Divorcing the Substantive from the Procedural in Police Violence Cases at the ECtHR: A Just Institutional Approach?


* Published as part of the 2023 CoI Conference: 'Towards just institutional approaches to conflict prevention and resolution' *



This blog post examines how the European Court of Human Rights (ECtHR) handles complaints of racist police violence. The ECtHR separates the substantive and procedural aspects of ill-treatment and discrimination. The post argues that this division is beneficial when considering the violent act in itself, but can lead to losing sight of systemic biases when applied to instances of alleged discrimination. The authors argue for a more comprehensive approach that considers the interconnected nature of discriminatory acts and investigative failures. 


1. Introduction


The ill-treatment of racialized minorities at the hands of the police is a pressing issue in today’s society. This blog post considers instances of racist police abuse from the perspective of human rights law, recognizing these incidents as a violation of the prohibition of inhuman and degrading treatment as well as a violation of the prohibition of discrimination. Such conflicts between members of minority communities and law enforcement officials occur in the context of institutional racism, and they weaken trust between state authorities and residents. Complaints arising from ill-treatment by police in a racist context emerge before regional human rights courts, such as the European Court of Human Rights (ECtHR), because the domestic legal system is at times ill-equipped to prevent or resolve these conflicts, due to the presence of the very institutional biases which caused the abuse to occur in the first place. Because of the elusive nature of this context – namely, the climate of discrimination and abuse that happens under the exclusive control of state agents – complainants are often in a difficult position to argue both elements of their case: that the abuse happened to them, and that it happened to them because of their perceived ethnicity.


This post focuses on how the ECtHR assesses complaints about police violence against racialized minorities. In this post, we examine the ECtHR’s current, orthodox approach in such cases, whereby it distinguishes between the substantive and procedural aspects of the prohibition of ill-treatment under Article 3 and the prohibition of discrimination under Article 14 of the European Convention on Human Rights (ECHR). This means that the ECtHR assesses separately whether the actions of the domestic authorities occasioned the violation itself (substantive element) or whether the domestic legal framework is sufficient to prevent and remedy rights violations (procedural element). We conclude that while separating substantive and procedural aspects of the abuse inflicted by police officers can benefit the Applicant, this is not the case when the substantive and procedural aspects of the discriminatory element of the violence are divorced. 


2. Procedural aspects of Article 3


In the literature, it has been argued that a ‘turn to procedure’ is apparent within the case law of the ECtHR. While scholars are divided as to precisely what falls within the contours of this development, in general, it can be understood to encompass the various ways in which the Court appears to be devoting greater attention to the procedural obligations associated with substantive convention rights in its jurisprudence. Janneke Gerards has created a typology of cases that she associates with the procedural turn, distinguishing between (a) the Court’s practice of reading positive procedural obligations into substantive Convention rights and (b) the Court’s reliance on the quality of national decision-making in the reviewing of proportionality or reasonableness of a contested measure. The first limb of her typology corresponds to the Court’s approach in racist police violence cases


Although the text of the ECHR prescribes no explicit procedural obligations for the State in connection with Article 3, through judicial interpretation, the Court has found that it implies a positive procedural obligation to investigate the circumstances of any alleged violations thereof. The State’s compliance with its obligation to investigate is assessed as a separate ‘procedural’ limb of the relevant provision. This ‘bifurcation’ approach, whereby the Convention right is subdivided into two distinct limbs, based on the procedural and substantive obligations implied, has become ubiquitous in the context of Article 3 but can also be seen in the Court’s jurisprudence in other areas. The bifurcation approach can enable the Court to find a procedural violation due to the State’s failure to investigate, even in cases where a lack of evidence precludes the Court from finding a substantive violation - for instance when ‘the events in issue lie wholly or in a large part within the exclusive knowledge of the authorities,’ as expressly articulated by the ECtHR in Salman v Turkey (para 100). 


The value of this approach to Article 3 could already be seen in Assenov and Others v Bulgaria, relating to alleged police violence against a 14-year-old Roma boy who sustained injuries while in police custody. It was not disputed that the boy had been the victim of violence but there was insufficient evidence to establish that it had been perpetrated by the police. The evidence was sufficient, however, to establish a ‘reasonable suspicion’ that the injuries may have been caused by the officers, generating a positive obligation for the State to effectively investigate the circumstances thereof. The inefficiency of the investigation allowed the Court to find a procedural violation of Article 3 even though no substantive violation could be proven (paras 102-106). Thus, we can see that the bifurcation approach can provide an additional layer of protection for the Applicant. 


3.  Procedural aspects of Article 14 


While that is true for Article 3, the same cannot be said about Article 14. This is the ECHR’s anti-discrimination clause, which can only be invoked in connection with another self-standing Convention right - in cases of racist police violence usually Article 3. Since 2004, the Court has begun to distinguish between the substantive and procedural aspects of Article 14, adopting a bifurcation approach here too. Such an approach was suggested by Judge Bonello in his dissenting opinion in Angeluelova v Bulgaria where he criticized the fact that a violation of Article 14 had never been found in a racist police violence case before and condemned the Court for its inability to recognize that the violation of the Article 3 rights of racialized minorities is not a result of “well-disposed coincidence.” This suggestion, however, in our reading is the last in a list of other potential options (including for example, the possibility of shifting the burden of proof to the State and allowing for greater reliance on inferences), which could more effectively reflect the complexity of racist police abuse. 


As currently applied by the Court, a procedural approach to Article 14 asks only whether the domestic authorities should have investigated any potential racist element of the complaint in light of specific indicators in the individual case. This approach effectively disregards the evidentiary value of an overall context of a general discriminatory climate against racial and ethnic minorities with regard to the entirety of the case. If however, an obligation to investigate is triggered and domestic authorities are found lacking, the Court will find a procedural violation of Article 14 in conjunction with Article 3. It is hard to imagine that an investigation already found to be ineffective in general would be effective in the particular aspect of unmasking racist motives and thus compliant with the procedural element of Article 14. Therefore even though we agree that acknowledging the role of discrimination at the very least in this aspect is better than disregarding the provision altogetehr, the finding of a partial violation does not recognize the extent of the issue



4. Conclusion


We conclude that in the context of Article 14 specifically, divorcing the procedural from the substantive creates a false dichotomy between two integrated elements of the same complaint. This effectively blinds the Court to systemic issues such as institutional racism, the substantive elements of which cannot be easily disentangled from the State’s procedural failings. In our view, this is an arbitrary separation: both the actual direct, racist ill-treatment of an individual as well as a reluctance or failure to investigate alleged instances thereof - again due to the victim’s perceived ethnicity - result from the self-same system of bias against racialized members of society. In our view, discrimination is discrimination and should be qualified as such in its entirety before the ECtHR. 


Emma Várnagy is a doctoral researcher at Ghent University. Her research focuses on the question of evidence in violent discrimination cases and the consequences on human rights accountability if such evidence is lacking or neglected. Harriet Ní Chinnéide is a doctoral researcher at Hasselt University. Her research focuses on procedural review in the European Court of Human Rights. Both researchers are part of the iBOF project ‘Future Proofing Human Rights: Developing Thicker Forms of Accountability.’ More details on the project are available here. Both authors will speak at the 2023 CoI Conference: 'Towards just institutional approaches to conflict prevention and resolution'.