Revisiting the Five Techniques in the European Court of Human Rights

Ireland v United Kingdom was the first inter-state case before the European Court of Human Rights (ECtHR). Decided in 1978, it revolved around internment in Northern Ireland and the techniques used by British forces when interrogating internees at the height of ‘The Troubles’. As regards the treatment of the internees, the Court found that the use of the so-called ‘Five Techniques’ amounted to inhuman and degrading treatment, but did not meet the threshold of severity to attract the “special stigma” of a torture finding against the United Kingdom. Since then, the Court has confirmed that what constitutes ill-treatment of sufficient severity to be deemed ‘torture’ under Article 3 can be subjected to the ‘living instrument’ doctrine (Selmouni v France), and various scholars have remarked that, should the Court be confronted with the same facts now as it was in Ireland v United Kingdom, a finding of torture would be handed down. Now, following investigative journalism by RTÉ (the Irish national broadcaster), new evidence has come to light that may well test this supposition.

The Original Decision

A truly striking feature of the original decision as it pertains to torture is just how slim the reasoning is. Having noted with criticism the use of the five techniques, and their negative impact on internees, the Court went on to say that the difference between torture and other forms of prohibited treatment under Article 3 “derives principally from a difference in the intensity of the suffering inflicted”, which in turn leads to torture having a “special stigma” within the frame of the Convention (para 167). Having outlined this principle, the Court then swiftly determined in respect of the Five Techniques that “the severity of the suffering that they were capable of causing did not attain the particular level inherent in the notion of torture as understood by the Court…” (para 174).

At this juncture, it is worth noting for the record what the Five Techniques actually involved. Adopting the findings of fact of the Commission, the Court described them thus:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Court’s finding that the imposition of these techniques amounted to inhuman and degrading treatment but not to torture was by no means unanimous. In his individual judgment, the UK judge (Judge Sir Gerald Fitzmaurice) found that there had been no breach of Article 3 whatsoever; indeed, he was emphatic that the impact of the Five Techniques was incomparable to that which he termed “real torture”. In their separate opinions, Judges Zekia, O’Donoghue (of Ireland) and Evrigenis all found that the United Kingdom had engaged in torture. The finding of the majority (that there was a breach of Article 3 but falling short of torture) was substantively based on the Court’s assessment of the severity of the impact of the Five Techniques on the internees.

The New Evidence

In a documentary broadcast on RTÉ last June, The Torture Files, recently discovered documents were presented which, it was claimed, brought new and material information into the public domain. These documents fell into two categories. First, a letter from the Secretary of State for Northern Ireland Merlyn Rees to the Prime Minister dated 31 March 1977, which read:

It is my view (confirmed by Brian Faulker before his death) that the decision to use methods of torture in Northern Ireland in 1971/72 was taken by ministers, in particular Lord Carrington, then Secretary of State for Defence.

This letter, which was not revealed to the Commission or the Court, suggests not only that the Five Techniques were authorised at Cabinet level, but also that their use was perceived of internally as amounting to torture. This is especially significant as, in is counter-memorial, the UK Government argued that it did “not admit any of the particular allegations of ill-treatment made by the applicant Government, or that any particular act alleged is attributable to or the responsibility of the UK Government”.

The second set of documents that were discovered in the National Archives in Kew and revealed by RTÉ were alleged to be medical and other records, withheld from the Court, that documented the severe impact of the Five Techniques on the internees. As the preceding section shows, the question of severity was very much material to the Court’s assessment of the Article 3 claim in this case. Indeed, it was the subject of much argumentation before the Court. The psychiatric evidence for Ireland was that the Five Techniques would result in long-term mental and physical illness, whereas the United Kingdom’s expert argued that the “acute psychiatric symptoms developed during interrogation were minor and their persistence was the result of everyday life in Northern Ireland”. However, The Torture Files presented the contents of a later report prepared in 1975 in which the same expert, upon examining one of the internees, concluded that persistent psychiatric symptoms probably resulted from the imposition of these techniques. This report was not produced to the Court.

The new evidence, uncovered in the course of making The Torture Files, arguably establishes that the UK misled the Court in the course of argumentation in this case. Following Cabinet discussions and sight of the documents, the Irish government has accordingly requested reopening of the case in line with Rule 80 of the Rules of Court.

Reopening the Case

Rule 80 lays down three conditions for a decided case to be reopened, and such a move by the Court is rare indeed. According to Rule 80, a case can be reopened when:

(i) a fact has been discovered which might have a decisive influence;

(ii) when the judgment was delivered the fact was unknown to the court; and

(iii) when the judgment was delivered the fact could not reasonably have been known to the requesting party.

All three of these conditions must be satisfied in order for a case to be reopened, and the request must be lodged within six months of the new evidence being discovered—a time limit that appears to have been complied with in this case. That said, before the Court agrees to reopen the case it is likely that a number of questions will arise about whether, for example, Ireland ought reasonably to have known of the existence of the documents in question more than six months ago, or whether they would have a decisive influence on the case. However, and notwithstanding the rarity with which cases are reopened (on which see Phillip Leach on Jurist), the weight of the uncovered evidence and the foundational nature of Ireland v UK the Court’s Article 3 jurisprudence both make it seem highly probable that the case will in fact be reopened.

Conclusions

Should the Court reconsider the Article 3 claim, two potential routes to adjustment of the outcome are possible.

First, the Court may pick up on the decision in Selmouni, considered above, to assess the five techniques against contemporary understandings of torture. Importantly, if the case is reopened under Rule 80 the Court will apply an understanding of torture as in 2015, rather than 1977/8. Taking this approach, and bearing in mind the alleged impact of the treatment on the so-called ‘Hooded Men’ in the 40+ intervening years, it seems extremely likely that a finding the UK engaged in torture as prohibited by Article 3 would be handed down.

Second, it may be interesting for the Court to also consider whether the new evidence suggests that, in fact, the Five Techniques as imposed against the ‘Hooded Men’ did meet the minimum threshold of severity required to attract the special stigma of a finding of torture as against the standards of 1978. While this would be a secondary finding, it might help to both highlight the gravity of the UK having withheld material evidence from the Court (if it is found that this is what happened) and to preempt potential criticisms of the Court applying contemporary standards to historical facts.

In either case, if the application under Rule 80 is successful this presents an opportunity for the Court to reconsider the nature of ‘deep interrogation’ as used in Northern Ireland during the 1970s. Bearing in mind the nature of the newly discovered evidence and the reasoning in the original decision, it seems likely that the Article 3 finding will be revisited and the United Kingdom found to have tortured the ‘Hooded Men’.