The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.
The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.
A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice.
The story begins with the application lodged before the European Commission of Human on 16 December 1971 by Ireland against the United Kingdom. The Irish Government brought the application on behalf of fourteen men, later known as the “hooded men”, who were subject to harsh interrogation techniques implemented by the U.K. government in Northern Ireland during the 1970s. The five techniques consisted of: hooding, wall-standing in stress positions for long periods of time, noise, sleep deprivation, and food and water deprivation.
The Commission issued its decision on the 25 January 1976 and held, by a unanimous vote, that the use of the five techniques constituted a practice of inhuman treatment and of torture in breach of Article 3 of the Convention (Report of Commission of 25 January 1976, ¶ 147 (iv)). The case was then referred to the ECtHR by the Irish Government. The Court agreed that the five techniques amounted to a practice of inhuman and degrading treatment, but failed to find that they also amounted to torture (Ireland v. U.K., ¶ 167). To distinguish between “inhuman and degrading treatment” and “torture”, the Court looked at “the intensity of the suffering inflicted,” finding that there was a special “stigma” associated with the notion of “torture”, which causes very serious and cruel suffering (ibid.). The Court found that the five techniques, “did not occasion suffering of the particular intensity and cruelty implied by the word torture” as understood by the Court at that time (ibid.).
The unfortunate consequence of this finding was not only that the Court rejected the Commission’s findings that the techniques did, in fact, amount to torture, but also that the holding in this case was subsequently cited by the United States to legitimize the use of similar methods in the aftermath of 9/11. The now infamous Bybee Memo, cited the Court’s decision to support its conclusion that the severity of the methods deployed by the U.S. did not amount to torture.
The Current Revision Case
Pursuant to Rule 80 of the Rules of the Court, a party may request the ECtHR to revise a previous judgment “in the event of the discovery of a fact which might by its very nature have a decisive influence [on the Court]” and which was not known to the Court or the party asking for a revision when the original judgment was delivered.
In 2014 the Irish Government lodged an application with the Court stating that certain documents had come to their knowledge which might have had a decisive influence on the Court’s decision in the original Ireland v. The United Kingdom case. The documents relied on were released into the public archives by the U.K. Government pursuant to the “thirty years rule” between 2003 and 2008 (Ireland v. U.K. (revision), ¶ 17) and were brought to the attention of the Irish Government by the Pat Finucane Centre (“PFC”) as early as August 2013. It was not until the Irish television network, Raidió Teilifís Éireann (“RTÉ”) broadcast a program, entitled “The torture files” on 4 June 2014, that the Irish Government claimed to have become fully aware of the extent and content of the documents available.
Based on these documents the Irish Government formulated two grounds for revision (Ireland v. UK (revision), ¶ 20):
I. The U.K. Government had within their possession, at the time of the original proceedings, evidence that suggested the effects of the five techniques could be “substantial, severe and long-lasting,” while at the same time alleging that the side effects were “minor and short term.”
II. Newly uncovered documents showed that the then U.K. Government had adopted a clear policy of withholding information regarding the techniques from the Commission and the Court, including that their use had been authorized at a ministerial level and their purpose in doing so.
Had the Court been aware of the facts detailed in the documents now available they would have or might have had a decisive influence on the specific question of whether or not the use of the five techniques amounted to torture.
The review procedure
The review procedure, which to a certain extent calls into question the final character of the Court’s judgments, is an exceptional procedure. A request for revision is not a means for a party to ask the Court to review an original judgment in light of subsequent law or to decide the same questions as if they were brought before the Court today. It is also not a form of appeal, nor is it a way to make up for the Court’s past mistakes.
In this revision request, the Irish Government was not asking the Court to re-evaluate whether or not the five techniques amount to torture. Over the past thirty years, the Court’s case law on what constitutes “torture” has developed significantly. Subsequent case law has expanded the notion of “torture” and has explicitly taken into account long-term effects of a treatment (Ireland v. UK (revision), ¶ 124). In contrast, based on the Court’s reasoning in the original case, long-term effects were not taken into consideration by the Court when assessing whether treatment amount to “torture” or “inhuman and degrading treatment.” The focus, instead, was on the intensity and severity of the treatment. In its request, Ireland asked the Court to put itself in the position of the Court as it was in 1978 and decide whether the newly released documents contain any facts that the Court would have considered important when deciding whether the five techniques deserved the “special stigma” of being branded as torture in 1978.
It could be argued that the Court erred in its original judgment. Not only did it contradict the findings and conclusion of the Commission, it did so without either party contesting the Commission’s decision. Neither the Irish Government, nor the U.K. government challenged the Commission’s classification of the techniques as torture. The U.K. government simply argued that it had stopped using such techniques, thus the point was moot. The Irish Government’s states object in referring the case to the Court was to “ensure the observance in Northern Ireland of the engagements undertaken by the respondent Government” by asking the Court to “consider the report of the Commission and to confirm the opinion of the Commission that breaches of the Convention have occurred” (Ireland v. U.K., ¶ 2).
The Court, acting on its own, decided to take up the question of classification of the techniques and subsequently found that the five techniques did not rise to the level of torture, contrary to what the Commission had concluded. Whether or not the Court erred in 1978, those mistakes cannot be undone by the Court today. This notion is central to the functioning of the Court. Legal certainty “constitutes one of the fundamental elements of the rule of law which requires, inter alia, that where a court has finally determined an issue, its ruling should not be called into question” (Ireland v. UK (revision), ¶ 122).
The Court’s reasoning and decision
With regard to each ground for revision, the Court had to consider two questions: 1) are the facts presented to the Court “new”? and 2) would they or might they have had a “decisive influence on the court”?
The first ground for revision
Assuming that the new documents contained new facts, the Court was not convinced that these would have had a “decisive influence” on the Court at the time of the original judgement. Ireland, relying on documents that pertained to the testimony Dr L., an expert called by the U.K. Government, argued that Dr L. misled the Commission regarding the long term effects of the five techniques. While Dr L. testified that the techniques only presented minor and short term effects, the documents now available show that Dr L. had expressed elsewhere a different opinion (Ireland v. UK (revision), ¶ 20). The Irish Government pointed, in particular, to a medical report Dr L. compiled for another individual subjected to the same techniques, where Dr L. acknowledged their possible long-term effects.
The main issue with reliance on Dr L.’s opinion is that the new evidence relates primarily to the “long-term effects” of the techniques, and not their severity. Even if the Court had this information in 1978, it is difficult to argue it would have been decisive in its decision whether or not to classify the techniques at torture. This is because, at the time of the original judgment, the decisive element for the Court was not the long-term effect of the techniques, but rather their intensity and severity. The newly discovered information does not speak to the intensity or severity of the techniques, and thus the Court today cannot hold that this information would have had any impact, let alone a decisive impact, on the Court in 1978.
The second ground for revision
As to the second ground for revision, the Court found that the documents did not, in fact, contain “new facts.” Ireland alleged that newly released documents show that the five techniques constituted an administrative practice that had been authorized at a high level. While the documents do provide more clarity on exactly what the then U.K. knew at the time, they provide nothing new per se. In fact, both the Court and the Commission at the time of the original proceedings were aware of the U.K. Government’s hesitation in providing full cooperation (Ireland v. UK (revision), ¶ 116). The Commission even noted the “embargo” on evidence imposed by the U.K. government. The authorization of the techniques on a high level had already been accepted and admitted by the U.K. government, which had conceded that the use of the techniques had indeed been authorized at “high level” and had been taught to members of the Royal Ulster Constabulary (RUC) (ibid.). The new documents did not meet the higher bar of illustrating “new facts” necessary for a revision procedure. As such, the Court did not go on to assess whether these facts would have had a “decisive influence” on the Court at the time.
If the Court were to revise its case law not only when new, determinative facts emerge, but any time a new fact or later case law would point to a different outcome, it would lead to chaos and uncertainty. Similarly, the Court could not review every case where an applicant argues the Court made a mistake. This would destabilize the entire jurisprudence of the Court, as there would be no firm end to any dispute. Any applicant could re-open proceedings by arguing that the Court erred in the smallest and most insignificant ways. Legal certainty, a fundamental aspect of justice, is not a notion that should easily be dismissed. Especially for a Court that has been burdened by an increasing load of cases, it is vital that it not be further encumbered by additional applications.
In their assessment of this case, Amnesty International considers the outcome disappointing because it was decided on a “technical legal point.” But that is what the Court’s role and one of its most important functions is – to create legal certainty by deciding applications not on any other grounds than legal points. The Court would otherwise be no different to a political institution, making and changing decisions based on social, political, and economic considerations. As international legal institutions, including the ECtHR, continue to face threats from numerous angles – including political and financial pressure from certain Member States – their main weapon against this tide of criticism is to stay true to the law; especially the “technical legal points.” It must protect its integrity by ruling according to such technicalities.
That is not to say that what happened to the fourteen “hooded men” was not tragic, and under the current understanding of the term, even torture. A good case could be made that the Court made a mistake holding that such intensive interrogation did not amount to torture. However, the revision request cannot be used to undo the mistakes of the past. The only thing the Court can do, when presented with a revision request, is step back in time and consider whether the new information would have been determinative to the Court’s decision making at the time of the original judgment. In this case, the Court decided it would not.
By finding that it would not have been determinative to the Court’s decision-making process in the original proceedings, the Court’s decision today should not been seen as a dismissal of the tragic experiences of the individuals at the centre of this case, but rather, as a reasonable assessment of the evidence before it and the accurate and methodical application of the rules guiding the Court.
Editor’s Note: The views in this post represent the personal opinion of the author in her private capacity.