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9. IPA AND DIGNITY VIOLATION IN LAW
This chapter continues the discussion on dignity violation, by exploring judicial recognition of the violation of dignity. The themes of dignity which are represented in the IPA model are apparent in the case law of the European Court of Human Rights, in its implementation of the protections accorded under Article 3 of the European Convention on Human Rights (ECHR), which was considered in Chapter 5. Article 3 cases present issues that clearly engage dignity. The IPA model’s veracity is emphasised through this chapter, since it can be seen that dignity violation is judicially recognised, and the chapter will outline some of the situations in which the court has identified and confirmed that the violation of dignity is akin to breaches of Article 3. Here there will be consideration of a variety of cases that indicate degrading treatment, and thus violation of human dignity.399 These will be related to IPA dignity through modes identifiable in the respective judgments, and dignity violation suggested, according to the relevant elements of IPA. Conclusions will be drawn as to the nature of IPA dignity violation vis-à-vis the modes identified in the previous chapter, caused through the respective Article 3 violations.
Article 3 Violations and modes of dignity violation
The cases which follow are grouped into three separate types of Article 3 case. These cases are pertinent to an analysis of how violation of Article 3 might equate to violation of dignity, and how this might occur utilising the modes, and the IPA model of this study. This analysis begins with selected so-called ‘detention’ cases, followed by corporal punishment and then sexual assaults. Not considered here are immigration and extradition cases, for the sake of brevity and because they exceed the scope of the thesis.
Prison Detention and Treatment of Prisoners
Valasinas v Lithuania400 concerned a detainee in a Lithuanian prison, who complained that his detention conditions and also a strip search he was subjected to, amounted to a breach of Article 3. The applicant alleged that the prison conditions were such that they amounted to
399 Cases reviewed are presented in a table in Appendix A which sets out the type of case and the decision of the Court.
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infliction of degrading treatment upon him; a contention which was not (on this occasion401) allowed by the Court. The second part of the application was successful, however. This related to an intimate search (including of the genitals of the complainant) in the presence of a female prison officer, where the officers carrying out the search did not use gloves throughout the examination. This did amount to degrading treatment under Article 3. The Court found that although intimate searches are necessary in certain circumstances, they must be carried out appropriately, and not in a manner that would likely offend the prisoner’s dignity. In this case, the search had breached that threshold and was degrading. The court in this case referred to dignity in respect of humiliation and debasement, and behaviour which might cause the victim anguish or making him feel inferior:
Obliging the applicant to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands showed a clear lack of respect for the applicant, and diminished in effect his human dignity. It must have left him with feelings of anguish and inferiority capable of humiliating and debasing him.402
Behaviour which debases is an ‘attack’ upon the integrity of the person, and causes humiliation. Reference is made to the previous section and humiliation. Humiliation is a mode which violates personal inviolability as dignity in IPA. Therefore, it is asserted that in
Valasinas, the violation of Article 3 amounted to a violation of IPA dignity, namely the second
element thereof. In another prison/detention case, Keenan v United Kingdom,403 the Court considered whether detention conditions were degrading. The Court, having regard to, inter alia Ireland404 and Tyrer405, considered that punishment or treatment would be ‘degrading’ if
‘its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned it adversely affected his or her personality in a manner incompatible with Article 3’.406 The Court also said that in assessing whether the treatment or punishment crosses that threshold, it should consider in the case of mentally ill persons, (Keenan was mentally ill) their ‘vulnerability and their inability, in some cases, to complain
401 N.B. Alver v Estonia(2006) 43 EHRR 40 (distinguished)
402 [177]
403 Keenan v United Kingdom (2001) 33 EHRR 38
404 Ireland v United Kingdom (n 222)
405 Tyrer v United Kingdom (1979-80) 2 EHRR 1
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coherently or at all about how they are being affected by any particular treatment’.407 The Court found that Article 3 had been breached in that case.
This case concerned prison conditions and the effect which these had upon the wellbeing of the victim. The court considers humiliation to be the key factor in its deliberation in favour of the victim. It is proposed that inherent dignity is also violated here through dehumanization. This is through a denial of the victim to Human Uniqueness (UH) attributes. When UH attributes are denied, humans are not treated as distinguishable from animals in the way in which they are treated. By keeping a prisoner in detention conditions likely to debase and humiliate them, UH attributes may be denied which leads to dehumanization. Keenan, having suffered violation of Article 3 suffered a violation of his inherent and personal inviolability as dignity, according to IPA.
Corporal Punishment
Tyrer v United Kingdom408 is unique in this discussion because this is a case of punishment, rather than treatment. The court indicated that as this was a punishment, which would by its nature be to some extent humiliating, there had to be an extenuating degree of humiliation to reach the threshold of ‘degrading’ punishment.409 In Tyrer; a case which was heard in the same year as Ireland, the Court held the United Kingdom in partial breach of Article 3, this time for an act of judicial corporal punishment in the Isle of Man. In this case, a juvenile was sentenced to three strokes of the birch – a sentence then prescribed in the Petty Sessions and Summary Jurisdiction Act 1927. The sentence was carried out in accordance with the law but an application was made by Mr Tyrer that the Court should consider his punishment to be in breach of Article 3.
The applicant was challenging not excessive, extra-judicial violent behaviour, but the entirely lawful infliction of violence preserved in statute. The Court examined the Article in order of severity of treatment, first with torture, then inhuman treatment and finally degrading treatment. The Court found that no torture had been committed, nor had Mr Tyrer suffered inhuman treatment. On a vote of six to one however, the Court held for Mr Tyrer, that his punishment has been degrading within the meaning of the Article.
407 Ibid [111]
408 Tyrer v United Kingdom op cit
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In reaching their decision, the Court noted that the punishment was carried out with Mr Tyrer’s posterior being naked, and administered by three complete strangers - factors which contributed to the Court’s finding, although which were not in themselves the ratio of the decision.410 As with Valasinas, in the judgment of this case specific reference was made to the humiliation suffered by the victim of the Article 3 violation of degrading treatment:
…the humiliation or debasement involved must attain a particular level…The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.411
There had to be a distinguishing level of humiliation in this case extending beyond the ‘ordinary’ humiliation suffered as a result of corporal punishment, and in this case, that level had been met because of the circumstances surrounding the experience of this particular victim. Humiliation is certainly a factor here, but also intrusion, another personal inviolability grouped mode of dignity violation. Mr Tyrer therefore suffered a violation of his IPA dignity, through this second element, as in Valasinas. Corporal punishment was to be examined again in the case Costello Roberts v United Kingdom412, which involved a pupil being ‘slippered’ by the school headmaster. The court in this case, contrasted the facts with those in Tyrer;
Three smacks on the buttocks, through shorts, with a soft-soled shoe, apparently causing no visible injury, cannot be compared to the thrashing suffered by Anthony Tyrer when he was birched as a form of judicial corporal punishment413
This was an intriguing analysis of the different elements of dignity violation experienced by Mr Tyrer and the pupil in the latter case. Was the latter experience any less degrading? The court apparently only adjudged the severity of the violence administered, not the potential emotional or psychological fallout of the two events. If the court had taken a literal approach and considered the dictionary definition of degrading as above, then they might have come to a different conclusion. 410 [33], [35] 411 [30] 412 (1995) 19 EHRR 112 413 At para 42
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Certainly, the type of punishment described above in Costello Roberts might cause the pupil to lose self-respect, which would be degrading treatment under the literal meaning of the word. Accordingly, no breach of Article 3 was found in this case. If it were on the grounds of humiliation as per Tyrer, then similar results could be found regarding the violation of IPA dignity.
Sexual Assaults
In SW v United Kingdom; CR v United Kingdom414; conjoined appeals to the ECtHR, the Court considered applications that Article 7(1) had been breached by the Respondent United Kingdom, in enacting retrospective legislation relating to the crime of rape. The cases related to marital rape, where the developing common law had begun to erode immunity from prosecution for husbands who had raped their wives. Aside from this main issue, the Court had cause to consider the character of rape itself. The Court stated that the essentially debasing character of rape was manifest, that the abandonment of the ‘unacceptable idea’ of spousal immunity was required to respect human dignity and human freedom.415 Whilst the Court did not explicitly deal with Article 3 or relate the case to it, the wording of the judgment indicated that rape was of an essentially debasing nature. The definition in Ireland of degrading treatment is that which causes humiliation and debasement.
The Court was edging nearer towards a link between rape and IDT – a link which would be established only two years later in Aydin v Turkey.416 Aydin was a landmark case because it classified the crime of rape as torture under the Article, on the facts in that case. The complainant/applicant in Aydin had been detained by state officials, and repeatedly mistreated and raped. It was the combination of those circumstances and actions that equated to a breach of Article 3, and a particular focus on the crime of rape. The Court held:
[t]he accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention417
414 (1996) 21 EHRR 363
415 At [44], [42] of the judgment
416 (1998) 25 EHRR 251
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The act of rape alone may not have constituted torture, but the combination of the circumstances, and the official status of the perpetrators went towards such a classification. Clare McGlynn is of the opinion that rape in this case would have been ill treatment alone, which was escalated to torture owing to these circumstances.418 She argues that the Court established in Aydin ‘that an act of rape could satisfy the threshold of harm for torture, but implied that not all rapes will necessarily do so’419 As demonstrated, rape will always be sufficient for degrading treatment, but will not necessarily be sufficient for torture. Rape amounts to a severe intrusion and transgression of bodily and psychological integrity. It will certainly be degrading and violate personal inviolability as dignity. It will also amount to the MOV of objectification, through the means of instrumentality and denial of subjectivity, for example. It will violate inherent dignity as a result.
The Court in MC420 did not consider rape as torture or IDT per se, but it examined States’ positive obligations under the Article to prosecute crimes of rape. What the Court did mention was the importance of an individual’s sexual autonomy, and the ‘effective protection’ thereof by providing a rigid approach to prosecuting sexual offences.421 The judgement made an interesting observation also; ‘…the development of law and practice in [sexual offences law] reflects the evolution of societies towards effective equality and respect for each individual’s sexual autonomy’.422 The Court indicated an evolutionary trend placing higher emphasis on sexual autonomy and freedom from sexual violence.
Summary and Next Chapter
The purpose of this chapter was to illuminate examples of Article 3 violations, which serve to demonstrate that the court will draw links between humiliation, debasement and the transgressing of bodily and psychological integrity as capable of amounting to at least degrading treatment under the Article. As has been explicated, these violations amounting to degrading treatment also amount to violations of IPA dignity through various modes, affecting multiple elements of IPA. This leads to the conclusion that dignity violation is, certainly in a human rights context judicially recognised and provides legal authority and context to the premise of the construction of the model of dignity, based upon the core
418 C McGlynn, ‘Rape, torture and the European Convention on Human Rights’ (2009) 58(3) International & Comparative Law Quarterly 565-595, 576
419 Ibid 579
420 MC v Bulgaria (2005) 40 EHRR 20
421 Ibid [166]
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themes, human rights theory and law and models previously adopted. This chapter concludes Part 2 of the thesis, and has related the jurisprudence of Article 3 ECHR to violation of IPA dignity. The study has now presented human dignity, developed IPA dignity and demonstrated how that dignity might be violated.
According to the Honeyball report, prostitution amounts to a serious violation of human dignity. We have now provided a model for dignity which enables some of that statement to be objectively assessed. We could consider the statement as ‘prostitution violates dignity (as inherent dignity, autonomy as dignity and personal inviolability as dignity)’. Further, we can say that when the report speaks of that dignity being violated, it is because prostitution allegedly amounts to exploitation, objectification, humiliation etc. as modes of dignity violation which are necessarily deleterious towards IPA dignity. But the question of whether prostitution can amount to any of these modes of dignity violation cannot be answered before an analysis of the sociology of prostitution which will take place in chapter 11. Indeed, no attempt to consider prostitution as either dignity violating or promoting should take place without a thorough consideration of the issues involved.
Before that is performed, however, the next chapter will move the thesis into part 3, and will provide a final part to the development of IPA dignity, which is a normative framework. If we are considering the statements of the Honeyball report with any true concern for the motives behind it, or the suggestions it makes for policy change in the area of prostitution, then a descriptive model of dignity is limited. What is the normative ‘call to action’ which demands that we should care whether prostitution violates dignity or not? Why does the hypothesis question matter at all? The answers to these questions will be now be considered, in the next chapter.
Page 131 of 232 PART THREE