Right to Freedom from Torture, Cruel, Inhuman or Degrading Treatment or Punishment
The right to be free from torture or cruel, inhuman or degrading treatment or punishment is absolute and can never be limited or interfered with whatever the circumstances. The European Court of Human Rights (ECtHR) applies a severity test, by which the ill-treatment must meet a certain threshold for there to be a violation. It will take into consideration the vulnerability of the victim, such as the age, gender, status or health of the victim, as well as the particular environment to determine this. In cases where the ECtHR finds the conduct does not meet the level of severity, it may find a violation of the individual’s physical or psychological integrity, protected by the right to respect for private and family life.
Conduct that falls within any of the following categories represents a violation:
Where does it apply?
The right to be free from torture or cruel, inhuman or degrading treatment or punishment is not confined to detainees or prisoners but can apply to individuals in situations that increase their vulnerability, such as destitution or in care. As with other human rights, the State has the duty to refrain from engaging in such conduct (duty to respect) but must also prevent individuals at risk from having this human right abused (duty to protect).
There are various areas of work of the NICS that will require particular attention to ensure the right to be free from torture or cruel, inhuman or degrading treatment or punishment is guaranteed:
All places in which individuals are deprived of their liberty. This includes prisons, juvenile detention centres, police stations, holding centres for immigration detainees, psychiatric hospitals, social care homes, etc.
- Care settings
Deficiencies in the living conditions in nursing or care homes can violate an individual’s right to human dignity. Similarly, inadequate levels of care provided to individuals in homes and hospitals can amount to inhuman and degrading treatment, such as a lack of care in relation to continence needs and a lack of knowledge about the provision of food and liquids.
The use of restraint, such as bed rails or bed cages in health and social care settings.
- Medical treatment
Depending on the circumstances, non-consensual medical treatment or withholding appropriate medical care where someone is suffering from a serious illness can amount to inhuman and degrading treatment.
The refusal of Government support, for example, a wholly insufficient amount of social benefits, which results in an individual becoming destitute. Furthermore, the continued failure of public authorities to address severely overcrowded and unsanitary living conditions that diminish individuals’ dignity can amount to a violation.
- Deportation/Extradition/Removal of persons
The decision and subsequent removal of persons to another country where they face a real risk of being subjected to the death penalty or torture or cruel, inhuman or degrading treatment or punishment amounts to a violation.
- Domestic Violence
Where public authorities knew but failed to protect individuals from abuse in their own homes they violate the right to be free from inhuman or degrading treatment.
The failure to provide an abortion on the grounds of rape, incest and serious malformation of the foetus amounts to inhuman and degrading treatment.