December 12, 2013
Recently, the European Court of Human Rights failed to condemn Belgium for two incidents in which police officers slapped suspects of foreign origin – including a minor – in the face during police questioning in relation to trivial affairs. The Court specifically ruled that a one-time slap in the face did not, under the specific circumstances of the case, meet the threshold for applicability of art. 3 ECHR. Although the Court condemned the police officers in moral terms, in terms of human rights law their behaviour was apparently completely acceptable. In this post I will argue that the unanimous ECtHR ruling dramatically falls short of what one might expect from a human rights court.
The facts of Bouyid v. Belgium concerned the applicants’ arrest and questioning at the police station. Both applicants – Saïd Bouyid and Mohamed Bouyid – live with their family in Saint-Josse-ten-Noode, in Brussels. They in fact live next to the local police station. The family has a history of dispute with officers from the police station, which apparently dates back to an incident in which one of the family members – a minor – was suspected of having voluntarily scratched one of the police officers’ cars (he was acquitted in court). After the car incident, numerous instances occurred in which the applicants’ family complained of harassment by the police officers. The facts of this particular case took place in that heated context.
During a first incident, the 17-year old Saïd Bouyid was talking to a friend in front of his house, around 4pm. Having forgotten his keys, he rang the bell so his parents would open. At that point, a police officer in civilian clothing approached Saïd and asked him to identify himself. Saïd refused, asking the police officer to prove his qualifications. The latter then grabbed Saïd by his jacket, tearing it in the process, and took him to the police office. The police officer later claimed that he did not know Saïd and therefore did not know that he was attempting to gain access to his own home. Saïd was brought to a room in the police station where he stayed alone with the arresting officer who – according to Saïd – slapped him in the face when he protested against his arrest.
A second incident occurred after Mohamed Bouyid and his mother had a dispute with a third person in front of their home. When Mohamed was questioned in relation to the incident, the police officer in charge of his interrogation – Mohamed alleges – slapped him across the face after having asked him to remove his elbows from the interrogation table.
Both applicants submitted medical files, which indicated that they had suffered minor injuries. However, the Belgian police oversight body and the Belgian courts deemed that there was no cause to open a case against the police officers. The latter, as well as the Belgian government in front of the ECtHR, consistently denied that any slaps had ever been given. The Belgian government added that, even if it would have been the case that a single slap had been given during each incident, this did not meet the threshold for applicability of art. 3 ECHR.
Judgment and comment
In its unanimous judgment, the ECtHR follows the Belgian government’s argumentation. I find the Court’s reasoning to be highly contestable, since it raises serious questions of concern in relation to the absolute prohibition of ill-treatment provided by art. 3.
The judgment firstly refuses to completely apply established case law to the effect that, if a person enters police custody in a healthy state and leaves it with injuries, the onus falls upon the State to disprove the allegations of ill-treatment (see for instance Salman v. Turkey, para. 100; cited by the Court in Bouyid). Instead, in Bouyid the Court considers it futile to apply this principles, since the alleged behaviour of the police officers did not in any case meet the threshold for applicability of art. 3 (para. 49). The Court thus leaves the question of the occurrence of the slaps open to debate, while application of its own principles should have led it to conclude that the applicants had indeed – in the absence of any countervailing proof by the government – been slapped in the face during their questioning.
The Court falters a second time – and with much graver consequences – when it deems that any slaps that would have been given did not meet the required threshold for application of art. 3 ECHR. It is worth citing extensively from the relevant paragraph of the Court’s judgment:
En l’espèce toutefois, à supposer que gifle il y ait eu, il s’agissait dans les deux cas d’une gifle isolée, infligée inconsidérément par des policiers excédés par le comportement irrespectueux ou provocateur des requérants, et qui ne visait pas à leur extorquer des aveux. Elle serait de plus intervenue dans le contexte d’un climat tendu entre les membres de la famille des requérants et les policiers de leur quartier. Dans de telles circonstances, même si l’un des requérants n’avait alors que 17 ans … la Cour ne saurait perdre de vue qu’il s’agissait chaque fois d’un acte isolé, posé dans une situation de tension nerveuse et dénué de tout effet grave ou durable. Elle estime que des actes de ce type, bien qu’inacceptables, ne sauraient être considérés comme générant un degré d’humiliation ou d’avilissement suffisant pour caractériser un manquement à l’article 3 de la Convention. (para. 51)
In this paragraph the Court refers to a number of reasons to justify the finding that the police officers had not contravened art. 3 (supposing that they had slapped the applicants). Firstly, the fact that it concerned a single, isolated slap. Secondly, the fact that both slaps had been given in response to disrespectful or provocative behaviour by the applicants and not to extract a confession or testimony. Thirdly, that both incidents were tied to a context of tension between the family and the police officers. And fourthly, the fact that the slaps had not had grave or lasting consequences. The Court does indicate that it finds such acts unacceptable, but concludes that they do not constitute a violation of art. 3.
I find serious fault in this kind of reasoning, which focuses excessively on the isolated nature of the act and its minor physical consequences, while ignoring important contextual factors. Most importantly, the Court ignores the situation in which both applicants – one of them a minor – found themselves during the police questioning. They were under total control of the police officers in question and had no means to escape from the slaps they had been given. In its judgment, the Court fails entirely to appreciate the kind of psychological anxiety that results from knowing – as a person at the mercy of the power of the police – that they can simply slap you in the face whenever they want to, without there being anything you can do against it. The impunity of the police officers – upheld all the way up to the highest human rights law authority in Europe – can only exacerbate that feeling.
In this respect, I wholeheartedly agree with Manfred Nowak (former UN Special Rapporteur on Torture) that the insidious nature of torture and other forms of ill-treatment lies not only in the gravity of the injuries caused, but also – and more importantly – in the powerlessness and vulnerability of the victim, who may find herself under the absolute power and control of government agents, like police officers. In that sense, extinguishing a cigarette on a contained suspect’s hand constitutes unjustifiable torture (or at least inhuman treatment), while shooting a suspect in the leg while he is fleeing from the scene of a crime may be justified use of force. The crucial difference between both scenarios lies not in the gravity of the injuries, but in the powerlessness of the victim and the purpose for which the force has been used.
Crucially, the facts of Bouyid entail the infliction of injuries – even if minor – on suspects who were under the absolute control and power of the police. Moreover, the slaps could not serve any justified purpose. In fact, they appear to have been administered as a form of immediate punishment for the (perceived) insolence and arrogance displayed by the suspects. In that respect, the Court would have done well to have also referred (in addition to the paragraph it explicitly cited in its judgment; see para. 50) to the very next paragraph of the 2006 CPT report against Belgium, in which the CPT clearly states that “dès l’instant où la personne interpellée a été maîtrisée, rien ne saurait jamais justifier qu’elle soit frappée” (from the moment at which a suspect has been arrested and is under [police] control, nothing can ever justify slapping her).
Finally, the Court in Bouyid fails entirely to engage with the potential racial motives of the police in dealing with the applicants. In that respect, it is important to note that at least one of them was brought in on highly trivial and suspect grounds, given that he was merely attempting to enter his own home. Would the same have happened if he had a ‘Belgian-sounding’ name and ‘Belgian-looking’ skin? There is cause to doubt that. In that respect, it is also crucial to note another important contextual factor, namely the occurrence of racial violence committed by police officers in Brussels, as documented in journalistic incidental evidence and acknowledged by the police commissioner of one of the municipalities of Brussels. Some truly frightening testimonies of racial violence committed by Brussels police officers can be found (in Dutch) in a journalistic report by MO* (a Belgian magazine that primarily focuses on development related and global news). To appreciate the nature of the problem, it is worth translating one testimony in full. This is the testimony of Khaled Battafala, a jurist and youth worker in his twenties. He was visiting his parents in Ixelles on 28 August 2009 when he saw an ambulance and ambulance personnel trying to resuscitate a woman in the streets. Khaled was standing next to Nordine, who asked whether the woman – who was naked – could be covered. A bit later the police arrived, apparently notified by the ambulance personnel, and attacked Nordine and Khaled. Khaled was beaten by a truncheon, handcuffed and put into a police van. During the ride to the police station, the police officers repeatedly beat him on his head and neck. One of them shouted to Khaled: “Say you are a dirty makaak [insulting term for person of Maghreb origin] or I will beat you even harder!”. Khaled said what he was expected to say. “Afterwards I felt to humiliated. I am still sorry [I said that], but I was so overwhelmed and scared”, he testifies. Eventually, Nordine and Khaled were released 24 hours later, but only after having signed a statement that they had “resisted arrest” and had committed “violence against the police”. Khaled testifies: “At that moment in time, I would have said anything to get out again.”
Admittedly, and fortunately for them, the physical and psychological injuries suffered by the applicants in Bouyid were not as grave as those suffered by Khaled. However, and crucially, all three persons suffered violence for which no justification existed, while being under the complete control of the Belgian police. Like the case of Khaled, that of Saïd and Mohamed Bouyid thus constituted – in my opinion – a clear case of unacceptable ill-treatment, not only morally speaking, but also in terms of art. 3 ECHR. Deeply regrettably, the Court – in following a different train of thought – has now sent the signal to police officers in the Contracting States that it is perfectly acceptable, in human rights terms, to slap an unruly suspect in the face, just as long as they do it only once and not too hard. After all, where is the harm in that, right?
 Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment’, 23 Netherlands Quarterly of Human Rights (2005), 677-678.
 European Committee for the Prevention of Torture, Rapport au Gouvernement de la Belgique relatif à la visite effectuée en Belgique par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants, 20 April 2006, CPT/Inf (2006) 15, para. 12.