Report No. 273

(i) Defining Cruel Treatment and Torture

2.36 The European Court has emphasised that an applicant must meet certain standard to establish a claim under Article 3 of the Convention: "Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on overall circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim.

In considering whether a treatment is 'degrading' within the meaning of Art. 3, the Court will have regard to its object whether it is to humiliate and debase the person concerned and as far as the consequences are concerned, whether it adversely affected his or her personality in a manner incompatible with Article 3. It may be noted that the absence of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.41

2.37 In Ireland v. United Kingdom42 , the European Court of Human Rights laid down factors to be taken into account in determining the severity of treatment like the age, sex, and state of health of the victim. The Court also examined certain methods of interrogation, none of which were found to cause acute physical injury, finding that forcing detainees to remain in stress positions for a long period of time, subjecting them to noise and depriving them of food, water and sleep amounted to illtreatment, but refused to hold that the treatment amounted to torture. The case stresses the applicability of the prohibition, even in cases involving terrorism and public danger.

The reluctance demonstrated in this case, to find that ill-treatment amounts to torture based on the level of severity, has been eroded by subsequent case law that can be read to lower the threshold under the European Convention for finding that torture has occurred43. 2.38 In judging whether an applicant has suffered torture, rather than less severe forms of ill-treatment, the degree of ill-treatment used will help the court determine the intent with which such a treatment was meted out. Subjecting detainees to unnecessary physical force diminishes human dignity and is a violation of the European Convention of Human Rights44.