A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties. The Court has held that where the behaviour of a State agent is unlawful, the question of whether the impugned acts can be imputed to the State requires an assessment of the totality of the circumstances and consideration of the nature and circumstances of the conduct in question. Moreover, whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of factors, none of which is determinative on its own. The key criteria used to determine whether the State is responsible for the acts of a person, whether formally a public official or not, as follows: manner of appointment, supervision and accountability, objectives, powers and functions of the person in question (V.K. v. Russia, 2017, § 174).
Linked to the above, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of others within its jurisdiction may engage that State’s responsibility under the Convention (Chernega and Others v. Ukraine, 2019,
Assessment of Evidence
In cases of alleged violations of Article 3 of the Convention, it must, in its assessment of the evidence, apply a particularly through scrutiny. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a rule, it is for these courts to assess the evidence before them. While in Article 3 cases the Court is prepared to be more critical of the conclusions of the domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts
In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to issues of evidence and proof
Use of force by State agents
As mentioned above where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.
The Court has further underlined that Article 3 does not prohibit the use of force by State agents, in certain well-defined circumstances, such as to effect an arrest. However, such force may be used only if indispensable and must not be excessive (Necdet Bulut v. Turkey, 2007, § 23; Shmorgunov and Others v. Ukraine, 2021, § 359). In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or abscond, cause injury or damage or suppress evidence (Mafalani v. Croatia, 2015, § 120 and the cases cited therein).
For example, the Court found that the methods employed by the police, including using batons to control the applicant during an identity check, to be disproportionate given that the applicant was not armed and had remained largely passive before being pinned to the ground even if he bit one of the police officers (Dembele v. Switzerland, 2013, § 47; see also A.P. v. Slovakia, 2020, § 62 where the applicant spat on the officers and attempted to punch them).
By contrast, the Court found that the force used on the applicants – bodybuilders – who had resisted and assaulted police officers in the course of an arrest to be necessary by their own conduct, where the applicant sustained injuries in the course of an arrest where she obstructed the police officer where the applicants, who were in a state of inebriation, sustained injuries during their arrest for the offence of damaging private property).
Moreover, in the context of a police operation pursuing legitimate aims, such as carrying out an arrest, a search and a seizure of items as well as the public-interest objective of prosecuting criminal offences, the Court has previously found that the possible presence of family members, particularly, children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out that operation
Use of specific instruments or measures of restraint
The use of instruments of restraint, such as handcuffing, does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances . The Court attaches particular importance to the circumstances of each case and examines whether the use of restraints was necessary (
In particular, the Court has held that the use of handcuffs could be warranted on specific occasions, such as for transfers outside prison; when used for short periods of time or when it constitutes an individual and periodically reviewable measure in respect of the applicant which related to a personal risk assessment based on his/her behaviour (Shlykov and Others v. Russia, 2021, § 73). When assessing the level of severity in this context, the Court assesses a variety of factors, such as: the gravity of the applicant’s sentence; his criminal record and his history of violence; compliance of the measure with domestic law; proportionality of the measure vis-à-vis the individual’s conduct; the lawfulness of the detention; public nature of the treatment; consequences for health; the applicant’s state of health; other security arrangements applied; and the period of time the handcuffs were applied (Shlykov and Others v. Russia, 2021, § 73 and the cases referred therein).
Concerning the use of pepper spray in law enforcement, the Court has endorsed the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). According to the CPT pepper spray is a potentially dangerous substance and should not be used in confined spaces: if exceptionally it needs to be used in open spaces, there should be clearly defined safeguards in place (Tali v. Estonia, 2014, § 78). In particular, it should never be deployed against a person who has already been brought under control (İzci v. Turkey, 2013, §§ 40-41 and Ali Güneş v. Turkey.
Similarly, the Court has also referred to the strong reservations of the CPT regarding the use of electroshock weapons, particularly, when applied in contact mode, as it causes intense pain and temporary incapacitation. In this regard, it has emphasised that properly trained law enforcement officers have many other control techniques available to them when they are in touching distance of a person who has to be brought under their control (Anzhelo Georgiev and Others v. Bulgaria, 2014 §§ 75-76).
As regards holding a person in a metal cage during a trial – the Court has found such a measure, having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – to constitute in itself an affront to human dignity in breach of Article 3 of the Convention (where the applicant participated in his trial via video link in a metal cage inside the prison). By contrast, the placement of defendants behind glass partitions or in glass cabins does not in itself involve an element of humiliation sufficient to reach the minimum level of severity. This level may be attained, however, if the circumstances of their confinement in glass partitions or in glass cabins, taken as a whole, would cause them distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (Yaroslav Belousov v. Russia, 2016, § 125).
A strip or intimate body search carried out during arrest will be compatible with Article 3 provided that it is conducted in an appropriate manner with due respect for human dignity and for a legitimate purpose (Wieser v. Austria, 2007, § 39; see also Roth v. Germany
The protection from non-State actors
While no direct responsibility can be attributed to a Contracting State under the Convention for the acts of private individuals (Beganović v. Croatia,) or State agents acting in their private capacity the Court has considered that State responsibility may, nevertheless, be engaged through the obligation imposed by Article 1 of the Convention.
In this regard, it held that, the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (Z and Others v. the United Kingdom and O’Keeffe v. Ireland ).
In this regard, it has also been the Court’s constant approach that Article 3 imposes on States a duty to protect the physical well-being of persons who find themselves in a vulnerable position by virtue of being within the control of the authorities, such as, for instance, detainees or conscripted servicemen (Premininy v. Russia, ).
The Court has examined the States’ positive obligation to protect from ill-treatment in a number of different contexts, such as, for example:
- In the context of child abuse
- In the context of domestic violence ;
- In the context of sexual crimes ;
- In the context of inter-prisoner conflicts
- In the context of demonstrations
- In the context of physical and verbal harassment of a person with disabilities
- In the context of physical and verbal harassment of a mino) or of an elderly person
- In the context of violence inflicted on the basis of hatred
- In the context of hazing and bullying in the military
- The nature of the positive obligations of the State
The substantive positive obligations on the State under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision (X and Others v. Bulgaria
The positive obligation under Article 3 of the Convention necessitates in particular establishing a legislative and regulatory framework to shield individuals adequately from breaches of their physical and psychological integrity, particularly, in the most serious cases, through the enactment of criminal-law provisions and their effective application in practice (X and Others v. Bulgaria ,
Likewise, in the context of domestic violence, the Court has held that this obligation would usually require the domestic authorities to adopt positive measures in the sphere of criminal-law protection. Such measures would include, notably, the criminalization of acts of violence within the family by providing effective, proportionate and dissuasive sanctions In addition, in so far as protection measures are concerned, the Court requires that the toolbox of legal and operational measures available in the domestic legal framework must give the authorities involved a range of sufficient measures to choose from, which are adequate and proportionate to the level of risk that has been assessed in the circumstances of that particular case (Tunikova and Others v. Russia, 2021, § 95).
Duty to take preventive operational measures
As with Article 2 of the Convention, Article 3 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of ill-treatment (X and Others v. Bulgaria ).
This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (O’Keeffe v. Ireland [.
Therefore, for a positive obligation to arise it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of the third party and that they failed to take measures within the scope of their powers which judged reasonably, might have been expected to avoid
that risk (X and Others v. Bulgaria [.
The Court has also underlined that it is not necessary to show that “but for” the State omission the ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State (O’Keeffe v. Ireland).
The Court found the respondent State had failed to discharge its obligation to protect persons from ill-treatment when:
the detention administration failed to prevent a detainee’s systematic ill-treatment by fellow inmates
the domestic legal framework failed to define domestic violence as a separate offence or an aggravating element of other offences and to establish a minimum threshold of gravity of injuries required for launching public prosecution as well as the authorities failure to take any preventive operational measures to protect the applicant
the authorities failed to protect a member of a vulnerable religious minority from being systematically targeted where the police failed to take sufficient action against an ongoing attack on a meeting of Jehovah’s witnesses by members of the Orthodox Church, despite being alerted at a sufficiently early stage to take action promptly to end the violence and to protect the victims).
Military authorities failed to protect the applicants’ son – a victim and denouncer of bullying and hazing in the army – from retaliation at the hands of fellow conscripts (Filippovy v.Russia,).
By contrast, in the case of X and Others v. Bulgaria which concerned allegations of sexual abuse in an orphanage, the Court considered that the manner in which the regulatory framework had been implemented did not give rise to a violation of Article 3, particular, since no systemic issue concerning the sexual abuse of young children in residential facilities had been established. It further found that, in the particular facts of the case, there was insufficient information to find that the Bulgarian authorities had known, or ought to have known, of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to the above obligation to protect them against such a risk.
The duty to investigate allegations
Where an individual raises an arguable claim that she or he has suffered treatment infringing Article 3 at the hands of State agents, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation.Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (Labita v. Italy 7
Linked to the above, the Court has underlined that a proper response by the authorities in investigating serious allegations of ill-treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential to maintain public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (Lyapin v. Russia,).
The purpose of the investigation
The essential purpose of an investigation is to secure the effective implementation of the domestic laws prohibiting torture and inhuman or degrading treatment or punishment in cases involving States agents or bodies, and to ensure their accountability for ill-treatment occurring under their responsibility (Bouyid v. Belgium [).
The nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (X and Others v. Bulgaria ).