Page 59 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS ISTANBUL PROTOCOL

degrading treatment or punishment.” All victims have 84. In Gäfgen v. Germany, the European Court of
direct access to the European Court of Human Rights. Human Rights held that “to threaten an individual
with torture may constitute at least inhuman
82. In its jurisprudence, the European Court of treatment” and violate article 3. 137 The Court
Human Rights has held that the guarantee enshrined later found that severity is a key distinguishing
in article 3, which is an essential element of the rule factor between torture and inhuman or degrading
of law, occupies a prominent place in the system treatment or punishment, as are purpose and
of protection of the European Convention on intention – thus bringing the understanding of what
Human Rights, as it is underlined by the fact that torture is close to that of the definition contained
no derogation from it is permissible under article 15 in the Convention against Torture, which has
in time of war or other public emergency. 132 To been cited by the Court. 138 However, the Court
fall within the scope of article 3, the Court has said did not classify these elements as exhaustive. 139
that “ill-treatment must attain a minimum level
of severity”, which is determined by assessing all 85. The European Court of Human Rights also recognized
of the circumstances of the case (e.g. duration of that rape can amount to torture under article 3 of
treatment, physical or mental effects, and the sex, age the Convention. In Aydin v. Turkey, the Court held
and health of the victim). 133 The Court also stated that “the accumulation of acts of physical and mental
that, in the absence of physical or mental injury or violence inflicted on the applicant and the especially
suffering, acts involving humiliation, the diminishing cruel act of rape to which she was subjected amounted
of human dignity, including unnecessary physical to torture in breach of article 3 of the Convention”. 140
force by law enforcement officers, or that arouses
in victims fear or anguish or inferiority capable of 86. In its decisions, the European Court of Human Rights
breaking their moral and physical resistance may has also drawn on the definition of torture used
be characterized as degrading and can fall within in the Convention against Torture to arrive at
the prohibitions established in article 3. 134 a finding of torture. In Selmouni v. France, the
Court established both that the pain and suffering
83. The European Court of Human Rights highlighted inflicted on the applicant were severe and that its
the importance of article 3 and addressed the purpose was to extract a “confession”, thus firmly
distinction between conduct that constitutes inhuman establishing that courts must consider both the
or degrading treatment and torture in Aksoy v. severity and the purpose of the inflicted suffering when
Turkey, where the applicant had been subjected to determining whether an act constitutes torture. 141
reverse suspension, beatings, electric shocks to the The Court later clarified that, although purpose was
genitals, exacerbated by having water thrown on a factor, “the absence of any such purpose cannot
him, and verbal abuse; the Court stated that the conclusively rule out the finding of a violation of
conduct in the case was “of such a serious and cruel Article 3”. 142 Additionally, the Court asserted that,
nature that it can only be described as torture”. 135 when considering whether a form of treatment was
The Court has also held that to constitute torture “degrading” within the meaning of article 3, the
under article 3, a deliberate act of inhuman treatment Court would have regard to whether its purpose was
must cause “serious and cruel suffering”. 136 “to humiliate and debase the person concerned”;
however, it again stated that an absence of purpose
did not rule out a finding of a violation of article 3. 143

132 European Court of Human Rights, Öcalan v. Turkey, application No. 46221/99, Judgment, 12 May 2005, paras. 179–183.
133 European Court of Human Rights, Bouyid v. Belgium, application No. 23380/09, Judgment, 28 September 2015, para. 86.
134 Ibid., paras. 87–88.
135 European Court of Human Rights, Aksoy v. Turkey, application No. 21987/93, Judgment, 18 December 1996, paras. 60–64, at para. 64.
136 European Court of Human Rights, Ireland v. United Kingdom, application No. 5310/71, Judgment, 18 January 1978, para. 167.
137 European Court of Human Rights, Gäfgen v. Germany, application No. 22978/05, Judgment, 1 June 2010 (rectified on 3 June 2010), para. 91.
138 European Court of Human Rights, Cestaro v. Italy, application No. 6884/11, Judgment, 7 April 2015, paras. 172–176.
139 European Court of Human Rights, Bouyid v. Belgium, paras. 100–102.
140 European Court of Human Rights, Aydin v. Turkey, application No. 23178/94, Judgment, 25 September 1997, para. 86.
141 European Court of Human Rights, Selmouni v. France, application No. 25803/94, Judgment, 28 July 1999, paras. 97–105. The Court also applied the “living instrument”
concept in Selmouni, which led it to conclude that what might not have been considered torture in 1979 when the case of Ireland v. United Kingdom was decided was
definitely considered to be torture in 1999 at the time Selmouni was decided.
142 European Court of Human Rights, V. v. United Kingdom, application No. 24888/94, Judgment, 16 December 1999, para. 71.
143 European Court of Human Rights, Kalashnikov v. Russia, application No. 47095/99, Judgment, 15 July 2002, para. 95. See also European Court of Human Rights, Peers v.
Greece, application No. 28524/95, Judgment, 19 April 2001, para. 74.

17