Art 3 of the ECHR and institutional care Jan Fiala MDAC (Mental Disability Advocacy Center), Budapest Article 3 of the European Convention on Human Rights: 3. No one shall be subjected to torture or to inhuman and degrading treatment and punishment This presentation talks about Basic standards of Article 3 jurisprudence in other areas Violations of Article 3 in places of detentions: 1. Conditions of detention 2. Specific acts of ill-treatment 3. Not providing the necessary care and accommodation Questions of proof and evidence Article 3 3. No one shall be subjected to torture or to inhuman and degrading treatment and punishment Some definitions (Ireland v. the United Kingdom): Torture: deliberate inhuman treatment causing very serious and cruel suffering Inhuman treatment or punishment: intense physical or mental suffering Degrading treatment or punishment: arouses in the victim feelings of fear, anguish and inferiority capable of humiliation and debasement and possibly breaking physical or moral resistance Torture Special stigma attached Rare – so far not found in connection with people with mental disabilities Some examples: Palestinian hanging (Aksoy v. Turkey); severe forms of beating (Selmouni v. France, Dikme v. Turkey); severe beatings, combined with denial of medical treatment (Ilhan v. Turkey); electric shocks (Akkoc v. Turkey); rape (Aydin v. Turkey); falaka/falanga: beatings on the soles of the feet (Salman v. Turkey, Greek case), Force-feeding (Nevmerzhitsky v. Ukraine) Is every ill-treatment TIDTP? Must attain a minimum level of severity. Relative standard, depends on the circumstances of the case - duration of the treatment, its physical or mental effects, sex, age and state of health of the victim (Ireland v. UK, para. 162) Intention: its absence cannot conclusively rule out a finding of violation The state’s obligations under Article 3: Not to subject people to TIDTP Protect people from TIDTP committed by other individuals Investigate allegations of TIDTP Violations of Article 3 1. Conditions of detention 2. Specific acts of ill-treatment 3. Not providing the necessary care and accommodation 1. Conditions of detention So far no cases concerning psychiatric hospitals or social care homes Violations found in detention centres, police cells, prisons,… Factors in determining inadequate conditions of detention: Overcrowding Lack of sleep Toilets, showers (partitions, accessibility, paper) Cleanness (rooms, sheets, laundry) Food Ventilation Heat, cold Lack of outdoor activities General hygiene, insects, diseases Cumulative effect: “When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant” (Dougoz v. Greece, para. 46) Examples: Labita v. Italy Dougoz v. Greece Peers v. Greece Valasinas v. Lithuania Kalashnikov v. Russia Kehayov v. Bulgaria Nevmerzhitsky v. Ukraine Karalevicius v. Lithuania Overcrowding “…the Court recalls that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (“the CPT”) has set 7 m² per prisoner as an approximate, desirable guideline for a detention cell (see the 2nd General Report - CPT/Inf (92) 3, § 43)” – (Kalashnikov v. Russia, para. 97 – misquoted the CPT!) The resource defence Lack of resources: not a valid excuse for overcrowdedness or poor hygiene There is a duty on states to organise their detention system in such a way as to comply with the requirements of Art 3 In length of detention cases: Mussi v. Italy, Sussmann v. Germany CPT, 2nd general report, para. 44: “Illtreatment can take numerous forms, many of which may not be deliberate but rather the result of organisational failings or inadequate resources.” Article 3 of the European Convention on Human Rights: 3. No one shall be subjected to torture or to inhuman and degrading treatment and punishment 3.2 There shall be no interference with the exercise of this right except if it is too expensive to maintain humane conditions of detention. How does it look in hospitals: Aerts v. Belgium, para. 23: “When we visited the common room the occupants stated that:: there were too many of them; they had nothing to do; they spent all day in the day-room, which seemed a very long time to them; it was very hot; they did not have enough air because the windows were never opened; they were entitled to only one visit per week for an hour and a half; they were not allowed to use the telephone; they could change their clothes only very rarely; they were sent all the misfits from other places; there were not enough supervisors (three during the week, and often fewer at the weekend); they had regular contact with the psychiatrist and were on very good terms with him. ” 2. Specific acts of illtreatment Beatings (Labita, Dikme) Rape (Aydin v. Turkey) Body search (Valasinas) Electric shocks (Aksoy, Akkoc, Mikheyev) Intentional humiliation (Labita, Selmouni) Shaving of hair (Yankov) (Lack of) medical treatment (Ilhan) (Lack of) protection (Edwards) Segregation (Herczegfalvy, Keenan) Strapping to bed, handcuffing (Herczegfalvy, Henaf) Force-feeding, overmedication (Nevmerzhitsky) Beatings and physical violance Tomasi v. France: “Any use of physical force in respect of a person deprived of his liberty which is not made strictly necessary as a result of his own conduct violates human dignity and must therefore be regarded as a breach of the right guaranteed under Article 3 (art. 3) of the Convention.” Shaving of head Yankov v. Bulgaria, para. 112: “the forced shaving off of a prisoner's hair …consists in a forced change of the person's appearance by the removal of his hair. The person undergoing that treatment is very likely to experience a feeling of inferiority as his physical appearance is changed against his will” Para. 117: “…even if it was not intended to humiliate, the removal of the applicant's hair without specific justification contained in itself an arbitrary punitive element and was therefore likely to appear in his eyes to be aimed at debasing and/or subduing him.” Lack of protection Edwards v. UK, para. 47:”…there was a breach of the positive obligation imposed on the authorities to protect the life of their son. Although the scope of such a positive obligation might vary, it was particularly stringent where an individual died in custody.” Lack of healthcare Keenan v. UK, para. 111: “…. the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical care may amount to treatment contrary to Article 3.” Seclusion CPT’s 8 th deneral report, para. 49: “There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients... For so long as seclusion remains in use, it should be the subject of a detailed policy spelling out, in particular: the types of cases in which it may be used; the objectives sought; its duration and the need for regular reviews; the existence of appropriate human contact; the need for staff to be especially attentive. Seclusion should never be used as a punishment. Seclusion Keenan v. UK, Para 116: The belated imposition on him in those circumstances of a serious disciplinary punishment – seven days’ segregation in the punishment block …is not compatible with the standard of treatment required in respect of a mentally ill person. It must be regarded as constituting inhuman and degrading treatment and punishment within the meaning of Article 3 of the Convention. Handcuffing to bed Herczegfalvy Para. 13: “he was extremely aggressive” Para. 79: “[H]e had been forcibly administered food and neuroleptics, isolated and attached with handcuffs to a security bed during the weeks following the incident of 15 January 1980…” Para. 82: “…the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3 (art. 3), whose requirements permit of no derogation.” Para. 82: “The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.” Medical necessity: “a measure which is a therapeutic necessity cannot be regarded as inhuman and degrading.” – is there only one standard? Which doctor decides? Handcuffing to bed - Henaf Para. 55: “…certain acts previously falling outside the scope of Article 3 might in future attain the required level of severity.” Para. 56: “…the Court considers that the use of restraints was disproportionate to the needs of security, particularly as two police officers had been specially placed on guard outside the applicant's room.” Physical restraints CPT, 8th General Report, para. 48: “Resort to instruments of physical restraint (straps, straitjackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment.” Physical restraints CPT, 8th General Report, para. 48: “The CPT has on occasion encountered psychiatric patients to whom instruments of physical restraint have been applied for a period of days; the Committee must emphasise that such a state of affairs cannot have any therapeutic justification and amounts, in its view, to ill-treatment.” Force-feeding Herczegfalvy v. Austria, para. 79: “[H]e had been forcibly administered food and neuroleptics, isolated and attached with handcuffs to a security bed during the weeks following the incident of 15 January 1980…” Force-feeding Nevmerzhitsky v. Ukraine, para. 96: no medical report on the necessity of forcefeeding “[T]he force-feeding of the applicant, without any medical justification having been shown by the government, …resisted by the applicant, constituted treatment of such a severe character warranting the characterisation of torture. Electro-shocks …the CPT has expressed particular concern about ECT (Electroconvulsive therapy) in unmodified form (i.e. without anaesthetic and muscle relaxants). It is of the opinion that this method can no longer be considered as acceptable in modern psychiatric practice (8th General Report of the CPT, para. 39). Other methods of “therapy”? Showers (too much, too little) Deprivation of toys, food No access to family Seclusion, restraints Cleaning work Rape 3. Lack of care and accommodation Keenan Price McGlinchey Aerts Kudla Bensaid Salkic Keenan v. UK Mark Keenan suffered from a psychiatric illness. He was serving a 4 months sentence in prison. He was given disciplinary punishment of 28 days segregation 9 days before discharge. He committed suicide by hanging himself. Keenan v. UK Para 116: “The belated imposition on him in those circumstances of a serious disciplinary punishment – seven days’ segregation in the punishment block and an additional twentyeight days to his sentence imposed two weeks after the event and only nine days before his expected date of release… is not compatible with the standard of treatment required in respect of a mentally ill person.” Price v. UK Adele Price was a four-limb deficient thalidomide victim with kidney problems. She was sentenced to 7 days immediate imprisonment for contempt of court. The first day she had to spend in a police station, which was not prepared to accommodate people with disabilities. Price v. UK Para. 30: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention.” McGlinchey v. UK Judith McGlinchey was a heroin addict with severe withdrawal symptoms detained in prison, where she died as result of vomiting and dehydration McGlinchey v. UK Para. 57: “[B]y the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated... This situation, in addition to causing Judith McGlinchey distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. Aerts v. Belgium Detention of a mentally ill person in a prison because of no free space in psychiatric hospital Para. 61: “In the present case the applicant had literally been left to his own devices and had not received any regular medical or psychiatric attention.” Aerts v. Belgium Para. 66.: “In the present case there is no proof of a deterioration of Mr Aerts’s mental health. The living conditions on the psychiatric wing at Lantin do not seem to have had such serious effects on his mental health as would bring them within the scope of Article 3.” Kudla v. Poland Applicant suffering from severe depression was detained in prison without adequate psychiatric care. He repeatedly attempted to commit suicide. Kudla v. Poland Para. 94: “…the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured by, among other things, providing him with the requisite medical assistance.” Kudla v. Poland Para. 99: “the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and … his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear. …[F]rom 11 June to 29 October 1996 the applicant was kept in custody despite a psychiatric opinion that continuing detention could jeopardise his life because of a likelihood of attempted suicide.” Bensaid v. UK Proposed expulsion to Algeria of a person suffering from severe schizophrenia. Bensaid v. UK Para. 38: “…medical treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.” Salkic v. Sweden Applicant Muslim family suffered from psychiatric problems (post-traumatic disorder because of the Bosnian was), and claimed that there are no adequate psychiatric facilities in Bosnia to prevent them from suicide. Salkic v. Sweden “…even though mental health care in Bosnia and Herzegovina clearly is not of the same standard as in Sweden, there are health care centres which include mental health units and there are apparently several on-going projects to improve the situation. In any event, the fact that the applicants’ circumstances in Bosnia and Herzegovina are less favourable than those enjoyed by them while they were in Sweden cannot be regarded as decisive from the point of view of Article 3.” Evidentiary rules Beyond reasonable doubt – very high, often criticised The Court can draw inferences from certain facts (Tomasi v. France) Non-investigation: separate violation and also a prima-facie evidence of substantial violation The standard Nevmerzhitsky v. Ukraine, para. 72: “The Court reiterates that, in assessing evidence, it adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of a similar unrebutted presumptions of fact.” Mikheyev v. Russia, para. 102: „…where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody (as in the present case), strong presumptions of fact will arise in respect of injuries occurring during such detention. In such cases the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation... In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government.” Inferences – shift of the burden of proof (?) Tomasi v. France (27.8.1992), para. 115: [The Court] finds it sufficient to observe that the medical certificates and reports, drawn up in total independence by medical practitioners, attest to the large number of blows inflicted on Mr Tomasi and their intensity; these are two elements which are sufficiently serious to render such treatment inhuman and degrading. Selmouni v. France, para. 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.” What if the medical report does not help? Aidyin v. Turkey, 25.9.1997, para. 107: „The Court notes that the requirement of a thorough and effective investigation into an allegation of rape in custody at the hands of a State official also implies that the victim be examined, with all appropriate sensitivity, by medical professionals with particular competence in this area and whose independence is not circumscribed by instructions given by the prosecuting authority as to the scope of the examination. It cannot be concluded that the medical examinations ordered by the public prosecutor fulfilled this requirement.” Akkoc v. Turkey, judgment 10.10.2000 , para. 118: “The Court further endorses the comments expressed by the Commission concerning the importance of independent and thorough examinations of persons on release from detention. The European Committee for the Prevention of Torture (CPT) has also emphasised that proper medical examinations are an essential safeguard against ill-treatment of persons in custody. Such examinations must be carried out by a properly qualified doctor, without any police officer being present and the report of the examination must include not only the detail of any injuries found, but the explanations given by the patient as to how they occurred and the opinion of the doctor as to whether the injuries are consistent with those explanations. The practices of cursory and collective examinations illustrated by the present case undermines the effectiveness and reliability of this safeguard. Example of CPT reference Nevmerzhitsky v. Ukraine, para. 86: “taking into account that the applicant’s submissions are consistent, thorough and correspond in general to the inspections of the pre-trial detention centres in Ukraine conducted by CPT and the Commissioner of Human Rights…” the Court finds a violation of Article 3. This presentation talked about Basic standards of Article 3 jurisprudence in other areas Violations of Article 3 in places of detentions: 1. Conditions of detention 2. Specific acts of ill-treatment 3. Not providing the necessary care and accommodation Questions of proof and evidence List of cases Aerts v. Belgium, judgment 30.7.1998, 25357/94 Akkoc v. Turkey, judgment 10.10.2000, 22947/93 and 22948/93 Aksoy v. Turkey (1), judgment 18.12.1996, 21987/93 Aydin v. Turkey, judgment 25.9.1997, 23178/94 Bensaid v. the United Kingdom, judgment 6.2.2001, 44599/98 Dougoz v. the Greece, judgment 6.3.2001, 40907/98 Paul and Audrey Edwards v. the United Kingdom, judgment 14.3.2002, 46477/99 List of cases Hénaf v. France, judgment 27.11.2003, 65436/01 Herczegfalvy v. Austria, judgment 24.9.1992, 10533/83 Kalashnikov v. Russia, judgment 15.7.2002, 47095/99 Karalevicius v. Lithuania, judgment 7.4.2005, 53254/99 Keenan v. the United Kingdom, judgment 3.4.2001, 27229/95 Kehayov v. Bulgaria, judgment 18.1.2005, 41035/98 Kudla v. Poland, judgment 26.10.2000, 30210/96 Labita v. Italy, judgment 6.4.2000, 26772/95 List of cases McGlinchey and Others v. the United Kingdom, judgment 29.4.2003, 50390/99 Mikheyev v. Russia, judgment 26.1.2006, 77617/01 Price v. the United Kingdom, judgment 10.7.2001, 33394/96 Peers v. Greece, judgment 19.4.2001, 28524/95 Salkic and Others v. Sweden, admissibility decision 29.6.2004, 7702/043 Selmouni v. France, judgment 28.7.1999, 25803/94 Slimani v. France, judgment 27.7.2004, 57671/00 Tomasi v. France, judgment 27.8.1992, 12850/87 Valasinas v. Lithuania, judgment 24.7.2001, 44558/98 Yankov v. Bulgaria, judgment 11.12.2003, 39084/97 Art 3 of the ECHR and institutional care Jan Fiala MDAC (Mental Disability Advocacy Center), Budapest [email protected] Thank you for your attention!