The dismissal of the revision request in the case of Ireland v UK

 Introduction*

On 20 March 2018 the European Court of Human Rights (ECtHR) has dismissed, by six votes to one, the Irish Government’s request to revise the 1978 Ireland v UK judgment.[1]

The case concerned the use, by British authorities, of ‘disorientation’ or ‘sensory deprivation’ techniques on men detained under emergency powers during Northern Ireland’s civil strife. The so-called ‘five techniques’ consisted in hooding, wall standing in stress position for long periods of time, sleep deprivation, subjection to noise, food and water deprivation. The conclusion reached in 1978 by the ECtHR was that, although the techniques ‘undoubtedly amounted to inhuman and degrading treatment’, ‘they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’.[2]

The revision request, submitted under Rule 80 § 1 of the Rules of Court, aimed at obtaining a different legal qualification of the techniques: the Irish Government produced newly discovered evidence, on the basis of which it was alleged that the 1978 judgment should have considered the techniques as torture.[3]

The five techniques have been used by other Governments’ agencies in Afghanistan, Iraq and detention facilities such as Guantanamo, and the 1978 judgment has been cited by the 2002 ‘Torture Memo’ to justify the conclusion that the use of similar techniques by the United States did not amount to torture. It is therefore not surprising that the dismissal of the revision request has provoked strong reactions among human rights activists.

However, the dismissal is correctly grounded on technical arguments which derive logically from the Court’s case law, and it should not be read as a rejection of the opinion according to which the techniques amount to torture. The present post analyses the dismissal and argues that it should be welcomed as a proof of the Court’s consciousness of the extent of its own interpretative powers.[4]

The 1978 judgment

Ireland v UK was the first interstate application lodged before the ECtHR. Its exceptional nature lied also in the fact that the respondent Government had acknowledged the violation for which the applicant state had set in motion the proceedings.[5] Thus, before the Court it needed not to be established whether the five techniques had been used: what was disputed was the amount of damages caused by them, a key factor for their legal qualification under Article 3 of the European Convention on Human Rights (ECHR, or the Convention).

Article 3 ECHR prohibits ill-treatments of two kinds: ‘torture’ and ‘inhuman and degrading treatments’. The dividing line between the two notions has been clarified progressively by the Court’s case law,[6] but in 1978 it was already clear that the severity of the treatment played a significant role in the distinction.[7]

The European Commission issued a report and concluded, by a unanimous vote, that, while it was clear that the techniques resulted in no physical injury, the available evidence did not allow to establish the exact degree of their psychiatric after-effects;[8] however, in light of their systematic application and of the underlying purpose (i.e., extracting information from prisoners) they amounted to torture.

The Court, to whom the case was subsequently referred, reached a different conclusion. While sharing the view that the five techniques amounted to inhuman and degrading treatments, having regard to other instruments of international law,[9] it concluded that the notion of torture is meant to attach ‘a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.[10] In the light of the factual findings, the Court concluded that the five techniques did not occasion ‘suffering of the particular intensity and cruelty implied by the word torture as so understood’.[11]

The revision request

The revision request lodged by Ireland was grounded on Rule 80 of the Rules of Court, which reads as follows:

‘A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.’

The Irish Government alleged that in 2014 it had become aware of previously secret documents, including medical reports by Dr. L (one of the experts heard by the Commission), which if known to the Court at the time of the judgment, would or might have had a decisive influence.[12] The documents demonstrated that in 1978 it was already clear that the effects of the five techniques could be substantial, severe and long-lasting, thus justifying their legal qualification as ‘torture’.[13]

The UK contested the revision request, alleging, inter alia, that it was not grounded on new facts but aimed at acquiring new evidence, and that, even assuming it was grounded on new facts, these did not have a decisive influence.[14]

The 2018 revision judgment

The 2018 judgment is grounded on two premises.

The first premise is the need to apply a restrictive interpretation. The Court recalls that revision is an exception to the rule of finality of judgments, which is not provided for by the Convention but by Rule 80 of the Rules of Court.[15] In order to protect legal certainty (essential element of the rule of law) revision can only be allowed in exceptional circumstances, which must be subject to strict interpretation: accordingly, where doubts remain as to whether or not a new fact actually could have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.[16]

The second premise is the need to take into account the temporal aspect of the revision request. The Court underlines that the new facts grounding the request occurred almost 40 years after the original judgment. Since then, the Court’s case law on the notion of torture has considerably evolved; the long-term effects of a treatment when distinguishing between torture and inhuman treatment are now particularly relevant.[17]

On the basis of these premises, the Court concludes that there is no certainty that the alleged new fact (‘namely that Dr L. misled the Commission regarding the effects of the five techniques)[18] could have a ‘decisive influence’ on the original judgment. Indeed, there is no certainty that, had the Court been aware of the fact that the five techniques could have severe long-term psychiatric effects, in the light of the case‑law on Article 3 of the Convention as it stood at the time, this would have led to a qualification of the techniques as torture. [19]

Analysis

As underlined by Judge O’Leary in her dissenting opinion, the judgment has undeniably some flaws. For instance, it reduces the ground for revision relating to the discovery of new documents to the fact that ‘Dr L. misled the Commission regarding the effects of the five techniques’.[20] However, the Irish Government had relied on various documents, not limited to those demonstrating Dr L.’s allegedly misleading statements.

Furthermore, the reasoning given for the assessment of non-relevance of the new facts is inter alia grounded on the assertion that ‘the original judgment does not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment’.[21] While it is true that the 1978 Court’s judgment made no reference the possible long-term effects of the five techniques, the Commission had clearly taken into account the issue when making its own assessment. Thus, it cannot be said that the topic was completely unknown to the European judges.

These flaws, although regrettable (for they expose the judgment to potential criticism), are not substantial, and they certainly do not render the judgment a rejection of the opinion according to which the techniques amount to torture. What needs to be borne in mind is the double premise on which the judgment was grounded: the need to apply a restrictive interpretation to revision requests, and the temporal dimension of the Ireland v UK request for revision.

The ECtHR conceives the Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[22] For this reason, it applies extensively the rights and freedoms guaranteed by the Convention, often demonstrating a certain activism.[23] For instance, its case law as to the rights of post-operative transsexuals has considerably evolved during time, shifting from non-recognition to recognition in a lapse of less than 20 years.

In this context, the Court’s dismissal of Ireland’s revision request is equivalent to admitting that it is impossible to evaluate with sufficient certainty how evidence discovered today on the long-lasting effects of ill-treatments would impact on a judgment issued well before the establishment of a clear case law under which long-lasting effects determine the difference between ‘inhuman treatments’ and ‘torture’.

Conclusion

The 2018 judgment by which the ECtHR dismissed the revision request in the case of Ireland v UK is clearly not a rejection of the opinion according to which the brutal interrogation techniques which were at the origin of the case amount to torture.

On the opposite, one could argue that the Court knew that the five techniques would amount to torture under the current case law on Article 3 ECHR: however, it also knew that this case law has developed considerably over the last forty years, and for this reason it acknowledged the impossibility of reaching an impartial and sufficient certain conclusion for a period in which such case law was not yet available.

By this judgment, the Court has demonstrated a willing restraint in the exercise of its powers, motivated by the extraordinary nature of the request, that is, the revision of a final judgment issued 40 years ago. Conclusively, the judgment should be welcomed as a proof of the Court’s consciousness of the need to handle with due care the powerful interpretative tools at its disposal.

 

 

 

 

* The views in this post represent the personal opinion of the author in her private capacity.

[1] Ireland v. the United Kingdom, no. 5310/71, Judgment (revision) 20 March 2018.

[2] Ireland v. the United Kingdom, § 167.

[3] Ireland v. the United Kingdom, §§ 21-27.

[4] For other commentaries to the decision see: Iulia Padeanu, Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case, and Michael O’Boyle, Revising the verdict in Ireland v UK: time for a reality check? both on http://www.ejiltalk.org.

[5] The respondent Government had ‘conceded.. that the use of the five techniques was authorised at ‘high level’’, see § 97 of the judgment.

[6] See, among other authorities: Selmouni v. France [GC] no. 25803/94, ECHR 1999‑V Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010

[7] As recalled by the Court at paragraph 167 of the 1978 judgment, Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975 declares: ‘Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.

[8] At that time the European Commission of Human Rights shared adjudicatory functions with the ‘old’ Court.

[9] Particularly, Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975: see § 167 of the judgment.

[10] Ireland v. the United Kingdom § 167.

[11] Ibidem.

[12] Ireland v. the United Kingdom, §§ 19-44.

[13] Ireland v. the United Kingdom, §§ 61-67.

[14] Ireland v. the United Kingdom, §§ 46-60.

[15] Ireland v. the United Kingdom §§ 93, 122.

[16] Ireland v. the United Kingdom § 122.

[17] Ireland v. the United Kingdom § 124.

[18] Ireland v. the United Kingdom § 96.

[19] Ireland v. the United Kingdom §§ 125-135.

[20] Ireland v. the United Kingdom § 96.

[21] Ireland v. the United Kingdom §§ 134.

[22] Tyrer v United Kingdom  (1978) Series A no 26, par 31; Marckx v Belgium (1979) Series A no 31, par 41.

[23] For references on this topic, see D. Sartori, Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights, Tulane European and Civil Law Forum, 29, 2014.

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1 Comment

Filed under Human Rights, Public International Law

One response to “The dismissal of the revision request in the case of Ireland v UK

  1. El roam

    Thanks for that important and interesting post . I think mistakenly ruled so . this is mainly because of two reasons ( the rest is really too complicated ) :

    First , this is the right opportunity for observing long lasting effects of tortures or alike . 40 years , have passed by , and then , one may better understand and observe the long term impact of such techniques ( although I don’t know how relevant it is , in medical terms , in this particular case presented ) .

    Second , If the court claims that the case laws and legislation or jurisprudence evolved , then , he had to look also , for relevancy to this days . And here , it is as hell relevant . This is because , in many jurisprudences , such conduct , is permitted allegedly, because it doesn’t amount to torture , while it is !! So , precisely for the evolvement and relevancy , had to be ruled further ( and see for example , the OTP of the ICC , that has decided to open investigation to the Afghanistan situation , precisely due to alleged conduct of such in prisons in several stated , including eastern Europe by the way ) .

    Thanks

    Like

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