This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 40

• Slapping by law-enforcement officers of individuals under their control amounts to degrading treatment

Slapping by law-enforcement officers of individuals under their control amounts to degrading treatment - Grand Chamber judgment - case of Bouyid v. Belgium - the slap which the applicants had received from police officers while under their control at a police station had undermined their dignity - violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights - The case concerned an allegation by two brothers, one of whom was a minor at the time, that two police officers had slapped them in the face while they were under the officers’ control at their family’s local police station in the district of Saint-Josse-ten-Noode (Brussels). The Court found in particular that the slapping had undermined their dignity. It also observed that the subsequent investigation had not been effective, that the investigating authorities had failed to devote the necessary attention to the applicants’ allegations and that the length of the investigation had been unreasonable. The Court reiterated that even in the most difficult circumstances, the Convention imposed an absolute prohibition on torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. In a democratic society ill-treatment was never an appropriate response to problems facing the authorities.

"104. A slap has a considerable impact on the person receiving it. A slap to the face affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses – sight, speech and hearing – which are used for communication with others. Indeed, the Court has already had occasion to note the role played by the face in social interaction (see S.A.S. v. France [GC], concerning the ban on wearing clothing intended to conceal the face in public places; no. 43835/11, §§ 122 and 141, ECHR 2014 (extracts)). It has also had regard to the specificity of that part of the body in the context of Article 3 of the Convention, holding that “particularly because of its location”, a blow to an individual’s head during his arrest, which had caused a swelling and a bruise of 2 cm on his forehead, was sufficiently serious to raise an issue under Article 3 (see Samüt Karabulut v. Turkey, no. 16999/04, §§ 41 and 58, 27 January 2009).

105. The Court reiterates that it may well suffice that the victim is humiliated in his own eyes for there to be degrading treatment within the meaning of Article 3 of the Convention (see paragraph 87 above). Indeed, it does not doubt that even one unpremeditated slap devoid of any serious or long-term effect on the person receiving it may be perceived as humiliating by that person.

106. That is particularly true when the slap is inflicted by law-enforcement officers on persons under their control, because it highlights the superiority and inferiority which by definition characterise the relationship between the former and the latter in such circumstances. The fact that the victims know that such an act is unlawful, constituting a breach of moral and professional ethics by those officers and – as the Chamber rightly emphasised in its judgment – also being unacceptable, may furthermore arouse in them a feeling of arbitrary treatment, injustice and powerlessness (for consideration of this kind of feeling in the context of Article 3 of the Convention, see, for example, Petyo Petkov v. Bulgaria, no. 32130/03, §§ 42 and 47, 7 January 2010).

107. Moreover, persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning – as in the applicants’ case – and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities are consequently under a duty to protect them (see paragraphs 83-84 above). In inflicting the humiliation of being slapped by one of their officers they are flouting this duty.

108. The fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct is irrelevant here. The Grand Chamber therefore departs from the Chamber’s approach on this point. As the Court has previously pointed out, even under the most difficult circumstances, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see paragraph 81 above). In a democratic society ill-treatment is never an appropriate response to problems facing the authorities. The police, specifically, must “not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances” (European Code of Police Ethics, § 36; see paragraph 51 above). Furthermore, Article 3 of the Convention establishes a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure their high level of competence in their professional conduct so that no one is subjected to torture or treatment that runs counter to that provision (see Davydov and Others, cited above, § 268).

109. Lastly, the Court notes, as a secondary consideration, that the first applicant was born on 22 August 1986 and was thus 17 years old on 8 December 2003. He was therefore a minor at the material time. Ill‑treatment is liable to have a greater impact – especially in psychological terms – on a minor (see, for example, Rivas, cited above, § 42; and Darraj v. France, no. 34588/07, § 44, 4 November 2010) than on an adult. More broadly, the Court has on numerous occasions stressed the vulnerability of minors in the context of Article 3 of the Convention. That was the case, for instance, in Okkalı v. Turkey (no. 52067/99, ECHR 2006‑XII (extracts)); Yazgül Yılmaz v. Turkey (no. 36369/06, 1 February 2011); and Iurcu v. the Republic of Moldova (no. 33759/10, 9 April 2013). The need to take account of the vulnerability of minors has also been clearly affirmed at the international level (see paragraphs 52-53 above).

110. The Court emphasises that it is vital for law-enforcement officers who are in contact with minors in the exercise of their duties to take due account of the vulnerability inherent in their young age (European Code of Police Ethics, § 44; see paragraph 51 above). Police behaviour towards minors may be incompatible with the requirements of Article 3 of the Convention simply because they are minors, whereas it might be deemed acceptable in the case of adults. Therefore, law-enforcement officers must show greater vigilance and self-control when dealing with minors.

111. In conclusion, the slap administered to each of the applicants by the police officers while they were under their control in the Saint-Josse-ten-Noode police station did not correspond to recourse to physical force that had been made strictly necessary by their conduct, and thus diminished their dignity.

112. Given that the applicants referred only to minor bodily injuries and did not demonstrate that they had undergone serious physical or mental suffering, the treatment in question cannot be described as inhuman or, a fortiori, torture. The Court therefore finds that the present case involved degrading treatment."

JOINT PARTLY DISSENTING OPINION OF JUDGES DE GAETANO, LEMMENS AND MAHONEY

"1. We agree with the majority’s finding of a violation of the procedural aspect of Article 3 of the Convention. To our regret, however, we are unable to join the majority in finding that there has also been a violation of the substantive aspect of that Article.

2. We wish to make clear at the outset that we endorse the general principles recapitulated by the majority (in paragraphs 81-90 of the judgment). We are likewise prepared to accept, as the majority did, that by applying the appropriate rules of evidence in the present case, it can be concluded that the applicants were each given a slap while under the control of the police (see paragraphs 91-98 of the judgment).[1]

The issue on which we are unable to concur with the majority is the characterisation under Article 3 of the treatment to which the applicants were subjected (see paragraphs 100-113 of the judgment).

3. We consider, like the Chamber (judgment of 21 November 2013, § 50) and the majority of the Grand Chamber (see paragraph 106 of the present judgment), that police officers who needlessly strike an individual under their control are committing a breach of professional ethics. Moreover, in a democratic society it is only to be expected that such an act should also constitute a tort and a criminal offence.

We wish to emphasise that a slap by a police officer is unacceptable (see, to similar effect, the Chamber judgment of 21 November 2013, § 51). Our dissenting opinion is therefore on no account to be construed as acknowledging any kind of immunity for police officers, or even as tolerating what happened at the Saint-Josse-ten-Noode police station.

However, it is not for the Court to issue opinions on the basis of professional ethics or domestic law. What concerns us here is the narrower issue of whether the unacceptable treatment meted out to the applicants constituted “degrading treatment”, and hence a violation not just of the applicants’ rights, but of their fundamental rights as safeguarded by the Convention.

4. We are prepared to accept, as the majority did, that where a person is under the control of the police, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity (see paragraphs 88 and 100 of the judgment).

We are able to reach that conclusion without resorting to the detailed observations on human dignity set out both in the part of the judgment dealing with international texts, instruments and documents (paragraphs 45‑47) and in the “Law” part (paragraphs 89-90). Indeed, we wonder what practical purpose is served by these observations, given that the majority provide no indication of how the notion of human dignity is to be understood. The observations are presented as though they intend to establish a doctrine, but in reality they do not offer the reader much by way of enlightenment.

5. That said, should it be accepted that any interference with human dignity constitutes degrading treatment and hence a violation of Article 3? Without going that far, the majority appear to be suggesting that any interference with human dignity resulting from the use of force by the police will necessarily breach Article 3.

We consider that in so finding, the majority have departed from the well-established case-law to the effect that where recourse to physical force diminishes human dignity, it will “in principle” constitute a violation of Article 3. The relevant case-law is in fact referred to twice in the judgment (in paragraph 88, with references to Ribitsch v. Austria, 4 December 1995, § 38, Series A no 336; Mete and Others v. Turkey, no. 294/08, § 38, 4 October 2011; and El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 207, ECHR 2012, and in paragraph 100). In our view, the use of the term “in principle” implies that there are exceptions, that is to say instances of interference with human dignity that nevertheless do not breach Article 3. On this point we would refer to the Ireland v. the United Kingdom judgment, in which the Court found that there could be “violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention” (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25).

This is because 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 (see, for example, Ireland v. the United Kingdom, cited above, § 162, and, among recent judgments, El-Masri, cited above, § 196; Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014 (extracts); and Tarakhel v. Switzerland [GC], no. 29217/12, § 94, ECHR 2014 (extracts)).

6. The main question arising in the present case is whether this minimum level was attained in respect of the applicants.

The majority begin by pointing out that the assessment of this minimum depends on all the circumstances of the case (see paragraph 86 of the judgment). Subsequently, however, they show no further concern for the specific circumstances, instead simply adopting an eminently dogmatic position: any conduct by law-enforcement officers which diminishes human dignity constitutes a violation of Article 3, irrespective of its impact on the person concerned (see paragraph 101).

For our part, we consider that the specific circumstances are of fundamental importance. It is not for the Court to impose general rules of conduct on law-enforcement officers; instead, its task is limited to examining the applicants’ individual situation to the extent that they allege that they were personally affected by the treatment complained of (see, mutatis mutandis, Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003; Van der Ven v. the Netherlands, no. 50901/99, § 50, ECHR 2003‑II; and Lindström and Mässeli v. Finland, no. 24630/10, § 41, 14 January 2014). Certain factors dictate that the seriousness of the violence inflicted on the applicants should be put in perspective. These concern in particular the duration of the treatment, its physical or psychological effects, the intention or motivation behind it, and the context in which it was inflicted (see the aspects held to be relevant in the Court’s case-law, as recapitulated in paragraph 86 of the judgment). As the Chamber noted, both the incidents in the present case involved an isolated slap inflicted thoughtlessly by a police officer who was exasperated by the applicants’ disrespectful or provocative conduct, in a context of tension between the members of the applicants’ family and police officers in their neighbourhood, and there were no serious or long-term effects (Chamber judgment of 21 November 2013, § 51). Although the treatment complained of was unacceptable (see paragraph 3 above), we are unable to find that it attained the minimum level of severity to be classified as “degrading treatment” within the meaning of Article 3 of the Convention.

7. We fear that the judgment may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers. Police officers may well be required to exercise self-control in all circumstances, regardless of the behaviour of the person they are dealing with (see paragraph 108 of the judgment), but this will not prevent incidents in which people behave provocatively towards them – as in the present case – and cause them to lose their temper. It will then be for the appropriate domestic courts, where necessary, to determine whether the officers’ behaviour may have been excusable. To conclude, as the majority have, that in any such incident the State will be responsible for a violation of the victims’ fundamental rights, in particular because of a failure to train officials “in such a manner as to ensure their high level of competence” (see paragraph 108 of the judgment), is in our view a clear underestimation of the various difficulties that may be encountered in real-life situations.

This observation cannot be countered by stating that the prohibition of torture and inhuman or degrading treatment or punishment is absolute, regardless of the conduct of the person concerned (see paragraph 108 of the judgment). We too subscribe to the absolute nature of this prohibition. However, it only applies once it has been established that a particular instance of treatment has attained the requisite level of severity.

There is also good ground for thinking that the absolute nature of the prohibition set forth in Article 3 is one of the reasons why the Court has found that this Article will be breached only where the level of severity has been attained. The Court regularly reiterates that it is attentive to the seriousness attaching to a ruling that a Contracting State has violated fundamental rights (see, among other authorities, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII; Mathew v. the Netherlands, no. 24919/03, § 156, ECHR 2005‑IX; and Georgia v. Russia (I) [GC], no. 13255/07, § 94, ECHR 2014 (extracts)). This is especially true of a finding of a violation of Article 3, a provision that enshrines “one of the most fundamental values of democratic societies” (see paragraph 81 of the judgment) and requires an absolute prohibition by States.

Accordingly, we should avoid trivialising findings of a violation of Article 3. The situation complained of in the present case is far less serious than the treatment inflicted by law-enforcement officers in many other cases that the Court has unfortunately had to deal with. What impact, then, does a finding of a violation of Article 3 still have?[2]

8. The victim’s vulnerability is a factor that may be taken into account in assessing the seriousness of an interference with human dignity. The majority refer in this connection, admittedly as a secondary consideration, to the fact that the first applicant was a minor at the material time (see paragraphs 109-110 of the judgment).

We consider that the Court does not have enough information to treat the first applicant’s age as a truly relevant factor in the present case. This was not his first confrontation with the police. Moreover, he was a member of a family who had had difficult relations with the police for years and who had lodged several criminal complaints against police officers. Referring simply to the first applicant’s age as a basis for concluding that he was a vulnerable person towards whom the police officers should have shown “greater vigilance and self-control” (see paragraph 110 of the judgment) is in our view an overly theoretical approach. The conclusion reached on this point risks being completely at odds with reality.

9. In finding that there has been a violation of the substantive aspect of Article 3, the majority have sought to display zero tolerance towards police officers who resort to physical force that has not been made strictly necessary by the conduct of the person with whom they are dealing. This in itself is a laudable aim. Police violence is unacceptable.

However, we would have preferred a more nuanced assessment of the facts of the case, with a stronger grounding in reality. For the reasons set out above, we consider that the treatment complained of did not attain the level of severity required to fall within the scope of Article 3. 

[1] In view of the conclusion we have reached, however, we might have left open the question of the establishment of the facts, as the Chamber did (judgment of 21 November 2013, § 49).

[2] A question that has not been discussed in the present case but will no doubt arise in the future is whether the strict standard set by the majority should now also be applied in cases concerning the extradition or expulsion of aliens. Would Article 3 stand in the way of the extradition or deportation of an alien to a country where he or she is at risk of being slapped (once)?"

Also read: 

• Ohrfeige im Polizeigewahrsam: Menschenwürde kennt keine Bagatellgrenze (Verfassungsblog)
• Bouyid v. Belgium: Grand Chamber Decisively Overrules Unanimous Chamber (strasbourg observers)