Ill-treatment in the light of the case of «Bouyid V. Belgium»: from the minimum level of severity to the criterion of necessity (regarding «educational» slaps)

Abstract

This paper analyses the Grand Chamber’s judgment in Bouyid v. Belgium, which can be considered one of the most important judgments on the application of Article 3 of the ECHR.
The importance of this judgment stems from the fact that the Grand Chamber restored the balance in favour of common sense by reviewing the Chamber’s decision and finding that "educational" slaps inflicted on detainees by police officers were a form of ill-treatment.
The Grand Chamber has developed a new approach to the identification of ill-treatment, the essence of which can be summarised as follows: a violation of Article 3 of the ECHR is determined not only by the presence of a certain amount of suffering experienced by the victim, but also by the fact that the suffering inflicted on the victim was not necessary as such in the exercise of the power of the State agents.
With the Bouyid judgment, the ECtHR further proved that its case-law does not stand still, demonstrates evolutionary development and increasingly considers the needs of victims of ill-treatment.
The ideas developed by the Grand Chamber in the Bouyid case were developed in other ECtHR judgments, including against Ukraine, where a special place is occupied by the Burlya and Others judgment, in which the ECtHR stressed that the State may also be held liable for its agents if its representatives exceed the limits of their authority or act contrary to instructions.
In general, the ECtHR has made a significant step forward in formulating criteria and procedural filters for complaints under Article 3 of the ECHR by adding the element of "necessity" to the basic criterion of the minimum level of cruelty.
Analysing the damage to human dignity caused by "educational" slaps by the police in the Bouyid case, the ECtHR placed a special emphasis on police ethics, directly and repeatedly applying the European Code of Police Ethics as a significant source of law.
From the point of view of an ordinary police officer, the Bouyid case is important in terms of a direct practical reminder: any form of physical force against a detainee that is not justified by the circumstances of the detention and threats to the detainee’s behaviour is absolutely incompatible with the requirements of Article 3 of the ECHR and therefore constitutes a violation of it, even if it is a "mere" - as for some police officers - "educational" or "disciplinary" slap.
It is therefore important that the Grand Chamber reiterated that it is quite sufficient for the victim to feel humiliated in his or her own eyes in order for the treatment to be recognised as degrading within the meaning of Article 3 of the ECHR.
The Bouyid judgment can be seen as an optional tool for enhancing police professionalism in the CoE member-states, which was implemented by the ECtHR both through reference to the European Code of Police Ethics and through a general reference to the need to strengthen the professional skills of the State’s agents in the field of crime prevention and investigation.