October 23, 2026
by Natasa Mavronicola
The European Court of Human Rights’ Grand Chamber judgment in Yasak v. Türkiye has rightly attracted extensive discussion, with particular focus on its Article 7 dimension (see, e.g., here and here). In this post, I zoom in on the Article 3 finding in Yasak, which is significant in its own right. The Article 3 claim concerned the conditions of Mr Yasak’s detention for a period of approximately four years in Çorum Prison, during a period in which the prison was overcrowded, in large part due to a surge in the prison population following the attempted coup of July 2016. By a nine to eight majority (the majority consisting of Judges Guyomar, Jelić, Ktistakis, Šimáčková, Felici, Bormann, Kučs, Đurović and Lavapuro), the Grand Chamber concluded that the cumulative conditions of Mr Yasak’s detention, caused by overcrowding, had attained the ‘minimum level of severity’ required to fall within Article 3. In a vocal dissent, however, Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins, and Ní Raifeartaigh challenged the majority’s finding and suggested that the Court had ‘effectively lower[ed] the threshold of Article 3’.
In this post, I unpack the majority’s reasoning and conclusion on Article 3 and consider the key points emerging in the eight-strong dissenting opinion. I centre my critical analysis on where the majority and those dissenting appear to differ in terms of principle. I conclude that the case reveals tensions that will endure and potentially escalate in the aftermath of the Chișinău Declaration.
The Chamber of the ECtHR had found in 2024 that Mr Yasak may have experienced ‘difficulties’ and a degree of ‘distress’ while being held at Çorum prison, but his conditions of detention had not crossed the Article 3 ‘threshold’. Departing from this finding, the majority of the Grand Chamber concluded that, on a cumulative assessment, a combination of factors connected with persistent prison overcrowding had attained the Article 3 ‘minimum level of severity’.
The Grand Chamber noted that, in the course of his imprisonment, the applicant had been held first in a unit in which his personal space ranged from 3.6 square metres to 4.6 square metres, and subsequently in a unit in which his personal space ranged from 4 square metres to 6 square metres. It therefore refrained from applying the ‘strong presumption’ of an Article 3 violation that it reserves for situations in which the personal space is less than three square metres (following Muršić v. Croatia – a notably dissent-heavy judgment). Instead, it examined ‘other aspects of the physical conditions of detention’. It paid close attention to a number of elements of the applicant’s experience of imprisonment:
– that he had been obliged, for fourteen months in total, to sleep on a mattress in communal areas that lacked privacy and were permanently exposed to artificial light and noise, an arrangement that ‘necessarily affected his quality of sleep, resulting in both physical and mental fatigue’ and, given its duration, must have constituted ‘a particularly heavy physical and psychological burden for the applicant’ (para 244).
-that, for the duration of his imprisonment, he had faced ‘inadequate sanitary facilities: each unit was equipped with only two toilets and two showers for up to forty-seven detainees in Unit F-5 and forty-two detainees in Unit F-10’ (para 246).
-chronic prison overcrowding, which limited effective access to cultural and recreational activities and to outdoor exercise.
The Court adopted a temporally sensitive lens in evaluating the cumulative impact of prison conditions, indicating that ‘conditions which might be tolerable over a short period may, with the passage of time and when combined with other factors of hardship, impose a heavy physical and psychological burden on detainees’ (para 240). It concluded that the applicant’s persistent exposure to such conditions for four years, seen cumulatively, had attained the ‘minimum level of severity’ in violation of Article 3 ECHR.
The eight-strong dissent argued that ‘the conditions of detention in the Çorum Prison, although deplorable, did not, in our view, attain the threshold of severity required for the applicant’s treatment to be assessed as inhuman or degrading within the meaning of Article 3’ (Joint Partly Dissenting Opinion of Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins and Ní Raifeartaigh, para 1). The dissent placed more emphasis on some aspects of the facts and appeared to disregard others – it considered, for example, the quality of the mattress on which the applicant slept when on the floor, but not the light and noise impacting his sleep in the communal space. The dissenters underlined that the time spent by the applicant sleeping on a mattress on the floor was based on ‘a “rota” system [that] was a collective agreement among the inmates themselves, rather than a punitive measure imposed by the guards’. In addition, in a section titled ‘The applicant’s refusal to accept a transfer and the principle of good faith’, the dissenters pointed to Mr Yasak’s refusal to accept a transfer ‘to a less crowded facility’ as indicating that ‘the applicant’s social and familial links in Çorum outweighed any distress caused by the overcrowding, indicating that the suffering was not “inhuman”’ (Joint Partly Dissenting Opinion of Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins and Ní Raifeartaigh, para 12). In the same section, the dissenters highlighted the consideration and approval of his conditions by domestic courts on the basis of domestic standards they deemed to be ‘in reasonable harmony with the Court’s Muršić case-law’ (Joint Partly Dissenting Opinion of Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins and Ní Raifeartaigh, para 13).
The principled crux of the dissent is that the majority is engaging in an overbroad application of Article 3 ECHR (a ‘lowering’ of the Article 3 ‘threshold’), one that is ‘without precedent’. The dissent also stresses the absence of a ‘strong presumption’ militating in favour of a finding of Article 3 violation and underlines facts that the dissenters see as pointing to the tolerability of the ‘deplorable’ conditions at Çorum. I turn now to these two aspects of the disagreement in principle: (a) whether a restrained approach should be taken to interpreting and applying Article 3 and Article 3 jurisprudence; and (b) the presumptions at play in the Article 3 assessment of (overcrowded) prisons.
There are at least two layers to the dissenters’ invocation of overreach: First, the accusation is one of substantive overreach. The majority’s approach is seen as an unduly expansive reading of Article 3 that does not map onto what Article 3 is really about. Second, it is grounded at least in part in the absence of ‘precedent’. This is a position that prizes what is perceived to be the jurisprudential status quo.
First, on the substance, the dissenters insist on the precise numerical dimensions of the space allocated to the applicant, and appear to indicate that overcrowding cannot be the basis for an adverse Article 3 finding where a prisoner has more than four square metres of personal space. In these circumstances, they say, ‘the spatial factor ceases to be an issue’ (Joint Partly Dissenting Opinion of Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins and Ní Raifeartaigh, para 3). Of course, the majority’s point is that overcrowding entails a range of issues, not all of which are purely ‘spatial’ in nature. The dissenters employ terms such as ‘manifestly overcrowded’ and ‘extreme overcrowding’ to describe other cases in which violations have been found, seeking to distinguish these from the present case. They see the Article 3 ‘threshold’ in the prison context as one necessitating an ‘extreme’ level of distress and see the conditions in which Yasak was held as ‘deplorable’ but nowhere near that ‘extreme’. Crucially, for them, conditions must be particularly ‘egregious’ to cross the Article 3 ‘threshold’ if the provision of space ‘generally met or exceeded minimum international standards’ (Joint Partly Dissenting Opinion of Judges Vehabović, Schukking, Chanturia, Yüksel, Seibert-Fohr, Roosma, Guerra Martins and Ní Raifeartaigh, para 5). This reveals an understanding that Article 3 violations are – and must normatively be – an aberration, irrespective of the widespread systemic issues caused by over-incarceration. In turn, such a position may reveal not just a principled stance on what Article 3 is truly about but also a pragmatic stance regarding the difficulty that arises for states if all too many prison settings are deemed incompatible with Article 3.
It is worth underlining that the ECtHR had stressed in Muršić v. Croatia that ‘the Court’s assessment whether there has been a violation of Article 3 cannot be reduced to a numerical calculation of square metres’ and that ‘only a comprehensive approach to the particular conditions of detention can provide an accurate picture of the reality for detainees’ (Muršić, para 123). This approach, which led to a finding of no Article 3 violation in Muršić, cuts both ways. In Yasak, the majority engaged in such a comprehensive assessment and concluded that the circumstances disclosed an Article 3 violation.
Second, I believe it is significant to consider the fundamental parameters of the dissenters’ invocation of precedent and its underlying principle. In essence, the dissenters are saying that the majority are engaging in a progressive interpretation of Article 3 in this context and that this is inappropriate. It is worth contemplating the possibility that the dissenters are signalling that the Article 3 jurisprudence on overcrowding or prison conditions should be taken to have reached a plateau or standstill and that the task of the judges should now be to apply ‘precedent’. This would be a departure from the ECtHR’s long-standing stance on ‘punishment or treatment associated with it’, in respect of which it has often (openly or not) adopted a ‘living instrument’ approach (since the landmark case of Tyrer v. UK). The restraint exhibited and advocated in the dissent suggests that the dissenters are sensitive or sympathetic to allegations of Article 3 overreach and/or to backlash against a progressive interpretive stance that accommodates new insights on the harms of (particular modes or aspects of) imprisonment.
Perhaps a third layer to the dissenters’ call for restraint is an attempt (or a planting of the seeds) towards a procedural ‘turn’ in the ECtHR’s Article 3 assessments. They underline that domestic courts have already dismissed the Article 3 claim and in doing so applied standards that are ‘reasonably’ in line with the ECtHR’s Article 3 jurisprudence. While they seem to be offering this commentary in the context of the question of the adequacy of domestic remedies, the fact that the government’s exhaustion objection was unanimously dismissed leads me to consider that the dissenters may be entertaining the prospect of a ‘reasonableness’ review at ECtHR level of domestic judicial evaluations of Article 3 compliance. It bears underlining that such a stance would make the Article 3 ‘red line’ – the line between potentially lawful and conclusively unlawful conduct that flows from Article 3’s absolute character – fundamentally variable across the Council of Europe and would contradict this absoluteness.
I turn now to the question of ‘presumptions’. Since the dissenters stress the inapplicability of the ‘strong presumption’ of an Article 3 violation in this case – something which the majority did not dispute – it seems important to highlight the unspoken presumptions that remain at play in this case, and notably those that the dissenters view as militating against an Article 3 finding.
I understand the term ‘presumption’ here to mean the (usually rebuttable) assumption of something as being true or right – that is, as something that encompasses both evidentiary presumptions and presumptions pertaining to the substantive question of whether the Article 3 ‘threshold’ has been reached.
It is important, first, to underline that when it comes to what the ECtHR calls ‘punishment or treatment associated with it’, a number of presumptions are at play. This is so because ‘punishment or treatment associated with it’ is taken to involve, in the Court’s jurisprudence, something that is necessarily undesirable or unpleasant and that is legitimately undesirable or unpleasant. The Court has accordingly indicated that
In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. (A v. UK, para 127,emphasis added)
When it comes to the (lawful) deprivation of liberty, the Court has repeatedly stressed that it ‘may often involve such an element’ (that is, an inevitable element of suffering or humiliation), and that Article 3 will be violated only when an imprisoned person is subjected to ‘distress or hardship exceeding the unavoidable level of suffering inherent in detention’ (Kafkaris v. Cyprus, para 96,emphasis added).
There are therefore significant state-friendly presumptions at play in this ‘category’ of Article 3 case-law. First, there is the rather firm presumption that imprisonment is a form of ‘legitimate treatment or punishment’ and therefore not per se incompatible with Article 3. This goes hand in hand with the presumption that the suffering and/or humiliation deemed an ‘inevitable’ aspect of imprisonment falls ‘below’ the Article 3 ‘threshold’. In turn, this means that the applicant has to demonstrate something peculiarly problematic about their prison experience in order to succeed on Article 3 grounds.
A substantial corpus of Article 3 jurisprudence has illuminated the ways in which presumptions about prison (and its tolerability) can be rebutted and the lines of tolerability crossed (I consider this further here and here). Moreover, the ECtHR has acknowledged the evidentiary difficulties faced by those currently or formerly imprisoned, thereby adopting a nuanced evidentiary stance to the effect that ‘once an applicant has provided a credible and reasonably detailed description of allegedly degrading conditions of detention, the burden of proof is shifted to the respondent Government, which must produce information capable of corroborating or refuting the applicant’s allegations’ (Yasak, para 238). This presumption, which favours the imprisoned person, adds to the Court’s evidentiary and substantive presumption that there has been an Article 3 violation when someone has sustained injuries while in state custody (for a very recent application of the latter presumption see Strashunskyy v. Ukraine).
The push-and-pull of relevant presumptions certainly complicates Article 3 case law on imprisonment (see, further, Mavronicola 2015, 2021); but there is little push-and-pull in the eight-strong Yasak dissent.
In Yasak, the dissenters are applying the relevant prison-friendly/state-friendly presumptions along with at least two further presumptions. One is the normative presumption that a prison nominally meeting ‘minimum’ international standards is not incompatible with Article 3, as outlined above. This abstract reasoning is not taken to be rebutted by the more concrete depiction of reality in Çorum. But there is also a sense in which the dissenters appear unwilling to engage with the problems caused by overcrowding – the realities of access to basic amenities, the harms of the sleeping arrangements, and so on – because of an almost irrebuttable presumption that overcrowding-related harms cease to be an issue at four square metres. Additionally, a factual presumption apparently at play is one that views imprisoned people as exercising a free or quasi-free agency in their decision-making within prison unless a particular form of (additional) coercion can be demonstrated. The latter presumption appears to be why the dissenters stress that the time Yasak spent sleeping on a mattress on the floor was based on a collective agreement among the imprisoned rather than a punitive imposition. Yet the fact remains that a rota was necessary due to overcrowding. This presumption also appears to be why the dissenters treat his refusal of transfer to a different prison unit with lower occupancy rates as a free rejection of a new and potentially better set-up, indicating the tolerability of the prevailing arrangements. An alternative view would see this refusal as a decision based on the profound relational need for family contact (the other prison would be further away, potentially implicating his Article 8 rights) and, likely, the fear – in a context of profound dependence, power asymmetry and imbalance of access to information – that change could bring about new, unknown degradations.
The ECtHR’s Article 3 case law on ‘punishment and treatment associated with it’ becomes particularly complex in the prison context, because the parameters of what it deems tolerable suffering remain difficult to pin down. Yasak is a judgment in a long line of case law in which a combination of factors are deemed cumulatively to have pushed particular conditions of imprisonment over the Article 3 ‘threshold’. But the vocal dissent represents a pushback that, in my view, maps onto state concerns about whether altogether all too many (that is, an inconvenient number of) prisons may now be deemed to encompass conditions of confinement that are contrary to an absolute right and thereby conclusively unlawful. This concern is made clear in the Chişinău Declaration and the discourse that preceded it (see some of the discussion in a recent blog symposium).
While disagreement about the concrete application of Article 3 has continually characterised the delimitation of the right, it is important to be clear about the principled dimensions of the disagreement, and the unspoken dynamics that underlie distinct positions. My hope here has been to highlight that beneath the eight dissenters’ assertion of what they deem a more technically appropriate line-drawing, we can find principled and, arguably, pragmatic restraint as well as presumptions that foreground states’ interests in (mass) incarceration and understate the realities of the experience of confinement in overcrowded prisons.
The author would like to thank Ergün Cakal and Kanstantsin Dzehtsiarou for comments on an earlier draft, and the Strasbourg Observers blog for its excellent editorial insights.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The blog is run as an inter-university collaboration amongst the Dutch-language universities of Belgium. Associated research groups are the Human Rights Centre at Ghent University, the Centre for Government and Law at Hasselt University, the Leuven Centre for Public Law at KU Leuven, the Law and Development Research Group at the University of Antwerp and the Vakgroep Publiekrecht at the Vrije Universiteit Brussel.
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