May 06, 2022
An interview with Natasa Mavronicola, author of Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart, 2021). Questions by Corina Heri.
Corina Heri: In your book, you propose a conceptual framework for understanding absolute rights. Could you briefly explain this framework?
Natasa Mavronicola: Ever since my supervisor encouraged me, in the first few months of my PhD ‘journey’, to think carefully about the question of ‘what is an “absolute right”?’, I have found it helpful to distinguish between two aspects of that question: whether and when a right can be displaced (which I label the ‘applicability parameter’); and the way the right is delimited (which I label the ‘specification parameter’). I suggest that the absolute character of a right means that it is fundamentally non-displaceable as a matter of law: that is, its demands cannot, as a matter of law, be overridden by extraneous concerns. This is the applicability parameter of absoluteness. It means that specifying the right – delimiting the absolute – draws the line between potentially lawful State (in)action and conclusively unlawful State (in)action. What the book therefore turns to is how an absolute right may be specified in line with its absolute character – I suggest that:
– The right’s specification must be capable of guiding us. A right that is too abstract or too individualised to guide on an ex ante basis does not quite set the red line that we would associate with a non-displaceable entitlement. At the same time, as I make clear in the book, complete ex ante certainty is not attainable, nor is attempting it advisable even in the delineation of an absolute right.
– The right must be delimited through reasoning which relates to the wrongs corresponding to the right, rather than to considerations which are extraneous, that is irrelevant, to the wrongs at issue. This is, of course, a very loaded requirement, and its concretisation in respect of Article 3 ECHR is what I am preoccupied with in much of the book.
– Finally, the interpretation and application of the right must not amount to indirect or disguised displacement of the right. An interpretation that carves certain desired conduct out of the right when such conduct is actually inhuman, degrading or constitutive of torture, would amount to such displacement.
CH: Article 3 ECHR, the right not to be subjected to torture or inhuman or degrading treatment or punishment, is the focus of the book, but your conceptual framework can likewise apply to other absolute rights. Are there any caveats we need to observe when generalizing your framework? And could you walk us through the ways in which your framework allows us to overcome contestations of the concept of absolute rights?
NM: Part of my reason for focusing on this right is because it is simultaneously so widely thought of as absolute (Alastair Mowbray calls Article 3 the ‘most absolute right’ in the ECHR, and while I do not think absoluteness is a matter of degree, I think the point is illustrative), and so widely contested at the same time. Other rights may be more or less contested. They may be more highly specified, or more abstract. They may be more or less morally ‘loaded’ in content. But I hope the significance of interpreting the rights – and their corresponding wrongs – in line with their absolute character, and the challenges that arise in doing so, are unpacked and addressed in an instructive way in the monograph.
I think the framework set out in my book tackles some dominant contestations of absolute rights by clarifying what it means for a right to be absolute, and how the right’s absolute character can be respected in the delimitation of the right’s correlative obligations. By identifying and navigating the requirement of relevant reasoning, for example, my account addresses challenges such as the idea that there is a critical incongruity to the ‘absolute prohibition of a relative term’. In respect of Article 3 ECHR, such scepticism is often tied to what the ECtHR itself refers to as a ‘relative’ assessment of whether a particular treatment violates Article 3. Yet as I argue in the book, there is every reason for the Court to show sensitivity to relevant context in determining whether something is inhuman or degrading, or amounts to torture. To give a rather obvious example, forcing a profoundly religious person to burn a sacred text is quite distinct from forcing an atheist to do the same. Relating the determination of whether something amounts to ill-treatment to relevant features of what the Court calls the ‘nature and context’ of the treatment upholds, rather than negates, the right’s absolute character.
CH: Your framework begins with what you call the “absoluteness starting point”, and it identifies absolute rights as requiring “no exceptions, no derogations, and the unconditional protection of all individuals within ECHR States’ jurisdiction”. This means, among other things, that the protection of Article 3 is not contingent on an individual’s conduct. Still, individual conduct can play a role in determining whether Article 3 is violated. For example, penal sanctions are applied based on conduct, and coercive action, as well as uses of force, can be justified under the right circumstances. Against this background, could you give us an outline of the justificatory reasoning that the Court is willing to accept for the purposes of Article 3, and whether there are reasons to be critical of its existing approach?
NM: Your question relates to one of the thorniest ‘puzzles’ I have come across in trying to make sense of the absolute character of Article 3 ECHR. This concerns the ECtHR’s acceptance that a degree of force, intrusion upon one’s body or infliction of suffering may be justified on certain grounds and thereby not contrary to Article 3 ECHR. Areas in which the Court uses justificatory reasoning to delimit Article 3 ECHR include the imposition of sentences of imprisonment and particular carceral regimes, the performance of body searches, the use of force by State agents in contexts such as the policing of demonstrations or the conduct of arrests, and non-consensual medical interventions.
One of the key arguments made in the book is that the ‘threshold’ (or ‘minimum level’) of severity (as the ECtHR calls it) that delimits Article 3 relates to the gravity of the treatment and not just the degree of suffering experienced by the person subjected to it. As you point out in your generous and insightful review of the book, a shift in focus ‘from rights to wrongs…is significant because it helps to clarify the nature of the obligations at hand and allows for a reassessment of existing approaches to the interpretation of Article 3’. The focus on the ‘wrongs themselves’ (building on Waldron’s reference to the ‘words themselves’) illuminates that the right not to be subjected to torture or inhuman or degrading treatment or punishment does not absolutely prohibit using force or causing suffering per se. The wrongs at issue are more complex than that, and the appropriateness or not of justificatory reasoning depends on whether that reasoning is relevant in distinguishing treatment that is inhuman or degrading in character from treatment that is not.
I analyse and evaluate the ECtHR’s reasoning in this light. For example, I outline how certain justificatory reasoning can distinguish uses of force that are (potentially) human dignity-respecting from those that are not, with particular attention to the Court’s principle that ‘in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3’ (Bouyid v Belgium, para 88). Equally, I reflect critically on the extent of suffering the Court is prepared to accept as a ‘given’ in the lawful imposition of a sentence of imprisonment, and what it deems to go beyond the ‘suffering inherent in detention’ (eg Kafkaris v Cyprus, para 96) and reach the Article 3 ‘threshold’. In doing so, I contemplate whether the ECtHR may be forced to confront and even radically rethink its default acceptance of (the pains of) imprisonment.
I cannot do justice here to the many issues of concern arising in the Court’s use of justificatory reasoning to delimit Article 3, but I would say that it is ripe for further critical engagement, for which I hope the book provides something of a springboard.
CH: You outline the Court’s criteria for identifying conduct that merits the ‘special stigma’ that comes with calling something torture, as opposed to inhuman or degrading treatment or punishment. Why does the distinction between torture and other ill-treatment matter, and how should we evaluate the Court’s current approach here, including its willingness to respond to discriminatory motives and dynamics of othering?
NM: Torture lies at the apex of wrongfulness within what I think the ECtHR conceives of as a ‘spectrum’ of absolutely proscribed ill-treatment. To me, the notion of ‘special stigma’ chiefly reflects the even stronger condemnation attached to a finding of torture than to a finding of inhuman or degrading treatment or punishment, notwithstanding that all these types of ill-treatment are conclusively unlawful (Michelle Farrell has, however, recently written a rich critique on the idea of ‘special stigma’). A finding of torture can also have other more concrete ramifications, not least because it is seen as necessarily triggering duties of criminalisation, prosecution and punishment (while not all instances of inhuman or degrading treatment or punishment will or should trigger such duties).
As I argue in the book, with help from the insights of many who have considered the phenomenon and the wrong of torture, what is at the heart of torture is a form of radical othering. Torture paradigmatically denies the deontic, relational claim to (mutual) respect and concern that human dignity makes. I therefore call for a renewed focus on the discriminatory motivation or orientation that may characterise instances of ill-treatment with intent to cause profound suffering, and a greater readiness to recognise such abuse as torture.
CH: I particularly enjoyed your argument that “the appropriate approach in circumstances of uncertainty is to err on the side of caution and thus ‘risk’ surpassing the protection required rather than crossing what is meant to be a red line”. At the risk of oversimplification, this means that finding too many violations of Article 3 is the lesser evil when compared with the possibility of recognizing too few. Could we make this same argument about any right in the Convention?
NM: Thank you for raising this. I felt the need to argue for erring on the side of caution because I identified a tendency by the ECtHR to do the opposite in the non-refoulement context in particular. One of the issues with the ECtHR’s interpretation of Article 3 ECHR is that it often relies on an outline of salient facts followed by an all-(relevant-)things-considered conclusion as to whether the Article 3 severity ‘threshold’ has been reached and/or whether the ill-treatment amounts to torture. This becomes particularly problematic where a prospective assessment is needed to determine whether something that has yet to occur, but is likely to occur (in the sense that there are substantial grounds to believe there is a ‘real risk’ of it occurring), amounts to torture or to inhuman or degrading treatment or punishment. Unfortunately, the ECtHR has sometimes taken the lack of certainty in this context as militating against finding a violation of Article 3. This amounts to erring not on the side of caution but on the side of abandoning persons to the prospect of grave ill-treatment, and I consider that it establishes a margin of error that enables the de facto displacement of protection in some cases. I advocate strongly against this.
I would, however, clarify that I do not consider myself either a maximalist or a minimalist in my approach to the interpretation of human rights. I believe there are better and worse interpretations of human rights, and that we should strive for the best interpretation of any given human right irrespective of whether this gives the right a wide or narrow substantive scope. I am, however, opposed to adopting a minimalist approach for minimalism’s sake, or for vague pragmatic reasons that boil down to concern about the discontent that may arise from a more (so-called) ‘expansive’ approach.
With that said, on the question of erring on the side of what one might call rights ‘overreach’, I do have to strike a note of caution, with which you will be familiar given your contribution to Coercive Human Rights (Hart, 2020), and which Jens also raises in the discussion of their book. The ECtHR has interpreted positive obligations under key rights primarily as obligations to mobilise the penal apparatus of the State: to criminalise, police, prosecute and punish. It is not a good thing, in my view, to err on the side of more penality. Positive obligations can and should be reimagined in more protective and redistributive, rather than coercive, terms.
CH: Before we wrap up, and with my thanks for this highly enjoyable exchange, I would like to cast our gaze into the future to some extent. You have recently been working on the role of Article 3 in the context of climate change. This is something that interests me as well, and I’m wondering how these types of cases can be integrated in the Court’s Article 3 case-law, and how the lens of absolute rights affects our understanding of the phenomenon of climate change.
NM: Responding to the ECtHR’s invocation of Article 3 ECHR in the climate change case of Agostinho, you asked ‘what’s ill-treatment got to do with it?’ – and I think you and I agree that the callous subjection of younger and future generations to (a future of) untold suffering has a lot to do with the right against ill-treatment, which we know extends far beyond a prohibition on interrogational torture and brutal physical violence. There is ample scope for the ECtHR to employ principled reasoning to conclude that Article 3 is implicated in the context of State (in)action on climate change. In an area where State action seems infinitely negotiable in spite of the gravity of what is at stake, the application of an absolute right could be transformative.
CH: And the ‘joker’ question: what’s something about the book that you feel is important but might be missed in people’s reading of it?
NM: One of the key but perhaps understated themes in the book is a tension ‘between the certain and the right’. Given the non-displaceable nature of the right enshrined in Article 3 ECHR, the specification of the red line(s) that it sets demands a degree of certainty and capacity to guide. At the same time, because of the importance of getting it right and doing right by the persons facing such grave abuse, those interpreting and applying the right – culminating in the ECtHR – must reject complacency, attend to diverse and especially minoritised insights and lived experiences, and be prepared to recognise the ‘egregious in the everyday’ (as Rhonda Copelon put it) and in entrenched aspects of the status quo. And I think that both critique and hope, as you put in the discussion of your book, are vital in this endeavour.
* * *
A panel discussion on the topic of “Minimalism vs. maximalism? Challenges and future directions in the interpretation of the European Convention on Human Rights” will take place on Wednesday, 8 June 2022 at 4 pm CET. It will feature Eva Brems (chair), Corina Heri, Natasa Mavronicola and Jens T. Theilen and pick up on themes covered in this symposium. You can register for the event here.