helpful comments on earlier drafts.
1
See, generally, Bank, R., ‘International Efforts to Combat Torture and Inhuman Treatment:
Have the New Mechanisms Improved Protection?’, 8 EJIL, 1997, p. 613; and Donnelly, J., ‘The
Emerging International Regime Against Torture’, 33 Nth. ILR, 1986, p. 1.
386
meaningful and workable principles for defining the normative parameter
of this fundamental right.
2
Article 3 prohibits torture, or inhuman or
degrading treatment or punishment in ‘absolute’ terms. It is not subject to
any express limitation by reference to saving clauses. Nor can the
prohibition be derogated from, even in time of war or other public
emergency, under Article 15.
3
In view of the absolute nature of the
prohibition, the rights envisaged in Article 3 constitute ‘one of the
fundamental values of the democratic societies making up the Council of
Europe’,
4
with the infringement of these rights viewed as an assault not only
on the dignity of an individual person but also on the public order of
Europe as a whole.
5
The non-derogable character of Article 3 and its
obligations erga omnes lend support to the view that prohibition of torture or
other forms of ill-treatment constitutes part of jus cogens in the normative
hierarchy of international law.
6
For Article 3 to come into play, there must exist a minimum level of
severity relative to a particular treatment or condition. The European Court
of Human Rights (the Court) has recognised that there is a three-tier
hierarchy of proscribed forms of ill-treatment: torture (‘‘seuil supe´rieur’’,
inhuman treatment or punishment, (‘‘seuil interme´diaire’’) and degrading
treatment or punishment (‘‘seuil minimum de de´clenchement de l’article
3’’).
7
In the Greek Case, the now defunct European Commission of Human
Rights (the Commission) confirmed this hierarchy, stating that all torture
must be inhuman and degrading treatment, and inhuman treatment also
Yutaka Arai-Yokoi
2
As regards Article 3 ECHR, see M.K. Addo and Grief, N., ‘Is There a Policy Behind the
Decisions and Judgments Relating to Article 3 of the European Convention on Human
Rights?’, 20 ELR, 1995, p. 178; ‘Does Article 3 of the European Convention on Human Rights
Enshrine Absolute Rights?’, 9 EJIL, 1998, p. 510; Cassese, A., ‘Prohibition of Torture and
Inhuman or Degrading Treatment or Punishment’ in: MacDonald, R.J., Matscher F., and
Petzold, H., (eds.), The European System for the Protection of Human Rights, Dordrecht, Martinus
Nijhoff, 1993, Ch. 11; van Dijk, P., and van Hoof, G.H.J., Theory and Practice of the European
Convention on Human Rights,3
rd
ed., The Hague, Kluwer, 1998, Ch. VII, para. 3; Duffy, P.J.,
‘Article 3 of the European Convention on Human Rights’, 32 ICLQ, 1983, p. 316; and Harris,
D. J., O’Boyle, M., and Warbrick, C., Law of the European Convention on Human Rights, London,
Butterworths, 1995, Ch. 3.
3
Ireland vs United Kingdom, Judgment of 18 January 1978, A 25, para. 163; and Ribitsch vs Austria,
Judgment of 4 December 1995, A 336, para. 32.
4
Soering vs United Kingdom, Judgment of 7 July 1989, A 161, para. 88.
5
In the First Greek Case, the Commission observed that ‘a Contracting party, when bringing an
alleged breach of the Convention before the Commission under Article 24, is not to be
regarded as exercising a right of action for the purpose of enforcing its own rights, but rather
as raising an alleged violation of the public order of Europe’: Nos. 3321-23 & 3344/67,
Decision of 24 January 1968, 1968, 11 Yearbook of the European Convention on Human Rights
(hereinafter Ybk) p. 730, at pp. 762-764. See also the applicant States’ argument in No. 9940-
44/82, France and Others vs Turkey, where they assailed administrative practice of ill-treatment
proscribed by Article 3: Decision of 6 December 1983, 1983, 26 Ybk Part. Two, p. 1, at p. 19.
6
See Human Rights Committee, General Comment 29, CCPR/C/21/Rev.1/Add.11, para. 11.
7
Sudre, F., ‘Article 3’, in: Pettiti, L-E. , Decaux E. and Imbert, P.-H., La Convention Europe
´enne
des Droits de l’Homme – Commentaire article par article, Paris, Economica, 1999, at p. 159.
degrading
8
Similarly in the Tyrer Case, the Court observed that not all
degrading treatment or punishment would amount to the level described as
inhuman.
9
Hence both the Court and the Commission (the Strasbourg
organs) have introduced an element of gradation or relativity into what is
termed an ‘absolute right’, with the threshold of gravity set at the lowest level
for degrading treatment or punishment. Further, as the Court emphasised
in the Selmouni Case,
10
the order or hierarchy distinguishing the three
categories of ill-treatment is fluid in nature. According to the Court, the
interpretation recognising the Convention as a ‘living instrument’ requires
the minimum standard of severity to be assessed in harmony with societal
progress. This entails two seminal implications. First, acts which were
classified as inhuman or even degrading treatment in the past might be
recognised as torture in the future.
11
Second, as seen in the prevalence of
abolitionist approach to capital punishment,
12
the strength of subsequent
State practice and opinio juris among the member States might be such that it
could help remove even a clear textual barrier
13
to the teleological
construction and identify inhuman and degrading treatment.
14
There is,
however, some doubt as to whether the threshold of torture can be lowered
to such an extent as to encompass conditions formerly regarded only as
degrading.
While identification of torture has been limited to a small number of
straightforward cases of assault giving rise to physical and mental anguish of
an especially aggravated character, the overwhelming majority of cases
raised under Article 3 have related to degrading or inhuman treatment or
punishment. Presumably due to the lower level of threshold, complaints of
degrading treatment have encompassed a plethora of issues ranging from
prison and detention conditions, corporal punishment, sex and racial
discrimination, to treatment of transsexuals. By exploring ‘threshold cases’
involving freedom from degrading treatment or punishment, the ‘least
serious’ absolute right under Article 3, this article seeks to delineate the
Grading Scale of Degradation
Netherlands Quarterly of Human Rights, Vol. 21/3 (2003) 387
8
12 Ybk (the Greek Case) 1969, p. 1 at p. 186.
9
Tyrer vs United Kingdom, Judgment of 25 April 1978, A 26, para. 29.
10
Selmouni vs France, Judgment of 28 July 1999, para. 101.
11
This Selmouni principle was also upheld by the Inter-American Court of Human Rights in the
Cantoral Benavides Case: Judgment of 18 August 2000, 8 IHRR 1049, para. 99.
12
Note that in order to remove the possibility of capital punishment in relation to acts
committed in time of war or of imminent threat of war, on 3 May 2002 the Council of Europe
adopted Protocol No. 13 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances.
The Protocol has come into force since 1 July 2003 when 10 instruments of ratification were
attained.
13
The second sentence of Article 2(1) reads that ‘[n]o one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime
for which penalty is provided by law’.
14
This possibility is suggested by the Court in O
¨calan vs Turkey, Judgment of 12 March 2003,
paras. 191, 193, 198 and 207.
To continue reading
Request your trial