April 02, 2026
By Dr. Elaine Webster
***
Strasbourg Observers is currently hosting a blog symposium on Article 3 of the ECHR and the forthcoming Chișinău Declaration, examining the ECtHR’s approach in migration cases. The symposium was convened by Natasa Mavronicola. It also features contributions from Mary Rogan, Rishika Sahgal, Eva Sevrin, and Elaine Webster.
***
Recent questioning of the scope of inhuman and degrading treatment or punishment in Article 3 of the European Convention on Human Rights (‘ECHR’) by a number of States Parties (see overview by Natasa Mavronicola in the introduction to this blog series) in essence asserts that its interpretation should not go too far. Specifically, these states assert that interpretation of inhuman and degrading treatment or punishment should not stretch so far that it impedes their freedom to remove foreign nationals from their territories. The Council of Europe’s Steering Committee for Human Rights has set out issues relating to Article 3 on which “guidance” from the European Court of Human Rights (‘the ECtHR’; ‘the Court’) “may be needed”. This guidance, although framed as unique to the context of migration decision-making, at least in part pertains to more general questions about the line between what is ‘acceptable’ versus ‘unacceptable’ suffering, and about ‘in principle’ determinations of inhuman and/or degrading treatment.
These are not new questions. For decades, it seems, there has been a question (from Respondent States in applications to the ECtHR, but also, as I have previously emphasised here for example, a range of other stakeholders) about the ‘proper’ scope of these ‘other’ forms of treatment/punishment which occupy the same linguistic landscape as ‘torture’. It has been almost 50 years since the ECtHR first found a violation of Article 3 ECHR specifically on the basis of ‘inhuman and degrading’ treatment in Ireland v UK, and on the basis of ‘degrading’ punishment in Tyrer v UK, both in 1978. In Ireland, it was the scope of ‘torture’ that was in issue, with the ECtHR finding inhuman and degrading treatment (for example, see this post). In Tyrer, it was ‘degradation’ that was in issue; this judgment and its sole separate opinion by then-UK Judge Sir Gerald Fitzmaurice illustrates the persistent nature of doubt surrounding the threshold of Article 3.
Arguably it is not incidental that the questioning which has been evident at least since the Tyrer case concerned ‘degrading’ treatment and punishment. This element of the right is often the target of doubt about the scope of Article 3 ECHR. I have argued that torture, inhuman or degrading treatment or punishment can and should be understood to share a common conceptual core, and that degrading treatment/punishment is not best understood as peripheral or the least ‘severe’ of the prohibited forms of treatment/punishment (as I have written about here in Chapters 7 and 8). However, those who question the ECtHR’s interpretation of degrading treatment/punishment appear to treat ‘degradation’ as being on the fringes of what they perceive to be the ‘real’ core of the right. This is problematic because it opens a door to questions about whether the Court’s interpretation and application of this element of this right has ‘gone too far’, i.e. is prohibiting things, they may claim, that should not be seen to violate Article 3.
In this post I re-examine the Tyrer judgment and Judge Fitzmaurice’s separate opinion. I suggest that there are parallels with the current context and then use this to explore what it means – still today – to claim that the interpretation of ‘degrading’ treatment or punishment has ‘gone too far’.
Anthony M. Tyrer was a 15-year-old boy who had been sentenced to birching as corporal punishment by a juvenile court on the Isle of Man. Birching was the striking of the body using a number of thin branches of the birch tree, collected by police officers themselves and tied together at the base (see this interview with former police constable). The prominent campaigner against birching, Angela Kneale, recorded more than 100 instances of this form of judicial corporal punishment on the island over twenty years up until 1972 in her book Against Birching, p. 85-92). Birching was used on young people between the ages of 14 and 17 (Tyrer judgment, para. 11); a practice that by the 1970s was unlawful in the UK (Tyrer judgment, para. 14).
When the case was heard before the ECtHR, the Court heard how the applicant was instructed to “take down his trousers and underpants and bend over a table”, arms held by two adult men and birched by a third, his father also having to be restrained by police when witnessing the punishment (Tyrer judgment, para. 10). A former police officer who used the birch on the Isle of Man recounted the pervasive belief at the time that the young people’s own conduct meant that the punishment was deserved and that it was an effective deterrent to undesirable behaviour. It was recounted that despite an adult man striking the birch on the young person as powerfully as possible from above shoulder height, it did not seem to “hurt them very much” (see interview, p. 4-6, 8).
The Tyrer case was defended by the Attorney-General for the Isle of Man. The UK Government was not in favour of retaining judicial corporal punishment but was the ECHR State Party representing the Isle of Man as a Crown Dependency (discussion can be found in Hilliard and Duranti’s article here). Before the European Commission on Human Rights, which found in favour of the applicant, the UK submitted that some forms of corporal punishment were not prohibited by Article 3; only those of a more extreme “degree” judged by reference to “such factors as the age, sex or type of offender and the community concerned”; that in determining what amounts of prohibited treatment there should be reasonable accommodation of the intended purpose of the punishment and consideration of the weight of public opinion; and the fact that safeguards had been put in place (Commission report, para. 23).
A likely response is that obviously no one believes any more that judicial systems should sanction, and public administration meticulously organise, the infliction of physical violence by officers of the state on young people and that the questions we face currently are different. But this ‘obviousness’ is only so because we no longer live in that moment. The core questions and perspectives of states leading the negative charge today are the same as they were half a century ago. ‘Should the foreseeable humiliation of birching be used on young people who have committed crimes?’ has become ‘should a state be responsible for subjecting a person with a different nationality to foreseeable humiliation?’ Similar questions applied to the non-refoulement duty are: Is the effect on individuals really that damaging? Shouldn’t the ‘type of offender and the community concerned’ be taken into account? Shouldn’t the ECtHR take into account the purpose of certain treatment/punishment or the view of public majorities? Shouldn’t safeguards negate the characterisation of treatment/punishment as inhuman or degrading? The precise circumstances of the Tyrer case may be outdated now, but the sentiment that surrounded it is not.
One of the issues noted by Judge Fitzmaurice is mirrored in today’s apparent concerns about the line between what is acceptable (or ‘normal’) and what is unacceptable suffering. He stressed that he did not believe judicial corporal punishment of a young person, as opposed to an adult, should be understood to amount to degradation (Tyrer judgment, para. 2, 12). He stated that it was “obvious” that all punishment that is coercive or deprives of liberty is ‘degrading’, and to be caught by the words in Article 3, then, some treatment/punishment must be understood as more degrading than ‘the norm’. (Tyrer judgment, para. 6) The core of Judge Fitzmaurice’s critique is mirrored in today’s apparent concerns about ‘in principle’ determinations of inhuman and/or degrading treatment. His view was that the majority had erroneously decided that judicial corporal punishment was ‘degrading’ full-stop; not only in this instance (Tyrer judgment, see, for example, para. 10). His question was, if a determination depends on all the circumstances of the case, how is it possible to state that some practices in all circumstances are degrading? Overall, he took issue with the logic of the Court’s stated reasoning.
Even if the friction he discussed is real, however, the same friction underpins Judge Fitzmaurice’s own reasoning. The baseline assumption that pervasive forms of treatment/punishment cannot be ‘degrading’ has an initial distorting effect on perceptions about the role of Article 3 (see blog series introduction). Judge Fitzmaurice favoured less of an ‘in principle’ determination, i.e. more relative assessment, yet at the same time believed that judicial corporal punishment of any young person should not – effectively, ‘in principle’ – be understood to amount to degrading punishment within Article 3.
Today, claims that the interpretation of degrading treatment/punishment may have ‘gone too far’, or that its meaning is ‘too broad’, may be framed in different ways but the same threads run throughout. Claims that not everything that ‘is’ degrading should, or realistically could ever, be caught by the prohibition of inhuman or degrading treatment or punishment, and the Court is ‘letting in’ treatment/punishment that is not sufficiently serious degradation. Claims that some experiences/treatment/punishment should not be considered degrading at all, i.e. some things are simply unfortunate or unpleasant.Although differently framed and motivated, ultimately these claims stem from the same underlying perceptions and mask unspoken assumptions about what is ‘acceptable/normal’, about what ‘is’ (i.e. about ‘facts’), and – crucially – about whose reading of those ‘facts’ counts. In order to unmask perceptions and assumptions, we need to inquire: says who, and on the basis of what exactly?
This serves to reveal that what one sees as normal is shaped by social experience and norms; that what one sees as a fact is shaped socially rather than being an objectively verifiable truth. Referring to points made by the majority, Judge Fitzmaurice said: “I do not believe in these subtleties.” (Tyrer judgment, para. 9). It may be seen as inconvenient for some, but it must be accepted that words like ‘degrading’ (and ‘inhuman’, etc) that characterise or qualify an experience always require a form of contextual interpretation. What is deemed to be acceptable/unacceptable, or always/never degrading, and so on, is part of the nature of interpreting text in light of social circumstances. In other words, when dealing not with ‘hard’ facts, but social facts, such “subtleties” are inherent in the nature of language and the exercise of (majority) judicial judgment.
Looking back at Tyrer v UK is a reminder that the kinds of questions being raised by certain state representatives today in the migration context are longstanding ones, and that textual interpretation in light of social facts is as inescapable as it always has been. Reasonable people may disagree on when something is inhuman or degrading and should be prohibited by law. That is why it is right that the ECtHR is accorded final authority to resolve such matters. Additional guidance from the ECtHR might be possible up to a point, but can only go so far.
It was Judge Fitzmaurice’s proper role, as a member of the Court with authority to interpret the ECHR, to make transparent his reasoning where this diverged from the majority. We can also accept that it is the proper role of political actors to engage in political declarations about the social context in which the ECHR is situated. But political claims that the interpretation of Article 3 has gone too far inherently undermine the authority of the ECtHR as final arbiter of the text’s interpretation.The outcome document encourages holding firm to recognising the Court’s authority, but this is difficult to reconcile with any political statement that passes judgment on the interpretation of the treaty.
In the introduction to this post, I stated that the desired guidance alluded to in the outcome document at least in part pertains to more general questions about the line between what is acceptable versus unacceptable suffering, and ‘in principle’ determinations of inhuman and/or degrading treatment. This is, perhaps, an optimistic reading. If the recent questioning is, for some political actors, less about the interpretative scope of Article 3 and instead more directly motivated by a belief that some people do not deserve the same protection against inhuman and/or degrading treatment as others, i.e. that there is a ‘hierarchy of people’ as Michael O’Flaherty has described it, that is a different problem. In that case, we – and by ‘we’ I do not mean only academic scholars, but democratically committed political actors, civil servants, civil society, and rights holders – also have to address this. In the 1970s, Angela Kneale wrote: “For many years I kept silent on the vexed subject of birching, although it was a burning concern of mine.” (Against Birching, p. 8) In the end, the decision of Kneale and others not to stay silent made a critical contribution to the protection of a fundamental human right.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
