Chapter 8 • International Legal Standards for the Protection of Persons Deprived of Their Liberty
In a case where a juvenile court in the Isle of Man had ordered that an
adolescent be given three strokes with a cane – a punishment that was in fact executed –
the European Court of Human Rights concluded that it neither amounted to “torture”,
nor to “inhuman treatment” but that it did constitute “degrading treatment” for the
purposes of article 3 of the European Convention on Human Rights.61 The Court
examined in detail whether the punishment could be regarded as “degrading”, and
considered that the “humiliation or debasement involved must attain a particular level
and must in any event be other than that usual element of humiliation” that follows
from judicial punishment in general; the assessment was “relative”, depending “on all
the circumstances of the case and, in particular, on the nature and context of the
punishment itself and the manner and method of execution”.62 The Court’s description
of the nature of corporal punishment was explained in the following words:
“The very nature of judicial corporal punishment is that it involves one
human being inflicting physical violence on another human being.
Furthermore, it is institutionalised violence, that is in the present case
violence permitted by the law, ordered by the judicial authorities of the
State and carried out by the police authorities of the State... . Thus,
although the applicant did not suffer any severe or long-lasting physical
effects, his punishment – whereby he was treated as an object in the power
of the authorities – constituted an assault on precisely that which it is one
of the main purposes of Article 3 to protect, namely a person’s dignity and
physical integrity. Neither can it be excluded that the punishment may have
had adverse psychological effects.”63
In the view of the Court, the institutionalized character of the violence was
“further compounded by the whole aura of official procedure attending the
punishment and by the fact that those inflicting it were total strangers to the offender”.
Viewing the circumstances “as a whole”, the Court thus concluded that “the element of
humiliation attained the level inherent in the notion of ‘degrading treatment’”.64
2.3.4 Medical or scientific experimentation
According to the second sentence of article 7 of the International Covenant
on Civil and Political Rights, “no one shall be subjected without his free consent to
medical or scientific experimentation.” Failing such consent, the experimentation will
be considered to constitute a form of “torture” or “cruel, inhuman or degrading
treatment”. In its General Comment No. 20, the Human Rights Committee observed
that “special protection in regard to such experiments is necessary in the case of
persons not capable of giving valid consent, and in particular those under any form of
detention or imprisonment. Such persons should not be subjected to any medical or
scientific experimentation that may be detrimental to their health”.65 This is of course
particularly relevant with regard to people held in psychiatric hospitals.
61 Eur. Court HR, Tyrer case, judgment of 25 April 1978, Series A, No. 26, p. 14, para. 29 and p. 17, para. 35; emphasis added.
62 Ibid., p. 15, para. 30
63 Ibid., p. 16, para. 33.
64 Ibid., pp. 16-17, paras. 33 and 35.
65 United Nations Compilation of General Comments, p. 140, para. 7.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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