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The use of force in

The use of force in policing Page 35 for requiring any person to stand for this length of time; but if the person is old, or suffering from any illness, standing for three hours may well constitute inhuman treatment). In addition, the motive for the treatment is important. The unnecessary use of handcuffs or other physical restraints can, under certain conditions, amount to inhuman or degrading treatment. 91 An example is where an elderly or ill person, who clearly poses no threat of violence or fleeing, is handcuffed because of a blanket policy. The prohibition of torture or ill-treatment can also extend to threats. In Gäfgen v Germany, a person in police custody was threatened with ‘intolerable pain’ if he did not reveal the whereabouts of a missing child. The Court held that this threat, although not carried out, constituted inhuman treatment. 92 The application of Article 3 to any specific scenario involves two specific questions. The first question is whether the treatment or punishment in question meets the minimum level of suffering required to come within the scope of Article 3. If it does, the second is what is the appropriate label to be applied to the treatment or punishment? The first question needs to be considered with care. The punishment or treatment complained of must constitute a minimum level of severity. This is assessed by reference to all of the circumstances of the ‘treatment’ or punishment in question, including its duration and its physical and mental effects, as well as the sex, age and health of the victim. 93 This threshold test must be exceeded, and whether this has been done is assessed in the light of the prevailing circumstances. 94 Evidence of a positive intention to humiliate or to debase an individual is not strictly required for a finding of a violation of Article 3. 95 ‘Torture’ is reserved for the most serious forms of Article 3 violations. The European Court of Human Rights has defined it as ‘deliberate inhuman treatment causing very serious and cruel suffering’. 96 In contrast, ‘inhuman’ treatment or punishment involves the infliction of intense physical and mental suffering. Excessive force during arrest or questioning may constitute inhuman treatment, 97 or even torture. 91 Henaf v France, judgment of 27 November 2003. 92 Gäfgen v Germany, judgment of 1 June 2010 at paragraphs 107 and 108. 93 Jalloh v Germany, judgment of 11 July 2006 at paragraph 95. 94 Tyrer v the United Kingdom¸ judgment of 25 April 1978 at paragraphs 31 and 38. 95 Peers v Greece, judgment of 19 April 2001 at paragraph 74. 96 Ireland v the United Kingdom, judgment of 18 January 1978 at paragraph 167. 97 Ribitsch v Austria, judgment of 4 December 1995.

The European Convention on Human Rights and Policing Page 36 ■ Aksoy v Turkey was the first case involving a finding by the European Court of Human Rights that a person had been subjected to ‘torture’. The applicant was stripped naked by police officers. He was suspended by his arms, which had been tied behind his back. This resulted in the applicant suffering severe pain and temporary paralysis of both arms. The Court found that the deliberate infliction of the treatment had also required ‘a certain amount of preparation and exertion’ by state officials and its purpose appeared to have been to extract information or a confession from the applicant. 98 The infliction of ill-treatment in a premeditated manner or for a particular purpose, such as to extract a confession or information, will be considered to be an aggravating factor. Thus in determining whether 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’. 99 ‘Degrading’ treatment or punishment is ‘designed to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance’. 100 Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention. 101 In short, where a person is taken into police custody in good health and suffers injuries, there is an onus on the State to explain these injuries. 102 In addition, where it is alleged that a detained person received injuries before his detention, the police should ensure that he is medically examined upon or soon after his arrival at the police station. In a case against Moldova 103 , a detainee was held to have suffered a violation of Article 3 when he was not medically examined or provided with medical treatment for his injuries, while in police detention. 98 Aksoy v Turkey, judgment of 18 December 1996 at paragraph 64. 99 Keenan v the United Kingdom, judgment of 3 April 2001 at paragraph 111; see also Raninen v Finland, judgment of 16 December 1997 at paragraph 55. 100 Greek case, Application Nos. 3321-3/67 and 3344/67, decision of 24 January 1968 (Yearbook 12, p. 186). 101 See Tomasi v France, judgment of 27 August 1992, and the Ribitsch v Austria judgment of 4 December 1995. 102 Ciorap v Moldova, judgment of 19 June 2007 at paragraphs 60-71 and Istratii and others v Moldova, judgment of 27 March 2007 at paragraphs 68-72. 103 Lipencov v Moldova, judgment of 25 January 2011.