Article 5 – Prohibition of torture

What does this right mean?

The core of this article is that no one may be tortured. Torture is the infliction of serious physical or mental pain by, or on behalf of, the government, in order to obtain a confession or to instil fear. This definition is used in the UN Convention Against Torture. This article is formulated in such a way that the prohibition is to never be violated, not in emergencies either. It is an absolute prohibition.

It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.

What is the history of this right?

The prohibition in Article 5 can be traced back to the start of modern rule of law in the 18th century. It is also called the torture ban. Because of the gruesome crimes committed in the Second World War, this prohibition was included without any discussion in the Universal Declaration of Human Rights in 1948.

In the concentration camps of the Nazi regime, the inhuman treatment of prisoners was so extreme and prevalent that this international prohibition has to be seen as a serious condemnation by the rest of the world. There was some discussion on how specific the term ‘torture’ was to be documented, but all states agreed there had to be a regulation which would absolutely prohibit torture in the future.

Where and how is this right documented?

International treaties

The prohibition of torture is also included in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966. The ICCPR has a specific addition: ‘In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’

In 1987, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was drafted. This international treaty requires all states parties to the treaty to also make torture a punishable crime in their national laws and regulations.

European treaties

The prohibition of torture is also documented at a European level: Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the European Union. In 1987, a specific anti-torture treaty was drafted as well, specifically the European Convention for the Prevention of Torture.

National regulations

In the Netherlands, the prohibition of torture was included in the Torture Treaty Implementation Act in 1989. With its implementation, the Netherlands has met its obligation from the international Convention Against Torture from 1987.

In 2003, this law was replaced by the International Crimes Act. In it, the distinction is made between the three different elements of the prohibition: torment is the deliberate causing of pain to a suspect or prisoner, while torture is a form of torment with the goal to obtain information from this person. An inhuman treatment or punishment is not required to happen for a specific goal, like with torment and torture, but is required to result in serious physical or mental pain.

How topical is this human right?

No exceptions allowed

In 2017 in the Netherlands, the suspect of a missing person and murder case was put in a transport van by the police while handcuffed and blindfolded. After that, they held a muzzled dog near his face and threatened that he would be bitten. The police was of the opinion that the importance of a quick confession would justify such an arrest. But the Supreme Court pointed out the absolute character of the prohibition to the police, which also outlaws a violation in the most urgent situations.

Prison sentence for life

Until 2016, a prison sentence for life in the Netherlands meant someone sentenced to it would be imprisoned for the rest of their life without any hope of release. In 2013, the European Court of Human Rights ruled that this punishment is in conflict with human rights, including Article 5 of the Universal Declaration. The fact that a prisoner in the Netherlands had no single possibility for release was a cruel, inhuman punishment.

The Dutch Supreme Court adopted this ruling and since 2016, those sentenced to life in prison can have the need for the punishment re-evaluated after 25 years. This does not mean every prisoner sentenced to life in prison is released after 25 years. A prison sentence for life can really last a lifetime.