Strasbourg Observers

Bouyid v. Belgium: Grand Chamber Decisively Overrules Unanimous Chamber

October 01, 2015

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?”

Conclusion

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.

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10 Comments

  • batesed says:

    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).

  • Stijn Smet says:

    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.

    Stijn

  • 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

  • […] 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. […]

  • […] 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. […]