health of the victim.[1]
[27] Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), has been interpreted by distinguishing the concepts primarily by the degree of suffering inflicted.[2] The European Commission of Human Rights (European Commission) described inhuman treatment as that which "causes severe suffering, mental or physical, which in the particular situation is unjustifiable" and torture as "an aggravated form of inhuman treatment.[3] The European Court of Human Rights (European Court) found the difference between torture and inhuman treatment in the fact that the former attaches "a special stigma to deliberate inhuman treatment causing very serious and cruel suffering."[4] The Court also categorised degrading conduct as that which aroused in its victims feelings of fear, anguish and inferiority leading to humiliation and debasement and possible breaking of their physical or moral resistance.[5] The same Court distinguished between inhuman and degrading punishment in Tyrer v United Kingdom,[6] and held that suffering had to reach a certain level before punishment could be characterised as inhuman. In a case where a juvenile had been sentenced to three strokes of the birch, the Court found that although that level had not been reached, the birching of the minor nevertheless amounted to degrading punishment.
[28] The Eighth Amendment to the Constitution of the United States of America (Eighth Amendment) as well as Article 12 of the Canadian Charter of Rights and Freedoms (Canadian Charter) prohibit "cruel and unusual punishment." In Furman v Georgia,[7] Brennan J postulated criteria in the assessment of what amounts to cruel and unusual
- ↑ See Vuolanne v Finland 96 ILR 649, 657.
- ↑ See P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights, (1990), 2 ed., 226-227.
- ↑ See Denmark et al v Greece: Report of 5 November 1969, Yearbook of the European Convention on Human Rights XII (1969), 186.
- ↑ The Republic of Ireland v The United Kingdom (1979–80) 2 EHRR 25, 80, paragraph 167.
- ↑ Id.
- ↑ (1979-80) 2 EHRR 1, 9, paragraph 29.
- ↑ 408 US 238 (1972). This case held that capital punishment in the then existing statute, providing for capital punishment, in the State of Georgia was unconstitutional.
