Fifty years ago, Malta joined the Council of Europe and soon after acceded to the European Court of Human Rights. The European Court hears cases filed against any country that has signed up to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, while the convention binds member states to uphold human rights and guarantees, the European Court serves as the citizens’ ultimate shield in this regard.
Along the years, the European Court has been involved in a number of controversies, facing all sorts of accusations, even of undermining the democratic process or trying to turn itself into a law-making body. Just days ago, three of its own judges, including Chief Justice Emeritus Vincent de Gaetano, warned that the European Court “should avoid trivialising findings of a violation ofarticle 3”. This article lays down that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Now that is indeed a very meaningful caution not just because it comes from within but, more importantly, because it touches the very essence of what the European Court is primarily there for.
The three judges were commenting on the case of two Belgian brothers who claimed they were slapped in the face by officers at the local police station. The Grand Chamber ruled this undermined their dignity and amounted to a violation of article 3.
The judges were unanimous in finding a violation of the procedural limb of article 3 because of the failure by the Belgian authorities to adequately investigate the complaints. The three judges mentioned earlier, however, dissented specifically with regard to the substantive violation of article 3.
They argue there are forms of treatment which, while interfering with human dignity, do not attain the minimum severity required to fall within the scope of article 3. They make a very powerful point when they note: “We fear that the judgment [that the slap amounted to violation of human rights] may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers.”
The three judges note that it is to be expected in a democratic society that having a police officer slap a suspect in the face would also constitute “a tort and a criminal offence”. Police violence will always be unacceptable. The domestic courts can rule on an officer’s behaviour.
Many would agree with what the dissenting judges are saying for it is not unusual to come across cases where human rights appear to let wrongdoers, if not outright hard criminals, off the hook. Likewise, there will be complaints of suspects facing murder charges and being granted bail only to strike again. This should in no way be taken to mean that people on the wrong side of the law do not have human rights too.
However, trivialising human rights is following a slippery slope. The dissenting judges warn about that in a footnote in their opinion: “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)?”
The Grand Chamber of the European Court of Human Rights in Strasbourg seems to have opened a can of worms.