There is a general misunderstanding about the revision judgment that was delivered by the European Court of Human Rights (ECtHR) on 20 March 2018. The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided. It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case. This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised. All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty.
The newspaper headlines that the Court had found that the five techniques did not amount to torture is thus misleading. The Court has decided not to alter the original judgment’s characterisation of the five techniques. It has made no finding of its own about torture and it has made this clear.
Apart from the victims’ understandable sense of injustice and bewilderment there is an air of unreality surrounding these proceedings.
Firstly, it is beyond doubt that if the same issue was decided today the five techniques would be held to amount to torture. The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture. The present Court has expressed the view that an increasingly high standard is required in the protection of human rights and that this “inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.” The decision of the Court in 1978 to characterise the five techniques as only amounting to inhuman and degrading treatment which was strongly criticised at the time by many commentators is arguably one of the reasons for this increasingly high standard. Another is the realisation that torture has not been eradicated and that it can involve many different and sophisticated forms of unlawful treatment, such as water-boarding, and other variants of sensory deprivation techniques. It is a sad consequence of the old Court’s characterisation that it was used by the US government to assert that ‘water-boarding’ did not amount to torture. This was entirely spurious and self-serving since US government lawyers chose to ignore the marked evolution of the concept of torture that had occurred since 1978.