It is vital that all individuals are afforded sufficient protection of their human rights under the European Convention of Human Rights (ECHR). However, much difficulty occurs when such rights are being protected at the expense of national security. Accordingly, whilst it is felt that the protection of the public should prevail on the one hand, it is argued on the other that individual rights should always be upheld. Essentially, violations of human rights should only be made in extreme circumstances. Whether suspected terrorism should fall within the ambit of one of these exceptions is arguable, especially when there has been a threat of torture as it will be for the courts to strike a balance between the two competing interests. It will be discussed in this assignment whether the threat of the use of torture is an acceptable practice that is capable of being employed by the police during an interrogation or whether it is actually a violation of the ECHR.
It will be critically discussed whether the interrogation of the suspect and the threat of the use of force will amount to a violation of the suspects rights under the European Convention of Human Rights. In doing so, Article 3 will be given consideration followed by a review as to whether the interests of national security should also be given consideration in light of the fact that there was an impending terrorist attack.
European Convention on Human Rights and Torture
The European Convention on Human Rights (ECHR) was established in 1950 by the Council of Europe. The main objective of the Convention is to ensure that adequate protection for individual’s human rights and fundamental freedoms is being provided. Ensuing from the Convention was the European Court of Human Rights (ECtHR), which was set up in order to provide individuals with the ability to take their case to court if they felt that their rights were undermined. Article 3 of the ECHR imposes a strict prohibition against torture and “inhuman or degrading treatment or punishment.” Accordingly, this is one of the strictest Articles that exist under the Convention as there are no available exceptions to it and as is stated in the Convention; the prohibitions are made in the strictest terms irrespective of the victims conduct., Whilst this Article generally applies to any cases involving torture, unjustified deportations and degrading treatment, it is those cases involving police violence and poor detention conditions that frequently seek protection (Kamau, 2006: 15). Article 3 is thus of significant importance in preserving the interests of individuals and States must ensure that such treatment does not occur within their territory. It is questionable how effective Article 3 is in preventing such treatment being inflicted upon individuals, nonetheless, given the many cases that come before the courts. Regardless, the ECtHR will make great attempts to rectify any injustice that occurs, yet they have made clear that the level of torture that is being inflicted must be of such a level so as to enable it to fall within the ambit of Article 3; McCallum v The United Kingdom, Report of 4 May 1989, Series A no. 183, p. 29. It is questionable whether the threat of use of torture by the police in this scenario does actually fall under Article 3 since it cannot be said whether the level of the threat was significant.
It is often difficult to determine whether a cause of actions will fall within the ambit of Article 3 since not all treatment that is considered punitive will amount to torture for the purposes of the ECHR. Essentially, the courts have made it clear in numerous cases that the level of seriousness will need to be high in order for their rights under the Convention to be activated. Because of this threshold it has often been extremely difficult for victims to establish their case as demonstrated in the Ireland v The United Kingdom, 18 January 1978, Series A no. 25. Here, it was made clear by the Court of Appeal that the assessment as to what the minimum level shall be will be dependent upon the individual circumstances of the case. Hence, the factors for the court to take into account when determining the seriousness of the treatment include the victims; age, sex, physical and mental effects and health. It was further evidenced by the court in Soering v The United Kingdom, judgement of 7 July 1989, Series A no. 161; “the severity will depend on all if the circumstances of the case, such as nature and context of the treatment or punishment and the manner and method of its execution.” The determination as to whether treatment or punishment will be deemed to be torture for the purposes of Article 3 may also differ from place to place given that different countries have different perceptions of torture. There has been an attempt to achieve co-operation between States in order to ensure that there is some consistency within this area, yet complexities still arise. In Greek Case, 5 November 1969, YB XII, p. 501, the European Commission of Human Rights noted the following; “it is plain that there may be treatment to which all of these descriptions apply, for all torture must be inhuman and degrading treatment and inhuman treatment also degrading.” It cannot be said that the suspect in this instance has suffered from inhuman or degrading treatment since he was merely threatened with the use of force if he did not inform the police of the bomb’s location.
Article 3 is one of the most important protections that is provided under the Convention as its sole purpose is to “protect a person’s dignity and physical integrity” (Reidy, 2002: 19). This is why the courts are unable to take into account the victims conduct since individuals should be provided with the ultimate protection against torture. The fact that the victim in this case is a suspect of an impending terrorist attack with the use of a bomb will be insufficient when determining whether the actions of the police will fall under Article 3 or not. Regardless of this, however, the courts will take into account the difficulties associated with the maintenance of national security. Therefore, although the conduct of the victim will not be capable of being considered by the court, the fact that the police were trying to prevent a bomb from exploding will be as the police will be found to have been acting in the interests of national security; Tomais v France, Judgement of 27 August 1992, Series A no. 241. In the case of Ilhan v Turkey the applicant had been severely beaten at the time of his arrest and was refused medical treatment for a significant amount of time. The court found that the victim had been subjected to torture in this instance. Accordingly, it will thus depend upon the type of interrogation the victim suffers, which is unclear from the facts of this case. In Assenov v Bulgaria, Judgement of 28 October 1998, Reports 1998-VIII it was held that as a result of the interrogation the victim suffered from torture even though it was unclear who actually caused the injuries sustained by the victim. Again, this demonstrates that provided that the victim has suffered from serious injuries, it is likely that protection will be afforded under Article 3. This is also exemplified in Rehbock v Slovenia where the use of force was considered unjustifiable on the grounds that the authorities could not provide any valid justification for why the injuries were so serious. If the authorities cannot justify the threat of the use of force, then it is likely that a breach of the ECHR will be found.
Arguably, if the injuries sustained by the victim during the course of the interrogation are significant, then this will trigger the protection under Article 3. In deciding whether the conduct of the police will amount to torture, it will first need to be considered what actions will be considered to be of a torturous nature. There have been various definitions as to what torture consists of since it can be applied to a varying degree of situations. Regardless, it is evident that torture occurs in situations where an individual is subjected to “severe pain and suffering” as provided in the United Nations Convention against Torture. However, it will not be enough in this case to shown that the suspect was subjected to “severe pain and suffering.” Instead the whole context of the situation will need to be considered. In doing so, a review as to whether the interrogation techniques used by the Police were acceptable will need to be made. Whether this will be easy to determine is unlikely since it is questionable what will amount to acceptable interrogation techniques and as put by Amnesty International (2009: 417); “Torture and other cruel, inhuman or degrading treatment can never be justified. They are never legal. Even in a state of emergency, there can be no exemption from this obligation and there is no such thing as torture perpetrated in “good faith” or “reasonable” circumstances.” Arguably, it is evident that Amnesty International does not agree with interrogation regardless as to the situation. Nevertheless, the suspect may be able to rely on the nemo tenetur seipsum accusare principle which means; “no man has to accuse himself.” This principle could effectively act as a safeguard by preventing inappropriate methods of interrogation from being used. It could be deemed inappropriate to threaten suspects with the threat of the use of force, yet based on the circumstances this appear unlikely given the impending bomb explosion.
This was identified by Chiesa (2009: 2) when he pointed out that; “the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation.” It is questionable whether this principle will act as a safeguard, however, since it is very difficult to determine when torture has taken place as “it is not clear in the present laws” (IBN, 2010: 3). Because of this, there are often what is considered to be ‘borderline’ cases where it is difficult to see if torture has actually occurred. As a result, it cannot be said that Article 3 ECHR does actually protect individuals from torture in every situation. Accordingly, it has been said that the police routinely engage in interrogating behaviour when trying to extract confessions from individuals, yet this is generally not considered to amount to torture (Chair, 2004: 68). In view of this, it is clear that the distinction between police brutality and torture cannot be easily ascertained and as noted by Spicer (2007: 157) “the definition of torture and its distinction from inhuman or degrading treatment is problematic and has generated a mass of case law in the ECHR.” It is thus difficult to distinguish torture from inhuman and degrading treatment, which is why cases are frequently coming before the courts involving police brutality. This is completely unacceptable and there ought to be some protection available to individuals in preventing them from being subjected to torture: “the government should investigate, discipline those found to be implicated, and train officers to interrogate suspects without coercion” (Human Rights Watch, 2010: 1). In order to clarify the position within this area, however, the United Nations have attempted to define torture by stating under Article 1 that “torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”
Consequently, it would appear as though the police have inflicted torture upon the suspect because although they have not physically harmed him, they have in fact made threats against him. Thus, given that mental suffering is contained within the definition of torture as provided for under Article 1, it is likely that this type of behaviour will be considered a violation of the ECHR. Despite this, it could also be argued that because the police have arrested the suspect on suspicion of an impending terrorist attack, and have made such interrogations so as to prevent the attack from taking place, that the torture is reasonable. This is because, the police need to find out where the bomb is in order to protect society from harm and given that they only have only a few hours before the bomb explodes, it is integral that they obtain as much information out of the suspect as possible. Consequently, it could be said that the threat of the use of torture in interrogating the suspect is appropriate based on the individual facts. In Binyam Mohamed Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65;  WLR (D) 31 it was expressed that torture will amount to a violation of Article 3 as this will generally be considered unacceptable behaviour. Clearly, this illustrates that some protection will be afforded to individuals subject to the use of torture, yet it is questionable whether this applies to the current situation given that only a threat was made. As noted by Johns (2005: 16), however; “no human being is without protection under international law and in every circumstance, every human being has some forms of protection under human rights law.” Therefore, where torture, or the threat of torture, is carried out individuals should have some form of protection available to them, yet it is debatable whether this protection is adequate since the interest of national security may outweigh the interests of the individual.
The Binyam case has been the subject of much critique as the US made great attempts to prevent evidence of torture from being disclosed. This led many to also question the practices of the UK who work closely with the US in the fight against terrorism (Smith, 2009: 9) and there was a strong debate as to whether national security would be damaged if the detainee’s human rights were to be protected. This resulted in difficulty as it had to be determined whether the interests of national security or the interests of the individual were to prevail. Applying this to the instant situation, the question to be asked is whether national security would be affected, if the rights of the suspect were protected by the ECHR. Given that a bomb is about to explode, it is necessary for the police to obtain the relevant information from the suspect so that they can locate the bomb in order to protect the public from harm. Given that human rights took precedent over national security in the Binyam case, the same could also apply here. However, as put by Burke-White (2004: 17) the interests of the two are in fact mutually exclusive “promote human rights at the expense of national security or protect national security while overlooking international human rights.” Therefore, it will be difficult to determine what interests ought to be preserved in any given case as the factors to be taken into consideration will differ largely from case to case. Furthermore, not all agreed with the decision in the case and many argued that the interests of national security should have been given greater prominence: “which is more important, the human rights of a suspected al-Qaeda operative, or protecting the British people from terror attacks?” (Coughlin, 2010: 1). The interests of national security are clearly at stake since the bomb explosion could lead to serious harm. It is questionable whether the interests of the suspect should therefore be given greater consideration given the fact that a large proportion of the population may be subjected to harm.
It is questionable why the protection of the majority did not prevail in Binyam and seems to illustrate that the human rights of the suspect in the instant case may also be preserved. Rather than demonstrating a victory for the protection of human rights principles, the case has been viewed with much dismay at the way in which the government handled the case (Londras, 2010: 17). Because of the significant interest that surrounded the case it seems as though the government would have been under much scrutiny had a different decision been made. In accordance with this, it is not certain that the human rights of the suspect in the instant situation will be protected since the suspect has been subjected to a threat of torture on the basis of the imminent bomb explosion. Thus, it is extremely difficult for the judiciary to protect individual liberties and rights when the government plays the national security card (Robson, 2010: 174). This is further evidenced by the continuance references that were made to open justice in the Binyam case: “the principle of open justice represents an element of democratic accountability and the vigorous manifestation of the principle of freedom of expression which ultimately supports the rule of law itself” (per Lord Chief Justice). Consequently, it became apparent that the judges were cautious when making their decision and as a result it is evident that human rights will not always be protected over the interests of national security as it will again depend entirely upon the individual circumstances of the case. It is clear from the decision that there is a conflict between the protections of individual human rights with the protections of national security. However, it is still extremely difficult to determine which interest is the most important and more likely to be successful in the instant case.
Simply because human rights came out on top in the Binyam case does not illustrate they will come out on top in all other cases. This is especially so given that the court appeared under pressure by the Minister of the Crown to reach this decision. Hence, it is argued on the one hand that human rights should always succeed, yet on the other that the interests of national security should also be given recognition (Salomon, 2007: 5). However, in ensuring that individuals are free from torture, a strict prohibition against the use of torture must be effectuated. This is because if individuals were not being given sufficient protection against torture, national authorities would be capable of abusing their powers and inflicting harm and degrading treatment upon individuals suspected of a crime (Churcher, 2009: 1). Given that the majority are protected from terrorism, whilst the minority are protected from torture it seems as though greater emphasis ought to be placed upon individual rights in order to ensure that their interests provided by the ECHR are being preserved. It is arguable whether this can be justified, however, because as Woodward (2010: 19) argues; “the need to feel safer is a need that has in large part been manufactured by those eager to capitalize on the economic value of fear.” Therefore, it is integral that national security is also being preserved, which is why it will be very difficult to decide on a reasonable outcome in cases where human rights and national security conflicts. In Dushka v Ukraine, Judgement of ECHR, February 02, 2011 it was found by the Court that the unlawful detention and questioning of a 17 year old amounted to torture and was thus a violation of Article 3. Thus, it was stated by the court that given the applicant’s vulnerable age, the practice being employed did qualify as inhuman and degrading treatment regardless as to the applicant’s conduct. In light of this decision it could be said that the treatment being imposed upon the suspect will also amount to inhuman and degrading treatment although the courts will determine the circumstances of the case as a whole taking into account the fact that a bomb was about to explode.
The Anti-terrorism, Crime and Security Act (ATCSA) 2001 and the Prevention of Terrorism Act 2005 do, however, appear to conflict with the ECHR because of the fact that authorities are now provided with greater powers when it comes to the elimination of terrorism. As stated by Herron (2011: 1); “whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime.” The provisions that have been provided for under these acts appear largely detrimental to individual rights and freedoms, yet this is deemed necessary in protecting individuals against the threat of terrorism can; R (on the Application of BB) v Special Immigration Appeals Commission  All ER 210. Here, the court highlighted the importance of preserving the interests of national security was. Nevertheless, it is still evident that whilst the human rights of individuals are to be maintained, the rights of ordinary citizens also need to be given consideration. A balancing act between the two competing interests is therefore required, yet as has been discussed this is proving to be rather problematic. Ames (2005: 2) believes that “any restriction on rights must be imposed with reference to the rule of law and be subject to proper safeguards, such as judicial scrutiny.” Therefore, it must be ensured that any restrictions placed upon the rights of individuals and citizens are in accordance with the rule of law to prevent unlawful infringement from occurring. This was clearly reflected in the Binyam case since it became apparent that the rule of law was not capable of being departed from regardless as to whether the person seeking protection was a terrorist or not.
This has been criticised by many since it is believed that the government used the national security card when undertaking activity that would usually be considered unlawful: “under cover of “national security” and “protecting the public” governments can embark on actions that might be unpopular, even unjust, and hope not to be called to account” (Robson, 2010: 200). This is unacceptable and unless the rule of law is continuously upheld in, democratic governance will be threatened. Essentially, it is thereby palpable that the interrogation the suspect has suffered by the Police is unlawful and contrary to the provisions of Article 3, yet the authorities may still be able to rely upon the national security defence when putting forward there reasons. This will make it much more difficult for the suspect to argue that there has been a violation of their rights under the ECHR as the police may be able to demonstrate that national security was at risk. This is because the interests of society as a whole will usually be afforded greater protection than individual interests.
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