SELECTED ECHR CASE-LAW

UNDER ARTICLE 3,
ARTICLE 13 COMBINED WITH
ARTICLE 3,
AND ARTICLE 4

By Maria Moodie
 ARTICLE 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or
punishment.”

ARTICLE 13
“Everyone whose rights and freedoms as
set forth in this Convention are violated
shall have an effective remedy before a
national authority notwithstanding that the
violation has been committed by persons
acting in an official capacity”
Protection against honour crimes
Jabari v. Turkey (no 40035/98)11 July 2000
• Iran woman at risk of flogging or being stoned to death for adultery if returned.
Alleged breach of Art 3 and Art 3 combined with Art 13.

Court’s findings;
• 5 day limitation period to request asylum – no individual assessment or
scrutiny of facts – at odds with fundamental Art 3 protection [at 40]
• Deportation order, if executed, would give rise to a violation of Art 3 [at 42]
• Refused access to the asylum system – refused opportunity to explain why
she feared deportation – no appeal against the rejection of her asylum
application. The Administrative Court action did not offer an effective
remedy because it did not look at the substance of her asylum claim and
could not suspend deportation [at 44]
• Art 13 effective remedy requires independent and rigorous scrutiny of a
claim that there exist substantial grounds for fearing a real risk of treatment
contrary to Article 3 and the possibility of suspending the implementation
of the measure impugned = Violation of Art 13 [at 50]
N. v. Sweden (no. 23505/09) 20 July 2010
• Afghan women separated from husband in Sweden. Divorce denied by husband. New
relationship with Swedish man. Appealed against deportation order.

Guiding principles in Art 3 removal / deportation cases;

• Article 3 = substantial grounds for believing that the person, if deported, faces a real risk of
being subjected to treatment contrary to Article 3. (Saadi v. Italy [GC] 37201/06 [at 125] [at 51]
• Burden is on the applicant to adduce evidence of Article 3 risk (see N. v. Finland 38885/02
[at 167]and NA. v. the U.K 25904/07 [at 111]). Where such evidence is adduced, it is for the
Government to dispel any doubts about it. [at 53]

Findings by the Court – Article 3 violation

• “Women are at particular risk of ill-treatment in Afghanistan if perceived as not conforming to
the gender roles ascribed to them by society, tradition and even the legal system …
trangressions can result in domestic violence, stigmatisation, isolation and honour
crimes” [at 55]
• The applicant’s residence in Sweden since 2004 = not conforming to gender roles ascribed
by Afghan society and tradition [at 56]
• Based on the facts of the applicant’s case; no contact with her family and therefore no social
network or protection if returned, husband refusing to divorce despite separation for number of
years, adultery punishable by death – Court found the applicant would face cumulative risks
of reprisals contrary to Article 3 [at 59 - 62]
RD v. France (no. 34648/14) 16 September 2016
• Applicant fled Guinea following acts of violence and threats to kill from family
after she married a Christian man. Asylum claim placed in accelerated
procedure after she was arrested trying to leave France following reports of
her father looking for her.
• Rule 39 imposed a ban on removal pending judgment.

Court’s findings;

• Reference to international evidence regarding the treatment of women in

Guinea and the lack of protection available from the authorities [at 40]
• Having regard to the medical evidence, the marriage certificate, the threat
from her family who have the means to find her and the circumstances of her
escape from Guinea = removal to Guinea would amount to an Article 3
violation [at 40-45]
• Before trying to flee France – sufficient period and access to advice to
prepare asylum claim. Not disadvantaged by accelerated procedure. No
violation of Art 13 combined with Art 3 [at 59-64].
Protection from FGM
Sow v. Belgium (no.27081/13) 19 January 2016
• Applicant fled Guinea following partial FGM and feared further FGM if
returned.

Court’s findings;

• The first asylum claim = detailed and thorough examination.

Belgium entitled to rely on a report that placed the application outside
of the identified risk groups for FGM based on her personal
circumstances. No violation of Art 3.

• Belgium entitled to implement rules and procedures in order to

address repetitive and abusive claims. An ex nunc examination not
required for each fresh asylum claim. No violation of Art 13.

• More compelling evidence was required to establish substantial and

individual grounds of Art 3 risk
See also,
• Strike out decisions;
• Bangura v. Belgium (14.6.16) – residence permit granted on
family reunification grounds.
• Abraham Lunguli v. Sweden (33692/02) residence permit
granted after accepting evidence of risk of FGM.

• Inadmissibility decisions;
• Collins and Akaziebie v. Sweden (23944/05)- failure to establish
‘real risk’ – education of mother, independence in travelling to
Sweden, ability to protect daughter, internal relocation (effective
and practical protection?),
• Izevbekhai v. Ireland(43408/08) – fear of FGM for daughters.
Forged documents undermined credibility. Personal
circumstances would allow internal relocation in Nigeria [at 80]
• Omeredo v. Austria (8969/10) – education, employment history =
able to live as single woman to avoid FGM in Nigeria
Protection from Forced Marriage

• There are currently no ECtHR judgments specific

to women who are victims or at risk of forced
marriage.

• Strike out case; W.H. v. Sweden (49341/10)– grant

of residence permit.
Protection from Domestic Violence
• Balsan v. Romania (no. 49645/09) 23 May 2017
• Violence perpetrated by husband throughout marriage and divorce.
Despite police complaints - no protection, punishment or prevention.
• Systemic discrimination against women and failure to protect by Romanian
authorities.

Court’s findings;
• General and discriminatory passivity of the authorities created a climate
that was conducive to DV [at 86]
• The criminal-law system did not have an adequate deterrent effect to
effectively prevent violence - violation of Art 3 [at 87]
• Violence in this case can be regarded as gender-based violence -form of
discrimination against women [at 88].
• Despite legal and policy measures to combat DV- unresponsiveness of the
judicial system and impunity of abusers = insufficient commitment.
Violation of Art 14 with Art 3 [at 88]
Protection from torture/push back
M.A. and Others v Lithuania (no. 59793/17) 11 December 2018
• Russian family (2 adults and 5 young children) sought asylum based on a risk of torture in
Chechnya. On 3 separate occasions the Lithuanian boarder officials refused to accept the asylum
applications and returned them to Belarus.

Principles applied by the Court;

• A remedy to prevent removal - only be effective if it has automatic suspensive effect (see,
M.S.S. v. Belgium and Greece [GC] 30696/09 [at 293] L.M. and Others v. Russia 40081/14 [at
100]; and Kebe and Others v. Ukraine, 12552/12 [at 101] [at 83]
• Article 3 - obligation not to expel if there are substantial grounds to believe that the person
faces faces a real risk of being subjected to torture or inhuman or degrading treatment or
punishment (see Paposhvili v. Belgium [GC], no. 41738/10, §§ 172-73, 13 December 2016) [at
102]
• Article 1 ECHR - States must examine the applicants’ fears and assess the risks if removed to
the receiving country, from the standpoint of Article 3 [at 103].
• Returning State - must ensure that the intermediary country offers sufficient guarantees to
prevent the person concerned being removed to his or her country of origin without an assessment
of the risks faced. Heightened duty when the intermediary country is not a State Party to the ECHR
[at 104]
Findings by the Court;
• Article 3 violation
• Applicants returned to Belarus without assessment of their
asylum claims
• Ineffective measures in place to prevent the arbitrary removal
of asylum seekers [at 114-115].
• Article 13 Violation
• No effective remedy - appeal against refusal of entry does not
have automatic suspensive effect [at 119]

See also, DA v. Poland 51246/17 (pending)

• Syrians seeking entry to Poland from Belarus to claim asylum.
Refused entry by border authorities.
• Rule 39 granted with the indication that Polish authorities should
give applicants access to the asylum procedure [at 13].
 Article 4 ECHR
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall
not include:
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article5 of this Convention or during conditional
release from such detention; (b) any service of a military character or, in case
of conscientious objectors in countries where they are recognised, service
exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the
life or well-being of the community;
(d) any work or service which forms part of normal civic obligations”
Siliadin v France (no.73316/01) 26 October 2005
• Tongolese minor brought to France for domestic servitude.

Court’s interpretation of the words ‘slavery’, ’servitude’ and

‘forced and compulsory labour’ in Article 4;

• Slavery – adoption of the classic definition in the 1926 Slavery

Convention- exercise of a right of ownership and reduction of the
status of the individual concerned to an “object” [at 122]
• Servitude - “particularly serious form of denial of
freedom”. “Servitude” entails an obligation, under coercion, to
provide one’s services, and is linked with the concept of “slavery” [at
124]
• Forced and Compulsory Labour - With reference to ILO
Convention No. 29 – some physical or mental constraint, as well as
some overriding of the person’s will [at 117]
Rantsev v Cyprus And Russia (no. 25965/04)
7 January 2010
General Principles;

• Trafficking threatens the human dignity and fundamental

freedoms of its victims and cannot be considered compatible with a
democratic society and the values expounded in the ECHR [at 282]

• Human trafficking falls within the scope of Article 4 ECHR.

• Developing the approach taken in Siliadin v France, not
necessary to strictlu consider whether the applicant’s treatment
constituted ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’.
• Trafficking itself within the meaning of Article 3(a) Palermo
Protocol and Article 4(a) of the CoE Anti Trafficking Convention
fall within the scope of Article 4 ECHR [at 272-82]
Confirmation of Article 4 obligations;
• Comprehensive approach = measures to punish the traffickers,
prevent trafficking and protect the victim [at 284-5]
• Operational obligation = to remove individual from situation once a
State is aware or ought to have been aware of credible suspicion of
trafficking or exploitation [at 286-7]
• Procedural obligation = to investigate potential trafficking
situations of their own motion (independent, effective, prompt,
capable of leading to ID and punishment of perpetrator) [at 232, 288]
• In cross-border trafficking cases = duty to cooperate effectively
with other States to investigate events which occurred outside their
territories [at 289].
Chowdury and Others v. Greece (no. 21884/15)
30 March 2017
• 42 Bangladeshi nationals working in Greece without a work visa in a
strawberry farm. Subjected to exploitation and appalling conditions.

Court found a violation of Article 4(2) on the basis that;

• Operational measures were not taken to prevent human trafficking
and forced labour of migrant workers when this situation had been
know or ought to have been known by the authorities [at 111-115]
• The investigation conducted by the public prosecutor was
inadequate to meet the procedural requirements of Article 4 [at 120 –
122]
• The judicial procedure was ineffective and failed to comply with the
procedural requirements of Article 4 [at 127]
Human trafficking and forced labour within the remit of
Art 4;
• Exploitation through work = a form of exploitation within human trafficking
definition highlighting the intrinsic relationship between forced or
compulsory labour and human trafficking [at 93]
• A worker cannot be considered to offer him/herself for work voluntarily when
the employer abuses his power or takes advantage of the vulnerability of
the worker. Prior consent of the victim does not preclude the characterisation
of work as forced labour [at 96]
• The fundamental distinguishing feature between servitude and forced or
compulsory labour in Article 4 lies in the victim’s feeling that his or her
condition is permanent and that the situation is unlikely to change (C.N.
and V. v. France [at 91]) [at 99]
• Restriction of freedom of movement is not a prerequisite for a situation to
be characterised as forced labour or even human trafficking. The relevant form
of restriction relates not to the provision of the work itself but rather to certain
aspects of the life of the victim of a situation in breach of Article 4, and in
particular to a situation of servitude. A situation of trafficking may exist in spite
of the victim’s freedom of movement [at 123].
LE v Greece (no.71545/12) 21 January 2019
• Nigerian woman trafficked to Greece for the purposes of sexual exploitation.

Procedural requirements of an effective investigation;

• The obligation to investigate does not depend on a complaint from the victim
or a family member: once the matter has been brought to their attention, the
authorities must act (Dink v. Turkey (2668/07, 6102/08, 30079/08, 7072/09 and
7124/09) [at 76], Paul and Audrey Edwards v. U.K, (46477/99) [at 69].

• To be effective, the investigation must be independent of the people involved in

the facts. It must also make it possible to identify and punish those
responsible. This is an obligation not of result, but of means.

• A requirement of promptness and due diligence is implicit in all cases, but

where it is possible to remove the individual concerned from a harmful situation,
the investigation must be conducted as a matter of urgency. The victim or relative
must be involved in the proceedings to the fullest extent necessary to protect
their legitimate interests (Paul and Audrey Edwards v U.K [at 70-73].
Court’s findings;
Violation of Article 4:
The delay of 9 months for formal VOT identification was unreasonable and
could have contributed to her delayed release from detention. Greece failed to
maintain the expected operational measures required to protect the
applicant [at 76-78].
Administrative and judicial failings = missing evidence, delay in the initiation of
the criminal proceedings, failure to widen the search for one of the perpetrators
and periods of unjustified delay in proceedings [at 82-86]. Cumulatively these
operational and procedural failings amounted to a violation of Article 4.

Violation of Articles 6(1) and 13:

Greece violated Article 6(1) in relation to the unreasonable delay in
proceedings and Article 13 due to an absence of effect remedy enabling
the applicant to challenge the delay in proceedings [at 98-100].