Case Watch: Defining “Degrading Treatment” at the European Court of Human Rights

In two recent cases heard before the European Court of Human Rights (ECHR), the court had the chance to address one key question in particular: for a person deprived of their liberty, what amounts to inhuman or degrading treatment? As the constant stream of cases brought before the European Court alleging ill-treatment in detention will attest, this area of human rights law continues to be highly relevant.

Article 3 of the European Convention on Human Rights says that “no one should be subjected to torture or to inhuman or degrading treatment or punishment.” While the court concedes there is a threshold of severity to be met, the fact that a person is held in control by state agents, for example in detention, will impact their decision. As a rule, ill-treatment during detention is subject to a strict threshold, due to a number of factors—including the vulnerability of the person, as well as the duty of care owed by the authorities towards persons held in their care.

The first of the court’s recent cases on this issue, Svinarenko and Slyadnev v. Russia, illustrated what might be seen as an easy case for the court. In this case, the applicants were held in metal cages during their trial hearings, flanked by armed guards. Though charged with violent crimes, no evidence was put forward suggesting the applicants would act violently during the trial, nor did the trial court explain this treatment.

In these circumstances, the ECHR found the treatment to be humiliating and degrading, and that it could not be justified on grounds of security. The lack of justification, coupled with a decrease in use of cages during trials in other states, as well as having decided similar cases before, made this case relatively easy. The court did not go as far as to say keeping remand prisoners in cages during trial is always a violation of article 3, however, raising the unanswered question as to when exactly this might be justified.

The more recent case of Bouyid v. Belgium proved more difficult for the court to decide. The case was ultimately referred to the Grand Chamber of the European Court of Human Rights, and heard in October 2014. This decision is currently pending.

The case concerns two brothers who were brought in for questioning by the police on separate occasions. Both claimed that they were slapped across the face by the officers interviewing them.

In both cases, the government replied that the applicants had been rude and uncooperative during the interviews, thus provoking a slap. The brothers lived with their family next to the police station, and the relations between the police and the family were known to be tense. The family claims the police had been continuously harassing them ever since an altercation between a police officer and their brother.

The chamber judgment did not find a violation of article 3 in this case, concluding that, although the police may have acted unethically and unprofessionally, a single isolated slap—not intended to extract a confession—could not be regarded as serious enough to violate article 3 of the ECHR. In the court’s view, the tense relations between the police and the family explained the police’s exasperation with the brothers; the police conduct, though unacceptable, was unlikely to make the brothers feel the level of humiliation or debasement to constitute a violation of article 3.

However, the court focused mainly on the factors explaining why the police would act as they did—the tense relation between the police and the family—without considering how this background might have made the applicants feel. If the tense relationship between the police and applicants increased the exasperation of the police, might it not also have intensified the feeling of humiliation felt by the brothers?

In contrast, in Ribitsch v. Austria, the same court held that when a person is deprived of their liberty, any recourse to physical force that is not strictly necessary amounts to a violation of article 3 of the ECHR. REDRESS, a human rights organization assisting torture victims, intervened in Bouyid, setting out the current legal standards on the use of force in detention. These legal standards set out a stricter test than what was applied by the chamber in Bouyid, an issue the Grand Chamber judgment will hopefully address.

The above examples illustrate the range of treatment the court is asked to assess under article 3 of the ECHR. Courts generally hesitate to make rigid definitions of torture, presumably to enable the definition to evolve and encompass new or unexpected scenarios. While this is undoubtedly a useful approach, the European court has clearly conceded that certain thresholds will always apply. Therefore, a clarification of these thresholds would be useful, not only in bringing clarity to the courts own jurisprudence, but in determining how people can expect to be treated when being held in care of the authorities.

UPDATE: On September 28, 2015, the Grand Chamber overruled the Chamber judgment in Bouyid v. Belgium. The Grand Chamber found a violation of article 3 ECHR on the substantive aspect of the case, ruling by a clear 14 votes to 3 that the applicants in Bouyid had been the victims of degrading treatment at the hands of the Belgian police.