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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



Article 3 of the European Convention on Human Rights




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





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-


traditionally within the ambit of Article 8. However, concerning

the question of which way would best illustrate the Court’s determi-