Closing reflections on Article 3 and Chişinǎu symposium

By dr. Natasa Mavronicola

I am grateful to Strasbourg Observers for hosting this symposium on Article 3’s past, present and future, and to Mary Rogan, Rishika Sahgal, Eva Sevrin and Elaine Webster for this rich set of insights offered in the shadow of Chișinău. It is an honour to be among these authors and I can only apologise for stealing the last word. I will not attempt to summarise their posts; rather, I will offer some very brief closing reflections informed by the pieces just published.

One concerns how the Chișinău process frames the problem ‘with’ Article 3. Within the Chișinău process, the problem has been cast as being an over-expansive (or potentially over-expansive) Article 3 that operates as an impediment to desired state action. The issue, then, is not how to mobilise against the pervasive violence and cruelty that the ECtHR’s jurisprudence has increasingly recognised, but how to contain that recognition. The authors in this symposium reframe the problem by refocusing our attention on the cruelties captured by Article 3 and the imperative that no one shall be subjected to these.

A related matter is how the Chișinău process approaches uncertainty. Authors in this symposium acknowledge uncertainty both within the case-law and in the bigger-picture questions surrounding how we understand torture or inhuman or degrading treatment or punishment. The Chișinău process has seen states invoke uncertainty and seek ‘guidance’ in respect of their obligations under Article 3. The pursuit of guidance and greater certainty on the contours of absolutely proscribed conduct is, of course, sensible – but much goes back to how the problem is framed. It is not clear that guidance is being sought so as to minimise the circumstances in which people are subjected or exposed to Article 3 harms – rather, it appears that guidance is sought so as to maximise desired state action that skirts the boundaries of Article 3. An insistence on ‘caution’ in the context of uncertainty is apparent in the CDDH outcome document (eg, p. 11) – but erring on the side of ‘caution’ in the Chișinău process has meant erring on the side of enabling desired state action, rather than in the sense of the precautionary principle: erring on the side of not potentially exposing people to irreparable harm. Again, the authors in this symposium help us rethink the Chișinău response to uncertainty and model how to labour under uncertainty and doubt in delineating Article 3.

Finally, the symposium enables an interrogation of perceptions regarding the ‘core’ and ‘periphery’ of Article 3 wrongs. Invocations of ‘overreach’ often appear laden with assumptions about what is on the ‘edges’ (or ‘fringes’) of Article 3 – but a closer look at relevant case-law, particularly case-law applying Article 3 to previously overlooked or under- estimated harms, shows reasoning that illuminates rather than attenuates what is at the heart of Article 3. Importantly, calls for ‘realism’ or ‘restraint’ are at best under-reasoned, and at worst resting on unspoken assumptions about whose suffering is, or must be, tolerable, and whose is not.