This section aims to show how practical and theoretical perspectives can reinforce each other in a way that allows for the development of a practice-rooted yet conceptually rich way of talking about the dignity idea’s meaning, which has the potential to inform decisions about the prohibition of torture’s scope of interpretation. It thereby models the constructive approach to interpreting the dignity idea.
When this approach is put into practice, it must confront the special challenges of dignity’s meaning. Firstly, it involves piecing together use-examples. However, the examples in the context of the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment are pictures of dignity violated, detached from a way of positively articulating the relevant content of the dignity idea. This echoes the absence of an expressed positive articulation of dignity’s meaning in wider human rights discourse. Secondly, the use-examples must be fleshed out by drawing dynamically upon broader sources (theoretical conceptualizations of the dignity idea), but these sources are themselves difficult to navigate and often seem either too complex or too basic. It is not clear how to move from the limited substance of the dignity idea visible in case law, to a way of expressing the substance of the dignity idea that can inform the prohibition of torture’s application.
This section indicates how a constructive human rights interpretation approach can overcome these challenges. Although a more wide-ranging exercise is desirable, it aims to model the approach by way of example. It offers a case study of prohibition-of-torture case law, followed by a discussion of some theoretical conceptualizations of the dignity idea and a suggestion for mediating between practical and theoretical perspectives.
A Case Study of Dignity in Practice: Dignity harm in ECHR Jurisprudence
This part of the discussion looks to the jurisprudence of Article 3 ECHR as an illustrative case study of how dignity plays out in interpretation. It aims to go a step further than acknowledging when the ECtHR invokes the idea of dignity; it aims to distil something about interpreters’ perceptions of the substantive content of the idea by spotlighting the nature of the suffering that the Court has judged to align with the scope of the right’s terms and to give rise to Article 3 violations.
The starting point is the Strasbourg Court’s perceived oppositional relationship between the idea of dignity and the harm proscribed by the right in Article 3. The jurisprudence shows a polarity between dignity and Article 3 harm that conforms to common intuitions that torture, inhumanity and degradation are the antithesis of respect for human dignity. For example, the ECtHR has stated that
[…] [T]he Court finds that the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3.
When a person is confronted by the police or other agent of the State, recourse to physical force which has not been made strictly necessary by the person’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention […]
18
The Court has stated that “[…] treatment […] may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity […]”
19 and “[…] the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity […]”.
20 It has stated that treatment has “undermined” dignity, that it has “stripped” an individual of dignity,
21 that it has “diminished” dignity,
22 that it has not been “respectful” of dignity
23 and that Article 3 harm can occur where an individual feels “hurt in his dignity”.
24 As early as the 1978
Tyrer case, the Court described the protection of dignity as “one of the main purposes of Article 3”.
25 The Strasbourg Court perceives proscribed Article 3 harm as the diametric opposite of respect for dignity.
In light of a dignity/proscribed harm binary, the case law includes a spectrum of practical ways in which the Convention’s interpreters materialize their perceptions of how human dignity is harmed. Practices that are incompatible with Article 3 are linked to the written text of the Convention through the Court’s ‘definitions’ of torture, inhuman and degrading treatment—harm can be described as torture when it is considered to be deliberate inhuman treatment causing very serious and cruel suffering; harm can be inhuman if it is,
inter alia, premeditated, applied for hours at a stretch and causes intense physical and mental suffering; harm that is degrading is brought about by feelings of fear, anguish or inferiority capable of humiliating or debasing a person, that breaks a person’s physical or moral resistance, drives a person to act against will or conscience or has an adverse effect on personality.
26 These definitions give some shape to the dignity picture in Article 3. This picture is rooted, however, in the concrete circumstances in which the dignity idea plays out. The examples of dignity harm below intend to provide a detailed picture of the range of situations that the ECtHR has identified as giving rise to Article 3 violations,
27 focusing on what each case indicates about the kinds of practices that the Court sees as capable of bringing about harm that amounts to torture or to treatment that is inhuman and/or degrading.
28 This range of situations will inform the subsequent discussion of theoretical perspectives on dignity.
Deprivation-of-liberty contexts (during arrests and in prisons, police stations, immigration centres and health care settings) are often, but not exclusively, the backdrop for ‘environmental’ dignity harms under Article 3. Harms include being confined to a severely overcrowded space leading to sleep deprivation, being subjected to constant lighting, not being allowed adequate ventilation, suffering overheating, sharing a confined space with insects and pests and being obliged to eat close to toilets. Being compelled to use squalid and/or exposed sanitary arrangements is a recurrent feature of cases in which the Court finds a violation of Article 3.
29 Poor sanitary arrangements have extended to being deprived of personal hygiene products, such as toothbrushes.
30
The Court has condemned physical and psychological intrusion. It has aligned subjection to strip searches, repeatedly, or accompanied by aggravating factors, with harm to dignity. For example,
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.
31
The Court has further condemned insult and derision that aggravated a strip-search situation.
32 In
Yankov v. Bulgaria, concerning the forced shaving of a prisoner’s hair, dignity harm derived from suffering an involuntary, publicly visible change in physical appearance.
33 The Court has condemned being forcibly administered drugs under physical restraint for the purpose of obtaining evidence of crime
34 or being forced to undertake psychiatric treatment after arrest.
35 Dignity harm has often derived from gratuitous restraint, using chains
36 or belts,
37 and from being publicly displayed wearing handcuffs or a hood (including in front of family members and acquaintances)
38 or being placed in a cage (including in front of family members and judicial officers).
39 The Court has aligned dignity harm with being deprived of mental and physical stimulation likely to diminish “mental faculties and social abilities”
40 as a result of prolonged deprivation of human contact,
41 and mental anguish caused by fear of a death sentence after an unfair trial,
42 and latterly a death sentence in itself.
43
The Court has suggested dignity harm to lie in “insecurity and helplessness”.
44 Features of Article 3 case law include being deprived of food on the day of a court appearance,
45 being prohibited from addressing one’s family in one’s mother tongue and being transported to court hearings in overcrowded conditions, including being compelled to sit on the laps of other prisoners,
46 or in circumstances not adapted to additional needs, including for wheelchair users.
47 In
Davydov and Others v. Ukraine, dignity harm stemmed from being used in staff training exercises in a prison, during which physical abuse and insults were common.
48 Being deprived of a personal set of clothing, and habitually expected to wear whichever clothes the authorities decided to re-allocate, contributed to dignity harm in the care home case of
Stanev v. Bulgaria.
49 Dignity harm has repeatedly resided in situations of insufficient medical care when deprived of liberty.
50 The Court has emphasized that authorities have waited too long before seeking medical care, have failed to take proper records of treatment and/or have responded negatively to treatment requests.
51 Harm has been brought about by authorities’ failure to take seriously repeated requests for medically necessary aids
52 or requests to be moved from an environment that induces deterioration of already-poor health.
53
Within and beyond deprivation-of-liberty settings, dignity harm is found in the unwarranted use of physical force, with or without long-term consequences.
54 The Court notes aggravating factors where present. For example, in
Sochichiu v. Moldova, it observed
Besides the brutal force used against the applicant, the Court notes from the video of the arrest that the conduct of the police officers was far from being respectful of the applicant’s dignity. In particular, one of the police officers stepped on his head and did not remove his foot, even when brushing his trousers. In the Court’s opinion, such conduct is degrading and humiliating. The Court also notes the mocking of the applicant’s losing some of his teeth and the swearing by one of the officers.
55
The Court has condemned the suffering of intentionally inflicted severe physical and verbal abuse, including witnessing the abuse of children, other family and community members.
56 This has included witnessing the destruction of one’s home and possessions
57 and being trampled upon after being forced to the ground (in view of loved ones).
58 In
Members of the Gldani Congregation of Jehovah’
s Witnesses and Others v. Georgia, the violence was exacerbated by the recording and broadcasting of the attacks.
59 Dignity harm has included being threatened with violence and witnessing extra-judicial executions of relatives and community members.
60 It has been characterized by the suffering of prolonged physical and verbal bullying.
61
Harm to dignity beyond deprivation of liberty situations has often consisted in suffering indifference. Individuals have suffered indifference in the face of severe mental anguish and repeated requests for information
62 and in the face of an urgent need for medical attention.
63 In medical-related cases, dignity harm has stemmed from wilful, manipulative obstruction of requests for access to prenatal genetic testing
64 and lawful abortion.
65 In medical cases like these, dignity harm appears also to derive from being effectively made to act against one’s will.
66 Dignity harm has consisted in being obliged to undertake military service at an advanced age without modifications to the service programme
67 or being forced to undertake physical exercise during military service that knowingly exacerbated a health condition.
68 The Court has identified dignity harm in situations of indifference on the part of state authorities to one’s circumstances of extreme, potentially interminable poverty.
69 Extreme poverty in
M.S.S. v. Belgium and Greece entailed for the applicant “several months, living in the street, with no resources or access to sanitary facilities and without any means of providing for his essential needs”.
70
The detail of these situations conveys dignity harm in practice. Therefore, although human rights law does not explicitly say what the idea of dignity means and Article 3 case law does not explicitly put forward any particular conceptualization, the detail of these situations gives a significant impression of how human dignity is harmed through torture, inhumanity and degradation. Authoritative interpretations of the right are the starting point, and the detail of the case law narrates something significant about the substantive content of human dignity as this idea takes shape through the right’s application. A list of instances of dignity harm does not, however, suffice. This list indicates how dignity is harmed, but it does not allow an adequate response to the question of how to articulate the content of the idea of dignity in a way that could be useful in decisions about the interpretive scope of the right not to be subjected to torture and associated harms. A list of past instances of dignity harm needs to be supplemented in a way that can inform questions about the right’s scope that are forward-looking.
Conceptual Mapping of the Dignity Idea
It is not obvious how to move from the limited substance of the dignity idea visible in prohibition-of-torture jurisprudence (point A) to a way of expressing the substance of the dignity idea that can inform application of the prohibition of torture (point B). This is where theoretical conceptualizations of dignity must be called upon. Theorizations of the dignity idea form a complex web of ideas, which has to be navigated to move from point A to point B. The following discussion approaches theoretical conceptualizations of the dignity idea with a view to facilitating this transition. It focuses on a number of themes that are visible in dignity theory. Doing so provides a map that compresses theoretical conceptualizations of the dignity idea. It does so in order to guide interpreters of the right from the above list of instances of dignity harm towards an interpretation of the dignity idea that could inform interpretive decisions about what should fall within, or be excluded from, the scope of the terms torture, cruel, inhuman and degrading.
Theoretical dignity literature exhibits a degree of “conceptual chaos” (Meltzer Henry
2011, 176), the result of a wide range of approaches and frameworks with diverse starting perspectives, all addressing ostensibly the same thing,
71 but in the midst of this web of dignity conceptualizations, a number of themes stand out. A number of themes can be seen in theoretical literature, which encapsulate different facets of the dignity idea. The discussion below focuses on three such themes in dignity literature, described as the
character of dignity, the
dimensions of dignity and the
demands of dignity. These are the facets of the idea that can most clearly be moulded into a simple and effective conceptual map.
The
character of dignity aligns with the question, what
is dignity. This is a preliminary question that is sometimes responded to in a way that says too little (for example, that dignity is ‘something that people have’) or in a way that says almost too much (for example, that it ‘refers to’ intrinsic value (Andorno
2009, 233), which seems to go beyond the character of dignity to point towards a substantive underpinning about
why dignity is recognized in persons as opposed to what dignity
is). The character of human dignity is different to its content. Scholars have variously described dignity as a “normative property” (Birnbacher
1996, 118), a “type of value” (Rosen
2012, 19–23),
72 a “potential” (Pollmann
2010), a “need” (Shultziner and Rabinovici
2012, 107) and also as a “process” (Lickiss
2007, 35). Recently, Waldron has suggested that it is best conceived of as a “status” (Waldron
2013, 24–27), an idea that others have also begun to explore (including Beitz
2013, 283–288). Literature increasingly situates the character of dignity as a conceptually distinct aspect of the idea, and the case study supports this. The references in the case study are to dignity as
something that is diminished, shown a lack of respect, hurt, undermined, assaulted and interfered with. In talking about
what happens to dignity, the case law implicitly says something about what dignity
is. The way that the Strasbourg Court talks about torture, inhuman and degrading treatment suggests that it perceives dignity as some kind of standing, that is able to be diminished, undermined and so on. The case study says something about the way in which certain forms of harm interact with a person’s dignity. The characterization of dignity as a ‘status’, although still a developing idea, is an approach that sits comfortably within the case-study example.
Dimensions of dignity refers to a central conceptual distinction to emerge from theoretical dignity literature. This is a dual conceptual distinction between dignity as something constant that is acted upon and dignity as something variable that must be realized. This constant/variable distinction is one of several dual distinctions that are associated with the idea of dignity. Some do not relate directly to dignity; rather, they relate to different
meanings of the idea (for example, Shultziner’s distinction between a thick and a thin meaning of human dignity (
2007) or to different
orientations of dignity protection (for example, Dupré’s distinction between views of human dignity that ‘open’ inwards or outwards (
2009)).
73 There are other twofold distinctions that relate directly to dignity as
something that itself has two dimensions. Andorno has described dignity as having two senses, “ontologique” and “éthique”: Dignity has an ‘ontological’ dimension in which it is part of the existence of a human person and as such exists equally amongst persons. Dignity has an ‘ethical’ dimension in which it is dynamic; it depends on a person’s actions and is therefore not possessed in uniform measure by all (
1997, 37). This is similar to the way that Maurer describes (the legal principle of) dignity in her insightful study of the ECHR: It has an elemental dimension (‘fondamentale’) and a realizable or active dimension (‘actuée’) (Maurer
1999, 50–58). Kass refers to “basic” dignity and “full” dignity (
2008, 9): Dignity has a basic dimension in which it is foundational and equal amongst human beings (2008, 27) and a full dimension in which it can actively flourish as each individual lives her or his life (2008, 19–20). Within the body of literature, it is common to find such dual conceptual distinctions between dignity as
something that is acted upon and dignity as
something that is realized. These dual distinctions capture the sense that dignity has a narrow dimension that must be safeguarded and a more expansive dimension that has to be realized and promoted through practical measures. The dimension of dignity that is visible in the case study is dignity as an object of harm; it is something (e.g. a standing or status) that can be suppressed. There is little evidence in the case study of the Strasbourg Court condemning failures to promote a positive realization of a person’s dignity. The ECtHR also interprets torture, inhuman and degrading treatment or punishment to be prohibited regardless of individual actions.
74 Article 3 concerns harm to dignity in its narrow dimension.
The literature expresses many understandings of what human dignity is concerned with. These understandings tend to fall into two categories (which can be seen to map onto narrow and expansive dimensions of dignity): respect for dignity implies freedom from certain conditions, and the pursuit of particular states or environments. These aspects constitute the
demands of dignity, the requirements that are recognized to flow from dignity. The demands of dignity are crystallized understandings of how dignity is assaulted and how it is promoted. Literature that refers to the way in which dignity is assaulted tends to use the language of ‘degradation’ and ‘humiliation’ (e.g. Shultziner
2007; Shultziner and Rabinovici
2012). Often, the literature does not elaborate on these ideas (e.g. Schachter
1983); sometimes it develops them further, as seen, for example, in Shultziner and Rabinovici’s substantive understanding of humiliation as injury to (or threat of injury to) a sense of self-worth, where they perceive humiliation as a form of “denial of social recognition” (Shultziner and Rabinovici
2012, 107, 112). Beitz refers to how dignity is assaulted with reference to the destruction of a capacity of self-direction (referring to torture, cruel, degrading treatment, slavery and forced labour) (Beitz
2013, 289). In the bioethics field, Birnbacher’s approach suggests that dignity is assaulted by the deprivation of “basic goods”: the necessary means of existence, freedom from pain and minimal liberty and self-respect (Birnbacher
1996, 110). Whilst the literature associates a sense of minimal protection with dignity assaults, it associates something more maximal with dignity promotion. It encompasses various approaches to, and ways of expressing, how human dignity is promoted by, for example, empowerment of agents (Beyleveld and Brownsword
2001, 218), respect for individual freedom (Dworkin
1994, 239), individual freedom
and social justice (Kelman
1977) and respect for freedom of choice (McDougal et al.
1980, e.g. 465). Dignity literature seems to say two key things that address the substance of dignity: as Shultziner describes these imperatives, “the should” and the “must not” (
2007, 77). The case study reflects the latter; the domain of Article 3 ECHR is undeniably ‘dignity-assaulted’.
When the case-study jurisprudence is situated within conceptualizations of the dignity idea, the distinctions around character, dimensions and demands of dignity are most immediately relevant. These distinctions, in light of the case study of dignity harm, lead to a view of dignity as something like an elemental status that can be negatively suppressed (can be the object of suppression) by, for example, injury to a sense of self-worth/destruction of a capacity for self-direction/denial of basic goods. Several questions arise, as will be noted below, but it is the process that is significant in this modelling of the constructive approach to making sense of dignity’s meaning—this expression of dignity fits interpretations in which it is used.
This modelling exercise has aimed to situate the meaning of dignity that was extracted from the examples of its use within broader conceptualizations of the idea. It has intentionally avoided trying to assess substantive conceptions of the dignity idea; others are better placed to (continue to) do this work. It has aimed to contribute something different, to take a birds-eye view of some dignity theory literature to inform a practical human rights law perspective. It presents only a snapshot of the literature and focuses on evidencing relevant recurring themes and dichotomies. The literature offers other themes and dichotomies that do not map so immediately onto Article 3 jurisprudence
75; themes such as the
subject of human dignity (the individual versus the community) and the
source of human dignity (the question of why dignity is recognized in individuals) do not relate as directly to the content of the idea of dignity that was shown by the case study to play out in the scope of the terms within the right not to be subjected to torture and associated harms. These other themes do, however, point towards further questions, that cannot be addressed here, which might influence in some way the interpretive limits of the right. The three themes of character, dimensions and demands help articulate the substance of the idea of dignity in a way that resonates with the kinds of harm that are visible in the jurisprudence.
The next step is to call upon dignity theorists to further unpack the substance of each of these relevant aspects of dignity’s prohibition-of-torture meaning. Only some brief reflections can be given here of what this process of unpacking might entail: For example, to unpack the question of what dignity demands in this context is of obvious value, being at the heart of understanding the scope of meaning of the terms that constitute the right. Ideas like humiliation, injury to a sense of self-worth and denial of a capacity for self-direction are alternative means of expressing how dignity is assaulted. These ideas themselves need to be substantiated, and more needs to be said about which expression best reflects prohibition-of-torture jurisprudence. Birnbacher’s approach, which focuses on the deprivation of basic goods, refers to the necessary means of existence (
1996, 110), something that features in ECHR case law.
76 Humiliation might also include deprivation of the necessary means of existence, depending on how that idea itself is conceptualized (e.g. Margalit
1996). The ECtHR generally aligns the term humiliation with degrading treatment specifically and not with inhuman treatment, and although more often than not it sees both of these forms as co-existing, there are equally many instances in which it places harm under only one of these headings—is humiliation the most useful term to express how the right as a whole assaults dignity? If assault to dignity is expressed as denial of a capacity for self-direction, does this encompass symbolic harm (Rosen
2012, 96)?
77 More generally, how do torture, cruel, inhuman and degrading treatment differ, if they all protect against assaults to human dignity? Dignity theorists alongside human rights interpreters should focus on a closer look at these demands, as well as dignity’s character and dimensions.
A conceptual map of relevant aspects of the dignity idea’s meaning can help to move between practical and theoretical perspectives. It has the added advantage of keeping dignity scholars and human rights law interpreters on track to minimize the risk of straying into conceptual territory that is not of direct concern in interpretation of the right not to be subjected to torture and associated harms. This part of the discussion has thereby aimed to model a way of expressing a prohibition-of-torture meaning of the dignity idea that is nuanced, conceptually precise and yet practice-rooted.