Malta’s judge at the European Court of Human Rights has disputed a decision in favour of two men who were slapped across the face by a police officer while in custody, warning against “trivialising” human rights claims.

Insisting police violence was “unacceptable”, Chief Justice Emeritus Vincent De Gaetano expressed the opinion that the slap did not reach the level of seriousness for the European Court to find a violation of the men’s human rights to be protected from inhuman or degrading treatment.

He voiced his dissent in a case filed by two brothers – including a minor – who claimed that two police officers had slapped them in the face while they were at their local police station in the district of Saint-Josse-ten-Noode in Brussels, Belgium.

The court found that the slapping had undermined the dignity of Saïd and Mohamed Bouyid. It also observed that the subsequent investigation had not been effective and the investigating authorities had failed to devote the necessary attention to the allegations.

The court, by 14 votes to three, found in their favour and ordered Belgium to compensate them €5,000 each for the breach and €10,000 jointly to cover court costs.

But in a dissenting opinion, Dr De Gaetano, Belgian judge Paul Lemmens and British judge Paul Mahoney, who voted against, said they did not believe the slap was severe enough to merit acceptance that the treatment was inhuman.

The incidents involved an isolated slap inflicted thoughtlessly by an exasperated officer

Police officers who needlessly struck an individual under their control were committing a breach of professional ethics and this was therefore unacceptable, the judges said. However, they questioned whether such unacceptable behaviour constituted degrading treatment as safeguarded by article 3 of the European Convention of Human Rights.

They agreed with the majority that any use of physical force that would not have been necessary by a person’s conduct while in custody diminished human dignity. But they disagreed that interference with human dignity directlyand automatically constituted degrading treatment.

“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,” they pointed out. They held that the other judges had not looked at the case in the context of the prevailing circumstances and had not given enough weight to the impact the slap had on the two brothers.

“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.

“As the Chamber noted, the incidents in the 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 consequences. Although the treatment complained of was unacceptable, 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,” the judges argued.

They warned that the European Court ought to “avoid trivialising” a violation of article 3. This case was “far less serious” than the treatment faced by people involved in other cases before the court at the hands of law-enforcement officers, the dissenting judges pointed out.

They lauded the court’s attempt to display zero tolerance of physical force by police officers. However, they said they would have preferred a more “nuanced assessment” of the facts of the case “with a stronger grounding in reality”.

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