The Legal Consequences of Ill-treating Detainees held for Police Questioning in Breach of Article 3 ECHR
Neil Graffin 
Citation: Graffin N., "The Legal Consequences of Ill-treating Detainees held for Police Questioning in Breach of Article 3 ECHR", (2014) 20(2) Web JCLI.
This paper is part of a wider study by this author where it is argued that the legal consequences following a breach of Article 3 ECHR when a detainee ill-treated during police questioning are underdeveloped. This paper will focus on two legal consequences which follow a breach of the provision - the admissibility of evidence obtained as a breach of Article 3 and remedies available to applicants who have had a determination that they have been a victim of a breach of Article 3. This paper argues that all confession evidence and derivative real evidence which have been obtained through a breach of Article 3 ECHR should be excluded at trial. This paper also reflects on the issue that the current mode through which victims of abuse amounting to breaches of Article are redressed is solely monetary compensation. This paper argues that the Court should further develop its remedial powers to enhance its ability to provide adequate redress to victims of breaches of Article 3 ECHR. It is argued that judicial developments in these two areas could enhance the protection of detainees held during questioning.
This paper has been adopted from wider research where it is argued that Article 3 of the European Convention on Human Rights is not an adequate tool to protect from ill-treatment detainees who are held for questioning. It is argued in this study that the legal consequences following a breach of the provision are underdeveloped, in particular following the infliction of inhuman or degrading treatment. It is proposed that a number of legal standards should be adopted by signatories to the ECHR, in the form of a Protocol, which expand upon and codify the legal consequences that, it is argued, should follow a breach of Article 3. This paper has sought to condense the scope of the wider study and has focused on two specific areas where issues have been identified with the current law of the European Court of Human Rights - the admissibility of evidence obtained in breach of Article 3 and remedies available to victims of breaches of the provision. Recommendations concerning amendments to the existing law are proposed throughout this paper.  The author is confident that the improvements identified are original, desirable and realistic and he considers that, if it were to be made, could significantly improve the protection of detainees held for questioning or provide those who have been ill-treated with more sufficient redress.
This paper is split into two parts. The first part evaluates when evidence should be excluded from a trial when, preceding the trial, a detainee has been ill-treated during the period of time that they are held for questioning. In light of recent case-law, it is the case that detainees who have been subjected to inhuman and degrading treatment (IDT) may have evidence obtained through their abuse to be admitted at their trial. It is argued that this is unacceptable and all confession evidence and derivative real evidence which have been obtained through a breach of Article 3 ECHR should be excluded at trial. There will be an evaluation of the case law of the European Court, with emphasis on three important cases - Söylemez v Turkey,  Jalloh v Germany,  and Gäfgen v Germany.  It will be argued that it should not only be evidence which has been obtained through torture which should be prohibited from inclusion at trial, but also evidence procured through other prohibited ill-treatment. It is suggested that it does not matter whether evidence has been obtained directly as a breach of Article 3 or as a consequence of statements made following a violation (so-called 'fruit of the poisoned tree' evidence). The aim of prohibiting all forms of evidence obtained through a breach of Article 3 is to provide protection to detainees, that they will not be ill-treated for the purposes of obtaining evidence from them.
The second part of this paper will seek to evaluate how the European Court of Human Rights has interpreted the international right to a remedy. It will be argued that the Court could make better use of specific and general measures under Article 46 of the Convention to develop remedies for violations of Article 3 which take place whilst a detainee is held for questioning. It will be suggested that the Court should not only award fair and equitable compensation, but should use Article 46 to require rehabilitation for victims of ill-treatment, truth-telling by the State, and apologies to the victim. It is suggested that using a wider range of remedies better fulfils the obligation of the Court of restitutio in integrum. It will also be argued that the European Court should order punitive damages for persistent breaches of Article 3 which take place when detainees are held for questioning for the purposes of deterring the use of ill-treatment.
2. The Admissibility of Evidence obtained through Inhuman or Degrading Treatment
Exclusionary rules exist in various guises throughout international and domestic law. Whilst the exclusionary rule in international human rights law for evidence obtained through torture is resolute, the exclusionary rule for evidence obtained through other forms of prohibited practices is either weak or non-existent. The failure of international human rights law to exclude evidence obtained through ill-treatment short of torture may be a sign of how difficult it can be to get States to agree to something which they believe might not be in their national interest, but it is a serious gap in basic human rights protection. This section sketches the recent developments in the European Court on the issue of whether and in what circumstances statements or real evidence obtained as a result of IDT should be declared inadmissible and, if tainted evidence is admitted at trial, what are the consequences of doing so. The European Convention lacks an express exclusionary rule of any kind. However, as Lord Bingham noted in A v. Secretary of State for the Home Department (No. 2),  recognition of the positive obligation of Article 3 extends to an implied obligation, given effect through Articles 6 and 5(4),  to adopt an exclusionary rule with regard to evidence obtained by torture.  This exclusionary rule is clear, but the exclusionary rule relating to IDT is not - both in respect of statements made during the time detainees are held for police questioning and in respect of real evidence obtained in consequence of statements made.
2.1 The Exclusion of Confession Evidence obtained through Prohibited Ill-treatment
The mandatory exclusion of statements obtained through torture has been affirmed by the European Court in a number of cases.  This section is an assessment of the European Court's jurisprudence concerning the exclusion of statements obtained as a result of prohibited ill-treatment not amounting to torture. The case of Söylemez v Turkey  illustrates that the European Court regards the inclusion of confession evidence at trial following a finding of inhuman treatment as also rendering the trial unfair. There do not appear to be any cases to date concerning the exclusion of evidence obtained after an applicant has been subjected to degrading treatment only.
Söylemez v Turkey
In Söylemez v Turkey,  the applicant, Faysal Söylemez, was arrested and taken into police custody on suspicion of murder, wounding, and false imprisonment. Whilst in custody, the Court noted that it had been established by medical reports that the applicant had been injured in custody, resulting in bruising and numbness to his arms and hands.  It was held that the injuries observed in his case had resulted from treatment that could be qualified as a breach of Article 3, amounting to inhuman treatment.  The applicant also complained under Article 6 (1) stating that he had been convicted on the basis of statements made whilst he was in custody.  The Government claimed that the applicant's conviction was based on minutes, reports, witness statements, and other evidence. It rejected the argument that statements obtained under duress in police custody were used as evidence by the prosecution.  As regards the fairness of the proceedings, the Court observed that the statements obtained from Faysal Söylemez as a result of inhuman treatment had been an item of evidence that had formed the basis for his conviction. It therefore held unanimously that there had been a violation of Article 6 (1).  In this case the Court stated:
Une déclaration faite en méconnaissance de l'article 3 est intrinsèquement dépourvue de fiabilité. De plus, l'utilisation d'une preuve obtenue en violation de l'article 3 constitue souvent la raison pour laquelle les actes de mauvais traitements sont initialement utilisés. La prise en compte d'une telle preuve pour établir la culpabilité d'une personne est incompatible avec les garanties de l'article 6 de la Convention. 
In Söylemez v Turkey the European Court is very clear on the question whether the inclusion at trial of confession evidence obtained as a result of a breach of Article 3 will render a trial unfair.  The Court did not make a distinction between inhuman treatment and degrading treatment when making its judgment. This decision therefore limits the ability of judges to take into consideration confession evidence which has been obtained even after minor breaches of Article 3. Some may argue that this is regrettable, especially if the individual is accused of very serious crimes and the confession evidence obtained is very relevant to the outcome of proceedings. Some might ask, why should an individual's confession be excluded 'merely' because he or she was punched a couple of times while in custody or kept in an overcrowded cell for days while waiting to be questioned? It is this author's contention that the Court's position is the correct one to adopt. Statements obtained as a direct result of a breach of Article 3 should not be admitted at trial. If they are included at trial, it should render the trial unfair. Even if the statements made by an accused are very relevant to the outcome of proceedings, this should remain the case. There are two arguments to be made in support of this position.
Firstly, if a contrary position is adopted agents of the State could inflict ill-treatment for the purposes of obtaining evidence. States should be ensuring as much as is possible that individuals are not ill-treated by not encouraging agents of the State to ill-treat individuals in the hope that they may say something which can be used at trial. To stop temptation, it should be the rule that a trial is unfair if evidence is admitted at trial in consequence of a breach of Article 3. Secondly, statements obtained as a result of prohibited ill-treatment have a higher propensity to be unreliable than those obtained through normal means. Therefore, the individual's right to a fair trial might be compromised by the inclusion of statements obtained through prohibited ill-treatment. The suspect's privilege against self-incrimination can be breached also. This too will be discussed further in relation to the case of Jalloh below.
There may be rare instances, when an individual has been subjected to IDT, and a subsequent confession has been made, where the ill-treatment has had no bearing whatsoever on the applicant's decision to confess. These are likely to be instances where there has been a lengthy period of time between the ill-treatment and the confession. For example, an individual may have been punched whilst being detained, but decides to confess to a crime a number of weeks later. In this instance the individual's decision to confess might be viewed to be completely independent of the ill-treatment. Where ill-treatment becomes more severe in nature, however, the lasting effect of the abuse can become a consideration when deciding whether the evidence should be excluded. So, for example, in Levinta v Moldova, where the applicants confessed 30 days after being tortured, it was still considered that the confession evidence should be excluded because the ill-treatment could have had a lasting impact on the individual's decision to confess. 
2.2 The Exclusion of Real Evidence obtained through Prohibited Ill-Treatment
This section concerns the admissibility at trial of real evidence which has been obtained as an indirect result of a breach of Article 3 - so-called 'fruit of the poisoned tree' or 'derivative evidence'. It will discuss two recent seminal decisions by the European Court - Jalloh v Germany  and Gäfgen v Germany  and will consider whether there are circumstances where real evidence might be admitted at trial which has been obtained as a breach of Article 3. This section will consider the case of Gäfgen in further detail, assessing whether the decision reached in this case was the correct one, or whether it had a bearing on the strength of Article 3 in protecting detainees from ill-treatment when they are held for questioning.
Jalloh v Germany
In Jalloh v Germany  the issue was whether real evidence found as a result of a breach of Article 3 could be used in Court. In this case policemen observed the applicant take a plastic bag out of his mouth and hand it over to another person for money. Believing that these bags contained drugs, the police officers went to arrest the applicant. As the police officers approached the applicant he swallowed another plastic bag.  The applicant was taken to a hospital where he was held down by police officers. A doctor then forcibly administered to him emetic fluids through a tube introduced into his stomach through the nose for the purposes of making him vomit. The doctor also injected him with another emetic. As a result, the applicant regurgitated one plastic bag containing cocaine. The majority of the Court accepted in this case that the treatment inflicted was in violation of Article 3 and amounted to IDT.  The question became, would it be unfair to allow the real evidence to be used in court? The Court, noting the relevance of Article 15 of the UNCAT, stated:
The Court has not found in the instant case that the applicant was subjected to torture. In its view, incriminating evidence - whether in the form of a confession or real evidence - obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture - should never be relied on as proof of the victim's guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe. 
The Court then said:
As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court observes that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. 
The importance of the privilege against self-incrimination had previously been established by the European Court in such cases as Saunders v United Kingdom.  In Saunders, the Commission held that the privilege is important in safeguarding individuals from oppression and coercion, and is linked to the principle of the presumption of innocence, applying equally to all types of accused.  The rationale for it is to 'respect the will of the defendant…not to be compelled to provide a statement'.  In Jalloh it was held that, although the drugs hidden in the suspect's body could be said to have an existence independent of his will, several factors distinguished the case from others, meaning that the principle of self-incrimination was relevant to the proceedings. These included the high degree of force used to obtain the drugs from the body of Jalloh, the violation of Article 3, and the defiance of the applicant's will in retrieving the evidence.  The Court accordingly found a violation of Article 6 § 1 of the Convention. 
The judges argued that it cannot be excluded that the use of evidence obtained by intentional acts of ill-treatment not amounting to torture will render the trial against the victim unfair, irrespective of the seriousness of the offence allegedly committed.  However, it was decided that the general question, 'whether the use of evidence obtained by an act qualified as inhuman and degrading treatment automatically renders a trial unfair', could be left open.  The concurring opinion of Judge Sir Nicolas Bratza is interesting on this point. He states:
It is true that the treatment to which the applicant was subjected has been found to be inhuman and degrading rather than torture and that the exclusionary rule in Article 15, read with Article 16, of the Torture Convention expressly distinguishes between the admission of evidence obtained by torture and that obtained by the other forms of ill-treatment. However, not only is the borderline between the various forms of ill-treatment neither immutable nor capable of precise definition, as the Court has previously recognised, but the fairness of the judicial process is in my view irreparably damaged in any case where evidence is admitted which has been obtained by the authorities of the State concerned in violation of the prohibition in Article 3. 
Bratza therefore concluded that he was prepared to go further than the majority of the Court who preferred to leave open the general question whether the use of evidence obtained by acts qualified as inhuman and degrading would automatically render a trial unfair. When an individual has been subjected to all forms of prohibited ill-treatment which results in a proven link to real evidence, it should be viewed that, the individual's privilege against self-incrimination will always be violated if the evidence is decisive in securing the conviction of the accused. There should be no distinction made between the procurement of statements and the uncovering of real evidence. The individual is being forced to incriminate him or herself through being coerced into making statements which lead to the obtainment of real evidence. This is unacceptable and is incongruent with basic human rights protections. This argument will be further developed below, with reference to the case of Gäfgen v Germany. 
Gäfgen v Germany
In Gäfgen the applicant kidnapped a boy, suffocated and killed him, depositing a ransom note stating that if the boy's parents did not give him money they would never see their son again. Gäfgen then drove to a location and hid the boy's corpse. The police kept the applicant under surveillance and arrested him as he tried to pick up ransom money.  The Deputy Chief of the Frankfurt police, Mr Daschner, out of concern that the child was in danger,  ordered another officer to threaten the applicant with physical pain, and, if necessary, to subject him to pain so that he would reveal where the boy was being held. Consequently, the officer threatened the applicant with pain and also hit him on the chest with his hand and shook him so that his head hit a wall. As a result, the applicant disclosed the location of the boy's body.  As this was taking place, the police found half of the ransom money and evidence concerning the planning of the crime.  The police also discovered tyre tracks left by the applicant's car at the scene where the body was found. The applicant was then taken to other locations where other items of evidence were identified. 
Gäfgen repeated his confession to the police, a public prosecutor, and to a district judge. At the beginning of his trial in the Frankfurt Regional Court he applied for proceedings to be discontinued on the grounds that his constitutional rights had been breached by the threats he received. Failing this, he argued that all evidence obtained following his first admission to the police as a result of the threat should be ruled inadmissible. The Court refused the applicant's first request but held that Gäfgen's admissions, made under threat in the police station, and those made afterwards, should be excluded because they had been improperly obtained. However, the Court ruled admissible the real evidence obtained, which included the boy's body, clothes and belongings, the tyre and shoe prints, and the type-writer used to type the ransom demand.  On the second day of his trial, Gäfgen confessed to the Regional Court that he had killed the boy. Later, at the close of the trial, he admitted that killing the boy had been his intention and that he made his courtroom confession out of remorse and as a form of apology.  He was found guilty. Gäfgen complained to the European Court of Human Rights that the police threats and the assault that he alleged he had received violated his rights under Article 3 of the European Convention on Human Rights. He also claimed to be a victim of a breach of Article 6 because his rights to remain silent and to defend himself effectively had been violated by the use of real evidence in his trial stemming from the violation of Article 3. 
The Grand Chamber
The Chamber of the European Court ruled against the applicant, seemingly pursuing a similar line to that of the German Court.  The applicant contested the ruling and the Grand Chamber decided to accept the case.  The Grand Chamber held in this case that there was a breach of Article 3 amounting to inhuman treatment. There were then three types of evidence at issue - the applicant's initial confession, found to have been secured as a result of a breach of Article 3, real evidence found as a result of the confession,  and untainted evidence.  Referring to the initial confession, the Court noted that the domestic court refused to bar the use of items of real evidence which had become known to the investigation authorities as a result of the statements extracted from the applicant.  Noting that special considerations always apply to evidence obtained through a breach of Article 3,  the Court stated:
As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim's guilt, irrespective of its probative value. 
In its Jalloh judgment, the Court left open the question whether the use of real evidence obtained by an act classified as inhuman and degrading treatment, but falling short of torture, always rendered a trial unfair, that is, irrespective of, in particular, the weight attached to the evidence, its probative value and the opportunities of the defendant to challenge its admission and use at trial.  Due to the connection between the discovery of the real evidence in the applicant's case and the inhuman treatment to which he had been subject, the Court stated that:
[T]he repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may… require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. However, the Court considers that both a criminal trial's fairness and the effective protection of the absolute prohibition under Article 3 in that context are only at stake if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence. 
Firstly, we should note that the majority opinion stated that Article 3 may require the exclusion of real evidence obtained in violation of the provision. There is no definitive statement that all real evidence obtained as a result of a breach of Article 3 should not be admitted at trial. It is suggested here that when there is a risk that tainted evidence could have a bearing on proceedings it should not be admitted at trial. This is not an exceptional position. The Court has already held that statements obtained through torture  and IDT  should be excluded from trial. It has also stated that all real evidence obtained through torture should be excluded.  It is contended here that the same principles should apply to prohibited ill-treatment which does not amount to torture.
There are two reasons why tainted evidence should normally be excluded at trial, both of which are outlined in the minority judgment in Gäfgen. Firstly, the exclusion of evidence obtained through prohibited means leaves State agents in no doubt as to the futility of engaging in prohibited conduct, thereby depriving them of any potential incentive for treating suspects in a manner which is inconsistent with Article 3.  It might be argued that agents of the State might be deterred from breaching Article 3 if they are aware that they will be disciplined afterwards. However, we can see in Gäfgen that, whilst the police officers in question were likely to know that they would be disciplined for breaching Article 3, because of the highly charged situation which they found themselves in, they nevertheless felt compelled to act against the suspect. Added to this is the fact that in some States disciplinary proceedings may be unlikely to be instigated or fully carried through (and any penalty imposed might be minor) and so may have less of a deterrent effect. In Gäfgen, for example, the police officers were not suspended from duty whilst being investigated or dismissed after being convicted. 
Secondly, the inclusion of real evidence at trial obtained through prohibited means can have the effect of damaging the integrity of the judicial process, resulting in a lack of public confidence in the system. This is also a point which is raised in the minority judgment in Gäfgen, where it is stated that the admission of evidence obtained through prohibited means would 'involve sacrificing core values and bringing the administration of justice into disrepute'.  If evidence can be obtained through severe ill-treatment and is later used to secure the victim's conviction, it undermines the credibility of a system which is designed to protect individuals. This is unacceptable. The rule of exclusion is a clear public statement that the use of prohibited means of interrogation is not legitimate.  Some might argue that when real evidence is so relevant to the outcome of proceedings, and the individual's crime so serious, exclusion of the evidence is inappropriate, especially when there is no concrete proof that the inclusion of the real evidence has had a bearing on the defendant's conviction. It is argued here, however, that although it might be unfortunate that often reliable and compelling evidence might be excluded at trial, and the effect of the prosecution possibly compromised, there remains no justification for the admission of evidence obtained directly through prohibited means.
In addition, as we can see, the Court introduced a further criterion according to which a breach of Article 6 hinged upon whether the use of real evidence had 'a bearing on the outcome of the proceedings against the defendant, that is, whether it had an impact on his or her conviction or sentence'. Controversially, the Court endorsed the position that the applicant's conviction was based solely on his confession at trial:
[I]t was the applicant's second confession at the trial which formed the basis of his conviction for murder and kidnapping with extortion and his sentence. The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence. It can thus be said that there was a break in the causal chain leading from the prohibited methods of investigation to the applicant's conviction and sentence in respect of the impugned real evidence....  [I]n the particular circumstances of the applicant's case, the failure to exclude the impugned real evidence, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant's conviction and sentence. 
Therefore, the Court held that the use of the derivative evidence did not render the applicant's trial as a whole unfair. Accordingly, the Grand Chamber held there was no violation of Article 6 of the Convention.  The Joint Partly Dissenting Opinions of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power disagreed with the majority.  The view of these judges was that there was a breach of Article 6 because real evidence, secured as a result of a violation of Article 3, was admitted into the applicant's trial. The breach was compounded, the judges stated, by the fact that this evidence had also been obtained in circumstances that were self-incriminating.  The judges argued that a criminal trial which admits and relies, to any extent, upon evidence obtained as a result of breaching such an absolute provision of the Convention cannot be a fair one. 
The minority judgment recalled the case of Jalloh where the question whether the use of real evidence obtained by an act falling short of torture but still within the scope of Article 3 automatically renders a trial unfair was left open. They stated that the answer given in the case of Jalloh and the reasoning adopted by the majority in Gäfgen undermines the effectiveness of the absolute rights guaranteed by Article 3. They argue that the distinction introduced into the Court's jurisprudence between the admissibility of statements obtained in breach of the prohibition of IDT and the admissibility of real evidence is difficult to sustain.  The judges contend:
We find it disturbing that the Court has introduced, for the first time, a dichotomy in principle between the types of conduct prohibited by Article 3 at least insofar as the consequences for a trial's fairness are concerned where breaches of that provision occur. In effect, the Court has concluded that real evidence obtained by inflicting inhuman treatment upon an accused person may be admitted into trial and that such a trial may nevertheless be regarded as 'fair' so long as such evidence has no bearing on the outcome of proceedings. If it can have no bearing, what, one wonders, is the purpose of its admission? And why, in principle, should the same reasoning not now apply to real evidence obtained by torture? If a break in the causal chain from torture to conviction can be established - where, for example, a torture victim chooses to confess during trial - why not permit the admission of such evidence at the outset of his trial and wait to see if any break in the causal chain might occur? The answer is manifestly obvious…. Neither 'a break in the causal chain' nor any other intellectual construct can overcome the inherent wrong that occurs when evidence obtained in violation of Article 3 is admitted into criminal proceedings. 
The majority in Gäfgen was not of the view that the real evidence procured as a breach of Article 3 had any bearing on the outcome of proceedings because the applicant later confessed at trial and thereby broke the 'chain of causation'. Therefore the trial was fair. The minority judgment did not state clearly that the chain of causation had not been broken; rather, there is an indication that the inclusion of the real evidence at trial could have had a bearing on proceedings and therefore it should not have been admitted. The minority states: '[A]n event that occurs at one stage may influence and, at times, determine what transpires at another',  and, 'If ...[the admission of the real evidence] can have no bearing, what, one wonders, is the purpose of its admission?'
This split in opinion is reflected in academic literature. Stephan Ast thinks that the confession made by the applicant at his trial broke the chain of causation.  Ast argues that the 'conviction and sentence are apparently not, or only marginally, based on the items of evidence that were found in consequence of the violation of Article 3'.  He states that the confession made by Gäfgen at trial was not a consequence of the violation of Article 3 and it was not shown in this case that the breach of Article 3 had a bearing on the outcome of the proceedings.  Essentially, Ast argues (much like the majority judgment) that it was the confession at trial which was decisive in convicting Gäfgen and that that confession was not a product of the breach of Article 3.
Martha Spurrier argues, on the other hand, that the Court fails to appreciate the potential causal link between the unsuccessful application to exclude the evidence and the confession at trial, with the result that law enforcers may think that it is worth obtaining evidence by inhuman treatment in the hope that the presence of the evidence at trial will secure a conviction. She argues, like the minority judgment, that if the real evidence obtained as a result of the ill-treatment had no bearing on the outcome of the trial, why was it admitted in the first place?  Lutz Oette regards the judgment in Gäfgen as a 'mixed blessing'. He regards the case as reaffirming the principle that evidence obtained following a breach of Article 3 should be excluded (which, to this author, it is not clear that it does), but he notes that the additional criterion now present - that there must be a causal chain between the breach of Article 3 and the evidence used to secure the conviction - creates a level of uncertainty that is prone to undermine the rule that the use of such evidence constitutes a violation of Article 6.  Oette's argument is also similar to that of the minority judgment. It is important to consider whether the decision in Gäfgen somehow undermines the protections afforded under Articles 3 and 6 because ultimately it will have a bearing on whether detainees are afforded the best possible protection from ill-treatment when held for questioning.
On its face, the breach of Article 3 had no direct bearing on Gäfgen's conviction. It was his confession at trial which resulted in his conviction. Although the real evidence which was obtained as a result of a breach of Article 3 was used to test the veracity of Gäfgen's confession, it is likely that he would have been convicted in the absence of further evidence because he confessed at trial, and because he was viewed picking up ransom money. Some may argue, therefore, that because it is the European Court's role to test whether a breach of Article 3 has a bearing on an applicant's conviction, the position adopted by the Court is correct.
The opposing argument is that the inclusion of the real evidence at trial may have had an adverse effect on proceedings because it forced the applicant to act in a way which he would not otherwise have acted. Gäfgen, at trial, was presented with evidence which was obtained through a breach of Article 3. He decided to confess, he states, originally, as a result of remorse, but later he changed his story and states that he confessed as a result of the inclusion of the real evidence at trial. The question is, was Gäfgen in fact pressurised into incriminating himself, because it looked as if he would be found guilty by the inclusion of the tainted evidence at trial?
Only Gäfgen may be able to tell us what his motives truly were in confessing at trial. Possibly his initial assertion that he was confessing out of remorse is indeed correct. He also may have confessed because he was under the impression that he was certain to be convicted anyway. Yet it is difficult to see that Gäfgen confessed because he had no choice, or that he thought confessing might benefit him in some way. It was likely to be too late in the judicial process for Gäfgen's confession to have any benefit for him with regards to sentencing. His choice to confess was, in all likelihood, entirely his own. This undermines Spurrier's suggestion that the decision in this case might mean that in future law enforcers might ill-treat detainees in the hope of obtaining evidence which could have a bearing on the trial, because it is unlikely that Gäfgen confessed at trial on account of the inclusion of the real evidence. From this perspective, this author agrees with the decision of the majority. The chain of causation was broken by Gäfgen's decision to confess. Therefore, the ill-treatment to the applicant had no bearing on the outcome of proceedings. In this respect, Article 3 is importantly not undermined, as Oette suggests it might be, by the decision in the case of Gäfgen.
3. Remedies for Breaches of Article 3 during the Interrogation Period
This section will explore the law of remedies as interpreted by the European Court of Human Rights. In the vast majority of cases before the European Court, compensation is awarded as the only remedy for a breach of the Convention. L G Loucaides has argued that the Court, through adopting this approach, has a history of not fulfilling the essential principle of restitutio in integrum.  Therefore, for detainees who have been ill-treated during the period they are held for police questioning, they may not be receiving adequate redress following a finding of a violation of Article 3. There are limitations as to what awarding monetary compensation can achieve. The idea behind awarding damages is that it should make the victim as well off as he or she would have been before the violation occurred. When an applicant has been injured while being held for questioning, damages are designed to equal the full value of the injury. Shelton rightly notes, however, that damages in cases of injury are inevitably retrospective, granted after the harm has occurred, are incapable of restoring or replacing the rights that have occurred, and are sometimes inadequate in addressing the harm.  Commentators have also observed that awarding compensation may encourage unjustifiable applications to the European Court.  This section will argue that there are a number of other ways in which a wrong could be remedied by the Court.
3.1 Non-Monetary Relief
Different types of non-monetary relief can provide a victim of a breach of Article 3 with additional, and thereby more sufficient, redress. These fall under the categories of general measures and specific measures. It will be argued that a range of general and specific remedies could be ordered under Article 46 ECHR, following recent innovations by the Court in using this Article to develop its remedial powers.
3.1.1 Specific Measures Adopted Under Article 46
According to Article 41, the Court may award just satisfaction when the domestic law of the State 'allows only partial reparation to be made'. Article 46 provides that judgments of the European Court are binding, and their execution will be supervised by the Committee of Ministers. Since its judgment in Marckx  it has been considered that the European Court's decisions are essentially declaratory in the sense that the Court leaves to States the choice of the means to be utilised in its domestic legal system for performance of its obligation, which contains an undertaking to abide by judgments of the Court.  Consequently, often non-monetary remedies have been denied because under the principle of subsidiarity the State is given the opportunity to provide redress to the applicant and no other further remedies are granted.  Notwithstanding, it can be noted that, in some more recent cases, without claims being made for non-monetary relief, the European Court has expanded on its remedial powers, relying on Article 46. It has ordered States that have breached their obligations under the Convention to provide specific non-monetary measures in favour of the victim. Article 46 states:
1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
Given the wording of Article 46, it may seem strange that it is being used by the European Court to expand its remedial powers. There is no explicit reference to any remedial powers in the Article itself and it seems that the Court has adopted a very liberal interpretation of the provision. The question therefore arises whether the Court has competence to order such remedial actions. The distinction between the choice of means and the obligation to achieve a specific result seeks to reconcile the principle of subsidiarity with the collective guarantee of the rights and freedoms protected by the Convention.  Some might argue that this compromise sought to ensure that declarations from the European Court were forceful, and that States will be more willing to comply with them because they are permitted to use their own methods to do so.
Valerio Colandrea suggests that an order by the Court to adopt individual measures can be regarded as the imposition of a duty to restore the substantial provision which the State has violated, which can be based on Article 1  of the Convention and the substantive provision which has been violated. However, Colandrea adds, the violation must have a 'continuing character' for a specific measure to be ordered.  What is meant by 'continuing character' is that the breach is still occurring, for example, where land continues to be withheld from its rightful owners, or where an applicant is being held illegally. Colandrea states that: '[A] cessation constitutes a form of restoration of the primary duty that has been infringed; it concerns the substantive obligation which the State has violated. Thus, an order by the Court to adopt individual measures can be regarded as the duty to restore the substantial provision that has been infringed'.  Colandrea notes that this approach has been adopted by the European Court in the case of Assanidze v Georgia,  where there was no general acknowledgment by the Court of the power to order specific remedies or reparation in favour of the individual. The Court acknowledged the judgment of Marckx, and the principle that States are given a choice of the means to be utilised in the domestic legal system for performance of obligations after the finding of a violation. The order, according to Colandrea, was for the cessation of the wrongful act,  and the European Court has considered it beyond its scope to order specific measures which go further than this. In the case of Assanidze this was the intention of the Court, as can be evidenced by the wording in paragraph 203 of the judgment where the Court states: '[H]aving regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 5 (1) and Article 6 (1) of the Convention, the Court considers that the respondent State must secure the applicant's release at the earliest possible date'.  However, the Court does not explicitly state that it cannot order specific measures which are aimed at anything other than ceasing a violation. Colandrea is making an assumption with regards to this, because the Court has not ordered specific measures aimed at anything other than cessation of wrongdoing. The Court has not limited its remedial powers and could (and should) be entitled to award specific measures in different circumstances.
Nifosi-Sutton has argued that the European Court should consider non-monetary relief from a right to health perspective for those in custody. She argues that the Court's practice should change so that a number of non-monetary remedies can be ordered, stating that 'when redress is not available at the domestic level, international human rights bodies replace the state in affording effective relief to victims, a relief that should be capable of rectifying harms that victims have sustained'.  She argues that in order to bring about effective relief as envisioned by international human rights law, the Court should interpret Articles 41 and 46 (1) as providing it with the authority to provide non-monetary measures to remedy right to health violations of persons deprived of their liberty arising under Article 3.  Nifosi-Sutton further argues that this bold remedial approach would shed more light on the scope of the Court's judgments and how they should be duly executed; it would induce and produce stricter compliance with Article 3, and it would solidify the Court's authority. 
It is the view of this author that the European Court should widen its remedial powers to ensure the better protection of detainees held for questioning and it could do so under Articles 41 and Article 46 (1). Although some might argue that the 'declaratory' nature of the Court's judgments is what makes them strong, this cannot be a view shared by those within the European Court, where compensation is routinely awarded, and, if compensation is routinely awarded, why cannot other remedies? Some of the non-monetary remedies which Nifosi-Sutton envisages could be awarded include apologies, regular inspections to verify that adequate medical care is provided to detainees, and human rights training for medical officers and detention staff. With the exception of the remedy of regular inspections to detention centres, which is more likely to be considered to be a general measure, the other remedies could be ordered when detainees have been abused while held for questioning. In addition to these measures, a rehabilitation programme for the victim could also be awarded (which will be discussed below).
3.1.2 General Measures Adopted Under Article 46
The European Court has also ordered general measures to be taken for systemic, continuing breaches of substantive provisions in what is known as the 'pilot judgment' procedure. General measures are aimed at avoiding repetition of an act, and according to Colandrea they are not remedial.  However, it could be argued that general measures can be remedial in the sense that they help to prevent further abuse. The pilot judgment scheme was first given prominence by Resolution Res (2004) 3 of the Committee of Ministers, which invites to Court:
I. As far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments;
II. To specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the State concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court. 
In some of these cases, the Court directly considers the domestic law of a State to be directly incompatible with the Convention. The first time the European Court tested the pilot judgment procedure was in Broniowski v Poland.  In this case, the applicant complained that changes in domestic legislation had prevented him from obtaining the benefit of compensation for land lost on the repatriation of Polish nationals who, after the Second World War, were forced to abandon their properties located in the land surrendered to the Soviet Union. The Court held that there was a violation of Article 1 of Protocol 1 of the Convention.  Citing Article 46 of the Convention as authority, the Court said:
[T]he respondent state must, primarily, either remove any hindrance to the implementation of the right of the numerous persons affected by the situation found, in respect of the applicant, to have been in breach of the Convention, or provide equivalent redress in lieu. As to the former option, the respondent state should, therefore, through appropriate legal and administrative measures, secure the effective and expeditious realisation of the entitlement in question in respect of the remaining Bug River claimants, in accordance with the principles for the protection of property rights laid down in Art.1 of Protocol No. 1, having particular regard to the principles relating to compensation. 
In Broniowski the Court noted that the violations were caused through a 'systemic problem connected with the malfunctioning of domestic legislation and practice'.  This recognition of a structural problem led the Court to make use of the 'pilot judgment' procedure in order to remove the systemic violation, identifying a particular inconsistency at the heart of the violation and calling on the respondent State to adopt general measures in order to correct the inconsistency.  The Court has recently used pilot judgements in cases involving Article 3. In Ananyev and others v Russia,  as well as identifying an issue with recourse to pre-trial detention, the Court observed that conditions in Russian prisons represented a 'recurrent structural problem',  noting that there were already 90 judgments which had found violations of Article 3 in this context. The Court stated:
[T]he set of facts underlying these violations was substantially similar: detainees suffered inhuman and degrading treatment on account of an acute lack of personal space in their cells, a shortage of sleeping places, unjustified restrictions on access to natural light and air, and non-existent privacy when using the sanitary facilities. 
In this case the European Court identified various measures which should be adopted by the Russian Government to reduce recourse to pre-trial detention,  as well as measures designed to prevent and alleviate overcrowding in prisons.  The Court also recommended that Russian prisons adopt an efficient system for detainees' complaints,  stating that when a violation of Article 3 has occurred the State must be prepared to acknowledge the violation and award compensation. 
In the case of Torreggiani and others v Italy  the Court noted that the applicant had been held in conditions where he had restricted personal space. The Court found a violation of Article 3, noting that the violation was symptomatic of a general issue within Italian prisons, which could be evidenced by several hundred applications before the Court. In this case the Court ordered that general measures be taken to alleviate the 'the existence of structural problems from which the violations derive and indicate the specific measures or actions that the defendant state must undertake to remedy them'.  The Court noted that the ECHR requires the State to 'organise its prison system in such a way as to respect the dignity of detainees'.  If it cannot do this 'the Court encourages it to act so as to reduce the number of imprisoned people, particularly by using punitive measures that do not deprive people's freedom more often'. 
The Court has not gone so far as to order general measures when a detainee has been ill-treated when held for questioning. It might be argued that the pilot judgment procedure has no relevance to this type of ill-treatment because the procedure is used to prevent systemic abuse taking place, whereas ill-treatment which takes place during the interrogation period tends to take place in isolation. Nonetheless, general measures could be ordered for a number of reasons when ill-treatment takes place during the interrogation period. For example, it be recommended that rehabilitation centres be set up for victims of ill-treatment. General measures might also be recommended if it is decided that there is a systemic issue around the non-investigation of claims of ill-treatment. It has been argued in recent cases that there is an administrative practice of not investigating claims of ill-treatment by the Russian security services in Chechnya. In the case of Khashiyev and Akayeva v Russia  the applicant's relatives were killed in Grozny during an operation in 1999 to 2000 by the Russian federal army, which was trying to take control of the city. There was evidence to suggest that the applicant's relatives had been tortured before their death.  The applicants argued in the admissibility decision:
[T]here is an administrative practice of non-compliance with the requirement to investigate effectively abuses committed by Russian servicemen and members of the police, both in time of peace and war. 
Similarly, in Isayev and others v Russia  the applicants stated that they considered that it was standard administrative practice not to investigate crimes committed by members of the federal forces in the Chechen Republic.  Although in both these cases, the Court did not find an administrative practice of not investigating claims of ill-treatment,  the cases do raise the prospect that States might not commit to their obligation to investigate ill-treatment against detainees held for questioning. If this were to happen, it might be appropriate for the Court to order reform of the investigatory function of the State as part of a pilot judgment. 
3.2 Rehabilitation for Victims of IDT
Article 14 of the United Nations Convention against Torture reads that every State Party shall ensure that each victim of torture has an enforceable right to as full a rehabilitation as possible.  The Inter-American Court has also argued for rehabilitation for victims or their families in its cases. In the case of Nineteen Tradesmen v Columbia  it required the State to provide, through its national health institutions, free medical and psychological care to the family members of the nineteen executed victims. The Court went further than just to order money to be awarded for rehabilitation, specifically ordering as well that 'psychological treatment must be provided that takes into account the particular circumstances and needs of each of the next of kin'.  The Court has also ordered, with particular imagination, scholarships to higher education,  the chance to update professional skills,  and scholarships to complete primary and secondary studies.  All this demonstrates that the Inter-American Court is not only keen on compensating the victim with money, but also on ensuring that the victim has the chance to fully reintegrate back into the community.
The Committee against Torture promotes the idea that States should aid with the rehabilitation of victims of torture and IDT. The CAT has recommended rehabilitative programmes through its State reporting and individual complaints procedures. For example, in 2003 the Committee recommended that Turkey,inter alia, should provide rehabilitation to victims of torture and ill-treatment.  In Recommendations to Hungary in 2007 the Committee recommended that the State party strengthen its efforts in respect of compensation, redress and rehabilitation in order to provide victims with redress and fair and adequate compensation, including the means for as full rehabilitation as possible.  The Committee has also asked States to establish specific programmes of care and support, including the treatment of trauma and other forms of rehabilitation, in respect of victims of torture and ill-treatment, and to provide adequate resources to ensure their effective functioning.  The Committee has stated that such programmes should provide for physical, psychological and social rehabilitation to 'the fullest extent as possible',  and has asked for further information on the functioning of these programmes.  The Human Rights Committee has also recognised rehabilitation, involving medical and psychological care, to be a form of reparation for survivors of torture  and IDT. 
A recommendation for rehabilitation could be made by the European Court under Article 46 of the Convention as a specific measure. It would probably be enough for the European Court, along with awarding compensation, to order that medical and psychological care be provided for detainees. The Court may not need to go as far as the Inter-American Court of Human Rights and order such rehabilitative measures as scholarships to higher education etcetera. In the case where educational and professional support was ordered, Nineteen Tradesmen v Columbia,  these remedies were available to the families of 19 men who had been executed. One can appreciate that where abuse has taken place on such a scale such developed rehabilitative measures should be ordered. Yet, it does not seem appropriate when there have been single instances of human rights abuse - it appears to go too far. Additionally, it might be difficult for the Committee of Ministers to supervise whether a detainee or his or her family has been offered educational and professional support after a breach of Article 3. That is not to suggest that the European Court has to rule out the possibility of recommending such a remedy in the future, if it was faced with a mass violation of human rights. It may just not be appropriate at present. If rehabilitation centres or programmes are found to be lacking because they cannot adequately address the needs of victims of ill-treatment, or they are under-funded, it could be recommended by the Court, through a general measure under Article 46, that they are brought up to an adequate standard. This is in keeping with the view of the Committee against Torture, which advocates that States should establish specific programmes for rehabilitation.
3.3 Truth Telling
The Inter-American Commission has considered that 'every society has the inalienable right to know the truth about past events, as well as the motives and the circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future'.  It appears that it is only the Inter-American Court which will order, by way of reparation, the truth to be publicised. In the case of Molina-Theissen v Guatemala  the Court issued a declaration establishing the causes and consequences of the disappearance of Marco Antonio Molina Theissen, the modus operandi of the State in disappearing 'the missing children', the institutional actors involved in the incident, and the State's actions and omissions which violated its international responsibility.  Similarly, in Humberto Sánchez v Honduras  the Inter-American Court stated that it was necessary for…
[T]he State to conduct an effective investigation of the facts of this case, to identify those responsible for them, both the direct perpetrators and those who instigated them, as well as possible accessories after the fact, and to punish them administratively and criminally as appropriate... The results of those investigations must be made known to the public, for Honduran society to know the truth. 
One type of reparations order related to truth telling is an order to publish a judgment in the national newspapers of an offending state. This remedy was introduced in the case of Cantoral Benavides v Peru  and has been applied in nearly every subsequent case.  In Tibi v Ecuador,  the Court ordered the State to publish relevant parts of its decision in the State publication, Diario Official, in another Ecuadorian newspaper, and in a French newspaper.  Additionally, the State was ordered to acknowledge its international responsibility for the events that transpired in the case through a written declaration.  Antkowiak observes that it is difficult to argue with the general approach of publishing stories of human rights abuse in newspapers, as it serves many purposes, including clearing the name of the victim. However he urges caution in applying it to every case - such as where the victims face persecution or could face dangers of theft if there was monetary compensation involved. 
The European Court does not appear to have developed its jurisprudence in relation to truth telling. Although all cases are published through the online database, HUDOC, States have never been ordered to publish the outcome of human rights cases in national newspapers. In most Council of Europe States it is likely that there will be some reporting of the key facts of a particular case, but the identity and motivation of perpetrators may be withheld. However, freedom of the press can be an issue in some European States. In Russia, for example, the media is largely state-controlled, the product of President Putin's assertion of power over the media in the early 2000s. A recent report by an independent think tank, Freedom of the Press 2013, ranks Russia as 148th out of 179 countries on freedom of the press. 
It is important that human rights abuse is publicly acknowledged. If a central aim of the European Court's judgments is to shame States into complying with the substantive provisions of the ECHR, this would seriously be compromised if individuals within the State where human rights abuse occurs are unaware of its incidence. It is therefore suggested that when a finding of a breach of Article 3 has been made, when a detainee has been ill-treated while being held for questioning (or in other circumstances), and if it is clear that freedom of press is an issue in the respondent State, it might be appropriate for a recommendation to be made by the European Court that the abuse is published in a national newspaper so that the truth can be made widely known. The Inter-American Court orders this in all cases and its motivation is likely to be that freedom of the press cannot be guaranteed in some South American states. In the Freedom of Press 2013 report no South American state is ranked below Russia. When telling the truth, the motivation of the perpetrators might be published, unless there is a national security reason for not doing so. Similarly, it may also not be appropriate to publish the identity of a perpetrator. If an agent of the State has been accused of ill-treating a terrorist while he or she is being held for questioning, for the perpetrator's safety it may not be appropriate for his or her name to be published widely. The truth should still be made public, serving as a deterrent against future breaches of Article 3.
After a breach of the European Convention has occurred there is currently no requirement for a State to acknowledge responsibility for the breach, or to apologise to the victim. As a result, a public acknowledgement by the State that it wronged the victim very rarely occurs. In South America, however, there is an increasing practice whereby States issue an apology to victims after accepting responsibility for violations. Apologies were first ordered by the Inter-American Court in the hearings of Molina Theissen  and Plan de Sánchez.  In Molina Theissen, in a case where a fourteen year old boy was kidnapped from his father's home by members of the Guatemalan Army, and subsequently became one of the disappeared, the Court ordered that the Guatemalan state hold a public official ceremony attended by senior government officials, including representatives of the Army of Guatemala, recognising state responsibility for the facts and apologising to the family of the victim.  Likewise, in Plan de Sánchez, a case which concerned the massacre of over 250 people by members of the armed forces, the Court stated:
[T]he State's [i.e. Guatemala's] acknowledgment of responsibility made a positive contribution to the evolution of this proceeding and to the application of the principles that inspire the American Convention. The Court also recognizes that, during the public hearing held on April 24, 2004, the State manifested 'its profound regret for the events endured and suffered by the Plan de Sánchez community on July 18, 1982, and apologised to the victims, the survivors and the next of kin, as an initial sign of respect, reparation and guarantee of non-repetition'. However, for this declaration to be fully effective as reparation to the victims and serve as a guarantee of non-repetition, the Court considers that the State must organize a public act acknowledging its responsibility for the events that occurred in this case to make reparation to the victims. The act should be carried out in the village of Plan de Sánchez, where the massacre occurred, in the presence of high-ranking State authorities and, in particular, in the presence of the members of the Plan de Sánchez community and the other victims in this case, inhabitants of the villages of Chipuerta, Joya de Ramos, Raxjut, Volcanillo, Coxojabaj, Las Tunas, Las Minas, Las Ventanas, Ixchel, Chiac, Concul and Chichupac; the leaders of these affected communities must also take part in the act. The State must provide the means to facilitate the presence of these persons in the said act. Also, Guatemala must conduct this act in both Spanish and in Maya-Achí, and publicize it in the media. 
Antkowiak highlights that the most memorable instance where apologies were made occurred in the 2005 case of Gutiérrez-Soler v Colombia,  where each State representative rose, walked across the aisle, and personally requested forgiveness from the victim and his family.  The State commented that it understood its actions to constitute a measure of satisfaction directed to the 'dignification of the victim' and his or her family members. 
Apologies have been ordered as a remedy in other jurisdictions also. Apologies were offered by the United States for the internment of Japanese-Americans in camps during World War II and to African Americans for the Tuskegee experiments.  In response to the latest Bloody Sunday Inquiry in the United Kingdom, the Prime Minister also made a public state apology.  The UK's Ministry of Defence has also apologised for some deaths investigated by the Historical Enquiries Team within the Police Service of Northern Ireland, including the unlawful deaths of Majella O' Hare  and William McGreanery.  The British Foreign Secretary, William Hague, has also issued a 'statement of regret' for the torture, maiming, and execution of Mau Mau rebels who took up arms against the British in 1952. 
According to John Braithwaite's studies of restorative justice conferences,  'material reparation was much less important than emotional or symbolic reparation', observing that 'victims often wanted an apology more than compensation'.  Antkowiak suggests that these results 'confirm the preceding findings of psychologists and truth commissions after gross violations of human rights: the victim most desires recognition of the truth, an apology, and other moral amends from the offender'.  Antkowiak, criticising the American judicial system, states that the criminal justice system should incorporate the acknowledgement of truth and an apology into its remedial practices.  He further states that 'the American emphasis on monetary damages is a completely inadequate method of providing true satisfaction to victims'.  The same might be said for the European human rights system.
Ordering apologies may not always be appropriate. If a State is very unwilling to offer remorse for a human rights violation, it may not be suitable that apologies are part of the remedial process. A coerced apology is likely to have limited value to the healing of the victim, and a refusal to apologise by the State might prolong a victim's ability to achieve closure over an issue. Nevertheless, there is often value in apologies being made after the finding of a violation, if the State is willing to accept responsibility for its failings. Apologies are not difficult to make when wrong-doing has been established. Apologies might be published along with the facts of a case in a national paper, so that the State fully accepts responsibility for the ill-treatment, or they might be relayed privately to the victim. The European Court is likely not to need to go as far as the Inter-American Court, where apologies were offered personally in the court room, but some public acknowledgement of wrong-doing could provide partial redress to a victim of ill-treatment obtained during the period that detainees are held for police questioning.
3.5 Punitive Damages
This section is an exploration of the question whether punitive damages can be awarded by the European Court when States flagrantly or consistently disregard Article 3 protections relating to detainees held for questioning. There are a number of reasons why states strive to comply with the European Convention system, including a wish to promote human rights values at home and, internationally, to respect the rule of law and to avoid the embarrassment of being named and shamed.  When States systemically commit human rights abuses, they are avoiding their obligations to promote human rights, are stepping outside the rule of law, and are effectively saying to the international community that they are willing to live with the shame. How do we protect human rights when this is the case and, more particularly, how can States be deterred from committing human rights breaches against detainees held for questioning? Are punitive damages the answer?
3.5.1 Punitive Damages in International Human Rights Law
The Inter-American Court has not awarded punitive damages for even the most egregious human rights violations.  The Court has stated that any reparations order must be proportionate to the violation.  It has often stated that reparations are not designed to enrich the claimant or his or her heirs.  Pasqualucci states that this is not surprising, as punitive damages are not authorised in civil law systems, and even in the United States they are often under attack.  In American systems domestic courts may award punitive damages when a wrongful act is aggravated by violence, oppression, malice or wanton and wicked conduct by the defendant. The award of punitive damages is then meant to punish the defendant and to set a deterring example for others. In these cases the plaintiff will receive above and beyond what he or she would otherwise 'deserve' as compensation. The Inter-American Court has therefore stated that it does not have the power to award punitive damages, stating that it is not a penal court.  Pasqualucci, however, argues that punitive damages are justifiable in cases of gross and systemic violations of human rights, but argues that the widespread poverty in many countries within the Inter-American system mitigates against the award of large sums to relatively few victims. 
Shelton, on the other hand, argues for the use of punitive damages. Shelton's argument rests primarily on the basis that damages are required to have a deterrent effect. She states that 'the sum required to make the victim whole may be too lenient to deter or admonish the wrongdoer' and adds that 'the allowance of punitive, punitive or aggravated damages is one way partially to separate the compensation from sanction and deterrence'.  Therefore, punitive damages would be awarded where deterrence is the key concern. Shelton adds that a defendant could otherwise potentially 'buy off' a breach of the Convention:
In many instances the wrongdoer achieves an advantage through inflicting the harm. In this type of case, where the actor's gain may be as great as or greater than the loss of the injured, the wrongdoer can pay compensatory damages and still be or consider itself to be in a position as good as or better than it was before the commission of the wrong. This is true in many human rights cases where the State may feel it worthwhile to pay compensatory damages to get rid of political disaster or silence a critical press. 
Laplante also explores the question whether punitive damages should be awarded by the Inter-American Court.  Laplante argues that the true test of effectiveness of the Court's use of reparations is its impact on the behaviour of States, not only in terms of paying off judgments ordered by the Court but also in erecting human rights protections within their own States.  Laplante proposes that the Court should move away from depending on the strict compensatory rationale that links reparations to the harm suffered by the victim and begin sanctioning States for human rights violations just enough to give them an incentive to alter their practices:
States may be motivated to guarantee the right to a remedy within its domestic jurisdiction, thus eliminating the dependence of victims on the Inter-American Court. Alternatively, until the Court strengthens the deterrence function of its reparation judgments, States may be more likely to comply with the Court's reparation judgments, paying compensation to a handful of successful litigants, while allowing impunity to reign with respect to the majority of other human rights complaints. 
Laplante's argument is based largely on the premise that States will be prevented from committing violations of human rights because 'economic analysis' will inform 'choices of efficiency and changes in the State's future behaviour…' and that 'states will take measures to prevent future transgressions in order to avoid future costs of litigation'. 
Under this economic paradigm, States may calculate that it is less costly to ensure that their agents… conduct themselves in conformity with international human rights norms. Where training fails, investigation and appropriate punishment, perhaps even prosecution, will be consistently applied so that individuals acting on behalf of the State will consider the real consequences of violating rights in the future and hopefully have the incentive not to commit subsequent violations of human rights. 
In the United States international human rights litigation has resulted in the awards of substantial punitive damages. In Filartiga v Pena-Irala  an action was brought under the United States Alien Tort Claims Act and a judge awarded punitive damages against a Paraguayan torturer. It was held that, because Pena could not be prosecuted under the statute, 'the objective of the international law making torture punishable as a crime can only be vindicated by imposing punitive damages'.  The Court considered chiefly that the case did not 'concern a local tort but a wrong as to which the world has seen fit to speak. Punitive damages are designed not merely to teach a defendant not to repeat his conduct but to deter others from following his example'. 
The European Court of Human Rights has not to this date awarded punitive damages,  although in fact the European Court may have a stronger textual basis to do so. As Shelton argues, the term 'satisfaction' has a broader meaning than what is reflected in the judgments of the European Court.  Applicants first argued for an award of punitive damages in the case of Silver v United Kingdom, where seven applicants complained that the control of their mail by prison authorities breached their rights to respect for correspondence and to freedom of expression, but the Court denied such an award.  In a number of Turkish cases, the applicants made claims for punitive damages on the basis that their complaints were deliberate violations of the fundamental rights guaranteed under Articles 2 and 3.  For example, in Selcuk and Asker v Turkey,  where the applicants complained of the destruction of their properties and a subsequent breach was found of Article 3 and 8, the Court denied each claim for punitive damages without comment. In Mentes and others v Turkey  the applicants claimed that as part of an administrative practice of destruction and ill-treatment their homes had been burned down by the security forces. In this case the Court again rejected the claim for punitive damages. Recently some within the Council of Europe have suggested that it is plausible that punitive damages could be ordered. Herta Däubler-Gmelin, Chairperson of the Parliamentary Assembly of the Council or Europe leading up to the Interlaken Conference, in Preparatory Contributions, stated that:
It is totally absurd for the Court and its staff to waste time and effort in dealing with repetitive applications. Surely old democracies, like Italy, not to mention more recent 'persistent defaulters' such as Moldova, Poland, Romania, Russia and Ukraine, ought to be subjected to 'aggravated', if not 'punitive' damages. 
It is submitted here that the imposition of penalty payments for repeated breaches of Article 3 against detainees held for questioning should be considered when violations are systemic. Before this argument is developed we will look at another European institution - the Court of Justice of the European Union (CJEU) - to see how this body has awarded punitive damages as a way of deterring States from breaching EU law.
3.5.2 Punitive Damages in the European Union
It is submitted here that lessons can be learned from the CJEU. The European Commission introduced a system of financially penalising states, through the Maastricht Treaty, as a way of combating increasing Member State non-compliance with Community obligations under the then Article 169 EC (now 226).  The new power is in the second paragraph of Article 228 (2) which reads as follows:
If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time-limit laid down by the Commission, the latter may bring the case before the Court of Justice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State which it considers appropriate in the circumstances. If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment upon it. 
In August 1996 the European Commission published a memorandum setting out how it proposed to deal with the issue of financial penalties under Article 228 (then 171) EC.  The memorandum set out the three fundamental criteria that dictate how penalty payments are to be calculated. These are: the seriousness of the infringement, its duration and the need to ensure that the penalty is a deterrent to future infringements.  In February 1997 the Commission published its proposed method of calculating penalty payments.  This documented stated that penalty payments were the most effective way of ensuring compliance, although the possibility of asking for a lump sum was not ruled out.
The European Court of Justice has issued penalties in a number of cases. In a case in 2000 against Greece, concerning the proper disposal of waste, the State was penalised by a daily payment of 20,000 Euro.  In the second case, Spain was accused of failing to take appropriate measures to ensure that inland bathing waters complied with relevant directives.  In this case the Court required that Spain paid an annual penalty payment of €624,150 for each 1 percent of its bathing areas not in compliance with the relevant directive. In the end, Spain paid nothing, as the Commission decided that 95 percent compliance with the directive was adequate.  Remarkably, in a case against France concerning its obligations under the Common Fisheries Policy, a lump sum payment was ordered, as well as a penalty payment. This amounted to a lump sum payment of €20 million and a penalty payment of €57,761,250 for each half year that France remained in breach of its obligations.  A further notable feature of this case is the fact that the Court had previously never been willing to penalise Member States for past behaviour. Kilbey believes that the deterrent effect of being able to be punished for past indiscretions may be a factor Member States will take into account when deciding whether to breach their obligations under EU law. 
The intention of the EU in ordering financial penalties is to deter Member States from acting contrary to its law. The CJEU can fine Member States for continuing breaches of its law, as well as past breaches. The European Court of Human Rights currently orders payments to be made to applicants as 'just satisfaction', but the payments made to applicants are likely to have little deterrent effect because of how small they are. For a penalty to have a deterrent effect (if States are not deterred by the shame of committing human rights violations) it must be substantial. It may be difficult to reconcile some States to the idea that they could face punitive sanctions, but sanctions would only be pursued if States were viewed to be continually in breach of Convention rights. It is argued here that the awards could take the form of a fine, rather than a direct award to an applicant. The award could go to the Court directly, or could be filtered to another organisation, with the applicant compensated separately. What strikes this author as an interesting idea, when ill-treatment has taken place, is that a punitive award could be used to help sponsor an organisation such as the International Rehabilitation Council for Torture Victims.
The CJEU awards damages where Member States have acted contrary to its law in single instances by not following its directives. Shelton and Laplante seem to support the imposition of punitive damages for single instances of human rights abuse, arguing that the deterrent effect of economic sanctions will eventually have a discouraging effect. It is argued here, however, that punitive damages should not be awarded in individual instances of human rights abuse where there is no previous history of violations taking place. Although there is a deterrent effect in awarding punitive damages, orders should be made sparingly. Excessive recourse to awarding punitive damages is likely to cause resentment among the Contracting Parties, resulting in non-compliance and negative feelings about the system as a whole. Punitive damages should be considered only when there is a systemic issue. An issue can become systemic when there are a considerable number of breaches arising from the actions of State agents in a particular Contracting Party. For example, in 2010 there were 109 breaches of Article 3 found against Russia.  A substantial number of these cases concerned issues where detainees were ill-treated while held for questioning. This could be seen to be an endemic problem where the imposition of punitive damages could be appropriate (the same might be said for Turkey where it appears that the 'third degree' may be, to an extent, still tolerated). 
As stated above, the CJEU can order penalty payments to be made for continuing breaches of EU law and/or lump sum payments. Whereas penalty payments may be appropriate in cases where the Signatory State is not complying with a judgment of the European Convention (as, for example, the UK is currently doing by not amending its laws on allowing prisoners to vote), the breach will need to be continuing for penalty payments to be appropriate. When breaches of Article 3 take place while detainees are held for questioning, the ill-treatment will have ceased by the time the case comes to court, therefore it is much more likely that the payment of a lump sum will be appropriate. It is beyond the scope of this study to detail specifically what might be an appropriate sum for a punitive fine by the European Court, but penalties should take account of the seriousness of the breaches taking place. They should also be sufficient to serve as a deterrent against future breaches. If the Court decides to award punitive damages the Committee of Ministers will have to try to enforce the payment of the damages by exerting political pressure on the respondent State.
This paper demonstrates that there is a lot which the European Court can do to aid in the protection of detainees who are held for police questioning. In respect of evidence obtained following IDT, it appears incongruent to the protections afforded by the Article that the question can be left open whether real evidence can be admitted at trial if it has been obtained through a breach of the provision. This area of the Court's law needs to be strengthened so that law enforcers know that it is futile ill-treating suspects in the hope that further real evidence may be uncovered. The Court, it is argued, should also develop its remedial powers following breaches of Article 3. The Inter-American Court has shown how an international arbitrator on human rights issues can provide additional means to better fulfilling the principle of restitutio in integrum following human rights violations. The development of the European Court's remedial powers could have substantial benefits in affording redress to victims of ill-treatment. The ordering of punitive damages for those States who flagrantly breach Article 3 protections could also have its own substantial benefits. It has been demonstrated at a supranational level by the EU that punitive damages can have a deter breaches of EU law, a similar result might be achieved by the European Court in deterring States from committing human rights abuses. It is this author's view that if the recommendations presented throughout this paper are accepted they could be a significant contribution to this area of law and they will ultimately lead to the greater protection of detainees from ill-treatment and the establishment of a system of more adequate redress for victims.
 It is this author's intention to publish further work on the other aspects of the study. The other issues considered include the prohibition of specific methods of interrogation, the investigation of prohibited ill-treatment and the punishment of those who ill-treat detainees held for questioning. To limit the scope of this paper, the author has also chosen not to discuss the adoption of legal standards in the form of a Protocol but has chosen to highlight the changes he wishes to be made in the form of recommendations.
 Söylemez v Turkey (Application no 46661/99) Judgment of 21 September 2006 (Only available in French); see also, Göçmen v Turkey (Application no 72000/01) Judgment of 17 October 2006 (Only available in French).
 Jalloh v Germany (2007) 44 EHRR 32.
 Gäfgen v Germany (2010) 52 EHRR 1, para 13.
 A v Secretary of State for the Home Department, 1  UKHL 71.
 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
 A v Secretary of State for the Home Department, 1  UKHL 71, para 26.
 See Levinta v Moldova (2011) 52 EHRR 40; Örs and others v Turkey (Application no 46213/99) Judgment of 3 June 2010; As hot Harutyunjan v Armenia (Application no 34334/04) Judgment of 15 June 2010.
 Söylemez v Turkey (Application no 46661/99) Judgment of 21 September 2006 (Only available in French); this was affirmed in the case of, Göçmen v Turkey (Application no 72000/01) Judgment of 17 October 2006 (Only available in French).
 Söylemez v Turkey (Application no 46661/99) Judgment of 21 September 2006 (Only available in French).
 Ibid, para 106.
 Ibid , paras 107-108.
 Ibid, para 109.
 Ibid, para 120.
 Ibid, para 125.
 Ibid , para 122; This translates as: 'A declaration made in breach of Article 3 is intrinsically devoid of reliability. In addition, the use of evidence obtained in violation of Article 3 is often the reason why acts of abuse are initially used. Consideration of such evidence to establish the guilt of a person is incompatible with the guarantees of Article 6 of the Convention'.
 This has been confirmed in Göçmen v Turkey (Application no 72000/01) Judgment of 17 October 2006.
 Levinta v Moldova (2011) 52 EHRR 40, para 17.
 Jalloh v Germany (2007) 44 EHRR 32.
 Gäfgen v Germany (2010) 52 EHRR 1, para 13.
 Jalloh v Germany (2007) 44 EHRR 32.
 Ibid , para 11.
 Ibid , para 79.
 Ibid , para 105.
 Jalloh v Germany (2007) 44 EHRR 32, para 100.
 Saunders v United Kingdom (1997) 23 EHRR 313.
 Ibid , para 65.
 Jalloh v Germany (2007) 44 EHRR 32, para 110.
 Ibid , para 113.
 Ibid , paras 122-123,
 Ibid , para 106.
 Ibid , para 107.
 Ibid, Concurring Opinion of Sir Nicolas Bratza.
 Gäfgen v Germany (2010) 52 EHRR 1, para 13.
 Ibid .
 Ibid , para 20.
 Ibid , para 18.
 Ibid , para 14.
 Ibid , para 18.
 S Greer, 'Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case' (2011) 1 Human Rights Law Review 69, 71.
 Gäfgen v Germany (2009) 48 EHRR 13, para 148.
 S Greer, (n 40) 72.
 Gäfgen v Germany (2009) 48 EHRR 13.
 L Oette, 'The European Court Grand Chamber Judgment in Gäfgen v Germany' (2010) Redress: The Reparation Report, 6.
 The boy's corpse was found only after Gäfgen's confession under the threat of torture, as well as tyre tracks from Gäfgen's car and other items of real evidence.
 Items of evidence which could have been secured independently of the first confession extracted from the applicant, namely money from the ransom which had been found in his flat or paid into his accounts.
 Real or physical evidence is any material object, introduced in a trial, intended to prove a fact in issue based on its demonstrable physical characteristics. Physical evidence can conceivably include all or part of any object. (J Law and E A Martin A Dictionary of Law (2009, Oxford University Press) (Retrieved 25 May 2011).
 Gäfgen v Germany (2010) 52 EHRR 1, para 165.
 Ibid , para 167.
 Ibid , para 106-107.
 Ibid , para 178.
 Levinta v Moldova (2011) 52 EHRR 40, para 99-100.
 Söylemez v Turkey (Application no 46661/99) Judgment of 21 September 2006, para 122.
 Jalloh v Germany (2007) 44 EHRR 32, para 105.
 Gäfgen v Germany (2010) 52 EHRR 1, para 10.
 Ibid, para 125.
 Gäfgen v Germany (2010) 52 EHRR 1, Joint Partly Dissenting Opinions of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power, para 12.
 IH Dennis, The Law of Evidence (Thomson, Sweet and Maxwell, 2004), 186.
 Ibid , para 180.
 Ibid , paras 186-187.
 Ibid , para 188.
 Joint Partly Dissenting Opinions of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power, as well as Joint Partly Concurring Opinion of Tulkens, Ziemele and Bianku.
 Ibid , para 2.
 Ibid , para 3.
 Ibid , para 9.
 Ibid, para 9.
 S Ast 'The Gäfgen Judgment of the European Court of Human Rights: On the Consequences of the Threat of Torture for Criminal Proceedings', 11 German Law Journal 12, 1405.
 Ibid .
 Ibid .
 M Spurrier 'Case Comment: Gäfgen v Germany: Fruit of the Poisonous Tree' (2010) European Human Rights Law Review 513-519, 516.
 L Oette (n 44) 7.
 L G Loucaides, 'Reparation for violations of human rights under the European Convention and restitutio in integrum' (2008) 2 EHLHR 182, 182.
 D Shelton, Remedies in International Human Rights Law (OUP, 2005) 214.
 A Mowbray, 'The Interlaken Declaration - The Beginning of a New Era for the European Court of Human Rights' 10 Human Rights Law Review 3, 521.
 Marckx v Belgium (1979-80) 2 EHRR 330.
 Ibid , 88.
 V Colandrea, 'On the Power of the European Court of Human Rights to Order Specific Non-Monetary Measures: Some Remarks in Light of the Assianidze, Broniowski and Sejdovic Cases' (2007) 7 Human Rights Law Review 2, 397.
 Partly Concurring Opinion of Judge Costa, Assanidze v Georgia (2004) 39 EHRR 32.
 Article 1 reads: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
 V Colandrea (n 78), 401.
 Ibid .
 Assanidze v Georgia (2004) 39 EHRR 32.
 Ibid , 402.
 Ibid , 202 (emphasis added).
 I Nifosi-Sutton 'The Power of the European Court of Human Rights to Order Non-Monetary Relief: a Critical Perspective from a Right to Health Perspective' (2010) 23 Harvard Human Rights Journal 51, 69.
 Ibid .
 Ibid , 70.
 V Colandrea (n 78), 410.
 Resolution Res(2004) 3.
 Broniowski v Poland (2005) 40 EHRR 21.
 Ibid , para 187
 Ibid , para 194.
 Broniowski v Poland (2005) 40 EHRR 21, para 189; see also, Sejdovic v Italy (2006) 42 EHRR 17, para 44.
 V Colandrea (n 78), 405.
 Ananyev and others v Russia , (2012) 55 EHRR 18.
 Ibid , para 184.
 Ibid, para 185.
 Ibid , paras 197-203.
 Ibid, paras 204-213.
 Ibid , para 214.
 Ibid , para 221.
 Torreggiani and others v Italy  ECHR 10.
 Ibid , para 84.
 Ibid , para 93.
 Ibid , para 94.
 First Section Decision as to the Admissibility of Khashiyev and Akayeva v Russia , (Applications nos. 57942/00 and 57945/00), Judgment of 19 December 2002, para 2.
 Khashiyev and Akayeva v Russia , (Applications nos. 57942/00 and 57945/00), Judgment of 24 February 2005, paras 19-20.
 Ibid .
 Isayev and others v Russia , (Application no. 43368/04), Judgment of 21 June 2011.
 Ibid , para 83.
 Ibid , para 102; Khashiyev and Akayeva v Russia, (Applications nos. 57942/00 and 57945/00), Judgment of 24 February 2005, para 124.
 Within such a reform it might be suggested, for example, that medical examinations of detainees are made compulsory to ensure that abuse is detected at an early stage.
 UNCAT, Article 14.
 Nineteen Tradesmen v. Colombia , 2004 Inter-Am Ct HR (ser C) No 109 (July 5, 2004).
 Ibid , para 278.
 Cantoral-Benavides v Peru , 2001 Inter-Am Ct HR (ser C) No 88, (Dec 3, 2001) para 80.
 García-Asto v Peru , 2005 Inter-Am Ct HR (ser C) No 137, (Nov 25, 2005) para 281.
 Gómez-Palomino v Perú , 2005 Inter-Am Ct HR (ser C) No 136 (Nov 22, 2005) paras 144-48.
 CAT/C/HUN/CO/4, para 17.
 CAT/C/LKA/CO/2, para 16.
 CAT/C/CR/29/2, para 11 (c) .
 CAT/C/HUN/CO/4, § 17.
 E.g. Human Rights Committee General Comment No. 20, 15.
 UN Doc CCPR/C/LBY/CO/4, 15.
 Nineteen Tradesmen v. Colombia , 2004 Inter-Am Ct HR (ser C) No 109 (July 5, 2004).
 Inter-American Commission on Human Rights, Annual Report, 1985-86, OEA/Ser. L/V/II.68, doc 8, rev 1, 191, 192-93 (1986).
 Molina-Theissen v Guatemala , 2004 Inter-Am Ct HR (ser C) No 108.
 Ibid , para 38.
 Humberto Sánchez v Honduras , 2003 Inter-Am Ct HR (ser C) No 99.
 Ibid , para 186.
 Cantoral-Benavides v Peru , 2001 Inter-Am Ct HR (ser C) No 88 (Dec 3, 2001).
 T M Antkowiak 'Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond' (2008) 46 Columbia Journal of Transnational Law 351, 380.
 Tibi v Ecuador , Judgment of September 7, 2004, Inter-Am Ct HR, (Ser C) No. 114.
 Ibid , para 60.
 Ibid , para 261.
 Press Freedom Index 2013 (Available at: http://en.rsf.org/press-freedom-index-2013,1054.html). Freedom of press is an even greater issue in Belarus. The State ranks 157th in the table.
 Molina-Theissen v Guatemala , 2004 Inter-Am Ct HR (ser C) No 108.
 Plan de Sánchez Massacre v. Guatemala , 2004 Inter-Am Ct HR (ser C) No 116.
 Molina-Theissen v Guatemala , 2004 Inter-Am Ct HR (ser C) No 108, para 75 (f).
 Plan de Sánchez Massacre v. Guatemala , 2004 Inter-Am Ct HR (ser. C) No. 116, para 100.
 Gutiérrez-Soler v Colombia , 2005 Inter-Am Ct HR (ser. C) No 132, (Sept 12, 2005).
 T M Antkowiak (n 134), 379.
 Gutiérrez-Soler v Colombia , 2005 Inter-Am Ct HR (ser. C) No. 132, (Sept 12, 2005) para 59.
 T M Antkowiak, 'Truth as a Right and Remedy in International Human Rights Experience' (2001-2002) 23 Michigan Journal of International Law 1014, 1011.
 O Bowcott 'Ministry of Defence says sorry for killing of Majella O'Hare' (The Guardian, 28 March 2011).
 BBC News, 'William McGreanery: MoD apology to family of man shot by soldier' (BBC News, 25 April 2013) (Accessed 13/06/2013).
 D Howden & K Senguta '59 years late - but Mau Mau accept an almost apology' (The Independent, 7 June 2013).
 T M Antkowiak (n 134) 384.
 J Braithwaite, A Future Where Punishment is Marginalized: Realistic or Utopian? (1999) 46 UCLA Rev 1727, 1744.
 T M Antkowiak, (n 147) 1011.
 Ibid .
 B Çalı and A Wyss, 'Why do Democracies Comply with Human Rights Judgments?' A Comparative Analysis of the UK, Ireland and Germany' (Part of the United Kingdom Economic and Social Research Council project on the 'Legitimacy and Authority of Supranational Human Rights Courts: A Comparative Analysis of the European Court of Human Rights' Grant No: RES-061-25-0029). For a further discussion on how shame can be important in aiding with the compliance of human rights see, T Keenan 'Mobilising Shame' (2004) 103 South Atlantic Quarterly 2-3.
 J M Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge, 2003) 272.
 Castillo Páez Case , Reparations (art. 63(1) American Convention on Human Rights), Judgment of November 27, 1998, Inter-Am Ct HR (Ser C) No 43 (1998) para 51.
 Ibid , para 79.
 J M Pasqualucci (n 158) 273.
 Ibid .
 J M Pasqualucci (n 158) 273.
 D Shelton (n 74) 281.
 Silver v United Kingdom (1991) 13 EHRR 582.
 D Shelton, (n 74) 281-282.
 L J Laplante, 'Bringing Effective Remedies Home: The Inter-American Human Rights System, Reparations, and the Duty of Prevention' 22 Netherlands Quarterly of Human Rights 3, 347.
 L J Laplante, (n 166) 356.
 Ibid , 356.
 Filartiga v Pena-Irala , 5 F Supp 860 (1980).
 Ibid .
 D Shelton (n 74) 286.
 Ibid , 287.
 Silver v United Kingdom (1991) 13 EHRR 582.
 D Shelton (n 74) 287.
 Selcuk and Asker v Turkey (1998) 26 EHRR 477.
 Mentes and Others v Turkey (1998) 26 EHRR 595.
 Council of Europe, High Level Conference on the Future of the European Court of Human Rights: Preparatory Contributions (18-19 February, 2010) 52 (Available at: http://www.gddc.pt/direitos-humanos/portugal-dh/acordaos/docs/h-inf_2010_5.pdf (Accessed 11/10/2011)
 I Kilbey, 'Financial Penalties under Article 228(2) EC: Excessive Complexity' (2007) 44 Common Market Law Review 743, 744
 Article 228 (2) TEU Maastricht Treaty.
 Memorandum on applying Article 171, [now 228] of the EC treaty, OJ 1996, C 242/6-8
 I Kilbey (n 181) 747.
 Method of Calculating the Penalty Payments provided for pursuant to Article 171[now 228] of the EC Treaty, OJ 1997, C 63/2-4. New guidelines were issued in 2005. See SEC (2005) 1658 and see also MEMO/05/482 Financial Penalties for Member States who fail to comply with Judgments of the European Court of Justice: European Commission clarifies rules.
 Commission v Greece , Case C-387/97  ECR 1-5047.
 Commission v Spain ,  ECR I -14141; Case C-304/02.
 I Kilbey (n 181) 749.
 Commission v France , Case C-304/02  ECR I-6263.
 I Kilbey (n 181) 758.
 Council of Europe, European Court of Human Rights Annual Report 2010 (Registry of the Court, 2011) 156.
 Human Rights Watch, Techniques of Abuse ( http://www.hrw.org/reports/1997/turkey/Turkey-04.htm) (Accessed 22/09/2014).