“Bulk interception of communications in Sweden meets Convention standards”: the latest addition to mass surveillance case law by the European Court of Human Rights

By Plixavra Vogiatzoglou, Legal Researcher, KU Leuven Centre for IT and IP Law (CiTiP)

On 19th June 2018, the Third Section of the Court, in its judgment in the case Centrum för Rättvisa v. Sweden, ruled that the bulk interception of communications scheme of the Foreign Intelligence of Sweden meets the Convention standards. This ruling follows verbatim the line of argumentation from previous case law on secret mass surveillance, thus reaffirming once more a high threshold for the protection of the right to private and family life. Continue reading

Mammadov v. Azerbaijan: It Is about Effectiveness of the Strasbourg System.

By Kanstantsin Dzehtsiarou (University of Liverpool)

Infringement proceedings: the question of legitimacy

In 2010, when Protocol 14 entered into force, it amended Article 46 of the European Convention on Human Rights (ECtHR). Section 4 was added to this Article. It empowered the Committee of Ministers of the Council of Europe to initiate infringement proceedings before the Grand Chamber of the ECtHR. On 5 December 2017, the Committee of Ministers chose to use this procedure for the first time in history and referred the case of Ilgar Mammadov v Azerbaijan to the Court. The Grand Chamber of the ECtHR must now decide whether Azerbaijan has indeed failed to fulfil its obligations under the Convention. Continue reading

No overbroad suppression of extremist opinions and ‘hate speech’

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its recent judgment in Stomakhin v. Russia, the European Court of Human Rights (ECtHR) launched the message to all domestic authorities to adopt a “cautious approach” in determining the scope of “hate speech” crimes and to avoid “excessive interference” with the right to freedom of expression, especially when action is taken against ‘hate speech’ or extremist opinions that are mere criticism of the government, state institutions and their policies and practices. The judgment of 9 May 2018, in which the ECtHR unanimously found a violation of Article 10 ECHR, sets an important standard: as judge Keller observed in her concurring opinion, “it is the first time that this Court has had to decide on a case which stems from the application of the Suppression of Extremist Activities Act (..), and will thus be the starting point of a body of case-law which will serve as a reference not only in future cases concerning Russia, but for all other Member States as well.”

Conviction for extremist speech and incitement to hatred

Acting both as a journalist working for a magazine, and as an activist being the founder, owner, publisher and editor-in-chief of a monthly newsletter Radikalnaya Politika (“Radical Politics”), Boris Vladimirovich Stomakhin published in 2003 a series of articles touching on the events in the Chechen Republic. The articles sharply criticized the Russian government and the actions by the army and expressed support for the Chechen rebel separatist movement. The Russian courts found Stomakhin guilty of “having publicly appealed to extremist activities through the mass media” (Article 280 § 2 of the Russian Criminal Code (CC)) and of having committed “actions aimed at inciting hatred and enmity as well as at humiliating the dignity of an individual or group of individuals on the grounds of ethnicity, origin, attitude towards religion and membership of a social group, through the mass media” (Article 282 § 1 CC). They found that the impugned texts had had a clear extremist leaning and incited actions prohibited by the Federal law on Suppression of Extremist Activities. Stomakhin was sentenced to five years in prison and given a three-year ban on practising journalism. He served the sentence in full and was released in March 2011.

In 2007, while in prison, Stomakhin lodged an application with the ECtHR, complaining mainly about a violation of his right to freedom of expression. He argued that he had simply expressed his opinion on political events in Russia, in particular the conflict in Chechnya and he denied supporting extremism. The ECtHR considers that in the period when Stomakhin was tried and convicted, matters relating to the conflict in the Chechen Republic were of a very sensitive nature and required particular vigilance on the part of the authorities. It accepts, accordingly, that Stomakhin’s conviction can be seen as having pursued the aims of protecting the rights of others as well as protecting national security, territorial integrity and public safety and preventing disorder and crime, while the interference with his right to freedom of expression was “prescribed by law”, as it was based on Articles 280 § 2 and 282 § 1 of the Russian Criminal Code. Hence, the decisive question was whether Stomakhin’s conviction was justified, being “necessary in a democratic society”.

The ECtHR first reiterates that there is little scope under Article 10 § 2 ECHR for restrictions on political speech or on debate on questions of public interest and that “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries”. However, as “tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society”, it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence, hatred or intolerance provided that restrictions or penalties imposed are proportionate to the legitimate aim pursued. In its assessment of the interference with freedom of expression in cases concerning expressions alleged to stir up or justify violence, hatred or intolerance, the ECtHR refers to a set of factors, as applied in its Grand Chamber judgment in Perinçek v. Switzerland (see also our blog post here). Therefore, the ECtHR examines the case with a particular regard to the context in which the impugned statements were published, their nature and wording, their potential to lead to harmful consequences and the reasons adduced by the Russian courts to justify the interference in question.

The context and the wording of the texts

Referring to “the difficult situation prevailing in the Chechen Republic at the time, where separatist tendencies in the region led to serious disturbances between Russia’s federal armed and security forces and the Chechen rebel fighters and resulted in a heavy loss of life in that region as well as in deadly terrorist attacks in other regions of Russia”, and the  particular caution on the part of the national authorities when taking action against “the publication of opinions which advocate recourse to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence”, the ECtHR emphasizes that “a fair balance should be struck between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate right to protect itself against the activities of terrorist organisations”.

Turning to the wording of the texts in question, the ECtHR considers that the impugned statements can be divided into three groups and it examines each group separately. The first group of statements has justified terrorism, vilified Russian servicemen to the extent that they might have become targets for actual attack and had praised Chechen leaders in the context of approving of violence. Those statements have therefore gone beyond the limits of acceptable criticism and the ECtHR finds that the Russian courts’ treatment of them has been justified. The ECtHR also finds that some of Stomakhin’s criticisms of Orthodox believers and ethnic Russians has incited hatred and enmity and it confirms that the Russian courts’ considerations have been “relevant and sufficient” to justify a conviction.

The ECtHR is of the opinion however that the domestic courts have been too harsh in other aspects. In particular, some statements about the war have not gone beyond acceptable limits of criticism, which are wide when it comes to governments. According to the ECtHR these statements merely concerned “criticism of the State and the actions of the federal armed and security forces as a part of the machinery of the State”. The ECtHR finds that the domestic courts have also taken other comments on Russian servicemen out of context, or had failed even to refer to any particular texts which, according to them, had had discriminatory or humiliating connotations with regard the national dignity of people practising the Orthodox religion. The ECtHR emphasizes that it is in the nature of political speech to be controversial and often virulent and the fact that statements contain hard-hitting criticism of official policy and communicate a one-sided view of the origin of and responsibility for the situation addressed by them is insufficient, in itself, to justify an interference with freedom of expression. Although some of Stomakhin’s statements were admittedly quite virulent in their language and contain strongly worded statements, the ECtHR discerns no elements in them other than a criticism of the Russian government and their actions during the armed conflict in the Chechen Republic. Other statements were published during an electoral campaign, a period “where it was particularly important that opinions and information of all kinds were permitted to circulate freely”. Therefore the ECtHR concludes that for some statements the need for the restriction was not convincingly demonstrated.

The impact of the texts and the proportionality of the sanction

While the ECtHR leaves open the question whether a ban on the exercise of journalistic activities, as such, is compatible with Article 10 ECHR, it finds that the sanction to five years imprisonment is not proportionate. The ECtHR observes that Stomakhin had no criminal record and thus had never been convicted of any similar offence. It also finds the circulation of the newsletter at issue was insignificant, and that the potential impact of the impugned statements was very limited. The ECtHR finds the punishment to five years imprisonment “an extremely harsh measure”, particularly bearing in mind the Russian authorities’ failure to demonstrate convincingly “the pressing social need” to interfere with Stomakhin’s freedom of expression in respect of a number of the impugned statements. The ECtHR finds that the interference in question was not “necessary in a democratic society”, and that therefore there has been a violation of Article 10 ECHR.


 The judgment in Stomakhin v. Russia confirms the importance of the strict scrutiny by the ECtHR of the findings and interpretations by domestic courts in cases of interferences with the right to freedom of (political) expression amounting to criticism of the government, the army, the police or other public or powerful institutions and their policy. It also shows the need to make a distinction between articles, programmes or comments that incite to terrorism, violence, racism, discrimination or hatred on the one hand, and comments criticising merely the policy of the government, on the other hand. In the past the ECtHR has not always succeeded to clarify this distinction and it has accepted sometimes in too broad and general terms interferences by national authorities with the right to freedom of political speech. In the case of Féret v. Belgium e.g. the ECtHR failed to make a distinction between the statements of the applicant that effectively were to be considered as incitement to racism, discrimination and xenophobia, and the statements that were a (populist) right-wing criticism of the migration and integration policy of the Belgian Government at the time. The judgment in Féret v. Belgium also showed a lack of attention for the aspect of the disproportionate character of the punishment and the chilling effect that may occur in case of overbroad application of criminal law with regard political and polemic speech (read more here).

The most important message of the judgment in Stomakhin v. Russia is the European Court’s general formulated warning to all member states “that it is vitally important that the domestic authorities adopt a cautious approach in determining the scope of “hate speech” crimes and strictly construe the relevant legal provisions in order to avoid excessive interference under the guise of action taken against “hate speech”, where such charges are brought for a mere criticism of the Government, State institutions and their policies and practices” (§ 117). Some member states indeed have over-reacted in their fight against terrorism, extremism or radicalism, by imposing a long period of ‘state of emergency’ with far-reaching limitations on the right to freedom of expression. In its judgments of 20 March 2018 in the cases of Mehmet Hasan Altan v. Turkey and Şahin Alpay v. Turkey, the ECtHR emphasised that the existence of a “public emergency threatening the life of the nation” must not serve as a pretext for limiting freedom of political debate, which is at the very core of the concept of a democratic society. Even in a state of emergency the Contracting States must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort must be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness. The ECtHR was of the opinion that the interferences complained of with the applicant journalists’ rights would inevitably have a chilling effect on freedom of expression by intimidating civil society and silencing dissenting voices in Turkey (see blog post on Strasbourg Observers).

Also other countries have recently promulgated overbroad new legislation restricting the freedom of (political) expression. In its judgment 31/2018 of 15 March 2018 the Belgium’s Constitutional Court annulled a government amendment to an anti-terrorism provision in Article 140bis of the Belgian Criminal Code. The amendment broadened the scope of incrimination of public incitement to commit a terrorist attack, by removing one of the essential components of determining criminality: the case-by-case assessment of the “risk” of offenses being committed. The amendment aimed to making speeches on the topic of terrorism in itself an incitement to commit a terrorist attack, even when there exists no risk of an attack being committed. In its ruling, the Constitutional Court observed that the need to simplify the production of evidence could not justify the fact that a person could be sentenced up to 10 years’ imprisonment for incitement to terrorism if there are no serious indications that a terrorist crime would in fact be committed. The Court considered the new provision in breach with the right to freedom of expression as guaranteed by Article 19 of the Belgian Constitution, in combination with Article 19 ICCPR and Article 10 ECHR.

The ECtHR accepts criminal sanctions for glorification of terrorist acts, but only insofar as there is a risk that such terrorist attacks will be committed, due to the public incitement at issue. In Leroy v. France the ECtHR referred to the circumstances that a cartoon, glorifying the 9/11 attack on the WTC in New York, was published two days after the attacks, at a time when the entire world was still in a state of shock at the news. According to the ECtHR the impact of such a message in a politically sensitive region (the Basque region), was not to be overlooked. It also considered that the publication of the drawing had provoked a reaction that could have stirred up violence and may well have affected public order in the region. In its recent decision in Roj TV A/S v. Denmark the ECTHR held that news coverage by Roj TV, with repetitive incitement to participate in fights and actions, incitement to join the organisation/the guerrilla and the portrayal of deceased guerrilla members as heroes, amounted to propaganda for the PKK as a terrorist organisation, and that it could not be considered only a declaration of sympathy. The ECtHR refers to the findings by the High Court of Eastern Denmark, arguing explicitly that the programmes of Roj TV were to be considered as “the promotion of the PKK´s terror operation”. The decision contrasts with the judgment in Stomahkin v. Russia, because in the case of Roj TV v. Denmark the ECtHR “considers that the domestic courts carefully assessed the evidence before them and conducted a balancing exercise, which took the applicant company’s right to freedom of expression into account. The Court has not found any elements indicating that the domestic courts did not base their findings on an acceptable assessment of the relevant facts”.

Application of Article 17 ECHR (abuse clause) in cases of ‘hate speech’?

In Roj TV A/S v. Denmark the ECtHR went however one step further, by concluding that the applicant TV station has been attempting to deflect Article 10 ECHR from its real purpose by employing the right to freedom of expression for ends which are clearly contrary to the values of the Convention. Because the impugned TV-programmes of Roj TV promoted the PKK as a terrorist organization, the ECtHR found that, by reason of Article 17 ECHR, Roj TV could no benefit from the protection afforded by Article 10 ECHR. It is doubtful however whether the application of Article 17 ECHR is a pertinent approach. We have argued before that the abuse clause’s application is undesirable, since it tends “to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework” (read more here and here). The judgment in the case of Stomakhin v. Russia persuasively demonstrates how important it is to situate expressions of ‘hate speech’ in their political context, to scrutinize strictly the findings by the domestic courts, especially when action is taken against ‘hate speech’ or extremist opinions and to keep on applying the proportionality-test of Article 10 § 2 ECHR. The message of the ECtHR to adopt a “cautious approach” in cases of ‘hate speech’ or extremist opinions that are critical for the government’s policy and actions by the army or the police, is therefore very topical and crucially important in order to uphold the European standards on freedom of political expression and participation in public debate as a core value in a democratic society.

Ill-treatment in the war against terror: the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania

By Christina Kosin, Ph.D. Candidate and Academic Assistant at the German Police University

On 31 May 2018 the European Court of Human Rights (ECtHR) ruled in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania that the Contracting States Romania and Lithuania violated multiple provisions of the European Convention on Human Rights (ECHR), among others the substantive and procedural limb of Art. 3 ECHR – the prohibition of torture and inhuman and degrading treatment or punishment. Neither in Al Nashiri nor in Abu Zubaydah did public authorities from Romania or Lithuania themselves inflict ill-treatment on the applicants who were under suspicion to be involved in terrorist activities. The Strasbourg Court found a substantive breach of Art. 3 ECHR on the basis of the conduct of a third party, the Central Intelligence Agency of the USA (CIA), at secret detention sites within the jurisdictions of Romania and Lithuania. The ECtHR established “beyond reasonable doubt” that Romania as well as Lithuania knew of the CIA’s activities in their respective territories at the material time. For this reason, it considered that Romania and Lithuania had acquiesced in and consented to the High-Value Detainee (HVD) Programme of the US and therefore held them responsible for the inhuman treatment suffered by the applicants at the hands of US officials. Continue reading

Benedik v Slovenia: Police need a court order to access subscriber information associated with a dynamic IP address

By Argyro Chatzinikolaou, (Doctoral Researcher), Law & Technology research group, Ghent University

Recently, the Fourth Section of the Court held in its judgement in the case of Benedik v Slovenia that there had been a violation of Article 8 (right to respect for private and family life) with regard to the failure of the Slovenian police to obtain a court order before accessing subscriber information associated with a dynamic IP address[1]. More precisely, according to the Court, the legal provision used by the Slovenian police in order to access subscriber information associated with a dynamic IP address without first obtaining a court order had not met the Convention standard of being ‘in accordance with the law’.
Continue reading

Correia de Matos v. Portugal: Fragmented protection of the right to defend oneself in person

Dr. Dorothea Staes (affiliated researcher, The Perelman Center for Legal Philosophy, ULB, Belgium and trainee at the European Commission)

In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option. Continue reading

Nationality and Statelessness Before the European Court of Human Rights: A landmark judgment but what about Article 3 ECHR?

By Dr. Hélène Lambert (Professor of Law at the University of Wollongong, Australia, and Professor of International Law at the University of Westminster in London, United Kingdom)


Two years ago, following the judgment of the Fourth Section of the European Court of Human Rights in Ramadan v. Malta, Marie-Bénédicte Dembour called on the Court to take nationality seriously because it is “a core human rights issue” (Strasbourg Observers). Dembour criticised the Court for insisting “that the applicant brings impossible proofs” of his nationality, thereby favouring the defendant State, and for blaming the applicant for his predicament. Hoti v Croatia gives us the opportunity to scrutinise once more how the Strasbourg Court understands nationality and statelessness in human rights terms, and there is some good news.


The applicant was born in Kosovo (then part of the Socialist Federal Republic of Yugoslavia or “SFRY”) in 1962. He was the son of political refugees who had fled Albania in 1960 to settle in Kosovo. In 1979, the applicant moved to Croatia (also part of SFRY) and settled in Novska, where he has lived ever since. Since then, his parents have died, and he has lost touch with his two sisters and two brothers. He is not married, and he does not have children. According to his birth certificate, Mr Hoti has no nationality. However, the Croatian authorities consider him to be a national of Kosovo or Albania because of his parents’ and his own status as Albanian refugees in Kosovo. Throughout the 40 years he has lived in Croatia, his legal status has been partly tolerated and partly regulated by short term humanitarian permits granted sporadically. He has long wished to get Croatian citizenship and a permanent residence permit in Croatia so as to be able to live a normal life in Croatia. However, despite several attempts, he has so far been unable to regularise his residence status.

He argues that he is stateless, that he has no valid travel document and that he was erased from the register of domicile and residence in Croatia without being informed. He further argues that there was a gap in the relevant domestic law (Aliens Act) in that his situation (resulting from the dissolution of the SFRY) should have been regulated. Hence, an application of the Aliens Act could not lead to a solution in his case. He relies on Article 8 ECHR (private life) based on the fact that during the last four decades he has worked intermittently as a waiter and a car mechanic; he is currently surviving by helping out on a farm.


The judgment by the First Section of the Court contains some interesting features summarised here.

  1. The Court rejected the Government’s request to strike out the application. The Court accepted that the case concerns the specific circumstances related to the regularisation of the status of aliens residing in a state following the break-up of the SFRY and that in some cases, where unequivocal assurances are given by the relevant authorities that permanent residence will be granted, such cases may be struck out. However, in the present case, the applicant was only ever granted a temporary residence permit at the discretion of the Ministry, hence the matter cannot be said to be resolved within the meaning of Article 37(1)(b) ECHR (para.82).
  2. The Court also rejected the Government’s contention that the applicant had abused his right of individual application by being unclear about his citizenship with the intention of misleading the Court. The Court instead noted “the complexity of the issues surrounding the applicant’s citizenship” and “the reasonable doubt … as to the erasure of his residence in the relevant registers” (paras.93-94).
  3. The UNHCR contributed a valuable intervention as third-party, focusing on statelessness, the theory of citizenship following the disintegration of the SFRY (i.e. the principle of continuity of citizenship in the creation of new nationality laws) and the gaps in practice resulting in two groups of persons in Croatia becoming stateless as a consequence of the erasure. These persons would have lost access to social and economic rights, and they would be subject to detention with a view to deportation if they were to become known to the police. The UNHCR further emphasised the difficulty faced by stateless persons who had been erased from the domicile register to apply for renewal of temporary residence permits on humanitarian grounds, because it required a valid national biometric passport of the current country of nationality. Croatian legislation did not protect such persons.
  4. In the Merits, the Government made a number of bold arguments, including that the applicant was not a stateless person but a citizen of Albania; that he had “remained passive and had never taken any action aimed at renouncing his Albanian citizenship” (para.102); that “it was for the applicant … to renounce his citizenship or to show that he was stateless or to obtain a valid travel document from a country whose citizen he was” (para.103); and that former SFRY nationals with a registered domicile in Croatia had qualified for Croatian citizenship under the Citizenship Act, hence there was never an “erasure process” after 1991.
  5. In its preliminary assessment, the Court clarified that the case at hand was not concerned with the erasure of Mr Hoti from the register of domicile in Croatia in 1991 since his residence after 1988 had only ever been tolerated. For this reason also, his situation could not be assimilated to that of “settled migrants” or that of aliens seeking admission to a host country. Rather his situation was very specific to him as a “stateless migrant” whose inability to regularise his residence status adversely affected his private life under Article 8 ECHR.
  6. The Court then found it appropriate to examine his complaint by reference to the case law applicable to “aliens who, irrespective of many years of actual residence in a host country, were not able to regularise their residence status”. According to this case law, Article 8 protects disproportionate intrusion by the state on the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual social identity” (para.119). However, while states may have positive obligations to ensure effective enjoyment of an applicant’s private life, including, an effective and accessible procedure and a domestic remedy, Article 8 does not guarantee the right to be granted a particular legal status or type of residence permit.
  7. The Court then went on to apply these general principles to the applicant’s situation and concluded that Croatia’s failure to regularise Mr Hoti’s residence status in Croatia, despite having lived there for forty years as a “stateless migrant”, amounted to a violation of Article 8 ECHR (private life).


Acclaimed by the Institute on Statelessness and Inclusion (Monthly Bulletin April 2018) as a landmark judgment, the decision of the First Section in Hoti v Croatia contains a lot of positives, not the least the fact that for the first time the Court chose to tackle the issue of statelessness head on. Indeed, the Court’s decision to accept the applicant’s statelessness despite the state arguing otherwise is commendable, and explicit reference is made to the 1954 Convention relating to the Status of Stateless Persons.

The Court also reemphasised the principle of consent in the acquisition of nationality, namely that “an alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its nationality” (para.131).

However, when applying the general principles to the specific case (paras.125 et seq.), one can’t help but think that Article 3 ECHR (which prohibits torture, inhuman and degrading treatment) is the elephant in the room. Why is it that Article 3 ECHR is never argued before the Court in cases involving stateless persons? The Court itself flagged a number of particular features often determinant in Article 3 detention or expulsion cases: his “advanced age”, that “the applicant’s residence  status in Croatia is uncertain” and with no hope that it will ever be resolved since it is “impossible for him to meet” one of the requirement by being stateless; his “prospect of finding employment is de facto hampered” and so too are his prospect of “securing normal health insurance or pension rights” (para.126); he has no contact with family or relatives.

As Michelle Foster and I have argued here, statelessness is a broad human rights issue: it’s about non-discrimination and equality, it’s about women’s rights and children’s rights, and it’s about family and private life. But crucially, statelessness is about inhuman and degrading treatment and the obligation of the Contracting Parties to secure to everyone within their jurisdictions the right to be free from such ill-treatment. This is not a general or abstract issue as statelessness impacts directly on access to civil, political, social, cultural and economic rights including the right to work, the right to basic subsistence, the right to health care, pension rights, freedom of movement, protection against detention etc. – see also our forthcoming book.

Is the Court ready for Article 3 ECHR arguments? Some of the language used in Hoti v Croatia is sufficiently reminiscent of Article 3 to suggest that it may be. However, all rests on applicants’ lawyers to address statelessness as an Article 3 issue and advise their clients accordingly.  Lately, statelessness has been given a renewed impetus as an important human rights issue, and the work of the UNHCR and leading academics has been integral to this. The judgment in Hoti v Croatia makes a valuable contribution to this debate. It’s now up to lawyers to recognise this and direct the debate towards Article 3 ECHR, in particular inhuman and degrading treatment.