Bouyid and dignity’s role in Article 3 ECHR

Guest post by Natasa Mavronicola, Lecturer in Law at Queen’s University Belfast.

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.

In this post, I want to concentrate briefly on the way the majority of the Grand Chamber unpacked and applied the concept of dignity – or ‘human dignity’ – in its finding of a substantive breach of Article 3, and distil some of the principles underpinning the understanding of dignity emerging in the Court’s analysis.

There have been increasing references to dignity in the interpretation of Article 3 recently in some prominent judgments of the Grand Chamber, notably in Vinter v UK, where the Court found that the imposition of sentences of whole life imprisonment without the prospect of release through a suitable review mechanism constituted a breach of Article 3 ECHR; and Svinarenko and Slyadnev v Russia, where the Court found that the practice of keeping remand prisoners in a metal cage during court hearings amounted to degrading treatment in breach of Article 3 ECHR. To those who see dignity as a nebulous or unduly malleable concept, this may seem problematic. I should state in advance that I largely do not share this scepticism.

In Bouyid, following a line of similar pronouncements in earlier case law, the Grand Chamber places human dignity squarely in the centre of Article 3 and the ‘essence of the Convention’ more generally (‘respect for human dignity forms part of the very essence of the Convention’, para 89). According to the Grand Chamber, 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”’ (para 90). The Court does this after alluding to a number of international and regional human rights instruments and related documents which refer to dignity, including Protocol 13 to the ECHR, which abolishes the death penalty.

A stand-out element in the Grand Chamber’s reasoning for me, which forms the starting point for the purposes of my brief analysis, is that the concept of ‘dignity’ acquires an impersonal character, making the assessment of whether it has been ‘diminished’ or otherwise attacked an objective question, rather than one tied to the way it is subjectively experienced. As the Grand Chamber puts it:

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. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question. (para 101, my emphasis)

Although the Court goes on to indicate that ‘[a] slap has a considerable impact on the person receiving it’ (para 104), the principle affirmed in Bouyid that physical force inflicted by a law-enforcement officer on a person entirely under his or her control – thus without the strict necessity of recourse to physical force – amounts to an attack on human dignity and thus to degrading treatment contrary to Article 3 (paras 90-113 of the judgment) is instructive in elucidating what Article 3 proscribes. Article 3, which is an absolute right admitting of no derogation or exception, is not there purely to protect human beings from suffering certain forms of harm – rather, it proscribes certain forms of absolute wrongs, including but not isolated to wrongs which result in significant human suffering and other forms of harm.

The concept of human dignity is central, as the Court recognises, to delimiting at least some of these wrongs, not least degrading treatment or punishment. Substantively, human dignity has two interwoven aspects which are relevant to these wrongs: one is chiefly tied to the principle of treating persons with a special kind of respect which distinguishes them from objects or animals; the other relates to providing or not denying the bare essentials required for human flourishing and personality development (I analyse these two aspects in section 6 of a recent article). Where a person is subjected to physical force not necessitated to repel her actions, she is treated as an object, without the minimum respect demanded by her humanity; where a person is imprisoned for life without a fragment of concretely realisable hope of release, she is denied essential foundations for basic human flourishing. The case law reflects these ideas.

There is also something structurally significant about human dignity: attacks on human dignity can be seen as inimical to a collective human conscience, rather than purely as attacks on the interests or well-being of a particular person. This explains the objective standards applicable to cases such as Bouyid – or, a much earlier predecessor, Tyrer v UK – in determining whether a particular treatment is degrading. In disrespecting the person as a human agent, the infliction of physical force by a police-officer against a vulnerable person entirely within the police-officer’s control objectively offends human dignity in breach of Article 3, irrespective of how it is actually experienced. Thus, if a similar thing occurred against a particularly hardened criminal, it would objectively amount to an attack on human dignity in breach of Article 3 just the same.

In Svinarenko, the Grand Chamber put it thus:

Regardless of the concrete circumstances in the present case, the Court reiterates that the very essence of the Convention is respect for human dignity and that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. It is therefore of the view that holding a person in a metal cage during a trial constitutes in itself – having regard to its objectively degrading nature which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – an affront to human dignity in breach of Article 3. (para 138, my emphasis)

The character of the treatment inflicted, constituting an objectively established wrong amounting to degradation irrespective of the nature and degree of harm it has resulted in, is missed by the dissenting judges in Bouyid, who go to great lengths to highlight that the minimum level of severity demanded for a finding of substantive breach of Article 3 has not been reached. What they fail to appreciate is that it was the wrong committed against the applicants which reached the minimum level of severity, rather than the harm endured by them.

 

I elaborate on these points further in my forthcoming monograph titled Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart 2016).

 

5 thoughts on “Bouyid and dignity’s role in Article 3 ECHR

  1. Thanks for a really thought-provoking piece Natasha, and I will really look forward to reading your article (have just printed it off).

    Your article may answer this question, so please forgive me if so, but I am curious to know why you think the references to ‘human dignity’ have come so late in the day in the Strasbourg jurisprudence. I appreciate that there is a fleeting reference to ‘human dignity’ in Tyrer, but it barely gets a mention for decades after that until the Vinter ‘era’. That seems surprising to me given the Court’s confident statement that ‘[a]ny interference with human dignity strikes at the very essence of the Convention’.

    Is it the later (often prisoner/ detainee context) cases that have been ripe for ‘human dignity’ analysis and so brought this element out more in later years – or it is something to do with a change in the Court’s approach to Art 3? Or both?

    These may be very tricky questions to tackle in a blog comment section, so please do not let me burden you with them, unless you had a quick view you wished to express.

    best wishes
    Ed.
    Ed bates.

    • Thanks for your comment, Ed, which is very thought-provoking. I think the Court’s Article 3 case law has evolved significantly and is increasingly more value- and principle-orientated than the sort of ex post facto, all-things-considered finding that the minimum level of severity has been reached that prevailed in earlier years. I agree with George Letsas’ idea that the Court is evolving towards the ‘moral truth’ of ECHR rights (elaborated on in the 2010 EJIL article titled ‘Strasbourg’s Interpretive Ethic’), but how it got to dignity as a matter of fact is another story. I would certainly need to do more holistic research into the mentions of human dignity in Article 3 case law to address your question, but at this stage I should say that I think the subject matter, the Court’s frequent approach of examining how the issue has been addressed in other jurisdictions (which in Vinter for instance led to the Bundesverfassungsgericht case law and dignity), and the submissions made to the Court, by applicants as well as by third party interveners, have all played a role.

      Sorry I haven’t been of more help, but I will definitely look into this further.

  2. Interesting point raised about the objectivity of dignity. This developing dignity jurisprudence might be a further reason for restriction not just in regard to article 3 but in regard to sexual or artistic life where the judge’s perception of collective indignity (which is not affirmed by a jury verdict) is another person’s freedom to sexual predilection (as in R v Brown [1994] 2 AC 264) or to make a message with a flourish (Otto-Preminger-Institut v Austria, 13470/87). May be it would have been safer and more honest (and a better response to the more technical, precedent-based line of the three dissenters) for the majority in Bouyid to have said outright that times have changed since Ireland v UK. Our standards on article 3 are (rightly) now more demanding. Even armies in conflict are not considered professional if they employ physical contact as an interrogation technique (at least in the UK following the Baha Mousa inquiry).

    • Thanks for your thoughts on this. I agree that dignity conceptualised as a value embodying the fundamentals of our collective human conscience carries the potential for being interpreted in ways that can lead to paternalism and even oppression. Yet I think that it is in fact human dignity, embodying minimum standards of treatment of the human being, that is at the root of this case law; and most exercises of freedom of expression, including Otto-Preminger, would not involve attacks on human dignity (as opposed to the treatment in East African Asians, for example).

      I agree that our views on what is inhuman or degrading – or torture – are evolving, but this is happening as our understanding of what dehumanises or debases evolves. The Court has made the point of applying a more exacting standard in Selmouni v France, and again (as per my previous comment to Ed) I embrace Letsas’ view on how it has come to this stance.

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