Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?

5 Conclusions

While it is now generally accepted that Article 3 of the European Convention on Human Rights guarantees absolute rights on account of the impermissibility of limitations or derogations, Strasbourg case law has not yet defined precisely the concept of `absolute right'. Although there is evidence to suggest that the guarantees in Article 3 are special and that they are treated as such by the supervisory organs, their precise scope remains unclear. `Absolute right' must mean more than the impermissibility of limitations, exceptions and derogations. However, it is a nebulous concept involving the assessment of various subjective factors. The interrelationship of these factors and their effect on final decisions and judgments in Article 3 litigation is guided by the principle of effective protection⁶⁸ and the aim of upholding European public order. In other words, `absolute right' is a term of art which is by nature imprecise and its evaluation can best be understood only in the particular context. For this reason a superficial comparison of its application in different cases can often yield what appear to be contradictory results. Yet it would be unfair to conclude that Strasbourg's supervisory organs do not respect the absolute character of the guarantees in Article 3.

Nevertheless, there is room for improvement. For example, it is arguable that the severity thresholds are unduly high. Similarly, in the context of physical ill-treatment (so-called `permissible roughness') a variable and subjective standard can mean breaches of Article 3 are not always upheld. Where there is doubt, it appears that the benefit is not always given to the victim. The judgment of the Court in Klaas v. Germany⁶⁹ provides a good illustration of this. One of the main issues in that case was whether the injuries sustained by the applicant during a routine arrest were evidence that excessive force had been used by the police in breach of Article 3. The evidence as to how the injuries were sustained turned out to be inconclusive and on that basis the Court, following the decision of the national courts but departing from the opinion of the Commission, held that there had been no violation.⁷⁰ This represented a departure from what had seemed established policy and practice as elaborated in Tomasi v. France,⁷¹ that in cases where an individual sustains injury while under government (police) control, the onus lies on the respondent government to rebut the presumption that the injury was inflicted by public officials. The Klaas decision was unfortunate, to say the least, not only because of its impact on the burden of proof but also because it undermined the spirit of `absolute guarantee' in Article 3. In their convincing dissenting opinions, Judges Pettiti, Walsh and Spielmann stressed that the majority of the Court had failed to appreciate the creeping effect of official brutality.

The doubts expressed above in relation to the severity threshold can be extended mutatis mutandis to the other subjective factors involved in determining Article 3 cases. However, criticism may not be entirely fair in view of the imprecise nature of the concepts involved and the differences in the circumstances of individual cases. Any assessment of the practice of the Strasbourg organs in relation to Article 3 must be based on a careful analysis of individual decisions and judgments, taking into account all relevant distinguishing factors.

68 Merrills, supra note 44, at Ch. 5.

69 Judgment of 22 September 1993, Series A, No. 269; (1994) 18 EHRR 305.

70 Ibid, para. 30.

71 Supra note 8.

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