“depends on all the circumstances of the case such as the duration of the treatment, its physical and mental effects and in some circumstances the sex, age and state of health of the victim.”270 More recently, the Court has held that, while the severity of suffering will be a significant consideration, “there are circumstances where actual proof of the actual effect on the person may not be a major factor.”271 In general, the European judicial system has refrained from drawing up a list of acts which will automatically be considered sufficiently severe to constitute torture. The Court has always allowed itself a degree of flexibility when considering the prohibited acts, and has concluded that the Convention should be regarded as a “living instrument which must be interpreted in the light of presentday conditions.”274 This was reiterated in the strongest terms in Selmouni v France,275 in which the Court held that “[c]ertain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be Ireland v UK (1978), op. cit., §162. Keenan v UK, no. 27229/95, ECHR 2001-III, judgement of 3 April 2001, §112. 272 The Court, having established that the suffering inflicted amounted to at least inhuman and degrading treatment, stated that “it remains to establish in the instant case whether the ‘pain or suffering’ inflicted… can be defined as ‘severe’ within the meaning of Article 1 of the United Nations Convention against Torture.” Selmouni v France (1999), op. cit., §100. For a discussion of Article 1 UNCAT, see Chapter 1. 273 İlhan v Turkey, no. 22277/93, ECHR 2000-VII, judgement of 27 June 2000, §85. See also Salman v Turkey, no. 21986/93, ECHR 2000-VII, judgement of 27 June 2000; Akkoç v Turkey, nos. 22947/93 and 22948/93, ECHR 2000-X, judgement of 10 October 2000; and Bati and Others v Turkey, no. 57834/00, ECHR 2004-IV, judgement of 3 June 2004. 274 Tyrer v UK, no. 5856/72, ECHR (Series A) No. 26, judgement of 25 April 1978. See also Soering v UK (1989), op. cit., § 31; Loizidou v Turkey, no. 15318/89, ECHR (Series A) No. 310, judgement of 23 March 1995, §71; Bursuc v Romania, no. 42066/98, judgement of 12 October 2004; Mamatkulov and Askarov v Turkey, nos. 46827/99 and 46951/99, ECHR 2005-I, judgement of 4 February 2005, §121. 275 Selmouni v France (1999), op. cit. This case involved allegations of various forms of ill-treatment while the applicant was in police custody, including repeated punching, hitting with objects, and sexual abuse. 2 The European Regional System The judgement in Selmouni v France marked a milestone in the approach of the Court, in part because it contained the Court’s first reference to the definition of torture in Article 1 UNCAT.272 In making reference to this definition, the Court re-emphasised the purposive element of torture, which had been marginalised since The Greek Case. The Court has referred to the UNCAT in several of its subsequent decisions, noting in İlhan v Turkey that, “in addition to the severity of the treatment, there is a purposive element as recognised in the United Nations Convention against Torture… which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating.”273 270 271 59