Only a slap?
‘Everyday’ Police Violence and the Right not to be Subjected to Torture or Cruel, Inhuman or Degrading Treatment or Punishment
The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment is a bedrock of human rights law. Its absolute character stands as an expression of the intolerability of treating any person – irrespective of their vices or virtues – as less than human.
Yet the idea that human rights law deems such ill-treatment absolutely wrong is sometimes taken to signify that it is an exceptional wrong – that such ill-treatment is an aberrant or at least infrequent phenomenon in our society. This idea arguably underpinned a vocal disagreement at the Grand Chamber of the European Court of Human Rights in the case of Bouyid vBelgium. In the judgment, the majority of judges held that a single slap inflicted by a police officer against a person in custody diminished human dignity and amounted to degrading treatment in violation of Article 3 of the European Convention on Human Rights (ECHR). But a minority of dissenting judges opposed this finding, lamenting the imposition of what they termed an “unrealistic standard” on State authorities in respect of what they deemed ‘less serious’ police violence that, in their view, trivialised findings of violation of the absolute right against torture and inhuman or degrading treatment. They argued that the majority’s finding did not show proper appreciation of the difficulties that police may face in real-life situations and which might “cause them to lose their temper”. The dissenting judges’ appeal to realism effectively urges the European Court of Human Rights to ‘accept’ the reality of, and accordingly to accommodate as a matter of human rights law, ‘everyday’ police violence against ‘irksome’ suspected wrong-doers.
My comment on the case supports the majority’s finding, arguing that the dehumanisation inflicted in Bouyid unmistakably lies on a continuum with torture, which paradigmatically involves ‘the assertion of unlimited power over absolute helplessness’ (D Luban, Torture, Power, and Law (CUP 2014) 128), and whose dehumanising force, Jean Améry observes, begins ‘with the first blow from a policeman’s fist’ (J Améry, At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and Its Realities (Indiana University Press 2009) 29). As I argue, the abuse located in torture, inhumanity and degradation may be found in ‘everyday’ incidents, practices and structures that too many of us may all too readily tolerate - not least when they are inflicted on persons who are fundamentally othered and seen as deviant or otherwise undeserving by dominant groups or majorities. This does not make it any less wrongful. The majority in Bouyid rightly identified the use of force against persons in custody who were posing no risk to anyone’s life or limb as an act of severe ill-treatment diminishing human dignity. The judgment sets a clear red line against police brutality. The majority’s robust stance in the face of the minority’s appeal to ‘realism’ embodies the approach we should all adopt to ‘everyday’ police violence: to recognise, now more than ever, that it is as egregious as it may be pervasive.
Department/ Institute/ Centre