Article 3 ECHR provides that „no one shall be subjected to torture or to
inhuman or degrading treatment or punishment‟έ The text of the Convention
does not contain a definition for any of the three concepts, „torture‟, „inhuman‟ or „degrading‟ (treatment or punishment)έ It was the European Commission,
which in its early practice concerning the definition of the prohibited practices
under Article 3 ECHR, considered the definition of torture as encapsulated in
the 1λ75 General Assembly‟s Declaration on the Protection of All Persons
from being subjected to Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (UN Declaration on the protection against Torture).23
20CέLέ Rozakis, „The European Judge as Comparatist‟, in Sir Bέ Markesinis, Jέ Fedtke (edsέ),
Judicial Resource to Foreign Law. A New Source of Inspiration (UCL Press, London, 2006) 338, 343-347ν Aέ Mowbray, „An Examination of the European Court of Human Rights‟ Approach to Overruling its Previous Case Law‟ (200λ) λ HRLRev 179, 193-194, 197. Contra VέPέ Tzevelekos, „The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECtHRμ An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology?‟ (2010) Michigan JIL 621, 648, 659-660.
21
Dissenting Opinion of Judge Ress, [5]; Dissenting Opinion of Judge Mularoni joined by Judge Stráţnická, pέ 58έ
22Aέ Mowbray, „The Creativity of the European Court of Human Rights‟ (2005) 5 EHRLRev
57, 68. Also V. v UK (GC), [64], [73]-[77]; Stummer v Austria, 7 July 2011, (Grand Chamber), [132].
23
Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Res 3452 (9 December 1975) UN Doc. A/RES/3452 (XXX).
In the Greek case,24 the Commission held that torture is an „inhuman treatment which has a purpose, such as obtaining of information or confessions, or the
infliction of punishment, and it is generally an aggravated form of inhuman
treatment‟έ25
Thus, according to the Commission, torture under Article 3
ECHR contains two definitional elements: an aggravated form of inhuman
treatment and the purposive element. These elements were endorsed and
further developed in the UN Declaration on the protection against Torture and
subsequently in the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT),26 as necessary conditions for
qualifying a treatment as torture.27
The Court in its case-law, however, took a different view from the
Commission‟s position in the Greek case. It seems that it distanced itself from
the CAT definition insofar as the purposive element is concerned.28 The
Plenary Court in the Ireland v. United Kingdom case analysed the meaning of
torture by exclusive reference to the distinction embodied in Article 3 ECHR
between the notions of torture, inhuman and degrading treatment or
24
Greek case, Report of the European Commission, 5 November 1969, 12 Ybk ECHR 1, 186.
25
Greek case, 186 (emphases added).
26
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (concluded on 10 December 1984; entered into force on 26 June 1987) 1465 UNTS 85.
27
M.D. Evans, R. Morgan, Preventing Torture (Clarendon Press, Oxford, 1998) 74; M. Nowak, E. McArthur, The United National Convention against Torture: A Commentary (Oxford University Press, New York, 2008) 557-558; J.H. Burgers, H. Danelius, The United Nations Convention against Torture (Martinus Nijhoff Publishers, The Netherlands, 1988) 115.
28Article 1 (1) CAT states that „for the purposes of this Convention, torture means any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions‟ (emphasis added)έ
For an analysis of the purposive element in the CAT definition Nowak, McArthur, (note 27), 75-77; MέDέ Evans, „Getting to Grips with Torture‟ (2002) 51 ICLQ 365, 375-378.
punishment. According to the Court, the principal differentiating feature of
torture from the other practices under Article 3 ECHR is the intensity of
suffering inflicted upon the individual. 29 In its legal analysis, the Court
referred to the UN Declaration on the protection against Torture in order to
support this assertion. According to Article 1 (2) „torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or
punishment‟έ It selectively omitted, however, to cite the first paragraph of
Article 1 which emphasised that torture must be inflicted for specific
purposes.30 Admittedly, in the assessment of the facts of the case, the Court
found that „the object [of the five techniques] was the extraction of confessions, the naming of others and/or information‟έ31
Yet, it is not clear
whether or not the Court included the purposive element as a necessary
requirement for defining torture under Article 3 ECHR.32 Similarly, in
Selmouni, although explicit reference was made to the CAT definition and to
the fact that the pain inflicted on the applicant served the purpose of extracting
a confession for an offence he was suspected of having committed, it appears
that the Court made this statement in passing.33 The conclusion that the Court
does not necessarily attach a legal significance to its reference to the purpose of
the impugned act is reinforced by the fact that in other instances, when other
forms of ill-treatment were under consideration, it also examines the purpose of
29
Ireland v. United Kingdom, 18 January 1978, (Plenary), [167].
30„[…] for such purposes as obtaining from [the individual] or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person‟έ
31
Irish case, [167].
32
C. Ingelse, The United Nations Committee against Torture – An Assessment (Kluwer Law International, The Hague, 2001) 58-59; Evans, Morgan, (note 27), 77.
33
the prohibited treatment in order to overall assess the circumstances of the
case.34
The first time that the Grand Chamber explicitly endorsed the CAT
approach, as far as the purposive element is concerned, is in 2000, in the
Salman and Ilhan cases.35 It further reaffirmed its position more recently in the
Gäfgen case.36 The Grand Chamber stated that
in addition to the severity of the treatment, there is a purposive
element as recognised in the [CAT], which defines torture in terms of
the intentional inflicting of severe pain or suffering with the aim,
inter alia, of obtaining information, inflicting punishment or
intimidating.37
Here, the purposive element is adopted as a necessary condition and is treated
on equal footing to the element of the severity of the treatment. In the Salman
and Ihlan cases, however, when the Court went on to assess the facts of the
case, it did not discuss whether the purposive requirement was met. Although
in principle, it endorsed the CAT definition of torture under Article 3 ECHR,
there is no clear evidence that it examined in casu that the ill-treatment
suffered by the applicants had one of the enumerated purposes listed in Article
1 CAT.38 On the other hand, in the Gäfgen case the Court addressed the
purpose of the threats for extracting information from the applicant.39 In this
34
For example, V. UK (GC), [71]; Peers v. Greece, 19 April 2001, [74]; Hénaf v. France, 27 November 2003, [47].
35
Salman v. Turkey, 27 June 2000, (Grand Chamber); Ilhan v. Turkey, 27 June 2000, (Grand Chamber).
36
Gäfgen v. Germany, 1 June 2010, (Grand Chamber).
37
Salman (GC), [114]; Ilhan (GC), [85]. Also Gäfgen (GC), [90].
38
Salman (GC), [115]; Ilhan (GC), [87].
39
instance, the Court incorporated the CAT purposive element in its legal
reasoning and assessed it against the particular circumstances.
In sum, the jurisprudence creates confusion. Until the Ihlan and Salman
cases, the Court had never clearly proclaimed that it has incorporated the
purposive CAT element of torture into Article 3 ECHR. Any references to the
purpose of the prohibited practice were in passing and in the context of
assessing the facts of the cases.40 Even though in the Salman, Ihlan and Gäfgen
cases the Court expressly mentions the purposive element, it is not clear
whether, and to what extent, it incorporates the element in its analysis.
A reasonable explanation for the Court‟s unclear practice is that it is, in
fact, unwilling to transpose the CAT definition of torture under the ECHR. In
the context of the CAT the purposive element of the definition of torture has a
prominent role. Despite the fact that the CAT is sometimes understood as a
“human rights treaty”, it is an international treaty which, first and foremost,
purports that States assert their jurisdiction over acts of torture.41 This is
evidenced in the CAT structure (only one provision addresses other forms of
ill-treatment) and in the substantive obligations incumbent on State parties for
exercising universal jurisdiction and establishing an effective criminal law
framework.42 If the ECtHR uncritically incorporates the CAT purposive
40
Evans, Morgan, (note 27), 77; Evans, (note 28), 377; M.W. Janis et al., European Human Rights Law (Oxford University Press, New York 2008) 204. Contra Fέ Ní Aoiláin, „The ECHR and its Prohibition on Torture‟, in Sέ Levinson (edέ), Torture – A Collection (Oxford University Press, New York, 2004) 213, 217. Cfέ Concurring Opinion of Judge Zupančič in Jalloh v. Germany, 11 July 2006, (Grand Chamber) who opined that „in Selmouni v. France we integrated Article 1 of the United Nations Convention against Torture […] into our own case law‟ (emphasis added)έ
41
Evans, (note 28), 376ν For similar thoughts Sέ Sivakumaran, „Torture in International Human Rights Law and International Humanitarian Lawμ The Actor and the Ad Hoc Tribunals‟ (2005) 18 LJIL 541; Contra M. Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford University Press, New York, 2010) 229.
42
element as a sine qua non condition for defining torture under Article 3 ECHR,
it leaves out many instances of ill treatment which cannot be qualified as
tortureέ If, however, the Court decides that „torture is torture whatever its purpose may be‟43
it adopts a broader definition and a more inclusive approach.
The CAT definition weakens the protection under the ECHR.44 Given the
important, different contextual nuances between the ECHR and CAT, it would
be reasonable for the Court to explicitly state that it should not follow the CAT
definition to the letter. Although the practice of using definitions of concepts
contained in other PIL norms serves to avoid conflicting interpretations and
even promotes the idea of „harmonising interpretation‟,45
the different context
of PIL norms should always kept in mind. The CAT definition can be used as
an interpretive aid in order to define torture under the ECHR, but this does not
necessary entail that all the conditions under Article 1 CAT should be
transplanted under the ECHR.46
The Court‟s line of reasoning regarding the purposive element of the
CAT definition should be contrasted to its case-law concerning the question of
who can be the actor of torture. According to Article 1 CAT, the prohibited
practice must be „by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity‟έ The CAT
definition is embedded into the idea of torture as an official act.47 The ECtHR,
43
Separate Opinion of Judge Sir Gerald Fitzmaurice, in the Irish case, 117.
44
Contra Forowicz, (note 41), 229.
45 Bέ Rudolf, „Unity and Diversity in the Settlement of International Disputes‟, in Aέ
Zimmermann, R. Hofmann (eds.), Unity and Diversity in International Law (Duncker and Humbolt, Berlin, 2006) 389, 392.
46
Prosecutor v. Dragoljub Kunarać, Radomir Kovač and Zoran Vuković, Case Nos IT-96-23- T and IT-96-23/1-T, Appeals Chamber, 12 June 2002, [146]-[148] and Prosecutor v. Dragoljub Kunarać, Radomir Kovač and Zoran Vuković, Case Nos IT-96-23-T and IT-96- 23/1-T, Trial Chamber, 22 February 2001, [465]-[497].
47
however, has taken a different position on this: member States are obliged to
take measures to ensure that private individuals are not subjected to torture by
other private individuals.48 Therefore, the CAT‟s definitional element of torture, as being only an official act, has clearly not been incorporated into the
definition of torture under Article 3 ECHR.49 Admittedly, the articulation of
positive obligations under Article 3 ECHR50 and, in general, the language of
State responsibility under human rights treaties may be a legitimate means to
overcome the CAT restriction regarding the actor of torture.51 However, this
does not alter the fact that, according to the ECtHR, the said restriction of the
CAT definition does not fit well in the Convention‟s context and, hence, it is
not incorporated under Article 3 ECHR. In light of this practice, it is deemed
preferable that the Court clarifies its stand also with regards to the purposive
CAT definitional element.