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The European Court of Human Rights

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With regard to the concept of `permissible roughness of treatment, treatment or punishment can only be adjudged to be in breach of Article 3 ex post facto, essentially because it is only then that all the relevant circumstances can be considered. To reach firm conclusions as to the nature and effect of treatment or punishment before it occurs clearly departs from the principle of assessment after the event. Whilst endorsing that principle in Soering, the Court indicated that a departure from it may be appropriate in certain cases: It is not normal for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from the principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by the Article. Such a departure is justified on a number of grounds, besides the risk of serious and irreparable suffering. They include the principle of effective protection, the belief that the Convention is designed to promote and maintain democratic ideals, the fact that Article 3 admits of no exceptions or derogations3 and, more to the point, that Article 3 represents an absolute standard. In Soering, the United Kingdom Government argued that speculative ill-treatment is prohibited under Article 3 only if it is certain and imminent. Such a standard can be achieved only where the treatment is required by law and its occurrence is not simply a matter of speculation. Accordingly, since the death penalty and the death-row phenomenon were not necessarily automatic and inevitable, the exception was not to be applied in that case.