Torture victims and EU law

Professor Steve Peers, University of Essex

What happens if an asylum seeker faces severe mental health problems that cannot be treated in the country of origin?  Today’s judgment of the ECJ in the MP case, following a reference from the UK Supreme Court, goes some way towards answering this question.

Background

The issue what we might call “medical cases” for asylum first of all arose before the European Court of Human Rights. In a series of judgments, that Court clarified whether the ban on torture or inhuman or degrading treatment, set out in Article 3 of the European Convention on Human Rights (ECHR), prevented people from being sent back to a country where there was no effective medical care.  Essentially, it ruled that such an argument could only be successful in highly exceptional cases, in particular where the person concerned was critically ill and close to death.

However, while these judgments addressed the question of non-removal for persons in such serious conditions, they did not rule on the issue of the status of asylum, or other types of migration status, for the persons concerned. This issue was the subject of two linked ECJ judgments (M’Bodj and Abdida) in 2014, which I discussed here. In short, the ECJ said that the persons suffering from severe health problems could not invoke a right to “subsidiary protection” on the basis of the EU’s qualification Directive, even though one of the grounds for such protection was facing a “real risk” of torture or inhuman or degrading treatment in the country of origin. That was because subsidiary protection was only intended for cases where the harm was directly caused by humans.

So do “medical cases” only have the right to non-removal on the basis of Article 3 ECHR? Not quite; because the ECJ also said that the EU’s Returns Directive, which governs the position of irregular migrants, could be relevant. In an ambitious interpretation of that Directive, the Court ruled that it could be invoked to prevent removals in “medical cases”, including the suspensive effect of an appeal against removal; moreover the Directive conferred a right to medical care and social assistance for the persons concerned in such cases.

Subsequently, at the end of 2016, the European Court of Human Rights revisited its case law on “medical cases”, lowering the very high threshold that had previously applied before individuals could invoke Article 3 ECHR.  In Paposhvili v Belgium (discussed here), it extended that case law also to cover cases of:

removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

It should be noted that while the “first phase” EU qualification Directive (which includes the same definition of “subsidiary protection” as the 2011 version) applies to the UK and Ireland, the Returns Directive does not.  

Judgment

The ECJ began by stating that in order to invoke a claim to subsidiary protection on grounds of torture, it was necessary to show that such treatment would occur in the country of origin in future. While MP had suffered torture in Sri Lanka in the past, that was “not in itself sufficient justification for him to be eligible for subsidiary protection when there is no longer a real risk that such torture will be repeated if he is returned to that country”. Although the qualification Directive states that past serious harm “is a serious indication” there is a real risk of suffering such harm in future, “that does not apply where there are good reasons for believing that the serious harm previously suffered will not be repeated or continue”.

The Court then turned to MP’s health issues, noting that he “presently continues to suffer severe psychological after-effects resulting from the torture” and that “according to duly substantiated medical evidence, those after-effects would be substantially aggravated and lead to a serious risk of him committing suicide if he were returned to his country of origin”. It stated that this provision of the qualification Directive “must be interpreted and applied” consistently with Article 4 of the EU Charter of Fundamental Rights, which set out an “absolute” right to be free from torture or other inhuman or degrading treatment. This Charter right corresponded to Article 3 ECHR, so “the meaning and scope of the rights are the same”, as set out in Article 52(3) of the Charter.  So the ECJ followed the case law of the ECtHR on Article 3 ECHR, referring specifically to the revised test on “medical cases” set out in Paposhvili, and adding that when applying Article 4 of the Charter, “particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin”.

It followed that the Charter, interpreted in light of the ECHR, “preclude[s] a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.” It also recalled its previous ruling on “medical cases” and the Returns Directive.

But since the courts in the UK had already ruled out MP’s removal, the non-removal point was not relevant. Rather the issue was whether MP is entitled to subsidiary protection. Here the ECJ recalled its prior ruling that “medical cases” were not normally entitled to subsidiary protection, but noted that M’Bodj concerned a victim of assault in the host Member State, whereas MP was tortured in the country of origin and the after-effects would be exacerbated in the event of return. Both of these factors are relevant when interpreting the qualification Directive; but “such substantial aggravation cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that third country national in his country of origin, within the meaning of” the Directive.

What about the lack of medical care for after-effects of torture in the country of origin? The Court reiterated its position that a right to subsidiary protection “cannot simply be the result of general shortcomings in the health system of the country of origin”, and that “deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection”.

But on this point, it was crucial that this was not an “ordinary” example of a “medical case”, but one deriving from torture. The preamble to the qualification refers to taking into account international human rights law considering the subsidiary protection definition; and so the ECJ interpreted the UN Convention Against Torture (UNCAT) for the first time in its case law. In particular, the Court examined Article 14 of that Convention, which gives torture victims a right to redress and rehabilitation.

Overall, the Court insisted on a separation between UNCAT and refugee law, by analogy with the distinction between refugee law and the international law of armed conflict (the Geneva Conventions) which it had previously insisted upon in its judgment in Diakité. This was because the UNCAT system and refugee law pursue different purposes. So it followed that:

…it is not possible, without disregarding the distinct areas covered by those two regimes, for a third country national in a situation such as that of MP to be eligible for subsidiary protection as a result of every violation, by his State of origin, of Article 14 of the Convention against Torture.

So not every violation of Article 14 of UNCAT leads to subsidiary protection. But that implies that some violations do. The Court went on to clarify:

It is therefore for the national court to ascertain, in the light of all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations, whether, in the present case, MP is likely, if returned to his country of origin, to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country. That will be the case, inter alia, if, in circumstances where, as in the main proceedings, a third country national is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin, it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture, are not prepared to provide for his rehabilitation. There will also be such a risk if it is apparent that the authorities of that country have adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals, of which MP forms part, to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities.

So there are two cases where subsidiary protection would apply, due to intentional deprivation of care: the authorities are “not prepared” to fulfil their UNCAT obligations of rehabilitation to a person at risk of suicide following from torture suffered in that country; or there is discriminatory policy “making it more difficult” for certain groups to obtain such treatment. These criteria are non-exhaustive (“inter alia”). The evidence to be considered to this end is “all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations”. Again, the sources of evidence are non-exhaustive (“in particular”).

Comments

At first sight, the Court’s judgment sticks to the framework developed in its prior case law: there is no right to subsidiary protection in “medical cases”, except where care is deliberately refused. But look closely, and it’s clear that the Court has developed that case law in important ways in today’s judgment.

First of all, the definition of “medical cases” is now wider, since the Court explicitly adopts the revised interpretation of Article 3 ECHR from recent ECtHR case law. Secondly, in torture cases, the Court has elaborated what factors to consider to determine if inadequate health care would be intentionally withheld in the country of origin. If the asylum seeker is suicidal due to the after-effects of torture carried out in that country, then if that country is either “not prepared” to fulfil UNCAT obligations of rehabilitation to such persons or has a discriminatory policy “making it more difficult” for certain groups to obtain care would amount to an “intentional” deprivation of health care, there is a right to subsidiary protection. The first of these grounds is unique to torture victims, but the second ground should arguably be relevant to any “medical cases”.

Thirdly, the Court has fleshed out the back-up obligation of non-removal for “medical cases” even in the event that subsidiary protection is not granted, insisting that it is an EU law obligation based on the Charter, alongside its prior ruling that the Returns Directive rules it out. This is particularly relevant for the UK and Ireland, given that they are not covered by the Returns Directive. In fact it is not obvious at first sight how EU law – and therefore the Charter – applies in those countries to such cases, if the persons concerned have no right to subsidiary protection. Arguably the link to the grounds for subsidiary protection set out in the qualification Directive is sufficient; but the Court should have spelled this out.

In the Member States bound by the Returns Directive, the finding that the Charter applies to prevent such removal simplifies the process of guaranteeing the non-removal of “medical cases”. Furthermore, it should be recalled that the case law on that Directive guarantees health care and medical assistance.

Overall, then, today’s judgment has gone some way to ensuring greater protection, where necessary, for the most vulnerable migrants: torture victims and the terminally ill.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapters I:5, I:7

Photo credit: The Guardian Nigeria

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