Page 60 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

ISTANBUL PROTOCOL I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS

87. The European Court of Human Rights has established they face a real risk of being subjected to torture or
that the failure to conduct an effective investigation ill-treatment (see also para. 112 et seq. below). 153
can give rise to a violation of the prohibition against
torture or ill-treatment under article 3 in cases 89. In its jurisprudence, the European Court of
regarding domestic violence, 144 violence committed Human Rights has also determined that interference
against lesbian, gay, bisexual and transgender with reproductive health rights can amount to
persons, 145 sterilization of Roma women, 146 ill-treatment 154 and that a lack of appropriate medical
police brutality 147 and enforced disappearance. 148 supervision for inmates with suicidal tendencies or
Furthermore, the Court has concluded that “an other psychosocial disabilities might lead to a violation
‘effective remedy’ entails, in addition to the payment of the prohibition against torture and ill-treatment
of compensation where appropriate, … effective access in article 3. 155 Medical procedures considered to be
for the complainant to the investigatory procedure”. 149 of therapeutic necessity (e.g. force-feeding aimed at
saving life) cannot in principle be deemed inhuman
88. Additionally, the European Court of Human Rights or degrading; medical necessity must be established,
has found violations of the Convention with regard to procedural guarantees must be followed and the
the exclusionary rule 150 and has reiterated the absolute, medical procedure must be administered in a way
non-derogable nature of article 3 in cases related that minimizes suffering. 156 If these safeguards are
to alleged acts of terrorism, stating that applicants not respected, a breach of article 3 may still occur.
suspected of or charged with terrorist-related activities
have a right to be free from torture and inhuman or 90. Deplorable living conditions in detention centres in
degrading treatment while in custody. 151 In El-Masri cases of expulsion, extradition and migration may
v. the former Yugoslav Republic of Macedonia, the also amount to a violation of article 3. The European
Court held that a secret rendition and subsequent Court of Human Rights has held that exposing minors
secret detention by the former Yugoslav Republic to poor conditions in detention centres amounts to a
of Macedonia was unlawful and a violation of violation of article 3 and has made no distinction in
article 3. 152 The Court has also consistently held that these cases based on whether the minor in question
States have an obligation not to extradite or expel was accompanied 157 or unaccompanied. 158 In both
persons, including alleged terrorists, to countries where cases, the Court found the determining factor to be

144 European Court of Human Rights, Opuz v. Turkey, application No. 33401/02, Judgment, 9 June 2009, para. 176; Eremia v. Republic of Moldova, application No. 3564/11,
Judgment, 28 May 2013, para. 67; M.G. v. Turkey, application No. 646/10, Judgment, 22 March 2016, para. 107 (official version available in French); Talpis v. Italy,
application No. 41237/14, Judgment, 2 March 2017 (rectified on 21 March 2017), paras. 129–131; and Bălşan v. Romania, application No. 49645/09, Judgment, 23
May 2017, paras. 71 and 89.
145 European Court of Human Rights, Identoba and Others v. Georgia, application No. 73235/12, Judgment, 12 May 2015, para. 71; and M.C. and A.C. v. Romania,
application No. 12060/12, Judgment, 12 April 2016, paras. 124–125.
146 European Court of Human Rights, V.C. v. Slovakia, application No. 18968/07, Judgment, 8 November 2011, paras. 109 and 120; and I.G. and Others. v. Slovakia,
application No. 15966/04, Judgment, 13 November 2012, paras. 124, 126 and 134.
147 European Court of Human Rights, Jasar v. the former Yugoslav Republic of Macedonia, application No. 69908/01, Judgment, 15 February 2007, para. 60; Petropoulou-
Tsakiris v. Greece, application No. 44803/04, Judgment, 6 December 2007, paras. 55 and 66; and Adam v. Slovakia, application No. 68066/12, Judgment, 26 July
2016, para. 82.
148 European Court of Human Rights, Er and Others. v. Turkey, application No. 23016/04, Judgment, 31 July 2012, paras. 92–97.
149 European Court of Human Rights, Aksoy v. Turkey, para. 98.
150 European Court of Human Rights, El Haski v. Belgium, application No. 649/08, Judgment, 25 September 2012, paras. 86 and 99. See also European Court of Human
Rights, Othman (Abu Qatada) v. United Kingdom, application No. 8139/09, Judgment, 17 January 2012, paras. 267, 273 and 276, in which the Court affirmed that
establishing a “real risk” that evidence had been obtained by torture was sufficient for the evidence to be excluded because of the special difficulties in proving allegations
of torture.
151 European Court of Human Rights, Martínez Sala and Others v. Spain, application No. 58438/00, Judgment, 2 November 2004, paras. 118 and 120 (official version
available in French); and Öcalan v. Turkey, paras. 179 and 192–196.
152 European Court of Human Rights, El-Masri v. the former Yugoslav Republic of Macedonia, application No. 39630/09, Judgment, 13 December 2012, paras. 215–223.
153 European Court of Human Rights, Chahal v. United Kingdom, application No. 22414/93, Judgment, 15 November 1996, paras. 73–74; Cruz Varas and Others v. Sweden,
application No. 15576/89, Judgment, 20 March 1991, paras. 69–70; and H.R. v. France, application No. 64780/09, 22 September 2011, paras. 49–65 (official version
available in French).
154 European Court of Human Rights, R.R. v. Poland, application No. 27617/04, Judgment, 26 May 2011, paras. 148–162.
155 European Court of Human Rights, Rivière v. France, application No. 33834/03, Judgment, 11 July 2006, paras. 59–77 (official version available in French); Renolde v.
France, application No. 5608/05, Judgment, 16 October 2008, paras. 119–130; Güveç v. Turkey, application No. 70337/01, Judgment, 20 January 2009, paras. 82–
99; and Ketreb v. France, application No. 38447/09, Judgment, 19 July 2012, paras. 108–116 (official version available in French).
156 European Court of Human Rights, Nevmerzhitsky v. Ukraine, application No. 54825/00, Judgment, 5 April 2005, paras. 93–99; and Ciorap v. Moldova, application
No. 12066/02, Judgment, 19 June 2007, paras. 76–89.
157 European Court of Human Rights, Popov v. France, application Nos. 39472/07 and 39474/07, Judgment, 19 January 2012, paras. 91–103; Mahmundi and Others. v.
Greece, application No. 14902/10, Judgment, 31 July 2012, paras. 61–76 (official version available in French); A.B. and Others v. France, application No. 11593/12,
Judgment, 12 July 2016, paras. 107–115; and S.F. and Others. v. Bulgaria, application No. 8138/16, Judgment, 7 December 2017, paras. 84–93.
158 European Court of Human Rights, Mohamad v. Greece, application No. 70586/11, Judgment, 11 December 2014, paras. 69–76 (official version available in French).

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