Article 3 of the European Convention on Human Rights

Article 3 is an absolute right. The right is unqualified and cannot be balanced against the rights and needs of other people or the greater public interest.

Article 15(2) of the European Convention on Human Rights makes no provision for derogation from Article 3, even in times of war or other public emergency threatening the life of the nation.

There is a positive obligation on states to take action to ensure that individuals are protected from torture, inhuman or degrading treatment or punishment.

In the case of A v UK [1998][1] the law in the United Kingdom on lawful chastisement of children was held to breach Article 3. The European Court of Human Rights (ECtHR) believed that the current law provided inadequate protection to children suffering from different types of degrading punishment. As a result, the UK amended the law relating to chastisement with the Children Act 2004.

There is also a duty to carry out an investigation (Sevtap Vezenedaroglu v Turkey [2000][2]).

Article 3 is a living instrument. In Selmouni v France [1999][3] the EctHR articulated this to mean that it [Article 3] "must be interpreted in the light of present-day conditions".[4]

As a consequence of this, the standards of torture, inhuman and degrading treatment or punishment are open to change over time, meaning that certain acts that were not previously considered as torture may now be considered so.

Torture is the process of causing deliberate and serious physical or mental harm to another individual, usually exercised with the objective of gaining information or punishing.

In Aksoy v Turkey (1997) the Court found Turkey guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back.[5] The ECtHR decided that the techniques used were of "such a serious and cruel nature" that it could only have been described as torture.[6]

In the case of Ireland v United Kingdom [1978],[7] the ECtHR was of the view that torture incorporates inhuman and degrading treatment but differs in the intensity and suffering inflicted.

Inhuman and degrading treatment or punishment can include serious physical violence or phycological abuse. The humiliation of an individual that arouses fear or demonstrates a lack of respect for their human dignity could also be considered degrading for the purposes of Article 3.

This provision usually applies to cases of severe police violence and poor conditions in detention.

The failure to provide adequate healthcare can amount to a violation of Article 3.

In McGlinchey v United Kingdom [2003][11] Judith McGlinchey suffered from heroin withdrawal whilst in prison. It was alleged that the medical staff failed to properly monitor Ms McGlinchey, withheld medication and left her to lie in her vomit. The failure of the prison staff to provide proper medical treatment to an inmate was held to be a breach of Article 3. Similarly, the failure to transfer a prisoner to hospital for treatment and inadequate conditions of prison cells can also amount to a breach of Article 3, as established in Ciorap v Moldova [2010].[12]

In D v UK [1997][13] an HIV positive man, who was a Saint Kitts national, had finished serving time in a UK prison and was awaiting deportation. However, he applied to remain in the UK on the grounds that his medical treatment would not be available upon his return. The ECtHR held that, given this exceptional circumstance, his deportation would violate Article 3. The lack of medical facilities in his home country would constitute inhuman and degrading treatment.

However, the case of Hristozov v Bulgaria [2012][14] illustrates that the prevention of access to experimental cancer drugs would not amount to a violation of Article 3.

A state can breach Article 3 by extraditing or deporting an individual to a country where upon their return might be subject to torture, inhuman or degrading treatment or punishment.

In Chahal v United Kingdom [1996][15] the United Kingdom had initiated deportation proceedings, for national security reasons, on an Indian citizen. Mr Chahal had associations with the Sikh separatist movement and there was substantial evidence that upon his return to India, he would be subjected to treatment contrary to Article 3. On this basis, the ECtHR held that, as the assurances of Mr Chahal's safety from the Indian government were not convincing, his deportation would violate Article 3.

In Soering v United Kingdom [1989][16] the UK government attempted to extradite a German national, who was wanted by the state of Virginia for the murder of his partner's parents, to the USA. It was held that upon his return, Mr Soering would have been subject to inhuman and degrading treatment or punishment in the form of the 'death row phenomenon', whereby a person sentenced to capital punishment suffers years of mental torment awaiting their execution. The UK was accordingly found in breach of Article 3.

• All parties to the ECHR are also party to the United Nations Convention against Torture and other cruel or inhuman, degrading treatment or punishment (1987).
• All members of the Council of Europe are also party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987).
• Parties may have domestic laws criminalising torture, distinct from general crimes against the person. For example in the UK, s. 134 of the Criminal Justice Act 1988 makes it a criminal offence for a public officer or professional acting in an official capacity to commit torture or inflict severe pain or suffering on another.

• Climate change litigation
• Cruel and unusual punishment
• United Nations Convention Against Torture
• European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

• kar.kent.ac.uk University of Kent, Kent Academic Repository, "Extending the Reach of Human Rights to Encompass Victims of Rape: M.C. v. Bulgaria"

• Mavronicola, Natasa (2021). Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs. Bloomsbury Publishing. ISBN 978-1-5099-0306-1.

• A guide to the implementation of Article 3 of the European Convention on Human Rights (PDF)
• Text of ruling
• Permanent link to case (using WebCite)