The Minimum Level of Severity Test in Light of Bouyid v. Belgium

In its judgment in Bouyid v. Belgium [GC], 2015, the Grand Chamber adopted the following new principle as regards the ill-treatment of persons wholly under the control of State agents. When a person is deprived of his liberty or is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and constitutes a violation of Article 3 of the Convention (§§ 100 and 101 read together).

The minimum level of severity test under Article 3

Article 3 of the Convention proscribes in absolute terms three forms of ill-treatment: torture, inhuman treatment or punishment and degrading treatment or punishment.

According to Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The Court has held that the assessment of that level is relative and depends on all the circumstances of the case, such as duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Muršic v. Croatia [GC], 2016, § 97).

In order to determine whether the threshold of severity has been reached, the Court may also take other factors into consideration, in particular:

(a) The purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it, although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 of the Convention;

(b) The context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions; and

(c) Whether the victim is in a vulnerable situation (Khlaifia and Others v. Italy [GC], 2016, § 160).

Prior to Bouyid v. Belgium [GC], 2015, this test applied regardless of the category of conduct in issue. Thus, as the Court held in Ireland v. the United Kingdom, 1978, there could be cases before the Court where “violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention” (§ 167).

On this basis, and in the context of alleged ill-treatment by State agents, the Court has found that:

• a degree of intimidation felt by the applicant while being forcibly taken to the police station did not exceed the requisite threshold (see Foka v. Turkey, 2008, § 61, and Protopapa v. Turkey, 2009, § 49);
• handcuffing an applicant for four hours which had not caused any physical injuries and had had no long-term effect on the applicant’s mental state, did not reach the severity threshold required under Article 3 (see Wieser v. Austria, 2007);
• the anguish and mental suffering experienced by a person who was taken to a police station and compelled to sign a pre-prepared statement at a time when his son was in a coma did not attain the minimum level of severity required by Article 3 (see Berktay v. Turkey, 2001, § 176).

The refinement of the minimum level of severity test in Bouyid v. Belgium

In Bouyid v. Belgium [GC], 2015, the Court departed from the minimum level of severity test in the very particular context of a person who is deprived of liberty “or, more generally confronted with law-enforcement officers”, and it did so as follows.

It began (at § 100) by adopting a bright-line rule: “in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3” (emphasis added). This approach stemmed from the well-established principle laid down in Ribitsch v. Austria, 1995, § 38.

It continued (at § 101) by clarifying that the phrase “in principle” could not be understood to mean “that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold has not been attained” (§ 101). This was because “any interference with human dignity strikes at the very essence of the Convention” (ibid), there being a particularly “strong link” between concepts of “degrading” treatment and “respect for human dignity” (§§ 89 and 90 and the cases cited therein).

The Court concluded by setting out the newly applicable principle as follows: “any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applied in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question” (§ 101).

In sum, the approach in Bouyid v. Belgium [GC], 2015, means that, where an applicant is wholly under the control of State agents, the Court’s examination must shift to the necessity, rather than the severity, of the treatment to which the applicant was subjected to in order to determine whether the issue complained of falls within the scope of Article 3 of the Convention. If the treatment is not considered strictly necessary, it amounts to degrading treatment and thus a violation of Article 3 of the Convention (§§ 111 and 112; see also Perkov v. Croatia, 2022, § 31).

In cases where Bouyid v. Belgium applies, does the severity test have any continued relevance?

The severity test would be still relevant in cases where the treatment took place when the applicant was wholly under the control of the State agents, if the Court also wishes to take one step further and characterise the treatment as inhuman treatment or torture (Yusiv v. Lithuania, 2016, §§ 61-62; R.R. and R.D. v. Slovakia, 2020, §§ 160-161; M.B. and Others v. Slovakia (no. 2), 2023, § 74; Lapunov v. Russia, 2023, §§ 107-110).

Noteworthy examples applying Bouyid v. Belgium

A.P. v. Slovakia, 2020

The Court considered the “severity threshold” to have been met by a slap in the face during the course of an arrest after undertaking an assessment of whether or not the physical force used was “strictly necessary” (§§ 59-63). Taking into account the vulnerability of the minor applicant and the professionalism of the officers, the Court felt that, even if the applicant had spat on the officers or attempted to punch them, force had not been strictly necessary (§ 62).

Pranjić-M-Lukić v. Bosnia and Herzegovina, 2020

The Court held that, in the particular circumstances of the case, the use of handcuffs (when the applicant was escorted by force to involuntary psychiatric and psychological examinations in the course of criminal proceedings against him) was not made strictly necessary by his conduct. The handcuffing diminished the applicant’s human dignity and was in itself degrading (§ 82).

Zakharov and Varzhabetyan v. Russia, 2020

The Court found that recourse to physical force by the police during the dispersal of a political rally was not strictly necessary as the applicants were peacefully assembled. The Court attached particular weight to the fact that the injuries had been sustained while the applicants had been within an area in which law-enforcement authorities were conducting an operation, during which they had resorted to the use of force for the purpose of quelling mass disorder. The use of force was held to have diminished the applicants’ dignity, thus amounting to degrading treatment (§§ 70-74).

Roth v. Germany, 2020

The Court held that the repeated strip searches of the applicant, prior and after receiving visitors in prison, lacked any legitimate purpose and resulted in excessive humiliation. The searches therefore diminished the applicant’s human dignity and amounted to degrading treatment under Article 3 (§ 72).

Navalnyy and Gunko v. Russia, 2020

In finding that the applicant had not shown any resistance during his arrest in public and subsequent transfer to the police station, the Court held that the forceful twisting of the applicant’s arm by the police during these events was not made strictly necessary by the applicant’s own conduct. Such use of force was found to have diminished the applicant’s human dignity and amounted to degrading treatment (§§ 43-48).

Ilievi and Ganchevi v. Bulgaria, 2021

The Court applied the Bouyid test in the context of search and home arrest. It considered excessive the conduct of the police officers in respect of the two male applicants (the suspects), whereas it found that the police officers’ actions vis-à-vis the three female applicants (family members), which had been very brief and low-key, to be proportionate in relation to their conduct (§§ 52-57 and §§ 58-62).