Bouyid v. Belgium: Grand Chamber Decisively Overrules Unanimous Chamber

By Stijn Smet

This Monday, 28 September 2015, the Grand Chamber of the European Court of Human Rights overruled the Chamber judgment in Bouyid v. Belgium (see our post on the Chamber ruling here). The Grand Chamber found a violation of art. 3 ECHR on the substantive aspect of the case, ruling by a clear 14 votes to 3 that the applicants in Bouyid had been the victims of degrading treatment at the hands of the Belgian police. This came as somewhat of a surprise, given the unanimous ruling of no violation by the Chamber. But it certainly was a pleasant surprise. In the first place for the applicants, who have now finally received justice for the ill-treatment they suffered at the hands of Belgian police officers. But also for us at the Human Rights Centre of Ghent University, since we had submitted a third party intervention in the case. In our third party intervention, we indicated that “the Grand Chamber judgment in Bouyid may well become a decisive moment in the Court’s case law on the interpretation … of Article 3 ECHR [and on] the protection offered against police violence under the Convention”. We were most pleased to note that the Grand Chamber has seized the occasion to set the necessary standards.

In this post, I will discuss the substantive aspect of the Bouyid case only.[1] I will first highlight a few elements from our third party intervention that are reflected positively in the Grand Chamber judgment. I will then point out two other aspects that were central to the majority’s finding of a violation. One of those other aspects relates to the role of the face in social interactions. The other relates to the centrality of the notion of human dignity in the majority’s reasoning.

But first, let me briefly recapitulate the facts of the Bouyid case. In short, the case concerned two youth (one of them a minor, aged 17, at the time of the facts) who were slapped in the face once by police officers during their detention at a police station. Although the police officers concerned have always denied the allegations, the Grand Chamber considered the facts to be sufficiently proven for the purposes of application of article 3 ECHR. All Judges, including the dissenters, agreed on this point. Where they disagreed, was on whether or not the single slaps constituted degrading treatment under art. 3 ECHR. I will return to this disagreement below.

The Grand Chamber judgment and our third party intervention

The applicants’ lawyers pleaded the Bouyid case very well. Both their written and oral submissions must have gone a long way towards convincing the Grand Chamber to overrule the Chamber judgment. The fact that the Grand Chamber decisively overruled the unanimous Chamber judgment is a testament not only to the lawyers’ submissions, but also to those of REDRESS, which intervened as a third party as well. Large parts of the reasoning of the Grand Chamber in Bouyid reflects the submissions by the applicants’ lawyers and REDRESS (as summarised in the judgment). We were pleased to note that significant parts of the judgment also reflect our third party intervention.

In our third party intervention, we first argued that three out of the four factors that had determined the Chamber ruling in Bouyid were, from the viewpoint of the Court’s established case law, irrelevant. One of those factors was the applicants’ allegedly disrespectful or provocative conduct. We argued that this is an irrelevant element under art. 3 ECHR, since the Court has consistently held that “the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned” (emphasis added).

On this point, the Grand Chamber held that

the fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct is irrelevant … The Grand Chamber therefore departs from the Chamber’s approach on this point. As the Court has previously pointed out, even under the most difficult circumstances, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned.

Citing the European Code of Police Ethics, which was mentioned by REDRESS, the Grand Chamber went on to state that

[i]n a democratic society ill-treatment is never an appropriate response to problems facing the authorities. The police, specifically, must “not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances”.

In our third party intervention we further argued – again with reference to established case law of the Court – that a number of key elements justify the lowering of the threshold under art. 3 ECHR in the context of police detention. These elements, absent from the Chamber ruling, relate to (i) the abuse of power by police officers over (ii) persons under their complete control who are therefore (iii) in a state of vulnerability. We also noted that minors were particularly vulnerable in the context of police detention.

The elements of control and vulnerability played a pivotal role in the Grand Chamber’s ruling. In relation to the element of control, the Grand Chamber held that

a slap inflicted by a law-enforcement officer on an individual who is entirely under his control constitutes a serious attack on the individual’s dignity … when [a] slap is inflicted by law-enforcement officers on persons under their control, [this] highlights the superiority and inferiority which by definition characterise the relationship between the former and the latter.

In relation to the element of vulnerability, the Grand Chamber ruled that

persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning … and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities are consequently under a duty to protect them.

The Court added, in unmistakable terms, that “[i]n inflicting the humiliation of being slapped by one of their officers [the authorities] are flouting this duty.”

The Grand Chamber also referred, “as a secondary consideration”, to the age of one of the applicants, a minor. The Court noted, in particular, that “[i]ll‑treatment is liable to have a greater impact – especially in psychological terms – on a minor” and that “it is vital for law-enforcement officers who are in contact with minors in the exercise of their duties to take due account of the vulnerability inherent in their young age” (again with reference to the European Code of Police Ethics).

In our third party intervention, we finally invited the Grand Chamber to consider the relevance of Davydov and Others v. Ukraine (2010), in which the Court had held that Article 3 requires States

to train its law enforcement officials in such a manner as to ensure their high level of competence in their professional conduct, so that no-one is subjected to torture or treatment that runs contrary to that provision.

This passage was taken over, almost verbatim, by the Grand Chamber in Bouyid. The Court has thereby firmly established the principle from Davydov in its case law, by reiterating it in a Grand Chamber judgment.

The additional role of the face in social interaction

A curious additional element in the Grand Chamber’s ruling, which I have not been able to trace to any of the submissions (by the lawyers, nor the third party interveners) concerns the role of the face in social interaction. In Bouyid, the Grand Chamber noted that

[a] slap has a considerable impact on the person receiving it. A slap to the face affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses – sight, speech and hearing – which are used for communication with others.

There can be no doubt as to the origins of this passage. The Grand Chamber discloses it in the very next sentence: “[i]ndeed, the Court has already had occasion to note the role played by the face in social interaction (see S.A.S. v. France [GC]…)”. It appears as though the Court is aiming to bolster the vivre ensemble argument from S.A.S. – of which we, and others, have been most critical – by referencing it as a central principle in other cases, starting with Bouyid.

The central role of human dignity

And then, finally, we arrive at one of the core elements in the Grand Chamber’s reasoning in Bouyid: human dignity. For the record, we did not submit any substantive arguments on human dignity in our third party intervention, although the term is mentioned in some of the sources we cite. Based on the summary provided in the Bouyid judgment, neither did REDRESS. Although the applicants’ lawyers did reference the concept, it does not appear to have been central to their argumentation either. It thus seems as if the Court has taken the occasion of the Bouyid case – out of necessity to render its reasoning more convincing or out of opportunity – to emphasise the central role it sees for human dignity in giving content to the term “degrading treatment” under art. 3 ECHR.

In Bouyid, the Grand Chamber went through great lengths to establish or reaffirm the links between the concept of human dignity and the prohibition of degrading treatment under art. 3 ECHR. Its efforts start in the summary of international texts, instruments and documents, prior to the merits part of the judgment. In the overview provided there, the Grand Chamber lists a grand total of 20 international and regional documents that mention the term (human) dignity, including the UN Charter, the UDHR, the Charter of Fundamental Rights of the EU and even the Final Act of the Helsinki Conference on Security and Cooperation in Europe. The dissenters, from their part, “wonder what practical purpose is served by these observations, given that the majority provide no indication of how the notion of human dignity is to be understood. The observations are presented as though they intend to establish a doctrine, but in reality they do not offer the reader much by way of enlightenment.”

Human dignity takes centre stage when the Grand Chamber notes, in the merits, that “the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity.” The Grand Chamber insists that “there is a particularly strong link between the concepts of “degrading” treatment or punishment within the meaning of Article 3 of the Convention and respect for “dignity”.” With reference to the earlier case of Svinarenko and Slyadnev v. Russia (2014), the Grand Chamber further states that “respect for human dignity forms part of the very essence of the Convention … alongside human freedom”.

One particular passage by the Grand Chamber sparked disagreement within the Court. Ultimately, a difference in interpretation of this passage lies at the heart of the dissent. In its judgment, the majority recalled the Court’s established principle that:

where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.

The words “in principle” are key here. The majority interpreted them as follows:

the words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold has not been attained. Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention.

The dissenters, however, vehemently disagreed:

[i]n our view, the use of the term “in principle” implies that there are exceptions, that is to say instances of interference with human dignity that nevertheless do not breach Article 3. This is because there are forms of treatment which, while interfering with human dignity, do not attain the minimum level of severity required to fall within the scope of Article 3.

The dissenters were of the opinion that Bouyid presented the Court with one of those exceptions. They criticised the majority for not showing “concern for the specific circumstances, instead simply adopting an eminently dogmatic position”. “For our part”, the dissenters continued, “we consider that the specific circumstances are of fundamental importance.” In relation to those specific circumstances, they agreed with the Chamber ruling in the case. The dissenters did make it perfectly clear that the slaps are utterly unacceptable and should have constituted a breach of domestic law. But in terms of European Convention law, they warned against “trivialising findings of a violation of Article 3.” “The situation complained of in the present case is far less serious than the treatment inflicted by law-enforcement officers in many other cases that the Court has unfortunately had to deal with”, they pointed out. Ultimately, the dissenters wondered, “[w]hat impact, then, does a finding of a violation of Article 3 still have?”


It should be abundantly clear from our third party intervention in the Bouyid case that we side with the majority’s clear and principled ruling in this case: there is absolutely no room – not only in terms of domestic law, but also in terms of European Convention law – for police officers slapping persons in their custody. We consider that the Grand Chamber’s judgment, which clearly and decisively overrules the Chamber judgment, should be absolutely welcomed as a positive extension of the Court’s established principles on the absolute nature of the prohibition enshrined in art. 3 ECHR.

[1] The Grand Chamber, unanimously this time, also found a procedural violation of art. 3 ECHR due to the lack of an effective investigation at the domestic level into the applicant’s allegations of ill-treatment.

10 thoughts on “Bouyid v. Belgium: Grand Chamber Decisively Overrules Unanimous Chamber

  1. An excellent, and extremely useful summary and analysis of the case; thank you very much.

    If comments are welcome (if so, thank you) please allow me to make the following – which may come across as provocative, but, to be clear, are put forward with respect and not meant to undermine the value of the post, or Ghent’s Third Party intervention (on which congratulations are in order).

    Personally, yet with some reluctance, I would agree with the minority approach. Like them, I do not condone what occurred (the violence) in any way, shape or form. But that is not the issue (in my opinion, of course); nor it is whether we have sympathy with the applicants’ plight (I do!) and whether we welcome the message that the Court convey here (I agree with it wholeheartedly).

    The question is what the relevant law on Art 3 should be, and here, I suggest, it is relevant to consider what it (and the Convention) can sustain without risking harm the Convention’s/ Court’s authority going forward (i.e. quite possibly, its ability to preserve/ maintain/ keep that authority to deliver judgments in yet more serious cases in the future). The joint dissenters make some strong points in this connection.

    Thinking out loud, perhaps part of the problem here lies in the implications of the finding, given the broader scope of what can also constitute a violation of Art 3 the Convention, as a non-derogable right:
    – An arguable claim of an Art 3 violation with give rise to a duty to investigate
    – The same will apply extra-territorially, although the extent of the duty to investigate might be adjusted there
    – As the dissenters also note [their footnote 2] – ‘A question that has not been discussed in the present case but will no doubt arise in the future is whether the strict standard set by the majority should now also be applied in cases concerning the extradition or expulsion of aliens. Would Article 3 stand in the way of the extradition or deportation of an alien to a country where he or she is at risk of being slapped (once)?’ – will Memoranda of Understandings be the answer here?

    It could be argued that those are separate issues/questions, detached from the case. But has the Court already thought through the answers to these questions (the quoted passage from the dissenters above suggests not)?

    Here I think of how the implications of the ruling will percolate through to national authorities, where there are powerful forces (certainly in the UK) looking for opportunities to undermine the Court for ‘trivialising human rights’ (to echo the dissenters’ words), and placing unreasonable burdens on the State. (I do not argue, of course, for the Court to deliver rulings purely to accommodate state interests). In short, the broader one makes Art 3, the heavier the ‘burden’ of what might be called its ‘secondary’ obligations potentially becomes.

    What dilemmas being a Strasbourg judge must ential, not least of all due to the binary nature of human rights protection in these types of cases. A ‘no violation’ in this case would suggest (incorrectly) that the behaviour in question was not serious enough to constitute a violation of Art 3 – doubtless Strasbourg would be perceived as ‘condoning’ this behaviour, despite anything it said. A violation of the Convention brings in its train (in my opinion) some bigger issues.

    Allow me to add, just one last time, that I do not condone the behaviour that gave rise to the case (!) – I just feel that it is a dangerous path for the Court to go down to condemn it as a violation of Art 3. Is this not something that the European Committee for the Prevention of Torture is better suited to addressing in the context of its more specific and nuanced regime of control?

    Ed Bates – Leicester Law School (comments are written in my personal capacity, and with best wishes).

    • Dear Ed (if I may),

      comments are most certainly welcome! Especially when they are as insightfully, poignantly and kindly formulated as yours!

      Although I understand your concerns related to the legitimacy and authority of the Court, I respectfully disagree. It is, of course, a privilege I am able to exercise, not being a Judge in Strasbourg who has to contend directly with powerful forces attempting to push her towards greater deference to the Contracting States. Undeniably, the UK government and certain of its judges play a key role here. And it seems to me – I could be imagining this – that the Court has been more lenient on the UK in the past few years, as a result of the pressure exerted upon it. The Animal Defenders judgment immediately comes to mind (I personally disagree with that judgment; as in TV Vest, I believe the Court should have found the absolute ban on political advertising to violate art. 10 ECHR). Whatever the case may be, the current political climate must have some impact on the Judges’ feeling free to exercise their judicial role with full confidence in the future of the ECHR. And I think that is an absolute shame on those Contracting States that wish to evade their responsibilities under the ECHR (again, this is of course easier written as an academic in a blog comment than said by a Strasbourg Judge in a judicial/political dialogue).

      Recent comments by Judge Spano are, in that context, extremely interesting (I personally think). Especially as published in his 2014 article in the Human Rights Law Review ( There, Judge Spano refers to the current era of the Court’s case law as “the age of subsidiarity”, but swiftly reminds the Contracting States that subsidiarity means that they hold the primary duty of ensuring human rights protection. He also advocates for a “qualitative, democracy-enhancing approach” by the Court, which entails more procedural emphasis on the democratic process (legislative debate and judicial control). These are definitely interesting insights from within the Court.

      Now, the Bouyid case was clearly one in which the national authorities had failed in their procedural duties; all ECtHR Judges agreed that the investigation into the alleged ill-treatment was insufficient.

      On the substantive violation, where you find yourself siding with the dissenters, I follow the doubts to some extent, but certainly not all the way. It seems to me to be absolutely clear – and the dissenter and you agree on this – that police officers should never slap persons in their custody in their face, in circumstances similar to those of the Bouyid case. They should not do so as a matter of domestic law and now the majority of the GC has ruled they should not do so as a matter of European Convention law either. For these kinds of situations, I must confess I see very little reason to invoke the subsidiarity/legitimacy argument: surely no State, including the UK, would convincingly argue that this judgment unduly limits their ability to mistreat persons in police custody. In that sense, I also do not understand what the dissenters mean when they argue that the majority judgment “may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers”. How so, if the exact same treatment is unacceptable under domestic law? Would then domestic law not also “impose an unrealistic standard”? To me, there is nothing unrealistic about police officers refraining from slapping persons in their custody, especially when they are not violently resisting. To be a bit hyperbolic: most of us – I would hope! – do not slap our more ‘disrespectful’ or ‘difficult’ students in the face. It is really not so hard to refrain from doing that. Why would it be more difficult for a police officer?

      The real key point of the dissenters, then, seems to be: what risks does this judgment pose for future cases? In particular, what does it mean for cases concerning expulsion, deportation or extradition? Now, in terms of how the argument was raised by the dissenters, it should be noted that they indeed (as you point out) mentioned the second part of their worries in footnote only. Were they perhaps aware of the rather hyperbolic/rash conclusions they were drawing?

      At least a few factors may yet mitigate these ‘risks’ (for now, until the Court has had a chance to clarify the standard in relation to expulsion/extradition/deportation cases, it remains nothing more than a hypothetical ‘risk’). First of all, applicants would still need to prove that they would be at a real risk of being arrested in the receiving State. It will thus definitely not be the case that applicants can no longer be sent to any State in which police officers sometimes – or routinely – slap suspects, simply because most applicants will not run a real risk of being arrested. Even if they would, they would still have to prove that they, individually, would face a real risk of being slapped by police officers in the receiving State. And that is all under the assumption that the ECtHR would apply the same principle extra-territorially, which – for now – is merely an assumption underlying the dissenters’ concern.

      I should also briefly point out that we argued – on a subsidiary basis – in our third party intervention that, should the Court not be convinced of the art. 3 argument, it could consider cases like Bouyid under art. 8 ECHR. We argued that slaps given by police officers to persons under their complete control (who are not resisting), should be considered a disproportionate (since not necessary) interference with the right to physical integrity under art. 8. Interestingly, this might have offered a way out of the predicament the dissenters faced. But they fail to mention art. 8. Perhaps this was never on the table in Strasbourg?


  2. Dear Ed,

    let me also quickly add something I thought of while re-reading this passage in your comment:

    “What dilemmas being a Strasbourg judge must ential, not least of all due to the binary nature of human rights protection in these types of cases. A ‘no violation’ in this case would suggest (incorrectly) that the behaviour in question was not serious enough to constitute a violation of Art 3 – doubtless Strasbourg would be perceived as ‘condoning’ this behaviour, despite anything it said. A violation of the Convention brings in its train (in my opinion) some bigger issues.”

    (thinking out loud here also)

    This crucial comment can actually be tied to the subsidiary nature of the Court’s role. Had the Belgian authorities properly investigated the applicants’ claims and had they found a breach of, for instance, domestic legislation on (police) violence or protection of physical integrity / dignity, the case would have never reached Strasbourg. Perhaps, then, it is the Belgian State’s failure to do its part in the subsidiarity scheme of the ECHR system that put the Court before the binary predicament you mention. As things stand, had the GC ruled that art. 3 had not been violated, the applicants would have never received any form of justice or redress for what all Judges (Chamber and GC) agree was utterly unacceptable behaviour on the part of the police officers concerned. Surely that would itself have been an unacceptable state of affairs.


    • Thanks so much – it would be so nice to speak about this over coffee, rather than via my clunky and unwieldy blog comments, so let’s hope that chance arises at some stage. In the meantime…

      It’s a very difficult case and I cannot say that I am convinced that either side is 100% correct (if you understand what I mean) – yet, when it comes down to it I guess that on paper the Strasbourg judge either votes 100% for a violation or 100% not (the binary nature of Strasbourg proceedings; the judge cannot abstain).

      It appears to me that, on the facts of this case, the underlying issue is a difference of approach between the majority and minority (and, respectively, you and me), one that reflects a slightly different vision regarding the Court’s role, and so the appropriate latitude that it has when interpreting and applying the Convention. The difference may not be that great, but the finely-balanced issues at stake in the case may have brought it out, and magnified it (in my opinion – I may be completely barking up the wrong tree!). It is hard to express what that difference is (especially in a blog post comment), but crudely speaking it could be whether, when hard questions like those arising in Bouyid crop up, and are as finely balanced as they are, the binary nature of the Court’s judgment forces a choice: one the one hand, there is an approach that LEANS (deliberate emphasis) more toward the idea of the Court as more of an international Court of human rights; on the other there, is an approach that LEANS more toward the Court as a type of quasi-constitutional court for Europe.

      The latter is not a 100% version of how the interpreter sees the Convention in every case, but nonetheless perhaps it implies (and leans toward/ has a tendency for) a broader latitude and vision for the Court, which can be more progressive in its standard setting (compared to the former), and the Court more able to use a case as a basis to formulate a general principle (again compared to the former).

      The former (more of an international Court of human rights), by comparison, may have a higher regard for what is seen (by the holder of the view) as the special nature of the jurisdiction of the Court, as an international institution – (again not necessarily a 100% version of how the Convention should be seen in every case, but this would be a tendency/ preference brought out in difficult cases). It would (I suggest) be characterized more by self-restraint, more aware of the limitations of the authority of the Court as an international institution, and potentially vulnerable as such. Perhaps that manifests itself in a concern not to expand standards too far (the ‘trivializing’ point/ and to resist an automatic tendency to blend art 3 too much with ‘human dignity’), and a caution to treat each case very specifically on the facts, given some anxiety as to the potential unforeseen consequences of a ruling at some future point (which could have an impact on the Court’s authority, especially if it loses credibility by having to retreat, or if its subsequent case law sees the Court tie itself up in knots in order to explain its way out of a corner).

      As I have tried to suggest with the way I have put it above, I think the differences in approach should not be over-emphasized. My feeling (and it is just that) is that a case like Bouyid amplifies them. That is, the binary nature of Strasbourg judgments (voting for or against a violation, and so majority/ minority positions) forces the Judge to decide which camp s/he should position him- or herself, and so appears to accentuate the divergence. As mentioned in my initial (leap of enthusiasm) comment, I would have gone with the minority camp, but, I dare say, like the minority (I assume) with considerable reluctance. Very reasonably (if I may say so) you would have been with the majority. We both condemn the violence in issue but differ on whether it should be elevated to the plane of a violation of Art 3, ECHR (or at least the way the Court did it in the case), and, I am guessing, it is our differing points of departure – one’s instinct, perhaps, to see Strasbourg from the perspective of an international institution or quasi-constitutional court – to the question that, in turn, led to the different result (I hope I am not being presumptive there in terms of how I categorize you).

      In many ways I am not sure that the matter we are discussing really relates to issues of subsidiarity at all (I agree with you here). After all, the substantive aspect of the Bouyid case (not the procedural one) was a question of whether the Court should condemn the ill-treatment in issue as a violation of Art 3. Here the Court was acting as the authoritative interpreter of the standards set by the Convention, in a case which had a kind of ‘legislative’ effect (not literally, of course, but in the sense that it was clear that the standard set down by the Court now amounts to a pronouncement stating that a slap to the face when in custody offends human dignity and so, given the context, breaches Art 3.That is now the European-standard for 47 ECHR States).
      So this aspect of the case was about the Court’s standard setting role, and so, I wonder, the differences of approach noted above have to come out into the open in the judgment. For me, the dissenters appears to me to be saying that, on the substantive question in issue in Bouyid, they thought that the Court should have approached the threshold question for when Art 3 applies with slightly more restraint and reserve than the majority did, in what was (for sure) a very finely balanced matter. My sense is that the difference of approach is found in their para 3 suggestions that the Strasbourg adjudication concerns matters distinct from domestic law, and domestic rights. As they put it, ‘[w]hat concerns us here is the narrower issue of whether the unacceptable treatment meted out to the applicants constituted “degrading treatment”, and hence a violation not just of the applicants’ rights, but of their fundamental rights as safeguarded by the Convention’ (emphasis added). An approach that leans toward the Court as more of an international Court of human rights, rather than an approach that leans more toward the Court a type of quasi-constitutional court for Europe? (That’s how I see it).

      As you know, the dissenters were also critical of the way the Court, they argued, too easily blended ‘human dignity’ with degrading treatment, albeit only in the specific context in issue. (As an aside, it is interesting to note how novel the ‘human dignity’ aspect of the Strasbourg jurisprudence is – it was hardly mentioned at all in the jurisprudence of the old Court, even though there are fleeting (historical) references (and no more than that) in East Africa Asians (a decision that was not published at the time) and Tyrer in the judgment).

      I think you are right too to say that the dissenters are anxious about the unintended and unforeseen consequences (another trait of the approach adopted?). And for me they are right to be anxious. I see it as very likely that this case will spark further litigation, especially in the deportation context- unless the Court settles the doubts existing in its jurisprudence – , for surely the argument can be run by any applicant who will be handed over to law enforcement officials in a third state. The litigation may be mostly unsuccessful, given the Art 3 real risk threshold, but it (the litigation) could be quite burdensome on the State nonetheless. As such, and whether rightly or wrongly (reasonably people could disagree on the matter), I would see it as almost inevitable that, in such circumstances, the credibility and authority of the Court would be severely questioned in cases when deportations of a future Abu Qatada-like figures are held up for fear (ok, ‘real risk’) of the similar ill-treatment occurring in a non-European country. With the Art 3 side of the scale lightened as much as it seems to have been in Bouyid, the types of balancing arguments identified in the dissenting view in Chahal, argued for in, but rejected by Saadi v Italy, would start to look rather more respectable. This whole issue looks bound to revive some of the issues at stake in Ahmad and how this can be reconciled with Trabelsi (as discussed, I see, in the very valuable debate on the Strasbourg Observers’ website: I may be wrong, but as far as I am aware the Court has not resolved the underlying issues that were debated in that post – Trabelsi was left as a Chamber judgment, not reheard by the GC. NB If the Court’s authority is being questioned, I, like you, want to support it. But it may not be doing itself any favours by leaving the law in these fields so unclear (as domestic Supreme Court would, understandably, be subject to considerable criticism). A similar point arises as regards Vinter/ Trabelsi/ Hutchinson, although the latter is to be reheard by the GC on 21 Oct – but the Court’s indecisiveness and inconsistency to date may not be enhancing its authority and credibility, if it is the standard setting institution for 47 States.

      Back to Bouyid. Having suggested (above) that this is not a case about subsidiarity, I recognize, of course, that the subsidiarity debate (viewing subsidiarity from a much broader perspective) has itself become associated with arguments to do with the proper and appropriate role of the Court. Quite clearly, and whether rightly or wrongly, whether for good reasons, or for more sinister motives, the UK government wishes to see a Convention that sets broader European boundaries of control – more latitude for States – in certain areas (in some selected fields, at least).

      Obviously the Court should not be bullied into submission by a campaign from one State. Then again, without in anyway condoning many of the more extreme ideas/ attacks on the Court emanating from the UK (gosh, how nuanced these comments have to become, and need to be!), I fear it would be rather bold too to suggest that the critique afforded by, for example, several senior UK judicial figures can simply be dismissed as having no merit to it all (I am not saying that that is your point, and again, I do not agree with the extrajudicial criticism fully, but I can see why some points are made). Filtering out the extreme positions, especially from politicians who know it is electorally popular to ‘Strasbourg bash’, could the position of the critics in the UK, and perhaps that of some others in other States, be that the Court needs a reminder that it is and should be leaning more to an international Court of human rights mode and less of a type of quasi-constitutional court for Europe? It may not be unreasonable to argue that is more consistent with the Convention’s proper mission (the critics would say), and that there is a genuine belief that the Court is getting a little too big for its boots, with few means to keep it in check in a post-Protocol 11 era? This could be a view shared (within limits) by some UK judges, but also, if my comments on the dissenters’ view above is correct – and cannot claim to speak on their behalf! –is one that has a level of sympathy too amongst some Judges at Strasbourg, at least when hard cases such as the one we are discussing arise.

      (Incidentally, and still on subsidiarity as articulated by Judge Spano’s lecture, is what he is saying not also to be seen in the context of the debate on the proper role and function of the Court? Contrary to some of the criticism directed as Strasbourg in relation to recent post-Brighton cases, is there no room at all for the view that the Court is not, in fact, abdicating its responsibility in those cases, but adopting a position that is considered appropriate having regard to the distribution of powers between it and the member States, albeit when the Court is seen more as an international court of human rights, rather than a quasi-constitutional one?).

      Standing back, and again thinking out loud, I am wondering if part of (and I stress ‘part of’) what is occurring with respect to the pressure that has been directed at the Court from certain quarters (true, the UK above all) reflects, on a larger canvass, the types of issues underlying (I suggest) Bouyid. Put another way, and filtering out the politics of anti-Strasbourg sentiment, I think that part of the reform debate is about the future vision of the Court (whether that vision should lean toward the Court as more of an international Court of human rights; or more toward the Court a type of quasi-constitutional court for Europe (without suggesting, myself, that it is a 100% choice either way)).

      Back to the case – again. I agree with much of what you say regarding the ‘unrealistic standards’ point (here we recall that the dissenters feared the case “may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers”). What can they have meant? Indeed, I agree that it would be objectionable that a State could reply to the judgment arguing that the judgment sets unrealistic standards, in that its ability to ill-treat has been unreasonably restricted. As you very correctly suggest, how could a State be so hypocritical to say that, if domestic law already criminalizes the activity? Yet here two points may be raised.

      Firstly, the dissenters seem to draw a distinction between domestic law and international human rights law; the former may offer more flexibility than the latter, given the absolute nature of Art 3 (in the dissenters’ words, as part of domestic law (tort or criminal) ‘the appropriate domestic courts [can], where necessary, … determine whether the officers’ behaviour may have been excusable’).

      Secondly, we come back to where I began, and, I suspect, where we see it differently (in a very friendly way, I am very sure), leaping to our computer keyboards with enthusiasm and passion to win the argument. I don’t condone the ill-treatment as you know (and nor did the dissenters), but would suggest that the criticism that you make of the dissenters here (which I do understand) brings us back the question of approach. Could it be that to approach the case from the angle of, in effect, ‘States can hardly complain that this will impact on their ability to ill-treat’, risks putting the matter the wrong way? Or, perhaps it is better to say that this would be the point made by an adherent to the view that, in these hard cases, the Court should veer toward its status (s/he says) as an international Court of human rights (see my first para). My feeling (and it is just that, and I could well be wrong, for they did not really articulate this in this context) is that the dissenters’ concern about ‘unrealistic standards’ was aired from the perspective that, as an international protected human right, Art 3 has a certain threshold that should be reached before it is engaged, and that it should not ‘rendered’ meaningless’ (hence the dissenters concern was with “rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers”). I do acknowledge that there are arguments the other way too, of course.

      Finally – perhaps we should change the coffee idea I suggested above to a beer instead – I think you deserve one if you have managed to work your way through all that!

      Sincere best wishes, Ed.

      • Dear Ed,

        I did make it all the way to the end! Thank you – once more – for your insightful and incisive contribution to the debate.

        I think you are absolutely spot on when you locate the key source of our differences in our respective starting points on the role of the Court. I continue to view the Court as – in the first place – needing to play a leading role in standard setting on human rights issues. I of course recognise that it needs to enjoy great legitimacy in the eyes of its stake holders (the Contracting States, but also individual applicants) to be able to play that leading role, but I emphasise the former, while you appear to pay more attention (than me) to the latter.

        It seems to me that the absolute nature of art. 3 also plays a role here (e.g. there is no room for the margin of appreciation; everything revolves around the threshold question). In Animal Defenders, I see an example of how the Court does show increasing awareness of the dangers of a potential legitimacy ‘crisis’ (but the Court of course also needs to enjoy legitimacy in the eyes of individual applicants; current and future!).

        How the GC will tackle Hutchinson, will be very interesting indeed.

        I will leave it at that here and reserve further debate for that coffee/beer!

        All the best,

  3. Thank you for the post and for the interesting comments.

    I would like to comment on the extraterritorial effect of Article 3 in the context of deportation of migrants. In particular, I want to remind you of what the Court said in BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM:

    176. The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi) should be regarded as applying equally to extradition and other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3.
    177. However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008).

    This means that that there are different minimum thresholds under Article 3: one in the domestic context and another one in the context of the right not to be subjected to refoulement.

    I would like to also comment on Smet’s statement that ‘applicants would still need to prove that they would be at a real risk of being arrested in the receiving State … simply because most applicants will not run a real risk of being arrested.’ I think this is a dangerous route to take. The argument seems to be that we need to raise the evidentiary threshold. As any refugee lawyer knows, we face great challenges when it comes to evidence of what could potentially happen upon return. So lowering the definitional threshold, while at the same time raising the evidentially threshold is a dangerous route to take.

    Vladislava Stoyanova

    • Dear Vladislava,

      As I quickly rattle off these thoughts, I may be missing something in the case law (a recent development?), if so, please forgive me, and I’d be delighted to hear of it.

      However, and with respect, I am not confident that the Court has resolved the point about differing standards in domestic and deportation context. Ahmad was a chamber judgment (fourth section, I think) and it was followed (chronologically) by Trabelsi v. Belgium (chamber judgment, fifth section) when, this time, the Court seemed rather unsure about Ahmad: see the concurring opinion of Judge Yudkivska:

      “The present case marks a welcomed departure from Babar Ahmad and Others v. the United Kingdom, and I am pleased to note that the Court’s previous position to the effect that “treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case”[2] is not followed in these particular circumstances. There is a risk, of course, that in view of the remarkable expansion of the scope of Article 3 and evolving standards of humanity, it becomes harder to set up any clear test under which respect to human dignity would entail ban on extradition or expulsion”. [although do read the full judgment for context]

      For reasons that only the Court knows, the Belgian government’s request that Trabelsi be reheard by the GC was rejected by the GC Panel earlier this year. To be fair, I note in para 54 of Trabelsi the Chamber wanted to relinquish jurisdiction to the GC, but the Belgian govt opposed this. May be this has something to do with the subsequent GC panel rejection (the reasons are, as far as I am aware, never published). Either way the points at stake are surely bigger than the individual estoppel matter, given the need to resolve the far broader issue, with ramifications for all States, not just Belgium (cf the Court’s status as interpreter of an instrument it occasionally describes as ‘a constitutional instrument of European public order’).

      [NB. Given the notable departure that Ahmad may have amounted to (for the reasons you identify) why was it not heard by the GC in the first place?]

      To be clear, despite my cynical tone, I am a firm supporter of the Court and want it to succeed (actually that it why I am writing these comments). For many reasons it would be a disaster for Europe, and international human rights law, if its status and authority slowly eroded away. But to retain that authority it needs to be careful how it goes about its business. Here I cannot disagree with the words of the Brighton Declaration subscribed to by all HCPs to the Convention:

      para 22 of the Brighton Declaration: ‘The authority and credibility of the Court depend in large part on the quality of … the judgments [the Court] deliver[s]’.

      (and then, in the very next para, para 23): ‘Judgments of the Court need to be clear and consistent. This promotes legal certainty. It helps national courts apply the Convention more precisely, and helps potential applicants assess whether they have a well-founded application. Clarity and consistency are particularly important when the Court addresses issues of general principle. ….

      It looks like the GC will grapple with some of the above Art 3 issues in Hutchinson v UK (heard later this month) and Paposhvili v Belgium (heard last month) – I hope the judgments to come will pass the para 23 test.

      very best wishes to you and all readers.

      Ed Bates.

    • Dear Vlasislava,

      thank you for your insightful comment! Let me just clarify that I merely wished to point to the existing ECtHR evidentiary standard in art. 3 deportation/expulsion/extradition cases. If I somehow misrepresented that standard by writing off the top of my head (an advantage and simultaneously a danger of online comments!), let this be the necessary correction.


  4. […] The Grand Chamber of the European Court of Human Rights recently delivered an important judgment on Article 3 ECHR in the case of Bouyid v Belgium. In Bouyid, the Grand Chamber was called upon to consider whether slaps inflicted on a juvenile and an adult in police custody were in breach of Article 3 ECHR, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Overruling the Chamber judgment in the case, the Grand Chamber ruled by 14 votes to 3 that there had been a substantive violation of Article 3 in that the applicants had been subjected to degrading treatment by members of the Belgian police. The background and finding of substantive violation are outlined in Stijn Smet’s blog post here. […]

  5. […] The Grand Chamber ruled that slaps inflicted on a juvenile and an adult in police custody breached Article 3 ECHR. The judgment is nominated for best judgment of 2015, because it firmly upholds the absolute nature of article 3 ECHR; and because it convincingly combines arguments based on control, vulnerability, superiority-inferiority and human dignity to protect persons in police custody from ill-treatment. For more, see our posts, here and here. […]

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