Is the “Mosquito” Teenager-Repellent Device “Degrading”?

by Julian Ku

I don’t know what to make of this report about a controversial device used to repel teenagers and children by using a high-pitched frequency only young people can hear.

The mosquito works by emitting a pulse at 16-18.5 kilohertz that switches on and off four times a second for up to 20 minutes. It emits an irritating, high-pitched sound that can be heard only by children and people into their early 20s, and is used to prevent teenagers congregating outside shops, schools and railway stations.

A Council of Europe investigation, however, calls the use of these devices — “mosquitos” — a violation of the European Convention on Human Rights.  According to this report, the devices contravene, among other things, the prohibition on discrimination based on age and the prohibition on inhuman or degrading treatment.  The Report seems to emphasize the degrading point.  I would have to know more about the devices, but on its face, I wonder how it could meet the the ECHR’s prohibition of inhuman and degrading treatment under Article 3.  Does degrading really have a separate independent meaning from the cruel and inhuman language of that provision? In other words, could something violate Article 3 by being degrading, but not cruel or inhumane? I don’t know enough about the ECHR case law to say, but it seems implausible to me.

http://opiniojuris.org/2010/06/21/is-the-mosquito-teenager-repellent-device-degrading/

3 Responses

  1. The short answer is ‘yes’. A state can violate Article 3 just by carrying out ‘degrading’ treatment of punishment. Apart from the text of Article 3 which is IMHO quite clear in this respect, there is consistent ECHR jurisprudence in this respect, for example in connection with the strip-searching of prisoners.
    One such case is Frérot v. France, App. n. 70204/01, 12 June 2007, which is very clear in stating that the threshold for ‘inhuman’ is higher than that of ‘degrading’, but both can lead to a violation of Article 3 ECHR:
    “48.  The Court accordingly concludes that the full body searches to which the applicant was subjected in Fresnes Prison between September 1994 and December 1996 amounted to degrading treatment within the meaning of Article 3. There has therefore been a violation of that Article.
    However, it considers that the level of severity required to constitute “inhuman” treatment has not been attained in the instant case.”

  2. It should be mentioned the claim that it only effects the young is misleading.  I can hear the damned things quite fine, and I’m 29.

    If anecdotal evidence on Slashdot.org is any guide, so can a lot of older people.

  3. The ECtHR does indeed view “degrading” treatment as a distinct from inhuman treatment under Article 3 of the European Convention on Human Rights. As a Grand Chamber of the Court stated in Jalloh v. Germany, App. No. 54810/00 (2006), para. 68:

    Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280), or when it was such as to drive the victim to act against his will or conscience (see, for example, Denmark, Norway, Sweden and the Netherlands v. Greece (the “Greek case”), nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12, p. 186, and Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III). Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; and Price, cited above, § 24). In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita, cited above, § 120).

    Being too old to hear the “mosquitos” for myself, I take no position on whether they meet the above standard. :)

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