It is my pleasure to introduce a guest commentary on the Grand Chamber judgment of Bouyid v Belgium (Appl.no. 23380/09 ) of last September. The commentary was written by a colleague here at Utrecht University, dr Stephen Riley, who is a postdoctoral researcher at the Ethics Institute in a project on human dignity and human rights. Here is his commentary:
Case of
Bouyid v Belgium (GC, 28 September 2015)
Stephen Riley
By
a majority, the Grand Chamber found a violation of Article 3 following the
slapping of two brothers held in police custody. The interest of the case lies
in its extending the scope of ‘degradation’ but also in the problematic use of
human dignity in the decision.
There
was a five-year history of conflict between members of the Bouyid family and
the staff of a local police station. The applicants, brothers, had at separate
times had altercations with police officers, been taken into custody, and been slapped
by an officer after provocative or uncooperative behaviour. That the brothers
had been slapped was corroborated by medical evidence. Given the special burden
of proof applicable in detention cases (it is for the State authorities to cast
doubt on the applicants’ account) the Grand Chamber accepted that a claim of
mistreatment was justified and that the question of a Convention violation
could be addressed.
The
question for the Court was evidence of ‘degradation’. This requires injury or
suffering of a minimum severity (para. 86). Analysis offered by a third-party argued
that ‘severity’ is partially relative to circumstances, and situations of
detention and vulnerability mean that acts like a slap to the face, which in
other circumstances might be at the lower level of criminality, take on greater
significance and gain sufficient ‘severity’ (para. 73). The Court itself asserted
that circumstances can be such that an otherwise minor form of mistreatment
becomes a violation of human dignity and can thereby be considered degrading (para.
87). In conjunction with the
remaining evidence, the Court found “that the applicants’ dignity was
undermined and that there has therefore been a violation of Article 3 of the
Convention” (para. 102).
In
order to understand how human dignity was at issue, I will briefly reconstruct
the judgment and dissent. The majority in the judgment held that, given certain
background conditions (detention and vulnerability), what would otherwise only
be a criminal act becomes harm to human
dignity; that kind of harm, inflicted by an agent of the State, is
necessarily a violation of Article 3 unless it is proven that the victim’s own
actions justified the harm. The dissenting opinion, denying an Article 3
violation, asserted that given certain background conditions (detention and vulnerability)
and a certain level of severity to the
act itself what would otherwise
only be a criminal act becomes harm to human dignity; that kind of harm,
inflicted by an agent of the State, is necessarily a violation of Article 3
unless it is proven that the victim’s own actions justified the harm. That is,
while the majority lists certain kinds of physical or mental ill-treatment that
would be considered severe, they also include the bare idea of “showing
a lack of respect for or diminishing [a detainee’s] human dignity” (para. 87)
as a distinctive and supplemental instance of ‘severity ‘. In contrast, the
dissenters claim that “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” (dissent para 5).
With
respect to case as a contribution to Article 3 jurisprudence, the dissent
raises important concerns. While not condoning mistreatment by State officials it
asserts that it “is not for the Court to impose general rules of conduct on
law-enforcement officers […]” (dissent para. 6) and it pointedly questions
whether the threat of a single slap by a police officer would be enough to
justify a non-refoulement decision
(footnote 2). The thrust of the dissent however hinges on the significance and
function of human dignity and the redundancy of the majority judgment’s uses of
human dignity (dissent para. 4). Why should human dignity be considered redundant?
What
engaged Article 3 was ‘harm to human dignity’ understood as unjustified harm,
in a situation of detention, amounting to degradation. What, then, justifies the
application of this standard? The majority judgment provides a catalogue of human
dignity uses in international law (para. 45f). However, their function is not
entirely clear. They act partly as prelude to discussion of more directly applicable
instruments on torture and police procedure. They also help to justify more
dramatic claims about the link between Article 3, human dignity, and the
foundations of ‘civilisation’ (para. 81). Crucially, the Court implies that
there is a special class of harm, or a
special conception of wrong, implied by human dignity which is engaged whenever
an individual is vulnerable (relative to the State) and harmed (para. 90). This
is problematic and the basis of the charge of redundancy. How would such a class
of harm be determined separately from our normal understanding of Article 3? After
all, there may be human dignity harms that are not Article 3 violations but
they would not be the concern of the Court unless they were violations of other
Convention rights (in which case the relevance of ‘vulnerability’ and ‘harm’
would presumably be very different). Conversely, if harm to human dignity
arises whenever there is detention and harm, then the scope of Article 3
protections seems to become unworkably wide.
From
this we can see in outline the problematic status of human dignity within the
Court’s jurisprudence as a whole. Human dignity is often invoked as a
foundational principle for human rights law, but denoting a special class of
harm does not obviously fulfil this kind of foundational role. Put the other
way around, cataloguing ways in which human dignity is foundational fails to
justify a special link with Article 3 or a special class of harms; the link
between human dignity and a special kind of degradation cannot be made from the
preambular remarks of international human rights instruments alone. The growing
body of Article 3 jurisprudence that does
treat it as a special kind of prohibitive principle is increasingly problematic
if it entails that any kind of mistreatment in detention is an Article 3
violation. There is, in essence, a disconnection between the foundational uses
of human dignity in international law and the harm-centred jurisprudence of
Article 3, a disconnection that only gets wider after a decision like Bouyid.
In
sum, this judgment hinges upon a set of related claims that continue to inform
and distort Article 3 jurisprudence. First, general international and regional
materials on human dignity are broadly relevant to Article 3 cases, but they seem
far less relevant than specific instruments on detention and mistreatment. Second,
human dignity might be seen as a general principle counselling particular care
with regards to those in custody, but it is not clear that human dignity
provides for a specific kind of injury.
Finally, Article 3 and human dignity together are treated cornerstones of
‘civilisation’ but such grand claims seem incongruous with the severity of the
mistreatment found in a case like this.
