Condensed: Cruel or inhuman treatment is the infliction of severe physical or mental pain or suffering. Degrading treatment arouses feelings of fear, anguish and inferiority capable of humiliating and debasing.
The assessment of what constitutes inhuman or degrading treatment depends on all the circumstances of the case, including the duration and manner of the treatment, its physical or mental effects, as well as the sex, age and mental health of the victim. However, they should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental. Treatment that may be cruel, inhuman or degrading include inadequate conditions of detention, excessive or disproportionate use of force, arbitrary destruction of homes by the authorities, deportation when there is a real risk of torture or other ill-treatment in the receiving state, inadequate measures to prevent domestic violence, harmful traditional practices and trafficking. Family members of victims of enforced disappearance have been held to be victims of cruel, inhuman or degrading treatment. Corporal punishment, such as flogging and amputation constitutes cruel, inhuman or degrading punishment. Comprehensive: Cruel, inhuman or degrading treatment or punishment is prohibited in article 7 of the ICCPR and other international and regional human rights instruments.[1] The prohibition of cruel, inhuman or degrading treatment or punishment is absolute and non-derogable.[2] The UN General Assembly has declared that the ‘term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest possible protection against abuses’.[3] According to the HRC, ‘[t]he assessment of what constitutes inhuman or degrading treatment within the meaning of article 7 depends on all the circumstances of the case, including the duration and manner of the treatment, its physical or mental effects, as well as the sex, age and mental health of the victim.’[4] The HRC has not found it necessary to ‘draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.’[5] Inhuman treatment or punishment entails ‘severe pain or suffering, whether physical or mental’.[6] This is the same threshold with regard to pain and suffering as *torture*. Following this approach, what distinguishes inhuman treatment from torture is the lack of purpose with regard to inhuman treatment.[7] The HRC has held, in a case dealing with solitary confinement, that for treatment or 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.’[8] The ECtHR has held:[9] In considering whether a punishment or treatment is ‘degrading’ … 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 … This has also been described as involving treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance … or as driving the victim to act against his will or conscience. *Inhumane conditions of detention*),[10] *excessive or disproportionate use of force*,[11] arbitrary destruction of homes by the authorities,[12] (see *illegal confiscation, occupation or destruction of property*), deportation when there is a real risk of torture or other ill-treatment in the receiving state,[13] (see *non-refoulement*), *inadequate measures to prevent domestic violence*, *harmful traditional practices* (such as female genital mutilation) and *trafficking* may constitute cruel, inhuman or degrading treatment.[14] Family members of victims of *enforced disappearance* have been held to be victims of cruel, inhuman or degrading treatment.[15] Similarly the failure to inform a wife of the execution of her husband and the place of burial has been held by the HRC to constitute inhuman treatment.[16] The ACmHPR has held that to brand persons with mental illness as ‘lunatics’ and ‘idiots’ in legislation was dehumanising and therefore violated the prohibition on inhuman or degrading treatment in article 5 of the ACHPR.[17] In Osmani v Serbia, a Roma man was slapped and hit in the head by the police, in the presence of his four year old child who was also hit, when the authorities forcibly evicted him and others living in a Roma settlement. His home and personal belongings were destroyed. The CAT Committee took the view that ‘the infliction of physical and mental suffering aggravated by the complainant's particular vulnerability, due to his Roma ethnic origin and unavoidable association with a minority historically subjected to discrimination and prejudice, reaches the threshold of cruel, inhuman or degrading treatment or punishment’.[18] With regard to corporal punishment the HRC has stated that ‘flogging, amputation and stoning … are not compatible with the Covenant’[19] and recommended that ‘the imposition of such punishments should cease immediately and all laws and decrees for their imposition ... should be revoked without delay’.[20] Corporal punishment may if it causes severe physical or mental pain or suffering constitute *torture*.[21] [1] UDHR art 5; ICCPR art 7; CAT art 16; Geneva Conventions of 1949; ACHPR art 5; ACHR art 5(2); ECHR art 3. See also Inter-American Convention to Prevent and Punish Torture, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Robben Island Guidelines on Torture.
[3] Explanatory footnote to principle 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, A/RES/43/173 (1988).
[4]MG v Germany communication 1482/2006 (HRC 2008) para 9.2.
[6]Vuolanne v Finland communication 265/1987 (HRC 1989) para 9.2. See also the Elements of Crime of the Statute of the International Criminal Court which defines the war crime of ‘inhuman treatment’ as the infliction of ‘severe physical or mental pain or suffering’
[7] Special Rapporteur on Torture A/HRC/13/39 (2010) paras 60. A different approach is to see torture as particularly intense and cruel inhuman treatment, see eg Ireland v UK application 5310/71 (ECtHR 1978) para 167.
[9]Keenan v UK application 27229/95 (ECtHR 2001) para 110.
[10] Explanatory footnote to principle 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, A/RES/43/173 (1988). See also the Standard Minimum Rules for the Treatment of Prisoners.
[11]RL and M-JD v France application 44568/98 (ECtHR 2004) para 72; Dzemajl v Yugoslavia communication 161/2000 (CAT 2002) para 9.2; Osmani v Serbia Communication 261/2005 (CAT 2009).
[12]Dzemajl v Yugoslavia para 9.2; Osmani v Serbia.
[13]Alzery v Sweden communication 1416/2005 (HRC 2006) para 11.3.
[14] Special Rapporteur on Torture, A/HRC/13/39 (2010), paras 60, 76.
[15]Quinteros v Uruguay communication 107/1981 (HRC 1983) para 14.
[16]Shukurova v Tajikistan communication 1044/2002 (HRC 2006) para 8.7.
[17]Purohit and Moore v The Gambia communication 241/2001 (ACHPR 2003) para 59.
Cruel or inhuman treatment is the infliction of severe physical or mental pain or suffering. Degrading treatment arouses feelings of fear, anguish and inferiority capable of humiliating and debasing.
The assessment of what constitutes inhuman or degrading treatment depends on all the circumstances of the case, including the duration and manner of the treatment, its physical or mental effects, as well as the sex, age and mental health of the victim. However, they should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.
Treatment that may be cruel, inhuman or degrading include inadequate conditions of detention, excessive or disproportionate use of force, arbitrary destruction of homes by the authorities, deportation when there is a real risk of torture or other ill-treatment in the receiving state, inadequate measures to prevent domestic violence, harmful traditional practices and trafficking. Family members of victims of enforced disappearance have been held to be victims of cruel, inhuman or degrading treatment. Corporal punishment, such as flogging and amputation constitutes cruel, inhuman or degrading punishment.
Comprehensive:
Cruel, inhuman or degrading treatment or punishment is prohibited in article 7 of the ICCPR and other international and regional human rights instruments.[1] The prohibition of cruel, inhuman or degrading treatment or punishment is absolute and non-derogable.[2] The UN General Assembly has declared that the ‘term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest possible protection against abuses’.[3]
According to the HRC, ‘[t]he assessment of what constitutes inhuman or degrading treatment within the meaning of article 7 depends on all the circumstances of the case, including the duration and manner of the treatment, its physical or mental effects, as well as the sex, age and mental health of the victim.’[4] The HRC has not found it necessary to ‘draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.’[5]
Inhuman treatment or punishment entails ‘severe pain or suffering, whether physical or mental’.[6] This is the same threshold with regard to pain and suffering as *torture*. Following this approach, what distinguishes inhuman treatment from torture is the lack of purpose with regard to inhuman treatment.[7] The HRC has held, in a case dealing with solitary confinement, that for treatment or 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.’[8]
The ECtHR has held:[9]
In considering whether a punishment or treatment is ‘degrading’ … 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 … This has also been described as involving treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance … or as driving the victim to act against his will or conscience.
*Inhumane conditions of detention*),[10] *excessive or disproportionate use of force*,[11] arbitrary destruction of homes by the authorities,[12] (see *illegal confiscation, occupation or destruction of property*), deportation when there is a real risk of torture or other ill-treatment in the receiving state,[13] (see *non-refoulement*), *inadequate measures to prevent domestic violence*, *harmful traditional practices* (such as female genital mutilation) and *trafficking* may constitute cruel, inhuman or degrading treatment.[14] Family members of victims of *enforced disappearance* have been held to be victims of cruel, inhuman or degrading treatment.[15] Similarly the failure to inform a wife of the execution of her husband and the place of burial has been held by the HRC to constitute inhuman treatment.[16] The ACmHPR has held that to brand persons with mental illness as ‘lunatics’ and ‘idiots’ in legislation was dehumanising and therefore violated the prohibition on inhuman or degrading treatment in article 5 of the ACHPR.[17]
In Osmani v Serbia, a Roma man was slapped and hit in the head by the police, in the presence of his four year old child who was also hit, when the authorities forcibly evicted him and others living in a Roma settlement. His home and personal belongings were destroyed. The CAT Committee took the view that ‘the infliction of physical and mental suffering aggravated by the complainant's particular vulnerability, due to his Roma ethnic origin and unavoidable association with a minority historically subjected to discrimination and prejudice, reaches the threshold of cruel, inhuman or degrading treatment or punishment’.[18]
With regard to corporal punishment the HRC has stated that ‘flogging, amputation and stoning … are not compatible with the Covenant’[19] and recommended that ‘the imposition of such punishments should cease immediately and all laws and decrees for their imposition ... should be revoked without delay’.[20] Corporal punishment may if it causes severe physical or mental pain or suffering constitute *torture*.[21]
[1] UDHR art 5; ICCPR art 7; CAT art 16; Geneva Conventions of 1949; ACHPR art 5; ACHR art 5(2); ECHR art 3. See also Inter-American Convention to Prevent and Punish Torture, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Robben Island Guidelines on Torture.
[2] Art 4(2) ICCPR
[3] Explanatory footnote to principle 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, A/RES/43/173 (1988).
[4] MG v Germany communication 1482/2006 (HRC 2008) para 9.2.
[5] HRC General Comment 20 para 4.
[6] Vuolanne v Finland communication 265/1987 (HRC 1989) para 9.2. See also the Elements of Crime of the Statute of the International Criminal Court which defines the war crime of ‘inhuman treatment’ as the infliction of ‘severe physical or mental pain or suffering’
[7] Special Rapporteur on Torture A/HRC/13/39 (2010) paras 60. A different approach is to see torture as particularly intense and cruel inhuman treatment, see eg Ireland v UK application 5310/71 (ECtHR 1978) para 167.
[8] Vuolanne v Finland para 9.2.
[9] Keenan v UK application 27229/95 (ECtHR 2001) para 110.
[10] Explanatory footnote to principle 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, A/RES/43/173 (1988). See also the Standard Minimum Rules for the Treatment of Prisoners.
[11] RL and M-JD v France application 44568/98 (ECtHR 2004) para 72; Dzemajl v Yugoslavia communication 161/2000 (CAT 2002) para 9.2; Osmani v Serbia Communication 261/2005 (CAT 2009).
[12] Dzemajl v Yugoslavia para 9.2; Osmani v Serbia.
[13] Alzery v Sweden communication 1416/2005 (HRC 2006) para 11.3.
[14] Special Rapporteur on Torture, A/HRC/13/39 (2010), paras 60, 76.
[15] Quinteros v Uruguay communication 107/1981 (HRC 1983) para 14.
[16] Shukurova v Tajikistan communication 1044/2002 (HRC 2006) para 8.7.
[17] Purohit and Moore v The Gambia communication 241/2001 (ACHPR 2003) para 59.
[18] Osmani v Serbia para 10.4.
[19] HRC Concluding Observations: Sudan, UN Doc CCPR/C/79/Add.85 (1997) para 9.
[20] HRC Concluding Observations: Iraq, UN Doc CCPR/C/97/Add.84 (1997) para 12.
[21] Caesar v Trinidad and Tobago (IACtHR 2005).