ECtHR Rules that Police Officers Can Slap Suspects in the Face Without Contravening Article 3 ECHR: Bouyid v. Belgium

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.

Facts

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.[1] 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.[2]

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).[3]

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?


[1] Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment’, 23 Netherlands Quarterly of Human Rights (2005), 677-678.

[2] Ibid.

[3] 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.

13 thoughts on “ECtHR Rules that Police Officers Can Slap Suspects in the Face Without Contravening Article 3 ECHR: Bouyid v. Belgium

  1. De minimis non curat lex. (Or rather, in this case the applicants would presumably be able to obtain a judgement in tort against the cops and/or the police department, but that doesn’t change the fact that it is too de minimis to implicate human rights law.)

  2. Good post.
    Please post the names and nationality of the participating judges

    It might give a clue as to the chamber’s motivation.

    Some judges likely are appointed by governments with a bad police record — Russia, Belarus etc.

  3. Also I wonder, if a single slap does not violate Article 3, why could a state not openly instruct its police in using slapping as punishment for disrespecting the police?

    This judgment is really really The Dred Scott of torture law.

    The judges on the panel are likely motivated by racism or the sentiment that beating suspects is just punishment for contempt of the police.

    • Thank you for your comments, James.

      I find it inconceivable that the Judges of the Section that decided Bouyid v. Belgium would have been led by racist motivations. Rather, I think they did not think matters through entirely. The Judges simply did not see the harm – in terms of art. 3 ECHR – of one single slap, given the (allegedly) unruly behaviour of the applicants and the minor physical injuries suffered by the applicants. The Judges were clearly of the opinion that the threshold for application of art. 3 should be set at a relatively high level, leaving the facts of this case outside the scope of the article. As I explain in the post, I think they were wrong in doing so.

      Moreover, as you rightly note, the Judges have given a terrible signal to the police in all the Contracting States. At least in terms of the ECHR (as Martin Holterman noted above, there are other possible remedies under national law; although of course those failed to offer relief in the Belgian case), there is apparently nothing wrong with slapping a suspect who is considered to act in an arrogant or provocative way. I hope this case will go to the Grand Chamber and that the Court will reconsider its position.

      I also think there was/is cause to investigate the case under art. 14 j. art. 3 and 5, but it is clear from other cases that the Court is not very keen on engaging in such an analysis, looking at possible racist motivations behind police / State violence. The reasons for the Court’s hesitation in engaging with art. 14 in these kinds of cases are – unfortunately – not clear.

      As for the nationality of the Judges of the Section that delivered the judgment, I do not think this had any bearing on the outcome or reasoning (there is no reason to assume that Judges from countries with a bad police record are more likely to find in favour of the State; plus, the judgment was unanimous). If you are still interested in knowing the names and nationalities of the Judges, you can easily find these in the judgment itself and through the Court’s website.

  4. @Stijn Smet

    Thank you for your thoughtful reply to my, mustI admit, intemperate comment.

    The main problem I see with the ruling is not that it presupposes that ill treatment must attain a certain threshold.

    It was already the law, and there are good reasons for not holding that any uncomfortable conduct violative of Art. 3.

    The court seems to imply that factors such as the moral turpitude of the suspect and the subjective intention of the law enforcement officer at the scene are relevant or dispositive factors in determining if Art 3 with its duty to investigate applies in the first place.

    But these factors should really not be relevant in determining whether certain police conduct — not even authorized as legal by national law — attains the level of severity under Art. 3.

    Why? Because the subjective feelings and motivation of the law enforcement officer is not the democratic will of society, and therefore no balancing of rights or interests is
    proper.

    Beating a suspect even once without legal justification is either sadism or revenge, and even the most undemocratic regimes from Nazi Germany to Stalin’s USSR did not officially prescribe such sadism by its police.

    Applying the investigative limb of Art. 3 even to trivial cases is arguably a minimal burden on legitimate law enforcement work.

    What troubles me about this ruling is that the court did not even pretend applying the investigative limb of its Art. 3 caselaw to a factual setting wherein the contracting state admitted that the police conduct was improper and likely illegal under national law.

    The court could have applied the investigative limb of Art. 3 to the facts and still having held in favor of the government on the ground that the conduct while deplorable did not rise to a severity forbidden by Art. 3.

    If allowed to stand, this precedent will not only encourage sadism and revenge in close call situations, but may even grant a loophole for abusive law enforcement personel.

    Every cop can now beat a suspect as long as it does not leave visible marks, and later claim that the individual was disrespectful.

    Or in a case where the police really wants to apply harsh pressure to a suspect in order to obtain a confession or physical evidence, slapping can be threatened or even applied and the motivation later denied.

  5. Stijn, thanks very much for drawing attention to this case in your interesting post.

    I have to disagree that the Court’s reasoning in Bouyid is problematic. The Court does recognise that being under the control of state agents will in principle render that use of force inhuman and/or degrading. If the ‘in principle’ qualification were to be removed, this would lead to the conclusion that any use of physical force against a person deprived of his or liberty, etc, would be considered as inhuman or degrading treatment in every instance. ‘In principle’ is an appropriate formulation because it is consistent with the overall approach of the Court – of conducting a relative assessment of whether the minimum level of severity has been reached in an individual case. The only message that the judgment should send is that degrading treatment did not occur in this particular case; not that slapping in the context of police detention is acceptable, either generally or from the point of view of Article 3. The judgment shows the Court is willing to be guided by whether the harm is inhuman or degrading in the context of the particular circumstances of the case and not only by the fact that it occurred within a situation of deprivation of liberty; the court shows that ‘in principle’ means just that – most of the time but not always. So I don’t think the Court’s reasoning as such is problematic, whilst the Court’s conclusion that the minimum level of severity was not reached might, of course, be argued to be wrong. The point you raise about racial discrimination is interesting and, if examined, would certainly have added a very different dimension to the case.

    As it stands, I confess that I don’t find the Court’s overall assessment of the minimum level of severity surprising. I do think it is reasonable to argue that the situation should have been seen as being at the limits of prohibited treatment, as a result of the deprivation of liberty context, and this sentiment is not reflected in the main judgment (which is perhaps why it was deemed necessary by Judge Power-Forde to state explicitly in the concurring opinion that this treatment should have been seen as very close to falling within the scope of Article 3). On the significance of powerlessness, I don’t agree that this is always more important than the gravity of injuries caused, or than other relevant factors. I see the idea of powerlessness as inherent within the Court’s degrading treatment reference points (feelings of fear, anguish and inferiority capable of humiliating and debasing the victim, breaking his or her physical or moral resistance, etc) and, within the Article 3 context, as one indication of harm to human dignity in some fundamental sense. I think the crucial difference between the examples you cite is in the purpose. Malicious purpose is already accepted as a necessary component of torture and, if I remember correctly, Professor Nowak makes a distinction between torture and the other forms of ill-treatment.

    On the whole, this case highlights how valuable it is to think about what the terms in Article 3 should actually mean and how they should be best understood to relate to one another. How does a context of unequal power relations impact upon the label attached to a particular harm; in particular upon the judgment of whether such harm should be seen as inhuman or degrading as opposed to unacceptable in some other sense? Focusing on these questions would likely give us a richer understanding of the factors that should have been important in assessing the minimum level of severity threshold.

    • Thank you for your interesting and detailed comment, Elaine.

      Although we disagree on the reasoning and outcome of the judgment, we appear to share some common concerns. I particularly agree with the last paragraph of your comment: “How does a context of unequal power relations impact upon the label attached to a particular harm; in particular upon the judgment of whether such harm should be seen as inhuman or degrading as opposed to unacceptable in some other sense? Focusing on these questions would likely give us a richer understanding of the factors that should have been important in assessing the minimum level of severity threshold.” These are highly important questions, which – in my opinion – were not adequately addressed by the Section that decided Bouyid.

  6. While Article 3 still has a ‘’minimum threshold” to imply its guarantees, there always will be cases such this, balancing between moral or indecent behaviour of the police and human rights law. Even the human rights law shall stop itself at some point and it could not be extended indefinitely. Nevertheless, where that very point when human rights stop and the morals begin?
    I however have two other questions arising from this case – if the interdiction enshrined in Article 3 is ABSOLUTE then why we have that “minimum threshold” that circumvent absolute regime under that provision? Either the guarantee is absolute or it is limited. Both cannot co-exist. This is a highly hypothetical and philosophical question, and a lawyer will never answer that question.
    And the second – I wonder whether the judges in the present case had mess up with de minimus rule (which is a question of inadmissibility) and “minimum threshold” (which is a question of the merits and substantiated quality of the allegations)? In fact the judges may have apply de minimis rule and there would have been other outcomes. They nevertheless acknowledged that the case is not manifestly ill-founded and requires examination of the merits and found non-violation. In this instance there should have been a reasoning that the alleged ill-treatment have never occurred. Otherwise, if the treatment did not reach required threshold, then the case is inadmissible as manifestly ill-founded, because of lack of that minimum threshold.
    I think the Court will never be able to reply to such a paradox.
    Finally, let’s not forget that while we are dealing with cases in courts of law they usually apply the following principle – sometimes a case is not about what really happened but what actually can be proved.

    Good post. Thanks for author.

    • Thank you Stjin for this post. I was getting worried that nobody took notice of Bouyid.
      This is a clear regression in the manner in which art 3 has been interpreted when physical force is used against a person deprived of liberty.
      It is very surprising that the Court digs up cases such as Campbell and Cosans or Ireland v Uk while ignoring the trend started with Ribitsch.
      Of course, the classical formula use the words ‘in principle’, but to me this must be interpreted as meaning that the use of force can be excused, if proportionate, when justified by the behaviour of the applicant (such as for instance an attempt to escape, or use of force against the police, but not provocative verbal behaviour).
      If the Court was motivated by protecting the symbolic value of article 3, it could have analysed the case under article 8.
      However I do not believe that a slap in the face by a police officer does not qualify as a degrading treatment. Authority goes hand in hand with responsibility and the Court is sending a very wrong message with this case such as it did in another context with Austin v UK.

  7. […] This Chamber judgment dealt with the issue of slaps given by Belgian police officers to two persons – one of which a minor – during their questioning at the police station in relation to trivial affairs. The Chamber judgment is nominated for worst judgment because, in finding no violation of article 3 ECHR, the Court lowers the standards of protection provided by the absolute prohibition of torture and inhuman or degrading treatment. For more, see our post here. […]

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