HUMAN RIGHTS LAW

“In prohibiting in absolute terms torture or inhuman or degrading treatment or punishment, Article 3 of the ECHR enshrines one of the fundamental values of democratic societies. This provision admits no exceptions to this fundamental value, irrespective of the circumstances and the victim’s behavior, and no derogation from it is permissible. In its first judgment under this provision, the Court held that in assessing the severity of the punishment or treatment endured by a person, regard should be had to the victim’s personal characteristics, such as their age, sex and state of health.
The case of E and Others v. UK (2002) concerned children who had suffered serious ill treatment (sexual and/or physical abuse) over a considerable period of time at the hands of their mother’s partner, despite being referred to and monitored by social services. The Court held that there had been a violation of Articles 3 and 13 (the right to an effective remedy). This judgment, as well as other subsequent judgments illustrate that the positive obligation to protect children under Article 3 extends beyond imposing criminal sanctions for such ill-treatment and requires States to take reasonable steps to prevent ill treatment of which the authorities had or ought to have knowledge.” (1)
Under the European Convention on Human Rights, the European Court of Human Rights has observed that:
“Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15(2), even in the event of a public emergency threatening the life of the nation.” (2)
The entire nature of the prohibition on inhuman treatment and its applicability in all circumstances is obvious also from international humanitarian law (IHL), which clearly gives to understand that torture, corporal punishment and other measures which lead to physical suffering are prohibited even in times of armed conflict. The specific reference to the prohibition of corporal punishment in conflict is remarcable.
Several consequences flow from the absolute nature of the prohibition which may be worth emphasising in the context of the present case.
First, the absolute nature of the prohibition means that severe, inhuman or degrading treatment or punishment is inadmissible no matter what are the circumstances of the particular case, including specifically the victim’s behaviour. Even the most deviating behaviour on the part of individuals cannot justify, or affect the understanding of what constitutes, such treatment or punishment. “As the European Court notes:
“[...] Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and […] its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question […].”” (3)
Second, there can be no justification for inhuman or degrading punishment on the basis of the protection of other human rights, or for reasons of public order or prevention or repression of crime. Specifically, as held by the European Court in Tyrer in relation to the judicial corporal punishment of a juvenile by birching, the fact that a particular punishment may be believed to a have a deterrent effect is irrelevant. The Court observed
“[…] a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3, whatever their deterrent effect may be.”(1)
Third, according to general principles of international law, condition of the internal law do not affect the characterisation of measures as severe or degrading, and cannot justify the imposition of such measures. The fact that a certain kind of treatment or punishment is definitely permitted or provided for by domestic legislation is extraneous so far as that treatment or punishment violates the prohibition under international law of cruel, inhuman or degrading punishment.
We can say for sure that human rights are not at all dangerous for democracy. “To argue that they constitute such a danger would be grossly to distort the purpose and effect of an instrument which came into being largely to protect democracy against the perceived totalitarian threat of the cold war years and which is founded upon the twin principles of democracy and the rule of law.” (5)
There are in addition Convention rights which are absolute in nature and in respect of which no humiliation is possible under Article 15 of the Convention. Therefore, Article 3 prohibiting torture, and inhuman or degrading treatment enshrines one of the most fundamental values of democratic society. “While the Strasbourg Court is well aware of the immense difficulties faced by States in
protecting their communities from terrorist violence, even in these circumstances the Convention prohibits torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. The prohibition provided for in Article 3 against ill-treatment applies equally in expulsion cases. Where substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to a particular receiving State, the responsibility of the Contracting (holding) State to safeguard him or her against such treatment may be engaged in the event of expulsion.” (1)
In the case of Soering v UK [1989] 11 EHRR 439 where the UK wished to extradite a man to the US the European Court of Human Rights found that it would be contrary to the spirit and intent of the Convention to knowingly give up a person to another state where “substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the requesting country”.(6)

Sources:
1. Tyrer v. United Kingdom (Appl. No. 5856/72), Judgment of 25 February 1978, Series A, No. 26, para. 31. See also the Human Rights Committee, in its Concluding observations on Israel, UN Doc. CCPR/C/79/Add 93 (1998), para. 19, condemning guidelines authorising ‘moderate physical pressure’ to obtain information considered crucial to the protection of life.
2. http://hei.unige.ch/~clapham/hrdoc/docs/echrsoeringcase.txt
3. www.icj.dk/documents/Speech2006Lawandterrorism.doc
4. http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040617/ullah-1.htm
5. http://www.workers-party.org/wpstory.asp?sn=770
6. http://www.lawindexpro.co.uk/demo/cs051212.php