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.
Secondly, the UK government had accepted the Commission’s finding of torture back then and did not seek to contest it before the Court. They even argued that the Court should make no ruling on the matter because they had accepted the Commission’s verdict of torture. Had this argument been accepted the judgment would have formally recorded that it was not necessary to examine the complaint since the respondent Government had accepted that there was an administrative practice of torture in breach of Article 3. The then Attorney-General, Sam Silkin QC, in keeping with this concession, formally promised before the Court that the five techniques would never be used again. So, it came as a major surprise to the parties to the case and to legal commentators that the Court came to the conclusion that it did. But the fact remains that the UK had conceded that torture had occurred.
Third, it should not be forgotten that the Court had nevertheless found that there existed a practice of inhuman and degrading treatment in violation of Article 3 of the Convention – i.e. a policy tolerated at the higher echelons of the state – which was an historic vindication of those who had been subjected to the five techniques and the Irish government that had brought the case.
Fourth, it is now clear that the UK had withheld material evidence from the Court. This material indicated that their medical experts were aware of the risk of long term health damage connected with the use of the five techniques although they had testified to the Commission that the risks were short term and minor. There was also a failure by the UK to cooperate fully with the Commission’s delegates on the basis that ministers needed to be protected from embarrassment by revelations concerning their involvement in authorising the techniques; that senior officials should not be put in a position as witnesses where the Irish Government might seek to draw them out on the matter of ‘deep interrogation’ and that the litigation strategy was to ‘spin things out’ to cause the maximum delay. Had such tactics been employed in proceedings today the Court would draw adverse presumptions from the government’s behaviour and place the burden of proving that the applicants were not tortured on the government. This legal development on an important question of evidence is directly linked to the rich past experiences of both the Commission and Court in dealing with governments that do not cooperate and do all in their power to conceal the truth.
The Irish Government were arguing in the revision case that had all this been known to the original Court the finding would or might have been different, especially the information about the long-term effects of the techniques. But would it? How can we know? The original Court certainly knew that the UK had not cooperated fully and had held back important information. This is clear from the 1978 judgment and the Commission’s report. Yet it still expressed the view that that only inhuman and degrading treatment was involved. We can speculate that this new information about the extent and nature of the withholding of information might possibly have altered the judges’ opinion. But whether it would or might have been decisive in changing the verdict remains in the realm of speculation. This is not a sufficient basis on which to revise a judgment handed down 40 years ago in an inter-state case which had actually found a violation of the Convention.
The focus of the European Court of Human Rights in examining the revision request was always going to be a narrow one since the notion of legal certainty tends to prevail. The Irish Government’s request to revise the judgment was thus a juridical long shot.
Today the Court has its hands full with a case docket of more than 55,000 serious cases to examine, including seven pending inter-state cases. Seeking to alter out-of-date and questionable assessments made by the Court 40 years ago is an historical luxury that should be left to academic debate. The fact is that such interrogation techniques, if employed today, would amount to torture – the original Court’s finding has paradoxically contributed to this – and that the UK government believed that to be the case also in 1978.