The difference between torture and other ill-treatment: Cestaro v. Italy and the “prohibited purpose” requirement

 

Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University

What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the “prohibited purpose” requirement of the torture definition is the most central as well as the only criterion which is decisive in differentiating between that crime and other forms of ill-treatment.. However, in my view this is incorrect, and indeed the recent judgment of the European Court of Human Rights in Cestaro v. Italy shows (once again) that the “prohibited purpose” component of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment.

The judgment

Mr Cestaro was among the protesters surrounding the G-8 summit in Genoa, Italy from 21^st to 22^nd July 2001 (para. 7). On the first day of the summit of the world’s leading industrial States around 100,000 protesters gathered and demonstrated against globalisation (para. 19). Various radical groups such as the so-called “black blocks” were amongst the peaceful anti-globalisation protesters and engaged in violent and/or criminal conduct such as the looting of the city (para. 12). During the two days of incidents, hundreds of protesters and police forces were injured and one young person died (paras. 18-21). From the 21^st to 22^nd July 2001, Mr Cestaro and other protesters were housed in a school, which was stormed by the Italian police at that time. Mr Cestaro and others were brutally ill-treated while peacefully and legally lodging in the school (para. 182). The actual aim of the police mission was to search the school for evidence that could lead to the identification and possible arrest of members of the “black blocks” (para. 182). Mr Cestaro was subjected to repeated kicks and beatings with the tonfa, which is considered a potentially lethal weapon. As a result, Mr Cestaro suffered multiple fractures and a permanent impediment in his right arm and right leg (para. 178). The ECtHR ruled that the treatment by the police amounted to torture.

Ultimately he challenged the Italian state before the European Court of Human Rights (ECtHR), which issued its judgment in the case on 7 April. He alleged that Italy had committed a material and procedural breach of Article 3 of the ECHR, which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Neither torture nor the terms “inhuman or degrading treatment or punishment” are defined in the Convention. The Court’s practice has shown that it understands torture as defined in Article 1 (1) in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to this definition, torture needs to be inflicted on a person

“for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”.

This is the so known “prohibited purpose” requirement. Next to this, there are four more elements of the UNCAT torture definition namely (1) the act must be inflicted intentional, (2) the act must cause severe, physical or mental, pain or suffering, (3) the treatment must be inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity and (4) pain arising out of lawful sanctions is not included.

The issue at hand is that the prohibited purpose requirement is mistaken for the only criterion which is able to differentiate between torture and less serious ill-treatment. This confusion arose because of various reasons. The European Commission on Human Rights, which used to rule on cases together with the ECtHR, stipulated in the 1969 Greek case that torture “is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment” (p. 186). This was interpreted to mean that the purpose requirement is the distinguishing element between torture and inhuman or degrading treatment or punishment while the other elements remain static. Further, the ECtHR has never classified a treatment which lacked the purpose requirement as torture. In addition, some scholars claim that the drafting history of the UNCAT, the travaux préparatoires, indicates that this criterion is the sole distinguishing factor between the two forms of ill-treatment. Although these reasons sound compelling, the interpretation was wrong and the prohibited purpose requirement is not the sole decisive factor as is shown below.

In section “Aperçu de la jurisprudence en matière de « torture » “, the Court provided a brief overview of its jurisprudence concerning Article 3. In the subsequent section “Application en l’espèce”, the ECtHR applied the facts to the case. Both sections elucidate that the prohibited purpose criterion is a vital but not the only requirement to differentiate torture from inhuman or degrading treatment or punishment.

In the former section, the Court did not highlight the ostensible uniqueness of the prohibited purpose requirement. Rather, the Court showed that different criteria of the treatment can be decisive in classifying an act as torture. The Court highlighted that torture can be distinguished from other ill-treatment by the special stigma which is attached to the crime – torture implies very serious and cruel pain and suffering as well as the deliberate/intentional infliction of such pain. In the Court’s words, “[o]utre la gravité des traitmens, la « torture » implique une volonté délibérée.”  (para. 171).

Then, the Court referred to cases in which it found a combination of the gravity of the treatment and the intentional element such as in Aksoy v. Turkey and Yaman v. Turkey (para. 172). In this context the ECtHR noted that all these cases contained a purpose to obtain information, to punish somebody or to intimidate the person (para. 172). This is the first time the ECtHR mentioned the element of the prohibited purpose. The ECtHR further elucidated that it put a special weight on the severity of the pain in some cases such as Aslan v. Turkey or on the arbitrariness of the violence in other cases such as in Romanov v. Russia (para. 173-174). Towards the end of this section the Court explained that it did not classify some police actions as torture such as in Krastanov v. Bulgaria as the prohibited purpose element was missing and because the pain was inflicted for a short duration only (para. 175). This constitutes the second time when the Court mentioned the purpose criterion. Lastly, the Court stipulated that some cases such as Gäfgen did not constitute torture because the level of cruelty required was not reached (para. 176).

The ECtHR clearly revealed that various components can determine whether a particular treatment constitutes torture or inhuman or degrading treatment or punishment: the gravity of the treatment, the intentional infliction of the treatment, the severity of the pain, the arbitrariness of the violence, the prohibited purpose, the duration of the treatment and the level of cruelty of the act. The Court did not classify these examples as exhaustive and one can assume that other factors of the treatment as well can trigger a distinction between torture and other forms of ill-treatment. The prohibited purpose criterion of the UNCAT torture definition is not the only decisive factor.

In the section “Application en l’espèce”, the ECtHR provided reasons for classifying the treatment by the police as torture. In its reasoning, the Court did not explicitly state which element of the conduct by the police was decisive for classifying the violence as torture and not inhuman or degrading treatment. The arguments by the ECtHR suggest that a variety of characteristics of the treatment contributed to the Court’s decision.

The Court put forward that the pain was inflicted by the police with the purpose to punish and to retaliate and with the aim to cause pain and suffering (para. 177). The prohibited purpose by the police was hence to punish and retaliate. This is the first and last time that the ECtHR referred to the purpose requirement in this section. The Court noted that there is no denying that the pain and suffering was of particular seriousness and cruelty (para. 179). As mentioned above, the applicant suffered from a permanent impediment resulting out of the beatings he received. Further, it was stated that there was no link between the applicant’s conduct and the force used by the police. The Court emphasised that Mr Cestaro did not resist in any way and that the infliction of pain was thus disproportionate (para. 180).

Although the mission of the police was to search the school, the public officials immediately used force (paras. 180-182). Instead of trying to enter the building peacefully and negotiate with the protesters, the police stormed the building by breaking down the gates and promptly used violence against the protestors (para. 183). The Court then went on and stressed that the police tried to justify its actions by arguments such as the protection of the nation was at stake (para.184-185). It is indeed true that the 21^st July was marked by heavy violence through the looting and devastation of the city of Genoa (para. 20). One can imagine that the police was under paramount pressure and strain throughout the whole day. The Court, however, correctly observed that the situation in the school was entirely different as the protesters were calm and did not resist the violence of the police (para. 186). Based on these grounds the Court reached the conclusion that the treatment by the police amounted to torture as understood in Article 3 ECHR (para. 190). The ECtHR put forward several reasons for classifying the treatment by the police as torture but it did not single out one specific factor. It seems that the immediate, disproportionate and serious infliction of pain was vital for the Court to arrive at its decision. The prohibited purpose criterion was not the triggering criterion in this case.

Comments

The Cestaro v. Italy case shows that the prohibited purpose element in the UNCAT definition is not the sole criterion which distinguishes torture from other inhuman or degrading treatment or punishment. The presumption that the purpose requirement is the most important feature of torture does not automatically mean that it is the only one.

As indicated at the outset, Cestaro v. Italy is not the first case which revealed that the prohibited purpose requirement is not the sole factor able to distinguish between both crimes in the UNCAT. In the case Ireland v. the UK in 1978, the ECtHR ruled that the five techniques employed by the British forces did not constitute torture because they did not reach the level of cruelty and intensity as implied by the term (para. 167). In Selmouni v. France 1999 the Court reached a judgment on similar grounds. The ECtHR stated that the victim was subjected to torture because the pain and suffering was of particular seriousness and cruelty (para. 101-105). In Romanov v. Russia 2002, the Strasbourg Court found a multitude of reasons why the treatment by the prison wards constituted torture. However, it put a special emphasise on the arbitrariness of the beatings the victim received (para. 70).

These cases already revealed that other factors than the purpose requirement can make a difference between torture and inhuman or degrading treatment or punishment. Nevertheless, some still claim that only the purpose requirement can be decisive. They base their arguments on the travaux préparatoires of the UNCAT as well as old case law from different treaty bodies. The Cestaro v. Italy case reiterates that the prohibited purpose criterion is not the sole element which is capable of differentiating between torture and other ill-treatment.

One can now assume that the consequences flowing from this case and other similar jurisprudence of the ECtHR, will mainly concern theoretical discussions among legal scholars. The consequence could, however, have negative effects beyond that. The Strasbourg Court is not the only organ which uses the UNCAT definition of torture in its cases concerning violations of Article 3 ECHR. The Committee Against Torture (CAT) as well as the Human Rights Committee (HRC) provide decisions on the basis of Article 1 (1) UNCAT. The former body applies and interprets the UNCAT and the latter body enforces the International Covenant for Civil and Political Rights (ICCPR). If the ECtHR, the CAT and the HRC use different grounds for distinguishing torture from other ill-treatment, this could shed a negative light on the consistency and the trustworthiness of these bodies. Considering that the ban on torture is international, the jurisprudence should be consistent as well – at least with regard to the most important and international bodies which decide on torture cases, should it not? In the worst case scenario, the victims of torture could additionally suffer from legal uncertainty.

 

Barnard & Peers: chapter 9

When can European States ban secondary strikes? Comments on the RMT judgment

By Niko Tatulashvili

In its judgment delivered on 8 April 2014, the European Court of Human Rights had to decide whether the strict requirements of UK law regarding strike action was consistent with the requirements of Article 11 ECHR, concerning the freedom of association. The application was lodged by a London based trade union, the National Union of Rail, Maritime and Transport Workers (RMT) uniting employees from different sectors of transport industry in the UK. 

The applicant complained about two separate cases, one concerned with the statutory requirement of a strike ballot notice and the other with a complete ban on secondary strike action.

The first case was declared inadmissible by the European Court. The judges stated that even though the requirement of the national law (the Trade Union and Labor Relations (Consolidation) Act 1992) to hold a primary ballot before strike action (Section 226(1)) and communicate the results to the employer, specifying the categories of the workers concerned (Section 226(A)) caused some delays, in the end the trade union in this specific case still succeeded and managed to improve the working conditions of the workers concerned.

In the second case the applicant was a representative of a very small number of employees in a particular workplace, so organizing a strike action would not have any disruptive effect on the work and eventually would not lead to any results. According to the applicant it could better protect the interests of its members if it was allowed to organize a secondary strike action in support of the workers concerned. Secondary action is expressly excluded from the statutory protection by Section 224 of the Trade Union and Labor Relations (Consolidation) Act 1992. The Court declared the second part of the case admissible.

Major Arguments of the Parties

The union’s main argument was that if it could organize a sympathy strike, the working conditions of the workers concerned would not have deteriorated; and that the ban on such action seriously limited its ability to protect its members. In support of its application, the RMT cited the comments of International Labour Organisation (ILO) supervisory bodies and the European Committee on Social Rights (ECSR), the body monitoring the application of the Council of Europe Social Charter, condemning the blanket ban on secondary industrial action by the UK.

The third parties (ETUC/TUC, Liberty) submitted their views in support of the applicant. They emphasized the need for better protection of workers’ rights in the current situation when it’s easy for employers to undermine union action by complex corporate structures, by transferring work or by hiving off companies. The fragmentation of traditional labour market (when all members of the same workforce had the same employer) makes it difficult for trade unions to protect the interests of their members. In this difficult fight secondary action is a necessary tool for trade unions.

For its part, the UK government argued that the ban on secondary strikes was a response to widespread disruptions caused to the British economy by widespread secondary action in the 1970s and 1980s. According to the government, a dispute in one part of the economy has a potential to rapidly spill over into others, affecting third parties who have no stake in the conflict and no means to resolve it.

The judgment of the Court

For the first time in its jurisprudence the Court recognized that the secondary strike action is a right protected under Article 11(1) ECHR. It also referred to Article 31 (3) (c) of the Vienna Convention on the Law of Treaties and also its own judgment in Demir and Baykara, where it had acknowledged the importance of established international norms in the process of interpreting Convention rights.

After establishing that secondary strike action is protected by the Convention, the Court went on to decide if the interference with the secondary strike pursued one of the legitimate aims justifying limitation of the freedom of association, as enumerated in Article 11(2). Here the Court accepted the argument of the UK government and stated that unlike primary action secondary action has a potential to impinge upon the rights of persons not party to the industrial dispute, cause broad disruption with the economy and affect delivery of services to the public. Therefore, by enacting the law banning the secondary strike the UK Parliament pursued the legitimate aim of protecting “the rights and freedoms of others” mentioned in Article 11(2).

Here the Court offers one more novelty, it distinguishes between primary and secondary strikes and states that in case of primary strikes the term “the rights and freedom of others” refers only to the employer’s interests, while in case of secondary strikes the same term is not limited to the employer only, but refers to the broader interests of the public.

Next, the Court assessed whether the interference with freedom of association was “necessary in a democratic society”. The scope of margin of appreciation of the States in the present case was one of the important aspects that the Court had to deal before deciding whether the interference with the Convention right was corresponding to a “pressing social need” and therefore was “necessary in a democratic society” or not.

The position of the applicant was that margin of appreciation of the UK government in this case must be limited as it was in the case of Demir and Baykara. The Court stated that in order to decide on margin of appreciation of the state the particular facts of the case should be taken into account. In the case of Demir and Baykara the interference with the freedom of association (dissolution of a trade union) was far-reaching, intruding its inner core. According to the Court, when the interference affects the core of the trade union activity the margin of appreciation of the States is narrow. But conversely, the State has a wide margin of appreciation where secondary or accessory aspects of the trade union activity are affected.

In this case the Court considered that the core elements of the freedom of association (which according to the Court can be a primary strike action) were not at stake and therefore state has a wide margin of appreciation. In the opinion of the Court, where the subject matter of the case is related to the social and economic strategy of the respondent state, the wide margin of appreciation should be allowed, as national authorities, and especially a democratically elected Parliament, are in a better position than an international judge to know what is the public interest on social and economic grounds. 

The Court also considered the common European practice in relation to secondary strikes. According to the Court the UK with its outright ban on secondary action stands at one end of a comparative spectrum, however, it does not mean that domestic authorities have stepped outside their margin of appreciation.

The Court took note of the applicant’s argument that the ECSR and ILO bodies regularly criticize the UK government for its current ban on secondary strike action. The Court referred again to the Demir and Baykara case, where it had confirmed that an international consensus emerged from specialized international instruments may constitute a relevant consideration for the Court when it interprets the Convention. However, considering the circumstances of the present case the Court explained that: “… the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained with the range of permissible options open to the national authorities under Article 11 of the Convention.”

Based on these arguments the Court concluded that the restriction on the right to secondary strike served a pressing social need and was necessary in a democratic society. Therefore, there was no violation of Article 11(1).

EU Law

The EU law aspects of this case were not considered by the Court, even though the applicant referred to the EU Charter of Fundamental Rights and Freedoms which guarantees a right to strike in case of conflict of interests between parties (Article 28). One reason for that might be the fact that Article 28 appears in Title IV of the Charter. According to Protocol 30 to the Treaty on the Functioning of the European Union rights mentioned in Chapter IV of the Charter does not create justiciable rights for the UK, unless they are recognized on national level (Article 1(2)).

However, the EU law issues were discussed in the Concurring Opinion of Judge Wojtyczek. The judge made a reference to Article 51 of the Charter which describes the field of application thereof. According to the Article provisions of the Charter should be respected by EU Member States only when they are implementing EU law. The Charter does not create new powers for the EU, other than established by the Treaties. The judge continued by mentioning Article 153(5) TFEU which excludes the right to strike from the scope of the powers of the Union.

However, the judge accepted that EU institutions and namely the Court of Justice of the EU (CJEU) have had to decide on the issues of the right to strike. In this regard the judge mentioned the famous cases of the European Court of Justice (Viking Line and Laval), in which the CJEU justified the restriction of the right to strike when it collided with the fundamental EU freedoms of movement. The judge concluded that while the EU should not violate the right to strike as guaranteed by the Charter, this instrument does not entitle the EU to prevent its member states from imposing restrictions on the right to strike.

Comments

The EU law analysis offered by Judge Wojtyczek was very brief and did not shed much light on the issue. In literally two paragraphs the judge tried to explain that the restrictions on the right to strike are justified by EU law and that Member States cannot be prevented from imposing such restrictions. The interesting point here is that nobody disagrees that right to industrial action is not an absolute right. The questions which are important and which the judge did not mention here are: (a) what kind of restriction is permissible, and (b) what is the margin of appreciation of states in this regard? 

Several other important aspects were omitted from the analysis of the concurring Judge. Speaking about the scope of application of the Charter the Judge did not consider the Article 52(3) of the same Charter which provides that, “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.” The important role of the ECHR in establishing the standards for the human rights protection in the region is reaffirmed by the recent Draft Agreement on the Accession of the EU to the ECHR 2013. According to this agreement in case of incompatibility the EU should make its regulations on human rights protection compatible with the Convention.

Speaking of the Viking Line case the judge did not mention that the CJEU in this case explicitly recognized the right to strike “as a fundamental right which forms an integral part of the general principles of Community Law”. This guarantees the right to strike a considerable level of protection in the EU law and raises the possibility that in a future judgment of the CJEU, this right might prevail over the EU’s fundamental market freedoms.

As for the main judgment, several points should be emphasized. It is important that for the first time in its jurisprudence the ECHR recognized that secondary industrial action fell within the scope of Article 11. This recognition of secondary strike action seems logical as the Court continued the trend (started in 2008 by the Grand Chamber in Demir and Baykara) and shared the practice of the ILO and ECSR, which recognize such a right.

However, when it came to the restrictions upon this right, the Court gave the UK government a wide margin of appreciation. This time, the Court disregarded the position of the ILO and ECSR and supported a total ban on secondary strikes by the UK government. The rhetorical question here is: what sense does it make to recognize the right and then allow the states to put a blanket ban on it?

Also, this selective approach of the Court – accepting some aspects of the soft law instruments and disregarding the others – creates a lack of certainty. It is not clear now what role soft law instruments (ILO, European Social Charter) play in the interpretation of the Convention.

It is also notable that in this judgment, primary strike action was explicitly recognized by the Court as a core element of freedom of association. Although the restriction upon the secondary strike action was justified because it was not a core but secondary or accessory aspect of the trade union activity, it follows logically that in the case of primary strike action states should enjoy a very narrow margin of appreciation because such action is a core element of freedom of association.

There is also an important proportionality issue aspect in this judgment. I share the argument of the UK government and the Court that secondary strike actions have a potential to seriously harm the economic situation in the country and cause disruption in the work of others, not related to the industrial dispute. The argument that economic and social issues are better known to the government than the international judge also makes sense. Furthermore, the Court is mainly concerned with civil and political rights. However, I still think that the Court should have used a case-by-case approach (which it mentions several times in the judgment) in relation to secondary strikes, instead of supporting a total ban upon it. It could have allowed the UK government to strictly regulate such actions, at the same time giving trade unions a chance (at least theoretical) to claim such a right in other cases. Such a decision would have been easier to reconcile with the soft law instruments the Court embraced in its previous case law.

In conclusion, the position of the Strasbourg Court in this case reminds me the Viking Line judgment: in both cases right to strike was recognized (in Viking Line – primary strike, in RMT – secondary strike) and in both cases restrictions upon this right were justified and the soft law instruments disregarded. This might be a pure coincidence which has nothing to do with the statistics but it is still noteworthy to mention that when it comes to protection of secondary strikes the ECtHR now has more in common with the infamous CJEU rulings than its own previous case law.


Barnard & Peers: chapter 9, chapter 20