Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook
prior to the entry into force of the Convention in respect of a Contracting Party, but
which continues after the entry into force of the Convention owing to the consequences of the original act,371 then the Court will have jurisdiction to examine the
complaint. A continuing Article 3 violation was for instance found in the case of
Moldovan and Others v. Romania. This case was related to the destruction of houses
and belongings of Romanian citizens of Roma origin by police officers. Although
the destruction had taken place before Romania ratified the Convention and the
application with regard to property rights was therefore inadmissible ratione temporis, the Court did find on going suffering that amounted to a violation of Article
3 of the Convention.372 The Court reasoned that
following this incident, having been hounded from their village and homes, the
applicants had to live, and some of them still live, in crowded and improper conditions – cellars, hen-houses, stables, etc. – and frequently changed address, moving
in with friends or family in extremely overcrowded conditions.373
Continuing violations of Article 3 of the Convention involving events that occurred
before the Convention was in force are often discussed in the context of procedural
obligations. In other words, the Court can find a violation of the procedural limb of
Article 3 if the authorities did not carry out effective investigations into acts that
occurred prior to the entry into force of the Convention. Two notable examples in
this context are Šilih v. Slovenia and Janowiec and Others v. Russia, in which the Court
found that the duty to conduct an effective investigation into acts contrary to
Articles 2 and 3 of the Convention,374 “had evolved into a separate and autonomous
duty.”375 The Court circumscribed the so-called Šilih-criteria as follows:
Firstly, where the death occurred before the critical date, the Court’s temporal jurisdiction will extend only to the procedural acts or omissions in the period subsequent
to that date. Secondly, the procedural obligation will come into effect only if there
was a “genuine connection” between the death as the triggering event and the entry into force of the Convention. Thirdly, a connection which is not “genuine” may
nonetheless be sufficient to establish the Court’s jurisdiction if it is needed to ensure
that the guarantees and the underlying values of the Convention are protected in a
real and effective way.376
This statement reveals that there are two criteria to be fulfilled: the “genuine connection” criterion and the “Convention value” criterion. With regard to the former,
371
372
373
374
375
376
114
Peter van Dijk and Godefridus J. H. van Hoof, Theory and Practice of the European Convention on Human
Rights, Kluwer Law International, 1998, p. 11.
Ibid., §§ 104–114.
Moldovan and Others v. Romania (No. 2), nos. 41138/98 and 64320/01, 12 July 2005, § 103.
See generally Juliet Chevalier-Watts, “Effective Investigations under Article 2 of the European
Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?”, in
European Journal of International Law, vol. 21, 2010, pp. 701–721.
Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, 21 October 2013, § 132.
Ibid., § 141, with reference to Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009, §§ 162–163.
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