President Trump, the new leader of the free world has declared that ‘torture works’ and that his administration might consider re-instating waterboarding of enemy suspects. Many who recoil in dismay at such statements reassure themselves that, even if the government cannot be trusted, at least courts have long since given up the use of torture. But have they?
Judicially-authorised torture (or other forms of degrading treatment) has been under investigation in recent court decisions in Strasbourg and several US states.
The European Court of Human Rights has examined the use of metal cages in court relation to Article 3 of the European Convention on Human Rights, the article that prohibits torture and inhuman or degrading treatment or punishment. It found that putting accused people in metal cages in court could never be justified and violated Article 3 of the Convention (Svinarenko and Slyadnev v. Russia, 2014). The violation amounted to degrading treatment, but not torture. The French Republic may well fall foul of this decision – a September 2016 edition of the weekly magazine Parisien carries an image of a new box for the accused in a court in Alençon, Normandy, with bars around it. By any standards this is a metal cage.
The European court has also turned its attention to glass cages, such as those used routinely in almost every criminal court in England and Wales, and France, and quite a few courtrooms in Australia and Canada. The European court found that one such ‘glass cabin’ (as they described it) in a Russian court did indeed violate Article 3 and amounted to degrading treatment – the space was too crowded. The cabin also violated Article 6 (right to effective representation); the accused could not speak to their lawyers in private (Yaroslav Belousov v Russia, 2016). Another glass cage in another Russian court meanwhile did not violate these standards, the court found. It is likely that glass boxes will come under increasing scrutiny by courts as they seek to work out which glass boxes are likely to be found prejudicial and which are not. However advocacy groups such as JUSTICE in England and Wales are campaigning to get rid, not just of glass cages in court, but docks altogether.
Across the Atlantic where putting accused people in docks has been found to be unconstitutional (at least when juries are present), other measures may be used, some of which may be considerably worse. A Maryland judge was found guilty in 2016 of authorising what could be considered judicial torture. During the jury selection process the defendant made what he considered a legal point. The judge disagreed, and ordered a sheriff’s deputy to send a 50,000 volt shock through the defendant’s body from a stun belt. Torture is defined by international conventions as the deliberate infliction of severe pain on others to get information out of them, punish them or intimidate them. One defence against this charge is that it was part of legal sanctions. This was clearly not the case here because the judge subsequently pleaded guilty to violating the civil rights of a defendant, was given probation and ordered to take anger management classes. Whether experiencing an electric shock is ‘severe’ enough to constitute torture is a matter for judgement; perhaps like metal cages it reaches the level of inhuman or degrading treatment. It can, according to the manufacturers, cause the victim to lose consciousness, vomit and defecate. Unlike the cage, it operates as a threat, and may have a chilling effect on defendant’s ability to participate in their trial.
A few years earlier a judge in Long Beach California had authorised a defendant to be zapped for talking too much. The judge was reprimanded and the defendant was paid $275,000 compensation by the County. Both cases illustrate both the possibility of judicial torture or degrading treatment in (some) US courts, but also a robust process to regulate such practices, and hold offenders accountable.
One general principle that comes out of US court decisions on the use of such devices is that there must be specific evidence of ‘manifest need’ (such as previous escape attempts or threats to court officials) and evidence for this must be established by the court in a hearing. Yet in most courts in England or France accused people are routinely placed in glass cages without evidence of manifest need in the specific circumstances of their case.
From Europe a clear principle emerges from court decisions that it is important to go beyond mere appearances, and consider the inherent dignity of the person. Putting stun belts on defendants, regardless of who could see them, would almost certainly violate the dignity of the accused and fall foul of Article 3 of the European Convention of Human Rights.
So could torture could happen in contemporary courts? Perhaps, but degrading or inhumane treatment of the accused (at least in the considered decisions of major courts) seems to be frequent enough to be almost routine. If courts are to deal with executive governments set on waterboarding suspects, they should get their own houses in order first.