Dignity, Degrading Treatment and Torture in Human Rights Law

The Ends of Article 3 of the European Convention on Human Rights

Elaine Webster

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317516002
• Edition: 1
• Topic: Droit
• Subtopic: Droits civiques en droit

Although scholars have shown longstanding interest in the boundaries of interpretation of the right not to be subjected to torture and other prohibited harm, the existing body of work does not sufficiently reflect the significance of the interpretive scope of degrading treatment. This book argues that the degrading treatment element of the right is a crucial site of analysis, in itself and for understanding the parameters of the right as a whole. It addresses how, methodologically, the scope of meaning and application of the right not to be subjected to degrading treatment should best be identified and considers the implications thereof. It systematically examines the diverse aspects of degrading treatment's scope, from foundations of legal interpretation to the drivers of humiliation. It draws on wide-ranging literature and extensive analysis of more than 1, 500 judgments of the European Court of Human Rights, which has pioneered the right's interpretive growth. The book aims to explore how the interpretive possibilities, and limits, of the right not to be subjected to degrading treatment turn upon the axes of human dignity and state responsibility, and aims to show how this right's protection can be achieved as well as limited through processes of interpretation.

Dignity, Degrading Treatment and Torture in Human Rights Law provides interpreters with analytical tools to advance the application of the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment in international, regional and domestic human rights law. It will appeal to all who have an interest in understanding the right's meaning, development, and potential scope of application, as well as those with an interest in methodologies of human rights interpretation.

1 Introduction

Through interpretation of the texts of international human rights law, courts, monitoring bodies, legal practitioners, and scholars have pushed the boundaries of human rights protection. The question of the boundaries of human rights protection has come to take on particular symbolic force through interpretation of the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment. Interpreters of this right have translated its categorical expression in human rights instruments into an ‘absolute’ guarantee to which no legitimate limitations are permitted, and have identified it most strongly with the ideal of protecting human dignity. These unusual characteristics mean that interpretations of the terms ‘torture’, ‘cruel’, ‘inhuman’, ‘degrading’, ‘treatment’ and ‘punishment’ have special significance. When interpreters deem a particular harm to fall within the scope of these terms they recognise that an individual has experienced, or risks experiencing, a grave and intolerable kind of suffering. At the same time, they declare that if the state has perpetrated, facilitated or failed to reasonably prevent such harm it will be held responsible. The desire of human rights law to protect persons from grave harm, and the limits of what can reasonably be expected of states, are brought into tension, both real and emblematic, by interpretations that push the boundaries of the right not to be subjected to torture and other prohibited harm.¹

Interpretations that confront the parameters of this right bring to light questions about the limits of state responsibility and the nature of the harm at stake, in particular when such harm takes place in non-classic settings or is inflicted by non-traditional actors. Should we understand, for example, the victims of domestic violence to be victims of torture, even if the harm itself is inflicted in private places by private persons, in apparent contradiction to the international legal definition?² For many years feminist scholars have challenged the boundaries of interpretation of the right not to be subjected to torture, challenging us to see torture not only as something that takes place in an interrogation room by state officials, but in ‘everyday’ contexts.³ It is not only in critical scholarship that such challenges occur. They permeate legal claims and decisions. Interpreters of the right have argued that it should be applied in a range of situations – spanning assisted dying contexts, situations of generalised violence in conflict zones, and situations of socio-economic destitution.⁴ Such interpretations move the right beyond the traditional confines of direct state power and physical powerlessness of the individual. They expose the borderlines of state responsibility for suffering and challenge the way we perceive the nature of that suffering.

The focus for such legal claims has most often been not torture but cruel, inhuman or degrading treatment or punishment, in combination or occurring separately as distinct forms of harm. In international prohibition-of-torture discourse the ‘other’ forms of harm have tended to be in the background. The reason for this is a combination of historical evolution and socio-political context. The approach of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) has undoubtedly been influential. The way that this treaty evolved led to a focus on torture; this was partly a reflection of perceptions amongst the drafters that the other forms of harm were more difficult to define,⁵ partly a reflection of a focus on detention contexts⁶ and partly a reflection of external forces (notably Amnesty International’s 1972 ‘Campaign for the Abolition of Torture’⁷ which drew attention to the torture element of the wider right that had earlier been included in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR)).⁸ The UNCAT solidifies a distinction between torture and other harm in that it provides a detailed ‘definition’ of torture in its first Article but does not refer to the other forms of harm until Article 16 of the Convention, and does not provide an explicit picture of them.⁹ These other forms of harm have also been less prominent elsewhere at the UN and other regional levels. These monitoring bodies do recognise distinctions between torture, cruel, inhuman and degrading treatment or punishment¹⁰ but, in light of differing socio-political environments, they have had less opportunity to confront non-torture forms of harm.¹¹ These factors have contributed to a common perception of cruel, inhuman or degrading treatment or punishment as simply the ‘other forms of ill-treatment’. Commentators use this language as an abbreviation but the effect, when used habitually, has been to mask the significance and independent scope of the other forms of treatment as integrated and influential parts of a whole. At the European level the picture differs – the jurisprudence of the European Convention on Human Rights¹² (ECHR; the Convention) manifests the centrality of the other forms of harm. The European Court of Human Rights (ECtHR; the Court) has been at the forefront of the interpretation and application of Article 3 of the Convention since the late 1970s.¹³ It is in the European Convention protection system, rather than at the UN or other regional levels, that the interpretation of the other forms of ill-treatment has been pioneered. The ECtHR and its former sister body, the European Commission on Human Rights (ECommHR; the Commission), have established distinctions between inhuman and degrading treatment and punishment¹⁴ and applied these forms of harm beyond the traditional deprivation-of-liberty settings – the above examples of the end-of-life, conflict, and socio-economic contexts are drawn from the Strasbourg jurisprudence. The ECtHR did not make its first finding of torture until 1996, almost 40 years after it came into existence¹⁵ and decades after it had reached its first finding of a violation of Article 3 on the basis of the other forms of harm. The ECommHR had urged a finding of torture in 1978, in Ireland v. UK, but for the Court this case was instead the starting point for the development of the right not to be subjected to inhuman or degrading treatment or punishment. The ECtHR has come to be recognised as a leader of the international development of the right not to be subjected to torture, inhuman or degrading treatment or punishment.¹⁶ The other forms of harm should not be seen as peripheral but as central to the on-going interpretive development of the right in international human rights law.

The aim of this book is to further an understanding of the reach, and limits, of states’ protection of individuals from torture, cruel, inhuman or degrading treatment or punishment by drawing attention to the ‘other forms of ill-treatment’. I do so by closely examining one particular form of harm – I explore, articulate, and evaluate past, present and possible interpretations of degrading treatment.

Why ‘degrading treatment’?

The central question addressed in this book is, what is the interpretive scope of the right not to be subjected to degrading treatment as a distinct form of harm? That is, what does degrading treatment mean (the right’s scope of meaning), and to which kinds of situations might the right apply (the right’s scope of application)?¹⁷ To describe degrading treatment (or the other harms) as distinct wrongs is not to suggest that it should be divorced from its place within the right not to be subjected to torture. It is to suggest that its place within this broader right means that its scope of interpretation merits greater attention – to generate a richer understanding of the whole, the doctrine that has developed on the constitutive elements of the right can and should be explored independently.

This book addresses the body of European Convention jurisprudence under Article 3, which states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Within this provision the Strasbourg organs have upheld distinctions between forms of harm. It was not inevitable that they would do so but were presumably motivated by the nature of the claims which it was asked to addressed, and it is not surprising that they have done so given the use of several different terms in the Convention’s text. In normative terms we might ask whether it is desirable to treat the forms of harm as capable of standing alone as well as occurring in combination; in practical terms the distinctions have become ingrained in the jurisprudence. This book explores the rationale behind the jurisprudence pertaining to degrading treatment and aims to make sense of the range of interpretations of the right to date. From the perspective of considering the parameters of the right not to be subjected to torture or other prohibited harm, degrading treatment is a most interesting site of interpretation for five reasons: interpreters of the right generally perceive it to be at the bottom of a hierarchy of harm within the prohibition of torture, thereby raising interesting questions about the line between what is prohibited and what is not prohibited by it; the nature of the established benchmarks of degradation; the perception of familiarity yet ambiguity invoked by the term ‘degrading’; the linguistic association between degradation and the idea of dignity; and the pre-eminence of the idea of treatment over that of punishment.

Degrading treatment is generally seen to be at the lower end of a hierarchy of ill-treatment. As Evans and Morgan observe, the Strasbourg organs have endorsed the view that ‘there is an hierarchical progression between three separate categories of ill-treatment and that the threshold between them is based on the severity of suffering’.¹⁸ As early as 1969 the EComHR stated that all torture was necessarily inhuman and degrading, and all inhuman treatment was degrading.¹⁹ In more recent cases the Court’s view of degrading treatment as being at the bottom of a hierarchy of harm is subtly evident.²⁰ Other interpretive bodies and several commentators contest the idea that there should be a ‘severity of suffering’ scale within the prohibition of torture,²¹ but they conceive of scales of different kinds.²² Both in the international and European contexts, interpreters of the right perceive some form of progression within it, and harm that is degrading is seen as being at the bottom of the hierarchy.²³ Because it is perceived to be at the bottom of a hierarchy, degrading treatment may also be the focus of concerns about what should and should not be allowed within the ambit of the right. There have been longstanding concerns about the right’s overexploitation²⁴; as Judge Costa stated in one ECHR judgment: ‘Article 3 should not be cheapened or trivialised through overuse.’²⁵ If, amongst the different forms of harm within the prohibition of torture and inhuman or degrading treatment or punishment, we perceive degradation to be closest to a line between prohibited harm and non-prohibited harm we will gain a richer understanding of the potential boundaries of the right as a whole by understanding the scope of the idea of degradation.

The ECtHR has configured the scope of the idea of degradation around a series of reference points; described by Jeremy Waldron as ‘benchmarks’.²⁶ The ECtHR’s benchmarks of degradation are feelings of fear, anguish or inferiority capable of humiliating or debasing a person, of breaking of a person’s physical or moral resistance, of driving a person to act against will or conscience, or as having an adverse effect on personality.²⁷ These ideas themselves invite interpretation. They invite conceptual engagement to an extent that is not echoed in Strasbourg’s narrower benchmarks of harm that is inhuman: that is premeditated, applied for hours at a stretch and causes intense physical and mental suffering.²⁸ There is an imbalance in conceptual depth between the two sets of benchmarks. It is surprising that those of inhuman treatment or punishment have not been further developed by the ECtHR.²⁹ This is perhaps because, unlike degrading treatment, the Court closely links torture to inhuman treatment, in that it has maintained an understanding of torture as ‘aggravated’ or ‘deliberate’ inhuman treatment.³⁰ (This reinforces the above point that degrading treatment is seen to be at the bottom of the hierarchy of harm). Whilst interpreters have questioned the relationship between the three forms of harm within the right, few have questioned the nature of the benchmarks of harm that is either inhuman or degrading, or the substance or conceptual cohesion of the ...