Exeter Papers in European Law No. 10

The Scope of Article 3 of the European Convention on

Human Rights in relation to Suspected Terrorists

by Catharine Estelle Rowe*

* Submitted to the University of Exeter as a dissertation towards the degree of Master of Law by advanced study in European Law, September 2002.

1

ABSTRACT

This dissertation seeks to explore the scope of Article 3 of the European Convention

on Human Rights in relation to suspected terrorists.

The dissertation is structured in five chapters. The first illustrates the rationale

for this study. The second examines Article 3 ECHR. The third, fourth and fifth

inquire into the nature of Article 3 with a view to ultimately exposing the precise

scope of Article 3 in relation to suspected terrorists.

The conclusion drawn is that labelling Article 3 as absolute reveals very little

with regard to the scope of Article 3 in relation to suspected terrorists. Ill-treatment

falling within the scope of Article 3 is absolutely prohibited; there are no exceptions,

not even the battle against terrorism.

The absolute nature of Article 3 does not preclude the Strasbourg organs

enjoying great power in delimiting the precise scope of Article 3. It is here where the

heart of the issue ultimately lies. The conclusion drawn from an analysis of the

relevant case law is that a clear operational policy pervades all of the decisions of the

Commission and all of the judgments of the Court in the terrorist context. This

operational policy is applied in different grades depending on the subject category of

the case and on the specific circumstances particular to a respondent government.

Word Count: 17, 196

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TABLE OF CONTENTS

Title Page 1

Abstract 2

List of Contents 3-7

Dedication 8

INTRODUCTION

I. Human Rights are right 10

II. Terrorism is wrong 11

III. Terrorism: The Greatest Enemy to Human Rights 12

IV. Sinister Preludium 14

CHAPTER I

Rationale for this Study

I. The Prohibition of Torture, Inhuman or Degrading Treatment or

Punishment in relation to Suspected Terrorists 16

A. An Ideal Human Rights Norm 16

B. The Biggest Challenge to this Ideal Human Rights Norm: the

Suspected Terrorist 17

II. The Scope of Article 3 ECHR in relation to Suspected Terrorists 18

III. The Glum Reality of the Situation 19

CHAPTER II

Article 3 of the European Convention on Human Rights

I. The European Convention on Human Rights 21

II. Article 3 ECHR 23

A. The Text 23

B. Volume, Variety and Complexity of Issues 24

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C. The Tortured 25

D. The Torturer 25

E. The Entry Threshold 25

F. The Thresholds between the different ‘Heads’ of Ill-treatment 26

CHAPTER III

Is Article 3 an Absolute Right?

I. Dissatisfaction with Current ‘Game’ 28

II. The Literal Conception of an Absolute Right 29

A. An Absolute Right is Unrestricted 29

a. An absolute right allows for no derogation 29

b. An absolute right allows for no limitation or

qualification 31

c. An absolute right allows for no reservation 31

B. An Absolute Right is Complete 32

C. An Absolute Right is Perfect 33

a. In the event of a conflict between an absolute right and other

rights (which are not absolute rights) the former must always

prevail 33

b. Any allegation of a violation of an absolute right should be

rigorously investigated 33

c. The jurisdiction of the Court should be available to everyone

34

d. An absolute right should allow for no negotiation 35

e. An absolute right should provide effective redress to the

victim 36

D. Unrestricted, Complete and Perfect Rights do not exist in Practice 36

III. The Legal Conception of an Absolute Right 37

A. Principle Absolutism 37

B. Rule Absolutism 37

C. Individualism Absolutism 38

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IV. Article 3 is an Absolute Right: Ill-treatment falling within its Scope can

never be justified, not even to combat Terrorism 39

CHAPTER IV

Is there any Scope for the ‘Balancing Act’ and the Margin of Appreciation

Doctrine in relation to Article 3?

I. The ‘Balancing Act’ and the Margin of Appreciation Doctrine 42

A. The ‘Balancing Act’ 42

B. The Margin of Appreciation Doctrine 43

II. Article 3 allows no formal Scope for the Balancing Act and no Margin of

Appreciation 45

A. The ‘other’ Convention Rights allow Scope for the Balancing Act and

the Margin of Appreciation Doctrine 45

B. A Contrario, Article 3 allows no Scope for the Balancing Act and no

Margin of Appreciation 45

III. A Change of Emphasis reveals that Article 3 does allow Scope for the

Balancing Act and a Margin of Appreciation 46

A. A Change in Emphasis 46

B. The Correct Emphasis 46

IV. How the Strasbourg Organs delimit the Scope of Article 3, thus operating

the Balancing Act and granting a Margin of Appreciation to the

Respondent Government 47

A. The Balancing Act in operation 47

a. The severity of suffering approach: Article 3 as a relatively

absolute human rights norm 48

b. The severity of suffering approach is not adopted in practice:

Article 3 as an absolutely relative human rights norm 48

B. The Margin of Appreciation Doctrine in operation 49

V. There is Scope for the Balancing Act and the Margin of Appreciation

Doctrine in relation to Article 3 50

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CHAPTER V

Is there an Operational Policy behind the Decisions and Judgments relating to

Article 3 in the Context of Suspected Terrorists?

I. The Policies behind the Decisions and Judgments relating to Article 3 52

A. The Emergence of Policies 52

B. The General Policy 53

C. The Operational Policies 54

II. The Operational Policy in the Context of Suspected Terrorists 55

A. The Emergence of Policies in the Context of Suspected Terrorists 55

B. The General Operational Policy in the Context of Suspected Terrorists

55

C. The General Operational Policy is applied in different Grades 56

III. The Different Grades of the Operational Policy: Dependent upon the

Subject of the Case 57

A. The Treatment of Detainees suspected of Terrorist Activities 57

a. The Severity of Suffering Threshold is considerably

heightened 58

i. A harsh regime of detention is unlikely

to exceed the severity necessary to bring

it within the scope of Article 3 58

ii. Solitary confinement is unlikely to

exceed the severity necessary to bring it

within the scope of Article 3 58

b. The Obligation on the Government to take Positive Steps to

guard against Treatment contrary to Article 3 is not strictly

applied 59

B. The Extradition of a Suspected Terrorist 60

C. The Use of Psychological Interrogation Techniques 62

a. The use of psychological interrogation

techniques as a matter of administrative practice

during times of emergency 62

i. The obligation on the government to take

positive steps to guard against treatment

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that will be contrary to Article 3 is

strictly applied 65

ii. The evidentiary rules are relaxed 66

iii. The admissibility rules are relaxed 67

b. The use of psychological interrogation

techniques, not as a matter of administrative

practice, but as an isolated instance, during times

of emergency 69

IV. The Different Grades of the Operational Policy: Dependent upon Specific

Circumstances Particular to a Contracting State 70

A. The Obligation on the Government to take Positive Steps to guard against

Treatment that will be contrary to Article 3 is strictly applied 72

B. The Evidentiary Rules are relaxed 72

Concluding Remarks

What is the scope of Article 3 in relation to Suspected Terrorists?

74-75

Bibliography 76-86

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DEDICATION

I dedicate this dissertation to my boyfriend Jonathan O’Connor and to my parents

Meryl and Eric Rowe.

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INTRODUCTION

Guided by morals, ethics, religion and politics, from birth, humans inherently develop

a sense of what is right and what is wrong. Those who practice what is right are seen

as the good and those who practice what is wrong are seen as the bad.

The law dictates what is lawful and what is unlawful. What is lawful may not - in

every human’s eyes – translate to what is right. Likewise, what is unlawful may not

always be consistent with what is perceived as wrong.

For example, take the practice of Female Genital Mutilation (FGM). A Western

woman may believe it to be wrong. Conversely, an African woman may believe it to

be right.1 The international law of human rights prescribes that FGM is unlawful.2

Clearly, what is right and what is wrong is a subjective belief. Therefore, in stating a

belief of what is right or what is wrong, one must always identify the subject of that

belief. Similarly, when submitting that an action is lawful or unlawful, one must

identify the subject of that body of law. In the narrative below, the subject is the

international community guided by morals, ethics, religion and politics, striving to

promote democracy, peace and security.

1 See Yzl, ‘Female Circumcision: Cultural rights or human wrong?’ http://www.csvr.org.za/papers/papfemc.htm#note12 Article 2 of the Declaration on the Elimination of Violence against Women 1993, adopted by the G.A.Resolution 48/104, February 23,1994 states:

‘Violence against women shall be understood to encompass, but not limited to the following: (a) physical, sexual and psychological violence occurring in the family, including battery, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;’

As cited in Wallace and Dale-Risk, International Human Rights Text and Materials, (Sweet & Maxwell, London, second edition, 2001), p.34.

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I. Human Rights are right

Traditionally, human rights3 law governs the relationship between the individual and

the state.4 I have chosen to quote the second and third paragraphs of the preamble to

the Universal Declaration of Human Rights (UDHR)5 because it states better than

anything I have read what human rights are and why they are important.6

Whereas disregard and contempt for human rights have resulted in barbarous acts

which have outraged the conscience of mankind, and the advent of a world, in which

human beings shall enjoy freedom of speech and belief and freedom from fear and

want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last

response, to rebellion against tyranny and oppression, that human rights should be

protected by the rule of law…7

The UDHR was written and implemented in the aftermath of the Second World War.

The Holocaust and other similar horrors forced the international community to have a

crisis of conscience and consequently found that it could no longer look the other way

while tyrants tortured and killed.8

The UDHR marked the beginning of the strong worldwide human rights movement.

Today, there is a matrix of human rights treaties and a proliferation of Committees

and non-governmental organizations (NGOs) all promoting the respect of human

3 The expression ‘human rights’ will be used throughout this essay as convenient shorthand for the variety of phrases, which are commonly used to describe the broad concept enshrined in the composite formula ‘human rights and fundamental freedoms’. For a discussion on the language of human rights see Clapham, A Human Rights Policy for the European Community, (1990) 10 YEL 309, pp.310-311, as cited in Arnull ‘Opinion 2-94 and its Implications for the Future Constitution of the Union’, C.E.L.S. Occasional Paper, No.1, p.1. 4 “[Human rights are] … those rights that take the form of claims limiting the power of the government over the governed.” Shaw, International Law (Cambridge University Press, fourth edition, 1997), p.198.5 The UDHR was adopted by the United Nations General Assembly (G.A. Resolution 217A(III)) December 10, 1948. 6 Human Rights Web, ‘An Introduction to the Human Rights Movement’, http://www.hrweb.org/intro.html7 Universal Declaration of Human Rights http://www.un.org/Overview/rights.html8 Human Rights Web, ‘An Introduction to the Human Rights Movement’, http://www.hrweb.org/intro.html

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rights. Although, as any legal scholar is aware, the existence of this human rights

enterprise does not necessarily translate to a situation where human rights are now

respected. What it does clearly demonstrate is the international belief that basic

human rights must be protected, not only for the sake of the individuals and countries

involved, but also to preserve the human race.

Furthermore, human rights are the basis for creating strong, accountable states without

which there can be no political stability, nor economic and social progress.

From this narrative, it is difficult to imagine anyone of the international community

disputing the fact that human rights are right. Consequently, a state - in upholding the

human rights of those within its territory - is practicing what is right so is seen as

good.

II. Terrorism is wrong

Many attempts have been made to define terrorism. The spirit of terrorism is probably

best expressed in an ancient Chinese proverb: ‘Kill one to frighten ten thousand.’9

Although terrorism has existed for centuries, it is now more evil than ever. Some of

today’s organizations, motivated by radical nationalist or religious, seek to gain even

more control.10 In addition, terrorists over the years have become expert at using

conventional weapons, such as explosives and firearms, to maximum effect.11

A terrorist is someone who places himself outside the law. He will kill innocent,

unsuspecting civilians, gravely violating international and humanitarian laws and

possibly sacrifice his own life in order to fight for his cause.

9 Sandbu and Nordbeck, International Terrorism: Report from a Seminar Arranged by The European Law Students’ Association in Lund, Sweden, 1-3 October 1987, (Jurstförlaget i Lund Distribution: Akademibokhandeln i Lund, Sweden, 1989), p.39.10 The best example of this is Osama bin Laden and his international Al Qaeda network.11 Cilluffo and Rankin, ‘Fighting Terrorism’, NATO Review, Winter 2001/2002, p.13.

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Terrorism is a spiritual evil. A terrorist seeks to exterminate those parts of human

existence that make life worth living. Terrorism can only truly be understood as an

evil directed towards the human spirit.12

From this narrative, it is difficult to imagine that anyone of the international

community would hold a different belief to that of terrorism being wrong.

Consequently, a terrorist - as someone who practices what is wrong - is seen as bad.

III. Terrorism: The Greatest Enemy to Human Rights

In addition to the suggestion that human rights are right and terrorism is wrong, their

relationship is one that extends beyond the incompatible. Terrorism is the extreme

adversary in respect to human rights; they are polar opposites.

Terrorism dramatically shows itself to be the adversary of human rights because it

threatens the raison d’être of human rights. Terrorism seeks to disrupt the foundation

of our society by attacking the ideals of an open society with the objective of

damaging the institutions of democracy. The terrorist organization seeks to control the

innocent people through fear, using them to reach their own ends and placing them

under their arbitrary control. It is submitted that this is the rule of tyranny that we, the

international community, are desperately trying to eradicate.

The obligation placed on states by international law to guarantee certain human rights

not only entails a duty on the part of the state and its organizations to refrain from

violating actions, but also embodies an obligation for the powers of the state to take

positive measures in order to maintain these rights. Security is a dimension of the

protection of human rights and states are obliged to provide it to their citizens.

Terrorism that leads to the loss of human life, or the loss of personal freedom as well

as security, is always a violation of the human being’s inherent rights. Therefore, a

state that fails to defend itself, its territory and everyone living there against terrorism,

has shown itself incapable of upholding human rights. A state which indulges in,

12 Forte, ‘It’s Still Evil, Stupid’, National Review Online, July 2002, http://www.ashbrook.org/publicat/oped/forte/02/evil.html

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supports or tolerates terrorism has at the same time indulged in, supported or tolerated

serious violations of human rights.13

Human rights have to be fought for; it is the fight against the infringement of these

rights by decisions taken by the governing institutions. In other words they are claim-

rights; they are justified claims to the carrying out of correlative duties by the state. A

duty is the requirement that an action is carried out or not carried out (i.e. a

prohibition). A right is fulfilled when the correlative duty is carried out. This first idea

is common to all human rights.14

For most human rights in certain circumstances a state may ‘interfere’ and thereby

override a right. The right is justifiably infringed. This is the case for all qualified or

derogable rights. A qualified right permits proportionate state interference where that

interference is prescribed by law, is in pursuit of a legitimate aim and is necessary in a

democratic society.15 Derogable rights allow for derogation by the state in times of

war or public emergency.16

Certain environments inevitably do change attitudes, priorities and the world we live

in, and it is here when the state is likely to use these powers to either interfere or

suspend certain rights. Such an environment arises where there has been a terrorist

attack, and there is an imminent threat of another horror.17 Given that terrorism poses

the greatest threat to human rights, the state is granted a wide discretion to take

legitimate measures in order to protect national security. The state aims to strike a fair

balance between legitimate national security concerns and fundamental freedoms.

It must be pointed out that neither the wide discretion accorded to states nor the

interpretation of the Strasbourg organs in the context of terrorism are free from

controversy. Of fiercest debate are (i) whether the state does actually take advantage 13 Sandbu and Nordbeck, International Terrorism: Report from a Seminar Arranged by The European Law Students’ Association in Lund, Sweden, 1-3 October 1987, (Jurstförlaget i Lund Distribution: Akademibokhandeln i Lund, Sweden, 1989), p.107.14 Gewirth, ‘Are There Any Absolute Rights?’ as cited in Gewirth, Human Rights: Essays on Justification and Applications, (The University of Chicago Press, Chicago and London, first edition, 1982), p.219.15 Articles 8(2) 9(2) 10(2) and 11(2) European Convention on Human Rights are all qualified rights.16 Article 5 European Convention on Human Rights is an example of a derogable right.17 Such an environment is not too difficult to imagine given that we are still in the aftermath of the events of September 11th.

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of the situation by declaring an emergency to invoke tyrannical rule18 and (ii) whether

the decisions of the Strasbourg organs reflect a trend for justifying the truncation of

individual’s rights because of the fight against terrorism.19 However, these debates do

not detain us here.

In sum, human rights are right and terrorism is wrong. A state that upholds human

rights against terrorism is good, whilst the terrorist who seriously violates human

rights is bad. Furthermore, a state, the good guy, may derogate from or limit certain

human rights of the bad guys in the name of national security.

IV. Sinister Preludium

‘They interrogated me with more physical pressure than before, pressing down on

my stomach, my spinal cord and the joints of my feet. Then they made me do

physical exercises with my hands tied - this might have made me paralysed if I lost

control because my whole weight was on my spine. They threatened me with being

unable to father children and with incurable injury.’20

Could this be an image of a bad terrorist torturing an innocent civilian, which the

good state is trying desperately to uphold? On the contrary. It is the state as the

perpetrator of the human rights violation in relation to a suspected terrorist. Could this

then be the image of the state, the good guy, justifiably infringing the human right to

be free from torture of a suspected terrorist in the name of national security? No,

because the right to be free from torture, inhuman or degrading treatment or

punishment is expressed in unqualified terms and provides for no derogation.

Therefore, it can never be justifiably infringed, only violated.18 For a discussion concerning the legislative measures taken in the aftermath of September 11 th see Sylvester, ‘The Anti-Terrorism, Crime and Security Bill - is derogating from Article 5 of the ECHR legitimate and necessary?’ http://www.lawreports.co.uk/Anti-Terrorism.htm, or ‘Derogation from Article 5 ‘unlawful’ argues QC’, Solicitors Journal, 23 November 2001, p.1071 or United Nations, ‘High Commissioner for Human Rights calls for Balancing Anti-Terrorism Efforts with Respect for Rights’, http://www.unorg.ch/news2/documents/newsen/cn0204e.htm19 See Warbrick, ‘The Prevention of Terrorism (Temporary Provisions) Act 1076 and the European Convention on Human Rights: The McVeigh Case’, International and Comparative Law Quarterly, Volume 32, 1983, p. 757.20 Amnesty International, ‘Israel/Occupied Territories and the Palestinian Authority. Five Years after the Oslo Agreement: Human Rights Sacrificed for ‘Security’’, http://www.web.amnesty.org/ai.nsf/index/MDE020041998

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Examining the prohibition of torture, inhuman or degrading treatment or punishment

in relation to suspected terrorists raises complex legal and moral-philosophical issues.

On the legal plain, the question arises: is it always unlawful to torture a suspected

terrorist? And on the moral-philosophical plain: is it wrong to torture a suspected

terrorist? As a lawyer, I will look exclusively at what the law has to say about it.

CHAPTER I

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Rationale for this Study

Before launching into the heart of the academic discourse I would like to briefly

explain my reasons for choosing to focus upon the prohibition of torture, inhuman or

degrading treatment or punishment, contained in Article 3 ECHR, in relation to

suspected terrorists.

I. The Prohibition of Torture, Inhuman or Degrading Treatment or

Punishment in relation to Suspected Terrorists

A. An Ideal Human Rights Norm

‘Give me a little piece of skin and I’ll stick hell into it.’21

Torture is arguably the most heinous human rights violation imaginable. Torture is

hell into the person’s mind or body; it annihilates the human personality and thereby

robs man of what makes him man. Recognizing this, the practice of torture has been

awarded a very powerful legal prohibition. International, regional and national law all

prohibit torture without limitation, exception and disallowing the slightest derogation.

Due to the absence of permissible limitations, exceptions and derogations the

prohibition of torture, inhuman or degrading treatment or punishment represents the

ideal type of human rights norm. The prohibition of torture creates a sphere of

individual autonomy and non-interference for individuals in relation to the state; it

invests all human beings with a sovereign right over their bodies and minds. This

individualized sovereignty is accorded greater weight than the sovereign rights of

states because international law explicitly prohibits torture in all circumstances.22

21 These are the words Hemingway placed in the mouth of a torturer. As cited in Cassesse, Inhuman States: Imprisonment, Detention and Torture in Europe Today, (Polity Press, Cambridge, Oxford, first edition 1996), p.62.22 Hajjar, ‘Sovereign Bodies, Sovereign States: Torture and the Nation’, http://www.humanrights.uchicago.edu/documents/Torture%20Conference/Hajjar.htm

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The prohibition of torture, inhuman or degrading treatment or punishment as an ideal

human rights norm makes it an exceptional human rights issue. It is exceptional

because it has the ability to illuminate the possibilities and problems of the human

rights enterprise.

B. The Biggest Challenge to this Ideal Human Rights Norm: the

Suspected Terrorist

The right to be free from torture, inhuman or degrading treatment or punishment is as

important to those in Africa and Asia as it is to those in Europe and America.

Likewise, it is as important to the bad as it is to the good. Therefore, the good guys

can never do torture to the bad guys, no matter what good cause the state may

represent and whatever evil cause the potential victim may be suspected of

representing.

I believe that the biggest challenge to this ideal human rights norm is by selecting, as

subject, a victim who represents the polar opposite to human rights. A victim who is

believed to have violated or will violate innocent civilians human rights and may

strive to destroy the raison d’être of human rights. Terrorist outrages present the best

temptation to inflict harsh suffering on those known or believed to be responsible.23

For this reason, the chosen candidate to expose this exceptional nature of this ideal

human rights norm shall be the suspected terrorist.24

II. The Scope of Article 3 ECHR in relation to Suspected Terrorists

23 Warbrick, ‘The European Convention on Human Rights and the Prevention of Terrorism’, International and Comparative Law Quarterly, Volume 32, 1983, p.105.24 I will be looking at the scope of Article 3 in relation to suspected terrorists exclusively in regard to the suspected terrorist as the victim.

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With insignificant variations in wording, the three spheres of law 25 all condemn

torture without exception. The initial foundation laying prohibition to torture is

contained in the UDHR.26 The UDHR has the legal effect of a Resolution.27 That said,

this prohibition has subsequently been echoed in legally binding international human

rights and humanitarian treaties: the International Covenant on Civil and Political

Rights (ICCPR),28 the United Nations 1975 Declaration on the Protection of All

Persons from Being Subjected to Torture and to other Cruel, Inhuman or Degrading

Treatment or Punishment29 and the Geneva Convention relative to the Treatment of

Prisoners of War.30 Regional Conventions also prohibit the practice of torture: the

Inter-American Convention on Human Rights,31 the African Charter on Human and

People’s Rights32 and also the European Convention on Human Rights (ECHR).33

Furthermore, the prohibition of torture is firmly embedded in customary international

law, as a peremptory norm or jus cogens.34 Also, no national legal system

contemplates the infliction of torture.

So, the texts that are binding on most countries of the world and almost certainly as a

proposition of customary law, all express that everyone has the right to be free from

torture, inhuman and degrading treatment and punishment. This right is unqualified

and for which no derogation is provided.

25 International, regional and national law.26Article 5 UDHR states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. The UDHR is available at http://www.un.org/Overview/rights.html27 It cannot be directly applied and entails no obligation on the state.28 Article 7 states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular no one shall be subjected without his free consent to medical or scientific experimentation.’ The ICCPR was adopted and proclaimed by the General Assembly Resolution 2200 A (XXI) and entered into force in 1976. The ICCPR is available at http://www.unhchr.ch/html/menu3/b/a_pr.htm 29 Article 3 states: ‘No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment’. Available at http://www.unhchr.ch/html/menu3/b/h_comp38.htm 30 Article 3 prohibits ‘(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.’ Available at http://www.unhchr.ch/html/menu3/b/91.htm31 Available at 1144 U.N.T.S. 123.32 Available at http://www.hrcr.org/docs/Banjul/afrhr2.html33 Available at http://www.echr.coe.int/Convention/webConvenENG.pdf34 In The Prosecutor v. Anto Furundzija, Judgment of 10 December 1998, case no. IT-95-17/1-T, the International Criminal Tribunal for the Former Yugoslavia observed as follows:

‘Because of the importance of the values it protects, this principle [the prohibition of torture] has evolved as a peremptory norm or jus cogens…’ (para. 153)‘Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community’. (para. 154).

http://www.un.org/icty/furundzija/trialc2/judgment

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One may be tempted to translate this into a conclusion that the prohibition of torture is

a complete blanket ban. Such a translation is premature and naïve. It is submitted that

in examining a legal response to a question, one must not have exclusive regard to

what appears in a text. One must how this text has been interpreted by the body

entrusted with its implementation.35 This is because the judgments of the Court – in

addition to determining whether violations of treaty obligations have occurred in

concrete situations – have a quasi-binding effect in the sense that they determine the

normative content of the treaty provisions.36

Space considerations preclude a response to how each of the Courts has interpreted

the respective texts. Seeing that the European Commission and the European Court of

Human Rights have developed the most comprehensive, extensive and detailed case

law, I have chosen to focus upon the interpretation of Article 3 ECHR.

III. The Glum Reality of the Situation

The statutory abolition of torture was so widespread at the end of the 18 th century that

Victor Hugo found himself justified to announce in 1874 that ‘torture has ceased to

exist’.37 Three centuries later - during which torture has emerged on the international

agenda as a separate and special human rights subject - one can certainly not be

justified in declaring that ‘torture has ceased to exist’. Torture38 remains prevalent in

the world today. I would like to confess the reality of the situation.

The first step, as with any crime, is for the victim to make an allegation and an

investigation either verifies or falsifies this. Torture is often practiced in secrecy. It

often takes place while the victim is held incommunicado – unable to contact people

outside who could help him or find out what is happening to him39 - and as such he is

easy prey to his captor. If the victim is fortunate enough to make an allegation there is

the problem of evidence. It is difficult to verify an accusation of torture if the victim

35 One may also look at state practice.36 Morgan and Evans, Protecting Prisoners, (Oxford University Press, Oxford, first edition, 1999), p.141.37 Danelius, ‘The International Protection against Torture and Inhuman or Degrading Treatment or Punishment’ in Collected Courses of the Academy of European Law, The Protection of Human Rights in Europe, 199, Volume II, Book 2, (Martinus Nijhoff Publishers, Dordrecht, Boston, London), p.158. 38 ‘Torture’ is used for convenience to refer to ‘torture, inhuman, degrading treatment or punishment’.39 Amnesty International, ‘torture’, http://www.amnesty.org.au/whatshappening/torture/index-2.html

19

has mental scars but no visible marks. For example, the practice of falanga40 often

leaves no trace of physical harm. If the victim is even luckier to verify the accusation,

the next step is then to go to court to bring the perpetrator of the crime to justice. The

victim may face a problem of access to court if the state responsible is not party to a

treaty or is a party to a treaty but has not accepted compulsory jurisdiction or the right

to individually petition the court. Even if the victim is lucky enough for the court to

reach a view in his favour, the judgment may not necessarily be enforced.41

To confess the reality is not to avoid it. I am more concerned with the scope of Article

3 in relation to suspected terrorists rather than with examining how effective the

mechanisms may or may not be. But what I have mentioned should be borne in mind

in the discussion that follows. One must primarily remember that for each case

examined, the victim is lucky to get to the implementation stage. But lucky may not

be enough because what follows legislation is not ‘a police force going in and

enforcing a court order. It is something far weaker and far more primitive’.42

CHAPTER II

Article 3 of the European Convention on Human Rights

40 The beating of the soles of the feet to cause excruciating pain.41 This narrative assumes that the torturer is guilty. There are problems on the other side of the coin too. Sometimes a country will make a false accusation against another country in order to jeopardise a states good reputation.42 Rodley, ‘The Prohibition of Torture and How to Make It Effective’, http://humrts.huji.ac.il/rodley.htm , p.14.

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I. The European Convention on Human Rights

The European Convention on Human Rights43 (the Convention), together with its

thirteen Protocols,44 aims to protect 750 million Europeans’45 political and civil human

rights.

The Convention created in 195046 by the Council of Europe.47 All 44 Council of

Europe states have signed and ratified the Convention48 and practically all have

incorporated it into their domestic jurisdiction.49 The latter enables individuals to

invoke a provision of the Convention before national courts, which are thus required

to apply the extensive case law of the European Court of Human Rights50 (the Court)

and the European Commission of Human Rights (the Commission).51

The Human Rights Act 1998 (HRA)52 incorporated into UK law the rights and

freedoms guaranteed by the Convention. It has been hailed ‘the most significant

constitutional change for the courts in this country for some considerable time’.53

Whether the consequences of the HRA will be significant is dependent on its

implementation by the UK courts.54

43 Officially known as ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’. 44 The latest Protocol was done at Vilnius on the 3 rd May 2002. 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 can be found at http://conventions.coe.int/Treaty/en/Treaties/Html/187.htm45 Anon, ‘The European Court of Human Rights’, http://germany.freedommag.org/issues/relifree/eng/page10.htm46 The Convention was signed on 4 November 1950; entered into force on 3 September 1953.47 The Council of Europe is an international organization formed after the Second World War in the course of the first post-war attempt to unify Europe.48 Council of Europe, Chart of signatures and ratifications, http://conventions.coe.int/treaty/EN/cadreprincipal.htm49 Ireland is the last state of the Council of Europe not to have incorporated the Convention into national law.50 Officially known as ‘The European Court for the Protection of Human Rights and Fundamental Freedoms’.51 Officially known as ‘The European Commission for the Protection of Human Rights and Fundamental Freedoms’.52 The HRA came into force fully on 2 October 2000.53 Wadham, ‘The Human Rights Act: One Year On’, European Human Rights Law Review, Issue 6, Sweet & Maxwell Ltd. 2001, p.620.54 For example, the courts may interpret the HRA as giving horizontal, as well as vertical, effect to the Convention rights.

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Every country has its own history for protecting human rights of its citizens. The

Convention respects this as it is within these diverse national legal systems that the

primary burden of protecting the individual’s human rights must lay. The European

Court of Human Rights provides redress at an international level where national

shortcomings exist.

Originally, the Convention established two entities to guarantee human rights: the

Commission and the Court.55 However, by the 1990’s it was apparent that this

machinery was too protracted to adequately deal with the volume of applications and

cases. The solution was a single, expanded, full-time European Court of Human

Rights, which came into operation in 1998.56 Today, the Court provides recourse to

governments,57 as well as to individuals.58 The Court is the final authority on

interpretations of the Convention.59

It is well established that the Convention is a living text, or a ‘living tree’; 60 to be

interpreted in accordance with the attitudes current within European society at the

time of the alleged violation, and not restricted to what was within the contemplation

of the drafters of the Treaty.61

55 The Commission would receive the application alleging a violation by an individual or a state. It would then reach a friendly settlement, issue its opinion on whether a violation had taken place or refer the case to the Court.56 Under the terms of the ‘Protocol No.11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby’ the Commission and Court merged to produce the single permanent Court of Human Rights. Protocol No.11 can be found athttp://conventions.coe.int/Treaty/EN/cadreprincipal.htm57 Article 33 – Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party.

In practice the majority of allegations are made by individuals, rather than by the state. This is because interstate cases are generally politically undesirable.58 Article 34 – Individual applications

The court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective use of this right.

59 Article 44 – Final judgments1. The judgment of the Grand Chamber shall be final.

60 Anon. ‘Prisoners’ human rights’, Solicitors Journal, 13 April 2001, p.326.61 Evans and Morgan, Preventing Torture, A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’, (Clarendon Press, Oxford, first edition, 1998), p.73.

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II. Article 3 ECHR

A. The Text

Article 3 states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or

punishment’.

That is it. No further details are given. This generality is completely normal; virtually

all texts prohibiting ill-treatment are formulated in the same or a similar vein.62 The

reason is quite simple; while it is not impossible to enumerate immutable propositions

that circumscribe its range of activities, there are serious pitfalls with such an

alternative. Firstly, such a list or watertight set of guidelines is impossible to compose

because the range of techniques to inflict torture is as wide as the human imagination

to inflict pain.63 Secondly, and unfortunately for the benefit of Article 3, humans do

not possess a pain-meter instrument. One person’s pain threshold is very different to

another.

That said, and as I have already mentioned, judgments of the Court and the decisions

of the Commission often contain a great deal of legal reasoning which helps to give

substance to the language of this text which is only phrased in very general terms.64

Also, state practice and the adoption of more specific treaties – the 1987 European

Convention for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment - help flesh out this general text.65 However, the latter two do not detain

us here.66

62 For example the UDHR also sets normative standards: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. 63 Rodley, ‘The Prohibition of Torture and How to Make It Effective’, http://humrts.huji.ac.il/rodley.htm64 Danelius, ‘The International Protection against Torture and Inhuman or Degrading Treatment or Punishment’ in Collected Courses of the Academy of European Law, The Protection of Human Rights in Europe, 1991, Volume II, Book 2, (Martinus Nijhoff Publishers, Dordrecht, Boston, London), p.179.65 Addo and Grief, ‘Does Article 3 of the European Convention on Human Rights Enshrine Absolute Rights?’ European Journal of International Law, Volume 9 (1998), p. 510.66 See Evans and Morgan, ‘The European Convention for the Prevention of Torture: Operational Practice’, International and Comparative Law Quarterly, Volume 41, 1992, p.590.

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In deciding whether an alleged ill-treatment falls within the ambit of Article 3, the

supervisory organs have exposed and revealed this Convention article.

B. Volume, Variety and Complexity of Issues

If one imagines the catalogue of human rights that are contained in the Convention as

people at a party, then Article 3 is a guest invited because of his pre-eminence, but

whose conversation is limited by its rigidity. How far from the truth! This guest is a

dark horse with hidden depths. Analogy aside, it is difficult to imagine that the

drafters of the Convention would have envisaged such a variety of issues covered by

it.67 Soering v. United Kingdom68 is a good example of such a surprising case.69

C. The Tortured

67 The following issues have been dealt with under Article 3:(a) Judicial corporal punishment, either as a penal sanction or as a disciplinary punishment at

schools (Tyrer v. United Kingdom, Judgment of 25 April 1978, Series A, No.26; (1978) 2 E.H.R.R. 1;

(b) Detention in prisons (Kröcher and Möller v. Switzerland, Decision of 9 July 1981, Application No. 8463/78 26 D&R 24;

(c) Ill-treatment in custody (Tomasi v. France, Judgment of 27 August 1992, Series A, No. 241-A; (1993) 15 E.H.R.R. 1).

(d) Extradition, expulsion and deportation (Cruz Varas v. Sweden, Judgment of 20 March 1991, Series A, No. 201; (1992) 14 E.H.R.R. 1);

(e) Immigration and refugees (East African Asians v. United Kingdom, Decision of 6 March 1978, Application No. 4626/70 13 D&R 5.

68Judgment of 7 July 1989, Series A, No. 161; (1989) 11 E.H.R.R. 439.69 Jens, a German national, admitted to brutally savaging his girlfriend’s parents to death because they did not agree with their relationship. He travelled to the U.K. If extradited back to his country of origin he may, as punishment for the homicides, be subjected to ‘the death row phenomenon’. This, in these circumstances, falls foul of a violation of Article 3. The Court held that it would be contrary to Article 3 for a High Contracting Party to return him to a country ‘where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment in the requesting country’ (para. 91). See Hudson, ‘Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?’ European Journal of International Law, Volume 11, No.4, December 2000, p.833.

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While it is true that anyone can be the victim of ill treatment - regardless of age,

gender, ethnicity or political persuasion70 - only natural persons, and not legal persons,

can rely on Article 3.71

D. The Torturer

A state is responsible for the acts of its agents or servants that are ultra vires. In

certain circumstances a state will also be responsible for the acts, or potential acts, of

private individuals within and outside its jurisdiction. In A v. United Kingdom72 the

Court held that reading Articles 3 and 173 together ‘requires States to take measures

designed to ensure that individuals within their jurisdiction are not subjected to

torture, inhuman or degrading treatment or punishment, including such ill-treatment

administered by private individuals’.74

E. The Entry Threshold

Not all ill-treatment will fall within the scope of Article 3. The Court has held that ill-

treatment must attain a minimum level of severity to trigger the application of Article

3. This threshold is relative:

‘…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 and state

of health of the victim’.75

F. The Thresholds between the different ‘Heads’ of Ill-

treatment

70 Amnesty International, ‘Torture’ http://www.amnesty.org.au/whatshappening/torture/index-2.html 71 Kontakt-Information-Therapie and Hagen v. Austria, App. No. 11921/86; 57 D.R. 81. As cited in Simor and Emmerson, Human Rights Practice R.O., (Sweet & Maxwell Limited, London, 2000), at 3.004.72 Judgment of 23 September 1998, Report of Judgments and Decisions 1998-VI, p.2692. The case concerned the beating with a garden cane by a stepfather to his nine-year-old stepson.73 Article 1- Obligation to respect human rights:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.

74 Ibid. para. 22.75 Ireland v. United Kingdom, Judgment of 18 January 1978, Series A, No. 25; (1978) 2 E.H.R.R. 25, para, 162.

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Article 3 prohibits ‘torture’, ‘inhuman’ and ‘degrading’ treatment or punishment. The

drafting history confirms that there was no clear understanding of what was meant by

those terms.76 Fortunately, judicial elaboration has revealed the distinction between

the different treatments prohibited by Article 3.

The first attempt to define the concepts in Article 3 was made by the Commission in

the Greek Case:77

‘It is plain that there may be treatment to which all these descriptions apply,

for all torture must be inhuman and degrading treatment, and inhuman

treatment also degrading. The notion of inhuman treatment covers at least

such treatment as deliberately causes severe suffering, mental or physical,

which in the particular situation is unjustifiable’.78

Building on this, the Commission and the Court have adopted a ‘vertical’ approach to

Article 3. It is divided into three component parts79 of ‘torture’, ‘inhuman’ or

‘degrading’, each of which represents a regression of seriousness. Because the

movement from one categorization of abuse to the next depends on the severity of the

suffering, there are also thresholds between the three different heads of ill-treatment.80

In order to reach the apex and qualify as torturous, the abuse must be an aggravated

form of inhuman treatment, inflicted for a purpose, such as the obtaining of

information or confessions, or the infliction of punishment.81 Treatment or punishment 76 Evans and Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, (Clarendon Press, Oxford, first edition, 1998), pp 69-73.77 12 (1969) Y.E.C.H.R.78 Ibid. p.186.79 In comparison Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, (Butterworths, London, Dublin, Edinburgh, first edition, 1995), divide Article 3 into five component parts: Torture, inhuman treatment, inhuman punishment, degrading treatment and degrading punishment, pp 59-88.80 Evans, ‘Getting to Grips with Torture’, International and Comparative Law Quarterly, Volume 51, April 2002, p.370.81 A similar formulation can be found in Article 1 of the 1975 UN Declaration which provides that:

1. For the purposes of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by of at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

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of an individual may be said to be degrading if it grossly humiliates him before others

or drives him to act against his will or conscience.

Because the Convention is a living instrument, and is interpreted as such, the two

thresholds are not static.

It is important to remember that even though more importance is often attached to

torture, they all have equal legal status; Article 3 prohibits them all. Paradoxically,

this distinction can produce different effects. Firstly, to be accused of violating Article

3 because of torture can have a severe detrimental impact on a state’s reputation. This

due to the stigma attached to an accusation of torture. In Aksoy v. Turkey,82 the Court

stressed that ‘this definition would appear to have been embodied in the Convention

to allow the special stigma of ‘torture’ to attach only to deliberate inhuman treatment

causing very serious and cruel suffering’.83 Secondly, the distinction is likely to entail

different legal consequences. For example, it may affect the amount of compensation

awarded under Article 41.84

CHAPTER III

Is Article 3 an Absolute Right?

In this chapter, I seek to answer the question: Is Article 3 an absolute right? However,

this is not the principal aim of this chapter.

In order to answer this question, I will conceptualize the notion of an absolute right

and then see whether Article 3 fits this notion. If this is achieved – thus labelling

Article 3 as an absolute right - I then hope to use the notion of an absolute right to

2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

Available at http://www.unhchr.ch/html/menu3/b/h_comp38.htm82 Judgment of 18 December 1996, Application No. 21987/93; (1997) 23 E.H.R.R. 553.83 Ibid. para 63.84 Article 41- Just Satisfaction

If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

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expose the scope of Article 3 in relation to suspected terrorists. It is the latter that is

the principle aim of this chapter.

I. Dissatisfaction with Current ‘Game’

The rules of a children’s game often played at the zoo is useful in the illustration of

some of the issues raised by this subject. In a nutshell, if the creature can swim it is

labelled a fish, if it can fly it is labelled a bird and if it can neither swim nor fly then it

is labelled an animal. For example, when asked ‘is a lion an animal?’ his reply would

be ‘it cannot swim so it is not a fish, nor can it fly so it is not a bird, so yes it is an

animal’.

Human rights practitioners and academic writers play a similar game. If a human right

can be derogated from in times of war or public emergency it is labelled a derogable

right, if state interference is permissible then it is a qualified right, and if the human

right cannot be derogated from nor qualified it is labelled an absolute right. For

example, when asked ‘is Article 3 an absolute right?’ their reply would be ‘it cannot

be derogated from, so is not a derogable right, nor can it be qualified so it is not a

qualified right, so yes it is an absolute right’. Sound familiar?

Some are content with playing this game. I am not. An animal is not exclusively

characterised by not being able to swim and not being able to fly; there is more. In

following this line of thinking, I find great discomfort in believing that an absolute

right is exclusively characterised by the absence of limitations, derogations and

qualification; there must be more. I now seek to address the issue of what is an

absolute right.

II. The Literal Conception of an Absolute Right

To say that the word absolute is a bold and powerful word is like saying Einstein was

good at sums. According to the Oxford English Dictionary absolute means

‘unrestricted’, ‘complete’ and ‘perfect’. Logically then, an absolute right must mean a

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right that is unrestricted, complete and perfect. Building on this, the author recognises

the following conceptual characteristics are required in order for a right to be labelled

as absolute.

A. An Absolute Right is Unrestricted

An absolute right should be ‘absolutely…condemned and that no cause whatsoever -

not even the life of a wife, a mother or a child, the safety of an army or the security of

a State - can justify its use or existence’.85 In other words, the value of an absolute

right should be placed higher than any other consideration. Therefore, no derogation,

limitation, qualification or reservation should be permissible in relation to absolute

rights.

a. An absolute right allows for no derogation

The rationale behind the derogation system accepts that in exceptional circumstances,

i.e. in order to overcome a crisis which ‘threatens the life of the nation’,86 a state

should be able to take measures that derogate from its obligations to certain human

rights commitments. For example, at the scene of an earthquake the right to freedom

of movement may be temporarily suspended in order to safeguard the right to life.87 In

addition to natural disasters, political conflicts - such as a coup or a military

aggression - are also likely to give rise to an emergency situation.

As a rule, when a state is confronted with such a situation, human rights run a greater

risk of being violated. Moreover, it is in a state of emergency where serious violations

- such as the right to life, the right not to be subjected to torture, the right not to be

held in slavery or servitude – are at their greatest risk. For instance, in South Africa 85 As cited in Addo and Grief, ‘Is there a Policy behind the Decisions and Judgments relating to Article 3 of the European Convention on Human Rights?’ European Law Review, Vol. 20, No. 2, April 1995, p.181.86 This is the language frequently used in treaties. For example, Article 4 of the International Covenant on Civil and Political Rights and Article 15 of the European Convention on Human Rights. Article 15 (1) provides:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

87 Association for the Prevention of Torture, ‘Protecting Human Rights in Times of Emergency’,http://www.apt.ch/pub/library/pphr.htm

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the claims for political authority over the country by the white population to the

exclusion of coloured people lead to the denial of the political and other individual

rights of the latter through the policy of apartheid applied by the white population.88

Such emergency situations threaten to paralyse any system of human rights.

Recognising this, the most serious human rights are not allowed to be derogated from

in time of emergency. Therefore, albeit indirectly, they are accorded the greater

protection they merit. As a consequence, it is possible to sacrifice other rights in their

favour, but they themselves can never be sacrificed. It is upon this rationale that some

argue for the existence of a hierarchy of human rights in contemporary international

law.89

Article 15(2) expressly prohibits any derogation from Article 3.90

After examining the new HRA, one may feel concern that it jeopardizes the

prohibition of derogation from Article 3. Absent from the new Act is the derogation

clause under Article 15 of the Convention. Furthermore, the reasons for derogating

have been also been omitted. Does this open up the possibility for all human rights to

be derogable and under any circumstances? I submit no. It would be ironic if the

legislation, which purports to give ‘further effect’ to Convention rights, was to

diminish them in domestic law.91 Moreover, regardless of what the domestic

legislation says, the realization of a derogation of the Convention is always subject to

the political scrutiny by the Court.92 In Lawless v. Ireland (No.3)93 the court held that

‘it is for the Court to determine whether the conditions laid down in Article 15 for the

exercise of exceptional right of derogation have been fulfilled in the present case’.94

88 Loucaides, ‘The Protection of Human Rights Pending the Settlement of Related Political Issues’, The British Yearbook of International Law, 1987, Volume LVIII, p.349. 89 Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’, European Journal of International Law, Volume 12, No. 5, November 2001, p.917.90 Article 15(2) provides:

No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made in this provision.

91 Black-Branch, ‘The Derogation of Rights under the UK Human Rights Act: Diminishing International Standards?’ Statute Law Review, Volume 22, Number 1, p.81.92 Gross and Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ Human Rights Quarterly, 23 (2001), p. 631.93 Judgment of 1 July 1961, Series A, No.3; 1 E.H.R.R. 15.94 Ibid. para 22.

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b. An absolute right allows for no limitation or

qualification

An absolute right should not be limited based on pressing needs of the day. Article 3

is expressed in unqualified terms allowing no permissible limitation or qualification.

c. An absolute right allows for no reservation

Under international law, a reservation is defined as ‘a unilateral statement, however

phrased or named, made by a State, when signing, ratifying, accepting, approving or

acceding to a treaty, whereby it purports to exclude or modify the legal effect of

certain provisions of the treaty in their application to that State’.95

A reservation is an essential part of a state’s consent to be bound by a particular treaty

- it has taken the time to make a reservation for the very fact that it is of paramount

importance to that particular state.

Having regard to an absolute right being of greater importance higher than any other

consideration, a reservation should not be allowed. A reservation is distinct from both

derogations and limitations. A reservation is worse. A reservation allows a

Contracting State to blatantly deny any form of protection to a certain right, as

recognized in the Convention.

There is nothing in the Convention to prevent Contracting States from entering a

reservation to article 3.

That said, it is possible that if a Contracting State sought to make a reservation under

Article 3, it would be declared invalid following the rules on reservations in the

Vienna Convention on the Law of Treaties. Article 19 provides the general liberty to

formulate a reservation when signing, ratifying, accepting, approving or acceding to a

treaty and then states the following three exceptions:

a. the reservation is prohibited by the treaty in question

95 This definition is found in the Vienna Convention on the Law of Treaties. It entered into force on 27 January 1980. It is available at 8 I.L.M (1969), 679.

31

b. the reservation is not one that the treaty specifically provides for and

c. the reservation is otherwise incompatible with the object and purpose of

the treaty i.e. it is fundamentally subversive of the treaty.

Thus, a request for a reservation to Article 3 would hopefully be declared invalid on

the basis of the third class of impermissible reservations for being ‘incompatible with

the object and purpose’ of the Convention.

B. An Absolute Right is Complete

An absolute right should leave no room for doubt concerning its scope. If something

is prohibited absolutely then it is logically necessary to define the scope of the

prohibition absolutely; to ban absolutely something that cannot be defined absolutely

is a logical nonsense.

The Convention does not include any definition of the ill-treatment that it prohibits.

The Strasbourg jurisprudence has revealed that a threshold approach is adopted to

examine whether an alleged violation does indeed fall within the scope of Article 3.96

C. An Absolute Right is Perfect

Perfection is achieved when the victim is effectively redressed and the perpetrator of

the absolutely prohibited act is brought to justice. To achieve this perfection an

absolute right must be implemented as rigorously as possible; this requires the

following five components:

a. In the event of a conflict between an absolute right

and other rights (which are not absolute rights) the

former must always prevail

A claim under Article 3 may also raise an issue under another article of the

Convention. In practice, it is Article 897 that is seen to raise an issue with Article 3 the

most frequently, particularly in connection with the rights to respect for family and 96 This is discussed in Chapter II, Section II, Parts E and F and will be discussed in great detail in Chapter IV.97 Article 8 provides:

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private life.98 The approach has not been to concentrate on the claim under Article 3,

the superior absolute right. Instead, the Strasbourg institutions tend to concentrate on

Article 8 and if it is not infringed, it is unlikely that Article 3 will have been violated.

The Court in Olsson v. Sweden99 took this approach.

b. Any allegation of a violation of an absolute right

should be rigorously investigated

If any doubts emerge regarding sufficient evidence, the benefit of the doubt should

always be given to the victim.

The Klass v. Germany100 judgment was an unfortunate departure from the principle

established in Tomasi v. France,101 namely where there is a problem surrounding the

causation of the applicant’s injuries, the onus is on the respondent government to

rebut the presumption that the injury was inflicted by its public officials.

Klass concerned a woman who was arrested for driving through a red light and having

tried to get away. As with Tomasi, there were sustained injuries and a conflict of

evidence as to the causation of these injuries. In Germany, the Detmold Regional

Court rejected a civil claim for compensation against the police because ‘it is for the

plaintiff to prove that in this initially lawful exercise of their duty the police officers

went further than was necessary, by handling the plaintiff too roughly…the plaintiff,

however, has not succeeded in proving such proof’.102 Accepting this, the Court

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

98 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, (Butterworths, London, Dublin, Edinburgh, first edition, 1995), p.58.99 Judgment of 24 March 1988, Series A, No.130; (1989) 11 E.H.R.R. 259.100 Judgment of 22 September 1993, Series A, No.269; (1994) 18 E.H.R.R. 305.101 Judgment of 27 August 1992, Series A, No.241-A; (1993) 15 E.H.R.R. 1. Tomasi concerned the allegation of ill-treatment whilst the applicant was held in police custody. The case is discussed in detail in Chapter V, Section III, Part C, a.102 Ibid. para. 17.

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concluded that in absence of evidence to show that the police had caused the injuries

there was no violation of Article 3.103

c. The jurisdiction of the Court should be available to

everyone

The jurisdiction of the Court is, in principle, available to every one of the Contacting

States. The Convention expressly allows for inter-state as well as individual

petition.104 Therefore, individual applicants (individuals, groups of individuals or

NGOs) can lodge complaints against a Contracting State for alleged violations of

Convention rights.105

Furthermore - moving away from the Council of Europe to instead focus on the

United Nations - states not party to the UN Convention Against Torture are entitled,

but not obliged, to exercise universal jurisdiction in respect to torture on the basis of

customary international law.106

d. An absolute right should allow for no negotiation

In order to bring the perpetrator to justice, an absolute right should allow for no

negotiation. Therefore, the reaching of a friendly settlement should be prohibited.

As far as reaching a friendly settlement is concerned, it has proved very useful to

Strasbourg litigation. Whilst avoiding the lengthy and costly process of going to trial,

this solution avoids the perpetrator admitting that a violation has occurred. Articles 38

and 39 provide for friendly settlement and do not prohibit the use of this machinery in

relation to Article 3.107

103 The Court also made a vain attempt to distinguish Klass from Tomasi: ‘…where certain inferences could be made from the fact that Mr Tomasi had sustained unexplained injuries during forty-eight hours spent in police custody. No cogent elements have been provided which could lead the Court to depart from the findings of fact of the national courts’. (para. 30).

104 Articles 41 and 42 of the Convention. See Chapter II, section I.105 Obviously the problem of whether a justice system is available to everyone regardless of his or her means is a separate issue and does not detain us here.106 Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’, Human Rights Quarterly, Volume 23, No. 4, November 2001, p.949.107 Article 38 - Examination of the case and friendly settlement proceedings.1. If the Court declares an application admissible, it shall

34

Many alleged violations of Article 3 have reached a friendly settlement. For example,

in the case Amekrane v. United Kingdom,108 a friendly settlement was reached.109

e. An absolute right should provide effective redress to

the victim

Article 3 can be seen to provide absolute redress to the victim. The Strasbourg organs

have provided redress not only to actual violations of Article 3 but also speculative

violations. The Court’s first departure from the rule ex post facto was seen in Soering

v. United Kingdom,110 where the Court held that a decision to extradite someone might

give rise to an obligation under the Convention.111 The Court has continued to endorse

this exception to the rule ex post facto in subsequent cases. Also in Vilvarajah and

others v. United Kingdom112 and Cruz Varas v. Sweden,113 the Court held that an

expulsion might also give rise to an issue under Article 3.

So, Article 3 has some, limited, extraterritorial application. This does not, however,

extend to the situation where the alleged ill-treatment has been inflicted abroad and

a. pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;

b. place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto.

2.Proceedings conducted under paragraph 1.b shall be confidential.Article 39 - Finding a friendly settlement

If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.

108 Decision of 11 October 1973, 16 (1973) Y.E.C.H.R. 356109 The case concerned a Moroccan Air Force Colonel who was executed in Morocco after having been court-martialled on a charge connected with an attack on the aeroplane in which the King of Morocco was flying home. Since his attempted attack had been unsuccessful, the applicant had first taken refuge in Gibraltar, where he had sought political asylum. After a day’s detention, he was sent back to Morocco without due process of law. He was subsequently executed. A friendly settlement was reached and the respondent government paid the widow and her children £37,500.110 Judgment of 7 July 1989, Series A, No. 161; (1989) 11E.H.R.R. 439.111 Soering is discussed below in Chapter II, Section II, Part B.112 Judgment of 30 October 1991, Series A, No. 215; (1992) 14 E.H.R.R. 248.113 Judgment of 20 March 1991, Series A, No. 201; (1992) 14 E.H.R.R. 1.

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the victim seeks to incur liability on a Contracting State to which he has subsequently

returned to. The Court adjudicated on this point in the case of Al-Adsani v. United

Kingdom.114

D. Unrestricted, Complete and Perfect Rights do not exist in Practice

I have demonstrated that Article 3 does not possess all of the required conceptual

components. To then conclude that Article 3 is not an absolute right would be wrong.

The above concept is built upon a definition of absolute found in an English language

dictionary. Distinct from everyday language we commonly use, the law has its own

unique language. Therefore, we cannot simply take the common usage definition of a

word and use it to adopt a legal notion. This method has resulted in a bold concept of

an absolute right, which represents a theoretical ideal. While I am very sympathetic to

this notion of an absolute right, I also recognise that such a theoretical ideal is not

possible to achieve in practice.

We must therefore recognise that ‘perfect’ ‘complete’ and ‘unrestricted’ rights do not

exist in practice and turn to a more practical and legal definition of the concept of an

absolute right to see whether Article 3 fits this definition.

III. The Legal Conception of an Absolute Right

I choose to rely upon the legal conception of an absolute right formulated by the

philosopher Alan Gewirth. In his article entitled ‘Are there Any Absolute Rights?’115

he defines an absolute right as:114 Judgment of 21 November 2001, Application no. 00035763/97. Hudoc ref. REF00002995, available at http://hudoc.echr.coe.int/hudoc/ The Court held:

‘The applicant does not contend that the alleged torture took place within the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence. In these circumstances, it cannot be said that the High Contracting Party was under a duty to provide a civil remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities.’ (para. 40).

115 Gewirth, ‘Are There Any Absolute Rights?’ as cited in Gewirth, Human Rights: Essays on Justification and Applications, (The University of Chicago Press, Chicago and London, first edition, 1982), p. 218.

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A right which cannot be overridden in any circumstances, so that it can never

be justifiably infringed and it must be fulfilled without any exceptions.116

In addition, he stipulates that absolute rights demonstrate a superior claim to be

respected because only those rights, which survive conflicts with other rights, merit

the label ‘absolute’.117 Building upon this, he distinguishes three levels at which a

right may be absolute: ‘Principle Absolutism’, ‘Rule Absolutism’ and ‘Individual

Absolutism’

A. Principle Absolutism

According to Principle Absolutism, what is absolute – always valid and never

overridden - is a general moral principle. Due to the generality of this moral principle,

it fails to differentiate between the subjects (the right holder), the respondents (those

who have a duty to fulfil), and the objects (the right to which the subject is entitled).

It is submitted that the right not to be subjected to the three heads of ill-treatment

contained in the statement of Article 3 does form part of a moral principle of the

Council of Europe. This moral principle establishes a valid, normative standard

incapable of being overridden, by which subsequent state practice is to be guided.118

B. Rule Absolutism

Rule Absolutism represents the intermediate level. At this level, the particular rights

whose absoluteness is in question are characterized in terms of specific objects with

possible specification of subjects and respondents. Therefore, a specific rule can be

stated describing the content of the right and the correlative duty. These rights

considered at this level ‘may vary in degree of generality, in their objects, their

subjects and their respondents may be given with greater or lesser specificity’.119

116 ibid. p. 219.117 ibid. p. 220.118 Addo and Grief, ‘Does Article 3 of the European Convention on Human Rights Enshrine Absolute Rights?’ European Journal of International Law, Volume 9, 1998, p. 514.119 Ibid. p. 221.

37

Article 3 may represent absolutism at the Rule Absolutism level. Addo and Grief

convincingly argue120 that the codification of the prohibition of torture, inhuman or

degrading treatment or punishment in Article 3 represents a variant of Rule

Absolutism. They submit that the absolute nature of Article 3 emerges from reading

Article 3 in conjunction with Articles 1 and 15. Furthermore, the varying ‘degree of

generality’ is directly seen by the varying degrees of ill-treatment which apply in

Article 3. Also, Rule Absolutism is attractive because it reflects the dynamic nature of

the Convention.

C. Individual Absolutism

According to individual absolutism, an individual has an absolute entitlement to a

specific right. This entitlement is granted when all grounds for overriding the right in

the particular case have been overcome.

Given that every individual has an absolute entitlement not to be subjected to torture,

inhuman or degrading treatment or punishment, Article 3 can be said to represent

absolutism at the individual level.

I have demonstrated that Article 3 can be said to be absolute in all senses of Gewirth’s

framework of analysis.

IV. Article 3 is an Absolute Right - Ill-treatment falling within its Scope

can never be justified, not even to combat Terrorism

Having recognised that the literal conception of an absolute right represents a

theoretical ideal and is not practical, I chose a more legal conception of an absolute

right. Article 3 satisfies the latter legal conception.

In effect, the second conception of an absolute right was an elaboration of the ‘game’

I was so intent on avoiding. However, as I have disclosed, there are justified reasons

120 Addo and Grief, ‘Does Article 3 of the European Convention on Human Rights Enshrine Absolute Rights?’ European Journal of International Law, Volume 9, 1998, p. 514

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for playing this ‘game’. Absolute rights are indeed characterised by the absence of

permissible limitations, derogations and qualifications. The Court recognises this. In

Ireland v, United Kingdom121 it held:

‘The Convention prohibits in absolute terms torture and inhuman and

degrading treatment or punishment…Unlike most of the substantive clauses of

the Convention and of the Protocols No.s 1 and 4, Article 3 makes no

provision for exceptions, and Article 15(2), there can be no derogation

therefore even in the event of a public emergency threatening the life of the

nation’.122

Applying this notion of an absolute right to Article 3 exposes that torture, inhuman or

degrading treatment or punishment, within the scope of Article 3, are absolutely

prohibited. There are no exceptions: war, national emergency, not even to combat

terrorism.

The scenario of a ‘ticking bomb’ is frequently given in an attempt to give a

hypothetical situation of when torture should be allowed. It usually goes something

like this:

A terrorist is threatening to blow up your home city. He has hidden the bomb.

The bomb will detonate in ten hours and kill all of the inhabitants in your city;

all will suffer a terrible death. The police cannot evacuate your city in time.

The terrorist will not cooperate. Only one solution remains to compel the

terrorist to speak up and disclose the location of the bomb; torture.123

121 Judgment of 18 January 1978, Series A, No.25; (1978) 2 E.H.R.R. 25, para 163.122 This is not only recognised by the Court, but also other international courts. For example, the International Criminal Tribunal for the Former Yugoslavia in its judgment in Prosecutor v. Anto Furundzija, Judgment of 10 December 1998, case no. IT-95-17/I-T, (1999), it held:

‘It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency.’(para. 144).

123 Brugger, ‘May Government Ever Use Torture? Two Responses From German Law’, The American Journal of Comparative law, Volume 48, No. 4, Fall 2000, p.662.

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Because ill-treatment falling within the scope of Article 3 is absolutely prohibited, not

even this supposed ‘worst case scenario’ justifies the use of torture. In Selmouni v.

France124 the Court held:

‘Even in the most difficult circumstances, such as the fight against terrorism

and organised crime, the Convention prohibits in absolute terms torture and

inhuman and degrading treatment or punishment’.125

The response to which I have arrived thus far may not satisfy everyone. Some may

feel that it is totally unacceptable and unjust, since we are placing the lives of

innocent people in jeopardy and allowing a terrorist to win. However, this responds to

moral theory, which I did not intend to focus on. Such discussions are healthy, but as

a lawyer, I must recognise that we can shout as loud as we like that the law is morally

outrageous, but these words must go unheard because ultimately the law stands.

All in all, I am dissatisfied with the response thus far. Attributing the label of

‘absolute’ to Article 3 exposes very little regarding its scope in relation to suspected

terrorists. This is because an absolute right is a term of legal art and as such is

imprecise and general.

Had the result been that the first ‘literal conception’ is the legally accepted notion of

an absolute right (it is not), and also had Article 3 fitted this notion of an absolute

right (it does not) then our discussion would end here. This is because the literal

conception would have exposed everything about its scope. For instance, Article 3

would be complete and we would know all of the prohibited ill-treatment without any

doubt.

In order to delve much deeper, I will now move away from seeking to expose the

scope of Article 3 in relation to suspected terrorists by merely attributing a label to

Article 3.

124 Judgment of 28 July 1989, Application No. 25803/98; 19 E.H.R.R. 403.The case concerned the interrogation of a detainee suspected of drug offences. France became that first member state of the European Union to have violated Article 3 on account of torture.125 Ibid. para 95.

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CHAPTER IV

Is there any Scope for the ‘Balancing Act’ and the Margin of Appreciation

Doctrine in relation to Article 3?

In this chapter I seek to scratch beneath the surface of the conclusion reached in the

preceding chapter – ‘ill-treatment falling within the scope of Article 3 is absolutely

prohibited’ - to discover just how high this juridical protection goes. Ultimately, I aim

to discover whether the ‘balancing act’ and the margin of appreciation doctrine play

any role in relation to Article 3. In effect, I am moving away from the notion of an

absolute right to the spirit of an absolute guarantee.

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I. The ‘Balancing Act’ and the Margin of Appreciation Doctrine

A. The ‘Balancing Act’

Approaches to human rights are profoundly influenced by ideological controversies;

liberalism and Marxism are at the extreme ends of this controversy. I prefer to adopt a

different approach to human rights. I believe that human rights are all about

balancing.

This balancing arises when there is interference by a Contracting State with a

Convention right. In its most primitive form, the balancing is between the need to

protect a Convention right (human right A) against a reason for restricting it.126

Balancing may come in to play when conflict arises between different human rights:

the balance between human right A v. human right B. Alternatively, certain

circumstances may trigger the need for balancing: the balance between human right A

v. another consideration X.

Ultimately, the result of the balancing act is either: (i) the conflicting human right

(human right B) or another consideration X is accorded greater weight and therefore

the interference with human right A is not in violation of the Convention or; (ii)

human right A is accorded greater weight than the conflicting human right (human

right B) or another consideration X and therefore the interference is not in violation of

the Convention.

For example, a Contracting State may interfere with Article 5: ‘Everyone has the right

to liberty and security of person’ by placing a criminal in prison. The balancing act is

between the human right A v. another consideration i.e. the need to protect the

criminal’s Convention right against the need to punish him and protect society.

Obviously, the latter carries greater weight and overrides. Consequently, there is no

violation of Article 5.127

126 Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’, International and Comparative Law Quarterly, Volume 48, July 1999, p.640.127 Deprivation of liberty due to prison is a permissible exception to Article 5 expressly set out in Article 5.

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This balancing act can be achieved at two different levels: at the level of the

Strasbourg organs and sometimes at the level of the Contracting State. In the latter

situation, the Contracting State is said to be granted a ‘margin of appreciation’.

B. The Margin of Appreciation Doctrine128

The system of the Convention provides that it is within the Contracting State to

protect the human rights of the individuals. The Strasbourg organs become active only

if the initial machinery fails. This structural arrangement creates vertical tension

between the international and national authorities. To find a balance in this conflict,

the Strasbourg organs have invented the doctrine of margin of appreciation.129

The notion of margin of appreciation captures the idea of there being a legitimate area

of discretionary decision-making, which is primarily (though not exclusively) for the

national decision-maker and one with which the Strasbourg organs ought not

interfere. This is familiar to all administrative lawyers.130

The margin of appreciation recognises the diversity of traditions, ethics, morals and

politics within the different Contracting States, it therefore allows the Contracting

state discretion in justifying the need to interfere or restrict a Convention right in its

society. As a consequence, the margin of appreciation doctrine introduces an element

of relativity into the uniform interpretation of the Convention.131

Article 5 states:1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty

save in the following cases and in accordance with a procedure prescribed by law:(a) the lawful detention of a person after conviction by a competent court…

128 See Mahoney, ‘The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice’, Human Rights Law Journal, Volume 19, No.1, 30 April 1998, p. 4 or Lavender, ‘The Problem of the Margin of Appreciation’, [1997] European Human Rights Law Review, Issue 4, p.380.129 Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, (Martinus Nijhoff Publishers, Dordrecht, The Netherlands, Kluwer Academic Publishers Group, The Hague, Boston, London, first edition, 1996), p.9.130 Singh, Hunt and Demetriou, ‘Current Topic: Is there a Role for the “Margin of Appreciation” in National Law after the Human Rights Act?’ [1999] European Human Rights Law Review, Issue 1, p.15.131 Macdonald, ‘The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights’, in Collected Courses of the Academy of European Law, 1990, Volume 1-2 (Martinus Nijhoff Publishers, Dordrecht, Boston, London), p.103.

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The margin of appreciation doctrine is not mentioned in the Convention anywhere. It

is entirely a product of the Strasbourg organs. Its emergence is usually, albeit

incorrectly, dated from Handyside v. United Kingdom.132 Without a doubt, Handyside

is a turning point of paramount importance, but in fact the doctrine’s origins lie some

16 years earlier133 in Lawless v. Ireland.134 The case concerned whether there was an

emergency situation in Ireland, which would justify invoking derogation under Article

15(2). The Commission held:

Having regard to the high responsibility that a government bears to its people

to protect them against any threat to the life of the nation, it is evident that a

certain discretion - a certain margin of appreciation - must be left to the

government.135

II. Article 3 allows no formal Scope for the Balancing Act and no Margin

of Appreciation

A. The ‘other’ Convention Rights allow Scope for the Balancing Act

and the Margin of Appreciation Doctrine

Actions falling within the scope of the ‘other’ human rights – derogable and qualified

rights - may in certain circumstances be permitted. In other words, a state may

interfere and override these other rights. The issue is then to balance the need to

protect a Convention right against some legitimate reason for restricting it, such as the

need to protect public morals or to protect national security. This balancing is

formally permitted in the Convention - either by explicitly qualifying a right or

allowing for its derogation. In addition, the states are granted a margin of appreciation

to conduct this balancing act. The statement made by President Ryssdal sums this up

brilliantly:

132 Judgment of 7 December 1976, Series A, No. 24; (1979-80) 1 E.H.R.R. 24, 1976.133 Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’, International and Comparative Law Quarterly, Volume 48, July 1999, p.639.134 Judgment of 1 July 1961, Series A, No.3; 1 E.H.R.R. 15.135 Ibid. para.90, p.82.

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‘The margin of appreciation is a crucial element in the Court’s approach to

freedom of expression cases, as it is in other cases concerning provisions of

the Convention which expressly permit interference with the exercise of

rights.’136

B. A Contrario, Article 3 allows no Scope for the Balancing Act and

no Margin of Appreciation

I submit that there is a contradiction between on the one hand, the notion of an

absolute right and on the other hand, the balancing act and the margin of appreciation

doctrine. Given that an absolute right allows no derogation or limitation, there can

never be an issue of balancing the need to protect a Convention right against some

legitimate reason for restricting it. Or to put it another way, the implication here is that

a contrario there is no balancing act and no margin of appreciation in the application

of provisions that do not expressly authorise such interference.

Does this then mean that there is no scope for balancing competing claims within

Article 3? And that there is also no scope for the notion of the margin of appreciation

doctrine in relation to Article 3?

III. A Change of Emphasis reveals that Article 3 does allow Scope for the

Balancing Act and a Margin of Appreciation

A. The Change in Emphasis

In order to see the true picture as to whether there exists any scope for the balancing

act and the margin of appreciation doctrine we must immediately change where the

emphasis is placed on our conclusion: ‘ill-treatment falling within the scope of Article

3 is absolutely prohibited’.

136 Callewaert, ‘Is there a Margin of Appreciation in the Application of Article 2, 3 and 4 of the Convention?’ Human Rights Law Journal, Volume 19, No.1, p.8.

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In the previous section the emphasis was placed on ‘absolutely prohibited’. Now the

emphasis will be placed on ‘within the scope of Article 3’. What may appear as a

subtle change in emphasis has a dramatic effect on the conclusion drawn as to

whether there is scope for the balancing act and the margin of appreciation doctrine.

In the former the answer is in the negative and in the latter the answer is in the

affirmative.

B. The Correct Emphasis

In placing the emphasis on ‘absolutely prohibited’ the assumption was that, like the

‘other’ Convention rights, the scope of Article 3 remains the same. This emphasis is

wrong. The scope of Article 3 is not like the ‘other’ Convention rights: it is constantly

changing.

Thus, while it is true that Article 3 is differentiated from ‘other’ Convention rights in

that ‘ill-treatment falling within the scope of Article 3 is absolutely prohibited’, this

differentiation does not preclude the balancing act nor the margin of appreciation

from having roles operating in relation to Article 3. The keys words of the conclusion

are ‘within the scope of Article 3.’ It is here that the heart of the issue ultimately lies.

In sum, the difference between the ‘other’ rights and Article 3 is the fact that the

scope of the other rights remains the same; it is not defined or narrowed by any

potential limitations or restrictions on it. Therefore, any interference must be justified

separately whereas the scope and content of Article 3 is delimited by way of

interpretation by the Court. Essentially, an ‘interference by a Contracting state’ which

triggers the balancing act instead defines the scope of Article 3. Or to put it another

way, what might have been called a ‘limitation’ or ‘derogation’ on Article 3 in fact

defines its scope.

We must therefore now examine the approach used by the Strasbourg organs to

determine the scope of Article 3 – does such a method allow for a balancing act and a

margin of appreciation?

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IV. How the Strasbourg Organs delimit the Scope of Article 3, thus

operating the Balancing Act and granting a Margin of Appreciation to

the Respondent Government

A. The Balancing Act in operation

How do we draw the line to decide when the balancing act begins? I believe that in

order for no balancing act to be performed in relation to Article 3, only factors

relevant to determine the severity of suffering experienced by the victim should be

taken into account to delimit the scope of Article 3.

The Court should - when confronted with an alleged violation of Article 3 – examine

exclusively whether this alleged ill-treatment would register as exceeding the required

level of suffering on our imaginary pain-meter. If this is achieved, then the ill-

treatment does fall within the scope of Article 3. Essentially then, what may

distinguish one case from another is based primarily on the intensity of the suffering

inflicted. For example, ten blows to the head of a young, fit man may not reach the

required reading on the pain-meter, whereas exactly the same treatment inflicted on a

frail, elderly woman may indeed exceed the required reading.

a. The severity of the suffering approach: Article 3 as a relatively absolute

human rights norm137

In order for ill-treatment to fall within the scope of Article 3, the Strasbourg organs

have decided that it must exceed a certain severity of suffering threshold, the purpose

of which is two-fold. Firstly it determines whether the ill-treatment is serious enough

to violate Article 3. If this is answered in the affirmative, it then determines the label

attributable to the alleged ill-treatment: ‘torture’ ‘inhuman’ or ‘degrading’ treatment

or punishment.

So far so good. The scope of Article 3 is determined by the practical application of the

severity of suffering approach. However, is such an approach adopted in practice?137 This has already been extensively discussed in Chapter II, Section II, Parts E and F.

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b. The severity of suffering approach is not adopted in practice: Article 3 as

an absolutely relative human rights norm

If one scratches beneath the surface of the case law, it is revealed that the severity of

suffering approach, which is most commonly associated with it, is not fully reflected

in practice. Other factors are taken into account when determining the scope of Article

3 that go beyond looking exclusively at the ‘subject’ to instead consider all the

surrounding factors. In other words, when assessing where an alleged ill-treatment

falls within the scope of Article 3, the Strasbourg organs do balance competing

claims.

In Raninen v. Finland138 concerning the wearing of handcuffs in public, the Court held

that the test was:

‘Whether or not the treatment in question denotes contempt or lack of respect

for the personality of the person subjected to it and whether it was designed to

humiliate or debase him instead of, in addition to achieving other aims’.139

Moreover, in the recent case of Keenan v. United Kingdom,140 the Court openly held

that the severity of suffering is only one element of an increasingly complex matrix:

‘While it is true that the severity of suffering, physical or mental, attributable

to a particular measure has been a significant consideration in many of the

cases decided by the Court under Article 3, there are circumstances where

proof of the actual effect on the person may be a major factor.’141

In taking other factors in account to determine the scope of Article 3, the Court, I

submit engages in a balancing act.

B. The Margin of Appreciation Doctrine in operation

138 Judgment of 16 December 1997, Application No. 20972/92; (1998) 26 E.H.R.R. 563.139 Ibid. para. 55.140 Judgment of 3 April 2001, Application No. 27229/95; (2001) 33 E.H.R.R. 913.141 Ibid. para. 112.

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Local circumstances cannot be taken into account in relation to Article 3. Firstly, in

Tyrer v. United Kingdom,142 the Court clearly precluded such an eventuality in

relation to Article 3: ‘no local requirement relative to the maintenance of law and

order would entitle any of [the Contracting States]…to make use of a punishment

contrary to Article 3’.143

In spite of this rather convincing reason as to why the margin of appreciation does not

operate in relation to Article 3, I argue that it does have a role in relation to this

article.

Moving away from the purpose of margin of appreciation which is to enable local

requirements to be taken into account, we focus upon what the margin of appreciation

does: it is a matter of who is allowed to take the decision; the national authority or the

Strasbourg organs. Where the Strasbourg organs are faced with an allegation of a

breach of Article 3, they may decide that it falls upon the national authorities to take

the decision i.e. the respondent government should be granted a margin of

appreciation.

There are various options that they employ to get around the ugly result of expressly

ruling that a margin of appreciation is allowed. Firstly, they can declare the alleged

application inadmissible. For example, they conclude that the requirement to exhaust

domestic remedies was not satisfied. Or if indeed declared admissible, they may then

decide to fail the claim on its merits: the alleged ill-treatment was not proved beyond

reasonable doubt or they may come to the conclusion that the ‘severity threshold has

not been exceeded’. In effect, what they have done - in order to reach such verdicts -

is to apply the admissibility rules more rigorously or to higher the threshold for

determining breaches of Article 3. This, in turn, stretches the margin of appreciation.

142 Judgment of 25 April 1978, Series A, No. 26; (1978) 2 E.H.R.R. 1.143 Para. 38.

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Furthermore, the Court has expressly held that state interests (such as security) may

be considered appropriate factors in any assessment of whether the threshold has been

reached.144

V. There is Scope for the Balancing Act and the Margin of Appreciation

Doctrine in relation to Article 3

In conclusion I have shown that the balancing act and the margin of appreciation do

operate in relation to Article 3. I do not wish to imply that because Article 3 may not

be seen to be absolutely guaranteed, that the Strasbourg organs have not been doing

their job properly. That would be unfair. The balancing act and the granting of a

margin of appreciation are operated within Article 3 for good reasons. Ill-treatment in

different contexts demands the balancing of different competing claims and differing

discretion granted to the government. If ill-treatment inflicted upon a frail, elderly

woman is treated differently to the same treatment inflicted upon a young, fit male,

then surely it follows that ill-treatment directed at a young man in college should be

treated differently to the same ill-treatment inflicted to a young man whilst detained

for having committed a rape?

In the next chapter I seek to explore how the Strasbourg organs have operated these

tools in relation to suspected terrorists. In other words, I seek to expose the

operational policy in the terrorist context.

144 Morgan and Evans, Protecting Prisoners, (Oxford University Press, Oxford, first edition, 1999), p.116.

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CHAPTER V

Is there an Operational Policy behind the Decisions and Judgments relating to

Article 3 in the Context of Suspected Terrorists?

I. The Policies behind the Decisions and Judgments relating to Article 3

A. The Emergence of Policies

So far, I have concluded that Article 3, although couched in absolute terms, does

allow the Strasbourg organs to balance competing claims and to stretch or retract the

margin of appreciation accorded to the government. The question now arises: how

have these organs responsible for supervising compliance with the Convention and

upholding its aims used these powerful tools?

On close examination of the case law, it becomes evident that the Strasbourg organs

do not use these tools haphazardly. Instead, they appear to have their own guidelines

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that determine how they are to use these tools. In other words, there are clear policies

underlying the decisions and judgments of the Commission and of the Court.

Despite these policies not being expressly exposed in the text of the case law, they are

nonetheless traced by examining the text of the case law. We must first examine the

alleged ill-treatment within the context of all the circumstances of the case, the

arguments submitted by the parties and the legal reasoning of the Commission and the

Court leading to the decision reached. Afterwards, we must attempt to ‘second guess’

the motivation behind the Strasbourg organs in reaching a particular decision after an

assessment of the facts. What aims were they ultimately trying to achieve?

Two types of policy operated by the Strasbourg organs can be identified: the general

policy and the operational policies.

B. The General Policy

The general policy represents itself as the collective undertaking by Contracting

Parties to not drift back to a time when torture and ill-treatment were practised by

governments as a matter of national policy.145

Essentially, the underlying aim is to prohibit recourse to an era where it was

considered an inevitable and respectable tool of government policy to practice torture

(often to achieve political ends). For example, in the wake of the First World War,

totalitarian regimes seized power in several European countries. The German Nazis,

the Russian Bolsheviks and the Italian Fascists were all ready to employ harsh

methods to quell their opposition. These methods undoubtedly included ill-treatment

within the scope of Article 3, and was tolerated and encouraged by the leaders.

‘Collective undertaking’ or ‘collective guarantee’ refers to the fact that the right to be

free from torture, inhuman or degrading treatment or punishment must be collectively

145 Addo and Grief, ‘Is There a Policy Behind the Decisions and Judgments Relating to Article 3 of the European Convention on Human Rights?’ European Law Review, Volume 20, No.2, April 1995, p.183.

52

guaranteed by all Contracting States. Evidence of the doctrine of collective guarantee

can be found in the fact that Article 24 creates an automatic compulsory jurisdiction

in relation to all states party to the Convention. Also, the fact that inter-state

applications require no more than an ‘alleged breach’ to engage the Strasbourg

machinery tends to confirm this doctrine.

The general policy has been confirmed in The Greek Case146, Ireland v. United

Kingdom147 and also in Donnelly and others v. United Kingdom.148

Ireland v. United Kingdom concerned the use of five psychological interrogation

techniques, namely wall-standing, hooding, subjection to noise, deprivation of sleep

and the deprivation of food and drink.149 They were said to have been ‘…authorised at

a ‘high level’. Although never committed to writing or authorised in any official

document, the techniques had been orally taught to members of the RUC by the

English Intelligence Centre.’150 Thus, these ‘five techniques’ were employed as tools

of governmental policy against IRA151 suspects. The Commission considered that the

uses of these methods constituted torture, but the Court did not agree: ‘…they did not

occasion suffering of the particular intensity and cruelty implied by the word torture

as so understood’.152

C. The Operational Policies

Whereas the general policy applies indiscriminately to the entire range of issues

arising under Article 3, operational policies apply in relation to specific subject

categories. There exist therefore a variety of different operational policies; each one

created to deal with a specific dimension of the potential issues arising under Article

3. Be it a ‘corporal punishment case’, a ‘detention case’ etc.

146 12 (1969) YBk.E.C.H.R.147 Judgment of 18 January 1978, Series A, No. 25; (1978) 2 E.H.R.R. 25.148 Decision of 5 April 1973, Application No., 5577-83/72, 16 (1973) Y.E.C.H.R. 212.149 Ibid. para 96.150 Ibid. para. 97.151 Irish Republican Army.152 Ibid. para. 167.

53

In spite of each policy having its autonomous application that is rarely transferable to

another subject category, there are still some characteristics that are common to all

operational policies under Article 3.

For example, there has emerged a consistent policy common to all of the operational

policies in relation to the nature of the complainant: whether it is an individual or an

inter-state application. Because inter-state applications are generally politically

undesirable, when made they are made for very good reasons and often concern very

serious Convention violations, such as the existence of an administrative policy

allowing torture. Furthermore, unlike individual petitions, they are not motivated by

private gain. Recognising this, the Strasbourg organs supervise individual applications

far more rigorously.153

In sum, when the Strasbourg organs are faced with an alleged violation of Article 3, in

addition to the general policy having its influence, they also assess each case

according to its particular dimension (‘corporal punishment case’, a ‘detention case’

etc.)

II. The Operational Policy in the Context of Suspected Terrorists

A. The Emergence of Policies in the Context of Suspected

Terrorists

Identifying the operational policy in the context of suspected terrorist is an onerous

task. This is essentially due to the suspected terrorist not being the victim of an

alleged violation of Article 3 in one exclusive dimension. There is a diversity of

subject categories within which a suspected terrorist has been the victim of an alleged

violation of Article 3: ‘extradition cases’, ‘detention cases’, and also ‘psychological

interrogation cases’. That said, it is possible to identify an operational policy, which

pervades all of the decisions and judgments of the Commission and of the Court in the

terrorist context.153 See Addo and Grief, ‘Is There a Policy Behind the Decisions and Judgments Relating to Article 3 of the European Convention on Human Rights?’ European Law Review, Volume 20, No.2, April 1995, p.183.

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B. The General Operational Policy in the Context of

Suspected Terrorists

To be branded a terrorist by a democratic government – whether proven or presumed

– is a very, very serious thing indeed. A terrorist represents the evil phenomenon of

terrorism, which in turn poses one of the biggest threats to national security.

Therefore, whenever a government ‘deals with’ a suspected terrorist, it inevitably falls

under the category of a problem or a matter of national security.

The Strasbourg organs aim to balance the competing claims of the rights of the evil

suspected terrorist against the need to preserve national security and the lives of

hundreds, possibly thousands of its innocent citizens. These special circumstances

justify the infliction of harsh measures. Recognising that matters of national security

are best regulated within the domain of the national government, this balancing act is

conducted, to a certain degree, by the government. In other words, in the terrorist

context the government is accorded a wide margin of appreciation. However, where

policies clearly in contravention of the Convention are pursued, the Court will

intervene.

These motives explain why the Strasbourg organs supervise applications of ill-

treatment directed at suspected terrorists more rigorously: the admissibility and

evidentiary criteria are applied strictly, the threshold for determining breaches of

Article 3 is significantly heightened, and a wide margin of appreciation is

consequently accorded to the government.

An inherent part of this operational policy is that suspected terrorists are treated

differently from others in the same situation. In other words, the same circumstances

may give rise to contradictory results. Let us look at the example of the treatment of

detained criminals. Treatment X directed at a suspected burglar may constitute a

breach of Article 3, whereas treatment X directed at a terror suspect may not be in

breach of Article 3. These results are not contradictory per se, but they are

fundamentally different and so are dealt with as such. Essentially, the operational

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policy in the context of suspected terrorists is applied to the second victim and

therefore explains the different decisions.

C. The General Operational Policy is applied in different

Grades

Similar to the emergence of a general policy applying to all subjects covered by

Article 3, the operational policy described below is also general; it applies to all

subjects covered by Article 3 in relation to suspected terrorists.

Furthermore, similar to operational policies being subject-specific, this operational

policy is also applied differently depending upon the context in which the case arises.

In essence, the operational policy in relation to suspected terrorists is applied in

differing grades directly dependent upon the category of the case: ‘detention of a

suspected terrorist’, ‘extradition of a suspected terrorist’ etc. In addition, specific

circumstances in a particular Contracting state may also render the need for a different

grade being applied.

III. The Different Grades of the Operational Policy: Dependent upon the

Subject of the Case

There are three broad subject categories that best demonstrate how the operational

policy is applied in different grades: ‘the treatment of a detained suspected terrorist’,

‘the extradition of a suspected terrorist ‘and ‘the interrogation of a suspected terrorist’.

In that order, they represent a regression in the application of the operational policy in

the terrorist context.

A. The Treatment of Detainees suspected of Terrorist

Activities

The Strasbourg organs have an operational policy relating to ‘detention cases’

regardless of what crime the detainee is suspected of having committed. It reflects

reluctance on the part of the Strasbourg organs to interfere and to therefore grant the

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national authorities a wide margin of appreciation in respect of conditions in places of

detention. This, coupled with the fact that the detainee is suspected of the crime of

terrorism i.e. he is the worst criminal and the biggest danger and threat to national

security, has resulted in the operational policy in the context of suspected terrorists to

be applied in its highest degree or grade. Therefore, it is in this context that the

operational policy in the terrorist context is fully endorsed.

In order to fully embrace the operational policy in the context of suspected terrorists

and to thereby allow a wide margin of appreciation in respect of conditions of

detention in the terrorist context, the Strasbourg organs have employed two

techniques: (a) the severity of suffering threshold has been considerably heightened

and (b) the obligation on the Government to take positive steps to guard against

treatment contrary to Article 3 is not strictly applied.

a. The Severity of Suffering Threshold is considerably heightened

i. A harsh regime of detention is unlikely to exceed the

severity necessary to bring it within the scope of Article 3

Guzzardi v. Italy154 is a good demonstration of a case where a harsh regime is not

extreme enough to give rise to an issue under Article 3. The applicant was suspected

of belonging to a band of Mafiosi and was described as ‘one of the most dangerous’

of individuals.155 He was arrested and placed in detention on remand and then

charged with conspiracy and being an accomplice to the abduction of a businessman.

After two years, the applicant could no longer continue to be a detainee on remand.156

He was therefore taken to the island of Asinara where the measure of ‘special 154 Judgment of 6 November 1980, Series A, No. 39; (1981) 3 E.H.R.R. 333.155 Ibid. para 12.156 Article 272 of the Italian Code of Criminal Procedure.

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supervision’ applied. The applicant complained that on Asinara he had to endure

living conditions that were at least degrading. These living conditions included being

restricted to circulating an area of 800m, a 10pm to 7am curfew and dilapidated living

accommodation that he alleged to be in a ‘state of disrepair’.157 However, the

government held the conditions to be ‘acceptable’.

The Court in a very short and single paragraph concluded that ‘having regard to all the

circumstances, it did not attain the level of severity above which treatment falls within

the scope of Article 3’.158

ii. Solitary confinement is unlikely to exceed the severity

necessary to bring it within the scope of Article 3

The suspected terrorist may be placed in solitary confinement. Solitary confinement

can be imposed as punishment on the suspected terrorist; it may be justified for

security reasons (the suspected terrorist may pose a threat to other prisoners); or, in

the interests of the administration of justice, to prevent the collusion of prisoners

pending proceedings. Whatever the reason, solitary confinement itself is not a

violation of Article 3.

Ensslin, Baader and Raspe v. FRG159 concerned the detention conditions of members

of the Baader-Meinhof terrorist group. The detainees were excluded from the prison

community and were confined to a security area. In the end, all three detainees

committed suicide. The Commission admitted that ‘the applicants were certainly

subjected to exceptional detention arrangements.’160 However, because the

Commission did not equate their conditions as being: ‘Complete sensory isolation

coupled with complete social isolation can no doubt ultimately destroy the

personality; thus it constitutes a form of inhuman treatment which cannot be justified

by the requirements of security…’161 the severity necessary to make it a violation of

Article 3 had not been reached.

157 Ibid. para 31.158 Ibid. para 107.159 Judgment of 8 July 1978, Application No. 7586/76, 7587/76, 14 D&R 64.160 Ibid. para 5.161 Ibid. para 5.

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b. The Obligation on the Government to take Positive Steps to guard

against Treatment contrary to Article 3 is not strictly applied

The Strasbourg organs have held that the obligation on the Government to take

positive steps to guard against treatment contrary to Article 3 does not go so far to

mean that a duty exists where ill-treatment is the result of the conduct of the persons

detained.

In McFeeley v. United Kingdom,162 convicted IRA prisoners took part in what has

aptly been called a ‘dirty protest’: they smeared their faeces, urine and food on their

cell walls. Because their conditions of detention had been worsened by their conduct,

the Commission found that the appalling conditions of the prisoners were not

attributable to the United Kingdom. A state’s responsibility does not go that far.

Furthermore, a sentence that is out of proportion to the offence may raise a question

under Article 3. However, one doubts whether this is likely to arise in the context of

terrorist activities.

B. The Extradition of a Suspected Terrorist

As already explained,163 the obligation on a Contracting state to take positive steps to

guard against treatment contrary to Article 3 may give rise to a duty not to extradite,

deport or expel a person to another country. But what happens when the person is a

suspected terrorist? Is the operational policy in the context of suspected terrorists

applied? Are the admissibility criteria rigorously applied and the threshold heightened

to thus ‘temper’ with this rule?

Until 1996 the Commission and Court had not finally adjudicated upon a case of this

kind. Amekrane v. United Kingdom164 was a case falling in this category, however a

162 Decision of 15 May 1980, Application No. 8317/78; (1981) 3 E.H.R.R. 161.163 See Chapter III.164 Decision of 11 October 1973, 16 (1973) Y.E.C.H.R. 356.

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friendly settlement was reached. In 1996 the Court had to finally adjudicate on the

case of Chahal v. United Kingdom.165

Chahal is a Sikh who illegally entered the United Kingdom in 1971. He was

politically active in the Sikh community in the United Kingdom. He played a

significant role in establishing the organisation of the International Sikh Youth

Federation, whose objective was the creation of an independent homeland in the

Punjab.

Chahal was arrested in the UK in connection with conspiracy to kill the then Indian

Prime Minister, Rajiv Gjandhi, but was subsequently released on lack of evidence.

The Home Secretary decided that Chahal should be deported to India, the country of

which he was a citizen. This was for national security reasons because of his alleged

involvement in terrorist attacks in Punjab. Chahal claimed political asylum. He

complained to the Commission that the decision to extradite him was in breach of

Article 3. The Court held that if extradited, the UK would be in breach of Article 3.

Some may argue that the operational policy in the context of suspected terrorists was

not applied: the severity of suffering threshold could have been higher or the

evidential burden could have been higher (the Court could have given more weight to

evidence of the Indian government).

I disagree. The operational policy in the terrorist context was applied whereby the aim

is for matters of national security to remain within the domain of the government. It is

clear however that where states pursue policies, which cannot be justified in terms of

the Convention, the Strasbourg organs will step in.

The rules concerning extradition were firmly established in Soering v. United

Kingdom:166 ‘where substantial grounds have been shown for believing that the person

concerned, if extradited, faces a real risk of being subjected to torture or to inhuman

or degrading treatment in the requesting country’ an obligation arises under Article 3

165 Judgment of 15 November 1996, Application No. 22414/93; (1997) 23 E.H.H.R. 413.166 Judgment of 7 July 1989, Series A, No.161; (1989) 11 E.H.R.R. 439.

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for the extraditing, expelling or deporting country. After reviewing the factual

evidence, noting the extra judicial killings in Punjab, the poor human rights record of

security forces and the high profile of Chahal as a supporter of Sikh, the majority

concluded that he would face a real risk of ill-treatment if returned to India.

Therefore, this was clearly a case of a state pursuing policies, which cannot be

justified in terms of the Convention. The fact that the potential victim is a suspected

terrorist cannot justify letting a state pursue such policies: ‘In these circumstances, the

activities of the individual in question, however undesirable or dangerous, cannot be

a material consideration.’167

Moreover, I believe that a significant influence was the fact that the UK government

argued that Article 3 is not absolute and must be balanced with competing interests

such as national security where a state is planning to expel or deport an individual.

Clearly a decision to the contrary would have serious impact, jeopardizing the

absolute nature of Article 3.

C. The Use of Psychological Interrogation Techniques

a. The use of psychological interrogation techniques as a matter of

administrative practice during times of emergency

This category of case represents the application of the operational policy at the

extreme end of the spectrum. The general policy has a significant influence in this

context. Its influence is so profound that it effectively demotes the operational policy -

normally associated with decisions and judgments in the terrorist context - to become

peripheral. There are good reasons that justify why.

Recalling that the rationale behind the general policy is to prevent the return to an era

when Article 3 techniques were considered an inevitable and even respectable tool of

governmental policy, one of the best scenarios to reflect this forbidden regression is

the use today of Article 3 techniques as an administrative practice during emergency

rule to investigate the crime of terrorism. Torture, inhuman, degrading treatment or 167 Ibid. para 80.

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punishments are used to interrogate suspected terrorists; their purpose being to

ultimately force the suspect to confess, to remove contradictions in statements and to

make him reveal his true identity.

Logically then, the key element in a case falling within this category - psychological

interrogation techniques as a matter of administrative practice during times of

emergency - is the fact that Article 3 techniques are employed as a matter of

governmental policy. Often this governmental policy extends to making public

officials and medical staff deny that torture ever took place. In addition, lawyers

coming to the aid and defence of victims are often threatened with death if they

continue their pursuit to bring those responsible to justice.

There are two important elements, which determine the existence of an administrative

practice: the repetition of the prohibited activity and the official tolerance by the

government.168 The Court reaffirmed this test in Aksoy v. Turkey:169

‘…an administrative practice consisting of a repetition of acts incompatible

with the Convention and official tolerance by the State authorities has been

shown to exist,…’170

The Strasbourg organs will often decide that ‘it is not necessary to determine whether

there was an administrative practice’. Is this because they are departing from attaching

great importance to the existence of an administrative practice? I submit no. Instead,

the existence of the two requirements is obvious: Article 3 techniques do form an

administrative practice.

The importance the Strasbourg organs attach to the finding of an administrative

practice is not a secret. For example, in Aksoy the applicant asked the Court to find

that violations of the Convention ‘had been aggravated because the measures

complained of formed part of an administrative practice’.171

168 This rule to determine the existence of an administrative practice has its origins in Ireland v. United Kingdom, the Greek Case and Donnelly and Other v. United Kingdom.169 Judgment of 18 December 1996, Application No. 21987/93; (1997) 23 E.H.R.R. 553.170 Ibid. para 52.171 Ibid. para 37.

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In sum, the Strasbourg organs - motivated by the eradication of all forms of

governmental brutality – have employed various techniques to ensure that those

responsible are brought to justice. These techniques are primarily: (i) the obligation on

the government to take positive steps to guard against treatment that will be contrary

to Article 3 is strictly applied; (ii) the evidentiary rules are relaxed and (iii) the

admissibility rules are relaxed.

I have selected the following cases to illustrate this policy: Tomasi v. France,172 Aksoy

v. Turkey,173 and Dikme v. Turkey.174 All of these cases arose during emergency rule. I

will take this opportunity to briefly outline their facts. The following facts, unless

stated otherwise, are those established by the Commission and accepted by the Court.

Tomasi v. France (1992)

The applicant, Tomasi was arrested and placed in police custody on suspicion of

having taken part in a terrorist attack at Sorbo-Oragnano, which resulted in the death

of one man and grave injuries to another. The following day the ‘ex FLNC’175 claimed

responsibility for the attack and for twenty-four other bomb attacks.

Tomasi alleges that whilst in police custody he was subjected to psychological

interrogation techniques. He had been slapped, kicked, punched, spat upon, deprived

of food and given forearm blows. His hands has been handcuffed behind his back and

he was also made to stand for long periods without support, including standing naked

in front of an open window.176 He was threatened with a firearm and his parents’ lives

were also threatened.

Aksoy v. Turkey (1996)

The applicant, Mr Aksoy, alleged that a detainee had identified him as a member of

the PKK terrorist organisation. He was therefore arrested and placed in custody. His

172 Judgment of 27 August 1992, Series A, No. 241-A; (1993) 15 E.H.H.R. 1.173 Judgment of 18 December 1996, Application No. 21987/93; (1997) 23 E.H.R.R. 553.174 Judgment of 11 July 2000, Application No. 00020869/92, Hudoc ref. REF00001705, available at, http://hudoc.echr.coe.int/hudoc/175 The Corsican National Liberation Front.176 Ibid. para. 108.

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detention lasted at least fourteen days, during which he had no access to legal or

medical assistance.

Whilst in detention, the applicant alleged that he was subjected to the following

psychological interrogation techniques, inflicted with the purpose of inducing him to

admit that he knew the man whom had identified him: ‘Palestinian hanging’ (the

victims hands are tied behind his back and he is then strung up by his arms), whilst

being electrocuted and having water poured over him, beatings, slapping and verbal

abuse.

The applicant lodged an application to the Commission to complain of his ill-

reatment. According to his representatives, he had been threatened with death if he did

not withdraw his application to the Commission. Mr Aksoy was subsequently shot

dead.

Dikme v. Turkey (2000)

The applicant177 and his female companion were arrested and taken into custody on

suspicion on being involved in an illegal terrorist organisation ‘Devrimci Sol’.

Whilst in custody he alleged to have been subjected to the following psychological

interrogation techniques: ‘Palestinian hanging’ while having cold water poured over

him, punching, kicking, threats to his life, beatings and he was subjected to electric

shocks through electrodes attached to his feet, genitalia, tongue behind his ears and

tongue. He also alleges that he was made to sleep naked on the floor and was placed

in a bath of ice-cold water.

i. The obligation on the government to take positive steps to guard

against treatment that will be contrary to Article 3 is strictly applied

Motivated by the aim to eradicate all forms of brutality practised as a matter of

governmental policy, the obligation on the government to take positive steps to guard

against treatment that will be contrary to Article 3 is strictly applied in these cases.

177 The applicants were, Mr Dikme and his mother, Mrs Dikme. Relevant to this study is the facts concerning the first applicant.

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Therefore, the mere failure of the government to deal satisfactorily with a breach of

Article 3 will have a significant impact upon imputing responsibility to it. In some

situations it may be enough to impute responsibility to it.

For instance, in Aksoy, the applicant, immediately before his release from detention,

was brought before the public prosecutor. The facts concerning what happened at the

meeting were in dispute. The Court held that even in accepting the government’s

statement of facts, the injuries the applicant had sustained must have been clearly

visible.178 The prosecutor was therefore under an obligation to take positive steps to

investigate the injuries. However, the prosecutor did not carry out this duty (which is

also a duty under Turkish law) he ‘chose to make no enquiry as to the nature, extent

and cause of these injuries’.179 While this alone did not impute the responsibility on

Turkey, it was clearly a significant factor in the case.

ii. The evidentiary rules are relaxed

Usually the Commission and the Court indicate that allegations under Article 3 need

to be proved beyond reasonable doubt. However, motivated by the eradication of

governmental brutality in this context, they have chosen to relax the standard of proof.

Their practice reflects that where there are shortcomings in evidence they are prepared

to give the benefit of the doubt to the victim - the suspected terrorist - and to accept

that a breach of Article 3 is sufficiently proved.

This policy can be seen clearly in cases where a suspected terrorist is taken into police

custody in good health but is found to be injured at the time of his release. In this

situation, the Strasbourg organs have indicated that there is a presumption that the

public officials inflicted the injuries – unless the respondent government can offer a

plausible alternative explanation.

In Tomasi, there was a problem surrounding the causation of the applicant’s injuries.

The applicant alleged that they were the result of ill-treatment whilst in police

custody; the police officers denied these accusations. Medical reports indicated a large

178 Ibid. para 56.179 Ibid. para 56.

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number of blows of sufficient intensity to be within the scope of Article 3 – abrasions

on his face, chest, arms, haematoma on his left ear, had all been inflicted on the

applicant. Given that (i) the government, although maintaining that they had not

caused the injuries, could give no explanation as to their cause and (ii) concurring

medical observations indicated that the dates for the observance of the injuries

corresponded to the period spent in custody, the Court concluded that a breach of

Article 3 was sufficiently proved.

Similarly in Aksoy, the applicant complained of being subjected to torturous

interrogation techniques, which included ‘Palestinian hanging’. After being released

from detention he was admitted to Dicle University and diagnosed as suffering from

radial paralysis. Medical evidence indicated that the applicant’s condition could have

had various causes. However, radial paralysis affecting both arms was apparently not

a common condition, although it was consistent with the form of ill-treatment known

as ‘Palestinian hanging’. The Court followed Tomasi in holding:

‘…where an individual is taken into police custody in good health but is found to

be injured at the time of release, it is incumbent on the State to provide a plausible

explanation as to the causing of the injury, failing which a clear issues arises

under Article 3 of the Convention.’180

iii. The admissibility rules are relaxed

The conditions of admissibility are set out in Articles 35-37. Before the changes were

brought about by Protocol 11,181 the determination of the question of admissibility was

the principal role of the Commission. It was in charge of conducting a sifting process

of applications whereby 70% of applications were declared inadmissible. The new

Court now fulfils this role.

It is clear from the terms of Articles 35-37 that the admissibly requirements are

different depending upon whether the application arises from an inter-state case or an

180 Ibid. para. 61.181 Protocol No.11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, available at http://convention.coe.int/Treaty/EN/cadreprincipal.htm

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individual petition. Apart from the conditions rationae materiae, personae, and loci

temporis, the only admissibility requirements applicable to inter-state cases are those

set out in Article 35,182 namely the requirement to exhaust domestic remedies and the

six-month rule.

In cases concerning the interrogation of suspected terrorists as an administrative

practice during times of emergency, the Court has chosen to relax the admissibility

rules: the requirement to exhaust domestic remedies and the six-month rule are

sometimes negated.

The negation of the requirement to exhaust domestic remedies

The exhaustion of the domestic remedies rule is referred to in Article 35 of the

Convention. The rule is founded on the international law principle that the state must

first have the opportunity to redress the alleged wrong within its own legal system.

The Strasbourg organs do not ignore the existence of remedies for the violation of

Article 3 as part of the national legal system. However, they do recognise that if

Article 3 techniques are carried out under emergency rule as part of government

policy, then inevitably these remedies are rendered ineffective. It is nonsense to

suggest that it is possible for a government to wear two hats: that of the perpetrator of

Article 3 techniques and that of bringing the perpetrator (i.e. himself) to justice.

Therefore, any argument submitted by the respondent government declaring that the

Court should reject the applicant’s complaint under Article 3 on the ground that,

contrary to Article 26, the applicant had failed to exhaust domestic remedies, will be

rejected.

In Aksoy, the applicant instigated no criminal or civil proceedings in the Turkish

courts in relation to his alleged ill-treatment.183 The government argued that the

applicant had recourse to three different types of domestic remedy: a criminal

182 Article 35 Admissibility criteria1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months form the date on which the final decision was taken.

183 Ibid. para 21.

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prosecution, a civil action and/or administrative proceedings.184 The Court held that

there is no obligation to have recourse to remedies, which are inadequate or

ineffective and that:

‘The [requirement to exhaust domestic remedies]…is also inapplicable where

an administrative practice…has been shown to exist, and is of such a nature

as to make proceedings futile and ineffective.’185

The negation of the six-month rule

The ratio legis of the six-month rule is the desire of contracting parties to prevent past

decisions being constantly called into question. It marks out boundaries for the

temporal limits of supervision. As such, the rule creates an element of legal certainty

and stability.

The Strasbourg organs have been willing to negate the six-month rule in cases of the

interrogation of suspected terrorists as an administrative practice during times of

emergency.

For instance, in Dikme v. Turkey, the government argued, among other things, that the

applicant had not observed the six-month rule. Following the policy to relax the

admissibility rules, the Court dismissed this aspect of the government’s preliminary

objections.186

b. The use of psychological interrogation techniques, not as a matter of

administrative practice, but as an isolated instance, during times of

emergency

Clearly, in adopting the view that interrogation techniques employed as a matter of

administrative practice are very, very serious, the implication here is that Article 3

techniques practised in isolated instances are less serious. Recognising this, the 184 Ibid. paras 24-28.185 Ibid. para 52.186 Ibid. para 43-49.

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Strasbourg organs have chosen not to relax the admissibility criteria in this instance.

In other words, in the situation of ill-treatment occurring as an isolated instance, there

will be an obligation on the applicant to exhaust domestic remedies before seeking

redress under the Convention.

The motives behind this policy are twofold. If the interrogation techniques are not a

matter of governmental policy, the remedies available within the national legal system

have a realistic chance of being effective. Also, the Strasbourg organs recognise that

there is a danger that, in times of stress, public officials may resort to prohibited

activities – even if the official attitude is against them.

In Donnelly and Others v. United Kingdom,187 the admissibility rule requiring the

exhaustion of domestic remedies was strictly applied. The case concerned the use of

ill-treatment in Northern Ireland. This case shows that these remedies can be effective

for obtaining redress; the applicant received compensation.

IV. The Different Grades of the Operational Policy: Dependent upon

Specific Circumstances Particular to a Contracting State

In addition to different situations giving rise to a different grade of application of the

operational policy in the terrorist context, the Strasbourg organs may decide to apply a

different grade of the operational policy because of specific circumstances particular

to a Contracting state.

For instance, the Strasbourg organs have deemed it necessary to apply a different

grade of the operational policy in relation to the government of Turkey. This is clearly

reflected in the case law of the Strasbourg organs.

The specific circumstances in relation to Turkey are that since approximately 1985,

serious disturbances have raged in the south-east of Turkey between the PKK

organisation (Workers’ Party of Kurdistan) and the Turkish government. This

confrontation has claimed thousands of lives. The Strasbourg organs are obviously 187 Decision of 5 April, Application No. 5577-83/72, 16 (1973) Y.E.C.H.R. 212.

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aware of the Turkish problem. Their main concern – as the organs responsible for

supervising compliance with the Convention and upholding its aims - is perhaps the

reaction of the Turkish government. In fighting to eradicate terrorism in the region,

underground relations have formed and Turkey has been the perpetrator of serious

offences such as murder and killings of well-known figures or supporters of the

Kurds, extortion, seizure by force, assaults on homes, rape, and torture.

There is no shortage of case law where a Turkish citizen complains that being

subjected to an armed attack by Turkish village guards that forced him to flee for his

life amounts to a violation of Article 3. The recent case of Matyar v. Turkey188 is a

good example of such a situation.

Similar to the ‘use of psychological interrogation techniques as an administrative

practice’, the specific circumstances particular to Turkey is also one of the best

scenarios to reflect a forbidden regression to the use of torture as a tool of

governmental policy. Unsurprisingly, the existence of Article 3 techniques as a matter

of the Turkish governmental policy is the key element.

Motivated by the eradication of governmental brutality, the Strasbourg organs have

once again chosen to apply the operational policy in the context of suspected terrorist

at the extreme end of the spectrum. In other words, the Strasbourg organs approach

the Turkish cases with the same policy as they approach the ‘use of psychological

interrogation techniques as an administrative practice during times of emergency’

cases in the terrorist context.

I have selected the case of Mahmut Kaya v. Turkey189 to illustrate the application of

this policy. Due to the death of the victim, Dr Kaya, the victim’s brother, brought the

application.

188 Judgment of 21 February 2002, Application No. 00023423/94, Hudoc ref. REF00003279, available at http://hudoc.echr.coe.int/hudoc/

189 Judgment of 28 March 2000, Application No. 00022535/93, Hudoc ref. REF00001416, available at http://hudoc.echr.coe.int/hudoc/

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Dr Kaya was not a suspected terrorist per se. He was a doctor who treated

demonstrators that were injured in clashes with the security forces. Therefore, he was

viewed by the Turkish government as a sympathiser of terrorism.

Dr Kaya had a friend who was also a sympathiser of terrorism, Metin Can, a lawyer

who had been representing persons suspected of being members of the PKK

organisation. They both received threats that steps were being planned against them.

Can was told that there was a wounded member of the PKK. So Can and Dr Kaya set

off to help the victim.

Can and Dr Kaya subsequently disappeared. Their dead bodies were later found. An

autopsy revealed that both men had been shot in the head with their hands tied. The

applicant complained that his brother was tortured before his death.

A. The Obligation on the Government to take Positive Steps

to guard against Treatment that will be contrary to

Article 3 is strictly applied

Article 3 imposes an obligation on the authorities to take reasonable steps to avoid a

risk of ill-treatment which they ought to have known about. The Turkish government

must be aware that sympathisers of terrorism in Turkey are at a risk of being ill-

treated or even killed. The government ought to have protected his life through

specific measures and through criminal law. They did not. The Court held that:

‘The failure to protect his life through specific measures and through the general

findings in the criminal law framework placed him in danger not only of extra-

judicial executions but also of ill-treatment from persons who were unaccountable

for their actions. It follows that the State is responsible for the ill-treatment

suffered by Hasan Kaya after his disappearance and prior to his death.’190

B. The Evidentiary Rules are relaxed

190 Ibid. para 117.

71

The Court followed the same rule as established in Tomasi and Aksoy, namely where

an individual is taken into custody in good health but is found to be injured at the time

of his release, it is incumbent on the state to provide an explanation as to the cause of

the injury, failing which a clear issue arises under Article 3. This time it was applied

not where injuries were sustained in custody, but during a period of disappearance.

The Strasbourg organs do not differentiate between the two contexts – custody or

disappearance - because particular to them both is the fact that the victim is in an

extremely vulnerable position under the control of his captors.

Thus in Kaya, the Court held that where injuries were sustained, it is for the

government to prove otherwise. Medical evidence revealed that Dr Kaya’s injuries

included: ‘circular marks around both wrists, which might have been caused by the

hands being bound in wire…cyanosis in the toe bases on both feet and athlete’s foot

on both feet…probably caused by remaining in water and snow for lengthy

periods’.191 Due to the particular circumstances of the case, the government needed to

prove that it was responsible for neither the disappearance of Dr Kaya nor his death.

Failing which, a clear issue arises under Article 3.

The applicant argued that his brother had been killed either by undercover agents of

the state or by persons acting under their express or implied instructions and to whom

the state gave support, including training and equipment.192 The Commission

concluded that there was insufficient evidence to establish beyond reasonable doubt

that the state was responsible for his death. However, given the strong evidence of Dr

Haya as a PKK sympathiser and that as such was at risk of being targeted by the

security forces, it accepts that the facts were sufficient to impute responsibility to the

government. Therefore, building on this, the Court automatically imputed

responsibility to the Turkish government for his injuries. However, the Court did not

find that the practice of binding the wrists with wire in a manner so as to cut the skin

and the prolonged exposure of his feet in the snow could be very cruel and severe.

Therefore the ill-treatment was regarded as ‘inhuman and degrading’.

191 Ibid. para 22.192 Ibid. Para.73.

72

Concluding Remarks

What is the scope of Article 3 in relation to Suspected Terrorists?

Article 3, characterised by the absence of permissible limitations, qualifications and

derogations, is an absolute right. Ill-treatment falling within its scope is absolutely

prohibited. Not even the ‘worst case scenario’ of a terrorist outrage can justify the

employment of Article 3 techniques.

That said, the Strasbourg organs have a great deal of power in deciding whether an

alleged ill-treatment falls within the scope of Article 3. It is here that the heart of our

solution ultimately lies. The Strasbourg organs do indeed employ the tools of

balancing competing claims and the stretching or retracting of the margin of

appreciation accorded to government. In turn, the application of these tools represents

clear policies underlying the judgments of the Court and the decisions of the

Commission.

It is possible to identify an operational policy, which pervades all of the decisions and

judgments of the Commission and of the Court in the terrorist context. The Strasbourg

organs balance the competing claims of the rights of the suspected terrorist against the

need to preserve national security and the lives of hundreds, possibly thousands, of its

innocent citizens. Recognising that matters of national security are best regulated

within the domain of the national government, this balancing act is conducted, to a

certain degree, by the government i.e. in the terrorist context the government is

accorded a wide margin of appreciation. However, where policies clearly in

contravention of the Convention are pursued, the Court will obviously intervene.

73

As a result, applications of ill-treatment directed at suspected terrorists are supervised

more rigorously: the admissibility and evidentiary criteria are applied strictly, the

threshold for determining breaches of Article 3 is significantly heightened, and a wide

margin of appreciation is consequently accorded to the government.

This operational policy is applied in differing grades depending on the subject matter

of the case – ‘treatment of detainees suspected of terrorism’, ‘extradition of a

suspected terrorist’ or ‘psychological interrogation of suspected terrorists’- and

sometimes on the specific circumstances particular to a respondent government.

That said, Article 3 suspected terrorist cases (like all Article 3 cases) should be

approached with caution. No policy is set in stone. Even if a policy clearly appears to

exist, within it operates a matrix of other policies. Also, the world is constantly

changing and so is the interpretation of the Convention. I am very interested in how

the policy will be developed in cases concerning the detention of suspected terrorists

in the United Kingdom, now that the United Kingdom has derogated from Article 5

ECHR. Chahal v. United Kingdom193 clearly prescribes that a government has a duty

not to remove from its country those who will face a real risk of being subjected to ill-

treatment contrary to Article 3, however bloody their hands may be.

Clearly the Strasbourg organs are not abdicating from their responsibilities as

supervisors of the Convention, their approaches represent good decision-making;

cases are dealt with differently because they are fundamentally different.

Some may not concur with my conclusion. Identifying a policy – although based on a

careful analysis of individual decisions and judgments – equates to second guessing

the motivations behind the Strasbourg organs in reaching a particular decision after an

assessment of the facts.

Some may indeed believe that these policies are not pursued with the aim of

upholding the law. Instead, they are indeed wrong. Clearly that is his or her

subjective belief to which everyone is entitled.

193 Judgment of 15 November 1996, Application No.22414/93; (1997) 23 E.H.R.R. 413.

74

BIBLIOGRPHY

Textbooks

Cassesse, Inhuman States: Imprisonment, Detention and Torture in Europe Today,

(Polity Press, Cambridge, Oxford, first edition, 1996)

Evans and Morgan, Preventing Torture, A Study of the European Convention for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment,

(Clarendon Press, Oxford, first edition, 1998)

Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights,

(Butterworths, London, Dublin, Edinburgh, first edition, 1995)

Morgan and Evans, Protecting Prisoners, (Oxford University Press, Oxford, first

edition, 1999)

Sandbu and Nordbeck, International Terrorism: Report from a Seminar Arranged by

The European Law Students’ Association in Lund, Sweden, 1-3 October 1987,

(Jurstförlaget i Lund Distribution: Akademibokhandeln i Lund, Sweden, 1989)

Shaw, International Law, (Cambridge University Press, fourth edition, 1997)

Simor and Emmerson, Human Rights Practice R.O., (Sweet & Maxwell, London,

2000)

Wallace and Dale-Risk, International Human Rights Text and Materials, (Sweet &

Maxwell, London, second edition, 2001)

75

Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human

Rights Jurisprudence, (Martinus Nijhoff Publishers, Dordrecht, The Netherlands,

Kluwer Academic Publishers Group, The Hague, Boston, London, first edition, 1996)

Academic Articles

All Websites were visited between May - September 2002

Addo and Grief, ‘Does Article 3 of the European Convention on Human Rights

Enshrine Absolute Rights?’ European Journal of International Law, Volume 9

(1998), p. 510

Addo and Grief, ‘Is there a Policy behind the Decisions and Judgments relating to

Article 3 of the European Convention on Human Rights?’ European Law Review,

Vol. 20, No. 2, April 1995, p. 179

Amnesty International, ‘Israel/Occupied Territories and the Palestinian Authority.

Five Years after the Oslo Agreement: Human Rights Sacrificed for ‘Security’’,

http://www.web.amnesty.org/ai.nsf/index/MDE020041998

Amnesty International, ‘Torture’,

http://www.amnesty.org.au/whatshappening/torture/index-2.html

Anon, ‘Derogation form Article 5 ‘unlawful’ argues QC’, Solicitors Journal, 23

November 2001, p.1071.

Anon, ‘Prisoners’ human rights’, Solicitors Journal, 13 April 2001, p.326

Anon, ‘The European Court of Human Rights’,

http://germany.freedommag.org/issues/relifree/eng/page10.htm

Andersen, ‘Is Torture an Option in War on Terror?’

http://www.insightmag.com

76

Arnull ‘Opinion 2-94 and its Implications for the Future Constitution of the Union’,

C.E.L.S. Occasional Paper No.1

Association for the Prevention of Torture, ‘Protecting Human Rights in Times of

Emergency’,

http://www.apt.ch/pub/library/pphr.htm

Black-Branch, ‘The Derogation of Rights under the UK Human Rights Act:

Diminishing International Standards?’ Statute Law Review, Volume 22, Number 1,

p.71

Brugger, ‘May Government Ever Use Torture? Two Responses From German Law’,

The American Journal of Comparative law, Volume 48, No. 4, Fall 2000, p.661

Callewaert, ‘Is there a Margin of Appreciation in the Application of Article 2, 3 and 4

of the Convention?’ Human Rights Law Journal, Volume 19, No.1, p.6

Cilluffo and Rankin, ‘Fighting Terrorism’, NATO Review, Winter 2001/2002, p.12

Danelius, ‘The International Protection against Torture and Inhuman or Degrading

Treatment or Punishment’ in Collected Courses of the Academy of European Law,

The Protection of Human Rights in Europe, 1991, Volume II, Book 2, (Martinus

Nijhoff Publishers, Dordrecht, Boston, London), p.151

Evans, ‘Getting to Grips with Torture’, International and Comparative Law

Quarterly, Volume 51, April 2002, p.365

Evans and Morgan, ‘The European Convention for the Prevention of Torture:

Operational Practice’, International and Comparative Law Quarterly, Volume 41,

1992, p.590

Forte, ‘It’s Still Evil, Stupid’, National Review Online, July 2002,

http://www.ashbrook.org/publicat/oped/forte/02/evil.html

77

Gewirth, ‘Are There Any Absolute Rights?’ as cited in Gewirth, Human Rights:

Essays on Justification and Applications, (The University of Chicago Press, Chicago

and London, first edition, 1982), p.218

Gross and Aoláin ‘From Discretion to Scrutiny: Revisiting the Application of the

Margin of Appreciation Doctrine in the Context of Article 15 of the European

Convention on Human Rights’ Human Rights Quarterly 23 (2001), p. 625

Hajjar, ‘Sovereign Bodies, Sovereign States: Torture and the Nation’,

http://www.humanrights.uchicago.edu/documents/Torture%20Conference/Hajjar.htm

Hudson, ‘Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under

International law?’ European Journal of International law, Volume 11, No.4,

December 2000, p.833

Human Rights Web, ‘An Introduction to the Human Rights Movement’,

http://www.hrweb.org/intro.html

Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human

Rights’, International and Comparative Law Quarterly, Volume 48, July 1999, p.638

Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect

of Gross Human Rights Offences’, Human Rights Quarterly, Volume 23, No. 4,

November 2001, p.940

Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the

Perspective of Non-derogable Rights’, European Journal of International Law,

Volume 12, No. 5, November 2001,p. 917

Lavender, ‘The Problem of the Margin of Appreciation’, [1997] European Human

Rights Law Review, Issue 4, p.380

78

Loucaides, ‘The Protection of Human Rights Pending the Settlement of Related

Political Issues’, The British Yearbook of International Law, 1987, Volume LVIII,

p.349

Macdonald, ‘The Margin of Appreciation in the Jurisprudence of the European Court

of Human Rights’, in Collected Courses of the Academy of European Law, 1990,

Volume 1-2, (Martinus Nijhof Publishers, Dordrecht, Boston, London), p.103

Mahoney, ‘The Doctrine of the Margin of Appreciation under the European

Convention on Human Rights: Its Legitimacy in Theory and Application in Practice’,

Human Rights Law Journal, Volume 19, No.1, 30 April 1998, p.1

Rendall, ‘Pro-Pain Pundits: Torture advocates defy U.S., international law’,

http://www.fair.org/extra/0201/pro-pain.html

Rodley, ‘The Prohibition of Torture and How to Make It Effective’,

http://humrts.huji.ac.il/rodley.htm

Singh, Hunt and Demetriou, ‘Current Topic: Is there a Role for the “Margin of

Appreciation” in National Law after the Human Rights Act?’ [1999] European

Human Rights Law Review, Issue 1, p.15

Sylvester, ‘The Anti-Terrorism, Crime and Security Bill – is derogating from Article

5 of the ECHR legitimate and necessary?’

http://lawreports.co.uk/Anti-Terrorism.htm

United Nations, ‘High Commissioner for Human Rights calls for Balancing Anti-

Terrorism Efforts with Respect for Rights’,

http://www.unorg.ch/news2/documents/newsen/cn0204e.htm

Wadham, ‘The Human Rights Act: One Year On’, European Human Rights Law

Review, Issue 6, Sweet & Maxwell Ltd. 2001, p.620

79

Warbrick, ‘The European Convention on Human Rights and the Prevention of

Terrorism’, International and Comparative Law Quarterly, Volume 32, 1983, p.82

Warbrick, ‘The Prevention of Terrorism (Temporary Provisions) Act 1076 and the

European Convention on Human Rights: The McVeigh Case’, International and

Comparative Law Quarterly, Volume 32, 1983, p. 757

Yzl, ‘Female Circumcision: Cultural rights or human wrong?’

http://www.csvr.org.za/papers/papfemc.htm#note1

Table of Cases

International Criminal Tribunal for the Former Yugoslavia

The Prosecutor v. Anto Furundzija,

Judgment of 10 December 1998, Case no. IT-95-17/I-T, (1999)

http://www.un.org/icty/furundzija/trialc2/judgment

European Court of Human Rights

A v. United Kingdom,Judgment of 23 September 1998, Report of Judgments and Decisions 1998-VI, p.2692

Aksoy v. United Kingdom,

Judgment of 18 December 1996, Application No. 21987/93; (1997) 23 E.H.R.R. 553

Al-Adsani v. United Kingdom,

Judgment of 21 November 2001, Application No. 00035763/97, Hudoc ref.

REF00002995, http://hudoc.echr.coe.int/hudoc/

Chahal v. United Kingdom,

Judgment of 15 November 1996, Application No.22414/93; (1997) 23 E.H.H.R. 413

80

Cruz Varas v. Sweden,

Judgment of 20 March 1991, Series A, No.201; (1992) 14 E.H.R.R. 1

Dikme v. Turkey,

Judgment of 11 July, Application No. 00020869/92, Hudoc ref. REF00001705,

http://hudoc.echr.coe.int/hudoc/

Ensslin, Baader and Raspe v. FRG,

Judgment of 8 July 1978, Application No. 7586/76, 7587/76, 14 D&R 64

Guzzardi v. Switzerland,

Judgment of 6 November 1980, Series A, No. 39; (1981) 3 E.H.R.R. 333

Handyside v. United Kingdom,

Judgment of 7 December 1976, Series A, No. 24; (1979-80) 1 E.H.R.R. 737

Ireland v. United Kingdom,

Judgment of 18 January 1978, Series A, No. 25; (1978) 2 E.H.R.R. 25

Keenen v. United Kingdom,

Judgment of 3 April 2001, Application No. 27229/95; (2001) 33 E.H.R.R. 913

Klass v. Germany,

Judgment of 22 September 1993, Series A, No.269; (1994) 18 E.H.R.R. 305

Lawless v. United Kingdom (No.3),

Judgment of 1 July 1961, Series A, No.3; 1 E.H.R.R. 15

Mahmut Kaya v. Turkey,

Judgment of 28 March 2000, Application No. 00022535/93, Hudoc ref.

REF00001416, http://hudoc.echr.coe.int/hudoc/

Matyar v. Turkey,

81

Judgment of 21 February 2002, Application No. 00023423/94, Hudoc ref.

REF00003279, http://hudoc.echr.coe.int/hudoc/

Olsson v. Sweden,

Judgment of 24 March 1988, Series A, No.130; (1989) 11 E.H.R.R. 259

Raninen v. Finland,

Judgment of 16 December 1997, Application No. 20972/92; (1998) 26 E.H.R.R. 563

Selmouni v. France,

Judgment of 28 July, Application No. 25803/98; 19 E.H.R.R. 403

Soering v. United Kingdom,

Judgment of 7 July 1989, Series A, No.161; (1989) 11 E.H.R.R. 439

Tomasi v. France,

Judgment of 27 August 1992, Series A, No.241-A; (1993) 15 E.H.R.R. 1

Tyrer v. United Kingdom,

Judgment of 25 April 1978, Series A, No.26; (1978) 2 E.H.R.R. 1

Vilvarajah and others v. United Kingdom,

Judgment of 30 October 1991, Series A, No.215; (1992) 14 E.H.H.R. 248

European Commission of Human Rights

Amekrane v. United Kingdom,

Decision of 11 October 1973, 16 (1973) Y.E.C.H.R. 356

Donnelly and others v. United Kingdom,

Decision of 5 April 1973, Application No. 5577-83/72, 16 (1973) Y.E.C.H.R. 212

East African Asians v. United Kingdom,

82

Decision of 6 March 1978, Application No. 4626/70 13 D&R 5

Kröcher and Möller v. Switzerland,

Decision of 9 July 1981, Application No. 8463/78 26 D&R 24

McFeeley v. United Kingdom,

Decision of 15 May 1980, Application No. 8317/78; (1981) 3 E.H.R.R. 161

The Greek Case, 12 (1969) YBK.E.C.H.R.

Treaties, Declarations and other International Instruments

1948 Universal Declaration of Human Rights

http://www.un.org/Overview/rights.html

1949 Geneva Convention relative to the Treatment of Prisoners of War

http://www.unhchr.ch/html/menu3/b/91.htm

1950 European Convention for the Protection of Human Rights and Fundamental

Freedoms

http://www.echr.coe.int/Convention/webConvenENG.pdf

1966 International Covenant on Civil and Political Rights

http://www.unhchr.ch/html/menu3/b/a_pr.htm

1969 Inter-American Convention on Human Rights

1144 U.N.T.S. 123

1975 UN Declaration on the Protection of All Persons from Being Subjected to

Torture and to other Cruel, Inhuman or Degrading Treatment or Punishment

http://www.unhchr.ch/html/menu3/b/h_comp38.htm

1980 Vienna Convention on the Law of Treaties

8 I.L.M. (1969), 679

83

1981 African Charter on Human and Peoples’ Rights

http://www.hrcr.org/docs/Banjul/afrhr2.html

1984 Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

http://www.unhchr.ch/html/menu3/b/h_cat39.htm

1987 European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment

http://conventions.coe.int/Treaty/en/Treaties/Html/126.htm

1993 Declaration on the Elimination of Violence against Women

http://www.unhchr.ch/huridocda/

Council of Europe

Protocol No. 11 to the Convention for the Protection of Human Rights and

Fundamental Freedoms, restructuring the control machinery established thereby

http://conventions.coe.int/Treaty/EN/cadreprincipal.htm

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

http://conventions.coe.int/Treaty/en/Treaties/Html/187.htm

Chart of signatures and ratifications,

http://conventions.coe.int/treaty/EN/cadreprincipal.htm

84

United Nations

General Assembly Resolutions

General Assembly Resolution 217A(III), Universal Declaration of Human Rights (10

December 1948)

General Assembly Resolution 3452 (XXX), Declaration on the Protection of All

Persons from Being Subjected to Torture and to other Cruel, Inhuman or Degrading

Treatment or Punishment (9 December 1975)

General Assembly Resolution 48/104, Declaration on the Elimination of Violence

against Women (20 December 1993)

Miscellaneous

The Oxford English Dictionary

85