The boundaries of universality - migrant women and domestic violence before the Strasbourg Court

Abstract

This article explores the boundaries encountered by women fleeing domestic violence in countries located outside the Council of Europe (‘CoE’) when claiming non-refoulement before the Strasbourg Court. The main argument is that these boundaries are embedded in the different standards the Court applies in its Article 3 ECHR case law. To develop this argument, the article conducts an exemplary critical analysis of A.A. and Others v. Sweden in comparison with, firstly, Opuz v. Turkey and secondly, Othman v. UK. The first comparison exposes a territorial bias in the case law. It shows that the risk assessment is much more lenient in cases of women seeking international protection in CoE Member States, than in cases of women who suffer domestic violence within their CoE home States. The second comparison reveals a gender bias in the jurisprudence of different types of non-refoulement cases. The assessment of available protection from an established risk is separately assessed in cases of men fleeing harm from State actors, but not in cases of women escaping ‘private’ harm. As a result, migrant women’s rights are limited by two intersecting and mutually reinforcing inequalities – both as migrants and as women. Taken together, these biases make the purportedly absolute prohibition of torture as laid down in Article 3 ECHR malleable in respect of migrant women. In order to respond to these dissonances, the article suggests a reformulation of the real risk assessment in migrant women’s cases: It should consist in a two-step assessment, establishing first the risk and then the available protection, and be guided by due diligence standards.

1. Introduction

One of the defining characteristics of human rights is that anyone is entitled to them by virtue of being human. Yet in spite of their inherent universal promise, the rights and interests of migrants are no ‘classic’ issue in human rights discourse. This discourse has traditionally been based on the fictitious model of an immobile society with borders controlled by sovereign States. The European Convention of Human Rights (‘ECHR’ or ‘Convention’) reflects the traditional ‘sedentary bias’ ¹ of human rights, as it was designed with the protection of European citizens from totalitarian governments in mind. ² Yet since the 1990s, migrants increasingly challenged this notion by appealing to the universal promise of human rights before the European Court of Human Rights (‘ECtHR’ or ‘Court’). The Court has since become a central forum for jurisgenerative deliberations ³ regarding the human rights of migrants in Europe. Important judgments have decisively affirmed the rights of migrants. ⁴ However, recent studies have also criticised this jurisprudence, in particular for endorsing the notion that States have a sovereign right to exclude non-nationals. ⁵ In its case law concerning migrant cases, the ECtHR has thus established itself as a ‘Laodicean Court’: neither cold nor hot. ⁶ On the one hand, it has taken the universalistic claim seriously and extended protection to migrants. On the other hand, the Court has undermined this universalistic potential and maintained distinctions between ‘us’ and ‘them’. ⁷

This article builds on this line of research and suggests that the tension in the Court’s approach to migration is exacerbated in cases involving gendered claims. Migrant women’s rights are limited by two intersecting and mutually reinforcing inequalities – both as migrants and as women. This article argues that the jurisprudence is fraught with both a territorial and a gender bias. The territorial bias engenders distinctions between ‘external cases’, i.e. cases of women seeking international protection in Council of Europe (‘CoE’) Member States, and ‘internal cases’ of women within their CoE home States. The gender bias, in turn, produces inequalities between different types of external cases, disadvantaging ‘gendered’ migrant claims vis-à-vis other migrant cases. In extrapolating these biases, the ambition of this article is both descriptive and normative. An exemplary critical comparative analysis of three cases, notably, Opuz v. Turkey, A.A. and Others v. Sweden and Othman v. UK ⁸ illustrates the two biases and draws out the doctrinal moves that enable the Court to delimit human rights protection. On the basis of the identified dissonances, the article develops suggestions to address these biases.

Not much has been said in the human rights law literature on the discords within the ECHR standards seeking to protect women from gender-based violence. ⁹ Using the example of domestic violence, this contribution sheds light on the dissonances involved. Domestic violence lends itself to this type of analysis. Especially because - unlike is the case for other typical harms in the context of migrant women, such as female genital mutilation ¹⁰ or forced marriage ¹¹ - there is an established line of ECtHR case law concerning domestic violence. This jurisprudence also addresses situations arising within CoE Member States. ¹²

Focusing on the limits implicit in human rights legal reasoning itself, this article discusses one particular form of the less obvious borders that gender the enjoyment of human rights of migrants, including asylum seekers and refugees. In doing so, this article adds to existing refugee law scholarship on gender-related asylum claims ¹³ by taking a human rights law perspective to show that the gendered borders excluding migrant women are also embedded in established human rights jurisprudence.

Before delving into the cases, a few preliminary notes are appropriate. First, a note on terminology. For the purposes of this article, cases arising within a CoE Member State will be characterised as ‘internal’ cases. The notion does not refer to domestic law, but to cases internal to the CoE. In turn, cases involving people seeking human rights protection in a CoE Member State from harm they fear in a non-Member State are referred to as ‘external’ cases. These labels have been chosen in preference of the dyad ‘domestic’ versus ‘expulsion’ cases that other authors preferred, ¹⁴ in order to highlight substantive similarities in spite of different contexts. The internal/external dimension merely refers to the place where the harm occurs. The terms thus serve as a shorthand to illustrate distinctions at the factual rather than the normative level. However, on the basis of that distinction it will be possible to draw out dissonances in human rights protection for ‘us’ (member States of the CoE) and ‘them’ (elsewhere).

Second, in terms of substance, the most relevant points for present purposes revolve around the prohibition established in Article 3 of the ECHR: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. This provision is generally understood to be absolute and non-derogable. Unlike other rights of the Convention, treatment contrary to Article 3 ECHR cannot be justified under any circumstances, as balancing with other interests is precluded. ¹⁵ In the jurisprudence of the Court, the absolute nature of the Article 3 ECHR prohibition implies an obligation not to expel a person to a place where they would face a real risk of being subjected to such treatment. ¹⁶ Hence, although the ECHR does not explicitly provide for a right to asylum, its Article 3 effectively functions as such a right. ¹⁷ In particular in the context of expulsion or extradition, however, the purported absoluteness of Article 3 ECHR has been questioned by scholars. ¹⁸ This article develops another perspective on implicit balancing with other interests and the gendered dimensions thereof in the context of external Article 3 ECHR cases.

Third, a note on the approach adopted for the analysis. In order to showcase the biases, as observed above, the present article critically examines and compares (mainly) three ECtHR cases. Although the circumstances of each of the cases are obviously unique, they are each representative of a larger sample of cases. ¹⁹ These three cases were selected because they are particularly suitable to illustrate the dissonances. However, each of the cases is quite complex, involving either a number of applicants or various ECHR Articles, or both. Although they raise numerous interesting questions, not all of these are relevant to the purposes of this article. The examination is therefore limited to specific elements of each of the cases, which are structurally similar even though different in the facts. In order for this analysis to be meaningful, it is necessary to specify the elements within the three cases which will be subject to comparison. Therefore, each section first briefly lays out the facts and law of each of the cases, and then identifies the elements that will be critically analysed in the remainder of the section. The selection of only three cases allows for the in-depth analysis that such an approach requires. Nonetheless, where appropriate, the analysis is buttressed with references to related other cases. This analytical approach of identifying structural similarities in seemingly different cases allows one to unearth dissonances which would otherwise remain invisible.

Against this backdrop, this article is organised as follows. It undertakes two comparative examinations in order to showcase, in turn, the intersecting territorial and gender biases. The case of A.A. and others v Sweden is put at the centre of the paper. This is an external case involving a woman and her children from Yemen seeking protection in Sweden from their violent husband and father. The case is compared with two distinct other cases in order to draw out the ways in which the human rights enjoyment of the main applicant of the case, Ms A.A., is doubly impaired.

The first section of this article compares the case of A.A. others with the internal case of Opuz v Turkey. This case involved as victims a woman and her mother from Turkey who suffered severe violence at the hands of Opuz’ husband. The cases analysed in this section were selected because they are particularly suitable to illustrate territorial dissonances between an internal and an external case. Opuz v Turkey is the Strasbourg Court’s reference case on domestic violence. The comparison with A.A. and others v Sweden is fruitful because the Court comes to opposite conclusions, despite many parallels in the facts. The subsequent section of this article compares A.A. and Others with another external case: Othman v UK. This is not a domestic violence case but a case concerning the return of a refugee and convicted terrorist from the UK to Jordan. This comparison is productive to illustrate gendered dissonances because in both cases, the Court was faced with the structurally similar, although factually very different, question of protection against an established risk of treatment contrary to Article 3 ECHR, which it approached in very different ways. These two comparisons thus serve to illustrate two intersecting boundaries for migrant women’s enjoyment of their human rights in the Court’s reasoning. Among women subjected to domestic violence, their rights are limited as migrants; among migrants, their rights are limited as women subjected to domestic violence.

2. Territorial bias – dissonances between ‘internal’ and ‘external’ cases

Domestic violence has been condemned in forceful terms by the Strasbourg Court in its landmark judgment Opuz v Turkey. ²⁰ In this case, decided on 9 June 2009, the Court held not only that domestic violence constitutes treatment proscribed by Article 3 ECHR but also, for the first time, that it is a form of discrimination based on gender contrary to Article 14 ECHR (in conjunction with Art. 3 ECHR). Subsequent internal case law reaffirmed the principles established in Opuz. ²¹ This section contrasts Opuz with the case of A.A. and Others v Sweden, decided three years later on 28 June 2012. While A.A. and Others displays striking similarities in the facts concerning domestic violence, the Court fell far short of the Opuz judgment. The aim of this comparative exercise is to draw out the differences between an internal and an external domestic violence case that have occurred in the jurisprudence of the ECtHR.

2.1. Domestic violence as harm: Discrepancies between Opuz and A.A.

In its 2009 case of Opuz v Turkey, the Strasbourg Court took a strong stance against domestic violence. The case involved an assessment of whether the respondent CoE Member State Turkey had failed – in the past – to carry out its positive obligations under Articles 2 and 3 (both alone and in conjunction with Art. 14) ECHR. Ms Nahide Opuz, a Turkish citizen, had been threatened and assaulted by H.O., her then husband, on several occasions from 1995 onwards. H.O. made death threats, ran his car into her, beat her and stabbed her with a knife. Ms Opuz – as well as her mother – filed and withdrew complaints on several occasions. The applicant’s mother, seeking to protect her daughter, was also threatened, assaulted and eventually killed by the applicant’s husband. Ms Opuz contended that the ineffectiveness of the Turkish authorities had violated her mother’s right to life under Article 2 ECHR and her own rights under Article 3 ECHR. Moreover, she argued that the inadequate response by the law enforcement authorities resulted from gender-based discrimination in violation of Article 14 ECHR. Relying on Articles 6 and 13 of the Convention, Ms Opuz also complained that the criminal proceedings brought against H.O. were ineffective and had failed to provide sufficient protection for her and her mother. ²²

In this case, the Court unanimously found violations of Article 3 and of Article 14 in conjunction with Article 3 ECHR. The Court also found violations of Article 2 ECHR (the right to life) and Article 14 ECHR in conjunction with Article 2 ECHR in respect of the mother. In the light of these findings, the Court did not find it necessary to examine the complaints under Articles 6 and 13 of the Convention.

In addressing the issues raised, the Court assessed whether the local authorities had displayed due diligence to prevent violence against the applicant and her mother. ²³ In its reasoning, the Court acknowledged that, even though the women had regularly withdrawn their complaints, local authorities had not remained ‘totally passive’. ²⁴ However, none of the measures taken were ‘sufficient to stop H.O. from perpetrating further violence’. ²⁵ The Court criticised local authorities for having ‘given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter”’. ²⁶ It further noted that, even if the applicant had been admitted to one of the guest houses set up to protect women, ‘this would only be a temporary solution’. ²⁷ The Court concluded that there had been ‘a violation of Article 3 of the Convention as a result of the State authorities’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband’. ²⁸

The Court sought to state an example with this case. This is rare. It is much more common for the Court to restrict its rulings to the particular circumstances of the case at hand. ²⁹ Yet in this case, the Court explicitly considered the gravity of the problem of domestic violence generally when examining the specific case. It is worth citing the relevant section in full:

However, before embarking upon these issues, the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case. ³⁰

Note that this paragraph appears at the beginning of the Court’s assessment of the situation of the mother and Article 2 ECHR, which it considered first. Given its broad phrasing, however, it arguably applies to the entire case and is not limited to the lethal attack on the mother. Such strong words, pointing beyond a particular case to structural issues, are exceptional in the Court’s jurisprudence. Notably, this strong condemnation of domestic violence by the Court was issued two years before the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (‘Istanbul Convention’) in May 2011. ³¹ Opuz has therefore been described as a landmark case, ‘long overdue’ ³² and ‘historic’. ³³

The remainder of the section focuses on the main applicant of the case – Ms Opuz – and the Court’s assessment regarding domestic violence as a violation of Article 3 ECHR, and leaves aside the other claims, concerning Ms Opuz’ mother and other ECHR Articles.

The Court’s assessment of the situation of Ms Opuz in the internal CoE case of Opuz v Turkey stands in stark contrast to the Court’s assessment of the situation of Ms A.A. in the external case of A.A. and others v Sweden. This case involved a family from Yemen who sought asylum in Sweden. The first applicant (A.A.) was the mother of the other applicants (three daughters and two sons). They claimed that their return to Yemen would be in breach of Articles 2 and 3 ECHR as they would face domestic violence, forced marriage and honour crimes from their violent husband and father. ³⁴ The mother alleged having suffered from domestic violence at the hands of her husband. ³⁵ Her husband was very strict and hit her, burnt her and threatened her with a knife. ³⁶ She tried to obtain a divorce but had been told by the local court to solve her private problems with her husband. ³⁷ The oldest daughter claimed that her father had forced her to marry an older man who had mistreated her. ³⁸ The second youngest daughter alleged that her father had attempted to forcibly marry her. ³⁹ The sons feared honour crimes for having left the country with their mother and sisters against their father’s will. ⁴⁰

In this case, the Court found (in a 6 to 1 decision) that the return of the family to Yemen would not be contrary to the Convention. ⁴¹ The Court considered the issues raised under Articles 2 and 3 of the Convention as indissociable and examined them together. Regarding the first applicant, the Court explicitly accepted that A.A. had suffered from marital abuse. ⁴² As regards the other applicants, the Court accepted that one daughter was to be forcibly married and did not rule out that another daughter might have suffered abuse from her husband. ⁴³ However, in respect of some of the claims relating to alleged honour crimes and forced marriage, the Court found the supportive documents presented by the applicants not to be authentic or sufficient. ⁴⁴ For these allegations, the burden of proof is one of the components that played into the Court’s reasoning when holding that ‘substantial grounds for believing that the applicants would be exposed to a real risk of being killed or subjected to treatment contrary to Article 3 of the Convention if deported to Yemen, have not been shown in the present case’. ⁴⁵ On the basis of this and other reasons, the Court ultimately rejected the applicants’ claims and upheld their deportation to Yemen. ⁴⁶ However, credibility was not an issue concerning the domestic violence allegedly suffered by A.A. ⁴⁷ Regarding this aspect of the case, the reasons for finding no violation were different, and will be subject to analysis below.

For reasons of analogy with the case of Ms Opuz, the analysis focuses on A.A. and the domestic violence suffered by her, excluding the issues of forced marriage and honour crimes raised in particular by her children. ⁴⁸ The injuries suffered by A.A. – which were not doubted by the Court – display striking similarities with those described by Ms Opuz. In her dissenting opinion in A.A., Judge Power-Forde noted that: ‘[t]he violence inflicted upon the first applicant, in the form of frequent beatings, burning and threatened assaults with a knife, is similar to the violence described in Opuz and, consequently, must also be considered to constitute ‘ill-treatment’ within the meaning of Article 3’. ⁴⁹

In spite of this similarity, it is important to note that the Court’s assessment in Opuz concerned the question whether Turkey had violated its obligations under the ECHR in the past, having failed to prevent further violence. In A.A., in contrast, Sweden could not be held accountable for the violence the applicants suffered in their country of origin in the past. Rather, the Court was tasked with the assessment of possible future violence faced by the applicants if they were to be returned to Yemen by the Swedish authorities. However, here too, the dissenting opinion of Judge Power-Forde is instructive. Having established that the harm suffered by the two women in the past was comparable and proscribed by Article 3, she noted the evidence that Yemeni authorities failed to take effective protective measures to deter domestic violence, and that there was ‘nothing to suggest that this situation is likely to change upon the applicants’ return to that country’. ⁵⁰ On this basis, it is possible to draw an analogy between the cases of Ms Opuz and Ms A.A. and compare the assessment conducted by the ECtHR in respect of each of these women. Seen in this light, the two cases reveal striking dissonances.

The reasons for finding no violation in respect of A.A. were her strength and independence, the fact that she had a brother and two sons who in the meantime had become adults (but who were themselves applicants for protection, claiming fear of honour crimes for having helped their mother and sisters) and the availability of women’s shelters in Yemen. Specifically, the Court argued that A.A. had ‘shown proof of independence by going to court in Yemen on several occasions to file for divorce from X and also shown strength by managing to obtain the necessary practical and financial means to leave Yemen’. ⁵¹ Moreover, the Court reasoned that A.A. had a brother who ‘has continued to assist the applicants’, and they ‘have not shown that [they] cannot count on his protection in Yemen’. ⁵² In addition, ‘if returned, the first applicant would be accompanied by her two adult sons who could also support her and which would enable her to live away from her husband’. ⁵³ Finally, the Court observed ‘that, according to international sources […] there are NGOs in Sana’a operating shelters and providing help for exposed women’. ⁵⁴ Consequently, the Court concluded that there was no real risk that A.A. would be subject to treatment contrary to Article 3 if returned to Yemen.

Others have already expounded this type of reasoning in gender-related claims to protection before the Strasbourg Court. ⁵⁵ Peroni identified an often formalistic, vague and cursory assessment of the real risk faced by women seeking protection from gender-related violence, and critically examined the Court’s reliance on the women’s assertiveness and resourcefulness as well as on their ‘male protection networks’. ⁵⁶ The point to be made here is the blatant dissonance of this reasoning with the internal case. All arguments supporting the decision in A.A. and others could have been made in the case of Opuz v Turkey as well. Ms Opuz clearly showed independence by repeatedly turning to the authorities and trying to obtain a divorce. It emerges from the case that she also had a brother and a new partner, but the Court did not consider them at all in the context of available sources of protection. As regards women’s shelters, the Court explicitly rejected that they could serve as protection. The contrary conclusions in face of these striking parallels are striking indeed.

It is important to note that the case of A.A. and Others was decided three years after Opuz ⁵⁷ with its forceful condemnation of domestic violence, and one year after the adoption of the Istanbul Convention. The CoE had therefore abundantly established the severity of domestic violence as a harm. Moreover, the Court does not make an argument based on jurisdiction. It could have relied on the fact that different standards apply when the harm occurs in non-signatory States to the ECHR, such as Yemen in the case of A.A. Requirements towards signatory States such as Turkey could have been deemed to be higher. However, the Court did not make such a distinction, as the similar case of N v Sweden concerning an applicant from Afghanistan and decided in 2010 shows. Here, after a thorough assessment of the socio-cultural and structural elements of domestic and sexual violence in Afghanistan, ⁵⁸ the Court found a violation of Article 3 ECHR in case of return. The reason was effectively that N no longer had male support to protect her from these risks. ⁵⁹ The Court’s argument therefore does not rely on jurisdictional differences between internal and external cases. Rather, the determination hinges on the legal assessment of the facts – the mere lack of male support in the case of N was sufficient for the Court to rule that protection must be granted.

2.2. Due diligence and real risk

Hence, the incongruities between Opuz and A.A. cannot be explained by ignorance concerning the gravity of domestic violence or by jurisdictional arguments. Rather, it appears that the Court applied a different standard of assessment. For internal cases, the Court has developed a strict due diligence standard derived from international instruments, whereas external cases are subject merely to a volatile ‘real risk assessment’. As the comparison showed, the assessment of the facts regarding the ‘real risk’ that A.A. faced remained very light. ⁶⁰ The Court acknowledged a risk generally. Arguably, in most such cases it would be hard not to in the face of the country of origin information. But it did not find the risk ‘real’ in the particular case due to individual circumstances such as the applicant’s personal strength or her male network. Having identified the men that could support the applicant, the Court did not go on to assess whether the ‘male network’ would deliver, or whether they were able and willing to provide protection. Neither did the Court consider whether the applicants would end up in new dependencies or whether the agent of protection might turn violent as well. ⁶¹ Having pointed out the applicant’s strength and independence, the Court did not consider the ways in which this would help her obtain a divorce in a legal system that makes divorce dependent on the male spouse’s agreement.

This thin analysis in the external case stands in stark contrast to the due diligence standard that the Court established in the context of internal domestic violence cases since the landmark judgment in Opuz. ⁶² In Opuz, the Court explicitly stated the following:

As it appears from the parties’ submissions, a crucial question in the instant case is whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other appropriate preventive measures against H.O. despite the withdrawal of complaints by the victims. ⁶³

At the time, due diligence as a standard of assessment was still relatively recent in the Court’s jurisprudence. The ECtHR had first adopted it a decade earlier, in the case of Osman v UK, decided in 1998. ⁶⁴ The case did not concern domestic violence but involved threats against a family by another person that were brought to the attention of the police, who did not intervene. One family member was later killed. Although not using the term, the ECtHR applied the concept of due diligence when it referred to the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein. ⁶⁵ On this basis, the Court developed what has since become known as the ‘Osman test’. According to this test, a State violates its positive obligations under the Convention if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. ⁶⁶

The Court further stated that ‘it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk’. ⁶⁷ Consequently, the three elements of due diligence as developed by the Strasbourg Court are whether the State (1) knew or ought to have known of (2) a real and immediate risk and (3) took effective measures to avoid that risk.

When the Court was faced with two domestic violence cases a decade later than Osman, first in the Article 8 case of Bevacqua and S v. Bulgaria ⁶⁸ and then in Opuz v Turkey, it affirmed the due diligence standard as the relevant assessment tool. Moreover, it also explicitly enumerated several specific practical obligations that flow from it relating to the third element, namely effective measures to avoid the risk. ⁶⁹ These obligations include, at a minimum, the provision of enforceable protective measures, such as an order of protection, a restraining order or an expulsion order as well as the provision of prosecution in the public interest, even if the complaint was withdrawn. ⁷⁰ These detailed requirements respond to the principles of protection, investigation and prosecution, and give practical effect to the obligation that States display due diligence in their efforts to protect against domestic violence.

In contrast, in the A.A. case, the Court did not turn to the principles it had established concerning cases of domestic violence in Opuz v Turkey. Instead, in its assessment it relied on the notion of ‘real risk’ that was developed in the context of asylum cases. The situation is indeed different in external cases because the harm occurs in States that are not signatories to the Convention. That is, the respondent State cannot be held accountable for the ineffectiveness of the legal framework protecting victims of domestic violence or the enforceability of protective measures in non-signatory States. In other words, it is not the Contracting State’s positive obligations arising from Article 3 ECHR that are at stake. ⁷¹ Rather, as the Court has consistently held since the case of Soering v UK, the State’s responsibility is engaged through the act of returning the person. In the Soering case, if extradited, Mr Soering risked facing the ‘death row’ in the United States. The Court held that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. ⁷² And, ‘in order to ensure the effectiveness of the safeguard provided by that Article’ ⁷³ (Article 3), this obligation also extended to cases in which a fugitive would face a real risk of exposure to inhuman or degrading treatment in the receiving State. ⁷⁴ The Court argued, ‘it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment’. ⁷⁵ In other words, although there is no reference to Article 1 ECHR, ⁷⁶ the applicability of Article 3 ECHR to external cases is derived from the same principle of effectiveness that gave rise to the due diligence standard regarding domestic violence cases.

For the assessment of the risk, the Court argued that ‘[s]ince the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion […]’. ⁷⁷ However, the Court may take into account further information that came to light after the Contracting State’s decision. This wording is remarkably similar to the elements of the due diligence requirement, namely that a State violates its obligations under the Convention if the authorities knew or ought to have known at the time of the existence of a real and immediate risk. ⁷⁸ However, the Court did not outline the required standards for the risk assessment beyond stating that the scrutiny must be ‘rigorous’. ⁷⁹ While due diligence considerations led the Court to develop a thorough standard to prevent domestic violence as a breach of Article 3 internally, it easily accepted very soft and unsubstantiated elements as effective protection externally.

The above comparison thus indicates a dissonance between the internal and the external case which does not appear to be justified. In the case of expulsions and deportations, as well as in extradition cases, the State is in physical control of the person, arguably a situation in which due diligence obligations are at their strictest. ⁸⁰ Moreover, the Court has repeatedly stressed that treatment proscribed by Article 3 is irreversible. ⁸¹ Avoiding or preventing serious or irreversible damage generally requires States to take ‘such measures as are appropriate by way of abundant caution, even if full scientific certainty does not exist’. ⁸² Granted, beyond non-return of the applicant, i.e. provision of international protection, in external cases the State does not have many means at its disposal in order to effectively avoid the risk. The ‘leeway’ that States have in order to fulfil their positive obligations is therefore limited. ⁸³ But, in view of the irreversible damage such ill-treatment may inflict, this cannot absolve the State from exercising abundant caution, which must include a thorough analysis of what amounts to effective protection against an established risk of harm. Standards developed internally can provide a useful benchmark in that regard. If the Court found in Opuz v Turkey that it amounts to a violation of Article 3 ECHR for a State not to provide for effective protection against domestic violence, it is hard to see how actively returning a person to a country where no such protection is available whatsoever does not amount to that same violation. That is, the different level of scrutiny between the internal and the external case effectively harbours a different material level of protection. This reduced level of protection in the external case opens up the space for a stealth balancing of interests. Without saying so, by loosening the requirements for the level of protection, the Court is able to indirectly balance the State’s interest in controlling migration with the individual’s right not to be subjected to torture or other inhuman or degrading treatment.

This inconsistency relating to the obligations arising from Article 3 ECHR limits the human rights protection of women who are migrants – or more specifically are seeking international protection – vis-à-vis women suffering from domestic violence within a CoE State. The distinction between ‘us’ and ‘them’ is reproduced in a distinction between ‘here’ and ‘there’. This territorial bias in the Court’s case law, creating inequality between internal and external domestic violence cases, is however not the only border limiting the human rights protection of migrant women that arises from the reviewed case law. Another boundary surfaces between migrant women and other migrants. The following section argues that the limits on the enjoyment of human rights for migrants are also decidedly gendered.

3. Gender bias – Dissonances between gendered and other external cases

The thin standard of scrutiny that the Court applied in A.A. and Others v Sweden to conclude that there was no real risk in case of the applicants’ return is in tension with the scope of the positive obligations that the Court developed in order to ensure protection from domestic violence internally. Another Article 3 ECHR case from 2012 concerning a terrorist from Jordan, Othman v UK, ⁸⁴ gave rise to similar debates concerning the requisite level of human rights protection against an established risk. This is a landmark judgment in the Court’s jurisprudence since it is the first case in which the Court ruled that a memorandum of understanding with assurances that the individual would not be subjected to treatment contrary to Article 3 upon return was sufficient to ‘remove any real risk of ill-treatment of the applicant’. ⁸⁵ The comparison of this case with that of A.A., which was decided only a few months after Othman, is less self-evident than the previous comparison.

Although both A.A. and Othman involved the assessment of risk in the future, Othman is a case of violence by State agents – and more specifically, in a prison context –, whereas A.A. is a case of violence by private actors. However, in both cases, the Court was faced with determining whether adequate protection was available against an established risk of facing treatment contrary to Article 3, such that returning the person would not be in violation of obligations arising from the Convention. In other words, despite blatant differences at the factual level, the cases are structurally similar. This notwithstanding, the Court employed very different assessment criteria in order to determine whether there was a real risk upon return. ⁸⁶ The gist of the critical comparison in this section questions this application of different assessment standards, which effectively convey a divergent level of protection for the cases under examination.

Whereas in the previous section the aim of the exercise was to draw out differences between an internal and an external case that were similarly situated (both domestic violence cases), this section focuses on dissonances between two external cases that are differently situated (domestic violence vs terrorism). This comparison serves to illustrate that the territorial bias in the Court’s jurisprudence established above intersects with an additional gender bias, thus drawing up another boundary to the detriment of migrant women.

3.1. The requisite level of protection: Dissonances between Othman and A.A.

Mr Othman had fled Jordan and enjoyed refugee status in the UK since 1994 on the basis that he had been detained and tortured by Jordanian authorities. In 1999, he was convicted in absentia by a Jordanian court for conspiracy to cause explosions and membership of a terrorist organisation in Jordan and would face imprisonment and retrial upon return. In 2002, he was arrested and taken into detention under anti-terrorism laws in the UK, followed by a notice of intention to deport in 2005. The UK Government had obtained diplomatic assurances from Jordan that he would not be subjected to ill-treatment and would face a fair trial. Mr Othman challenged his deportation, claiming that it would be in violation of Articles 3 (alone and in conjunction with Art. 13), as well as contrary to Articles 5 (right to liberty and security) and 6 (right to a fair trial) ECHR. Specifically, Othman complained that he would be at real risk of being subjected to torture or ill-treatment proscribed by Article 3 ECHR in prison if deported to Jordan. Further, if returned, he would also face retrial for the offences for which he had been convicted in absentia. He would thus face lengthy pre-trial detention (allegedly in breach of Art. 5 ECHR) and, if convicted, a long term of imprisonment. Finally, the applicant alleged that, if returned to Jordan, his retrial would amount to a flagrant denial of justice in violation of Article 6 ECHR among other reasons because of the admission of evidence obtained by torture in Jordan. ⁸⁷

In respect of Othman’s fear of ill-treatment in prison in Jordan, the Court assessed the quality of the assurances given and whether, in light of the receiving State’s practices, they could be relied upon. ⁸⁸ The Court came to the conclusion that his deportation would not be in breach of Article 3 ECHR (alone or in conjunction with Art. 13 ECHR). With respect to Article 5 ECHR, the Court confirmed that this provision applied in expulsion cases but found that the requisite threshold for a flagrant breach of rights protected under that Article had not been met. ⁸⁹ However, the Court held that Othman’s retrial would violate Article 6 ECHR, since it was likely that evidence obtained by torture would be admitted and used against him. ⁹⁰ The judgment in Othman v UK is most well-known for the latter finding; it constitutes the first case in which the ECtHR found that a forced return was not permissible because it would be in breach of Article 6 ECHR.

Nonetheless, as stated above, the finding regarding Article 3 ECHR was equally novel. Since in previous cases diplomatic assurances had been rejected, ⁹¹ Othman represents the first case in which the Court concluded that forced return on the basis of a Memorandum of Understanding (‘MoU’) was acceptable. This triggered a detailed discussion of the requisite material protection standards for the return of convicted terrorists – a discussion which was entirely absent in A.A. The issue of requisite material protection standards to remove a risk of treatment proscribed by Article 3 ECHR is the relevant aspect for the purposes of this article. Therefore, the remainder of the analysis focuses on this aspect of the case, which forms the basis of a comparative analysis between Othman v UK and A.A. and Others v Sweden.

At issue in Othman was the question whether the ‘absolute’ nature of Article 3 ECHR would be undermined if States could deport on the basis of MoUs assuring that no treatment contrary to Article 3 ECHR would occur. Up until then, MoUs had been an instrument of cooperation between States in the area of criminal law, employed only in the context of extraditions. In the case of Othman, the UK proposed to expand this practice also to cases of forced return. Third party interveners, such as the CoE’s own Commissioner for Human Rights warned against the use of diplomatic assurances in this context, stating that ‘the principle of non-refoulement should not be undermined by convenient, non-binding promises’. ⁹² They were of the view that ‘[s]uch bilateral, legally unenforceable diplomatic agreements undermined the ius cogens nature of the absolute prohibition on torture and the non-refoulement obligation’. ⁹³ The UK government responded that such a view ‘betray[s] a lack of an appreciation as to how MOUs worked in practice between states; they were a well-established and much used tool of international relations’. ⁹⁴

Although the Court acknowledged the ‘widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security’, ⁹⁵ it explicitly purported to refrain from ruling ‘upon the propriety of seeking assurances, or to assess the long term consequences of doing so’. ⁹⁶ However, the Court then reasoned that ‘there is no prohibition on seeking assurances when there is a systematic problem of torture and ill-treatment in the receiving State; otherwise, […] it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them’. ⁹⁷ The Court thus employed a catch-22 logic rather than human rights reasoning to argue for the acceptability of assurances in principle.

On that basis, the Court argued that its task was to examine whether ‘the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’. ⁹⁸ For its assessment, the Court started by outlining the requirements that must be met by an MoU, as distilled from its own previous case law. It identified eleven specific criteria that the diplomatic assurances must fulfil in order to ensure sufficient protection against the established risk of torture. In the particular case, the Court marvelled at the comprehensiveness and specificity of the MOU, which it qualified as ‘superior in both its detail and its formality to any assurances which the Court has previously examined’. ⁹⁹ In the following paragraphs 195-204, the Court engaged in a thorough analysis of various points raised with a view to the MoU, though it did not systematically apply the criteria it had previously established. This assessment led the Court to the conclusion that the applicant’s return to Jordan would not expose him to a real risk of ill-treatment. ¹⁰⁰

This judgment generated discussion and outrage concerning the use of MoUs for the expulsion of terrorists outside the context of extraditions. ¹⁰¹ Beyond questions relating to their reliability, the essence of the criticism is that ‘abdications to bilateral diplomacy’ in the context of human rights constitute a ‘particularly dangerous shift’. ¹⁰² This echoes criticism that had been voiced on the use of diplomatic assurances in forced return cases prior to the judgment in Othman, arguing that ‘[t]heir main function is to perform a double move: to assure the rendering community of its own faithfulness to human rights law, while the captive is given to human rights law in its withdrawal’. ¹⁰³ Indeed, much like in the case of A.A., covert balancing might be at play – i.e. the territorial bias applies here as well. Although the Strasbourg Court ostensibly rejects a ‘relativist’ approach to Article 3 ECHR generally, it appears to accept that what is a breach of Article 3 ECHR in an internal context may not be a breach in an external context. ¹⁰⁴ In the merits, the Court started by emphasizing that ‘it has been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights […]’, ¹⁰⁵ which leads it to find that ‘as part of the fight against terrorism, States must be allowed to deport non-nationals whom they consider to be threats to national security’. ¹⁰⁶ The tension between the explicit desire to be able to deport a person who himself is characterised as a human rights threat and the absolute nature of Article 3 becomes particularly tangible in this case as the Court struggles to devise detailed requirements for returns on the basis of diplomatic assurances.

However, the main argument here is again to point out the blatant dissonance that emerged with regard to A.A. and Others – that is, this time between two external cases. The debates that arose around Othman underline all the more the ease with which the domestic violence case of A.A. was resolved. Unlike in the case of A.A., in Othman the Court separately engaged with two aspects. On the one hand, it established the risk, finding it ‘unremarkable’ in face of the evidence that the parties accepted a real risk of torture for Mr Othman if returned. ¹⁰⁷ On the other hand, it assessed the available protection, in this case in the shape of the MoU. The Court closely examined various aspects of the MoU, extending over 20 paragraphs in the judgment. In A.A., in turn, the Court’s assessment of the available protection on return barely extended beyond one paragraph.

Whereas, as discussed above, the approach of reverting to MoUs must be criticized on its own terms, it is noteworthy that there is not even the beginning of a similar discussion concerning the availability of protection in the gendered case of A.A. Three specific instances may serve to further illustrate the discrepancies. They relate to the specificity of the available protection, the prospects of implementation, and structural considerations.

One of the principles that the Court distilled from its case law concerning assurances is the requirement that they are sufficiently specific. ¹⁰⁸ In the case of Saadi v Italy, which preceded Othman, and concerned an asylum seeker and suspected terrorist from Tunisia, the Court did not accept the assurances provided by the Tunisian government because they were too general and vague. ¹⁰⁹ Yet in A.A., the Court was content with general and vague indications of available protection for the applicant. ¹¹⁰

Another consideration of the Court with respect to MoUs concerns the likelihood that the assurances made by the Government will be complied with. This requirement was first formulated in the 1996 case of Chahal v UK. Mr Chahal was a national of India associated with the Sikh separatist movement. After his asylum claim was rejected, he was to be deported. He challenged the deportation order, among others on the grounds that he would face torture in India. In this case, the government of India provided an assurance that the applicant ‘would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities’. ¹¹¹ Although the Court did not ‘doubt the good faith of the Indian Government in providing the assurances’, the Court was not convinced that the local government in Punjab would abide by the guarantees. ¹¹² In contrast, in A.A. and Others, considerations concerning the implementation of protection did not feature. The question whether perpetrators would be effectively stopped from effectuating further harm was not even raised.

A further consideration that the Court derived from its jurisprudence on MoUs is the question of whether there is an effective system of protection against torture in the receiving State. ¹¹³ However, the Court did not strictly apply this criterion in the case of Othman. Indeed, this would have been a difficult criterion to be met for Jordan in view of the available evidence. ¹¹⁴ The Court eluded this criterion and emphasised its conviction that the MoU constituted a ‘real and strong incentive in the present case for Jordan to avoid breaking its word’. ¹¹⁵ However, taken seriously and transferred to cases of domestic violence, this requirement would translate to an effective system of prosecution and protection. As the discussion above showed, this is not a requirement the Court formulated in A.A with respect to Yemen.

Thus, in both Othman and A.A., in view of the evidence, there was no doubt about the existence of a real risk of treatment in violation of Article 3 ECHR upon return. However, both Article 3 claims failed because the Court found that protection was available against those harms. A comparison of the appraisal of that protection in both judgments displays a great dissonance in the requirements. Whereas in Othman the referenced protection is subject to small-scale, detailed demands and (relatively) thorough assessment, in A.A. it is neither subject to any criteria nor to any type of reliability test. This stark discrepancy significantly narrows the human rights protection for gendered cases as compared to other cases, including convicted terrorists, where political pressures in favour of deportation are particularly high. The following section proposes that this dissonance arises from another materialisation of a classical trope in feminist theory – the public/private divide – and suggests a way to address it.

4. Public/private divide reloaded

As the term suggests, domestic violence is usually perpetrated in the domestic sphere by private actors. In the case of both Opuz and A.A., the perpetrators were their husbands. In the case of Othman, in contrast, the perpetrators were State authorities acting in the interest of prosecuting terrorism. If State authorities inflict the harm and the same State provides assurances that they will not do so in the case involved – as in the case of Othman –, this may be a questionable guarantee. However, when private actors inflict the harm, acceptable assurances are even more difficult to fathom because the State does not act itself. Nevertheless, in the case of A.A., the Court was content with no assurance whatsoever.

This is so even though the Court has consistently held that intentional acts or omissions of both public authorities and non-State bodies lead to protection. ¹¹⁶ The same does not automatically apply in cases of naturally occurring illness and the lack of sufficient resources. ¹¹⁷ In such cases, the Court has explicitly made distinctions between ‘fellow Contracting States’ and ‘non-Contracting States’ which ‘cannot be held accountable under the Convention for failure to provide adequate welfare assistance’. ¹¹⁸ The rationale is that ‘the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States’. ¹¹⁹ The Court’s approach to such cases has been subject to much criticism, in particular as regards the notion of absoluteness of Article 3 ECHR. ¹²⁰

However, non-State actors are in principle encompassed by Article 3. The Court has generally granted protection whenever the treatment would be inflicted by human actors in the receiving State, by State agents or non-State actors against whom the State could not provide adequate protection. ¹²¹ In Sufi and Elmi v UK, for example, the case of two Somali nationals who feared being ill-treated or killed if returned, the Court engaged in a very extensive assessment of the various situations the claimants might face upon return in Somalia. This included a careful analysis of the general situation of insecurity, internal flight alternatives and living conditions in refugee camps. The Court ultimately concluded that a return would be in violation of Article 3 ECHR. ¹²² This detailed assessment stands in stark contrast to A.A. ¹²³ but also to other gendered cases. ¹²⁴

This incongruity regarding non-State actors and gendered cases indicates a new edition of the first battle fought by feminist legal scholars in the context of refugee law, one long considered to be won: ¹²⁵ overcoming the public/private divide. ¹²⁶ Human rights law traditionally privileged the ‘public’ sphere. This was also true for refugee law under the 1951 Convention, with the result that for years, only harm inflicted by State actors was recognised as persecution. ¹²⁷ Following feminist critique since the 1980s, ¹²⁸ and the issuance of Guidelines by UNHCR first in 1991 and then in 2002, ¹²⁹ this has changed significantly. The concept of who is a refugee under the Refugee Convention now generally encompasses private persecutors and ‘private’ harms. ¹³⁰

In many respects, the international protection granted by the ECHR on the basis of Article 3 mirrors developments in the area of the Refugee Convention – and human rights law more broadly. ¹³¹ In principle, ‘private’ harms and private perpetrators are recognised under Article 3 ECHR. That is, in A.A. the argument was neither that protection does not extend to domestic violence nor that the claim failed because the applicant’s husband rather than the State inflicted the harm. However, the divide resurrected at the level of protection against such perpetrators and harms: flimsy arguments, unsubstantiated assumptions and stereotypical cultural notions uncritically passed as (private) protection that removed any real risk. It appears that, if the harm is inflicted privately, then it suffices that the women find help privately as well. This type of argument would go down much less easily in the context of public perpetrators. It is hard to imagine for the Court to argue that Mr Othman should rely on the strength and independence he proved by going to Court in order to challenge his deportation, or turn to his brother or fellow jihadist activists for help. The equation appears to be public perpetrators = public protection, while private perpetrators = private protection.

Note that this public/private divide is not limited to cases involving women, but also extends to sexual orientation. In the case of M.E. v Sweden, for example, the Court accorded a similarly low level of protection to the applicant. ¹³² This was not an asylum case, but, having refused his asylum claim, about the Swedish authorities requiring M.E., who was married to the male-to-female trans woman N., to apply for a family reunion visa from Libya. The process involved would take approximately four months. The 6 to 1 majority concluded that ‘this must be considered a reasonably short period of time and, even if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or suppress an important part of his identity permanently or for any longer period of time. Thus, it cannot by itself be sufficient to reach the threshold of Article 3 of the Convention’. ¹³³ The private protection to be sought here consists in returning to the closet and remaining ‘discreet’, without an assessment of the reliability of such protection. ¹³⁴

This new variant of the public/private divide retreated to a less visible place in the assessment. Because the evaluation of available protection tends to be conflated with the establishment of the risk in external cases, and no standards have been developed to guide that assessment, it easily escapes attention as the Court brushes over this question. This might be avoided if the ‘real risk’ assessment were explicitly structured into firstly, the establishment of the risk, and secondly, the evaluation of available protection.

Due to the circumstances of the case, this two-step approach to the real risk assessment was applied in the case of Othman. The question of whether the MoU was sufficient to remove the risk of harm was explicitly posed to the Court. This was the culmination of a line of cases concerning the conditions under which States can remove persons who are convicted of terrorist acts. With its long list of requirements and its emphasis on the reliability of implementation, the Court established a fairly high threshold for returns on the basis of diplomatic assurances. Although far from immune to criticism, ¹³⁵ this approach is transparent with respect to the applicable criteria. This is not the case in the context of external cases involving gender-related harms.

For the sake of argument, it would be interesting to see the Court’s reasoning if Sweden, the respondent State in A.A., had explicitly framed its case in analogy to Othman: Yemen has a track record of domestic violence, and it is not disputed that A.A. would be at risk on return. However, it has been ascertained that she is strong and independent, and that she has a brother and two sons who recently came of age. Moreover, it has been established that there are women’s shelters in Yemen. Would this be sufficient to remove any risk of ill-treatment?

It is remarkable that the Court has developed an awareness and condemnation of the gender discrimination aspect of domestic violence in its internal cases (often finding violations of Art. 14 in combination with Art. 3 ECHR ¹³⁶ ), but displays no such sensibility in the context of external cases. A two-step assessment of the real risk a claimant will face upon return under Article 3 ECHR could not only help expose the various assumptions that underlie the reasoning but also create a space for structural and relational considerations. ¹³⁷

5. Conclusion: intersecting exclusions and the leverage of universalism

In Saadi v Italy, a case concerning the return of a terrorist preceding Othman, the Court fervently upheld the ‘absolute’ nature of Article 3. It stated that:

the Court cannot accept the argument […] that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole […]. Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. ¹³⁸

This confirmation of the absolute nature of Article 3 ECHR has been welcomed. ¹³⁹ It is an explicit rejection of distinctions regarding internal and external cases. However, in spite of this affirmation, it emerges from the above analysis that various distinctions at work put the absolute nature at risk – and these distinctions disproportionately affect gendered cases.

First, as the comparison between Opuz and A.A. demonstrated, it does matter whether ill-treatment occurs within a signatory State or in a non-signatory State. For the internal case, the Court applied a standard of assessment, and hence, a level of protection, that falls far short of that applied in the external case. In view of the requirements that the Court formulated to prevent domestic violence internally, the utterly unambitious standard of protection that it accepted externally points to de facto balancing of ill-treatment proscribed by Article 3 with the States’ interest in controlling migration. In addition, within the hidden balancing at work in the external cases, a further inequality has emerged. The comparison between Othman and A.A. illustrated that it also matters whether the harm is inflicted by the authorities of the non-signatory State or by private actors (especially in gendered cases). The extent to which Article 3 ECHR becomes malleable differs accordingly. Where State actors are the perpetrators, detailed requirements establish a relatively high standard for the admissible balancing. However, if the perpetrators are private actors no clearly defined requirements are formulated at all. The comparative analysis of these cases thus revealed dissonances that allow the Strasbourg Court to simultaneously uphold and undermine the universalism embedded in the absolute nature of Article 3 ECHR. The jurisprudence exhibits not only a territorial bias to the detriment of migrants, but also a gender bias, which impairs the human rights of women migrants.

Through the notion of ‘absoluteness’, Article 3 becomes a truly universal right, which anyone can claim. While the Court finds that this also extends to migrants, or rather persons seeking international protection, it simultaneously defuses this promise through various mechanisms. ¹⁴⁰ The rhetorically absolute Article 3 is repeatedly upheld, also in contradistinction with other, non-absolute rights. An example is found in the admissibility decision concerning Z and T v the UK in 2006 concerning Article 9 ECHR:

The Court emphasised in that context the absolute nature of the prohibition of Article 3 and the fact that it encapsulated an internationally accepted standard and abhorrence of torture, as well as the serious and irreparable nature of the suffering risked. Such compelling considerations do not automatically apply under the other provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country where the conditions are in full and effective accord with each of the safeguards of the rights and freedoms set out in the Convention. Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of [the] world. ¹⁴¹

The analysis in this article suggests that even the purported absoluteness of Article 3 is subject to hidden ‘pragmatic’ considerations, arguably in order to avoid making CoE States ‘indirect guarantors of freedom […] for the rest of the world’. ¹⁴² Both the lenient standards for the real risk assessment and the public/private divide that inhabit this real risk assessment are mechanisms that effectively make Article 3 malleable and susceptive to implicit balancing. In order to remedy these dissonances and overcome the boundaries, it may be useful precisely to point to the incongruities. To make the case for the introduction of due diligence elements into the real risk assessment of external cases, reference to Opuz may be helpful. In order to clarify the two-step analysis involved in the real risk assessment, and avoid different standards for private actors, Othman is a useful case in point. If Article 3 ECHR is to be truly absolute, and therefore universal, then the same standards must apply to all. The more blatant the dissonance is, the more forceful can reference to universalism prove to be.