The European Regional System
2
classified differently in the future.” The Court took the view that “the increasingly high standard being required in the area of the protection of human rights
and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”276
Thus, the Court is not bound to follow its previous decisions, but is free to
re-evaluate case law and extend the scope of Article 3 to acts which had not
previously been regarded as torture or ill-treatment.277
2.1.2 Inhuman treatment
In The Greek Case, the Commission drew a distinction not only between torture and the other forms of ill-treatment, but also between inhuman treatment
and degrading treatment. The Commission defined inhuman treatment as “at
least such treatment as deliberately causes severe suffering, mental or physical,
which in the particular situation is unjustifiable.”278 Furthermore, in the later
case Ireland v UK, the Commission expressed the view that “any definition of
the provisions of Article 3 of the Convention must start from the notion of inhuman treatment.”279 However, the Court and Commission have given fewer
definitions of inhuman treatment than the other prohibited acts. Inhuman
treatment can be defined by reference to the other forms of ill-treatment; it is
such treatment as is not sufficiently severe, or without the purposive element,
to constitute torture, but yet which crosses the upper ‘severity threshold’ of
degrading treatment.280
The judgement in Campbell and Cosans v UK illustrates both this somewhat
ambiguous approach to the definition of inhuman treatment, and the Court’s
‘threshold of severity’ approach to the prohibited acts.281 This case involved a
threat to use corporal punishment on two school boys. The punishment did
not in fact take place, but the Court nevertheless stated that “provided it is sufficiently real and immediate a mere threat of conduct prohibited by Article 3 may
itself be in conflict with the provision. Thus to threaten an individual with torture
might in some circumstances constitute at least ‘inhuman treatment’.”282
Selmouni v France (1999), op. cit., §102.
See for example Henaf v France, no. 65436/01, ECHR 2003-XI, judgement of 27 November
2003, §55.
278
The Greek Case (1969), op. cit.
279
Ireland v UK, no. 5310/71, Commission Report (Series B) Vol. 23-I, 1976, §389.
280
See M. Evans and R. Morgan, Preventing Torture, Clarendon Press, Oxford, 1998, p. 93.
281
Campbell and Cosans v UK, nos. 7511/76 and 7743/76, ECHR (Series A) No. 48, judgement of
25 February 1982.
282
Ibid. § 26. The Court held that the threat of punishment was not sufficiently severe to constitute torture or inhuman treatment, nor did it humiliate or debase the boys sufficiently to
276
277
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