CONCURRING OPINION OF JUDGE YUDKIVSKA

I voted together with my colleagues for the finding that Article 8 of the Convention is applicable in the present case, albeit with some hesitation.

There is no doubt that the applicant was deeply humiliated by her colleagues – both superiors and subordinates – and as a result, as concluded in paragraph 82 of the judgment, “felt distress” and experienced “psychological problems related to conflict at work” and “post-traumatic stress disorder”.

However, is this enough to reach the threshold of severity required to trigger the State’s positive obligations under Article 8?

At first glance it looks like an unfortunate, but rather banal, conflict situation in the workplace: the applicant was not allowed to organise duty shifts; some of her colleagues kept ignoring her and failed to perform tasks assigned by her; her report on the actions of one of the prisoners was never dealt with; the same prisoner said that she was not worried about the report as she had been told that the applicant would soon be “out of there”; and she was ordered to make coffee twice a day for one of the prisoners. This clearly put the applicant in a very difficult situation; however, by itself, this obvious unease was not capable of coming within the ambit of Article 8 requiring the State to react.

In addition, at one point the front windscreen of the applicant’s car was broken; about six months later a colleague suggested she should lose fifty kilos in order to “look acceptable”; and some twenty months later she was beaten up in a car park – an incident which, according to the Chamber, “could not necessarily be detached from the other incidents complained of” (in other words, it was likely that this incident was part of a campaign against the applicant, although that was not proved).

All of these incidents taken together constituted “bullying” in the applicant’s view.

In my years at the Court, I have consistently opposed the proliferation of what are construed to be “fundamental rights”. I have argued that “the Convention cannot be interpreted as an inexhaustible source of different privileges which were never intended to be guaranteed” [1] ; that Article 8 does not require “the State to guarantee the level of comfort an individual seeks ... A mere issue of a greater or lesser degree of psychological comfort does not ... reach the required ‘level of seriousness’, and goes far beyond the original intentions of the drafters of the Convention to protect the private life of an individual against arbitrary interference by the public authorities” [2] ; and that “the Convention ... is concerned exclusively with the protection of fundamental human rights rather than with the fostering of feelings of one kind or another” [3] .

Lord Bingham famously observed that “[t]he Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘the heartache and the thousand natural shocks that flesh is heir to” [4] (emphasis added). In another recent separate opinion I quoted Milan Kundera, for whom the very notion of “human rights” had lost its meaning, becoming more a “kind of universal stance of everyone toward everything ... the desire for love [being turned into] the right to love, the desire for friendship [being turned into] the right to friendship ...” [5] .

From this perspective, the applicant’s sufferings appear to be a regrettable “heartache” and a “desire” for normal relations with colleagues, rather than a fundamental right. It is hard to imagine that the “founding fathers” of the Convention who drafted Article 8 – explicitly seeking to limit it “solely to the essential rights” [6] (emphasis added) – as a classic negative right guaranteeing protection from unlawful and arbitrary interference with one’s private and family life, meant to secure a right to a normal working atmosphere and protection from slurs on the part of one’s co-workers.

It is noticeable that, in recent years, the Court has dramatically expanded the protection of the personal sphere to include virtually all “aspects of an individual’s physical and social identity” [7] , in other words to include everything that, the Court believes, is of essential importance for a person.

Due to growing standards of human dignity, the Court can no longer apply post-Second World War approaches to current pressing human rights issues. The human sensitivity threshold to griefs has become extremely low. As humiliation is a breeding ground for psychological suffering, our tolerance towards it has declined considerably.

Social advances require evolutive interpretation. Although they are much harder to pin down than advances in technology, they call for application of the “living tree” doctrine even more than technological development does.

Human dignity is harmed when a person is marginalised, disregarded or degraded, and the concept of an attack on human dignity today includes not only physical trauma, not only deeply traumatic experiences in, for example, a war- or disaster-related context, but many other negative emotions. The boundaries of what is socially acceptable are dramatically shifting as today’s society becomes more sensitive to many kinds of sufferings of different social groups that were previously deprived and powerless: women, children, minorities, and so on. Reparation for past offences against them requires a change of social norms, and the increased focus on words is a marker of important social changes: there are more and more words and expressions in our language that cannot be uttered because they offend the feelings of certain social groups and thus are triggers that might cause people to relive traumatic experiences.

The margins of violence and of trauma are becoming blurred: whether one was physically or verbally attacked lost a major difference – both would be trauma, and both would demand empathy. Humiliation limits human dignity, and, in the new sensitivity, feelings and emotional integrity seek legal protection. Human dignity, as elegantly put by the Supreme Court of Canada, “means that an individual or group feels self-respect and self ‑ worth” [8] . The most important emotions of self-assessment need a society’s acceptance of oneself as an inherently valuable human being, whilst humiliation produces in a person a perception of inferiority incompatible with human dignity.

Two recent judgments of the Court relating to bullying are worth mentioning in this context.

In F.O. v. Croatia [9] , the Court dealt with a complaint from a 17-year-old student in a public high school whose teacher had on several occasions called him “a moron”, an “idiot”, a “fool” and a “stupid cop” (this last one because the applicant’s father worked in the police); he subsequently underwent psychological treatment and a psychologist found that owing to the psychological harassment at school the applicant was suffering from an acute anxiety disorder.

In a sharply divided formation, by four votes to three, the Court found Article 8 to be applicable, but stressed “the best interests of the applicant as a child” and “his emotional disturbance, which affected his psychological well-being, dignity and moral integrity” (§ 60).

In Beizaras and Levickas v. Lithuania [10] , two gay applicants received online comments under their photo on social media that showed hatred towards LGBT people in general, but also directly threatened them; furthermore, on several occasions the applicants had been verbally harassed in public places. They had also received several threatening private messages in their social media mailboxes. The Court found that these “offensive and vulgar” comments had “affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life” (§ 117). Reference was also made to “human dignity as a constitutional value” (ibid.).

Obviously, this does not mean that every interference with human dignity reaches the Article 8 threshold, but only those that have a serious effect on the psychological integrity of the victim.

In this respect I could not agree more with Dr Dzehtsiarou, one of the leading commentators on the ECHR, who pointed out that “the role of a human rights court is to ensure that minimal rights are properly protected while avoiding ‘human rights inflation’, which was defined as ‘the tendency to frame any grievance as a rights violation’” [11] .

One may also refer to the brilliant formula of the Italian philosopher Massimo Renzo, who suggested the notion of a “minimally decent human life” as the basis for human rights. He warned, however, that “a minimally decent life is something less than a minimally happy or flourishing life” [12] . To distinguish “minimally decent” from “minimally happy” remains the main challenge for the evolutive interpretation of the Convention and the Court’s competence ratione materiae .

This being so, protection from bullying as an attack on human dignity (actually the very aim of bullying is dehumanisation – a destruction of human dignity) in the modern world clearly relates to a “minimally decent” life.

The role of the judge, in Justice Barak’s apt words, is “ bridging the gap between law and society” [13] . Our society today with its increased sensitivity requires us to see bullying as a human rights abuse. If the Court does not reflect these societal changes it will be unable to reflect the social reality and advance human rights with the same speed. Therefore, in my view, the present judgment does not amount to “human rights inflation”.

[1] Partly dissenting opinion in the case of Evers v. Germany , no. 17895/14, 28 May 2020.

[2] Concurring opinion in the case of Dubská and Krejzová v. the Czech Republic , nos. 28859/11 and 28473/12, 11 December 2014.

[3] Joint partly dissenting opinion in the case of Parrillo v. Italy [GC], no. 46470/11, ECHR 2015.

[4] Brown v. Stott (also known as Brown v. Procurator Fiscal (Dunfermline) ) [2001] 2 WLR 817 PC.

[5] Milan Kundera, Immortality , 1991.

[6] Travaux préparatoires concerning Article 8. https://www.echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-ART8-DH(56)12-EN1674980.pdf , p.4 .

[7] See Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017.

[8] Law v. Canada (Minister of Employment and Integration) , (1999) 1SCR 497, § 53.

[9] No. 29555/13, 22 April 2021.

[10] No. 41288/15, 14 January 2020.

[11] Kanstantsin Dzehtsiarou, Can the European Court of Human Rights Shape European Public Order? CUP, 2021, pp. 4-5.

[12] Renzo, Massimo, “Human Needs, Human Rights”, in: Rowan Cruft, Matthew Liao and Massimo Renzo (eds.), The Philosophical Foundations of Human Rights , Oxford: Oxford University Press, 2015, p. 570.

[13] See Aharon Barak, The judge in a democracy , Princeton University Press, 2006.