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歐美研究
Article 3 of European Convention on Human Rights and
Serious Systematic Discrimination
—
Inhuman or Degrading Treatments in Private Relations
Vivianne Yen
-
ching Weng
Department of Political Science
,
National Chengchi University
No. 64, Sec. 2, Zhinan Rd., Taipei 11605, Taiwan
E-mail:
vycweng@nccu.edu.twAbstract
Article 3 of the European Convention on Human Rights
(
ECHR
)
is an absolute protection. Nevertheless, while assessing whether an al-
leged fact reaches “a minimum level of severity” to invoke Article 3,
there must be a proportionality review. Through its dynamic inter-
pretation, the European Court of Human Rights
(
ECtHR
)
steadily
extends the protection of Article 3 beyond the classical definition of
torture, reaching the level of indirect horizontal effect through the
development of positive obligations.
Due to the absence of a clause condemning massive and system-
atic discriminations in the ECHR, the ECtHR has replied to observa-
tions from international and European institutions, and even credible
NGOs, to apply Article 3 in cases involving serious human rights vio-
lations. The Court is concerned about State accountability in disputed
enforced disappearance cases. With Article 3, it questions the failures
of State protection system vis-à-vis particularly vulnerable individuals
and therefore urges States to eliminate systematic discrimination both
in private and public spheres.
The failure of mechanisms protecting fundamental human dignity
results in serious systematic discrimination. This might have been the
core concern of the ECtHR’s application of Article 3 in
ratione mate-
riae
traditionally within the ambit of Article 8. However, concerning
the question of which way would best illustrate the Court’s determi-