September 21, 2020
By Vandita Khanna and Natasa Mavronicola
In Dikaiou and Others v Greece, the First Section of the European Court of Human Rights (ECtHR) was called upon to determine, inter alia, whether the separate detention of six female prisoners living with HIV/AIDS amounted to ‘ghettoisation and stigmatisation’ in violation of the prohibition of discrimination (Article 14 ECHR) taken together with the right not to be subjected to torture or inhuman or degrading treatment or punishment (Article 3 ECHR). The ECtHR held that Greece had not violated Articles 3 and 14 ECHR. In this short piece, focusing on the question of segregated detention, we consider how the Court’s reasoning obscures, legitimises, and helps perpetuate the stigmatisation of prisoners living with HIV/AIDS, while failing to recognise the dignity-harm of segregated detention. We argue that the Court’s amplification of the ‘othering’ of an already vulnerable group fundamentally contradicts the core values of Article 3 and Article 14 ECHR.
The troubling elements of the ECtHR’s reasoning
In the women’s prison of Thebes in Greece, the prison authorities grouped together all the applicants – six female prisoners living with HIV/AIDS – in the same room and separated them from the rest of the prisoners in the wing. The applicants argued that while they were placed in the same prison as the rest of the prisoners, ‘they were stigmatised because of their “ghettoisation” and isolation in the same room’, which risked causing them psychological and neurological harm (Dikaiou v Greece, para 15 – our translation).
In response, the Court dubiously reasoned that it had not been demonstrated that the authorities had acted on an ‘intention’ to place the applicants in a situation of segregation but that rather they had merely sought to ‘manage’ the applicants’ group and the entire prison ‘efficiently’ (Dikaiou v Greece, para 52 – our translation). The Court’s subsequent reasoning, however, establishes not only that there was an intention to segregate but also that it was premised on assuaging the anxiety of ‘ordinary’ (as repeatedly referred to by the Court) prisoners regarding contact with persons living with HIV/AIDS. The Court put it as follows:
Dispersing them [the prisoners living with HIV/AIDS] in different cells and rooms would have had the effect of increasing the sense of worry of the other inmates, which may be understandable in an enclosed place like that of a prison. (Dikaiou v Greece, para 53 – our translation)
The Court ultimately found that
[…] the grouping together of the applicants, even supposing that it could be qualified as a difference in treatment of the applicants compared to the ordinary inmates, pursued a legitimate aim and constituted in the circumstances of this case a means having a reasonable relation of proportionality to the aim pursued. (Dikaiou v Greece, para 55 – our translation)
In this way, the Court acknowledged that the prison policy of segregation was imposed in response to the stigma-based anxiety of ‘ordinary’ inmates regarding sharing space with persons living with HIV/AIDS. By treating the alleviation of such anxiety as a ‘legitimate aim’ of prison management, the Court effectively legitimised the stigmatisation of prisoners living with HIV/AIDS and found segregated detention to be compatible with Articles 3 and 14 ECHR.
Legitimising stigma as a basis for differential treatment
The ECtHR has previously recognised people living with HIV/AIDS as a ‘vulnerable group’ (Kiyutin v Russia, para 64) having faced deeply rooted prejudice, widespread stigma and social exclusion (I.B. v Greece, para 80). The Court has established that, in respect of any restriction of the rights of such a ‘vulnerable group in society that has suffered considerable discrimination in the past…the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question’ (Kiyutin, para 63). The significance of this vulnerability and long-standing history of prejudice is heightened in the context of a policy that sets persons apart on the basis of their HIV-positive status in a site that is as replete with risks of physical, psychological and dignitarian harms as the prison.
Rather than being premised on ‘weighty reasons’, however, the prison policy of segregated detention in Dikaiou was clearly rooted in a concern to quell the worries of fellow inmates towards the applicants’ HIV/AIDS status. The ECtHR has in the past acknowledged that ‘ignorance about how the disease spreads has bred prejudices which, in turn, [have] stigmatised or marginalised those infected with the [HIV/AIDS] virus’ (I.B. v Greece, para 81). In I.B. v Greece, the ECtHR found that the applicant had been fired by his employer because of pressure from other employees who were concerned about the applicant’s HIV status, and held that the applicant had been discriminated against on the basis of his health, in violation of Article 14 taken together with Article 8 ECHR. Despite the ECtHR’s reasoning in I.B. v Greece that ‘supposed or expressed prejudice’ on the part of those who do not share the HIV/AIDS status could not be relied upon as a pretext to cause material or dignitarian harm to people living with HIV/AIDS (I.B. v Greece, para 87), Dikaiou upholds such stigma-based anxieties as a legitimate basis for differential treatment. This is all the more significant because what is at stake is the right not to be subjected to torture or inhuman or degrading treatment or punishment, an absolute right whose contravention is conclusively unlawful, and whose absolute character is tied to the egalitarian commitment to human dignity that underpins the ECHR as a whole (Vinter v UK, para 113).
Broader implications for prison administration
The ECtHR’s reasoning in Dikaiou has broader implications on what measures may be deemed legitimate, and thereby Convention-compatible, within prison administration. The ECtHR has long held that, for punishment or ‘treatment associated with it’ to reach the Article 3 ‘threshold’ of severity, the ‘suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’ (A v United Kingdom, para 127 – emphasis added). The legitimacy of a measure causing suffering, such as a restrictive prison regime, is determined by what the Court deems legitimate aims of prison administration, a category that is increasingly shaped by the centrality of rehabilitation as a penological principle within Article 3 ECHR, and which excludes the aim of furtherpunishment (Mavronicola 2015, p. 735). The Court accepts measures which isolate prisoners or restrict their movements within the prison where such measures remain respectful of human dignity and insofar as applied solely, and only to the extent necessary, to avert concrete risks of harm posed by the individual subjected to them (ibid). It should be evident that neither an aim nor a treatment is ‘legitimate’ if it is discriminatory and stigmatising in character. The Thebes prison policy of segregating prisoners living with HIV/AIDSwas neither aimed at nor necessary to provide protection from harm but was instead orientated at alleviating stigma-based anxiety about a wrongly perceived danger. Accordingly, the suffering and experience of degradation created by the segregation of the prisoners in Dikaiou should not be seen as an ‘inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’. Nonetheless, that is precisely what the Court’s finding suggests. Treating the stigma-driven decision of the prison authorities to physically separate prisoners living with HIV/AIDS from the rest of the prison population as Convention-compatible normatively endorses the stigma that has been historically ascribed to people living with HIV/AIDS. On account of their particular circumstances, the applicants may even be said to have experienced segregation in detention as punishment for their HIV/AIDS status.
Article 3 ECHR and ‘othering’
At the heart of Article 3 ECHR lies a prohibition on dehumanisation, on treating a fellow human person as other than human. In torture, Jean Améry located the ‘negation’ (Améry 1966/2009, p. 35) of one’s fellow human, a fundamental rupture in the relational humanity of our social world. As Elaine Webster has put it, torture embodies a ‘symbolic exclusion from the human community’ (Webster 2018, p. 130); Michelle Farrell has spoken of it as involving ‘the reduction of the human…to the status of less than human’ (Farrell 2013, p. 246). The central wrong proscribed by Article 3 ECHR may therefore be seen as involving a setting apart, aform of radical othering that fundamentally contradicts the equal and elevated moral status ascribed to the human person within the human rights edifice through the idea of ‘human dignity’ (Mavronicola 2021; Mavronicola 2019). It is worth noting in this regard that the Court has previously shown a degree of readiness to recognise that discrimination against a ‘class of persons’, particularly where it excludes or isolates them, can ‘violate the very notion of respect for the human dignity of its members’ in contravention of Article 3 ECHR (Cyprus v Turkey, paras 302-311).
Nonetheless, in Dikaiou, the Court does not attend to the intimate nexus between stigmatisation, segregation and discrimination, and in turn between the dehumanising ‘setting apart’ of the applicants and the wrongs of inhumanity and degradation proscribed by Article 3 ECHR. Indeed, in casting prisoners not living with HIV/AIDS as ‘ordinary’ (Dikaiou v Greece, paras 52 and 55), the Court endorses the view that inmates living with HIV/AIDS are ‘not ordinary’. This in itself contributes to the stigma and sense of ‘deviance’ ascribed to their HIV/AIDS status. The language the Court employs deems it appropriate to segregate prisoners living with HIV/AIDS as opposed to ‘dispersing’ them in different cells and rooms, on the basis of a ‘legitimate aim’ of alleviating the ‘anxieties’ of ‘ordinary’ prisoners. It is important to locate this judicial vocabulary within broader processes and politics of ‘othering’ that feed into anxieties of a manufactured danger posed by the ‘Other’, obscure or even legitimise the ‘Other’s’ suffering, and significantly undermine this ‘Other’s’ human rights.
The reasoning of the ECtHR in Dikaiou v Greece on the compatibility with Articles 3 and 14 ECHR of the segregation of prisoners living with HIV/AIDS is unconvincing as well as troubling. It does not cohere with previous jurisprudence with regard to the vulnerable status of people living with HIV/AIDS. Moreover, it treats capitulation to prejudice as a legitimate aim of prison administration, by accepting the alleviation of the stigma-based anxiety of ‘ordinary’ inmates as a justification for the segregation of prisoners living with HIV/AIDS. It further helps perpetuate stigmatisation through a language of ‘othering’ that is at odds with human dignity. We hope that there will be an opportunity for the Grand Chamber to put this right.
Vandita Khanna is a Research Fellow at the Centre for Public Interest Law, Jindal Global Law School, India and an incoming MPhil candidate at the Faculty of Law, University of Oxford.
Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham.