Abstract
This chapter focuses on a number of common questions relating to the concept of degradation, against the backdrop of that concept as it has developed in the jurisprudence of the European Convention on Human Rights, specifically in relation to the prohibition of degrading treatment within Article 3. The prohibition of torture and inhuman or degrading treatment or punishment is commonly understood, and is expressed in case-law, as having an intimate connection with the concept of human dignity, the language of which underpins the modern human rights regime. The basic structure of the Article 3 understanding of degradation is outlined, alongside examples of its practical application, in order to highlight significant conceptual relationships. Questions concerning the significance of the individual emotion of degradation, the relevance of autonomy in understanding degradation, and the relevance of the idea of social dignity can be illuminated by a contextualized discussion of the jurisprudence. It is suggested in this respect that the scope of what can be understood as degradation is not limited primarily by the victim’s emotional experience, that the jurisprudence draws our attention to one particular facet of autonomy, and that the essence of the concept of degradation is helpfully captured in the idea of abuse of equal rank.
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Notes
- 1.
Some reference will also be made to the former European Commission of Human Rights, although examples will primarily be drawn from the legally binding decisions of the Court.
- 2.
The Compact Edition of the Oxford English Dictionary. Oxford: Clarendon Press (all dictionary references in the present chapter refer to this edition unless otherwise stated).
- 3.
See the work of Peter Cane in the context of the concept of responsibility, which is illuminative in this respect. Cane discusses the particular value of common law approaches to responsibility, deriving from the uniqueness of the institutional legal setting, for understanding responsibility beyond law as a complex moral concept (Cane 2002: 9–28). I would like to thank my colleague Simon Halliday for drawing the work of Cane to my attention.
- 4.
This is visible, for example, in an article on degrading treatment entitled “The Limits of Degradation and Respect” (Lawson and Mukherjee 2004) and in an article entitled “Punishment, Dignity and Degradation” (Duff 2005). See also Susan Millns’ reference to dignity and degradation as two sides of the same coin (Millns 2002).
- 5.
Ireland v. United Kingdom, 18 January 1978, Series A, no. 25, para. 167.
- 6.
- 7.
Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, Series A, no. 94, para. 91.
- 8.
This is unsurprising; such elaboration is not to be expected given that the Court is primarily concerned, now that the principles are firmly established, with the concrete application of the law to very particular facts in concrete complaints before it. Martha Nussbaum makes this point in relation to a jury deciding upon a case involving emotions, where a more general exploration of the emotional concepts involved is not an immediate concern (Nussbaum 2004: 67–68).
- 9.
Applicants have often argued, and the ECtHR has arrived at, conclusions of inhuman and degrading treatment (for example, in Ireland v. UK). However, a distinction between “inhuman” and “degrading” is evident where the ECtHR classifies treatment or punishment specifically as one form or the other (see, for example, Yankov v. Bulgaria, no. 39084/97, ECHR 2003-VII (degrading treatment) and Bilgin v. Turkey, no. 23819/94, 16 November 2000 (inhuman treatment)), and it is also visible in the different conceptual points of reference that have been established by the ECtHR.
- 10.
The case-law research on which this chapter is based focuses primarily on outcomes of degrading treatment, rather than punishment, in cases before the Court. Judgments of degrading treatment are more common than those on punishment, notably since treatment appears to be the broader of the two terms and capable of also encompassing punishment. This is suggested by Nowak in the context of the equivalent provision of the International Covenant on Civil and Political Rights (Nowak 2005: 159; Jayawickrama 2002: 303). Where helpful insight is provided, however, specific punishment cases will also be cited. For present purposes, it is not significant whether degradation takes the form of treatment or punishment; what is significant is the understanding of the degrading nature of the treatment or punishment.
- 11.
- 12.
Barbu Anghelescu v.Romania, no. 46430/99, 05 October 2004, para. 55–60.
- 13.
Valasinas v. Lithuania, no. 44558/98, ECHR 2001-VIII, para. 117.
- 14.
Nevmerzhitsky v. Ukraine, no. 54825/00, ECHR 2005-II. para. 100–106.
- 15.
Tyrer v. United Kingdom, judgment of 25 April 1978, Series A, no. 26.
- 16.
Yankov v. Bulgaria, para. 112–113.
- 17.
- 18.
The “minimum level of severity” is a standard requirement that is referred to systematically in Article 3 case-law; see Ireland v. United Kingdom, para. 162.
- 19.
López Ostra v. Spain, judgment of 09 December 1994, Series A, no. 303-C, para. 60.
- 20.
Ireland v. United Kingdom, para. 162.
- 21.
Guzzardi v. Italy, judgment of 06 November 1980, Series A, no. 39, para. 107.
- 22.
Iwanczuk v. Poland, no. 25196/94, 15 November 2001, para. 59.
- 23.
Keenan v. UK, no. 27229/95, ECHR 2001-III, para. 113.
- 24.
Price v. United Kingdom, no. 33394/96, ECHR 2001-VII.
- 25.
- 26.
Tyrer v. United Kingdom.
- 27.
Humiliation is coupled in the standard characterization with debasement. The latter appears to act primarily as reinforcement. Principally, it provides a strong link to the concept of degradation in its visible sharing of the “de” preposition, highlighting the “down from”, “off” dimension of the concept. Debasement is found in one dictionary defined simply as degradation (The Chambers English Dictionary. Cambridge: Chambers). Humiliation instead emerges as the core concept within this coupling.
- 28.
Tyrer v. United Kingdom, para. 32
- 29.
On the concept of humiliation, see Chapters 3 by Neuhäuser and Chapter 4 by Kuch (this volume).
- 30.
Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, Series A, no. 48, para. 28–30.
- 31.
Furthermore, the emotion/social fact distinction helps to explain the logic of a related principle that is found in the Court’s case-law: that humiliation does not need to have been intentionally inflicted; see T. v. United Kingdom, no. 24724/94, 16 December 1999, para. 69. The emotion/social fact distinction contributes a justification for this position, simply in that the distinction makes possible the independence of the emotion and the social fact: The Court reserves to itself the ability to identify a state of humiliation that is not wholly dependent upon perceptions of either the “humiliator” or the victim. In the case of Farbtuhs v. Latvia, the Court reached a finding of degrading treatment despite both the Court and the applicant acknowledging that there had been no intention to humiliate; Farbtuhs v. Latvia, no. 4672/02, 02 December 2004, para. 58.
- 32.
- 33.
- 34.
Ireland v. United Kingdom, Commission Report of 25 January 1976, Decisions and Reports 31, 402.
- 35.
As noted above, the concept of autonomy is commonly viewed as relevant to understanding human dignity. Also common is a concern with the implications of a dependent link between dignity and autonomy – if dignity is violated by restriction of autonomy, what are the implications of this for those who are designated as lacking autonomy? This is an important question, yet one that is hindered by a lack of precision in how the terms are employed. The implications of such an objection depend upon what is understood by autonomy (including when, why, and by whom certain human beings are labeled as non-autonomous in some sense), upon how dignity itself is understood, and upon how the nature of the link between autonomy and dignity is viewed. Nevertheless, it can be noted in the context of the above example that there is no necessary implication that violations of dignity in the form of degradation are always characterized by restriction of the capacity for autonomy.
- 36.
Attributed on the basis of social position or role; see Pollmann (Chapter 17, this volume) for a brief summary of the origins of this conception.
- 37.
Peers v. Greece, para. 75.
- 38.
East African Asians, Commission Report, para. 189.
- 39.
An indicator of degradation that had in the meantime been established by the Court.
- 40.
- 41.
Raninen v. Finland, para. 54 (emphasis added).
- 42.
Waldron has also recently engaged, in what is a rare discussion, with the idea of degradation; see Waldron (2008).
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Webster, E. (2011). Degradation: A Human Rights Law Perspective. In: Kaufmann, P., Kuch, H., Neuhaeuser, C., Webster, E. (eds) Humiliation, Degradation, Dehumanization. Library of Ethics and Applied Philosophy, vol 24. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9661-6_6
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