Friday 21 October 2016

The Role of Human Dignity in ECHR Case-Law

Last week, I delivered a keynote speech at a multidisciplinary conference organised by the Ethics Institute here at Utrecht University. The conference was the closing event of a large project on human dignity as the foundation of human rights. My lecture went into the concept of "human dignity" in European Convention case-law. Please find the keynote text below, for those of you interested in the issue:

Dignified Law: The Role of Human Dignity in European Convention Case-Law
Antoine Buyse, keynote delivered on 11 October 2016, at Utrecht University

Very recently, the European Court of Human Rights in Strasbourg issued its judgment in the case of Yaroslav Belousov v. Russia. Yaroslav, a student of political science, had been one of many protesters against the fraudulent elections in 2012. He was arrested, so the judgment tells us, after chanting slogans and throwing a small yellow object towards the police. Amongst others, Mr Belousov complained about the ways in which he had been treated: during his trial he had been held in a glass cabin (transparency may not generally popular in Russia, but in this context it is) and a metal cage. He received very little medical treatment for his bad eye-sight and asthma. And he was many times moved from prison to the courtroom and vice versa in very cramped conditions in vans, during many hours. In the case and in line with its case-law, the Court held that “The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured” (para. 92).  

In the judgment, however, it only found that the constant moving of Mr Belousov in difficult and cramped constituted a violation of his human rights. As to the other issues, it held the following: “Nevertheless, taking into account the cumulative effect of those conditions, the Court does not consider that the conditions of the applicant’s detention, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading” (para. 98). The conditions were below a number of European standards, but not as bad as to constitute a human rights violation under Article 3 of the Convention.

So what rule does “human dignity” play here? Is the reference to it a standard incantation? A pedagogical warning to the state concerned ? Or does it mean more?

This case, to which I will return at the end my presentation, is an example of the surfacing of “human dignity”  in the practice of a human rights court. In my contribution tot his conference, I will focus on legal practice, on how “human dignity” features in the case-law of the European Court of Human Rights.

As professor Christopher McCrudden* has traced them, the uses of “human dignity” in law have multiplied, especially after World War II. Like a quickly spreading epidemic of words, human dignity was explicitly included in all of the major human rights declarations and treaties. All treaties? No, not entirely. One human rights treaty among the many created in the second half of the 20th century, was completely silent about human dignity: the European Convention on Human Rights and Fundamental Freedoms – often abbreviated to ECHR – adopted by Western European democracies in 1950. 

One will look in vain in the text of the Convention for the words “dignity” or “human dignity.” The preamble of the Treaty speaks of justice, peace, democracy and the rule of law. But not of dignity. All the more surprising maybe, as the Convention explicitly builds on the Universal Declaration of Human Rights. The Convention was envisaged as the first practical step in the enforcement of a selected number of rights of the Universal Declaration – often formulated in very similar ways. But where the Declaration refers several times to human dignity (“all human beings are born free and equal in dignity and rights” says its first Article), the European Convention’s drafters did not opt for grand statements of that kind.

So what explains this absence? Certainly not different philosophies about human rights than those of the drafters of the Universal Declaration – they partly knew each other, largely lived in the same socio-cultural context and equally perceived human rights protection as a necessary reaction to the barbarities of the Second World War. A former president of the European Court, Jean-Paul Costa, has suggested that the reason, rather, may be found in the intention to create a pragmatic, practice-oriented instrument.** To make sure that the ideals of the Universal Declaration would not be lost in space, or, more specifically, in the trenches of the Cold War, the European drafters created practical instruments such as a human rights court and binding obligations for states by way of a treaty. Pragmatics rather than dreams.

In any event, among practitioners and academics alike, this European Convention is widely seen as both the most successful, effective, and most-developed system of human rights protection in the world. Virtually all other treaties, which are without exception seen as less effective, firmly ground themselves in human dignity and do so explicitly. One almost wonders whether there is a reverse causality between explicitly acknowledging human dignity and effectively protecting it. First appearances may deceive, however.

The first time “dignity” appears in the constantly extended treaties of the European Convention system is as late as 2002. In Protocol No. 13 on the abolition of the death penalty, the text states that such abolition is essential for the full recognition of the inherent dignity of all human beings. This late mention of dignity in the European Convention treaty texts is telling in several ways. 

First off, apparently dignity had by 2002 entered the normal vocabulary of the European Convention system. Secondly, it is used here to support a distinctly regional, European normative achievement: the abolition of the death penalty. Obviously, the death penalty still exists in many countries across the globe and this new agreement is therefore reflective of a new-found European rather than a universal consensus. A specific European content to what human dignity means. As well as an idea of progress: the text of the Protocol talks about the “full recognition” of dignity, implying that the existence of the death penalty can no longer be co-existent with the idea of dignity. How different it was in the original text of the Convention, in 1950, when the death penalty was included as a formal exception to the right to life. That exception is still in the Convention, but has by now largely become a dead letter.

So is indeed the year 2002 the first time European human rights discovered human dignity? No, not at all. Some European treaties, such as the Convention’s sister treaty, the European Social Charter, do include dignity language and even a specific right to dignity at work. And also within the European Convention on Human Rights system, human dignity does play a role: not in the treaty text, but in the practice of the Court’s jurisprudence, its case-law. To date (a search I did in the case-law database halfway October 2016) 876 cases include a reference to human dignity. Sometimes because a victim of a human rights violation mentions or invokes it, but very often because the European Court itself uses it. In a case about transsexuals (Christine Goodwin v the UK) the Court even found “human dignity and human freedom” to be the “very essence”  of the Convention (para. 90). Now, these cases may be a small number on the total of tens of thousands of cases in the Court’s history, they are not at all “une quantité négligeable”. Thus, we can maybe compare the silence of the treaty about human dignity with Fawlty Towers’ “don’t mention the war”: by first being silent about it, it eventually surfaces all the time.

Before going into the appearances of dignity in this case-law itself, it may be useful to distinguish three roles that human rights may play: as norms, as tools, and as discourse. 

The first role will be most familiar to both law and ethics: human rights are norms. Norms that protect certain freedoms and entitlements of people and bind state behavior. These norms are open in the sense of not completely pinning down what states can or cannot do: in almost all cases, a measure of leeway is left to states as to practical implementation. Guidance, but no straight-jacket.

The second role of human rights is that they are tools. Tools for alleged victims of injustice to bring forward claims. In a very direct sense, in that rights such as free speech or the freedom assembly enable people to voice their views. But also because human rights protection systems offer avenues, both nationally and internationally to lodge these claims: the possibility to have a court look at your complaint and issue a binding decision on it, which the state then has to implement.

Finally, a third role for human rights is that they are discourse. They are a way of talking about or framing issues in society. Is a large degree of homelessness an issue of poverty, of social injustice, or also a violation of human rights? An increasing amount of issues has slowly but surely come to be talked about as challenges of human rights, leading some to talk of human rights inflation or even of the colonization by human rights of wider societal issues. What can be said, in any event, is that framing one’s claim as human rights gives more weight to that claim, connecting it to fundamental, legally recognised basic needs and interests of people.

Let me now turn to the actual usage of “human dignity” in the case-law of the Court itself. I will argue that the ways in which dignity appears in this case-law, even in a relatively tight-knit, coherent system such as the European human rights one, is quite differentiated. This differentiated usage of dignity is can be discerned in three dimensions:

(1) the specific rights to which it is mostly applied
(2) the way it differentiates according to the specific facts and context of a case
(3) the role it plays in the legal argument

As to the first, it is quite visible that the Court refers to dignity by far the most when it concerns so-called core rights as defined by the Court: Articles 2, 3, and 4 of the Convention – these are respectively the right to life, the prohibition of torture and inhuman and degrading treatment, and finally the prohibition of slavery and servitude. Article 3 specifically is very often applied in the context of human dignity reasoning, from the acceptability of prison conditions to certain forms of punishment. The three roles that human rights can take may help to explain this. Considering human rights as norms, many of these core rights are considered to be absolute and thus not warranting exceptions or tinkering by states (although the right to life has some exceptions). If one looks at human rights as tools, these core rights are seen as essential means for the exercise of other human rights. In addition, applicants before the European Court may invoke the human dignity argument to support their claim and give it more moral or even legal weight: human dignity is then used discursively, as a way to frame a claim. 

An example is the case of Mr Jalloh. He was arrested in Germany for possession of hard drugs. Upon his arrest, he quickly swallowed a little plastic bubble with the cocaine and denied the offense. As he refused to take a pill that would make him vomit so that the essential proof of his offense could be obtained, he was forcibly administered a special substance into his stomach through a tube in his nose which made him throw up the drugs. His made him severely ill for several days. Before the European Court he argued that the forcible insertion of the substance “had been aimed at intimidating and debasing him in disregard of his human dignity. The manner in which he had been forced to undergo a life‑threatening medical intervention had been violent, agonising and humiliating. He had been degraded to the point of having to vomit while being observed by several police officers. Being in police custody, he had found himself in a particularly vulnerable position,” so he argued. The Court agreed and held that the “authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. (…) The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him (para. 82).

So, human dignity mostly features in case-law about core rights. The same Jalloh case shows, however, that – by connection – other rights may also be violated. The fact that the evidence used in his trial had been obtained through inhuman and degrading treatment also made his trial unfair – a violation of Article 6 of the European Convention.

The second dimension is the tailoring of dignity to context: whether a certain treatment offends human dignity is not a question of one-size-fits-all. Rather, the specifics of the case play an important role. This is especially visible in Article 3 again, the prohibition of torture and inhuman and degrading treatment. As a short explanation: this right is quite unique as the prohibition is absolute. There is no way for states to justify torture or inhuman treatment. Whereas for most other rights, a state can interfere with a right (e.g. fine you for severely offending your neighbour) but that does not automatically mean your freedom of expression is violated. Justifications are possible. For absolute prohibitions such as torture this is not the case. Therefore the defining questions are about the scope of the prohibition: what is torture and what not, what is degrading and what is not? Once something falls within the scope or definition it is absolutely forbidden. So how does the Court tailor the specific boundaries of the prohibition in practice? 

The clearest examples here are cases about treatment of people in detention. The Court has held many times that “in respect of a person deprived of his liberty, 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.” (e.g. Selmouni v. France, para. 99), So unnecessary force applied to detainees violates both human dignity and simultaneously the actual prohibition of Article 3. The tailoring, as indicated, has to do with context. For when is a treatment debasing? This, according to the Court, depends on a multitude of factors, including “the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.” (Ibid., para. 100) Here, the Court thus includes subjective criteria (effects on the person) and individual characteristics (age, health condition, sex etc.). The treatment (chaining someone to a chair for hours) may be the same, but whether it is a human rights violations may depends on whether the person is a healthy young man or an older pregnant women with chronic pains, for example. Dignity here is thus not a general notion, but one personified and subjectivised by the specific situation and traits of the person at stake. Here the use of human rights as a nuanced norm plays a key role.

Looking at the case-law, we can thus conclude that the use of “human dignity” is nuanced and diverse. It is probably best to speak of what I would call “differentiated dignity”: the invocation and function of human dignity in the jurisprudence differs according to the context. 

Finally, the third dimension: the role “human dignity” plays in the legal argument. First, when one looks at human rights as a norm, dignity does not have a very specific content. As Chris McCrudden has argued, there is no clear and far-reaching agreement on a common substantive conception.* And we could add, wherever it does directly attach to a norm, such as the prohibition of degrading treatment, the concept of dignity does not add specific content to the issue at hand. Dignity does play a role as a tool and as discourse. As a tool, because it can be invoked on both sides of the Court room: an applicant can claim that her or his dignity was violated by the state (as in the detention cases), but the state in turn can also bring in the dignity argument, for example when it interfered with someone’s hate speech in order to protect the dignity of other groups in society. 

Dignity is also a tool of interpretation for the Court itself: it may help to sketch the wider context of the purpose of the European Convention. In international law the object and purpose of a treaty always matter to interpret specific provisions in a treaty. Once the Court had identified human dignity as one of the Convention’s underlying purposes, it could – in theory – invoke it as a guiding principle. However, practice shows that in this sense dignity offers very little decisive weight in legal argument. It may help to rhetorically support that in the balancing of interests one side should weigh in more heavily as human dignity is involved, but this is not often the key argument. So normatively, and I am not the first to argue this, the role of “dignity” is minor in the case-law. 

This leaves us with the usage of dignity in human rights as a form of discourse. It may serve rhetorical purposes that go beyond the specific human rights norm as such. One way in which this can be done, is what McCrudden* has called the institutional use of dignity: dignity talk can help to balance rights and other interests (as mentioned), dignity can be a discursive way to connect to international standards, and finally, dignity can be an argumentative tool to support the reading of new sub-norms in an existing norm (corporal punishment of children may thus be brought under the prohibition of degrading treatment by modern-day understandings, even if the original drafters of the Convention would not have imagined it). To these usages, let me add that – discursively -  “human dignity” may be a rhetorical linchpin between societal understandings of what is humane and what carries moral stigma on the one hand and the hard black-letter approach of law on the other. In the particular European context, the invocation of dignity by the Court also serves another discursive purpose: it re-connects the exceptionally silence of the European Convention on the issue of dignity, to the broader galaxy of human rights declarations and treaties in which dignity so prominently features (see also Costa on this **).

Thus, as I have hoped to show, dignity – like human rights more generally – can play a role in the application of human rights as norms, tools or discourse. Its very flexibility – or emptiness as some would say – on the normative side does not pre-empt its meaning as a tool or as a form of discourse. 

To conclude this excursion into the practice of the European Court, let me return to the Russian student, whose case was decided last week. What role did “human dignity” play in his case or, to be more precise, in the judgment of the European Court of Human Rights? As stated at the beginning, the Court held that detention conditions should be compatible with respect for human dignity. By way of explanation it added that "the manner and method of the execution of the measure do not subject him [the detainee] to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured" (para. 92).

Two things are notable here: (1) apparently dignity is a kind of threshold which is not automatically violated because someone is detained in the first place (the unavoidable level of inherent suffering) and (2) this threshold is not absolute or absolutely the same in all circumstances: the goals of dignity, health and well-being need to be assessed “given the practical demands of imprisonment.”  A certain leeway is thus given and the Court in effect balances the ideal and the possible in the grey zone between clearly inhuman or degrading treatment and permissible treatment. The prohibition of torture, degrading and inhuman treatment is absolute, but its precise boundaries may shift from case to case. 

Again, an example of pragmatics in the European human rights approach? What is notable, in any event, is that the invocation of dignity here seems to be more a reminder of what is at stake rather than a decisive trump card as such. However, just like the framing of human rights from a discursive point of view strengthens a claim to justice, a fortiori within human rights framing an issue as an affront to human dignity reinforces that even more. Where human rights is a rhetorical hammer, dignity may be the proverbial thunderbolt and lightning.

And this brings us back to former Court President Jean Paul Costa, who also emphasized this. His explanation is that the Court is not only deciding specific cases (in which dignity may not be the decisive tool) but also has a pedagogical role and in using dignity explicitly sends a signal to states on the importance of what is at stake.** Be that as it may, the uses of dignity in the Court’s case-law are still not as transparent as the glass cabin in which the Russian student was held.

* Christopher McCrudden, 'Human Dignity and Judicial Interpretation of Human Rights', The European Journal of International Law, vol. 19, no. 4 (2008) pp. 655-724.
** Jean-Paul Costa, 'Human Dignity in the Jurisprudence of the European Court of Human Rights', in: Christopher McCrudden (ed.), Understanding Human Dignity - Proceedings of the British Academy, vol. 192 (2013) pp. 393-402.