Uneven, but in the Direction of Effectiveness - Anticipatory Ill-Treatment under Article 3 ECHR

This article critically analyses a range of issues relating to the so-called ‘anticipatory’ or ‘speculative’ ill-treatment in expulsion cases under Article 3 ECHR. It seeks to ascertain whether the approach of both the European Court and the Commission for Human Rights (the Strasbourg organs) to those issues has provided any coherent and predictable criteria for individual applicants. The dynamic jurisprudence has considerably extended the scope of application of this absolute right with the consequence that the responsibility of a Member State may arise even from the acts of non-State actors in an extra-territorial context. This assertive stance can also be revealed in the Strasbourg organs’ assessment of the minimum standard of ill-treatment in expulsion cases. Yet the author argues there exists some oscillations in the Strasbourg organs’ dynamic policy, disclosing inconsistency on certain issues. There seems to be a hidden double standard between expulsion and non-expulsion cases with more onerous evidentiary standards imposed on the individual applicants challenging speculative ill-treatment. The Strasbourg organs’ tacit recognition of the notion of proportionality in the earlier decisions also contradicts the unconditional nature of the right under Article 3. Despite these flaws, the author concludes that assertive policy underpinning the Strasbourg organs’ decision-making has carved out various potentially workable principles designed to enhance the effective guarantee of this non-derogable right.