Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook
ill-treatment must attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case such as the duration of the treatment,
its physical and mental effects and, in some cases, the sex, age and state of health
of the victim.529
Since the Convention is a living instrument that must be interpreted in the light of
present day conditions, certain acts previously falling outside the scope of Article
3 might today (or in future) attain the required level of severity to be considered
a violation of the Article.530 The Court explained in Selmouni that “the increasingly
high standard being required in the area of the protection of human rights and
fundamental liberties correspondingly and inevitably requires greater firmness in
assessing breaches of the fundamental values of democratic societies.”531
d) Concluding Remarks
If the Court concludes that the applicant has failed to support his or her case with
adequate evidence and has failed, therefore, to present a prima facie case, the application will be declared inadmissible as being manifestly ill-founded. Similarly,
if the Court concludes that the treatment of which the applicant complains has
not reached the minimum level of severity to constitute a breach of Article 3, the
application will be considered manifestly ill-founded.
In order to avoid having an application fail for lack of substantiation, the applicant
should make out the strongest possible case from the beginning by submitting all
relevant evidence that can support the allegations with the completed application
form. If the evidence submitted by the applicant is rebutted or challenged by the
respondent Government, the applicant will have the opportunity to counter the
Government’s allegations by adducing further evidence and/or arguments. Such
additional evidence may take the form of additional medical reports confirming
the applicants’ earlier medical submissions or challenging the submissions of
the Government.
Similarly, persuading the Court that the treatment in question has reached the
required minimum level of severity may in many cases also be achieved by resorting to medical reports. It is thus advantageous for the applicant to consider
obtaining detailed medical reports describing the physical and mental effects of
the ill-treatment to which they were subjected. If the applicant is suffering from
psychological disturbances as a result of the ill-treatment, it is particularly important that these effects be documented since the finding of such effects requires
529 Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 162.
530 Henaf v. France, no. 65436/01, 27 November 2003, § 55.
531 Selmouni v. France [GC], no. 25803/94, 28 July 1999, § 100.
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