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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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Human rights outcasts: seriously-ill migrants as beyond the reach of European protective legal regimes

Illegal aliens suffering from a life-threatening illness have been excluded from the protection of article 3 (right to personal integrity) of the European Convention of Human Rights (ECHR) and of the European Council Directive 2004/83/EC.[1] This post examines the European Court of Human Rights (ECtHR)’s and the European Court of Justice (ECJ)’s positions regarding medical asylum seekers and some of the contradictions emerging from the ECtHR case-law.

The case of S.J. v. Belgium originated in the Belgian Alien Office’s decision to expel Ms S.J., a Nigerian young mother of three, in 2010.[2] Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a serious immune system deficiency requiring antiretroviral treatment. She was closely monitored for the following years and as a result her state of health was stabilised. As she had no realistic prospect of obtaining access to the appropriate medical treatment in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate article 3 of the ECHR since it would expose her to a premature death in conditions of acute physical and mental suffering. On 27 February 2014, relying on the principle established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not breach article 3.[3] Nonetheless, the Belgian government eventually decided to grant her indefinite leave to remain in Belgium on account of the strong humanitarian considerations characterising her situation.[4] Accordingly, the Grand Chamber struck the case out on 19 March 2015, without departing from the Chamber’s finding of non-violation of article 3.[5]

In his dissent to the Grand Chamber decision, Judge Pinto de Albuquerque strongly criticised the ECtHR’s approach in medical asylum cases and called upon the Court to revisit the ‘unfortunate principle’ laid down in N. v. UK (2008).[6] This case concerned an HIV-infected young Ugandan woman threatened with expulsion from the UK.[7] The Grand Chamber found that her removal to Uganda would not breach article 3 on the basis of the following considerations:

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.[8]

The only case where the ECtHR found the circumstances sufficiently exceptional to conclude that the applicant’s removal would be contrary to article 3 was D. v. UK (1997).[9] The applicant was in an advanced stage of Aids and his short life expectancy was contingent on the continuation of the medical treatment available to him in the UK. He was close to death and had formed a bond with the carers who supported him through the end of his life. As he did not have any familial, social or other support in his country of origin, St Kitts, where the adequate medical treatment for his illness was not available, the ECtHR held that his deportation would violate article 3.[10] This case contrasts with subsequent medical asylum cases where the ECtHR found that the circumstances of the applicants were not sufficiently distressing for an issue under article 3 to arise if they were expelled.[11] Their situations were distinguished from D. v. UK on the basis that their illness had not reached a critical stage or that family members could take care of them in their country of origin.[12]

It appears from this case-law that the expulsion of seriously-ill aliens may only raise an issue under article 3 where their illness is so advanced that their death is imminent. As long as their health condition is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state, even though this circumstance would most likely cause the applicant’s premature and painful death. In N. v. UK, for instance, N. contended that she would not be able to afford the necessary treatment in Uganda and the Court recognised that without such treatment her state of health would rapidly deteriorate, causing her intense suffering.[13] Yet, her circumstances were not found sufficiently compelling to prevent her expulsion and she died within a few months of her return to Uganda.[14]

The ECtHR has established that article 3 requires Convention states not to remove persons under their jurisdiction to countries where they would be at risk of being exposed to inhuman or degrading treatment.[15] However, the Court has distinguished between situations where the prohibited treatment would emanate from the intentional acts or omissions of public authorities and those where the serious harm would stem from a naturally-occurring disease and the lack of resources to treat it in the receiving country.[16] This distinction is difficult to reconcile with the absolute nature of the prohibition contained in article 3.[17] It seems that it should not matter whether the suffering of an individual arises from an intentional act or a natural condition as long as it reaches a certain degree of gravity and can be prevented by the act of a Convention state. Indeed, even if a state’s responsibility is not engaged on the basis of the deficiencies of its health system, the actions subject to scrutiny under the ECHR are not those of the receiving state but of the expelling state. As pointed out by Judge Power-Forde in her dissent to S.J. v. Belgium (2014), the ‘crucial fact’ that will precipitate the suffering and death of the applicant is not the failure of the receiving country’s health system but the implementation of the removal decision by the expelling state.[18] Pursuant to the rationale of article 3 in removal cases, i.e. protecting individuals from exposure to inhuman or degrading treatment outside the Convention system, the expulsion of aliens to a country where they run a real risk of suffering such treatment should engage the responsibility of the expelling state even though the serious harm is not strictly imputable to the receiving state.

The distinction made by the ECtHR on the basis of the source of the prohibited harm has brought it to adopt contradictory approaches in cases concerning the extradition of prisoners and in medical asylum cases.[19] This difference of treatment is apparent when comparing Aswat v. UK (2013) and S.J. v. Belgium (2014)[20]. In the former, a mentally-ill suspected terrorist whose extradition was requested by the United States claimed that his transfer would expose him to a more hostile prison environment which could result in the deterioration of his mental and physical health. The Court agreed and held that his extradition would engage the responsibility of the UK under article 3.[21] By contrast, in the latter, although it was established that the medical treatment upon which the applicant’s life and personal integrity depended would only be available in her home country at considerable costs, which she could not afford, the Court did not find that her removal would violate article 3.[22]

Migrants suffering from life-threatening conditions are not only excluded from the protection of article 3 ECHR but also from the protective regime granted to refugees and persons otherwise in need of international protection by the EC Directive 2004/83/EC.[23] In M’Bodj v. État belge (2014), the Belgian Constitutional Court requested a preliminary ruling by the ECJ on the question whether aliens suffering from a serious health condition should be included in the category of persons protected by this Directive.[24] The ECJ ruled that, for the Directive to apply, the serious harm to which an alien would be exposed upon removal to his home country ‘must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’[25] Accordingly, it was held that Directive 2004/83/EC does not protect seriously-ill aliens whose state of health is in risk of deteriorating if they are expelled, unless they are intentionally deprived of treatment in the receiving state.[26]

The situation of illegal migrants suffering from a life-threatening condition in countries in which they have been refused asylum is very precarious. However, rather than extending the protective scope of human rights and EU law to afford a minimum level of protection to those vulnerable people, the ECtHR and the ECJ have accepted that European member states have the right to deport them even where such a course of action would in all likelihood bring about their death in dire conditions. It is to be hoped that the ECtHR will align its medical asylum case-law with the protective standard of article 3 as elaborated in other removal cases. The lowering of the very high gravity threshold required for article 3 to be engaged in medical asylum cases could have an impact on the ECJ’s interpretation of serious harm under Directive 2004/83/EC and on the domestic law of Convention states. Such a step is needed to prevent persons like N. being sent to their death with the sanction of European human rights law.

[1] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[2] S.J. v. Belgium App no 70055/10 (ECtHR, 19 March 2015).

[3] S.J. c. Belgique App no 70055/10 (ECtHR, 27 February 2014).

[4] S.J. (n 2) para 56.

[5] ibid para 61.

[6] ibid para 1.

[7] N. v. the United Kingdom (2008) 47 EHRR 39.

[8] ibid para 42.

[9] D. v. the United Kingdom (1997) 24 EHRR 423; see also B.B. v France App no 47/1998/950/1165 (ECtHR, 7 September 1998) where the European Commission of Human Rights had found that the expulsion of the applicant would violate article 3.

[10] ibid para 51-53.

[11] S.C.C. v. Sweden App no 46553/99 (ECtHR, 15 February 2000); Bensaid v. the United Kingdom (2001) 33 EHRR 10; Arcila Henao v. the Netherlands App no 13669/03 (ECtHR, 24 June 2003); Ndangoya v. Sweden App no 17868/03 (ECtHR, 22 June 2004); Amegnigan v. the Netherlands App no 25629/04 (ECtHR, 25 November 2004); N (n 6); Yoh-Ekale Mwanje c. Belgique (2013) 56 EHRR 35; S.J. (n 3).

[12] See N. (n 7) paras 32-41.

[13] N. (n 7) paras 47-48.

[14] ibid para 50-51; see S.J. (n 3), Opinion dissidente de la Juge Power-Forde p 39 and S.J. (n 2), Dissenting Opinion of Judge Pinto De Albuquerque para 2.

[15] Soering v. UK (1989) 11 EHRR 439 paras 90-91; Vilvarajah and Others v. UK (1991) 14 EHRR 248 para 103; Chahal v. UK (1996) 23 EHRR 413 para 79-81; Ahmed v. Austria (1997) 24 EHRR 278 para 39; H.L.R. v. France (1998) 26 EHRR 29 para 34; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50 para 135; Hirsi Jamaa and Others v. Italy (2012) 55 EHRR 21 para 114.

[16] D. (n 9) para 49; N. (n 7) para 43.

[17] See Pretty v. the United Kingdom (2002) 35 EHRR 1 paras 49-52.

[18] S.J. (n 3) p 40-41.

[19] See previous post discussing Trabelsi v Belgium.

[20] Aswat v the United Kingdom (2013) 58 EHRR 1; S.J. (n 3), see Opinion dissidente de la Juge Power-Forde p 41-42..

[21] Aswat (n 19) para 57.

[22] S. J. (n 2) paras 123 and 126.

[23] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[24] C‑542/13 Mohamed M’Bodj v. État belge (ECJ, 18 December 2014).

[25] ibid para 35.

[26] ibid para 41.

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