Grand Chamber limits the scope of Article 3 for non-state ill-treatment

By Nicole Bürli, Human Rights Advisor of the World Organisation against Torture (OMCT)[1]

On 25 June 2019, coincidently the eve of the international day in support of victims of torture, the Grand Chamber of the European Court of Human Rights limited the scope of Article 3 ECHR. In the case of Nicolae Virgiliu Tănase v. Romania, the Court found that the investigations into a serious traffic accident were compatible with Articles 2, 8 and 6 ECHR and that Article 3 ECHR was not applicable. The latter finding is a change of jurisprudence as the Court stated that Article 3 (procedural limb) ECHR is only applicable to non-state ill-treatment if inflicted intentionally. This is problematic for a number of reasons and the subject of this post.

Facts of the Case

Nicolae Virgiliu Tănase, the applicant in this case, was involved in a serious car accident with two other drivers in December 2004. The accident left him with life threatening injuries and a physical disability. The competent authorities initiated a criminal investigation against the applicant and the other two individuals involved. All investigations were eventually terminated in 2012 on the ground that not all the constituent elements of an offence were present. The applicant unsuccessfully appealed the prosecutor’s decision to drop the inquiry into the criminal responsibility of one of the drivers. Subsequently, the applicant submitted a complaint to the European Court alleging that the investigation carried out by the domestic authorities into the circumstances of his car accident were inadequate.

The Court’s judgment

The Grand Chamber first assessed the applicability of Article 3 (procedural limb). It argued that the Convention “requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals” (para. 115). The Court then reasoned that such treatment must attain a minimum level of severity in order to fall within the scope of Article 3. Factors that the Court considers when determining the severity include the purpose of the ill-treatment, the intention behind it, the context in which the ill-treatment was inflicted (e.g. the vulnerability of the victim), actual bodily injury or intense physical or mental suffering, lack of respect, or arousal of fear, anguish or inferiority. By referring to some of its previous case-law but without real substantiation, the Court argued that all these factors presuppose that the treatment was the consequence of an intentional act. The Court thereafter concludes that “bodily injuries and physical and mental suffering experienced by an individual following an accident which is merely the result of chance or negligent conduct cannot be considered as the consequence of “treatment” to which that individual has been “subjected” within the meaning of Article 3” (para. 123). The Court thus found the complaints under Article 3 incompatible ratione materiae.

Turning to the applicability of Article 8 ECHR, the Court stated that there is a positive obligation of the state to maintain and apply in practice an adequate legal framework to protect against acts of violence by private individuals. Although the applicant was seriously injured as a result of an accident, he voluntarily engaged in driving a vehicle on a public road. The state has minimized the risk of traffic accidents by relevant regulations. The Court again used the criteria of intention by stating that the “accident did not occur as a result of an act of violence that intended to cause harm” (para. 130). Consequently, the complaint under Article 8 was considered incompatible ratione materiae.

Subsequently, the Court considered the applicability of Article 2 ECHR. It stated that Article 2 contains a positive obligation to put in place a legislative and administrative framework to provide effective deterrent against threats to the right to life. This positive obligation also exists in cases in which the victim did not die if the activity in question put the victim’s life at real and imminent risk or if the victim suffered injuries that appear life-threatening. Since the applicant in the case under consideration suffered life-threatening injuries, the Court found Article 2 applicable. However, it found that Article 2 was not violated. The Court reasoned that the criminal investigation into the accident was effective since the authorities immediately instigated a criminal investigation, collected evidence from the persons involved and since the applicant had access to the case files and was able to challenge the independence and impartiality of the relevant authorities. Furthermore, the authorities’ decision to discontinue the proceedings did not seem to have been taken hastily or arbitrarily but followed years of investigative work.

Comments

While this judgment touches upon a variety of interesting issues, this comment focuses on the Court’s finding that only intentional non-state acts can fall within the scope of Article 3. With the introduction of this new criteria, the case of Nicolae Virgiliu Tănase v. Romania joins the ranks of problematic decisions on cases originating from non-state ill-treatment or killings (See e.g. critics on such judgments here or here).

From the reasoning it is not entirely clear why the Court introduced the intention requirement to the procedural limb of Article 3 and how it will apply this in future cases. As has also been pointed out by Judge Kūris in his dissenting opinion (paras. 41–50), the Grand Chamber’s substantiation remains rather obscure:

(i) the Court first lists factors which it considers relevant when determining the severity of the treatment (such as the duration of the treatment, the age and sex of the victim, bodily injury or physical or mental suffering of the victim etc.) and then states that “all these factors presuppose that the treatment to which the victim was “subjected” was the consequence of an intentional act.” (para. 121) It is difficult to understand how and why the duration of the treatment or the age of the victim “presuppose” intention.

(ii) The Grand Chamber also states that suffering resulting from chance or negligence “cannot be considered as the consequence of “treatment” […] within the meaning of Article 3” (para. 123). Neither the Court’s previous interpretation nor the common definition of the word “treatment” suggest such a conclusion. Quite the contrary, the Court routinely finds prison conditions (e.g. overcrowding and lack of personal space etc.) to amount to inhuman or degrading treatment that typically result from unintentional acts. Other human rights instruments, most notably the Convention and Committee against Torture, have consistently considered unintentional private as well as public acts to amount to inhuman or degrading treatment. The Convention against Torture, for instance, explicitly refers to acts committed through acquiescence (Article 1 and 16 ECHR).

(iii) Moreover, the Court also lists a series of previous judgments in which a non-deliberate treatment (neglect or an accident) was considered contrary to Article 3 (para. 120) but does not reveal why it has decided to no longer follow this case-law.

(iv) Similarly, the Court stated several times that “the absence of any intention to harm, humiliate or debase a person cannot conclusively rule out a finding of a violation of Article 3” (para. 122). Nevertheless, the Court concludes in rather absolute terms that “negligent conduct cannot be considered as the consequence of “treatment” to which that individual has been “subjected” within the meaning of Article 3” (para. 123). It thus remains unclear whether there are cases or exceptions in which unintentional ill-treatment could still fall under Article 3 or whether this is a reference to previous case-law from which the Court has now departed.

(v) Finally, there are several indications in the judgment that the Court understands the new intention requirement to apply to non-state ill-treatment under the procedural limb of Article 3 only. However, because of the Grand Chamber’s careless and absolute formulation, it is to be feared that the intention requirement also applies to ill-treatment by public authorities and/or to ill-treatment considered under the substantial limb of Article 3.

The Court’s judgment is not only problematic because of the unclear reasoning that leaves many questions unanswered but also because it introduces the intention requirement in a seemingly arbitrary manner incompatible with the Court’s previous jurisprudence and other international law.

The requirement of intention is used by most international human rights bodies to distinguish between torture on the one hand and cruel, inhuman, or degrading treatment on the other hand. For instance, torture under the UN Convention against Torture (CAT Convention) “means any act by which severe pain or suffering, […] is intentionally inflicted […]”. Cruel, inhuman, or degrading treatment on the other hand, as defined in Article 16 of the CAT Convention, does not require intention.[2] This has also been the approach by the UN Human Rights Committee.

In the European Court’s jurisprudence intention is not a criterion that distinguishes torture from other forms of ill-treatment. Although, there are cases in which the Court explicitly referred to the definition in the CAT Convention and found a situation to amount to torture because severe pain and suffering was intentionally inflicted (e.g. in the case of Dikme v. Turkey), the Court rather uses the level of severity of the pain and suffering as the only requirement to determine whether a victim suffered torture, inhuman treatment or degrading treatment. Intention has thus never played a role in Article 3 determinations, neither for ill-treatment inflicted by public officials, nor for ill-treatment by non-state actors (e.g. Kraulaidis v. Lithuania or Mažukna v. Lithuania). It is therefore at odds with the Courts previous jurisprudence as well as other international law to introduce intention as a requirement under Article but not as a definitional element for torture but for private acts of torture and other ill-treatment.

It is important to point out, that intention was also a decisive criterion in the Court’s Article 8 assessment. The Court stated that “the accident did not occur as the result of an act of violence intended to cause harm to the applicant’s physical and psychological integrity” (para. 130). The reference to violence and intention are difficult to understand against the background of previous case law. One might think of cases like Georgel and Georgeta Stoicescu v. Romania in which the applicant was attacked by stray dogs (an accident and not an intentional act) for which the government was held responsible under Article 8; or the environmental cases (e.g. Lopez Ostra v. Spain) in which non-violent acts but environmental hazards such as noise, smell or pollution were found detrimental to an applicant’s physical integrity. Having said this, the Grand Chamber does seem to leave room for non-violent and non-intentional situations that are “assimilated to any other types of situations where the Court has previously found the State’s positive obligation to protect physical and psychological integrity engaged” (para. 130). Given that Article 8 is often applied to cases that do not reach the severity threshold of Article 3, it is hoped that in future cases intention will not figure as a requirement for physical integrity cases under Article 8.

The manner in which the intention requirement is used as a precondition for Article 3 is also inconsistent with the way Article 2 of the Convention is interpreted and applied. The same event and the same suffering is so seriously life-threatening that it could violate the right to life but does not “attain the minimum level of severity” to be even considered as inhuman or degrading treatment. The Grand Chamber did thus not follow previous considerations according to which “Article 3 must be construed in harmony with Article 2” (Pretty v. the United Kingdom, para. 54).

Furthermore, intention is difficult to assess or even absent in many Article 3 situations such as prison conditions. Staffing shortage, poor hygiene endangering the health and lives of detainees, long periods of pre-trial detention etc. can cause severe pain and suffering that might not have been inflicted intentionally but caused by circumstances outside of the control of the prison administration.

Intention is also difficult to assess or absent when pain and suffering is caused by private individuals as in medical malpractice, accidents at the workplace or child negligence. With regards to the latter one might think of situations in which impoverished and marginalized parents are unable to provide their children with adequate food, shelter or necessary medical treatment without intending to cause severe pain and suffering. Should one not be able to hold the state responsible under Article 3 when it did not set up a system or procedures to guarantee the wellbeing of neglected children or even worse if it contributed to discrimination and lack of access to relevant services? It seems arbitrary that the aforementioned situation would from the outset not fall within the scope of Article 3 because the private perpetrator did not intend any harm but for instance intentional corporal punishment or domestic violence could be considered under ill-treatment. The reasons why pain and suffering were not prevented or addressed might be the very same in all these situations (e.g. discriminatory practices and/or laws against vulnerable and marginalized members of society).

Thus, an Article 3 violation should not depend on the intention of the private perpetrator but rather on the action or inaction of the government that is ultimately responsible under the Convention. This is why other international bodies dealing with torture have adopted the due diligence standard, which is similar to but more rigorous than the Osman test (for a critique of the Osman test and reference to the due diligence standard see e.g. the dissenting opinion of Judge Pinto de Albuquerque in Valiulienė v. Lithuania). Under the CAT Convention, for instance, a state is responsible if its authorities “know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials”. The Inter-American Court similarly said that “the act of a private person […] can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention”.

Without naming it as such, the Court made due diligence considerations under Article 2. The Court, first in general terms, deliberated on elements of the procedural limb of Article 2 which include: an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (para. 157); prompt collection of on-site and other relevant evidence with sufficient thoroughness to secure the evidence (para. 162); completion of proceedings within a reasonable time (para. 167) etc. Applying the general principles to the instant case, the Grand Chamber reasoned that the authorities instigated a criminal investigation, collected evidence (including measurements, blood samples and photographic and medical documents), identified all the drivers involved, took oral evidence from them and from witnesses who were familiar with the event, the applicant was actively involved in the proceedings and was able to challenge the independence and impartiality of the relevant authorities (paras. 180–183). Similar considerations should have been made under Article 3.

 

[1] Views expressed in this post are my own.

[2] See e.g. Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture. A Commentary (OUP 2008), p. 558 who explicitly states that negligent treatment falls under Article 16.

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