The ECtHR’s understanding of torture:

an essential insight
A brief comparative account of the evolution in the Court’s approach
towards its member states’ legal systems, with the aim of preventing and
punishing inhuman and degrading treatments in Europe

Riccardo VECELLIO SEGATE

MSc Candidate in European and Global Governance, University of Bristol (UK)
Editor of the Bristol Law Review
Author for FiloDiritto

April 2017

1. Undefined definitions and lasting paradoxes:

the international legal sense of torture today
«Torture is […] a crime committed against a body. It is also a crime committed against the imagination.
Or rather, it presupposes, it requires, it craves the abrogation of our capacity to imagine others’ suffering,
dehumanizing them so much that their pain is not our pain». 1 This is why «torture is unequivocally and
absolutely forbidden by the law of civilized nations (including the United States)». 2 Unfortunately, what
happens in reality – and not limitedly to the geographical context where it seems most obvious – urgently calls
for a powerful counter-narrative. Taking as a benchmark the works by Shue and Sussman, KAMM3 introduces
a must debate on whether there is a possibility to distinguish between “fair” and “unfair” torture, by employing
the defenselessness of the individuals involved, as well as a sort of “prioritization” of people to be saved in
terms of their number, “degree of innocence”/“account of wrongness” or common-sense-based presumption
of being wrongdoers (i.e. terrorists, in most cases). It makes undisputable how the issue does not involve
questions of morality, philosophy or similar disciplines alone, embroiling instead proper (practical) justice
paradoxes even to a greater extent (what is referred to in philosophy-of-law academic literature as “applied
ethics” or “normative legal theory”)4.

1 DORFAM, Vladimiro Ariel (2004) ‘Foreword: The Tyranny of Terror. Is Torture Inevitable in Our Century and Beyond?’, in
LEVINSON, Sanford Victor (ed) Torture: A Collection, New York: Oxford University Press, p. 8
2 LEVINSON, Sanford Victor (2004) ‘Contemplating Torture: An Introduction’, in LEVINSON, Sanford Victor (ed) Torture: A

Collection, New York: Oxford University Press, p. 23

3 KAMM, Frances Myrna (2011) Ethics for Enemies: Terror, Torture, and War, Oxford: Oxford University Press, pp. 4-15
4 http://etheses.lse.ac.uk/999/1/Searl_A_Normative_Theory_of_International_Law_Based_on_New_Natural_Law_Theory.pdf

; http://www98.griffith.edu.au/dspace/bitstream/handle/10072/47152/66659_1.pdf?sequence=1 ;
1

Electronic copy available at: https://ssrn.com/abstract=2979492

 2. From the United Nations to the Council of Europe, and back
As a follow-up to the 1984 UNCAT (United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment), there has been yet a general understanding that a State is
“acquiescent” even when it fails in adopting preventive measures, investigating, prosecuting, or in taking
effective counter-actions, even where the criminal actions occur within the private dimension (families,
companies, privately-owned prisons, and so forth). Resultantly, «a failure by the State to prevent and protect
against situations such as rape, domestic violence, female genital mutilation, and trafficking will incur State
responsibility».5 The fourth article of the UNCAT is impressively (…intentionally?) poorly-written, and by
being so, disputable; however, what matters for the scope of this work is that the ECtHR has followed the
above-mentioned “mainstream” approach6, stating (in Storck v. Germany) that the State must provide
«effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of
which the authorities have or ought to have knowledge».7 In more general terms, «the European Convention
on Human Rights places greater obligations on Contracting Parties than the simple State responsibility test
under general international law».8 As a supplement to the UNCAT, the 2002 OPCAT (Optional Protocol to
the UN Convention Against Torture) specified some uncertain definitions international courts struggled with:
it is the case of the concept of “jurisdiction”, that the ECtHR in previous cases (e.g. Banković et al. v. Belgium
at al.9 and Ilascu et al v. Moldova and Russia10) applied extensively.

The alter ego of the UNCAT at the European level are the horizontal actions implemented by the
Council of Europe, whose CPT (Committee for the Prevention of Torture) has marked the paradigm on which
to model the new UN SPT (Subcommittee on Prevention of Torture). The CPT is a visit-based, «non-judicial
body, aimed at prevention, that works collaboratively with States to strengthen the protection of persons
deprived of their liberty».11 However, it has been noticed that the CPT objective and modus operandi were not
taken seriously enough by the European countries «and only became relevant once the European Court of
Human Rights started to use CPT findings in its decisions». This fear now passed to the SPT: the concern is
about what court will help spreading its importance by incorporating its decisions within judgements and
rulings.12 A frame which has seen a tangible impact of the CPT reporting effort on the national policies13 is the
Napier v. The Scottish Ministers case14 (brought before a Scotland’s court), where «[a]s a result of the
unsanitary conditions in the prison [the applicant] suffered from severe eczema and sued for damages in the
Scottish courts, based on the infringement of his right not to be subject to inhuman or degrading treatment
under the ECHR», and when «[i]n its judgement the court referred to the report of the CPT and drew a negative
conclusion from the failure of the Scottish Executive to implement the changes it had admitted were

http://www2.econ.iastate.edu/classes/econ362/hallam/NewspaperArticles/Torture.pdf ;
http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1004&context=llm
5 MURRAY, Rachel, STEINERTE, Elina, EVANS, Malcolm David, and HALLO DE WOLF, Antenor (2011) The Optional Protocol to the UN

Convention Against Torture, Oxford: Oxford University Press [p. 71]

6 «[R]ecent decisions suggest a significant move toward a “horizontal” application of the torture prohibition, which means that

states are held responsible for a failure to curb or prevent the actions of private parties that lead to the experience of torture
or inhuman or degrading treatment» [NÍ AOLÁIN, Fionnuala (2004) ‘The European Convention on Human Rights and Its
Prohibition on Torture’, in LEVINSON, Sanford Victor (ed) Torture: A Collection, New York: Oxford University Press, p. 213]
7 in this respect, cf. A v. United Kingdom: http://www.cirp.org/library/legal/A_v_UK1998/
8 CLAPHAM, Andrew (2001) ‘Revisiting Human Rights in the Private Sphere: Using the European Convention on Human Rights to

Protect the Right of Access to the Civil Courts’, in SCOTT, Craig M. (ed) Torture as Tort: Comparative Perspectives on the
Development of Transnational Human Rights Litigation, Oxford: Hart Publishing, p. 513
9 http://www.bu.edu/law/journals-archive/international/volume23n1/documents/55-136.pdf [pp. 75-104]
10 https://www.legal-tools.org/doc/3ee29c/pdf/ [p. 513]
11 FERSTMAN, Carla (2010) Reparation as Prevention: Considering the law and practice of orders for cessation and guarantees of

non-reparation in torture cases, in ‘Preventing Torture in the 21st Century: Monitoring in Europe Two Decades On, Monitoring
Globally Two Years On’ – Part II, Essex Human Rights Review, 6(2) Special Issue, p. 41
12 see supra note 7 [pp. 159-161]
13 http://www.gov.scot/Publications/2004/11/20181/45880 ; http://eprints.lse.ac.uk/36540/1/Disspaper57.pdf
14 https://www.scotcourts.gov.uk/search-judgments/judgment?id=b08dfca6-8980-69d2-b500-ff0000d74aa7 ;

http://news.bbc.co.uk/2/hi/uk_news/scotland/4253661.stm
2

Electronic copy available at: https://ssrn.com/abstract=2979492

necessary».15 In any instance, the CPT is an advisory body rather than a judicial one; thereby, it is not directly
asked to define whether a breach of Art. 3 ECHR is occurring in situations under its scrutiny. This, at least, on
paper, while the reality is something else, the majority of readers aiming to know «whether the committee has
found there to be torture or inhuman and degrading treatment».16 As a result, it might be argued that the
Committee enjoys an informal but effective standard setting power17; not any matter, however, is efficiently
investigated by the Committee: in those cases – as for the immigration detainees (most of them asylum seekers)
– the preventive mechanisms guaranteed by the ECHR’s “judicial mandate”18 work better.19 In general terms,
to conclude, it is possible to affirm that «CPT reports are [now] highly regarded, […] for the most part seen as
factually accurate and professionally sound»20 even though a typical government response to allegations of
torture is still one of denial, so that «the effectiveness of the CPT [in reducing] the incidence of torture […]
cannot easily be appraised».21

3. The (un?)friendly relationship between the Court and the governments:

an analysis through the paradigmatic case of the United Kingdom
The so-called “judicial activism”, which increasingly gained its place as one of the most evident
features of other regional or international courts (one needs only cite the Court of Justice of the European
Union22, or the International Criminal Court), has recently and definitely been recognized in some acts,
attitudes and choices of the Council of Europe’s European Court of Human Rights 23. Several worries have
been expressed in this sense not only by parties or influential single politicians, but also members of the main
juridical bodies and the academia. For instance, Lady Hale, powerful Deputy President of the Supreme Court
of the United Kingdom as well as former Chancellor at the University of Bristol, was wondering «whether
there are any limits to how far the [Convention24] can be developed»25. This seems to be a fair, unbiased and
honest concern, since it comes from a highly-respected practitioner who has always made her wishes known
with regards to an enhanced UK integration within the EU and the European legal framework more broadly.
Nonetheless, what is happening is a bright sign of the overall involution in the British people’s a priori support
for an increasingly-valued human rights’ enforcement, arguably for the first time in recent history. If the UK

15 VAN ZYL SMIT, Dirk (2007) ‘Prisoners’ rights’, in JEWKES, Yvonne (ed) Handbook on Prisons, Cullompton: Willan Publishing, p.
579; or, which is (…unfairly?) word-for-word the same: VAN ZYL SMIT, Dirk (2014) ‘Prison Law’, in DUBBER, Markus Dirk,
and HÖRNLE, Tatjana (eds) Oxford Handbook of Criminal Law, Oxford: Oxford University Press, p. 1001
16 MORGAN, Rod, and EVANS, Malcolm David (2001) Combating torture in Europe: the work and standards of the European

Committee for the Prevention of Torture, Strasbourg: Council of Europe Publishing, chapter 3 [p. 59]
17 Ibid., chapter 4 overall
18 on the ECHR’s margin of appreciation theory, see: http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-

17(2000).pdf ; https://www.ucl.ac.uk/public-policy/for-policy-professionals/research-
insights/European_human_rights_law.pdf ; http://scholarship.law.nd.edu/ndlr/vol53/iss1/6/ ; http://www.pict-
pcti.org/publications/PICT_articles/JILP/Benvenisti.pdf ; http://www.ejil.org/pdfs/16/5/330.pdf
19 see supra note 16 [p. 87]
20 cf. Peers v. Greece: http://hudoc.echr.coe.int/eng#{"itemid":["001-59413"]} ; http://echr.ketse.com/doc/28524.95-en-

20010419/ ; https://www.legal-tools.org/doc/3415ee/pdf/ ; for further considerations, see: [MORGAN, Rod, and EVANS,
Malcolm David (2001) ‘Torture: Prevention versus Punishment?’, in SCOTT, Craig M. (ed) Torture as Tort: Comparative
Perspectives on the Development of Transnational Human Rights Litigation, Oxford: Hart Publishing, pp. 144-146]
21 see supra note 16, chapter 8 [p. 156]
22 It may be worth recalling here not just the CJEU (formerly ECJ) and ECtHR belongings to distinct supranational organizations

(European Union, formerly European Community, and Council of Europe respectively), but their importantly different
geopolitical projection: while the first obviously covers the 28 (or 27 after “Brexit”…) EU member states, the second exercises
its jurisdiction over 47 countries including those like Azerbaijan, Russia, Turkey, or Armenia as well, whose “legal sensitivity”,
past human-rights-related jurisprudence and juridical traditions more broadly are extremely distant from the continental
ones, by receiving also influences from “miscellaneous” East Asian and Islamic orientations.
23 hereinafter “ECtHR” (to be distinguished from the ECHR, initials for both the European Convention on Human Rights and,

less unanimously, the European Commission on Human Rights) or – simply – “the Court”
24 http://www.echr.coe.int/Documents/Convention_ENG.pdf
25 https://www.theguardian.com/law/2014/oct/03/landmarks-human-rights-echr-judgments-transformed-british-law ; see

also, and more generally: ANDENAS, Mads, and BJORGE, Eirik (2015) ‘National implementation of ECHR rights’, in FØLLESDAL,
Andreas, PETERS, Birgit, and ULFSTEIN, Geir (eds) Constituting Europe. The European Court of Human Rights in a National,
European and Global Context (first paperback edition), Cambridge: Cambridge University Press, p. 204
3

Electronic copy available at: https://ssrn.com/abstract=2979492

starts procedures to evade the Court’s jurisdiction26, this will push the United Kingdom outside of its continent
much more than Brexit, bringing the country closer to the “Russian bear”. The aforementioned detachment
would be processed timely, since as a member of the EU, the UK would have been “forced” to join the
Convention in any case, the latter’s laws expected to become soon incorporated into the Union’s acquis27
(despite the UK formerly-negotiated “opt-out” solution). This is shameful, once one realizes how the UK has
contributed immensely to the building of universal approaches against torture (enough is to mention the so-
known “General Pinochet” case in 1998);28 on the opposite, «there have also been instances at which UK courts
have chosen approaches to the Convention which have been less focused on universal solutions». 29

With the application 5310/7130 (Ireland v. UK), the plaintiff asked the Commission to recognize the
use of torture in the interrogation techniques against the Irish terrorists31, and the two elements of the
combination and the length of those techniques32 – together with their premeditation and their practical effects
on the prisoners’ health – led the ECtHR to condemn the British forces’ abuses. However, in spite of the
previous Commission’s reasoning33, the Court decided not to soil or sully the United Kingdom’s reputation34
to the extent of being commissioner of crimes of torture, limiting its response to the condemnation of several

26 https://www.theguardian.com/commentisfree/2017/jan/03/european-convention-human-rights-threat
27 https://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Accession_documents/Oxford_18_January_2013_versionWeb.pdf ;
KOSTA, Vasiliki, SKOUTARIS, Nikos, and TZEVELEKOS, Vassilis (2014) The EU Accession to the ECHR, London: Bloomsbury Publishing
28 http://www.independent.co.uk/news/law-lords-allow-appeal-for-pinochet-1192055.html ;

http://www.nytimes.com/1998/12/18/world/pinochet-wins-a-round-as-the-law-lords-void-a-ruling.html ; the “Pinochet

imbroglio” also works as a useful standpoint to examine «whether international human rights law not only demands that the
State use its police and criminal justice system to protect individuals from private violence in the private sphere, but also
whether this law obliges the State to grant victims the right to sue in tort where the State apparatus has failed in its duty to
protect the victims or remedy the violation of their rights» [CLAPHAM, Andrew (2001) ‘Revisiting Human Rights in the Private
Sphere: Using the European Convention on Human Rights to Protect the Right of Access to the Civil Courts’, in SCOTT, Craig M.
(ed) Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, Oxford: Hart
Publishing, p. 514]
29 ANDENAS, Mads, and BJORGE, Eirik (2015) ‘National implementation of ECHR rights’, in FØLLESDAL, Andreas, PETERS, Birgit, and

ULFSTEIN, Geir (eds) Constituting Europe. The European Court of Human Rights in a National, European and Global Context (first
paperback edition), Cambridge: Cambridge University Press, p. 206; as for the jurisdiction (from Latin, literally the judges’
capacity of ius dicere), for instance, the Sulaiman al-Adsani v. UK case [ http://www.uniset.ca/other/cs4/aladsani_kuwait.html ]
is probably the most evident: «torture allegations against the state of Kuwait were dismissed on the basis of Kuwait’s state
immunity from the jurisdiction of domestic courts for conduct occurring in Kuwait» [CLAPHAM, Andrew (2001) Appendix 4 –
‘Revisiting Human Rights in the Private Sphere, Postscript: Developments related to Pinochet as of January 2001’, in SCOTT,
Craig M. (ed) Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, Oxford:
Hart Publishing, p. 721]; contrariwise, the ECtHR later declared Mr al-Adsani’s application admissible.
[ http://law.unimelb.edu.au/__data/assets/pdf_file/0010/1680364/Moll.pdf ].
30 http://hudoc.echr.coe.int/eng#{"itemid":["001-73559"]}
31 https://www.unodc.org/tldb/pdf/CASE_OF_IRELAND_v._THE_UNITED_KINGDOM.doc
32 http://www.hrcr.org/safrica/dignity/Ireland.html
33 GEORGE, Alexander L. (1991) (ed.) Western State Terrorism, Cambridge: Polity Press, pp. 85-88
34 [SKOLNICK, Jerome Herbert (2004) ‘American Interrogation: From Torture to Trickery’, in LEVINSON, Sanford Victor (ed)

Torture: A Collection, New York: Oxford University Press, p. 110]

4
inhuman and degrading treatments35 (including food/sleep/drink deprivation – frequently used by the CIA36 –
, hooding and wall-standing37)38. Building on this case, CASSESE39 reasserts that, in the reasoning of the
European Commission of Human Rights (whose main task was to take before the Court the deserving cases
on behalf of the individual applicants, before the approval of the Prot. 11 of the ECHR40), no allegations of
imminent terrorist threat could ever justify41 the pestering of a human being (even in the paradoxical case
where, put simplistically, “the death or maiming of 1 can save the life of 100”). Three behind-motivations for
this are to be applied: firstly, the overall emergency can be a miscarriage of investigation, where mistakenly-
collected information led the intelligence/military services to hasty reactions; secondly, the person in question
can be the wrongly-accused one, candidly and fully unaware about the purportedly-ongoing criminal
machinations; thirdly, the labelling of a case as an “exception” would presumably involve other
exceptionalities, thereby reducing the overarching, cumulative system of protection of individuals’ human
rights and personal freedoms.

In another – albeit absolutely different, and much more recent – infamous case (8139/09)42 involving
(and causing diplomatic frictions with) the UK, the Court ruled that the deportation of a potential threat to the
national security to their home country – where tortures against third persons have been proven to regularly
happen – constitutes a violation of Art. 6 of the Convention.

35 «Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment,
although their object was the extraction of confessions, the naming of others and/or information and although they were
used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture» [JANIS,
Mark Weston, KAY, Richard Steven, and BRADLEY, Anthony Wilfred (2008) European Human Rights Law: Text and Materials,
New York: Oxford University Press, p. 173]; this majority-voting-judgement gave voice to a number of so-defined “separate
opinions” within the Court: in particular, it is here the case to recall a couple of arguments from the Judge Fitzmaurice and
Judge Matscher’s opinions. The first observed: «Although I agree with the Court’s pronouncements, and they are correct as
far as they go, and propound the essential test that has to be applied, they nevertheless fail to bring out the real point latent
in them, which is that not only must a certain intensity of suffering be caused before the process can be called torture, but
also that torture involves a wholly different order of suffering from what falls short of it. It amounts not to a mere difference
of degree but to a difference of kind» [Ibid., p. 176, original emphasis]. The second endorsed the first by introducing an
interesting historical comparison: «There is no doubt that one can speak of torture within the meaning of Article 3 only when
the treatment inflicted on a person is such as to cause him physical or psychological suffering of a certain severity. However, I
consider the element of intensity as complementary to the systematic element: the more sophisticated and refined the
method, the less acute will be the pain (in the first place physical pain) which it has to cause to achieve its purpose. The
modern methods of torture which in their outward aspects differ markedly from the primitive, brutal methods employed in
former times are well known. In this sense torture is in no way a higher degree of inhuman treatment. On the contrary, one
can envisage forms of brutality which cause much more acute bodily suffering but are not necessarily on that account
comprised within the notion of torture» [Ibid., p. 177].
36 http://www.nytimes.com/interactive/2009/04/17/us/politics/20090417-interrogation-techniques.html?_r=0
37 https://dirittointernazionaleincivica.wordpress.com/2016/06/06/irlanda-vs-regno-unito/ ; TORRE, Alessandro (2015)

Common Law: protagonisti e idee nella storia di un sistema giuridico, Santarcangelo di Romagna: Maggioli Editore, p. 289
38 on the distinction between “torture” and “degrading treatments” see also (in Italian):

http://www.altrodiritto.unifi.it/ricerche/law-ways/vitaglia.htm
39 CASSESE, Antonio (2005) I diritti umani oggi [English translation: ‘Human Rights today’], Bari: Laterza, sub-chapter 10.4
40 http://hrlibrary.umn.edu/euro/z30prot11.html ; http://www.gddc.pt/actividade-editorial/pdfs-publicacoes/7980-a.pdf ;

https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007cda9 ; to deepen
the understanding of the political impact of the Protocol, see: [ZYSSET, Alain (2016) The ECHR and Human Rights Theory:
Reconciling the Moral and the Political Conceptions, Abingdon-on-Thames: Routledge]
41 The ECtHR posture is that there is no justification for, and any exception to, any treatment in breach of Art. 3 ECHR [GINBAR,

Yuval (2010) Why not torture terrorists? Moral, Practical, and Legal Aspects of the “Ticking Bomb” Justification for Torture,
Oxford: Oxford University Press, p. 272 overall + p. 284 footnote no. 65 + p. 353 overall]; as a natural follow-up, there is no
space for amnesties either, although the Court recognized that – in abstract words – the need to prosecute crimes has to be
weighted with the structural reconciliation of the social fabric of the countries affected by its rulings. On the latter, see e.g.:
[SWEENEY, James A. (2013) The European Court of Human Rights in the Post-Cold War Era: Universality in Transition, Abingdon-
on-Thames: Routledge, pp. 47-48].
42 http://hudoc.echr.coe.int/eng#{"itemid":["001-108629"]} ; http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-

3808707-4365533&filename=003-3808707-4365533.pdf
5
 It is a claim that finds confirmation in the “no more, but certainly no less” approach, which rapidly
became «the orthodox view of the UK courts»43 after its explication by Lord Bingham of Cornhill44, who
applied his approach in the Ullah case45; in that case he noticed how the ECtHR had not manifestly ruled that
an individual has the right to resist expulsion in reliance on the freedom of religion. Lord Bingham46 clarified
further how on the contrary the same individual is legitimate to resist expulsion «on the ground of a well-
founded fear of being persecuted […] in reliance on article 3 (on torture and degrading and inhuman
treatment)»47; that was another evidence of the centrality of torture as one of the worst threats to human dignity.
What was controversial – or at least less clear – is the ECtHR-UK relation48 as depicted by Lord Slynn of
Hadley: «In the absence of some special circumstances it seems to me that the court should follow any clear
and constant jurisprudence of the European Court of Human Rights»49; no need to say that the unclear word is
constant: consistent with the Court’s jurisprudential evolution, or consistent with the Court’s “mainstream”
view (usually retraceable in the first rulings)? It is in fact widely accepted that the ECtHR approach towards
certain matters might change with time50, mirroring the relative changings and implicit requests coming from
the civil society, even if the inconsistency of both its case-law and its case-admissibility procedures could
reach worrying levels in view of the expected increase in the number of chambers.51

An inconsistency – but “in a good way” – has been detected in the quantification of remedies. LEACH
made a point on the supposed imbalance between severe human rights violations and their compensation 52,
arguing how from his viewpoint a real repairing, restorative justice would benefit from an overall re-think of
the principles of reintegration and rehabilitation when it comes to proportionating them to extremely systematic
and violent large-scale breaches of the Convention53. He thereby quoted the cases of Turkey and Russia – in

43 ANDENAS & BJORGE (see supra note 25) p. 250

44 for his speech on Rule of Law, see: https://www.youtube.com/watch?v=XlMCCGD2TeM
45 http://www.bailii.org/uk/cases/UKHL/2004/26.html
46 https://www.theguardian.com/law/2010/sep/11/lord-bingham-of-cornhill-obituary
47 ANDENAS & BJORGE (see supra note 25) p. 253
48 https://www.equalityhumanrights.com/sites/default/files/83._european_court_of_human_rights.pdf
49 https://www.ucl.ac.uk/laws/judicial-institute/files/British_Interpretation_of_Convention_Rights_-_Irvine.pdf
50 http://www.esil-sedi.eu/sites/default/files/Sicilianos_speech_Translation.pdf
51 CAMERON, Iain (2015) ‘The Court and the Member States: procedural aspects’, in FØLLESDAL, Andreas, PETERS, Birgit, and

ULFSTEIN, Geir (eds) Constituting Europe. The European Court of Human Rights in a National, European and Global Context (first
paperback edition), Cambridge: Cambridge University Press, pp. 51-61
52 LEACH, Philip (2015) ‘The European Court’s developing approach to remedies’, in FØLLESDAL, Andreas, PETERS, Birgit, and

ULFSTEIN, Geir (eds) Constituting Europe. The European Court of Human Rights in a National, European and Global Context (first
paperback edition), Cambridge: Cambridge University Press, pp. 171-172
53 it is interesting to observe how the Inter-American Court on Human Rights, comparatively, can be regarded as slightly more

progressive; see, among others:

- http://www.echr.coe.int/documents/seminar_background_paper_2014_eng.pdf
- http://www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf
- http://harvardhrj.com/wp-content/uploads/2010/10/51-74.pdf
- http://www.corteidh.or.cr/tablas/r24577.pdf
- http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1465&context=djcil
- https://www.icl-journal.com/download/f1527ce403500a9ec58b8269a9a91471/ICL_Thesis_Vol_7_3_13.pdf
- http://www.harvardilj.org/wp-content/uploads/Indigenous-Rights-before-the-Inter-American-Court-of-Human-
Rights-Valerio-Mazzzuoli-Dilton-Ribeiro_Final.pdf
- http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1387&context=umialr
- http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1019&context=auilr
- https://www.city.ac.uk/__data/assets/pdf_file/0015/106431/Inter-American.pdf
- http://dspace.library.uu.nl/bitstream/handle/1874/32809/Restitution.pdf?sequence=1
- http://www.corteidh.or.cr/tablas/r33151.pdf
- COLANDREA, Valerio (2007) ‘On the Power of the European Court of Human Rights to Order Specific Non-monetary
Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases’, Human Rights Law Review, 7(2):
396-411
- PASQUALUCCI, Jo M. (2013) ‘Court-ordered reparations and state compliance’, in MOECKLI, Daniel, SHAH, Sangeeta,
SIVAKUMARAN, Sandesh, and HARRIS, David (eds) International Human Rights Law, Oxford: Oxford University Press, p.
408 ff.
- ICHIM, Octavian (2014) Just Satisfaction under the European Convention on Human Rights, Cambridge: Cambridge
University Press
6
Kurdistan and Chechnya respectively – whose forces destroyed homes, tortured innocents and operated several
extra-judicial executions. Nonetheless, the past disproportionalities are being balanced out. Mutatis mutandis,
as one might foresee, it does not apply when the tortured recurrent is in turn a serial torturer or homicide: in
Gäfgen v. Germany54, the prisoner’s monetary compensation was assigned by a local German court, not by the
ECtHR.55

4. Continental and Eastern Europe’s landmark case-law excerpts

From the UK and beyond, the ECtHR’s case-law related to torture is impressively, but not
astonishingly, enormous. Moreover, it shows no signs of abating. Indeed, this is not surprising since the Court’s
“priority policy”56 «means that, instead of picking and choosing individual cases, whole classes of complaint
[are] not addressed. In other words, […] some human rights violations are less important than others».57 The
next section will therefore provide an account of some of the cases which literally made our contemporary
European Law history.

The case no. 25803/94 (Selmouni v. France, 1999)58, concerning a violation of the Arts. 3 and 6(1) of
the Convention, is of particular interest in several respects. First of all, an EU country has been sued by another
EU country, with predictable political implications. Secondly, the Court has admitted that «certain acts which
were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified
differently in future», given the «increasingly high standard being required in the area of the protection of
human rights and fundamental liberties»59; this is not surprising, since the interpretation of the Convention as
a “living instrument”60 is shared by a significant number of Presidents of the Court61, and permeates numerous
decisions.62 In third place, the Court made its decision considering the violent acts «as a whole», scrutinizing

- GROVER, Sonja C. (2010) The European Court of Human Rights as a Pathway to Impunity for International Crimes,
Berlin: Springer
- BATES, Ed (2010) The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a
Permanent Court of Human Rights, Oxford: Oxford University Press
- RAINEY, Bernadette, WICKS, Elizabeth, and OVEY, Clare (2014) Jacobs, White and Ovey: The European Convention on
Human Right, Oxford: Oxford University Press
- SHELTON, Dinah L. (2015) Remedies in International Human Rights Law, New York: Oxford University Press
- https://www.wcl.american.edu/hrbrief/20/2taiana.pdf
- http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1262&context=aulr
- http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/410206/EXPO-DROI_ET(2010)410206_EN.pdf
54 http://bit.ly/2i2nsNe
55 http://www.dw.com/en/child-murderer-wins-damages-over-police-torture-threat/a-15295473
56 http://www.echr.coe.int/Documents/Priority_policy_ENG.pdf ; https://www.opensocietyfoundations.org/voices/european-

court-human-rights-efficiency-what-cost ; http://hrbrief.org/2011/03/european-court-institutes-priority-policy-for-hearing-
claims/ ; http://www.echr.coe.int/Documents/Stats_understanding_ENG.pdf
57 CAMERON, Ian (2015) ‘The Court and the member states: procedural aspects’, in FØLLESDAL, Andreas, PETERS, Birgit, and

ULFSTEIN, Geir (eds) Constituting Europe. The European Court of Human Rights in a National, European and Global Context (first
paperback edition), Cambridge: Cambridge University Press, p. 57, original emphasis
58 http://www.hrcr.org/safrica/dignity/Selmouni.html ; https://www.legal-tools.org/doc/3e7b94/pdf/
59 http://www.refworld.org/docid/3ae6b70210.html ; http://www.prisonersabroad.org.uk/wp-

content/uploads/2015/07/torture.pdf [p. 4] ; see further: HARRIS, David, O’BOYLE, Michael, BATES, Ed, and BUCKLEY, Carla (2014)
Law of the European Convention on Human Rights (third edition), Oxford: Oxford University Press, p. 240
60 This “deliberate inconsistency” follows the increasing human rights’ standards (legally speaking, if not yet in practice…) at

the international level, and not the eventual “democratic transition” within the countries which joined the ECHR; naturally,
this is also true on reverse, i.e. when the Court should not apply its rules more strictly towards the “older democracies” on the
only basis that they have had more time to adjust their public policies. On this point, see principally: [SWEENEY, James A. (2013)
The European Court of Human Rights in the Post-Cold War Era: Universality in Transition, Abingdon-on-Thames: Routledge, pp.
25-30 (p. 28 above all) + chapter 9]. This is even more emphasised by the fact that, in any case, no retroactivity will be granted
[Ibid., pp. 48-51].
61 http://www.dailymail.co.uk/news/article-2114652/ECHR-president-Sir-Nicolas-Bratza-admits-euro-judges-judicial-

experience.html
62 The distinction between “torture” and “inhuman or degrading treatment” on the ground of a sort of “thresholds of

suffering” has given rise to several criticisms: «Although the Court and Commission continue to endorse the “severity of
suffering” approach it is not fully reflected in their practice[, where] justifications and policy factors unconnected with the
7
their severity, cruelty, and seriousness.63 Fourthly, it has highlighted a couple of points concerning the original
«person’s state of health» and the lack of «heightened tension and emotions [which] might have led to such
excesses» (those “environmental circumstances” not to be anyhow considered, however, as a justification).
And finally, on the reasonableness of the duration of the overall process, the Courts stated that «neither the
complexity of the case nor the applicant’s conduct justifies the length of the proceedings». Furthermore, this
case is newsworthy in the light of the high monetary compensation granted to Mr Selmouni under Art. 41.64

In the case no. 23145/93 (Elçi v. Turkey, 2003), the application having been admissible under Art. 5(1)
and 8 and inadmissible under Art. 5(3)65, the physical suffering inflicted to the prisoners (“foot
whipping”/“fàlaka”/“falanga”, cold water torture, pressurised water, squeezing of genitals, blindfolding,
suspension, loud music, low temperature, electric shocks, etc.)66 was extremely high, therefore – once trusted
– no doubt has been raised over the breach of the Art. 3 of the Convention. Those proceedings, however, have
shown to be particularly complex and disputed67, as well illustrated by the dissent considerations of Judge
Gölcüklü with respect to prima facie formulations such as that the claims were credible as a whole,
notwithstanding the missing evidence. The “Concurring Opinion” of Judge Sir Nicolas Bratza is also
noticeable, where he points out that the applicants’ complaint relating to the failure of the judicial authorities
to investigate the applicants’ allegations of ill-treatment would had been more appropriately examined by the
Court under Art. 13 of the Convention (on the right to an effective remedy68, rather than Art. 3 as it was). In
the same country69, this is also the case of Aydin v. Turkey70, when the Court determined «there had not been
a thorough investigation of the applicant’s allegations of rape and other forms of torture by state agents», where
the criticisms were particularly addressed to «the public prosecutor’s deferential attitude towards members of
the security forces and the conduct of the medical examinations he arranged».71 More generally, «[t]he ECtHR
has increasingly recognized implied positive obligations of Member States as arising from the rights in the

theory of the “severity of suffering” have shaped the application of the article as a whole» [MORGAN, Rod, and EVANS, Malcolm
David (1998) Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, Oxford: Oxford University Press, p. 79]. Additionally, it has been pointed out that «it is difficult to
see how treatment which is inhuman can be “aggravated” and that torture can be considered a form of treatment or
punishment “even more inhuman” than inhuman treatment itself» [Ibid., p. 78]; nonetheless, «even if Article 3 is understood
as embracing three separate concepts – three in one, not one in three – it still prohibits them all in single measure: Article 3 is
violated once the first threshold is crossed. Of course, there might be greater moral opprobrium attached to conduct which is
“inhuman” as well as “degrading”, or “torture” as well as “inhuman”, but that does not alter the fact that article 3 has already
been breached at the “lower” level» [Ibid., p. 79]. The differentiation of these crimes on the basis of different kind of actions
has never been satisfactorily developed, and even the watershed of the intentionality is not totally convincing: assuming that
torture is understood as active intentionality, could a human being left alone in degrading conditions for a long time be
subjected to the passive intentionality of disregard? And, once more: what are the limits of “right” intentionality, if so? Is a
harsh police interrogation truly an intentional occurrence of misconduct, aimed at provoking suffering per se more than
gaining information and making the entire procedure faster? Unfortunately, these and other core doubts still remain largely
unanswered or, to say the least, too vaguely addressed.
63 MCBRIDE, Jeremy (2009) Human rights and criminal procedure. The case law of the European Court of Human Rights,

Strasbourg: Council of Europe Publishing, p. 146 ; see also: NAGAN, Winston Percival, CARTNER, John A. C., and MUNRO, Robert
John (2016) Human Rights and Dynamic Humanism, Leiden: Brill Academic Publishers, p. 466
64 (1999) ‘Case of Selmouni v. France’, The International Journal of Human Rights, 3(4): 127-131
65 http://www.khrp.org/khrp-news/news-archive/21-1996-news/127-elci-and-others-v-turkey-declared-admissible-by-the-

european-commission-of-human-rights.html
66
http://echr.ketse.com/doc/23145.93-25091.94-en-19961202/view/
67 http://echr.ketse.com/doc/23145.93-25091.94-en-20031113/view/
68 http://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680063765
69 «The fundamental weakness in the European system is a structural and political inability to respond to systematic violations

of human rights, as manifested particularly in the dealings of the Court with jurisdictions such as Turkey and Northern
Ireland» [NÍ AOLÁIN, Fionnuala (2004) ‘The European Convention on Human Rights and Its Prohibition on Torture’, in LEVINSON,
Sanford Victor (ed) Torture: A Collection, New York: Oxford University Press, p. 214]
70 http://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/aydin-v-turkey/ ; http://www.refworld.org/docid/3ae6b7228.html ;

http://dx.doi.org/10.1080/13642989708406700
71 MOWBRAY, Alastair R. (2004) The Development of Positive Obligations under the European Convention on Human Rights by

the European Court of Human Rights, Oxford: Hart Publishing, p. 216

8
European Convention on Human Rights»72; within this framework, «the duty upon states to conduct effective
investigations into credible claims that serious violations of Convention rights have occurred» is one of the
major positive obligations for the state parties developed under the ECHR, following the belief that «a robust
application of the effective investigation duty will provide additional discouragement for this form of abuse». 73
Another matter to be investigated in Elçi v. Turkey was the unlawful detention when compared to the relevant
Turkish laws.74
The Elçi case is strictly interconnected with the 59261/00 (Menesheva v. Russia, 2006) one75, since
again, the Court concluded that the ill-treatments taken as a whole amounted to torture76: the reasoning
underpinning this conclusion is understandable, but the lack of a clear watershed between “pain thresholds” is
also evident, in a situation where the ECtHR has been often accused of partiality and inconsistency 77
(especially from Putin’s government). Moreover, to reach this verdict, the Court took into consideration a set
of “qualities” of the applicant, namely the age, the sex, the state of health, as well as the intentionality of the
inflicted suffering. Thereby, the question is: if those qualities (especially the age and the sex) portraying a
situation of objective vulnerability are relevant elements to obtain a positive recognition of the occurrence of
torture, might the contrary be equally logical and rational? Put differently: if in this case the female sex and
the 19 years of the victim have been considered relevant traits in order to roam towards a conviction for torture,
would the contrary be acceptable? If so, why in similar cases the mature age and the male sex of the applicant
have not been considered negative elements in this respect? Another misgiving might concern the
consideration for mental effects which are far from being proved, not to mention a questionable moral impact,
where the term “moral” is particularly tricky, needing further circumstantialisation. Like in the Mikheyev case
(77617/01)78, «torture was inflicted on the applicant while in custody at the police station by several police
officers with the aim of extracting a confession».79 Another misconduct, cause of the large majority of the
complaints against Russia brought to the attention to the Court, was the lack of independence in assessing the
alleged prosecutor’s ill-treatments within the domestic jurisdiction80, even though «there may be situations in
which the prosecution and punishment of the perpetrators is insufficient in the eyes of the Court to establish
that the applicant has lost victim status».81

The case no. 18896/91 (Ribitsch v. Austria, 1995)82 presents an unmissable opportunity for shifting
back to the condemnation of inhuman and degrading treatment, “a step behind torture”, and should be taken
into account by lawyers and judges for its clear assessment of the burden of proof with regards to physical

72 KLATT, Matthias (2011) ‘Positive Obligations under the European Convention on Human Rights’, Heidelberg Journal of
International Law, pp. 691-718, available online at http://matthias-klatt.de/en/publication/9-positive-obligations-under-the-
european-convention-on-human-rights-2/ [p. 692]
73 MOWBRAY, Alastair R. (2004) The Development of Positive Obligations under the European Convention on Human Rights by

the European Court of Human Rights, Oxford: Hart Publishing, pp. 226-227
74 CHRISTOFFERSEN, Jonas (2009) Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention

on Human Rights, Leiden: Brill Academic Publishers, p. 485

75 https://wcd.coe.int/ViewDoc.jsp?p=&id=975779&Site=COE&direct=true ; https://www.legal-tools.org/doc/4964af/pdf/ ;

see also HICKMAN, Tom (2010) Public Law after the Human Rights Act, London: Bloomsbury Publishing, p. 122
76 www.univie.ac.at/bimtor/dateien/ecthr_2006_menesheva_vs_russia.doc ; see also SCHABAS, William Anthony (2015) The

European Convention on Human Rights: A Commentary, Oxford: Oxford University Press, pp. 176-178
77 among many excellent references, see in particular: DZEHTSIAROU, Kanstantsin (2015) European Consensus and the

Legitimacy of the European Court of Human Rights, Cambridge: Cambridge University Press ; on the “ECtHR-CJEU-states”
triangle, see more specifically: ARNARDÓTTIR, Oddný Mjöll, and BUYSE, Antoine (2016) (eds) Shifting Centres of Gravity in Human
Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, Abingdon-on-Thames: Routledge ;
on the mutual enrichment between European Courts and Public International Law values, see primarily: BREMS, Eva, and
GERARDS, Janneke (2014) Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the
Scope of Human Rights, Cambridge: Cambridge University Press
78 https://www.legal-tools.org/en/browse/record/360632/
79 KELLER, Helen, and STONE SWEET, Alec (2008) (eds) A Europe of Rights: The Impact of the ECHR on National Legal Systems,

Oxford: Oxford University Press, p. 639

80 SPERLING, Valerie (2009) Altered States: The Globalization of Accountability, New York: Cambridge University Press, p. 242
81 ERDAL, Uǧur, and BAKIRCI, Hasan (2006) Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook,

Geneva: OMCT, p. 83
82 http://hudoc.echr.coe.int/eng#{"itemid":["001-57964"]} ; see also: Directorate of Human Rights of the Council of Europe

(1996) Yearbook of the European Convention on Human Rights, vol. 37 year 1994, Leiden: Martinus Nijhoff Publishers, p. 149
9
injuries appearing on the applicants’ bodies after their period under detention.83 Any preventive or post-trial
custody in prison, as well as any restriction of personal freedom for the purpose of interrogation/investigation
under the state jurisdiction within public spaces, is in charge of the national authority when it comes to proving
that eventual injuries are the result of actions beyond the responsibility of state agents’ actions.84 On the same
line, the Court will not accept any state-level judiciary examination of those injuries85, assuming that they
necessarily are the result of the condition of detention or police interview. Through this judgement, the Court
reiterated its view that the physical integrity of individuals under state control comes before any need related
to the fighting against crime, even at the highest emergency degree. One open question posed by this and other
cases is the precise borderline between inhuman and degrading treatment, if any. Nonetheless, in compliance
with the Art. 50 of the Convention, Mr Ribitsch has been assigned a «compensation for non-pecuniary damage
and reimbursement of his costs and expenses». A couple of interesting points stand out in this case, providing
insights for still-ongoing doctrinal discussions: first of all, can the ECtHR be considered a sort of “fourth level
of judiciary proceeding” once exhausted the three national steps? Indeed, prior to coming before the
Strasbourg’s Court, this case passed through the hands of several national magistrates belonging to the Vienna
District Criminal Court, the Vienna Regional Criminal Court, as well as the Constitutional
Court (“Verfassungsgerichtshof ”) of the Republic of Austria. Quoting CICHOWSKI86, «[t]he ECtHR’s main
function is to ensure State compliance with and the uniform interpretation of the Convention. Technically, the
Court’s jurisdiction involves international – not constitutional – law, such that the ECtHR does not have
constitutional review powers. Yet interestingly, while Member States remain sovereign States in the Council
of Europe system, the Convention rights as protected and interpreted by the ECtHR have served as a body of
higher order norms and led to considerable constraint on what national legislators can do». Secondly, it should
be underlined how, during the trials, a shocking number of irrelevant elements have been quoted by the national
judiciaries, confirming the necessity of a supranational control standing above the state-administered bodies;
all this is even more appreciable when one considers the unlawfulness of the whole process (starting from a
home search equipped with «neither a search warrant nor an arrest warrant») and the futility of the findings
(0.5 g of hashish). As a final remark, the Court’s definition of “inhuman and degrading treatment” must not be
forgotten, applying whenever an act of violence against an helpless individual is not strictly unavoidable as a
consequence of the behaviour of the latter.87

Not to be confused with the no. 13467/87 (Jäger v. Switzerland)88, the application no. 39195/98 (Jager
v. The Netherlands)89 offers a landmark look-out over the pretended “inhumanity” carried out through peculiar
(unlawful?) interrogation-techniques like the so-named “Zaanse verhoormethode”. Admittedly, the Court
found that the way in which the technique has been implemented, although unacceptable per se, did not amount
to the level usually considered an offence sufficient to infringe the Art. 3 of the Convention.90 Arguably, an
appeal to a more general Article, possibly the XVII, would have enhanced the chances of “obtaining justice”.
Nonetheless, this decision is an inspiring cue to agree with CASSESE91, when he candidly affirms that the
Commission he chaired «gave it up» after attempting to circumscribe the limits and manifestations of
unacceptable practices definable as “torture” or “degrading treatment/punishment”. A rough idea we as

83 KOKOTT, Juliane (1998) The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law
Approaches With Special Reference to the American and German Legal Systems, Leiden: Martinus Nijhoff Publishers, p. 199
84 DUTERTRE, Gilles (2003) Key case-law extracts – European Court of Human Rights, Strasbourg: Council of Europe Publishing, p.

53 ; https://www.whatdotheyknow.com/request/173176/response/436337/attach/4/Article%203%20jurisprudence%20bundle.pdf [p. 4]
85 JANIS, Mark Weston, KAY, Richard Steven, and BRADLEY, Anthony Wilfred (2008) European Human Rights Law: Text and

Materials, New York: Oxford University Press, p. 194, footnote no. 84

86 CICHOWSKI, Rachel A. (2011) ‘Civil Society and the European Court of Human Rights’, in CHRISTOFFERSEN, Jonas, and RASK

MADSEN, Mikael (eds) The European Court of Human Rights between Law and Politics, Oxford: Oxford University Press, p. 83
87 REID, Karen (2011) A Practitioner’s Guide to the European Convention on Human Rights (fourth edition), London: Sweet &

Maxwell, p. 796
88 http://hudoc.echr.coe.int/eng#{"itemid":["001-73483"]} ; KELLER, Helen, FOROWICZ, Magdalena, and ENGI, Lorenz (2010)

Friendly Settlements Before the European Court of Human Rights: Theory and Practice, Oxford: Oxford University Press, p. 21
89 http://echr.ketse.com/doc/39195.98-en-20000314/view/
90 REED, Robert John, and MURDOCH, Jim (2016) Human Rights Law in Scotland (fourth edition), London: Bloomsbury Publishing,

p. 361
91 CASSESE, Antonio (1996) Inhuman States: Imprisonment, Detention and Torture in Europe Today [translated edition from the

Italian original version Umano-disumano. Commissariati e prigioni nell’Europa di oggi, Bari: Laterza, 2004], Cambridge: Polity
Press, chapter 5
10
Europeans can collectively agree upon in this respect is given to us by the actions of «the bureaucrats of
violence», who pursue acts being «utterly repugnant to our sense of human dignity» against a person with the
explicit or implicit purpose «to extort a confession, information, or to humiliate, punish, or intimidate that
person». If this inexact and not scientific, but still better-than-nothing sort of definition is debatable, a fortiori
the evidence to be produced for such alleged acts is so, in a context were «torturers have learnt to adapt» by
no longer using “medieval” instrumentation, but rather light chemical means, distressing psychological
violence or sophisticated, recent technical devices in a way that tangible, measurable, examinable «traces of
the torture can soon be made to disappear».92

With reference to the guarantee of a fair trial, one might emphasise that it covers not only the trial
itself, but what leads to that trial, in terms of criminal evidence, interrogation procedures, police records,
preventive detention, and the like. In Magee v. UK93 (not to be mistaken with the Magee et al. one)94, the
applicant was practically forced to confess his involvement in the planning of a terrorist attack, in a situation
where his utter isolation (“incommunicado detention”)95, his inability to gain access to a defence attorney, the
coerciveness of the interviewers’ behaviours and the time length96 of the custody itself, were all elements
considered unfair by the Court, which on this basis granted Mr Magee with a recognition of rightness. 97
Accordingly, the national bodies were found in violation of Art. 6 of the Convention, considering how those
self-incriminations formed the grounds for the prosecution case. On the contrary, in Schenk v. Switzerland 98
the secretly-and-unlawfully-gained recordings of the applicant’s private telephone conversations were just a
minor element of the subsequent trial; hence, they did not prevent him from benefiting from a balanced trial99
and did not constitute either a violation of Art. 6 or material to be examined for a potential breach of the Art.
8. Further on this, the Court argued that those conversations were considered “lawful proofs” by the highest
Swiss judicial body, thus it was not up to Strasbourg to question their suitability for the purpose of the Swiss
trial itself100. Put simply, this is not in contradiction with the above-examined cases, since the Court shall
decide – to some extent – what to consider valid or satisfactory for its own trials amidst the pool of information
gathered at the national stage, but shall not invade directly the sphere of nationally-run legal procedures
(especially on the merit of admissibility of evidences).101

Along with this fundamental cases’ overview, one last point must be included, and it is concerned with
the limits between the legality and illegality of some practices. For example, though forced feeding of a hunger-

92 Ibid., chapter 6
93 http://echr.ketse.com/doc/28135.95-en-19990914/view/ ; http://www.bailii.org/eu/cases/ECHR/2000/216.html
94 https://lovdata.no/static/EMDN/emd-2012-026289.pdf
95 «The international community signalled its particular concern with the practice of incommunicado detention when in 1980

the Commission on Human Rights established […] the Working Group on Enforced or Involuntary Disappearances […] It is
perhaps surprising, therefore, that no international treaty expressly prohibits incommunicado detention. The inability to
inform a third party of the fact of detention can, however, result in a violation of other treaty obligations, such as the right to
challenge the legality of detention or the right to a fair trial […] The European Commission of Human Rights has shown some
virtuosity in determining that an inability to communicate the fact of detention to one’s wife for much shorter periods can
violate Art. 8 of the ECHR […] It will, however, be rare for incommunicado detention to amount to a violation of […] Art. 3 of
the ECHR without the addition of other factors» [MORGAN, Rod, and EVANS, Malcolm David (1998) Preventing Torture: A Study
of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Oxford: Oxford
University Press, pp. 259-260]; cf. Palić v. Republika Srpska
[http://www.worldcourts.com/hrcbih/eng/decisions/CH99_3196_Palic2.pdf] with ECtHR verdicts like the one about Palić v.
Bosnia and Herzegovina [http://www.refworld.org/pdfid/4d5bf79e2.pdf]
96 «The benchmark set by the European Court of Human Rights in Brogan v. UK suggests that an initial appearance should,

under normal circumstances, occur within four days of detention, whilst the HRC has limited itself to saying that ‘delays must
not exceed a few days’. This still leaves a considerable period during which the detainee might be “out of sight” and during
which the risk of ill-treatment is greatest» [Ibid.]
97 MURDOCH, (James) Jim (2006) The treatment of prisoners: European standards, Strasbourg: Council of Europe Publishing, p. 171
98 http://echr.ketse.com/doc/10862.84-en-19880712/view/
99 http://ec.europa.eu/justice/fundamental-rights/files/cfr_cdf_opinion3_2003_en.pdf [pp. 6-10] ;

http://www.ejil.org/pdfs/17/2/78.pdf [p. 362]

100 GUTWIRTH, Serge, POULLET, Yves, DE HERT, Paul, DE TERWANGNE, Cécile, and NOUWT, Sjaak (2009) Reinventing Data Protection?,

Berlin: Springer, p. 43, footnote no. 168

101 HAVEMAN, Roelof, KAVRAN, Olga, and NICHOLLS, Julian (2003) (eds) Supranational Criminal Law: A System Sui Generis,

Antwerp: Intersentia, pp. 88-89

11
striker does not amount to torture in itself, it might reach the Art. 3 threshold once certain conditions are
verified, especially if they take place all together: among them, the lack of a life-saving medical necessity, or
the application of special technical restraints.102 The latter was, for instance, the case in Nevmerzhitsky v.
Ukraine (54825/00, 2005)103, when handcuffs, a mouth-widener and a rubber tube were used to appease the
applicant’s resistance. Far from being labelled as simple “relativism”, the same concept works in different
scenarios: a number of practices are likely to be lawful per se, but unlawful in certain circumstances or if
performed with and achieved through particular instruments. Just as an example, in Filiz Uyan v. Turkey104 the
use of handcuffs and the presence of male gendarmes inside a gynaecological consultation room were sufficient
to declare that the applicant’s rights had been violated.

5. Transitional conclusions
Widening the breadth of all the previous considerations, and once again, paraphrasing CASSESE, it
should be remembered that while «torture is carried out in the police stations and gendarmeries of certain
countries[,] prison authorities and other state-run detention centres never use such cruel methods»: in the latter,
it is much more probable to find a combination of intricate factors that all together leave the detainees – those
awaiting for a judgement among them – passing «from the animal to the vegetal kingdom» (e.g. jail cells which
are alienatingly small, ill-lit, empty, parasite/insect/rat-infested, dingy, unhealthy, stinking of
urine/excrements, totally dark, filthy, and where the convicts are hazardously subjected to long-term
disciplinary segregation, acoustic isolation, solitary confinement, inertia and hebetude, lack/inadequacy of
medical care, severe drug-addiction, depression, even shockingly “forgotten” there in the event of end-stage
cancer and delayed trials, and so forth).

Many things have improved since the establishment of the ECtHR and the visits carried out by the
aforementioned “Cassese’s Commission” across the continent, but further measures – on both the legislative
and “field” levels – await being adopted (especially, and not astonishingly, in countries like Italy, persistently
sanctioned by the Council of Europe for the conditions prevailing in its detention centres).

Is this the Europe we have ardently fought for?

******

102 GINBAR, Yuval (2010) Why not torture terrorists? Moral, Practical, and Legal Aspects of the “Ticking Bomb” Justification for
Torture, Oxford: Oxford University Press, p. 291
103 http://hudoc.echr.coe.int/eng#{"itemid":["001-68715"]} ; http://freecases.eu/Doc/CourtAct/4533437
104 http://echr.coe.int/Documents/CLIN_2009_01_115_ENG_849360.pdf [p. 8] ; http://echr.ketse.com/doc/7496.03-en-

20090108/ ; http://skemman.is/stream/get/1946/6971/18779/1/Katrin-Palsdottir_ML-2010.pdf [p. 21]

12
 A 2-PAGE SELECTION
OF FURTHER READINGS

ANAGNOSTOU, Dia (2014) (ed) Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the Multi-
level European System, London: Hart Publishing

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