A significant body of case law addresses what activities are prohibited by regional and universal treaties’ provisions on torture and inhuman treatment.

Defining Cruel Treatment and Torture

• The European Court of Human Rights has emphasized that an applicant must meet a certain standard to establish an Article 3 claim under the European Convention on Human Rights: “Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim. In considering whether a treatment is ‘degrading’ within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Though it may be noted that the absence of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment, as in, for example, measures depriving a person of their liberty.” See ECtHR, Wainwright v. United Kingdom, no. 12350/04, ECHR 2006-X, Judgment of 26 September 2006, para. 41 (internal citations omitted).

• In Ireland v. United Kingdom, the European Court of Human Rights listed factors to be taken into account in determining the severity of treatment, including the victim’s age, sex, and state of health. The Court also examined certain methods of interrogation, none of which were found to cause acute physical injury, and found that forcing detainees to remain in stress positions for periods of time, subjecting them to noise, and depriving them of food, drink and sleep amounted to ill-treatment, but not torture. The case stresses the applicability of the prohibition even in cases involving terrorism and public danger. See ECtHR, Ireland v. United Kingdom, Series A no. 5320/71, Judgment of 18 January 1978. For additional case law analyzing the prohibition of torture and inhuman treatment as it relates to the interrogation and detention of terrorists, and organized crime, see ECtHR, Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, Judgment of 6 April 2000; ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999; ECtHR, Chahal v. United Kingdom [GC], no. 22414/93, Rep. 1996-V, Judgment of 15 November 1996.

• The reluctance demonstrated in Ireland v. United Kingdom, to find that ill-treatment amounts to torture based on the level of severity has been eroded by subsequent case law that can be read to lower the threshold under the European Convention for finding that torture has occurred. See ECtHR, Askoy v. Turkey, no. 21987/93, Rep. 1996-VI, Judgment of 18 December 1996; ECtHR, Aydin v. Turkey, no. 23178/94, Rep. 1997-V, Judgment of 25 September 1997; ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999.

• In determining whether an applicant has suffered from torture (rather than less severe forms of ill-treatment), the degree to which the force is unnecessary will help the court determine the intent with which the treatment was exercised. Subjecting detainees to unnecessary physical force diminishes human dignity and is a violation of the European Convention on Human Rights. See ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999.

Psychological Suffering

• Various human rights bodies have acknowledged that no physical element is necessary to establish torture or inhuman treatment. The European Court of Human Rights found that a suspected criminal could not be extradited to the United States because of the psychological harm he would suffer if he were sentenced to death and held on death row. See ECtHR, Soering v. United Kingdom [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999. For other cases involving the infliction of mental, but not physical violence, see ECtHR, V.v. United Kingdom [GC], no. 24888/94, ECHR 1999-IX, Judgment of 16 December 1999, and ECtHR, X and Y v. Netherlands, Series A no. 8978/80, Judgment of 26 March 1985.

• Actions aimed at humiliating individuals or causing psychological suffering may constitute torture or inhuman treatment, and also violate the right to human dignity. See ACommHPR, Malawi African Association et al. v. Mauritania, Communication Nos. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98, Merits Decision, 27th Ordinary Session (2000).

• In Cantoral-Benavides v. Peru, the Inter-American Court found 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.” See I/A Court H.R., Cantoral-Benavides v. Peru. Merits. Judgment of 18 August 2000. Series C no. 69, para. 100. In that case, the Court found that the aggressive acts suffered by the victim could be classified as physical and psychological torture, and that the acts were planned specifically for the purpose of wearing the victim down and to obtain incriminating evidence from him. See also I/A Court H.R., Maritza Urrutia v. Guatemala, Merits, Reparations and Costs. Judgment of 27 November 2003. Series C no. 103, finding that the victim suffered physical violence amounting to torture, and mental violence constituting cruel and inhuman treatment.

• Several cases have also found violations in relation to relatives of victims of disappearance based upon the anguish caused to victims’ family members and the State’s failure to properly investigate and punish the wrongdoers for the disappearances or murders at issue. See, e.g., Human Rights Committee, Quinteros v. Uruguay, Communication No. 107/1981, Views of 21 July 1983, UN Doc. CCPR/C/OP/2; I/A Court H.R., Case of the “Street Children” (Villagran-Morales et al.) v. Guatemala. Merits. Judgment of 19 November 1999. Series C no. 63; ECtHR, Kurt v. Turkey, no. 15/1997/799/1002, Judgment of 25 May 1998. In one case, the European Court of Human Rights limited the application of the Kurt case, finding that it did not establish a general principle that a family member of a disappeared person is always a victim of treatment contrary to Article 3 and specifying that whether the relative is such a victim will depend on the existence of “special factors which give[] the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation.” See ECtHR, Çakici v. Turkey, no. 23657/94, Judgment of 8 July 1999, para. 98.

Corporal Punishment

• The Human Rights Committee has determined that corporal punishment is prohibited by Article 7 of the ICCPR. See Human Rights Committee, Osbourne v. Jamaica, Communication No. 759/1997, Views of 13 April 2000, UN Doc. CCPR/C/68/D/759/1997. The African Commission has ruled that corporal punishment violates the human right to dignity. See ACommHPR, Doebbler v. Sudan, Communication No. 236/2000, Merits Decision, 33rd Ordinary Session (2003).

Treatment of Prisoners and Detainees

• In Antti Vuolanne v. Finland, the Human Rights Committee examined a case involving the solitary confinement of a Finnish infantryman who was sanctioned for abandoning his military service. The Committee determined 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. In determining the severity of the alleged maltreatment, the court should consider all the circumstances of the case at hand, including the duration and manner of treatment, its physical and mental effects and the sex, age, and state of health of the victim. See Human Rights Committee, Antti Vuolanne v. Finland, Communication No. 265/1987, Views of 7 April 1989, UN Doc. Supp. No. 40 (A/44/40).

• The Human Rights Committee also found, in Polay Campos v. Peru, thatdisplaying the victim publicly in a case and isolating him for 23 hours a day in a small cell with only 10 minutes of sunlight per day violated articles 7 (prohibition of inhuman treatment) and 10 (concerning the treatment of persons deprived of liberty) of the ICCPR. See Human Rights Committee, Polay Campos v. Peru, Communication No. 577/1994, Views of 6 November 1997, UN Doc. CCPR/C/61/D/577/1994. See also I/A Court H.R., Loayza Tamayo Case. Reparations. Judgment of 27 November. Series C no. 42 (finding that similar treatment violated the applicants’ rights under the American Convention).

• In International Pen and Others v. Nigeria, the African Commission found that detaining individuals sentenced to death in leg irons and handcuffsand denying them access to attorneys and necessary medicines violated Article 5 (the right to dignity) of the African Charter. See ACommHPR, International Pen and Others v. Nigeria, Communication Nos. 137/94, 139/94, 154/96, 161/97, Merits Decision, 24th Ordinary Session (1998).

• The European Court of Human Rights has also developed case law presumptions regarding ill-treatment inflicted by State actors. For example, it has stated that “where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention.” See ECtHR, Eren v. Turkey, no. 36617/07, Judgment of 20 October 2015, para. 30.

Death Penalty

• The Human Rights Committee has found that the means by which the death penalty is imposed may violate the right to freedom from torture or cruel, inhuman, or degrading punishment under certain circumstances. See Human Rights Committee Resolutions 2003/67 (para. 4(i)), 2004/67 (para. 4(i)), and 2005/59 (para. 7(i)) stating that stoning is cruel and inhuman. See also Human Rights Committee, Ng v. Canada, Communication No. 469/1991, Views of 5 November 1993, UN Doc. CCPR/C/49/D/469/1991 (noting that use of a gas chamber to execute criminals is cruel and inhuman). The Committee subsequently found that imposing death by lethal injection is not cruel and inhuman, despite evidence showing that the injections can cause terrible suffering. See Human Rights Committee, Cox v. Canada, Communication No. 539/1993, Views of 31 October 1994, UN Doc. CCPR/C/52/D/539/19930.

• The European Court of Human Rights has identified hangingas an “ineffectual and extremely painful method of killing, such as to amount to inhuman and degrading treatment” and further states that “[w]hatever the method of execution, the extinction of life involves some physical pain” as well as “intense psychological suffering” deriving from the foreknowledge of death. See ECtHR, Al-Saadoon and Mufdhi v. United Kingdom, no. 61498/08, ECHR 2010, Judgment of 2 March 2010, paras. 102, 115.

• In the Inter-American system, while there are no merits decisions determining that particular methods of execution violate the Inter-American treaties, the Commission has found admissible at least one case involving a claim that lethal injection creates an unacceptable risk of causing excruciating pain and suffering to the inmate. IACHR, Report No. 63/12, Petition 1762-11, Virgilio Maldonando Rodriguez (United States), March 29, 2012.

• Cases concerning mental anguish also include several cases involving the so-called “death row phenomenon,” which refers to the inhuman and degrading treatment suffered by detainees on death row, independent of the detainees’ right to life. See ECtHR, Soering v. United Kingdom [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999 (applying the principle of non-refoulement to prohibit extradition where the party whose extradition is sought might be subjected to the conditions of death row). Unlike the European Court of Human Rights, the Human Rights Committee has not found detention on death row per se in violation of the right to freedom from torture and ill-treatment. The Committee has found violations where there are further compelling circumstances, such as documented deterioration of the victim’s mental health, or when the victim’s age or status made the victim particularly vulnerable. See, e.g., Human Rights Committee, Errol Johnson v. Jamaica, Communication No. 588/1994, Views of 22 March 1996, UN Doc. CCPR/C/56/D/588/1994; Human Rights Committee, Clive Johnson v. Jamaica, Communication No. 592/1994, Views of 25 November 1998, UN Doc. CCPR/C/64/D/592/1994. See also I/A Court H.R., Hilaire, Constantine and Benjamin, et al. v. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of 21 June 2002. Series C no. 94; I/A Court H.R., Raxcaco-Reyes v. Guatemala. Merits, Reparations and Costs. Judgment of 15 September 2005. Series C no. 133.

Non-Refoulement

• The European Court of Human Rights has determined that Article 2 of the European Convention prohibits the death penalty and that the principle of non-refoulement applies where a criminal suspect might be subject to the death penalty in the State seeking extradition. See ECtHR, Al-Saadoon and Mufdhi v. United Kingdom, no. 61498/08, ECHR 2010, Judgment of 2 March 2010.