I realise this post slightly coincides with my last post but here, I seek to establish whether it is at all justifiable to torture a terrorist only in the most exceptional of circumstances.
I concede that the absolute nature of article 3 is a great thing but this is not without its criticisms. The main arguments revolve around the idea of the “Ticking Bomb Scenario” (TBS), the context of which can be demonstrated by the following example: say, for instance, a man has a bomb located in a public space. This man knows where this bomb is and has been captured and detained by police. It has a timer ticking down from 3 hours; therefore the police have 3 hours to attempt to extract the information locating the bomb and potentially save thousands of lives. How far should the police go to extract this information that they believe this man to have? Are the rights of the wrongdoer greater than that of the innocents whose lives would be lost as a result of the wrongdoer? Most would argue that the police should go as far as possible and of course no to the latter question. However, the same people will then argue how sure can one be that the person they have detained and are willing to torture, are really the culprit behind the offence? In reality we cannot be sure and this is the reason article 3 remains non derogable. For those avid fans of 24 will know that Jack Bauer does not always get it right and sometimes stabs and screams in the face of the wrong person, says sorry and walks away a hero because he always finds the bad guy in the end.... good times. However, in reality, we don't even get away with torturing the actual terrorist.
The TBS scenario presented itself in the recent case of Gäfgen where an 11 year old went missing. Gäfgen had abducted and murdered him before delivering a letter to the family claiming he had been abducted by a gang and asking for 1 million pounds in ransom. It was unknown to the police that the child was dead so were presented with a difficult situation to extract information from Gafgen as quickly as possible. The police shook him and hit his head off the wall; struck his chest causing bruising and threatened to have him sexually abused. They hardly, and somewhat disappointingly, did not go all Jack Bauer on his ass. He subsequently disclosed the whereabouts of the child and confessed to the crime. The majority of the Grand Chamber held that such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. Although the police, had in this case, overstepped the boundaries of article 3, it is hard to imagine that anyone in a similar situation would not have instinctively acted in the same way. Although it is admirable police officers are not allowed to exercise discretion in such cases (as this could lead to arbitrary treatment), exceptional circumstances cannot be catered for. Steven Greer said: “The 8 judge majority would rather the child died than the abductor is subjected to 10 minutes of anxiety from being tortured”. This bleak outlook by Greer shows how hard the courts have worked to keep the article 3 right absolute but this has not meant that fair results have been obtained. The child’s human rights were not considered in full depth but instead Gäfgen’s; the murderer’s rights prevailed and this can only be perceived as an injustice. The Kantian principle of “not using anyone as a means to another’s end” is deeply flawed in situations such as Gäfgen. If the individual is the conscious cause of the other’s “end” then there should be no hesitancy in using him to change the other’s end. In other words, there should be nothing justifiably wrong with using Gäfgen to find the child since he was the root cause of the child’s position.
However, the Grand Chamber seemed set in their ways stating that “[t]orture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk” and then further went on to say "...there can be no weighing of other interests against article 3. In the Court’s view, neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3.”
I agree that there are many problems associated with allowing torture even in exceptional circumstances but I see no other way of dealing with the TBS. We have to realise that these scenarios will be few and far between and preparing for them will not be the end of human rights as we know it. It is still possible to retain the effectiveness of article 3 even after qualifying it to the exception of "in a war or other public emergency" (similar to that of article 2, right to life).
Even if this right was to become qualified, there would be the issue of the admittance of evidence obtained by torture.In the case of Secretary of State for the Home Department (No.2)  UKHL 71 , the majority of the law lords decided that the immigration tribunal in question should refuse to admit any evidence if it is determined that such evidence was, more probably than not, obtained by torture. The same issue was brought up in Gäfgen but they concluded that there had been no breach of article 6, right to a fair trial, because the applicant had been convicted entirely on the confession made at the trial which was not tainted by the treatment he received in the police station. This makes little sense in the context of Gäfgen where he lead the police to where he had hidden the body (if we put to one side that he later gave a full confession), then surely on that evidence alone (whether it is obtained through torture or not) it is completely sound to convict him. It is reasonable to assume the opposite if the confessions they have given have not provided any leads or results. Where is the logic in disregarding evidence obtained through torture when proven by results?
It seems the ECHR is working very hard to protect the rights of the terrorist whilst forgetting about the rights of the victim. It is absurd, and frankly, extremely disappointing, to find that police will be punished for trying to the save the life of the innocent. As if the police need another incentive not to do their jobs.