Claire Methven O’Brien: Accommodation of transgender prisoners and Article 3 ECHR
Attention has recently focused on policy and practice concerning accommodation of transgender prisoners in Scotland. However, the role of Article 3 of the European Convention on Human Rights (ECHR) has been little discussed in this context. Accordingly, this post first addresses the general character of the prohibition against torture, inhuman or degrading treatment or punishment. It then outlines some of its implications for policy and decision-making in this area.
Article 3 ECHR
Article 3 ECHR protects against torture, inhuman and degrading treatment or punishment. This prohibition is absolute: unlike rights to privacy, freedom of expression and association, for instance, it cannot be balanced against other rights or policy considerations, nor suspended during public emergencies.
‘Torture’, causing ‘very serious and cruel suffering’ (Ireland v UK, Aksoy v Turkey) may be deployed to obtain information or a confession. Yet more broadly Article 3 precludes ‘intense physical or mental suffering’. In distinguishing torture, inhuman or degrading treatment or punishment, the European Court of Human Rights applies something of a graduated scale, but one that is sensitive to individual context and evolving over time.
While a first inquiry under Article 3 is whether treatment or punishment attained a ‘minimum level of severity’, consequently, this depends on ‘all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of the health of the victim etc.’ (Ireland v UK). Threats, even if not implemented (Gäfgen v Germany) may hence inflict torture if they cause ‘intense fear and apprehension’, long-term anxiety, insecurity and post-traumatic stress disorder (Akkoç v. Turkey).
‘Inhuman’ treatment or punishment may have a premeditated, as opposed to a spontaneous, character. Neither ‘very’ serious suffering nor deliberate intention is required; treatment may be inhuman ‘even in the absence of actual bodily injury or intense physical or mental suffering’ (Kudla v Poland). Treatment, or punishment, may be ‘degrading’ where it ‘humiliates or debases the individual’, diminishes dignity; arouses feelings of fear, anguish or inferiority capable of breaking resistance, or demands a victim ‘to act against his will or conscience’ (Jalloh v Germany).
For detained persons, custody entails ‘an inevitable element of suffering and humiliation’ that does not per se violate Article 3. Notwithstanding, the vulnerability inherent in detention entails a duty to guarantee prisoners’ wellbeing. Penitentiary systems must be organised ‘to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties’ (Mamedova v Russia). Suffering not strictly required by a detainee’s own conduct may diminish human dignity (Ribitsch v Germany): solitary confinement; segregation (X v Turkey); strip-searches, where not linked to security needs, or being required to undress before the opposite sex have hence breached Article 3. The duration and cumulative effect of conditions of detention (Dougoz), as well as specific impacts experienced by individuals (Kalashnikov v Russia) must be accounted in assessing whether the minimum level of severity required by Article 3 has been met.
Decisions affecting women prisoners
Article 3’s protection is universal, extending equally to all prisoners. Yet, as seen above, its threshold may vary according to the specific status and characteristics of individuals.
The distinctive rights and position of women are reflected in international standards on women’s human rights, women prisoners and their rights under Article 3. For various reasons, the starting point for such guidance, as well as the Prison Rules, is that prisoners should be accommodated on a single sex basis. Further standards underline the state duty to prevent violence against women, encompassing their psychological as well as physical safety in custodial settings.
Such materials, criminal justice research and international monitoring of UK and Scottish prisons (see e.g. here and here) highlight the vulnerable position of female prisoners, including those placed in segregation units, who may be survivors of physical violence, sexual, psychological or emotional abuse affected by trauma, mental illness, anxiety, depression, self-harm and substance misuse.
These factors are crucial in evaluating conditions of women’s detention, their consistency with the ECHR and hence their lawfulness (cf. Human Rights Act 1998, Scotland Act 1998). Decision-makers must, then, in assessing the risk of treatment breaching Article 3 look beyond risks of actual assault. Whereas detention entails direct state interference with protected rights, neither does the question of ‘balancing’ one individual’s rights under Article 3 with the protected rights of others arise, nor a necessity to show discriminatory intent or effect (cf. X v Turkey; R(FDJ) v Secretary of State for Justice  EWHC 1746 (Admin)).
Transgender prisoners and Art 3
Transgender individuals are likewise protected from ill-treatment under Art 3, whose threshold should be assessed taking their specific characteristics into account. Notably, involuntary sterilisation and gender reassignment surgery cannot be prerequisites to legal recognition of a change of gender for this reason (AP, Garcon and Nicot v France (2017); X & Y v Romania (2021). As for other prisoners, Art 3 entails for transgender persons not just protection from assault, but inter alia intimidation or harassment above a minimum threshold of severity (see above). If accommodating an individual, whether in a male or female prison, would bring a likelihood of prolonged segregation or isolation, this could breach Article 3, for reasons already highlighted, even if an allocation initially proceeds with the prisoner in question’s consent (X v Turkey).
Further, the right to access legal recognition of a change of gender under Art 8 ECHR has not to date been held to imply an automatic or absolute entitlement to allocation to a prison according to one’s preferred gender (cf. In the Matter of an Application by JR111 for Judicial Review). In any event, such protections as are conferred cannot justify infringements of the Art 3 rights of other prisoners.
Safeguarding Article 3 rights for all
For the Strasbourg court, respect for Article 3 is a crucial test of a civilised society where human dignity is honoured. Policies and decision tools, and assessments supporting specific prisoner allocations should, given its absolute character, explicitly advert to Article 3. They should also provide clear guidance on how to ensure its safeguards are practically effective for all prisoners, whether immediate subjects of accommodation decisions or otherwise affected by them.
Managing the operational consequences of this alongside other legal duties may not be easy for prison authorities. Whether existing policies and frameworks have offered adequate support to decision makers in navigating this challenge has recently been queried. Addressing any shortcomings identified in this area will therefore be an urgent task if breaches of detainees’ fundamental human rights are in future to be avoided.
References: van Dijk et al, Theory and Practice of the European Convention on Human Rights (5th edn, 2018).
Claire Methven O’Brien (BA, LLM, PhD) is Reader in Law in the School of Law, University of Dundee. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the Scottish Human Rights Commission or any other organisation.