The absolute prohibition of torture is set out in a number of international human rights treaties but defining what treatment constitutes torture is complex. Clearly, a majority of people will regard certain types of treatment as torture while other instances may be less clear, depending on, for instance, cultural or other factors. Article 1(1) of the UNConvention Against Torture defines torture quite broadly but sets out certain elements that combined amount to torture under the Convention: 1) severe pain or suffering has to have been inflicted, 2) for a specific purpose, such as to obtain information, as punishment or to intimidate, or for any reason based on discrimination, 3) by or at the instigation of or with the consent or acquiescence of state authorities. Furthermore, torture is sometimes distinguished from other forms of maltreatment by the severity of the suffering endured. If the suffering is to a lesser degree than what constitutes torture, cruel, inhuman or degrading treatment or punishment may have been inflicted. Unlike torture, ill-treatment does not have to have a specific aim but as in the case of torture intent must be established. This is the approach of the European Court, which is controversial as many authors claim that this is actually the decisive criterion of torture, instead – and not only together with – the amount of suffering.

The Human Rights Committee has reiterated that the prohibition against torture or cruel, inhuman or degrading treatment is an absolute right that may not be derogated from (Article 4), even in times of emergency:

19. The Committee is deeply concerned that under the guidelines for the conduct of interrogation of suspected terrorists authority may be given to the security service to use “moderate physical pressure” to obtain information considered crucial to the “protection of life”. The Committee notes that the part of the report of the Landau Commission that lists and describes authorized methods of applying pressure remains classified. The Committee notes also the admission by the State party delegation that the methods of handcuffing, hooding, shaking and sleep deprivation have been and continue to be used as interrogation techniques, either alone or in combination. The Committee is of the view that the guidelines can give rise to abuse and that the use of these methods constitutes a violation of article 7 of the Covenant in any circumstances. The Committee stresses that article 7 of the Covenant is a non-derogable prohibition of torture and all forms of cruel, inhuman or degrading treatment or punishment. The Committee urges the State party to cease using the methods referred to above. If legislation is to be enacted for the purpose of authorizing interrogation techniques, such a law should explicitly prohibit all forms of treatment prohibited by article 7. (Concluding Observations on Israel (1998), see also General Comment 29).

When deciding on individual communications the Human Rights Committee has not found it necessary to determine whether the treatment in question amounts to torture or cruel, inhuman or degrading treatment but has confined itself to determining that a violation of Article 7 has taken place. In General Comment 20, the Committee explains this practice:

The Covenant does not contain any definitions of the concepts covered by Article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.

The Committee reiterates this position in Vuolanne v. Finland , where it discusses the subjective nature of determining the gravity of treatment when establishing whether torture or ill-treatment has taken place.

Vuolanne v. Finland

Human Rights Committee

Communication No. 265/1987

Views of 2 May 1989

Keywords: detention for disciplinary reasons in military - trial within a reasonable time

[?]

The facts as submitted by the author

1. The author of the communication [?] is Antti Vuolanne, a Finnish citizen, 21 years of age, resident in Pori, Finland. He claims to be the victim of a violation by the Government of Finland of articles 2, paragraphs 1 to 3, 7 and 9, paragraph 4, of the International Covenant on Civil and Political Rights  . [?]

2.1 The author states that he started his military service on 9 June 1987. Service duty allegedly caused him severe mental stress and, upon his return from a military hospital early in July 1987, he realized that he could not continue with his service as an infantryman. Unable to discuss the situation with the head of his unit, he decided, on 3 July, to leave his garrison without permission [?].

2.2 On 14 July, in a disciplinary procedure, he was sanctioned with 10 days of close arrest [?].

[?]

2.6 [?][the author states that] he was locked in a cell of 2 x 3 metres with a tiny window, furnished only with a camp bed, a small table, a chair and a dim electric light. He was only allowed out of his cell for purposes of eating, going to the toilet and to take fresh air for half an hour daily. He was prohibited from talking to other detained persons and from making any noise in his cell. He claims that the isolation was almost total. He also states that in order to lessen his distress, he wrote Personal notes about his relations with persons close to him, and that these notes were taken away from him one night by the guards, who read them to each other. Only after he asked for a meeting with various officials were his papers returned to him.

[?]

9.1 The author of the communication claims that there have been breaches of article 2, paragraphs 1 and 3, article 7, article 9, paragraph 4, and article 10 of the Covenant.

THE COMMITTEE’S EXAMINATION OF THE MERITS:

9.2 The Committee recalls that article 7 prohibits torture and cruel or other inhuman or degrading treatment. It observes that the assessment of what constitutes inhuman or degrading treatment falling within the meaning of article 7 depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim. A thorough examination of the present communication has not disclosed any facts in support of the author’s allegations that he is a victim of a violation of his rights set forth in article 7. In no case was severe pain or suffering, whether physical or mental, inflicted upon Antti Vuolanne by or at the instigation of a public official; nor does it appear that the solitary confinement to which the author was subjected, having regard to its strictness, duration and the end pursued, produced any adverse physical or mental effects on him. Furthermore, it has not been established that Mr. Vuolanne suffered any humiliation or that his dignity was interfered with apart from the embarrassment inherent in the disciplinary measure to which he was subjected. In this connection, the Committee expresses the view that for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements beyond the mere fact of deprivation of liberty. Furthermore, the Committee finds that the facts before it do not substantiate the allegation that during his detention Mr. Vuolanne was treated without humanity or without respect for the inherent dignity of the Person, as required under article 10, paragraph 1, of the Covenant.

[?]

Comment

Here the Committee stresses that ‘all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim’ have to be taken into account when determining the severity of the alleged ill-treatment.

In the following case, the Committee set out specifically that certain treatment amounted to degrading treatment within the meaning of Article 7.

Polay Campos v. Peru

Human Rights Committee

Communication No. 577/1994

Views of 6 November 1997

Keywords: public humiliation - degrading treatment - detention conditions

[?]

Facts as submitted by the author

2.1 The author’s husband is the leader of the “Revolutionary Movement Túpac Amaru”[?]. On 9 June 1992, he was arrested in Lima. On 22 July 1992, he was transferred to the “Miguel Castro Castro” prison in Yanamayo, near the city of Puno which is situated at an altitude of 4,000 metres. Conditions of detention at this prison are said to be inhuman. The author submits that for a period of nine months her husband was in solitary detention for 23 and a half hours a day, in a cell measuring 2 by 2 metres, without electricity or water; he was not allowed to write or to speak to anyone and was only allowed out of his cell once a day, for 30 minutes. The author further submits that the temperature in the prison is constantly between 0 and minus 5 degrees, and that the food is deficient.

2.2 On 3 April 1993, Victor Alfredo Polay Campos was tried in the Yanamayo prison by a so-called “tribunal of faceless judges” established under special anti-terrorist legislation. Such a body consists of judges who are allowed to cover their faces, so as to guarantee their anonymity and prevent them from being targeted by active members of terrorist groups. Mr. Polay Campos was convicted and sentenced to life imprisonment; it is claimed that his access to legal representation and the preparation of his defence were severely restricted. While the author does not specify the crime(s) of which her husband is convicted, it transpires from the file that he was convicted of “aggravated terrorism”.

2.3 On 26 April 1993, he was transferred to the Callao Naval Base Prison near Lima. In this connection, the author forwarded a newspaper clipping showing Victor Polay Campos handcuffed and locked up in a cage. The author claims that, during the journey from Yanamayo to Callao, her husband was beaten and administered electric shocks.

2.4 The author further submits that her husband is held in a subterranean cell where sunlight only penetrates for 10 minutes a day, through a small opening in the ceiling. During the first year of his prison sentence, he was not permitted visits by any friends or relatives, nor was he allowed to write to anyone or to receive correspondence. A delegation of the International Committee of the Red Cross has been allowed to visit him.

2.5 [?] On 3 June 1994, Mr. Polay Campos’ mother filed with the Constitutional Court a recurso de amparo (request for habeas corpus) on his behalf with respect to his ill-treatment. This action was dismissed, according to the author, on an unspecified date.

[?]

The complaint

3. The author submits that the above situation reveals that her husband is a victim of violations by Peru of article 2, paragraph 1, and articles 7, 10, 14 and 16 of the Covenant.

[?]

The State party’s observations on the merits

7.1 In three submissions dated 27 August, 12 and 28 November 1996, the State party provided copies of some of the reports requested by the Committee, as well as information about the medical treatment given to Mr. Polay Campos and his current conditions of detention. It did not, however, provide information about Mr. Polay Campos’ conditions of detention at the Castro Castro prison at Yanamayo, or about the allegation that he was ill-treated during his transfer from Yanamayo to the maximum security detention facility at the Callao naval base.

7.2 The State party noted that two documents concerning Mr. Polay Campos had been submitted upon his transfer to the Callao Naval Base. One was a psychological evaluation, done on 23 July 1992 in Puno (close to the Yanamayo prison), in which the alleged victim’s appearance and health were described as ‘normal’; the other was Mr. Polay Campos’ file as prepared by a department of the Ministry of Justice.

Examination on the merits

[?]

8.2 Two issues arise in the present case: first, whether the conditions of detention of Mr. Polay Campos, and the ill-treatment he allegedly has been subjected to, amount to a violation of articles 7 and 10 of the Covenant, and, secondly, whether his trial before a panel of anonymous judges (“faceless judges”) constituted a violation of article 14, paragraph 1, of the Covenant.

[?]

8.5 The author contends that her husband was beaten and subjected to electric shocks during his transfer to the Callao Naval Base facility, and that he was displayed to the media in a cage on that occasion. Although this allegation was not addressed by the State party, the Committee considers that the author did not adequately substantiate her allegation concerning the beating and the administration of electric shocks during the transfer to Callao. It accordingly makes no finding on articles 7 and 10, paragraph 1, of the Covenant on this count. On the other hand, it is beyond dispute that during his transfer to Callao Mr. Polay Campos was displayed to the press in a cage: this, in the Committee’s opinion, amounted to degrading treatment contrary to article 7 and to treatment incompatible with article 10, paragraph 1, since it failed to respect Mr. Polay Campos’ inherent and individual human dignity.

[?]

8.6 As to the detention of Victor Polay Campos at Callao, it transpires from the file that he was denied visits by family and relatives for one year following his conviction, i.e. until 3 April 1994. Furthermore, he was unable to receive and to send correspondence. [?]. In the Committee’s opinion, this total isolation of Mr. Polay Campos for a period of a year and the restrictions placed on correspondence between him and his family constitute inhuman treatment within the meaning of article 7 and are inconsistent with the standards of human treatment required under article 10, paragraph 1, of the Covenant.

8.7 As to Mr. Polay Campos’ general conditions of detention at Callao, the Committee has noted the State party’s detailed information about the medical treatment Mr. Polay Campos has received and continues to receive, as well as his entitlements to recreation and sanitation, personal hygiene, access to reading material and ability to correspond with relatives. No information has been provided by the State party on the claim that Mr. Polay Campos continues to be kept in solitary confinement in a cell measuring two metres by two, and that apart from his daily recreation, he cannot see the light of day for more than 10 minutes a day. The Committee expresses serious concern over the latter aspects of Mr. Polay Campos’ detention. The Committee finds that the conditions of Mr. Polay Campos’ detention, especially his isolation for 23 hours a day in a small cell and the fact that he cannot have more than 10 minutes’ sunlight a day, constitute treatment contrary to article 7 and article 10, paragraph 1, of the Covenant.

[?]

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee constitute violations of article 7 and article 10, paragraph 1, of the Covenant as regards Mr. Polay Campos’ detention at Yanamayo, public display in a cage during his transfer to Callao and detention in total isolation during his first year of incarceration at Callao and the conditions of his continuing detention at Callao, and of article 14, paragraph 1, as regards his trial by a tribunal of “faceless judges”.

[?]

Comment

Here the Committee found, inter alia, that displaying Mr. Campos publicly in a cage, total isolation for a year, isolation for 23 hours a day in a small cell, and the fact that he was not allowed more than 10 minutes’ sunlight a day constituted treatment contrary to Articles 7 and 10.

In Ireland v. The United Kingdom  (Application No. 5310/71, Judgement of 18 January 1978) the European Court gave an early definition of torture and ill-treatment:

Torture: deliberate inhuman treatment causing very serious and cruel suffering.

Inhuman treatment and punishment: the infliction of intense physical and mental suffering.

Degrading treatment: ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

Furthermore, it listed factors that have to be taken into account when determining the severity of treatment such as the age, sex and state of health of the victim. In this case the Court found that certain methods of interrogation such as forcing detainees to remain for periods of time in ‘stress positions’, leaving detainees with bags on their heads for periods of time, subjecting the detainees to noise and depriving them of food, drink and sleep, amounted to ill-treatment. In addition, the Court stressed the non-derogability of the right to freedom from torture, regardless of the situation, stating that Article 3

strictly prohibits torture and inhuman or degrading punishment or treatment regardless of what the victim has done. Article 3 provides for no exceptions, in contrast with most of the principles of the Convention [?] and [?] does not permit derogation even in the case of a public danger which threatens the life of the nation.

The Court has repeatedly specified that the prohibition applies even in the most difficult of circumstances, such as those involving aggression by terrorist groups or large-scale organised crime. (See i.e., Labita v. Italy , Application No. 26772/95, Judgement of 6 April 2000, Selmouni v. France , Application No. 25803/94, Judgment of 28 July 1999 andChahal v. The United Kingdom, Application No. 22414/93, Judgement of 15 November 1996).

The first case where the Court found that the treatment of the victim could only be classified as torture was Aksoy v. Turkey (Application No. 21987/93, Judgement of 18 December 1996):

[T]he applicant was subjected to “Palestinian hanging”, in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms [?]. In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time [?]. The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.

In more recent cases the Court has broadened the scope of what can be considered torture. The following case is important as it developed a wider definition of torture than the Court had applied before.

Selmouni v. France

European Court of Human Rights

Application No. 25803/94

Judgement of 28 July 1999

Keywords: custody, ill-treatment in police - custody, duty of the state to provide a plausible explanation for injuries in torture, notion of

[?]

THE FACTS

7. Mr Selmouni, a Netherlands and Moroccan national, was born in 1942 and is currently in prison in Montmédy (France).

A. The origin and the filing of the complaint

8. On 20 November 1991 the police arrested Géray Tarek, Dominique Keledjian and Mr Keledjian’s girlfriend in connection with a drug-trafficking investigation [?].

9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris [?].

10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers [?].

11. [?] Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows:

[?] casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities.”

[?]

16. [?]. On Mr Selmouni’s first appearance before the investigating judge, the latter, on his own initiative, appointed Dr Garnier, an expert in forensic medicine on the Paris Court of Appeal’s panel, to examine Mr Selmouni, “who claim[ed] to have been ill treated while in police custody”, and another person [?].

17. On 2 December 1991 the applicant was examined by Dr Nicot [?]. In a medical certificate drawn up at Mr Selmouni’s request the doctor made the following observations: “? extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye.”

18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor:

“I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination.”

20. The conclusion of the report is as follows:

“CONCLUSION

Mr Selmouni states that he was subjected to ill-treatment while in policy custody.

He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody.

These injuries are healing well.”

[?]

69. The applicant requested the Court to find that there had been a violation of Articles 3 and 6§ 1 of the Convention and to award him just satisfaction under Article 41.

[?]

B. Merits of the complaint

1. The Court’s assessment of the facts

82. The applicant complained that he had been subjected to various forms of ill-treatment. These had included being repeatedly punched, kicked, and hit with objects; being forced to kneel down in front of a young woman to whom an officer had said “Look, you’re going to hear somebody sing”; having a police officer show him his penis, saying “Here, suck this”, before urinating over him; being threatened with a blowlamp and then with a syringe; etc. The applicant also complained that he had been raped with a small black truncheon after being told “You Arabs enjoy being screwed”. He stressed that his allegations had neither varied nor been inconsistent during the entire proceedings and submitted that the expert medical reports and the evidence heard from the doctors who had examined him established a causal link with the events which had occurred while he had been in police custody and gave credibility to his allegations.

83. The Commission considered that the medical certificates and reports, drawn up in total independence by medical practitioners, attested to the large number of blows inflicted on the applicant and their intensity.

[?]

87. The Court considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention [?]. It is accordingly under an obligation to provide a plausible explanation of how Mr Selmouni’s injuries were caused.

[?]

89. Accordingly, the Court is of the opinion that, with regard to the complaint submitted to it, those facts can be assumed to have been established.

90. The Court considers, however, that it has not been proved that Mr Selmouni was raped, as the allegation was made too late for it to be proved or disproved by medical evidence [?]. Likewise, a causal link could not be established on the basis of the medical report between the applicant’s alleged loss of visual acuity and the events which occurred during police custody [?].

2. The gravity of the treatment complained of

91. The applicant submitted that the threshold of severity required for the application of Article 3 had been attained in the present case. He considered that the motive for the police officers’ actions had been to obtain a confession, as he had been informed against and the police officers had been convinced that he was guilty even though the body search and the search of his hotel room at the time of his arrest had not yielded any evidence. He asserted that, aged 49, he had never been convicted or even arrested and that he stood by his refusal to admit any involvement in the drug trafficking being investigated by the police. He contended that the police officers had deliberately ill-treated him, given their constant questioning by day and, above all, by night.

The applicant submitted that he had been subjected to both physical and mental ill-treatment. In his view, it was well known that such police practices existed, and that they required preparation, training and deliberate intent and were designed to obtain a confession or information. He argued that, in the light of the facts of the case, the severity and cruelty of the suffering inflicted on him justified classifying the acts as torture within the meaning of Article 3 of the Convention.

[?]

95. The Court reiterates 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 [?].

96. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering [?].

[?]

98. The Court finds that all the injuries recorded in the various medical certificates [?] and the applicant’s statements regarding the ill-treatment to which he had been subjected while in police custody [?] establish the existence of physical and [?]mental pain or suffering. The course of the events also shows that the pain or suffering was inflicted on the applicant intentionally for the purpose of, inter alia, making him confess to the offence which he was suspected of having committed. Lastly, the medical certificates annexed to the case file show clearly that the numerous acts of violence were directly inflicted by police officers in the performance of their duties.

99. The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court therefore finds elements which are sufficiently serious to render such treatment inhuman and degrading [?]. In any event, the Court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Ribitsch judgment [?] and the Tekin v. Turkey  [?])

100. In other words, it remains to be established in the instant case whether the “pain or suffering” inflicted on Mr Selmouni can be defined as “severe” within the meaning of Article 1 of the United Nations Convention. The Court considers that thisn“severity” is, like the “minimum severity” required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

101. The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture [?]. However, having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present-day conditions” [?] the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.

102. The Court is satisfied that a large number of blows were inflicted on Mr Selmouni. Whatever a person’s state of health, it can be presumed that such intensity of blows will cause substantial pain. Moreover, a blow does not automatically leave a visible mark on the body. However, it can be seen from Dr Garnier’s medical report of 7 December 1991 (see paragraphs 18-20 above) that the marks of the violence Mr Selmouni had endured covered almost all of his body.

103. The Court also notes that the applicant was dragged along by his hair; that he was made to run along a corridor with police officers positioned on either side to trip him up; that he was made to kneel down in front of a young woman to whom someone said “Look, you’re going to hear somebody sing”; that one police officer then showed him his penis, saying “Here, suck this”, before urinating over him; and that he was threatened with a blowlamp and then a syringe (see paragraph 24 above). Besides the violent nature of the above acts, the Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of their condition.

104. The Court notes, lastly, that the above events were not confined to any one period of police custody during which – without this in any way justifying them – heightened tension and emotions might have led to such excesses. It has been clearly established that Mr Selmouni endured repeated and sustained assaults over a number of days of questioning [?].

105. Under these circumstances, the Court is satisfied that the physical and mental violence, considered as a whole, committed against the applicant’s person caused “severe” pain and suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention.

[?]

106. There has therefore been a violation of Article 3.

[?]

Comment

In this case the Court expanded the definition of torture and reiterated its findings in the Ribitsch v. Austria and the Tekin v. Turkey judgments; that subjecting detainees to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is a violation of Article 3. Furthermore, the Court found that the treatment Mr. Selmouni was subjected to was cruel and inhuman and then moved on to establish whether the ‘severity’ of the treatment amounted to torture. The Court found that the ‘severity’ condition set forth in Article 3 is relative and depends on many, cumulative factors, such as ‘the duration of treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc’. The Court found that the treatment of Mr. Selmouni amounted to torture.

In Kaya v. Turkey  (Application No. 22729/93, Judgement of 19 February 1998, abstracted below) the European Court, relying on the UN Convention Against Torture, pronounced on the special elements of torture that make it distinguishable from other types of ill-treatment, alluding to the ‘deliberate’ and ‘purposive’ nature of acts that comprise or transcend the level of suffering required of inhuman treatment. The Court’s approach suggests that, as in the definition of torture laid down in Article 1 of the UN Convention Against Torture and Article 2 of the Inter-American Convention to Prevent and Punish Tortur  , there must be some purpose for inflicting torture. The absolute nature of the right guaranteed in Article 3 means that the requirement of purpose does not proffer justification for torture on grounds of public purpose, however compelling they may be. (This was affirmed in  Chahal v. The United Kingdom ). The ECHR’s case-law has not offered guidance on whether torture needs to be premeditated. While the absolute nature of the right to freedom from torture, the most heinous form of ill-treatment, militates in favour of a victim-friendly and lower standard of fault or negligence on the part of state authorities, the element of purpose suggests that the minimum degree of fault required for torture should lie somewhere between recklessness and premeditation.

Neither the Inter-American Court nor the Inter-American Commission has defined torture and ill-treatment per se, but they have established that certain practices amount to torture. The Court has, for instance, found that ‘holding a person incommunicado, [?] isolation in a small cell, without ventilation or natural light, [?] restriction of visiting rights [?], constitute forms of cruel, inhuman and degrading treatment’ (Cantoral-Benavides v. Peru , Series C No. 69, Judgement of 18 August 2000). The Commission has established that certain practices do amount to torture, including hooding a person and applying electric shocks and burning him with cigarettes (Lovato Rivera v. El Salvador , Case 10.517, Decision of 1 February 1994, Report No. 5/94), rape (Community of Caracoles v. Bolivia  , Case 7.481, Resolution of 8 March 1982, Resolution No. 30/82), mock executions and deprivation of food and water (  Solano v. Bolivia, Case 7.823, Resolution of 8 March 1982, Resolution No. 32/82) and exposure to torture of others (Barrera v. Bolivia , Case 7.824, Resolution of 8 March 1982, Resolution No. 33/82).

In the following case, the Inter-American Court discussed the subjective nature of torture and ill-treatment. This case is also discussed under the rights to due process, Respect for the rights of the parties to a trial, notably in defence .

Loayza Tamayo v. Peru

Inter-American Court of Human Rights

Series C No. 33

Judgement of 17 September 1997

Keywords: arbitrary arrest or detention - torture, rape - due process - ne bis in idem - liberty of person - judicial guaranteesv – special courts

[?]

1. On January 12, 1995, [?] The Commission submitted this case for a ruling on whether the following articles of the Convention were violated: 7 (Right to Personal Liberty), 5 (Right to Humane Treatment), 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection), all these in relation to Article 1(1) of the Convention for the alleged “unlawful deprivation of liberty, torture, cruel, inhuman or degrading treatment, violation of the judicial guarantees, and double jeopardy to María Elena Loayza Tamayo for the same cause, in violation of the Convention,” and of Article 51(2) of the Convention for refusing “to comply with the recommendations formulated by the Commission.” [?]

[?]

3. The facts set out in the application are summarized in the following paragraphs:

a. On February 6, 1993, Ms. María Elena Loayza Tamayo, a Peruvian citizen and a professor at the Universidad San Martín de Porres, was arrested together with a relative, Mr. Ladislao Alberto Huamán Loayza, by officers of the National Counter Terrorism Bureau (hereinafter “DINCOTE”) of the Peruvian National Police Force [?]. The application also indicates that the Peruvian State, failing to observe the verification procedure required by that law and its regulations, arrested Ms. Loayza Tamayo the following day without an arrest warrant issued by the competent judicial authority, as an alleged collaborator of the subversive group “Shining Path”.

b. Ms. María Elena Loayza Tamayo was detained by DINCOTE from February 6 to 26, 1993 [?]. She was heldincommunicado in the DINCOTE offices for ten days and subjected to torture, cruel and degrading treatment and unlawful pressure, for example, “torture, ? threats of drowning on the beach at night and rape to [which] she was subjected by members of DINCOTE,” in an effort to force her to incriminate herself and admit that she was a member of the Peruvian Communist Party -Shining Path [?].

c. During the ten days in which she was held incommunicado, Ms. Loayza Tamayo was allowed no contact with her family or attorney, nor were they informed of her arrest [?].

d. On February 26, 1993, Ms. María Elena Loayza Tamayo was exhibited to the press in “prison stripes,” and accused of the crime of treason. She was then taken to the former Army Veterinary Hospital -later converted into a “holding-station”-where she remained until March 3 of that year when she was transferred to the Chorrillos Women’s Maximum Security Prison.

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24. On May 30, 1996, the Inter-American Commission submitted a request for provisional measures on behalf of Ms. María Elena Loayza Tamayo, in accordance with Article 63(2) of the Convention and Article 24(1) of the Rules of Procedure then in force, in which it asked the Inter-American Court to order the State to “bring to an end the solitary confinement and incommunicado detention imposed on María Elena Loayza Tamayo on April 9, 1996, and that she be returned to Block ‘A’ of the Chorrillos Women’s Maximum Security Penitentiary in the conditions in which she had been held prior to her transfer.” The basis of the Commission’s request is summarized below:

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b. Peru ordered Ms. María Elena Loayza Tamayo to be transferred to that prison’s maximum danger Block and held in continuous solitary confinement, which constitutes an arbitrary and unlawful deterioration of her detention conditions, thereby violating, among other instruments, the American Convention and the (United Nations) Standard Minimum Rules for the Treatment of Prisoners.   .

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56. The Inter-American Commission claimed that Peru violated Ms. María Elena Loayza Tamayo’s right to humane treatment, in breach of Article 5 of the Convention.

57. The violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation. The European Court of Human Rights has declared that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance (cf. Eur. Court H.R., Case of Ireland v. The United Kingdom, judgment of 18 January 1978, Series A no. 25, para. 167). That situation is exacerbated by the vulnerability of a person who is unlawfully detained (cf.—Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, para. 36). Any use of force that is not strictly necessary to ensure proper behaviour on the part of the detainee constitutes an assault on the dignity of the person (cf. Ibid., para. 38), in violation of Article 5 of the American Convention. The exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person’s right to physical integrity.

58. Although the Commission contended in its application that the victim was raped during her detention, after examination of the file and, given the nature of this fact, the accusation could not be substantiated. However, the other facts alleged, such as incommunicado detention, being exhibited through the media wearing a degrading garment, solitary confinement in a tiny cell with no natural light, blows and maltreatment, including total immersion in water, intimidation with threats of further violence, a restrictive visiting schedule (supra, para. 46 c., d., e., k. and l.), all constitute forms of cruel, inhuman or degrading treatment in the terms of Article 5(2) of the American Convention. A study of the arguments and evidence proffered shows grave and convergent acts that were not refuted by the State and give reason to believe that cruel, inhuman and degrading treatment was meted out in the instant case of Ms. María Elena Loayza Tamayo, in violation of her right to humane treatment enshrined in Article 5 of the American Convention.

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Comment

In this case the Court established the subjective nature of torture and ill-treatment, stipulating that violations of human physical and psychological integrity have ‘several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation.’ Similarly to the Polay Campos case (see also Cantoral-Benavides below) the victim was subjected to public humiliation violating the right to freedom from inhuman and degrading treatment. Furthermore, inter alia, solitary confinement in a tiny cell with no natural light, incommunicado detention and total immersion in water violated this right.

In the case of Cantoral-Benavides v. Peru, the Inter-American Court deals with the issue of ill-treatment in detention in detail.

Cantoral-Benavides v. Peru

Inter-American Court of Human Rights

Series C No. 69

Judgement of 18 August 2000

Keywords: arbitrary arrest or detention - cruel, inhuman and degrading treatment

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PROVEN FACTS

63. From the examination of the documents, the witnesses’ testimony, the report from the expert and the statements of the State and the Commission during the course of the proceedings, the Court considers the following facts to have been proven:

a. that on February 6, 1993, Luis Alberto Cantoral-Benavides was detained, without an arrest warrant issued by a competent authority[?].

b. that Luis Alberto Cantoral-Benavides had no prior criminal record;

c. that the members of the DINCOTE arrived at the house to detain José Antonio Cantoral-Benavides, Luis Alberto’s brother, but, when he was not found, they detained Luis Alberto. Luis Alberto Cantoral-Benavides’ twin brother, Luis Fernando Cantoral-Benavides, voluntarily accompanied his brother to the police station, and was later detained and sentenced to 25 years in prison;

d. that at the time of Luis Alberto Cantoral-Benavides’ detention a state of emergency was in effect [?].

e. that Luis Alberto Cantoral-Benavides was held incommunicado at DINCOTE for eight or nine days, beginning on February 6, 1993, and it was not until 15 days after his detention that he was allowed to see a lawyer;

f. that while being held incommunicado at DINCOTE Luis Alberto Cantoral-Benavides was subjected to, by the police and naval personnel, acts of violence in an attempt to get him to confess; for example, he was blindfolded, cuffed with his hands behind his back, forced to remain standing, struck in several parts of his body and, together with his brother Luis Fernando Cantoral-Benavides and another detainee, was taken to the beach at night, where he was subjected to physical and psychological torture, and could not avoid hearing the cries of his brother Luis Fernando Cantoral-Benavides as he was beaten by police agents. Also, Luis Alberto Cantoral-Benavides was thrown to the ground, beaten, interrogated and threatened with physical torture. Also, he was held, together with animals, at the veterinary section of the Las Palmas military base.

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i. that Luis Alberto Cantoral-Benavides was displayed before the media, wearing the striped garb of a prisoner, as a member of the Communist Party of the Shining Path (hereinafter (“PCP-SL”) and as the perpetrator of the crime of treason against the fatherland, even though he had not yet been legally tried or convicted;

j. that Luis Alberto Cantoral-Benavides was subjected to physical violence, including beatings with a club [?];

k. that Luis Alberto Cantoral-Benavides spent the first year of his incarceration in solitary confinement, in a small cell with no ventilation or natural light, where he was held for twenty-three and a half hours a day; the other half hour, he was allowed to be outside in a small yard. Also, he was permitted to see his relatives only once a month, but could have no physical contact with them; he was restricted from engaging in physical exercise or intellectual efforts; and he suffered the consequences of overcrowding;

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s. that Luis Alberto Cantoral-Benavides was incarcerated from February 6, 1993, to June 25, 1997, when he was released;

t. that during the time Luis Alberto Cantoral-Benavides was under arrest, physical and psychological aggression against people being investigated for the crimes of treason against the fatherland and terrorism was a common practice; and

u. that the State had knowledge of the acts of physical and psychological aggression committed against Luis Alberto Cantoral-Benavides, yet made no attempt to investigate same.

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XI VIOLATION OF ARTICLE 5 RIGHT TO HUMANE TREATMENT

78. As regards the violation of Article 5 of the Convention thr the Commission alleged that:

a) Mr. Cantoral-Benavides was subjected to physical and psychological violence by police authorities while held incommunicado at DINCOTE, and by naval personnel, in an attempt to get him to incriminate himself. He was not held incommunicado in order to prevent the obstruction of the investigation of the facts, nor was this an exceptional measure;

b) the fact that Mr. Cantoral-Benavides was held incommunicado “arbitrarily,” and the prison conditions in which he was held, constituted cruel and inhuman treatment that caused him suffering and psychological trauma;

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e) Gladys Benavides-de-Cantoral, Luis Alberto Cantoral-Benavides’ mother, suffered cruel, inhumane and degrading treatment from the Peruvian authorities, and alluded to the “pain, humiliation, helplessness, uncertainty and frustration she felt as a result of the deceit and mistreatment” she was subjected to when she asked about her detained sons and when she visited them in jail. She also stated that Luis Fernando Cantoral-Benavides, Luis Alberto Cantoral-Benavides’ brother, was also subjected to torture and cruel, inhuman and degrading treatment by the Peruvian authorities. As a consequence, the Commission asked the Court to declare that Article 5(1) and 5(2) of the Convention, as they relate to Article 1(1) of same, had been violated to the detriment of Mrs. Benavides-de-Cantoral and Mr. Luis Fernando Cantoral-Benavides.

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81. The file of the proceeding before this Court reveals that Mr. Cantoral-Benavides was held incommunicado for the first eight days of his detention (supra para. 63.e).

82. Under international human rights law it has been established that people are to be held incommunicado during detention only in exceptional situations, and that to do so may constitute an act contrary to human dignity.

83. Dating back to its earliest judgments, this Court has established that

Prolonged isolation and being held incommunicado constitute, in themselves, forms of cruel and inhuman treatment, harmful to the mental and moral integrity of the person and to the right of all detainees of respect for the inherent dignity of the human being.

84. In the Suárez-Rosero case (1997), the Court spoke out again on holding a person incommunicado, stating that same can only be decreed as an exceptional measure, since it can cause the detainee to suffer extreme psychological and moral injury. The Court has said that

[O]ne of the reasons why holding a person incommunicado is viewed as an exceptional instrument is because of the serious impact it has on the detainee. Isolation from the outside world causes any person to suffer moral and psychological trauma, making him/her particularly vulnerable and increasing the risk of aggression and arbitrariness in jails.

85. As regards prison conditions, the Court accepts as proven the fact that Mr. Cantoral-Benavides was held in strict isolation for one year, in a crowded cell with other prisoners, without ventilation or natural light, and that he was permitted to receive few visitors (supra para. 63.k). Also, the evidence presented clearly reveals that the medical attention given to the victim was very deficient (supra para. 63.g). Also, it has been established in this same judgment that 20 days after being incarcerated, when he had not yet been tried, much less convicted, Mr. Cantoral-Benavides was paraded before the media, dressed in defamatory clothes, along with other prisoners, as the perpetrator of the crime of treason against the fatherland (supra para. 63.i).

86. The United Nations Human Rights Committee (hereinafter the “Human Rights Committee”) has held that the detention of a prisoner with other persons, in conditions that pose a threat to his/her health, constitutes a violation of Article 7 of the International Covenant on Civil and Political Rights.

87. The Inter-American Court has stated that

all persons detained have the right to live in prison conditions that are in keeping with personal dignity, and the State must guarantee their right to life and personal integrity. Consequently, the State, which is responsible for detention facilities, is the guarantor of these rights of detainees.

88. In the provisional measures related to the case of Mrs. María Elena Loayza-Tamayo, who was tried at the same time as Mr. Cantoral-Benavides for the crimes of treason against the fatherland and terrorism, this Tribunal concluded that the prison conditions for persons accused of such crimes did not comply with the provisions of the American Convention, and ordered the State

to modify the conditions in which Maria Elena Loayza-Tamayo was being held, especially as regards her isolation in cell(s), for the purpose of bringing such conditions into line with the provisions of Article 5 of the American Convention [?].

Also, it ordered the State to provide the prisoner with medical attention, both physical and psychological, as soon as possible.

89. The Court has established that

Holding a person incommunicado, public exhibition in defamatory clothing before the media, isolation in a small cell, without ventilation or natural light, [?] restriction of visiting rights [?], constitute forms of cruel, inhuman and degrading treatment, as per Article 5(2) of the American Convention.

90. Also, the Court, for its part, has reiterated that “a person illegally detained [?] is in a situation of heightened vulnerability in which there is a high risk of his/her rights being violated, such as the right to physical integrity and to be treated with dignity.”

91. There are sufficient reasons to assert that, in addition to being held incommunicado, and having been subjected to very hostile and restrictive prison conditions, Mr. Cantoral-Benavides was on several occasions beaten and physically mistreated in other ways, and that this caused him severe bodily injury and emotional suffering (supra–para. 43.a. and 63.f. and j.).

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93. The Courts deems it pertinent to consider the facts that make up the present case in the context of the practices prevailing at the time in Peruvis-à-vis persons accused of the crimes of treason against the fatherland and terrorism.

94. When adopting the judgment on merits in the Loayza-Tamayo case (1997), whose evidence was incorporated into the file of the present case (supra para. 38), the Court affirmed that

During the time Mrs. María Elena Loayza-Tamayo was detained, cruel, inhuman and degrading treatment during criminal investigations into the crimes of treason against the fatherland and terrorism was common practice in Peru [?].

95. The Court must now determine whether the facts referred to above constitute torture, cruel, inhuman and degrading treatment, or both, in violation of Article 5(2) of the American Convention. It must be clearly understood that, regardless of the nature of the acts referred to, they are strictly prohibited under international human rights law. To this end, the European Court of Human Rights has noted, in reference to Article 3 of the  European Convention  on Human Rights, that same

strictly prohibits torture and inhuman or degrading punishment or treatment regardless of what the victim has done. Article 3 provides for no exceptions, in contrast with most of the principles of the Convention [?] and [?] does not permit derogation even in the case of a public danger which threatens the life of the nation.

The aforementioned Tribunal has specified, on repeated occasions that said prohibition applies even in the most difficult of circumstances for the State, such as those involving aggression by terrorist groups or large-scale organized crime.

96. Along the same lines, the Inter-American Court has warned that the fact that a State is confronted with terrorism should not lead to restrictions on the protection of the physical integrity of the person. Specifically, the Court has stated that

[A]ny use of force that is not strictly necessary, given the behavior of the person detained, constitutes an affront to human dignity [?] in violation of Article 5 of the American Convention. The need to conduct investigations and the undeniable difficulties inherent to combating terrorism are not grounds for placing restrictions on the protection of the physical integrity of the person.

97. The European Court has underscored that fact that one of the elements considered in defining torture in Article 1 of the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  is the intentional infliction of physical or mental pain or suffering for certain purposes, such as obtaining information from a person, or intimidating or punishing him/her.

98. The Inter-American Convention Against Torture, in Article 2, defines torture as

any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

And adds:

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

99. The European Court has pointed out recently that certain acts that were classified in the past as inhuman or degrading treatment, but not as torture, may be classified differently in the future, that is, as torture, since the growing demand for the protection of fundamental rights and freedoms must be accompanied by a more vigorous response in dealing with infractions of the basic values of democratic societies.

100. It should be pointed out that, according to international standards for protection, torture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim.

101. Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Inter-American Convention on the same subject, make reference to this possibility. Also, by institutionalizing the right to personal integrity, the latter of these two international instruments makes explicit reference to respect for the psychological and moral integrity of the person.

102. International jurisprudence has been developing the notion of psychological torture. The European Court of Human Rights has established that the mere possibility of the commission of one of the acts prohibited in Article 3 of the European Convention is sufficient to consider that said article has been violated, although the risk must be real and imminent. In line with this, to threaten someone with torture may constitute, in certain circumstances, at least “inhuman treatment.”“That same Tribunal has decided that, for purposes of determining whether Article 3 of the European Convention on Human Rights has been violated, not only physical suffering, but also moral anguish, must be considered. Having examined communications received from individuals, the United Nations Human Rights Committee has classified the threat of serious physical injury as a form of “psychological torture.”

103. The above leads to the conclusion that a true international system prohibiting all forms of torture has been put in place.

104. Considering the circumstances of the case, and the context in which the facts took place, this Tribunal considers, beyond a reasonable doubt, that at least some of the acts of aggression examined in this case can be classified as physical and psychological torture. The Court also considers that said acts were planned and inflicted deliberately upon Mr. Cantoral-Benavides for at least two purposes. Prior to his conviction, the purpose was to wear down his psychological resistance and force him to incriminate himself or to confess to certain illegal activities. After he was convicted, the purpose was to subject him to other types of punishment, in addition to imprisonment.

105. As regards the alleged violation of Article 5(1) and 5(2) of the Convention vis-à-vis the relatives of Mr. Cantoral-Benavides, the Court recognizes that the situation Mrs. Gladys Benavides-de-Cantoral and Mr. Luis Fernando Cantoral-Benavides, mother and brother of the victim, respectively, went through as a result of his detention and imprisonment caused them severe suffering and anguish, but the Tribunal will assess same when setting necessary reparations for proven violations of the American Convention.

106. Given the above, the Court concludes that the State violated, to the detriment of Mr. Luis Alberto Cantoral-Benavides, Article 5(1) And 5(2) of the American Convention.

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Comment

Here the Court found that, regardless of whether the acts suffered by Mr. Cantoral-Benavides constituted torture, cruel, inhuman and degrading treatment, or both, they were strictly prohibited under international human rights law and added, referring to decisions of the Human Rights Committee and the European Court, that ‘according to international standards for protection, torture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim.’ The Court found that some of the acts of aggression examined in the case could be classified as physical and psychological torture. The Court also considered that the acts were planned and inflicted deliberately upon Mr. Cantoral-Benavides for the purpose of wearing down his psychological resistance and forcing him to incriminate himself.

A recent case contending with torture is Urrutia v. Guatemala (Series C No.103, Judgement of 27 November 2003) where the Inter-American Court discussed, inter alia,physical ill-treatment that amounted to torture as well as mental violence that constituted cruel and inhuman treatment:

85. With regard to the treatment that the State officials afforded to Maritza Urrutia while she was unlawfully and arbitrarily detained, the Court has considered proven that the alleged victim’s head was covered by a hood, she was kept handcuffed to a bed, in a room with the light on and the radio at full volume, which prevented her from sleeping. In addition, she was subjected to very prolonged interrogations, during which she was shown photographs of individuals who showed signs of torture or had been killed in combat and she was threatened that she would be found by her family in the same way. The State agents also threatened to torture her physically or to kill her or members of her family if she did not collaborate. To this end, they showed her photographs of herself and her family and correspondence from her to her former husband (supra para. 58.6). Lastly, Maritza Urrutia was obliged to film a video, which was subsequently broadcast by two Guatemalan television channels, in which she made a statement against her will, the contents of which she was forced to ratify at a press conference held after her release [?].

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87. On other occasions, the Court has established that a “person who is unlawfully detained is in an exacerbated situation of vulnerability creating a real risk that his other rights, such as the right to humane treatment and to be treated with dignity, will be violated.” It has also stated that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and of the right of any detainee to respect for his inherent dignity as a human being.” Solitary confinement produces moral and psychological suffering in the detainee, placing him in a particularly vulnerable position. The Court has also indicated that even if the unlawful detention has only lasted a short time, it is sufficient to constitute a violation of physical and moral integrity according to the standards of international human rights law, and that, in the presence of these circumstances, it is possible to infer, even when there is no other evidence in this respect, that the treatment received during solitary confinement is inhuman and degrading.

88. In view of the foregoing, the Court considers that the unlawful and arbitrary deprivation of freedom of Maritza Urrutia, subjecting her to the above-mentioned detention conditions, constitutes cruel and inhuman treatment and, consequently, the State violated Article 5(2) of the American Convention to her detriment.

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91. The Court also underscores that, the elements of the concept of torture established in Article 2 of the Inter-American Convention against Torture include methods to obliterate the personality of the victim in order to attain certain objectives, such as obtaining information from a person; or intimidation or punishment, which may be inflicted through physical violence or through acts that produce severe mental or moral suffering in the victim.

92. An international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and, with regard to the latter, it has been recognized that the threat or real danger of subjecting a person to physical harm produces, under determined circumstances, such a degree of moral anguish that it may be considered“psychological torture.” . The absolute prohibition of torture, in all its forms, is now part of international jus cogens.

93. Likewise, the Court considers that, according to the circumstances of each particular case, some acts of aggression inflicted on a person may be classified as mental torture, particularly acts that have been prepared and carried out deliberately against the victim to eliminate his mental resistance and force him to accuse himself of or confess to certain criminal conducts, or to subject him to other punishments, in addition to the deprivation of freedom itself.

94. In the case sub judice, it has been proved that Maritza Urrutia was subjected to acts of mental violence by being exposed intentionally to a context of intense suffering and anguish, according to the practice that prevailed at that time [?]. The Court also considers that the acts alleged in this case were prepared and inflicted deliberately to obliterate the victim’s personality and demoralize her, which constitutes a form of mental torture, in violation of Article 5(1) and 5(2) of the Convention to the detriment of Maritza Urrutia.

A specific issue much dealt with in the Americas is the phenomenon of enforced disappearances. The Inter-American Commission has found in the many cases it has received regarding this issue that disappearances, even of a temporary nature, are cruel and inhuman, although it has seldom had proof of actual inhuman treatment due to the special nature of the disappearance phenomenon. In one of its landmark cases, theVelásquez Rodriguez case (abstracted under the right to life, Disappearances and extra judicial executions ), the Inter-American Court discussed the disappearance phenomenon and found that the disappearance of the victim constituted a violation of human dignity. The Court found that evidence from disappearance victims who have been set free shows that they have often been subjected to ‘merciless treatment including torture and other cruel, inhuman and degrading treatment in violation of the right to physical integrity’. The Court furthermore stated that ‘prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being’, and found that the act of kidnapping and detention by governmental authorities, who have been shown to subject detainees to indignities, cruelty and torture, constituted a failure to ensure the rights to physical integrity and freedom from torture and ill-treatment. See also Suárez Rosero v. Ecuador  , Series C No. 35, Judgement 12 November 1997 which was the first case to deal with this issue systematically and Godines Cruz v. Honduras, Series C No. 5, Judgement of 20 January 1989.

As to what constitutes torture and ill-treatment the African Commission has found on several occasions that the right to freedom from torture has been violated, often without defining which of the acts constituted the torture per se. When defining cruel, inhuman and degrading treatment the Commission has found that it includes, in addition to treatment that causes serious physical or psychological suffering, treatment that humiliates the individual or forces him or her to act against his or her will or conscience. The Commission has also found that keeping a person in leg irons without justification and subjecting him/her to ill-treatment including beatings and subsequently denying him/her medical treatment as well as keeping him/her in an airless and dirty cell amounted to a violation under the African Charter . This case is also analysed under the right to life, The duty to provide minimum conditions for a dignified life . 

International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria    

African Commission on Human and Peoples’ Rights

Communications Nos. 137/94, 139/94, 154/96 and 161/97

Twelfth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1998-1999 Annex V

Keywords: life – torture - arbitrary arrest or detention - death penalty - execution, while case pending before African Commission – health - fair hearing

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Facts as submitted by the authors:

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2. The communications 137/94 and 139/94 were submitted in 1994 before any trial began. After the murder of four Ogoni leaders on 21 May 1994, following riot during a public meeting organised by Movement for the Survival of the Ogoni Peoples (MOSOP) representing the rights of those who lived in oil producing areas of Ogoni land, Saro-Wiwa and many hundreds of others were arrested, Saro-Wiwa himself on 22 May 1994 and the vice-president of MOSOP, Ledum Mitee, shortly thereafter. Both communications allege that Mr Saro-Wiwa was severely beaten during the first days of his detention and was held for several days in leg irons and handcuffs. He was also denied access to his lawyer and the medicine he needed to control his blood pressure, at times prevented from seeing his family, and held in very poor conditions.

3. In its communication, submitted on 9 September 1994, the Constitutional Rights Project included a list of 16 other Ogonis who had been held without charge or bail for what was at that time over three months. Both communications alleged that Mr. Saro-Wiwa had been detained because of his political work in relation to MOSOP. He had been detained five times for brief periods since the beginning of 1993, and released each time without charge, except on one occasion in mid-1993 where he was held for several weeks and charged with unlawful assembly.

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7. On 30 and 31 October 1995, Ken Saro-Wiwa and eight of the co-defendants [?] were sentenced to death, while six others including Mr. Mitee were acquitted. The CRP submitted an emergency supplement to its communication on 2 November 1995, asking the Commission to adopt provisional measures to prevent the executions.

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11. In 1996 the Secretariat received a communication from Interights representing Ken Saro-Wiwa Jr. It alleged that the condemned persons had been detained arbitrarily prior to and during the trial and that they had been subjected to torture in the Army camp. Furthermore it alleged serious irregularities concerning the conduct of the trial: that the tribunals that convicted the accused persons were not independent; that there was no presumption of innocence; that the accused persons had not been given time or facilities in which to prepare their defence; that they had been denied legal representation by a counsel of their choice; that there was no right of appeal and that following the sentencing the persons were held incommunicado. Interights asserted that they were tried, convicted and sentenced to death for the peaceful expression of their views and opinions on the violations of the rights of the Ogoni people.

The Complaint:

13. The Communications allege violation of Articles 1, 4, 5, 7, 9, 10, 11, 16 and 26 of the African Charter.

The State Response and Observations:

14. The government argues that its actions were necessary to protect the rights of the citizens who had been murdered; that the tribunal which tried Saro-Wiwa was competent because two of its three members were lawyers; that the process of confirmation by a state government was an adequate appeal; that the Civil Disturbances Decree had not been protested upon its enactment in 1987 and that it had been set up to deal with a crisis situation.

Procedure before the Commission:

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19. On 9 November 1994, a notification of the two communications was sent to the Nigerian Government and Rule 109 of the Rules of Procedure was invoked, requesting the Nigerian Government not to cause irreparable prejudice to Mr. Saro-Wiwa.

20. On 6 February 1995 a letter was received from International Pen stating that Mr. Saro-Wiwa was being ill-treated and that he was facing the death penalty.

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Merits

79. Article 5 prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience.

80. International PEN alleges that Ken Saro-Wiwa was kept in leg irons and handcuffs and subjected to ill-treatment including beatings and being held in cells which were airless and dirty, then denied medical attention, during the first days of his arrest. There was no evidence of any violent action on his part or escape attempts that would justify holding him in irons. Communication 154/96 alleges that all the victims were manacled in their cells, beaten and chained to the walls in their cells.

81. The government has made no written submission in these cases, and has not refuted these allegations in its oral presentation. It is well-established jurisprudence of the Commission that where allegations go entirely unchallenged, it will proceed to decide on the facts presented (See, e.g., the Commission’s decisions in communications 59/91, 60/91, 64/91, 87/93 and 101/93). Thus, the Commission holds a violation of Article 5 of the Charter.

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FOR THE ABOVE REASONS, THE COMMISSION

decides that there has been a violation of Articles 5 and 16 in relation to Ken Saro-Wiwa’s detention in 1993 and his treatment in detention in 1994 and 1995;

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Comment

Article 5 of the ACHPR  protects the ‘dignity inherent in the human being’ and prohibits slavery, torture and cruel, inhuman or degrading treatment as examples of affronts to human dignity. Like other bodies the Commission has been, perhaps, deliberately vague in defining what actions constitute torture or violate human dignity. In cases where allegations of violations go uncontested by the state, the Commission has developed the principle of treating those facts as given. ‘This principle conforms with the practice of other international human rights adjudicatory bodies and the Commission’s duty to protect human rights’. It has therefore, in several cases, found that violations of Article 5 have taken place without defining what actions or treatment amounted to the violation (see, for instance, Commission Nationale des Droits de l’Homme et des Libertés v. Chad , Communication No. 74/92, Ninth Activity Report 1995-1996, Annex VIII).

In the case of Saro-Wiwa (abstracted in the right to life  ), the African Commission found concrete situations and actions in violation of Article 5. It also set out that in addition to actions that cause serious physical or psychological suffering, actions that humiliate the individual or force him or her to act against his will or conscience can amount to violations of the right to human dignity. The Commission has also found that certain conditions in prisons violated the right to human dignity (see Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa v. Malawi  , Communication 64/92, Seventh Activity Report 1993-1994, Annex IX discussed below).

Article 5 of the African Charter provides as follows:

“? All forms of ? torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

The conditions of overcrowding and acts of beating and torture that took place in prisons in Malawi contravened this article. Aspects of the treatment of Vera and Orton Chirwa such as excessive solitary confinement, shackling within a cell, extremely poor quality food and denial of access to adequate medical care, were also in contravention of this article.

Similarly, in the following case, the Commission found that certain conditions violated human dignity.

Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania 

African Commission on Human and Peoples’ Rights

Communication Nos. 54/91, 61/91, 98/93, 194/97, 196/97, 210/98

Keywords: human dignity - non-discrimination - prohibition of discrimination on the ground of race – slavery - solitary confinement - political prisoners

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Summary of facts:

1. These communications relate to the situation prevailing in Mauritania between 1986 and 1992. [?].

2. Following a coup d’état that took place in 1984 [?] the government was criticised by members of the Black ethnic groups for marginalising Black Mauritanians. It was also criticised by a group of Beidanes who favoured closer ties with the Arab world.

3. Communication 61/91 alleges that in early September 1986, over 30 persons were arrested in the aftermath of the distribution of a document entitled “Le Manifeste des negro - mauritaniens opprimés” (Manifesto of the Oppressed Black Mauritanians). The document provided evidence of the racial discrimination to which the Black Mauritanians were subjected and demanded the opening of a dialogue with the government. Twenty-one persons were found guilty of holding unauthorised meetings and pasting and distributing publications that were injurious to the national interest, and of engaging in racial and ethnic propaganda. They were convicted and imprisoned, after series of trials that took place in September and October 1986. [?]. The accused were thus found guilty on the basis of statements made to the police during their time in custody. They however pointed out to the tribunal that some of these statements had been given under duress. The sentences ranged from six months to five years imprisonment with fines, and five – ten years of house arrest.

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5. In September 1986, another trial against Captain Abdoulaye Kébé took place [?]. He was held in solitary confinement before his trial, with no access to lawyers, and did not have sufficient time to prepare his defence. He was sentenced to two years imprisonment and twelve years house arrest.

6. In October 1986, a third trial relating to the Manifesto was brought against 15 persons. They were charged with belonging to a secret movement, holding unauthorised meetings and distributing tracts. Three of them were given suspended sentences and the others acquitted.

7. After the 1986 trial, there were protests against the conviction of the authors of the Manifesto. These brought about further arrests and trials.

8. In March 1987, 18 persons were charged before a criminal court for arson. They were not allowed family visits during the five months that their detention lasted. [?] Most of the detainees were beaten during their detention. After the trial, nine accused were found guilty and sentenced to prison terms ranging from four to five years. The evidence was based almost exclusively on statements made to the police during their time in custody. They tried in court to retract these statements, arguing that they had been given under duress. [?].

9. At the end of April 1987, six persons were charged with distribution of tracts. Just before their trial, arson charges were added to the list of offences with which they were being accused. The lawyers, once again, did not have sufficient time to prepare the defence of their clients. All of the accused were found guilty by the court and sentenced to four years imprisonment. The Supreme Court later confirmed the sentences, regardless of the irregularities that occurred during the course of the trial.

10. On 28 October 1987, the Mauritanian Minister of Interior announced the discovery of a plot against the government. [?] Over 50 persons were tried for conspiracy by the special tribunal presided by a senior army officer who was not known to have a legal training. [?]. The accused were kept in solitary confinement in military camps, deprived of sleep during their interrogation. [?] Those who were convicted on 3 December 1987 did not have the right to file appeal. Three lieutenants were sentenced to death and executed three days after. The executions were said to have been stretched out in a manner as to subject the convicts to a slow and cruel death. To put an end to their suffering, they had to provoke the executioners to kill them as quickly as possible. [?]

11. Some presumed members of the Ba’ath Arab Socialist Party were also imprisoned for political cause. [?] Thirteen of them were found guilty, mainly on the basis of statements that they sought to withdraw during the trial, on the basis that they had been made under duress. The accused were held in solitary confinement in a police camp and did not have the right to consult their lawyers until three or four days before the trial. [?]

12. Communication 61/91 also alleges that their conditions of detention were the worst and cites many examples to prove these allegations. Thus, from December 1987 to September 1988 those detained at Ouatala prison only received a small amount of rice per day, without any meat or salt. Some of them had to eat leaves and grass. The prisoners were forced to carry out very hard labour day and night, they were chained up in pairs in windowless cells. They only received one set of clothes and lived in very bad conditions of hygiene. As from February 1988, they were regularly beaten by their guards. From the time of their arrival in the detention camp, they only received one visit. Only the guards and prison authorities were authorised to approach them. Between August and September 1988, four prisoners died of malnutrition and lack of medical attention. [?]. Some of them were so weak that they could only move on all fours. In the Nouakchott prisons, the cells were overcrowded. The prisoners slept on the floor without any blankets, even during the cold season. The cells were infested with lice, bedbugs and cockroaches, and nothing was done to ensure hygiene and provision of health care. The Black prisoners, from the South of the country, complained of discrimination by the guards and security forces [?]. They could not receive visits from their families, doctors or lawyers, except when the Ba’ath party supporters, all of them Beidanes, were in the same prison.

19. A curfew was imposed on all villages in the South. Anyone who broke it was shot at sight, even if there was not proof that they were engaged in acts that endangered the lives of other inhabitants. Communication 61/81 mentions a specific case where the victims were arrested, tied up, and taken to a location where they were executed. According to the complainants, the army, security forces and Haratines enjoy total impunity. Many villagers who were not expelled had to flee in order to escape the massacres.

20. Whenever the villagers protested, they were beaten and forced to flee to Senegal or simply killed. Many villagers were arrested and tortured. A common form of torture was known as “Jaguar”. The victim’s wrists are tied to his feet. He is then suspended from a bar and thus kept upside down, sometimes over a fire, and is beaten on the soles of his feet. Other methods of torture involved beating the victims, burning them with cigarette stubs or with a hot metal. As for the women, they were simply raped.

21. In September 1990, a wave of arrests took place, ending between November and December 1990. Thousands of people were arrested. These were essentially Hal-Pulaar members of the armed forces or civil servants. All those arrested were from the South of the country. Later, the authorities alleged that there had been an attempt to unseat the government; but no proof was ever given. The accused were never put on trial, but were kept in what communication 96/93 describes as “death camps”, in extremely harsh conditions.

22. Communication 61/91 contains a list of 339 persons believed to have died in detention. Some detainees were said to have been executed without trial. Thirty-three soldiers were hung, without trial, on 27 and 28 November 1990. Others were buried in sand to their necks and left to die a slow death. Many however died as a result of the torture they underwent. The methods used include the so-called ‘Jaguar’ mentioned above, electric shocks to the genital organs, as well as burns all over their bodies.

23. In February 1991, detainees in the J’Reida military camp were undressed, hands tied behind their backs, sprayed with cold water and beaten with iron bars. The ‘Jaguar’ torture was also utilised. The detainees were burned with coal embers, or they had some powder spread on their eyes, causing a terrible burning sensation. Their heads were plunged in dirty water to the point of suffocation; some were buried in sand to their necks. They were permanently chained in their cells, without toilet facilities. Some were kept in underground cells or dark cells where it got very cold at night.

24. In March 1991, the government announced the release of a number of political prisoners who had been convicted, as well as of other persons detained since November and December 1990. In April, other detainees were released, and President Maaouya Ould Taya announced that all those arrested had been released. However, there was never any response to the reports referring to people who had been killed in detention. Nor on the unknown fate of many detainees. Communication 61/91 provides a list of 142 peoples whose deaths are confirmed and another 197 who were not released and are probably dead.

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33. At the end of the hearings, the Commission held the view that the government did not seriously contest the allegations brought against it. The Mauritanian delegate admitted that human rights violations had indeed been committed. He did not try to explain the circumstances in which they had taken place. He requested the Commission to give its assistance in finding a solution to the problem. He further added that his government was ready to receive a delegation from the Commission to that end. Following this, the Commission reiterated its decision to send a mission to Mauritania to try and obtain an amicable settlement. It was also decided that the mission would be composed of the Chairman of the Commission and Commissioners Rezag-Bara and Ondziel-Gnelenga, as well as the Secretary to the Commission.

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MERITS:

115. Article 5 of the African Charter prohibits torture, cruel, inhuman or degrading punishment and treatment. This article also stipulates that “Every individual shall have the right to the respect of the dignity inherent in a human being”. All the communications detail instances of torture, and cruel, inhuman and degrading treatments. During their time in custody, the detainees were beaten (para 8), they were forced to make statements (paras 8 and 11), and they were denied the opportunity of sleeping (para 10). Both during the trial as well as the period of arbitrary detention, some of the prisoners were held in solitary confinement (paras. 5, 8, 10, 11 and 12).

116. The conditions of detention were, at the very least, bad. The prisoners were not fed; they were kept in chains, locked up in overpopulated cells lacking in hygiene and access to medical care (para. 12). They were burnt and buried in sand and left to die a slow death. Electrical shocks were administered to their genital organs and they had weights tied on to them. Their heads were plunged into water to the point of provoking suffocation; pepper was smeared on their eyes and some were permanently kept in small, dark or underground cells which got very cold at night (para 23).

117. Both within and outside the prisons, the so-called “Jaguar” position was the form of torture utilised, (see paras 20 and 22). The prisoners were beaten (paras 12 and 20) and their bodies burnt using various instruments (paras 20 and 22). The women were raped (para 20).

118. The government did not produce any argument to counter these facts. Taken together or in isolation, these acts are proof of widespread utilisation of torture and of cruel, inhuman and degrading forms of treatment and constitute a violation of article 5. The fact that prisoners were left to die slow deaths (para 10) equally constitutes cruel, inhuman and degrading forms of treatment prohibited by article 5 of the Charter.

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132. Article 5 of the Charter states that:

All forms of exploitation and degradation of man particularly slavery ? shall be prohibited.

133. Communications 54/91 and 98/93 allege that a majority of the Mauritanian population is composed of slaves. The government states that slavery had been abolished under the French colonial regime. The communications also allege that freed slaves maintain traditional and close links with their former masters and that this constitutes another form of exploitation.

134. During its mission to Mauritania in June 1996, the Commission’s delegation noted that it was still possible to find people considered as slaves in certain parts of the country. Though Edict Nº 81-234 of 9 November had officially abolished slavery in Mauritania, it was not followed by effective measures aimed at the eradication of the practice. This is why, in many cases, the descendants of slaves find themselves in the service of the masters, without any remuneration. This is due either to the lack of alternative opportunities or because they had not understood that they had been freed of all forms of servitude for many years. From all appearances, some freed slaves chose to return to their former masters. From the Commission’s point of view, the State has the responsibility to ensure the effective application of the Edict and thus ensure the freedom of its citizens, to carry our inquiries and initiate judicial action against the perpetrators of violations of the national legislation.

135. Independently from the justification given, by the defendant State, the Commission considers, in line with the provisions of article 23,3 of the  Universal Declaration of Human Rights,  that everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. These provisions are complemented by those of article 7 of the International Covenant on Economic, Social and Cultural Rights  . In view of the foregoing, the Commission deems that there was a violation of article 5 of the Charter due to practices analogous to slavery, and emphasises that unremunerated work is tantamount to a violation of the right to respect for the dignity inherent in the human being. It furthermore considers that the conditions to which the descendants of slaves are subjected clearly constitute exploitation and degradation of man; both practices condemned by the African Charter. However, the African Commission cannot conclude that there is a practice of slavery based on these evidences before it.

Comment

This case describes forms of treatment and conditions that amount to a violation of Article 5 of the African Charter. In addition it also deals with ‘practices analogous to slavery’ and conditions of exploitation of man but the prohibition of slavery is uniquely stipulated under the provision setting out the right to human dignity in the African Charter. The Commission’s findings are not clear as it states that a fact-finding mission had found that it ‘it was still possible to find people considered as slaves in certain parts of the country’ but in its decision it states that it could not ‘conclude that there is a practice of slavery based on these evidences before it’. The Commission did however find that certain conditions amounted to exploitation and degradation of man.