August 27, 2025
By Sibel Yilmaz Coşkun
In its judgment of Derrek and Others v. Russia (29 April 2025; hereinafter Derrek), the European Court of Human Rights (the Court/ECtHR) addressed a police raid on an LGBT workshop, during which participants faced humiliating treatment and forced drug testing. The Court unanimously found violations of Articles 5 §1 and 11. By a majority, it found procedural and substantive breaches of Article 3 read in conjunction with Article 14. Judge Zünd wrote a partly concurring, partly dissenting opinion, arguing that the case should not have been dealt with under Article 3 but under Article 8.
After briefly outlining the facts and the judgment, this post focuses on the majority’s approach to the substantive limb of Article 3 in conjunction with Article 14, as well as Judge Zünd’s separate opinion. We argue, first, that the majority was correct in characterising the homophobic abuse by state agents as a violation of the absolute protection of Article 3 rather than of the qualified protection of Article 8. Second, we contend that the harm inflicted in such cases must be understood in qualitative, dignity-based terms, intrinsically linked to the discriminatory motive and context. While the Derrek judgment reaffirms the applicability of Article 3 to state-perpetrated LGBT-phobic abuse —building on progress seen in the Aghdgomelashvili and Japaridze v. Georgia— (hereinafter Aghdgomelashvili), it still falls short of explicitly articulating a clear threshold under Article 3 grounded in this qualitative understanding of dignity-based harm. This persistent ambiguity unfortunately leaves the door open to readings like Judge Zünd’s, which argue that classifying state homophobic abuse under Article 3 depends on the quantitative severity of the abuse only.
The case concerns a police raid on an LGBT workshop in Yaroslavl, Russia, on 5 December 2020, involving 11 participants, among them 3 guest speakers. Shortly after the workshop began, police and special forces led by the local police chief raided the venue. Participants were ordered to stand facing the wall for over 30 minutes, subjected to searches—including searches of women—while their identity documents were checked and filmed by the police; videos of the raid were later circulated on social media by several individuals. Police used homophobic slurs (“faggots”) and seized books brought by one participant. No drugs were found, but all attendees were subjected to compulsory drug testing under humiliating conditions, including denial of privacy during urination. Three applicants were taken to the police station for questioning and released hours later. No charges were ultimately brought against the applicants.
The applicants described the raid as intimidating, with masked and armed officers, alleging hate-motivated and discriminatory conduct. One filed a formal complaint on excessive force, unlawful searches, and forced drug testing. The police claimed the raid responded to a drug activity report, which was denied by the alleged caller. Authorities also cited alleged COVID-19 rule breaches. The Investigative Committee found no police wrongdoing, and domestic courts dismissed the complaints on procedural grounds; appeals failed.
Before the Court, the applicants argued that the raid and treatment amounted to discriminatory and degrading treatment contrary to the Convention.
The Court confirmed its jurisdiction as the events predated Russia’s withdrawal (§17). The applicants claims focused on fear, humiliation, and distress under Articles 3 and 8; the Court primarily assessed these under Article 3 read with Articles 14 and 13 (§§19–20).
The Court explicitly cited Aghdgomelashvili (§§35–38; 42–44 and 46) to recall the State’s duty to investigate hate-motivated violence, thereby reaffirming its established approach under Article 3 taken in conjunction with Article 14 in cases of discriminatory ill-treatment and institutional indifference (see also Identoba and Others v. Georgia, §64; and M.C. and A.C. v. Romania, §106).
Under the procedural limb of Article 3 with Article 14, the Court found the State failed to investigate a possible discriminatory motive behind the act of violence adequately, ignoring signs of anti-LGBT bias such as compulsory drug tests without objective grounds. Domestic courts dismissed complaints on procedural grounds without examining the merits, constituting a procedural violation (§§22-26).
On the substantive limb, the Court accepted the applicants’ account beyond reasonable doubt. It held that police treatment met the Article 3 requisite severity threshold combined with Article 14, as officers intentionally humiliated the applicants through unjustified searches, forced drug tests, hate speech, and public disclosure of videos. These actions, lacking investigative purpose, aimed solely to intimidate, humiliate, and punish due to the applicants’ LGBT association and were motivated by homophobic hatred. They caused feelings of fear, anguish, and insecurity that were not compatible with respect for the applicant’ human dignity. Accordingly, a substantive Article 3 violation was found alongside Article 14 (§§27- 31).
Article 3 of the ECHR is firmly recognised as an absolute right (see Mavronicola), prohibiting torture and inhuman or degrading treatment without exception—even in emergencies (see Saadi v. Italy [GC], §127; Gäfgen v. Germany [GC], §87). The Court applies a contextual yet high severity threshold, considering all relevant factors like duration, physical or psychological effects, vulnerability, circumstances such as age, sex, or health and purpose of treatment (Khlaifia and Others v. Italy [GC], §160; Gäfgen v. Germany [GC], §88) (Borowski; Registry).
Prior to Bouyid [GC], the Court adopted a more rigid interpretation of the severity threshold under Article 3, occasionally excluding certain forms of violence from its scope (Ireland v. the United Kingdom [GC], §167). In Bouyid [GC], the Court refined that severity threshold for those deprived of liberty or confronted by law enforcement, focusing on the necessity of the treatment. In that context, the use of physical force (here, a slap in the face) that is not strictly necessary for the person’s conduct undermines human dignity, whatever the impact on them, and ‘in principle’ violates Article 3—even if below the usual severity threshold (Bouyid [GC], §§100–101; see also Perkov v. Croatia, §31; Registry). This highlights human dignity as central to Article 3 and the Convention’s core (Bouyid [GC], §§89–90; see also Vinter v. UK [GC] and Svinarenko and Slyadnev v. Russia [GC]) (Mavronicola; Smet).
Bouyid [GC] thus introduced a dignity-based qualitative threshold under Article 3, equating a breach of human dignity with a violation of the Article distinct from the quantitative level of suffering (cf. Mavronicola). However, the Court’s cautious phrasing—using expressions like ‘in principle’ or ‘may be characterised as degrading’—and the inherent complexity of defining what constitutes an affront to human dignity leave the threshold’s exact contours ambiguous. Nonetheless, Bouyid [GC] provided a concrete articulation of this threshold through its formulation on the use of physical force by law-enforcement officers that diminishes human dignity and thereby violates Article 3.
Aghdgomelashvili marked a further step towards articulating a dignity-based threshold by recognising discriminatory conduct motivated by homophobic and transphobic hatred, even absent physical contact, as sufficient to breach Article 3, thereby extending the Court’s approach beyond physical violence (cf. Mavronicola and Lavrysen). Despite acknowledging the significance of discriminatory language and degrading verbal abuse in understanding violations of human dignity, the Court still conditioned its finding on whether the treatment ‘reached the severity threshold’ (§46), thus failing to articulate a definitive threshold test or fully embracing Bouyid [GC]’s qualitative logic.
Overall, this development reflects the Court’s commitment to interpreting the Convention as a living instrument (Tyrer v. United Kingdom, §31), adapting it to contemporary social realities and an increased recognition of the gravity of discriminatory ill-treatment, beyond physical or visible harm. However, we challenge the Court’s recurring conflation of human dignity with applicants’ subjective ‘feelings of fear, anguish, and insecurity’ as triggering the protection of Article 3 (Identoba and Others v. Georgia, §71; Aghdgomelashvili, §49, Derrek §30). This conflation overlooks Bouyid [GC]’s distinction (§87) between: (a) treatment that shows a lack of respect for or diminishes an individual’s human dignity by humiliating or debasing them, and (b) treatment that arouses feelings of fear, anguish or inferiority. The former reflects an objective degradation; the latter, subjective experience.
Basing the assessment on subjective feelings reduces ‘human’ dignity to personal emotion. Instead, the emphasis should lie on the nature of the conduct—particularly identity-based humiliation and debasement by state agents—which diminishes human dignity regardless of the individual’s reaction (cf. Mavronicola and Lavrysen; Mavronicola).
The above overview aims to show that while the Court rightly found a violation of Article 3 in Derrek, its reasoning appears to fall short in engaging with the qualitative threshold of dignity-based harm — a dimension that, if properly developed, could have strengthened the normative force and clarity of the Court’s case law.
In his dissenting opinion, Judge Zünd argues that the Article 3 severity threshold was not met because there was no evidence of physical violence or explicit threats by the police in the Derrek case, unlike in Aghdgomelashvili where such threats did exist. He holds that verbal or psychological harm alone does not meet the threshold of ill-treatment required under Article 3. Judge Zünd also suggested that the State’s duty to investigate discriminatory motives under Article 14, read in conjunction with Article 8—established in racial discrimination cases—should apply to homophobic acts. However, this perspective overlooks the Court’s established jurisprudence recognising that Article 3 violations can occur without physical violence, particularly where state agents inflict psychological suffering through verbal abuse and discriminatory conduct, as discussed earlier in relation to Bouyid [GC] and Aghdgomelashvili.
In Aghdgomelashvili, the Court found that verbal homophobic abuse and humiliating police searches, even in the absence of physical violence, crossed the Article 3 threshold due to their degrading and discriminatory nature. This precedent directly challenges Judge Zünd’s assertion, as it expands the understanding of ill-treatment to include acts that inflict profound psychological harm rooted in discrimination.
While both cases involve police raids, homophobic slurs, and humiliating searches, Derrek demonstrates a marked escalation in the severity and complexity of discriminatory harm. The abuses in this case include the public dissemination of video footage of the raid on social media, the deployment of armed special forces, gender-specific searches, and forced drug testing under degrading and medically unethical conditions. These acts combine to create a multifaceted pattern of discrimination and ill-treatment that fundamentally undermines human dignity. This marked escalation clearly supports the conclusion that the Article 3 threshold was met.
The Court’s majority rightly recognised that such conduct, motivated by homophobic hatred, constitutes a serious violation of Article 3, reflecting the protective scope of the Convention against degrading and discriminatory ill-treatment. Therefore, from a doctrinal perspective, the Court’s application of Article 3 in Derrek aligns with its established case law, and Zünd’s critique does not adequately address the full context and gravity of the abuses.
Derrek makes no express reference to Bouyid [GC]. While it does invoke the general principles of Aghdgomelashvili, it does not reflect them in depth. This raises the question of what the Court implicitly endorses through this citation.
Aghdgomelashvili (§42) elaborates on Bouyid [GC]’s dignity-based approach, highlighting that equating violent acts committed with discriminatory intent with those without any such intent would overlook their particularly destructive nature and be incompatible with Article 14 of the Convention (§44). This reinforces the idea that discriminatory intent alters not just the intensity but also the quality of the harm — a dimension that must be incorporated into the Article 3 threshold analysis.
Regarding the assessment of Article 3 in conjunction with Article 14, Mavronicola and Lavrysen highlight in a discussion of Aghdgomelashvili that discriminatory intent aggravates ill-treatment and enhances its expressive harm, and that the discriminatory motive may have contributed, at least in part, to the treatment reaching the Article 3 threshold. This analysis is also applicable to Derrek (§§27-30). However, the Court’s analytical structure in Derrek differs from Aghdgomelashvili, where the Court explicitly employed a two-step reasoning, affirming first that the ill-treatment reached the Article 3 severity threshold, and then that it was driven by homophobic or transphobic hatred (Aghdgomelashvili, §§46-48).
The Derrek judgment affirms both elements (§§28–30), yet does not explicitly frame them as interrelated inquiries, relying instead on a reference to Aghdgomelashvili. As Mavronicola and Lavrysen argue, that judgment may suggest that homophobic or transphobic verbal abuse and humiliating treatment by law-enforcement officials, even in the absence of physical violence or threats, can suffice to engage Article 3. This is a principled reading, yet it remains an extrapolation rather than a clear doctrinal statement by the Court. Accordingly, the threshold question in cases involving discriminatory humiliation continues to arise—as illustrated by the dissent in Derrek, where the absence of physical violence was deemed decisive. This underscores the need for greater clarity in the Court’s jurisprudence on how discriminatory intent and verbal degradation relate to the Article 3 threshold.
Although Derrek shares underlying similarities with Aghdgomelashvili, it leaves the role of discriminatory motive by state actors in meeting the Article 3 threshold less clear. This highlights the need for more finetuned criteria. Relying on precedent without detailed analysis may consolidate case law, but it opens the door to a renewed narrowing of the scope of Article 3 protection in discriminatory abuse cases. Crucially, this doctrinal ambiguity can contribute to persistent reservations like those voiced in Judge Zünd’s dissent, echoing a recurring concern in the Court’s jurisprudence: that extending Article 3 to non-physical harm risks “trivialising” its absolute protection (dissenting opinion in Bouyid [GC]). This concern is misplaced in cases of state-perpetrated discriminatory humiliation, where harm targets the very being of LGBT+ individuals — what may be described as ontological violence. Such harm is existential rather than merely psychological and exceeds what can be weighed within Article 8’s balancing framework. Any further debate on the threshold conflicts with the understanding that human dignity lies ‘at the very essence of the Convention’ (Bouyid [GC], §101).
While Article 8 protects physical/psychological integrity or identity aspects (Pretty v. United Kingdom, §61), it is Article 3’s absolute protection that is essential to confront the fundamental erasure of dignity in state-perpetrated abuse. Recognising violations of Article 3 in such contexts signals a substantive rejection of any justification for interference, irrespective of attempts to quantify the severity threshold (cf. Mavronicola and Lavrysen).
Aghdgomelashvili built on Bouyid [GC]’s dignity-based framework by recognising that homophobic and transphobic verbal abuse constitutes an inherent violation of Article 3. However, its reliance on a ‘severity threshold’ diluted this important qualitative insight. Derrek, unfortunately, does not advance this framework; it affirms that homophobic police conduct violates Article 3, yet fails to treat discriminatory motive as the decisive factor that inherently breaches human dignity. Consequently, the threshold question remains unsettled.
What is needed is a clear articulation of Bouyid [GC]’s dignity-based threshold: when state agents inflict humiliation with a discriminatory motive, especially targeting core aspects of identity, this inherently diminishes human dignity and falls within Article 3—regardless of physical violence or measurable suffering. As an absolute guarantee, Article 3 should not require any quantification of harm to acknowledge this ontological violence. This ambiguity and doctrinal inconsistency in applying Article 3 will persist until the Court explicitly defines a qualitative, dignity-based threshold that integrally incorporates discriminatory intent.
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