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)
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.