Bouyid v Belgium: The 'Minimum Level of Severity' and Human Dignity's Role in Article 3 ECHR

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Abstract

In Bouyid v Belgium, the Grand Chamber of the European Court of Human Rights was asked to consider whether slaps inflicted on two young men in police custody were in breach of Article 3 ECHR, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Overruling the Chamber judgment in the case, the Grand Chamber held by 14 votes to 3 that there had been a substantive violation of Article 3 in that the applicants had been subjected to degrading treatment by members of the Belgian police. The Grand Chamber also unanimously found that there had been a breach of the investigative duty under Article 3. In this case note, I concentrate on the Grand Chamber’s substantive finding, with focus on the disagreement between the majority of the Grand Chamber and those dissenting on the finding of a substantive violation. The crux of the disagreement lay in the understanding and application of the test of ‘minimum level of severity’, which the ECtHR has established as decisive of whether a particular form of ill-treatment crosses the Article 3 threshold, and how this relates to Article 3’s absolute character, which makes it immune to trade-offs. I defend the majority’s finding against the dissenting judges’ substantive and methodological criticism, challenge the dissenting judges’ appeals to ‘reality’, and offer some thoughts on the role of human dignity in specifying the wrongs proscribed by Article 3 ECHR.

Details

Original languageEnglish
Number of pages22
JournalEuropean Convention on Human Rights Law Review
Publication statusAccepted/In press - 27 Dec 2019

Keywords

  • Article 3 ECHR, degrading treatment, minimum level of severity, human dignity, policing, use of force

ASJC Scopus subject areas