On 13th February 2018 the European Court of Human Rights (ECtHR) issued a judgment in the case of Portu Juanenea and Sarasola Yarzabal v. Spain, condemning the Spanish State for a violation of art. 3 of the European Convention of Human Rights (ECHR) in both its material and procedural dimensions. The case stems from an episode of alleged torture or inhuman treatment perpetrated by members of the Guardia Civil [civil guard] in the context of the repression of the terrorist group ETA.
Beyond the controversy still surrounding the alleged torturous practice applied by the Guardia Civil against ETA detainees, the judgment in this case is interesting because it confirms the difficulty in drawing a clear line between the different concepts of torture on the one hand, and inhuman and degrading treatment on the other.
2. The case and judgment
The applicants, Portu Juanenea and Sarasola Yarzabal, are former members of ETA who were arrested on 6th January 2008 by a specialised antiterrorist unit of the Guardia Civil. They report that during their arrest they suffered physical and psychological ill treatment by Police officers, such as injuries and insults, and that they were subsequently taken to an isolated place where they were subjected to beatings, mock execution and waterboarding. A medical examination undertaken the following day confirmed that both had suffered injuries, the origins of which were compatible with the facts as described by the applicants.
A judicial investigation was therefore opened against 15 members of the Guardia Civil who had taken part in the arrest of the applicants. All the defendants denied the charges and declared that the injuries that were caused in the context of the arrest were an exercise of the legitimate use of force which was required to prevent the suspects from escaping.
The first-instance judgment convicted four of the defendants for the offences of injuries and torture, while acquitting the others. But this conviction was reversed by the Spanish Supreme Court which found that there was no sufficient evidence that the injuries suffered were caused by ill-treatment intentionally perpetrated by the Police officers.
The ECtHR, contrary to that judgment, concluded that there was sufficient evidence of the facts, as described by the applicants, that they had suffered inhuman and degrading treatment when they were in the custody of the Guardia Civil. As a consequence, the Court declared that Spain had violated art. 3 ECHR in its substantive dimension. Furthermore, the ECtHR found that the Spanish Supreme Court, in reversing the first-instance judgment, did not make a “scrupulous assessment” (para. 94) of the facts, as required by art. 3 ECHR, thereby violating the procedural dimension of the norm as well.
Nevertheless, the Court concluded that the facts did not meet the requirements of the definition of torture, as it has been progressively developed by ECtHR jurisprudence. However, it did find that the acts perpetrated against the applicants constituted inhuman and degrading treatment.
3. The conceptual distinction between torture and inhuman treatment in the European jurisprudence
Despite the universal acknowledgment of the ban on torture in international and regional human rights treaties, there are some significant discrepancies as to its notion and structure in the international instruments that prohibit it. Against such a fragmented framework, the ECtHR has undertaken the difficult task to clarify the definition of the constitutive elements of torture and the distinct features between this conduct and inhuman treatment. Despite its efforts, such clarification has not been reached yet.
Although art. 3 ECtHR encompasses both torture and inhuman and degrading treatment, the distinction between them is primarily relevant because universal jurisdiction is apparently consolidated only with regard to torture. Furthermore, a conviction for torture usually allows the imposition of a higher sentence and it is deemed to have a “special stigma” attached.
Through previous judgments, the Court has developed two basic criteria for distinguishing between the two prongs of art. 3. The first considers torture to be an aggravated form of inhuman treatment, implying a greater intensity of the harm or suffering inflicted, the second focuses on the requirement for a specific purpose (punishing, humiliating or getting a confession), in addition to the intentional nature of the conduct, as a distinctive feature of torture as opposed to other forms of ill-treatment.
However, in relation to the first criterion, jurisprudence has not been consistent in determining the exact threshold for an act to be qualified as torture as opposed to inhuman treatment. Actually, the Court itself has previously admitted that the classification of a particular conduct may change over time.
To interpret this requirement, the Court has developed the principle of the relative assessment, according to which one must consider both the general circumstances surrounding the facts, such as the duration of the treatment and its physical effects, as well as the circumstances relating to the specific victim, such as, sex, age and state of health. Yet, the weight attributed to each of these elements in the concrete cases varies. So too does its interpretation, as the Northern Ireland case demonstrates. Here, the combined use of the so-called five techniques of interrogation was deemed to amount to torture by the European Commission but, in contrast, was considered to be of insufficient intensity and cruelty to be qualified as such by the European Court. As a result, it was labelled by the latter as inhuman and degrading treatment, and a revision request presented by Ireland has been recently dismissed on the ground of technical reasons.
As to the second criterion developed by the Court, which focuses on the specific purpose of torture, this not only poses some problems in relation to the requirement to demonstrate of a subjective element, but also narrows the scope of the offence.
The ECtHR has also explored a combined application of the two criteria, taking into account both the scale of severity of the suffering and the existence of a specific purpose. This combined approach is also followed in the case under comment.
4. Application to the present case
The majority of the Court finds that the ill-treatment imposed on the applicants does not amount to torture because, on the one hand, it does not reach the required severity threshold and, on the other hand, there is no sufficient evidence of the existence of a specific purpose (para. 84).
This judgment therefore follows an approach based on the combined application of the two criteria developed by the ECtHR. Yet, it does not solve the uncertainties surrounding the definition of their constitutive elements, as the partially dissenting opinion (DO) demonstrates. The latter labels the facts as torture, on the basis of a different assessment of the evidence provided.
The different conclusion stems from two considerations. First, after recalling the various elements that may define particular conduct as torture, in accordance with the principle of the relative assessment (para. 72), the majority then focuses exclusively on the lack of evidence that the treatment caused long-term effects on victims (para. 84). Contrary to this, the partially dissenting opinion points out that one of the applicants had to spend five days in the hospital (3 of which were in an Intensive Care Unit) because of the injuries he suffered, and that this met the severity threshold of torture (para. 11 DO).
Second, whereas the majority found that no sufficient evidence demonstrated the existence of a specific prohibited purpose in the police officers’ behaviour (para. 84), the minority established specific purpose from the context of the arrest. Its circumstances suggested that the officers knew that the suspects were members of ETA and were eager to punish them for this membership (paras. 13-15 of the DO).
Both conclusions are, in my view, reasonable from a legal point of view, and the fact that the Court was split 4-3 in this judgment confirms the difficulty to find a shared interpretation on these highly controversial and discretional matters.
This judgment shows that, despite the significant effort by the ECtHR to define torture and inhuman treatment and to draw a clear distinction between the two concepts, the assessment of the respective constitutive elements is far from being settled. Beyond the intrinsic relativity of the principle of the relative assessment applied by the Court, maybe it has to be accepted that it is not possible at all to identify precise and consistent elements that unequivocally qualify a fact as torture. Much depends on the judges’ discretionary and inevitably subjective interpretation of the evidence, and it has to be dealt with on a case by case basis.
 ECtHR, Portu Juananea et Sarasola Yarzabal c. Espagne, No. 1653/13, 13 février 2018 (original in French). The Judgment has become final on 13th May 2018, because reference of the case to the Grand Chamber has not been requested in three months after its date.
 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 9 December 1975; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; Inter-American Convention To Prevent And Punish Torture, adopted by the Organisation of American States on 9 December 1985.
 E. Maculan, ‘Judicial definition of torture as a paradigm of cross-fertilisation. Combining harmonisation and expansion’, 2015 (84)3 Nordic Journal of International Law, 456.
 B.R. Roth, ʻJust Short of Torture. Abusive Treatment and the Limits of International Criminal Justiceʼ, 2008 (6) Journal of International Criminal Justice, 215.
 EComHR, Denmark, Norway, Sweden, Netherlands v. Greece (Greek case), 4 October 1969, No. 3321/67, 3322/67, 3323/67, 3344/67, §186; ECtHR, Gäfgen v. Germany, 1 June 2010, No. 22978/05, §90; El-Masri v. The Former Yugoslav Republic of Macedonia, 13 December 2012, No. 39630/09, §197.
 Northern Ireland case, § 162.