Bouyid v Belgium: The “minimum level of severity” and Human Dignity's Role in Article 3 ECHR

The Grand Chamber of the European Court of Human Rights recently delivered an important judgment on Article 3 ECHR in the case of Bouyid v Belgium. In Bouyid, the Grand Chamber was called upon to consider whether slaps inflicted on a minor and an adult in police custody were in breach of Article 3 ECHR, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Overruling the Chamber judgment in the case, the Grand Chamber ruled by 14 votes to 3 that there had been a substantive violation of Article 3 in that the applicants had been subjected to degrading treatment by members of the Belgian police; it found that there had been a breach of the investigative duty under Article 3 also. In this comment, I focus on the fundamental basis of disagreement between the majority of the Grand Chamber and those who found themselves in dissent, on the question of whether there had been a substantive breach of Article 3. The crux of the disagreement lay in the understanding and application of the test of ‘minimum level of severity’, which the ECtHR has established as decisive of whether a particular form of ill-treatment crosses the Article 3 threshold, seen also in light of Article 3’s absolute character, which makes it non-displaceable – that is, immune to trade-offs of the type applicable in relation to qualified rights such as privacy and freedom of expression. I consider the way the majority of the Grand Chamber unpacked and applied the concept of dignity – or ‘human dignity’ – towards finding a substantive breach of Article 3, and briefly distil some of the principles underpinning the understanding of human dignity emerging in the Court’s analysis.

C Dupré, The Age of Dignity (Hart 2015)

Bob Dylan famously searched high and low for it and left us wondering ‘what it’s gonna take’ to find it. These days, the elusive dignity – and her equally, if not more, elusive cousin human dignity – has captured the imagination of not just the poet and philosopher, but also, in light of its increasing prominence in an array of legal contexts, the legal scholar. Catherine Dupré’s The Age of Dignity comes at a high point in (human) dignity scholarship, with the publication of numerous texts in the English language emerging on the subject, and with interest in it looking unlikely to dissipate any time soon. In this review, I consider (human) dignity’s promise and pitfalls as it transpires in Dupré’s wide-ranging and ambitious monograph.

Family perceptions of end-of-life care in long-term care facilities

The study examined the utility of the Family Perception of Care Scale (FPCS), which consists of four subscales: resident care, family support, communication, and rooming. This instrument was developed for the purposes of this study. Overall, family members were satisfied with end-of-life care. Satisfaction did not have a statistically significant relationship to family and resident characteristics. Survey questions with the highest number of low satisfaction ratings included staffing levels, updating families and involving them in care planning, and decision making. Family members considered pain control an important priority, followed by comfort care that included caring for a family member with dignity and sensitivity. Family members also valued it when staff were able to inform them that the death of their family member was near. Place of death was significantly associated with satisfaction, family members being more satisfied with end-of-life care when their family member died in the LTC facility as opposed to in hospital.

Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s discourse on the justified use of force

This article discusses the discourse on the justified use of force in the Strasbourg Court’s analysis of Article 3. With particular focus on the judgment in Güler and Öngel v Turkey, a case concerning the use of force by State agents against demonstrators, it addresses the question of the implications of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a perspective which suggests that the discourse on the justified use of force can be reconciled with Article 3’s absolute nature.

The effect of choice on motivation for young children on the autism spectrum during discrete trial teaching

Self-determination and decision-making are acknowledged internationally as key rights of persons with disabilities and should play an important role in the development of educational plans and procedures. Not only is the chance for individuals with developmental disabilities to select their own tasks, leisure activities or reinforcers a valuable way of enhancing rights-based education and personal dignity, but choice-making opportunities may also function as a useful clinical or educational tool if they actually improve the efficacy of programmes aimed at the acquisition of socially relevant behaviours and life skills or the reduction of challenging behaviours.

The study reported here assessed whether or not choice affected effectiveness of an educational procedure for three children on the autism spectrum. Following a preference assessment, a number of discrete teaching trials were conducted with each child and, contingent upon targeted responses, either the child or the therapist selected one of three preferred reinforcer items. Reinforcer choice did not affect intervention effectiveness for two of the children; however, performance and motivation improved for the third child. Results re-affirmed the importance of thorough preference assessments prior to intervention and showed that additional stimulus choice contingent on the target response may improve motivation and outcomes for some children.

An Enchanted Tool? Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters

Despite previous attempts at codification of international law regarding international responses to natural and human-made disasters, there is currently no binding international legal framework to regulate the provision of humanitarian assistance outside armed conflicts. Nevertheless, since the International Law Commission (ILC) included the protection of persons in the event of disasters on its programme of work in 2006, it has provisionally adopted eleven draft articles that have the potential to create binding obligations on states and humanitarian actors in disaster settings. Draft articles adopted include the definition of ‘a disaster’, the relationship of the draft articles to the international humanitarian law of armed conflict, recognition of the inherent dignity of the human person, and the duty of international cooperation. However, the final form of the draft articles has not been agreed. The Codification Division of the UN Office of Legal Affairs has proposed a framework convention format, which has seen support in the ILC and the UN General Assembly Sixth Committee. The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. The article therefore provides an overview of the international legal regulation of humanitarian assistance following natural and human-made disasters, and the ILC’s work to date on the topic. It then examines two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee. Drawing on the UN Guiding Principles on Internal Displacement, the development and implications of binding and non-binding international texts are examined, followed by an analysis of the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work.

Challenges of a Developmental Idea towards Sustainability

This paper attempts to situate and deconstruct the meanings associated with the term development in the context of the developing world. The arguments made highlights the deeply contested and fragmented terrain of development. The paper provides a historical overview of the changing nature of discourses on development, how the imageries of development have shifted since the postwar period. It deploys diverse meanings associated with development as a concept and as a theory. Thus development without dignity means little for those living in the margins of the society. At the same time the language of development has undergone revolutions and convulsions and the role of buzzwords and catch phrases have only helped to prolong misery in a neoliberal world. Development has become a 'one size fits all' concept shorn of cultural and regional specificities. It has been decontextualised and dehumanised to relate to targets
resulting in greater dissonance than resolution of aim and outcomes. The way forward is a better appreciation of the cultural capacity of the social groups for whom development is critical for survival. The conclusion highlights the endemic contradictions inherent in the meaning and delivery of development as a goal, especially when we seek to achieve resilient and sustainable development.

Keywords: Development, Neoliberalism, growth, participation, empowerment,
efficiency, market, state, societies, entitlements and capabilities, stakeholder, rights, structural adjustments, globalisation, self-help, doing development, freedom and
unfreedom.

Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, in spite of its considerable potential to alter the penal landscape.

This paper elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the paper provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Constitutional Questions

Constitutional Questions
Professor John Morison MRIA School of Law, Queen’s University Belfast
How should we live together? Is there any ethical question more fundamental than this?
Is a constitution only about who does what in government or is it about what is to be done? Does a constitution provide the ground rules for deciding this or is it part of the answer itself? Is it the repository of fundamental values about how to live? What is the good life anyway? Is it about the preservation of life and liberty, and the pursuit of happiness? Or something more? What about preserving (or radically reordering) the distribution of property? Or ensuring that everyone has the same chances? Is it the job of the constitution to simply promise dignity, equality and freedom, or to deliver these values?
If the constitution is the place where the state undertakes “to promote the welfare of the whole people”, what does this actually mean in practical terms? And who pays for it? Should a constitution give us an entitlement to at least a basic minimum by way of a lifestyle? Or is it the job only of the political process to decide issues about the allocation of resources? What do we do if we feel that we cannot trust our politicians? Are there basic rules that should govern the operation of politics and are there fundamental values that should not be overridden? Are these “sacred and undeniable”? Or to be interpreted in line with modern conditions and within a “margin of appreciation”? Who decides on this in individual cases?
Who is entitled to any of this, and on what basis? Is everyone equal? Is the constitution about making it clear that no-one is better than you, and that in turn, you are better than no-one? Is a constitution about ensuring that you will always be an end in yourself and never simply a means to anyone else’s end? Or does it simply reinforce the existing distribution of power and wealth?
Are citizens to be given more than those who are not citizens? Is more to be expected from them, and what might that be? Can the constitution tell us how we should treat those from outside who now live with us?
What is the relationship between a constitution and a nation? Who is in the nation anyway? Should we talk about “we the people” or “we the peoples”? Should a constitution confirm a nationality or facilitate diversity? Is the constitution the place to declare aspirations for a national territory? Or to confirm support for the idea of consent? What about all our neighbours – on the island of Ireland and in Great Britain? Or in Europe? And beyond?
What is the relationship between a constitution and democracy? Is a constitution simply the rules by which the powerful govern the powerless? In what sense does a constitution belong to everyone, across past, present and future generations? Is it the place where we state common values? Are there any? Do they change across time? Should the people be asked about changes they may want? How often should this be done? Should the constitution address the past and its problems? How might this be done? What do we owe future generations?
Finally, if we can agree that the constitution is about respecting human rights, striving for social justice and building a fair and democratic Ireland – North and South – how do we make it happen in practice?

Designing for dementia : an assessment of the impact of the physical environment on wayfinding success for residents in long term care settings

It is acknowledged that one of the consequences of the ageing process is cognitive decline, which leads to an increase in the incidence of illnesses such as dementia. This has become ever more relevant due to the projected increase in the ageing demographic. Dementia affects visuo-spatial perception, causing difficulty with wayfinding, even during the early stages of the disease. The literature widely recognises the physical environment’s role in alleviating symptoms of dementia and improving quality of life for residents. It also identifies the lack of available housing options for older people with dementia and consequently the current stock is ill-equipped to provide adequate support.
Recent statistics indicate that 80% of those residing in nursing or residential care homes have some form of dementia or severe memory problems. The shift towards institutional care settings, the need for specialist support and care, places a greater impetus on the need for a person-centred approach to tackle issues related to wayfinding and dementia.
This thesis therefore aims to improve design for dementia in nursing and residential care settings in the context of Northern Ireland. This will be undertaken in order to provide a better understanding of how people with dementia experience the physical environment and to highlight features of the design that assist with wayfinding. Currently there are limited guidelines on design for dementia, meaning that many of these are theoretical, anecdotal and not definitive. Hence a greater verification to address the less recognised design issues is required. This is intended to ultimately improve quality of life, wellbeing, independence and uphold the dignity of people with dementia living in nursing or residential care homes.
The research design uses a mixed methods approach. A thorough preparation and consideration of ethical issues informed the methodology. The various facets were also trialled and piloted to identify any ethical, technological, methodological, data collection and analysis issues. The protocol was then amended to improve or resolve any of the aforementioned issues. Initially a questionnaire based on leading design recommendations was conducted with home managers. Semi-structured interviews were developed from this and conducted with staff and resident’s next of kin. An evidence-based approach was used to design a study which used ethnographic methods, including a wayfinding task. This followed a repeated measures design which would be used to actively engage residents with dementia in the research. Complementary to the wayfinding task, conversational and semi-structured interviews were used to promote dialogue and direct responses with the person with dementia. In addition to this, Space Syntax methodologies were used to examine the physical properties of the architectural layout. This was then cross-examined with interview responses and data from the wayfinding tasks.
A number of plan typologies were identified and were determined as synonymous with decision point types which needed to be made during the walks. The empirical work enabled the synthesis of environmental features which support wayfinding.
Results indicate that particular environmental features are associated with improved performance on the wayfinding tasks. By enhancing design for dementia, through identifying the attributes, challenges with wayfinding may be overcome and the benefits of the physical environment can be seen to promote wellbeing.
The implications of this work mean that the environmental features which have been highlighted from the project can be used to inform guidelines, thus adding to existing knowledge. Future work would involve the dissemination of this information and the potential for it to be made into design standards or regulations which champion design for dementia. These would increase awareness for designers and stakeholders undertaking new projects, extensions or refurbishments.
A person-centred, evidence-based design was emphasised throughout the project which guaranteed an in-depth study. There were limitations due to the available resources, time and funding. Future research would involve testing the identified environmental features within a specific environment to enable measured observation of improvements.

Human Rights Histories

This review article considers Samuel Moyn’s book The Last Utopia:Human Rights in History in the context of recent trends in the writing of human rights history. A central debate among historians of human rights, in seekingto account for the genesis and spread of human rights, is how far current humanrights practice demonstrates continuity or radical discontinuity with previousattempts to secure rights. Moyn’s discontinuity thesis and the controversysurrounding it exemplify this debate. Whether Moyn is correct is importantbeyond the confines of human rights historiography, with implications for theirmeaning in law, as well as their political legitimacy. This review argues that Moyn’s book ultimately fails to convince, for two broad reasons. First, a more balanced judgment would conclude that the history of human rights is both one of continuity and discontinuity. Second, and more importantly, Moyn fails to offer a convincing account of the normativity of human rights. Undertaking a history of human rights requires a deeper engagement with debates on the nature and validity of human rights than Moyn seems prepared to contemplate.

The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.