CONCURRING OPINION OF JUDGE SILVIS

Holding defendants in metal cages before the court during trial amounts to degrading treatment in violation of Article 3 of the Convention. I certainly agree with th e Court ’ s judgment. Modern developments in courtroom safety have eroded old justifications for using cages. While such “caging” persists, despite the lack of manifest functional necessity, a latent function has thus become apparent. By presenting defendants in a cage, they are symbolically humiliated and portrayed as members of an inferior breed compared to ordinary humans. Therefore human dignity is at the heart of the matter, as the Court well recognises.

Although I share the opinion that this is a just judgment in essence, I have some difficult y following all of its wording. My concern is that the Court ’ s reasoning could be understood as allowing in principle some possible justification within the scope of absolute rights. A similar concern is very well expressed in the concurring opinion of Judges Keller and Nicolaou . I would like to draw attention to the sequence in the Court ’ s reasoning. The Court first, clearly and unsurprisingly, holds in paragraph 127 that Article 3 prohibits in absolute terms torture and inhuman or degrading treatment or punishment, which is why there can be no justification for any such treatment. In paragraph 136 the Court concludes that the minimum level of severity has been reached. In the light of this assessment I find it confusing that the Court then holds in paragrap h 137 that the use of metal cages can never be justified under Article 3 of the Convention. How could it be? This message is either void and should therefore have been omitted or it is otherwise worrisome at this stage in the Court ’ s reasoning. Article 3 guarantees absolute rights. Does it then make sense even to raise the possibility of justification once the measure has entered its scope? To re consider such a possibility at that stage of the reasoning, even though the Court answer s in the negative here, could weaken the understanding of its concept of absolute rights. [3]

The fact that some relativity is allowed for in assessing the severity of dysfunctions in treatment, before they are found to be within the scope of an absolute right, is a different matter. That would not be contrary to the concept of absolute rights, provided the assessment is faithfully performed in view of the underlying values. It has been observed, however, that there is seemingly a subtle but new shift with regard to the application of the principle of proportionality and Article 3. [4] That conclusion might be drawn because there is no clear line observed between what is allowed for in the assessment and what is out of the question after the threshold of Article 3 has been reached. The reference to forms of “ unjustifiable ” ill-treatment would indicate that subjective processes are involve d in the application of Article 3 , going beyond the assessment of sufficient severity for the measure to fall within the scope of that Article. Th is may cause understandable concern in that it creates an impression, albeit false and unintended, that certain breaches of Article 3 could on occasion be justified.

I have a further point for consideration. In the assessment as to whether the threshold of ill-treatment has been reached, it is common for subjective as well as objective factors to play a role. By generali s ing the finding that holding defendants in metal cages before the court during trial is a prohibited form of degrading treatment, subjective factors for the assessment of such a violation of Article 3 have become less relevant. I welcome such a generali s ation , making clear what standards should be met. In the light of this understanding , I would have welcomed a n even lesser focus on whether the applicants must have suffered from being caged before the court. They may have suffered intensely. But suppose they had not, being blessed perhaps with extraordinary mental coping capacities or owing to a sheer lack of sensitivity. [5] Would that have made a difference? I do n o t think it should have done . Holding a defendant in a metal cage has a strong theatrical dimension, staging a ritual of humiliation. [6] Where it is the State ’ s obligation to set the scene for a fair trial , such humiliating exposure of defendants before the court constitutes degrading treatment within the meaning of Article 3.

[1] . Natasa Mavronicola and Francesco Messineo , “ Relatively A bsolute ? The Undermining of Article 3 ECHR in Ahmad v UK ” , (2013) 76(3) Modern Law Review 589-603 , at 592; D avid J. Harris, M ichael O’Boyle, E d P. Bates and C arla M. Buckley, Harris, O’Boyle & Warbrick : Law of the European Convention on Human Rights (Oxford: Oxford University Press 2009 ) , at 69.

[2] . Natasa Mavronicola and Francesco Messineo , cited above , at 593 et seq .

[3] . See Alan Gewirth , “Are There Any Absolute Rights?” (1981) 31 The Philosophical Quarterly ; Michael K. Addo and Nicholas Grief, “Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?”, in European Journal of International Law 9 (1998), 510-524 ; Natasa Mavronicola , “What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights”, in Human Rights Law Review ( 30 November 2012) ; Yukata Arai-Yokoi, “Grading Scale of Degradation: Identifying the Threshold of degrading Treatment under Article 3 ECHR”, in Netherlands Quarterly of Human Rights , Vol. 21/3, 385-421, 2003 .

[4] . See Martin Curtice , Advances in psychiatric treatment (2010), vol. 16, 199–206 , doi : 10.1192/apt.bp.109.006825 , p. 204, BOX II.

[5] . Compare the Commission Report in the “Greek case” (applications nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12 , p. 501 ) : “ It appears from the testimony of a number of witnesses that a certain roughness of treatment of detainees by both police and military authorities is tolerated by most detainees and even taken for granted. Such roughness may take the form of slaps or blows of the hand on the head or face. This underlies the fact that the point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive, varies between different societies and even between different sections of them. ”

[6] . See Hannes Kuch , “ The Rituality of Humiliation: Exploring Symbolic Vulnerability ”, in P. Kaufmann et.al. ( eds ), Humiliation, Degradation, Dehumanization , Library of Ethics and Applied Philosophy, 24 (Springer 2011), Ch. 4.