Article 3 and the destruction of homes

By Dr Rishika Sahgal

Introduction

In the run-up to Chișinău, there has been increasing reference to the need to ‘constrain’ Article 3 of the European Convention on Human Rights (ECHR) to the ‘most serious issues’. The implication of such perspectives is that the interpretation of Article 3 has involved something of an overreach, and that it needs to be reined in. The outcome document prepared by the Steering Committee for Human Rights (CCDH) has slightly softened this language but nonetheless implicitly conveys a restrictive stance by insisting that ‘the absolute prohibition of inhuman or degrading treatment or punishment reflects that it relates to the most serious forms of ill-treatment’, and that accordingly the minimum level of severity must ‘remain high’. This blog post seeks to address (mis)perceptions about the overreach of Article 3 with a focus on one category of circumstances: the deliberate destruction of homes.

Within the framework of the Convention, home demolitions are ordinarily considered under Article 8 (the right to home and family life) and Article 1 of Protocol No. 1 (protection of property). Through a series of cases in the late 1990s and early 2000s, the European Court of Human Rights (ECtHR) began to consider deliberate destruction of homes as a violation of the absolute prohibition against inhuman treatment under Article 3.

In this blog, I make three arguments: first, that the application of Article 3 to home destructions has been constrained and circumscribed. Second, that existing cases fit well with the conceptual foundations of the absolute prohibition against inhuman treatment – to protect human dignity, particularly of politically and racially marginalised groups. Third, that such application ensures that Article 3 remains responsive to ways in which persons are dehumanised today in the context of ‘domicide’.

Deliberate destruction of homes as inhuman treatment

Article 3 has not been applied to all cases of home demolitions, rather its application has been contained to a handful of cases involving the deliberate destruction of homes. Many of these cases emerge from Turkey during a period when Turkish security forces were carrying out operations against proscribed Kurdish groups (for example, see Selçuk and Asker v. Turkey (1998); Bilgin v. Turkey (2000); Yöyler v. Turkey (2003); Hasan Ilhan v. Turkey (2004). For a dataset of such cases, see Yildiz).

In these cases, the ECtHR considered several factors to conclude that the ‘minimum level of severity’ was met for the deliberate destruction of homes to amount to inhuman treatment: lack of respect and concern shown to applicants; the anguish and distress caused to applicants and families when they watched their homes and belongings being burnt down in front of their eyes and despite their protests; and the impact of the treatment in depriving applicants of shelter and displacing them from their village and community. These factors point both to the inherent nature of the treatment as violative of human dignity, and to the material and emotional effects of the treatment, particularly on oppressed and vulnerable groups.

These factors fit well with the purpose of the absolute prohibition of inhuman treatment under Article 3. The core of the provision is about the protection of human dignity (Mavronicola). The denial of fundamental humanity is inherent not only in torture, but also in inhuman and degrading treatment (Bronsther). The entire spectrum of wrongdoing covered under Article 3 involves the denial of human personhood (Webster). In home destruction cases, the ECtHR has noted ‘lack of respect’ and the showing of ‘contempt’ as factors indicating inhuman treatment. These are connected, in my view, to the protection of human dignity.

Another view is that the absolute prohibition under Article 3 is aimed not only at protecting the abstract and universal value of human dignity, but also the more rooted and contextual protection of marginalised and vulnerable groups – those who are ‘already othered, under-protected, and victimised’ (Mavronicola), such as persons suspected of crime or terrorism, irregular migrants, or persons with disabilities (for a discussion of the latter, see Lawson). Such groups are particularly vulnerable to torture and inhuman and degrading treatment given their politically and socially marginalised status. The home demolition cases emerging from Turkey fit well with this contextual grounding. All these cases involved applicants from the politically and ethnically oppressed Kurdish community.

Consider the case of Selçuk and Asker v. Turkey. The applicants were Turkish citizens of Kurdish origin in their mid-fifties and sixties who had lived their entire lives in their village in south-east Turkey (paragraphs 8, 77). Turkish security forces were deployed in the region to carry out operations against proscribed Kurdish groups (paragraph 9). Within this context, security forces deliberately poured petrol and set fire to the homes of the applicants in their presence, even as they protested and tried to save their possessions. When other villagers tried to put out the fire, soldiers prevented them from intervening. Both homes and most possessions were destroyed (paragraphs 27 and 28), and the applicants were forced to leave their village (paragraph 77).

The ECtHR observed: ‘It would appear that the exercise was premeditated and carried out contemptuously and without respect for the feelings of the applicants. They were taken unprepared; they had to stand by and watch the burning of their homes; inadequate precautions were taken to secure the safety of Mr and Mrs Asker; Mrs Selçuk’s protests were ignored, and no assistance was provided to them afterwards’ (paragraph 77). Overall, the ECtHR was responsive to the denial of humanity of Kurdish residents through the destruction of their homes – a destruction that was carried out ‘contemptuously’ and ‘without respect for the feelings of the applicants’.

Circumscribed application of Article 3 to home destructions

Overall, the ECtHR has found a violation of Article 3 in cases involving the destruction of homes only exceptionally.

A notable example outside of the Turkish context is Moldovan and Others v. Romania (No. 2) (2005) which involved the destruction of the homes of people of Roma background through racially motivated mob violence. After the destruction of their houses, applicants were forced to leave their village and lived in poor, cramped conditions. The ECtHR found that the destruction of homes took place prior to the ratification of the Convention by Romania, so it could not examine this against the touchstone of the Convention. Instead, it considered the crowded, unsanitary living conditions of the applicants following the destruction of their homes, the length of time they were forced to live in such conditions, and the racial discrimination they were subjected to by the state authorities in the way their grievances were handled. The ECtHR noted the explicitly derogatory racialised statements made by state authorities about the Roma applicants who had lost their homes. Taken together, the ECtHR found that this treatment interfered with the human dignity of applicants, caused them mental suffering, humiliation and debasement and therefore amounted to ‘degrading treatment’ proscribed by Article 3 (paragraph 110-113).

More recently, consider Georgia v. Russia (No. 2) (2021). The ECtHR’s holdings in the case about jurisdiction and applicability of the ECHR in situations of inter-state armed conflict have garnered much attention (and critique – see Milanovic). In this blog I focus on its holdings on home destructions under Article 3.

In the case, the ECtHR refused to examine any allegations of human rights violations during the ‘active hostilities phase’. It only considered, and found, serious violations in the aftermath of the ‘active hostilities phase’ in territories over which Russia exercised ‘effective control’, including South Odessia and the buffer zone established by the Russian armed forces. With respect to home destructions, the ECtHR found that entire Georgian villages in South Ossetia and the buffer zone had been systematically burnt and homes looted and torched, and that this was a part of a widespread ‘administrative practice’ (paragraph 220). The ECtHR concluded that this violated not only Article 8 and Article 1 of Protocol No. 1 but also amounted to inhuman and degrading treatment proscribed by Article 3. This was because of the anguish and distress experienced by victims, and because victims were targeted as an ethnic group.

In most other cases, the ECtHR has either refused a finding of inhuman treatment, or else has only assessed the deliberate destruction of homes under Article 8 and Article 1 of Protocol No. 1, and not under Article 3.

For cases that fall in the first category, consider Esmukhambetov v. Russia (2011). This case involved the Russian air force indiscriminately bombing a village in the Chechen Republic. Many villagers were killed and homes and possessions were destroyed in the bombings. While applicants were successful in their claims under Article 2 for the death of family members, as well as under Article 3 for the anguish in witnessing the death of family members, they were unsuccessful in their claims under Article 3 for the destruction of their homes. The ECtHR accepted that the destruction of homes violated Article 8 and Article 1 of Protocol No. 1, but the ECtHR did not consider this a violation of Article 3.

The ECtHR’s reasoning further constrains the application of Article 3 in cases involving the destruction of homes. It has imported a factor that has not always been required in other home destruction cases – the need to indicate that the purpose of home destruction was to cause suffering. See the following sentence: ‘It may therefore be reasonably assumed that in the quoted cases the security forces burnt the applicants’ homes and possessions with a view to causing them mental suffering’ (Esmukhambetov, paragraph 187). And: ‘It is true that, as has been found above, the attack of 12 September 1999 was not adequately planned and controlled … but this attack can hardly be said to have had as its purpose subjecting the applicants to inhuman treatment, and in particular, causing them moral suffering’ (paragraph 188). While suffering and an incursion into the dignity of applicants have been important factors considered in home destruction cases, the ECtHR has not always required applicants to demonstrate that the purpose of destruction was to cause suffering. The need to indicate that the purpose of home destruction was to cause suffering in Esmukhambetov v. Russia further limits the application of Article 3 in home destruction cases.

In other cases, the ECtHR has only assessed home destructions on the touchstone of Article 8 and Article 1 of Protocol No 1, and not under Article 3. Consider Ukraine and the Netherlands v. Russia (2025), with a focus on home destructions. The ECtHR noted the destruction of Ukrainian homes and other civilian infrastructure by Russia as well as the displacement of civilians. This was assessed by the ECtHR within the framework of Article 8, Article 1 of Protocol 1, and International Humanitarian Law. The ECtHR did not assess home destructions and displacement of civilian populations on the touchstone of Article 3.

Overall, the application of Article 3 in the context of home destruction has been circumscribed. In cases where the ECtHR has found a violation of Article 3, it has considered the incursion into the personhood and dignity of politically and ethnically marginalised groups through the destruction of their homes. The loss of material shelter, community and belonging, and accompanying distress and anguish caused to applicants have been important factors for the ECtHR to find that a ‘minimum level of severity’ is met for the destruction of homes to amount to ‘inhuman treatment’.

Domicide

 ‘Domicide’ refers to the widespread and systematic destruction of homes (Porteous and Smith), particularly during political violence, including armed conflict (Akesson and Basso; Azzouz). Domicide has been practised at an unprecedented scale in recent years in Gaza, Myanmar, Sudan and Ukraine (see the thematic report of the UN Special Rapporteur on the right to housing, 2026). Domicide has not been incidental to conflict, but rather a deliberate method of warfare, repression, territorial control and even annexation.

By recognising the deliberate destruction of homes as inhuman treatment and hence an absolute wrong under Article 3 in specific circumstances, the ECtHR has remained responsive to the ways in which persons, and particularly those belonging to marginalised groups, are dehumanised today through the destruction of their homes.

While Article 8 and Article 1 of Protocol No. 1 provide an alternative pathway to accountability for domicide (Triadó), these provisions do not adequately capture the absolute nature of the wrongs committed through domicide in violating the dignity and furthering the marginalisation of already oppressed and vulnerable groups. At the heart of it, domicide transcends the destruction of physical structures of people’s houses. It includes an attack on the belonging of those ‘already othered, under-protected, and victimised’ in a way that not only causes suffering but also impinges on their personhood. These are exactly the kinds of wrongs that are meant to be captured by Article 3.

Conclusion

This blog post is written in the context of a proposed pull-back of Article 3 of the ECHR. While recent proposals focus on limiting the rights of migrants and asylum seekers (see the Joint Statement to the Conference of Ministers of Justice of the Council of Europe), there is a general sense being conveyed that Article 3 has gone too far and must be constrained.

In this blog post, I have argued that where deliberate destruction of homes is concerned, Article 3 has been applied in a contained and circumscribed manner. In the cases that it has been used, the application of Article 3 fits well conceptually with the very purpose of the provision – to proscribe acts that demean human beings, and particularly those who find themselves at the margins of politics and society.

Such application of Article 3 ensures that the Convention is responsive to a persistent phenomenon that is rampant in our times: domicide or the widespread and systematic destruction of homes of politically and racially oppressed groups. The destruction of their homes is closely tied to the destruction of their personhood and belonging. In such times, if the ECHR is to be meaningful for the protection of our collective humanity and belonging, it is imperative to continue to defend the rigorous, reasoned application of Article 3 to human dignity abuses, and resist efforts to dilute it under the guise of preserving its absolute character.