Art 3 of the ECHR and Art 3 of the ECHR and institutional careinstitutional care

Jan FialaJan Fiala

MDAC (Mental Disability Advocacy MDAC (Mental Disability Advocacy Center), BudapestCenter), Budapest

Article 3 of the European Article 3 of the European Convention on Human Rights:Convention on Human Rights:

3. No one shall be subjected to torture or 3. No one shall be subjected to torture or to inhuman and degrading treatment and to inhuman and degrading treatment and punishmentpunishment

This presentation talks This presentation talks aboutabout

Basic standards of Article 3 jurisprudence in Basic standards of Article 3 jurisprudence in other areasother areas

Violations of Article 3 in places of detentions:Violations of Article 3 in places of detentions: 1. Conditions of detention1. Conditions of detention 2. Specific acts of ill-treatment2. Specific acts of ill-treatment 3. Not providing the necessary care and 3. Not providing the necessary care and

accommodationaccommodation

Questions of proof and evidenceQuestions of proof and evidence

Article 3Article 3

3. No one shall be subjected to 3. No one shall be subjected to torturetorture or or to to inhumaninhuman and and degrading treatmentdegrading treatment and and punishmentpunishment

Torture: deliberate inhuman treatment causing Torture: deliberate inhuman treatment causing very serious and cruel sufferingvery serious and cruel suffering

Inhuman treatment or punishment: intense Inhuman treatment or punishment: intense physical or mental sufferingphysical or mental suffering

Degrading treatment or punishment: arouses in Degrading treatment or punishment: arouses in the victim feelings of fear, anguish and the victim feelings of fear, anguish and inferiority capable of humiliation and inferiority capable of humiliation and debasement and possibly breaking physical or debasement and possibly breaking physical or moral resistance moral resistance

Some definitions (Ireland v. the Some definitions (Ireland v. the United Kingdom):United Kingdom):

TortureTorture Special stigma attachedSpecial stigma attached Rare – so far not found in connection with Rare – so far not found in connection with

people with mental disabilitiespeople with mental disabilities Some examples: Some examples: Palestinian hanging (Aksoy v. Palestinian hanging (Aksoy v.

Turkey); severe forms of beating (Selmouni v. Turkey); severe forms of beating (Selmouni v. France, Dikme v. Turkey); severe beatings, France, Dikme v. Turkey); severe beatings, combined with denial of medical treatment combined with denial of medical treatment (Ilhan v. Turkey); electric shocks (Akkoc v. (Ilhan v. Turkey); electric shocks (Akkoc v. Turkey); rape (Aydin v. Turkey); falaka/falanga: Turkey); rape (Aydin v. Turkey); falaka/falanga: beatings on the soles of the feet (Salman v. beatings on the soles of the feet (Salman v. Turkey, Greek case), Force-feeding Turkey, Greek case), Force-feeding (Nevmerzhitsky v. Ukraine)(Nevmerzhitsky v. Ukraine)

Is every ill-treatment TIDTP?Is every ill-treatment TIDTP?

Must attain a Must attain a minimum level of severityminimum level of severity. . Relative standard, depends on the Relative standard, depends on the circumstances of the case - duration of circumstances of the case - duration of the treatment, its physical or mental the treatment, its physical or mental effects, sex, age and state of health of effects, sex, age and state of health of the victim (Ireland v. UK, para. 162)the victim (Ireland v. UK, para. 162)

Intention: its absence cannot conclusively Intention: its absence cannot conclusively rule out a finding of violationrule out a finding of violation

The state’s obligations The state’s obligations under Article 3:under Article 3:

Not to subject people to TIDTPNot to subject people to TIDTP Protect people from TIDTP committed by Protect people from TIDTP committed by

other individualsother individuals Investigate allegations of TIDTPInvestigate allegations of TIDTP

Violations of Article 3Violations of Article 3

1. Conditions of detention1. Conditions of detention 2. Specific acts of ill-treatment2. Specific acts of ill-treatment 3. Not providing the necessary care and 3. Not providing the necessary care and

accommodationaccommodation

1. Conditions of 1. Conditions of detentiondetention

So far no cases concerning psychiatric So far no cases concerning psychiatric hospitals or social care homeshospitals or social care homes

Violations found in detention centres, Violations found in detention centres, police cells, prisons,…police cells, prisons,…

Factors in determining Factors in determining inadequate conditions of inadequate conditions of detention:detention:

OvercrowdingOvercrowding Lack of sleepLack of sleep Toilets, showers (partitions, accessibilityToilets, showers (partitions, accessibility, ,

paperpaper)) Cleanness (rooms, sheetsCleanness (rooms, sheets, laundry, laundry)) FoodFood VentilationVentilation Heat, coldHeat, cold Lack of outdoor activitiesLack of outdoor activities General hygiene, insects, diseasesGeneral hygiene, insects, diseases

Cumulative effect:Cumulative effect:

““When assessing conditions of detention, When assessing conditions of detention, account has to be taken of the account has to be taken of the cumulative effects of these conditions, as cumulative effects of these conditions, as well as of specific allegations made by well as of specific allegations made by the applicant”the applicant” ((Dougoz v. GreeceDougoz v. Greece, para. , para. 46)46)

Examples:Examples: Labita v. ItalyLabita v. Italy Dougoz v. GreeceDougoz v. Greece Peers v. GreecePeers v. Greece Valasinas v. LithuaniaValasinas v. Lithuania Kalashnikov v. RussiaKalashnikov v. Russia Kehayov v. BulgariaKehayov v. Bulgaria Nevmerzhitsky v. UkraineNevmerzhitsky v. Ukraine Karalevicius v. LithuaniaKaralevicius v. Lithuania

OvercrowdingOvercrowding

“…“…the Court recalls that the European the Court recalls that the European Committee for the Prevention of Torture Committee for the Prevention of Torture and Inhuman or Degrading Treatment of and Inhuman or Degrading Treatment of Punishment (“the CPT”) has set 7 m² per Punishment (“the CPT”) has set 7 m² per prisoner as an approximate, desirable prisoner as an approximate, desirable guideline for a detention cell (see the 2nd guideline for a detention cell (see the 2nd General Report - CPT/Inf (92) 3, § 43)” – General Report - CPT/Inf (92) 3, § 43)” – (Kalashnikov v. Russia, para. 97 – (Kalashnikov v. Russia, para. 97 – misquoted misquoted the CPT!the CPT!))

The resource defenceThe resource defence

Lack of resources: not a valid excuse for Lack of resources: not a valid excuse for overcrowdedness or poor hygieneovercrowdedness or poor hygiene

There is a duty on states to organise their There is a duty on states to organise their detention system in such a way as to detention system in such a way as to comply with the requirements of Art 3comply with the requirements of Art 3

In length of detention cases: Mussi v. In length of detention cases: Mussi v. Italy, Sussmann v. Germany Italy, Sussmann v. Germany

CPT, 2nd general report, para. 44: “Ill-CPT, 2nd general report, para. 44: “Ill-treatment can take numerous forms, treatment can take numerous forms, many of which may not be deliberate but many of which may not be deliberate but rather the result of organisational failings rather the result of organisational failings or inadequate resources.” or inadequate resources.”

Article 3 of the European Article 3 of the European Convention on Human Rights:Convention on Human Rights:

3. No one shall be subjected to torture or 3. No one shall be subjected to torture or to inhuman and degrading treatment and to inhuman and degrading treatment and punishmentpunishment

3.2 There shall be no interference with 3.2 There shall be no interference with the exercise of this right except if it is too the exercise of this right except if it is too expensive to maintain humane conditions expensive to maintain humane conditions of detention. of detention.

How does it look in How does it look in hospitals:hospitals:

Aerts v. Belgium, para. 23: “When we visited Aerts v. Belgium, para. 23: “When we visited the common room the occupants stated that::the common room the occupants stated that::

there were too many of them;there were too many of them; they had nothing to do;they had nothing to do; they spent all day in the day-room, which they spent all day in the day-room, which

seemed a very long time to them;seemed a very long time to them; it was very hot;it was very hot; they did not have enough air because the they did not have enough air because the

windows were never opened;windows were never opened;

they were entitled to only one visit per week for they were entitled to only one visit per week for an hour and a half;an hour and a half;

they were not allowed to use the telephone;they were not allowed to use the telephone; they could change their clothes only very they could change their clothes only very

rarely;rarely; they were sent all the misfits from other places;they were sent all the misfits from other places; there were not enough supervisors (three there were not enough supervisors (three

during the week, and often fewer at the during the week, and often fewer at the weekend);weekend);

they had regular contact with the psychiatrist they had regular contact with the psychiatrist and were on very good terms with and were on very good terms with him.him. ” ”

2. Specific acts of ill-2. Specific acts of ill-treatmenttreatment

BeatingBeatingss (Labita, (Labita, DikmeDikme)) Rape (Aydin v. Turkey)Rape (Aydin v. Turkey) Body search (Valasinas)Body search (Valasinas) ElectrElectric ic shocks (Aksoy, Akkoc, Mikheyev)shocks (Aksoy, Akkoc, Mikheyev) Intentional humiliation (Labita, Selmouni)Intentional humiliation (Labita, Selmouni) Shaving of hair (Yankov)Shaving of hair (Yankov) (Lack of) medical treatment (Lack of) medical treatment (Ilhan)(Ilhan) (Lack of) p(Lack of) protection (Edwards) rotection (Edwards) Segregation (Herczegfalvy, Keenan)Segregation (Herczegfalvy, Keenan) Strapping to bedStrapping to bed, handcuffing, handcuffing ( (Herczegfalvy, Herczegfalvy, Henaf)Henaf) Force-feeding, overmedication (Nevmerzhitsky)Force-feeding, overmedication (Nevmerzhitsky)

Beatings and physical Beatings and physical violanceviolance

Tomasi v. FranceTomasi v. France: “Any use of physical : “Any use of physical force in respect of a person deprived of force in respect of a person deprived of his liberty which is not made strictly his liberty which is not made strictly necessary as a result of his own conduct necessary as a result of his own conduct violates human dignity and must violates human dignity and must therefore be regarded as a breach of the therefore be regarded as a breach of the right guaranteed under Article 3 (art. 3) of right guaranteed under Article 3 (art. 3) of the Convention.”the Convention.”

Shaving of headShaving of head

Yankov v. Bulgaria, para. 112: “the Yankov v. Bulgaria, para. 112: “the forced shaving off of a prisoner's hair …forced shaving off of a prisoner's hair …consists in a forced change of the consists in a forced change of the person's appearance by the removal of person's appearance by the removal of his hair. The person undergoing that his hair. The person undergoing that treatment is very likely to experience a treatment is very likely to experience a feeling of inferiority as his physical feeling of inferiority as his physical appearance is changed against his will”appearance is changed against his will”

Para. 117: “…even if it was not intended Para. 117: “…even if it was not intended to humiliate, the removal of the to humiliate, the removal of the applicant's hair without specific applicant's hair without specific justification contained in itself an arbitrary justification contained in itself an arbitrary punitive element and was therefore likely punitive element and was therefore likely to appear in his eyes to be aimed at to appear in his eyes to be aimed at debasing and/or subduing him.”debasing and/or subduing him.”

Lack of protectionLack of protection

Edwards v. UK, para. 47:”…there was a Edwards v. UK, para. 47:”…there was a breach of the positive obligation imposed breach of the positive obligation imposed on the authorities to protect the life of on the authorities to protect the life of their son. Although the scope of such a their son. Although the scope of such a positive obligation might vary, it was positive obligation might vary, it was particularly stringent where an individual particularly stringent where an individual died in custody.died in custody.””

Lack of healthcareLack of healthcare

Keenan v. UK, para. 111: “…. the Keenan v. UK, para. 111: “…. the authorities are under an obligation to authorities are under an obligation to protect the health of persons deprived of protect the health of persons deprived of liberty. The lack of appropriate medical liberty. The lack of appropriate medical care may amount to treatment contrary to care may amount to treatment contrary to Article 3.”Article 3.”

SeclusionSeclusion CPT’s 8 th deneral report, para. 49: “CPT’s 8 th deneral report, para. 49: “There is a There is a

clear trend in modern psychiatric practice in clear trend in modern psychiatric practice in favour of avoiding seclusion of patients...favour of avoiding seclusion of patients...

For so long as seclusion remains in use, it For so long as seclusion remains in use, it should be the subject of a detailed policy should be the subject of a detailed policy spelling out, in particular: the types of cases in spelling out, in particular: the types of cases in which it may be used; the objectives sought; its which it may be used; the objectives sought; its duration and the need for regular reviews; the duration and the need for regular reviews; the existence of appropriate human contact; the existence of appropriate human contact; the need for staff to be especially attentive.need for staff to be especially attentive.

Seclusion should never be used as a Seclusion should never be used as a punishment.punishment.

SeclusionSeclusion

Keenan v. UK, Para 116: The belated Keenan v. UK, Para 116: The belated imposition on him in those circumstances of a imposition on him in those circumstances of a serious disciplinary punishment – seven days’ serious disciplinary punishment – seven days’ segregation in the punishment block …is not segregation in the punishment block …is not compatible with the standard of treatment compatible with the standard of treatment required in respect of a mentally ill person. It required in respect of a mentally ill person. It must be regarded as constituting inhuman and must be regarded as constituting inhuman and degrading treatment and punishment within the degrading treatment and punishment within the meaning of Article 3 of the Convention.meaning of Article 3 of the Convention.

Handcuffing to bed - Handcuffing to bed - HerczegfalvyHerczegfalvy

Para. 13: “he was extremely aggressive” Para. 13: “he was extremely aggressive” Para. 79: “[H]e had been forcibly Para. 79: “[H]e had been forcibly

administered food and neuroleptics, administered food and neuroleptics, isolated and attached with handcuffs to a isolated and attached with handcuffs to a security bed during the weeks following security bed during the weeks following the incident of 15 January 1980…”the incident of 15 January 1980…”

Para. 82: “…the position of inferiority and Para. 82: “…the position of inferiority and powerlessness which is typical of patients powerlessness which is typical of patients confined in psychiatric hospitals calls for confined in psychiatric hospitals calls for increased vigilance in reviewing whether the increased vigilance in reviewing whether the Convention has been complied with. While it is Convention has been complied with. While it is for the medical authorities to decide, on the for the medical authorities to decide, on the basis of the recognised rules of medical basis of the recognised rules of medical science, on the therapeutic methods to be science, on the therapeutic methods to be used, if necessary by force, to preserve the used, if necessary by force, to preserve the physical and mental health of patients who are physical and mental health of patients who are entirely incapable of deciding for themselves entirely incapable of deciding for themselves and for whom they are therefore responsible, and for whom they are therefore responsible, such patients nevertheless remain under the such patients nevertheless remain under the protection of Article 3 (art. 3), whose protection of Article 3 (art. 3), whose requirements permit of no derogation.”requirements permit of no derogation.”

Para. 82: “The established principles of Para. 82: “The established principles of medicine are admittedly in principle medicine are admittedly in principle decisive in such cases; as a general rule, decisive in such cases; as a general rule, a measure which is a therapeutic a measure which is a therapeutic necessity cannot be regarded as necessity cannot be regarded as inhuman or degrading. The Court must inhuman or degrading. The Court must nevertheless satisfy itself that the nevertheless satisfy itself that the medical necessity has been convincingly medical necessity has been convincingly shown to exist.shown to exist.””

Medical necessity: “a measure which is a Medical necessity: “a measure which is a therapeutic necessity cannot be regarded therapeutic necessity cannot be regarded as inhuman and degrading.” – is there as inhuman and degrading.” – is there only one standard? Which doctor only one standard? Which doctor decides?decides?

Handcuffing to bed - Handcuffing to bed - HenafHenaf

Para. 55: “…certain acts previously Para. 55: “…certain acts previously falling outside the scope of Article 3 falling outside the scope of Article 3 might in future attain the required level of might in future attain the required level of severity.”severity.”

Para. 56: “…the Court considers that the Para. 56: “…the Court considers that the use of restraints was disproportionate to use of restraints was disproportionate to the needs of security, particularly as two the needs of security, particularly as two police officers had been specially placed police officers had been specially placed on guard outside the applicant's room.”on guard outside the applicant's room.”

Physical restraintsPhysical restraints CPT, 8th General Report, para. 48: “Resort to CPT, 8th General Report, para. 48: “Resort to

instruments of physical restraint (straps, strait-instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified jackets, etc.) shall only very rarely be justified and must always be either expressly ordered and must always be either expressly ordered by a doctor or immediately brought to the by a doctor or immediately brought to the attention of a doctor with a view to seeking his attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to approval. If, exceptionally, recourse is had to instruments of physical restraint, they should instruments of physical restraint, they should be removed at the earliest opportunity; they be removed at the earliest opportunity; they should never be applied, or their application should never be applied, or their application prolonged, as a punishment.”prolonged, as a punishment.”

Physical restraintsPhysical restraints

CPT, 8th General Report, para. 48: “The CPT, 8th General Report, para. 48: “The CPT has on occasion encountered CPT has on occasion encountered psychiatric patients to whom instruments psychiatric patients to whom instruments of physical restraint have been applied of physical restraint have been applied for a period of days; the Committee must for a period of days; the Committee must emphasise that such a state of affairs emphasise that such a state of affairs cannot have any therapeutic justification cannot have any therapeutic justification and amounts, in its view, to ill-treatment.”and amounts, in its view, to ill-treatment.”

Force-feedingForce-feeding

Herczegfalvy v. Austria, para. 79: “[H]e Herczegfalvy v. Austria, para. 79: “[H]e had been forcibly administered food and had been forcibly administered food and neuroleptics, isolated and attached with neuroleptics, isolated and attached with handcuffs to a security bed during the handcuffs to a security bed during the weeks following the incident of 15 weeks following the incident of 15 January 1980…”January 1980…”

Force-feedingForce-feeding

Nevmerzhitsky v. Ukraine, para. 96: no Nevmerzhitsky v. Ukraine, para. 96: no medical report on the necessity of force-medical report on the necessity of force-feedingfeeding

“ “[T]he force-feeding of the applicant, [T]he force-feeding of the applicant, without any medical justification having without any medical justification having been shown by the government, …been shown by the government, …resisted by the applicant, constituted resisted by the applicant, constituted treatment of such a severe character treatment of such a severe character warranting the characterisation of torture.warranting the characterisation of torture.

Electro-shocksElectro-shocks

……the CPT has expressed particular the CPT has expressed particular concern about ECT (Electroconvulsive concern about ECT (Electroconvulsive therapy) in unmodified form (i.e. without therapy) in unmodified form (i.e. without anaesthetic and muscle relaxants). It is of anaesthetic and muscle relaxants). It is of the opinion that this method can no the opinion that this method can no longer be considered as acceptable in longer be considered as acceptable in modern psychiatric practice (8th General modern psychiatric practice (8th General Report of the CPT, para. 39).Report of the CPT, para. 39).

Other methods of Other methods of “therapy”?“therapy”?

Showers (too much, too little)Showers (too much, too little) Deprivation of toys, foodDeprivation of toys, food No access to familyNo access to family Seclusion, restraintsSeclusion, restraints Cleaning workCleaning work RapeRape

3. Lack of care and 3. Lack of care and accommodationaccommodation

Keenan Keenan PricePrice McGlinchey McGlinchey AertsAerts KudlaKudla BensaidBensaid SalkicSalkic

Keenan v. UKKeenan v. UK

Mark Keenan suffered from a psychiatric Mark Keenan suffered from a psychiatric illness. He was serving a 4 months illness. He was serving a 4 months sentence in prison. He was given sentence in prison. He was given disciplinary punishment of 28 days disciplinary punishment of 28 days segregation 9 days before discharge. He segregation 9 days before discharge. He committed suicide by hanging himself. committed suicide by hanging himself.

Keenan v. UKKeenan v. UK

Para 116: “Para 116: “The belated imposition on him in The belated imposition on him in those circumstances of a serious disciplinary those circumstances of a serious disciplinary punishmentpunishment – seven days’ segregation in the – seven days’ segregation in the punishment block and an additional twenty-punishment block and an additional twenty-eight days to his sentence imposed two weeks eight days to his sentence imposed two weeks after the event and only nine days before his after the event and only nine days before his expected date of release… expected date of release… is not compatible is not compatible with the standard of treatment required in with the standard of treatment required in respect of a mentally ill personrespect of a mentally ill person.”.”

Price v. UKPrice v. UK

Adele Price was a four-limb deficient Adele Price was a four-limb deficient thalidomide victim with kidney problems. thalidomide victim with kidney problems. She was sentenced to 7 days immediate She was sentenced to 7 days immediate imprisonment for contempt of court. The imprisonment for contempt of court. The first day she had to spend in a police first day she had to spend in a police station, which was not prepared to station, which was not prepared to accommodate people with disabilities.accommodate people with disabilities.

Price v. UKPrice v. UK

Para. 30: “There is no evidence in this case of Para. 30: “There is no evidence in this case of any positive intention to humiliate or debase any positive intention to humiliate or debase the applicant. However, the Court considers the applicant. However, the Court considers that to detain a severely disabled person in that to detain a severely disabled person in conditions where she is dangerously cold, risks conditions where she is dangerously cold, risks developing sores because her bed is too hard developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to constitutes degrading treatment contrary to Article 3 of the Convention.”Article 3 of the Convention.”

McGlinchey v. UKMcGlinchey v. UK

Judith McGlinchey was a heroin addict Judith McGlinchey was a heroin addict with severe withdrawal symptoms with severe withdrawal symptoms detained in prison, where she died as detained in prison, where she died as result of vomiting and dehydrationresult of vomiting and dehydration

McGlinchey v. UKMcGlinchey v. UK Para. 57: “[B]y the morning of 14 December Para. 57: “[B]y the morning of 14 December

1998 Judith McGlinchey, a heroin addict whose 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not nutritional state and general health were not good on admission to prison, had suffered good on admission to prison, had suffered serious weight loss and was dehydrated... This serious weight loss and was dehydrated... This situation, in addition to causing Judith situation, in addition to causing Judith McGlinchey distress and suffering, posed very McGlinchey distress and suffering, posed very serious risks to her health, as shown by her serious risks to her health, as shown by her subsequent collapse. subsequent collapse. Having regard to the Having regard to the responsibility owed by prison authorities to responsibility owed by prison authorities to provide the requisite medical care for detained provide the requisite medical care for detained personspersons, the Court finds that in the present , the Court finds that in the present case there was a failure to meet the standards case there was a failure to meet the standards imposed by Article 3 of the Convention.imposed by Article 3 of the Convention.

Aerts v. BelgiumAerts v. Belgium

Detention of a mentally ill person in a Detention of a mentally ill person in a prison because of no free space in prison because of no free space in psychiatric hospitalpsychiatric hospital

Para. 61: “In the present case the Para. 61: “In the present case the applicant had literally been left to his own applicant had literally been left to his own devices and had not received any regular devices and had not received any regular medical or psychiatric attention.”medical or psychiatric attention.”

Aerts v. BelgiumAerts v. Belgium

Para. 66.: “In the present case there is no Para. 66.: “In the present case there is no proof of a deterioration of Mr Aerts’s proof of a deterioration of Mr Aerts’s mental health. The living conditions on mental health. The living conditions on the psychiatric wing at Lantin do not the psychiatric wing at Lantin do not seem to have had such serious effects seem to have had such serious effects on his mental health as would bring them on his mental health as would bring them within the scope of Article 3.”within the scope of Article 3.”

Kudla v. PolandKudla v. Poland

Applicant suffering from severe Applicant suffering from severe depression was detained in prison depression was detained in prison without adequate psychiatric care. He without adequate psychiatric care. He repeatedly attempted to commit suicide.repeatedly attempted to commit suicide.

Kudla v. PolandKudla v. Poland Para. 94: “…the State must ensure that a Para. 94: “…the State must ensure that a

person is detained in conditions which are person is detained in conditions which are compatible with respect for his human dignity, compatible with respect for his human dignity, that the manner and method of the execution that the manner and method of the execution of the measure do not subject him to distress of the measure do not subject him to distress or hardship of an intensity exceeding the or hardship of an intensity exceeding the unavoidable level of suffering inherent in unavoidable level of suffering inherent in detention and that, given the practical detention and that, given the practical demands of imprisonment, his health and well-demands of imprisonment, his health and well-being are adequately secured by, among other being are adequately secured by, among other things, providing him with the requisite medical things, providing him with the requisite medical assistance.”assistance.”

Kudla v. PolandKudla v. Poland

Para. 99: “the very nature of the applicant's Para. 99: “the very nature of the applicant's psychological condition made him more psychological condition made him more vulnerable than the average detainee and … vulnerable than the average detainee and … his detention may have exacerbated to a his detention may have exacerbated to a certain extent his feelings of distress, anguish certain extent his feelings of distress, anguish and fear. …[F]rom 11 June to 29 October 1996 and fear. …[F]rom 11 June to 29 October 1996 the applicant was kept in custody despite a the applicant was kept in custody despite a psychiatric opinion that continuing detention psychiatric opinion that continuing detention could jeopardise his life because of a likelihood could jeopardise his life because of a likelihood of attempted suicide.” of attempted suicide.”

Bensaid v. UKBensaid v. UK

Proposed expulsion to Algeria of a Proposed expulsion to Algeria of a person suffering from severe person suffering from severe schizophrenia.schizophrenia.

Bensaid v. UKBensaid v. UK

Para. 38: “…medical treatment is Para. 38: “…medical treatment is available to the applicant in Algeria. The available to the applicant in Algeria. The fact that the applicant's circumstances in fact that the applicant's circumstances in Algeria would be less favourable than Algeria would be less favourable than those enjoyed by him in the United those enjoyed by him in the United Kingdom is not decisive from the point of Kingdom is not decisive from the point of view of Article 3 of the Convention.”view of Article 3 of the Convention.”

Salkic v. SwedenSalkic v. Sweden

Applicant Muslim family suffered from Applicant Muslim family suffered from psychiatric problems (post-traumatic psychiatric problems (post-traumatic disorder because of the Bosnian was), disorder because of the Bosnian was), and claimed that there are no adequate and claimed that there are no adequate psychiatric facilities in Bosnia to prevent psychiatric facilities in Bosnia to prevent them from suicide.them from suicide.

Salkic v. SwedenSalkic v. Sweden

“…“…even though mental health care in Bosnia even though mental health care in Bosnia and Herzegovina clearly is not of the same and Herzegovina clearly is not of the same standard as in Sweden, there are health care standard as in Sweden, there are health care centres which include mental health units and centres which include mental health units and there are apparently several on-going projects there are apparently several on-going projects to improve the situation. In any event, the fact to improve the situation. In any event, the fact that the applicants’ circumstances in Bosnia that the applicants’ circumstances in Bosnia and Herzegovina are less favourable than and Herzegovina are less favourable than those enjoyed by them while they were in those enjoyed by them while they were in Sweden cannot be regarded as decisive from Sweden cannot be regarded as decisive from the point of view of Article 3.”the point of view of Article 3.”

Evidentiary rulesEvidentiary rules

Beyond reasonable doubt – very high, Beyond reasonable doubt – very high, often often criticisedcriticised

The Court can draw inferences from The Court can draw inferences from certain facts (Tomasi v. France)certain facts (Tomasi v. France)

Non-investigation: separate violation and Non-investigation: separate violation and also a prima-facie evidence of substantial also a prima-facie evidence of substantial violationviolation

The standardThe standard

Nevmerzhitsky v. Ukraine, para. 72: “The Nevmerzhitsky v. Ukraine, para. 72: “The Court reiterates that, in assessing Court reiterates that, in assessing evidence, it adopts the standard of proof evidence, it adopts the standard of proof “beyond reasonable doubt”. Such proof “beyond reasonable doubt”. Such proof may follow from the coexistence of may follow from the coexistence of sufficiently strong, clear and concordant sufficiently strong, clear and concordant inferences or of a similar unrebutted inferences or of a similar unrebutted presumptions of fact.”presumptions of fact.”

Mikheyev v. Russia, para. 102: „…Mikheyev v. Russia, para. 102: „…where the where the events in issue lie wholly, or in large part, events in issue lie wholly, or in large part, within the exclusive knowledge of the within the exclusive knowledge of the authorities, as in the case of persons within authorities, as in the case of persons within their control in custody (as in the present their control in custody (as in the present case), strong presumptions of fact will arise in case), strong presumptions of fact will arise in respect of injuries occurring during such respect of injuries occurring during such detention. In such cases the burden of proof detention. In such cases the burden of proof may be regarded as resting on the authorities may be regarded as resting on the authorities to provide a satisfactory and convincing to provide a satisfactory and convincing explanation... In the absence of such explanation... In the absence of such explanation the Court can draw inferences explanation the Court can draw inferences which may be unfavourable for the respondent which may be unfavourable for the respondent Government.Government.””

Inferences – shift of the Inferences – shift of the burden of proof (?)burden of proof (?)

Tomasi v. France (Tomasi v. France (27.8.199227.8.1992), para. 115: [The ), para. 115: [The Court]Court] finds it sufficient to observe that the finds it sufficient to observe that the medical certificates and reports, drawn up in medical certificates and reports, drawn up in total independence by medical practitioners, total independence by medical practitioners, attest to the large number of blows inflicted on attest to the large number of blows inflicted on Mr Tomasi and their intensity; these are two Mr Tomasi and their intensity; these are two elements which are sufficiently serious to elements which are sufficiently serious to render such treatment inhuman and degrading.render such treatment inhuman and degrading.

Selmouni v. France, para. 87: “The Court Selmouni v. France, para. 87: “The Court considers that where an individual is considers that where an individual is taken into police custody in good health taken into police custody in good health but is found to be injured at the time of but is found to be injured at the time of release, it is incumbent on the State to release, it is incumbent on the State to provide a plausible explanation of how provide a plausible explanation of how those injuries were caused, failing which those injuries were caused, failing which a clear issue arises under Article 3 of the a clear issue arises under Article 3 of the Convention.”Convention.”

What if the medical What if the medical report does not help?report does not help?

Aidyin v. Turkey, Aidyin v. Turkey, 25.9.1997, para. 107: 25.9.1997, para. 107: „„The The Court notes that the requirement of a thorough Court notes that the requirement of a thorough and effective investigation into an allegation of and effective investigation into an allegation of rape in custody at the hands of a State official rape in custody at the hands of a State official also implies that the victim be examined, with also implies that the victim be examined, with all appropriate sensitivity, by medical all appropriate sensitivity, by medical professionals with particular competence in this professionals with particular competence in this area and whose independence is not area and whose independence is not circumscribed by instructions given by the circumscribed by instructions given by the prosecuting authority as to the scope of the prosecuting authority as to the scope of the examination. It cannot be concluded that the examination. It cannot be concluded that the medical examinations ordered by the public medical examinations ordered by the public prosecutor fulfilled this requirement.prosecutor fulfilled this requirement.””

Akkoc v. Turkey, judgment 10.10.2000Akkoc v. Turkey, judgment 10.10.2000 , para. 118: , para. 118: ““The Court further endorses the comments expressed The Court further endorses the comments expressed by the Commission concerning the importance of by the Commission concerning the importance of independent and thorough examinations of persons on independent and thorough examinations of persons on release from detention. The European Committee for release from detention. The European Committee for the Prevention of Torture (CPT) has also emphasised the Prevention of Torture (CPT) has also emphasised that that proper medical examinationsproper medical examinations are an essential are an essential safeguard against ill-treatment of persons in custody. safeguard against ill-treatment of persons in custody. Such examinations must be carried out by a Such examinations must be carried out by a properly properly qualified doctor, without any police officer being qualified doctor, without any police officer being present and the report of the examination must include present and the report of the examination must include not only the detail of any injuries found, but the not only the detail of any injuries found, but the explanations given by the patient as to how they explanations given by the patient as to how they occurred and the opinion of the doctor as to whether occurred and the opinion of the doctor as to whether the injuries are consistent with those explanationsthe injuries are consistent with those explanations. The . The practices of cursory and collective examinations practices of cursory and collective examinations illustrated by the present case undermines the illustrated by the present case undermines the effectiveness and reliability of this safeguard.effectiveness and reliability of this safeguard.

Example of CPT referenceExample of CPT reference

Nevmerzhitsky v. Ukraine, para. 86: Nevmerzhitsky v. Ukraine, para. 86: “taking into account that the applicant’s “taking into account that the applicant’s submissions are consistent, thorough submissions are consistent, thorough and correspond in general to the and correspond in general to the inspections of the pre-trial detention inspections of the pre-trial detention centres in Ukraine conducted by CPT centres in Ukraine conducted by CPT and the Commissioner of Human and the Commissioner of Human Rights…” the Court finds a violation of Rights…” the Court finds a violation of Article 3.Article 3.

This presentation talked This presentation talked aboutabout

Basic standards of Article 3 jurisprudence in Basic standards of Article 3 jurisprudence in other areasother areas

Violations of Article 3 in places of detentions:Violations of Article 3 in places of detentions: 1. Conditions of detention1. Conditions of detention 2. Specific acts of ill-treatment2. Specific acts of ill-treatment 3. Not providing the necessary care and 3. Not providing the necessary care and

accommodationaccommodation

Questions of proof and evidenceQuestions of proof and evidence

List of casesList of cases

Aerts v. Belgium, judgment 30.7.1998, 25357/94Aerts v. Belgium, judgment 30.7.1998, 25357/94 Akkoc v. Turkey, judgment 10.10.2000, 22947/93 and Akkoc v. Turkey, judgment 10.10.2000, 22947/93 and

22948/93 22948/93 Aksoy v. Turkey (1), judgment 18.12.1996, 21987/93Aksoy v. Turkey (1), judgment 18.12.1996, 21987/93 Aydin v. Turkey, judgment 25.9.1997, 23178/94Aydin v. Turkey, judgment 25.9.1997, 23178/94 Bensaid v. the United Kingdom, judgment 6.2.2001, Bensaid v. the United Kingdom, judgment 6.2.2001,

44599/9844599/98 Dougoz v. the Greece, judgment 6.3.2001, 40907/98 Dougoz v. the Greece, judgment 6.3.2001, 40907/98 Paul and Audrey Edwards v. the United Kingdom, Paul and Audrey Edwards v. the United Kingdom,

judgment 14.3.2002, 46477/99judgment 14.3.2002, 46477/99

List of casesList of cases

Hénaf v. France, judgment 27.11.2003, 65436/01 Hénaf v. France, judgment 27.11.2003, 65436/01 Herczegfalvy v. Austria, judgment 24.9.1992, 10533/83Herczegfalvy v. Austria, judgment 24.9.1992, 10533/83 Kalashnikov v. Russia, judgment 15.7.2002, 47095/99 Kalashnikov v. Russia, judgment 15.7.2002, 47095/99 Karalevicius v. Lithuania, judgment 7.4.2005, 53254/99 Karalevicius v. Lithuania, judgment 7.4.2005, 53254/99 Keenan v. the United Kingdom, judgment 3.4.2001, Keenan v. the United Kingdom, judgment 3.4.2001,

27229/95 27229/95 Kehayov v. Bulgaria, judgment 18.1.2005, 41035/98Kehayov v. Bulgaria, judgment 18.1.2005, 41035/98 Kudla v. Poland, judgment 26.10.2000, 30210/96 Kudla v. Poland, judgment 26.10.2000, 30210/96 Labita v. Italy, judgment 6.4.2000, 26772/95 Labita v. Italy, judgment 6.4.2000, 26772/95

List of casesList of cases

McGlinchey and Others v. the United Kingdom, McGlinchey and Others v. the United Kingdom, judgment 29.4.2003, 50390/99judgment 29.4.2003, 50390/99

Mikheyev v. Russia, judgment 26.1.2006, 77617/01Mikheyev v. Russia, judgment 26.1.2006, 77617/01 Price v. the United Kingdom, judgment 10.7.2001, Price v. the United Kingdom, judgment 10.7.2001,

33394/9633394/96 Peers v. Greece, judgment 19.4.2001, 28524/95 Peers v. Greece, judgment 19.4.2001, 28524/95 Salkic and Others v. Sweden, admissibility decision Salkic and Others v. Sweden, admissibility decision

29.6.2004, 7702/043 29.6.2004, 7702/043 Selmouni v. France, judgment 28.7.1999, 25803/94 Selmouni v. France, judgment 28.7.1999, 25803/94 Slimani v. France, judgment 27.7.2004, 57671/00Slimani v. France, judgment 27.7.2004, 57671/00 Tomasi v. France, judgment 27.8.1992, 12850/87Tomasi v. France, judgment 27.8.1992, 12850/87 Valasinas v. Lithuania, judgment 24.7.2001, 44558/98 Valasinas v. Lithuania, judgment 24.7.2001, 44558/98 Yankov v. Bulgaria, judgment 11.12.2003, 39084/97 Yankov v. Bulgaria, judgment 11.12.2003, 39084/97

Art 3 of the ECHR and Art 3 of the ECHR and institutional careinstitutional care

Jan FialaJan Fiala

MDAC (Mental Disability Advocacy MDAC (Mental Disability Advocacy Center), BudapestCenter), Budapest

jfiala@mdac.infojfiala@mdac.info

Thank you for your attention!Thank you for your attention!