Ireland v. the United Kingdom (2018 revision)

The case originated in an application (no. 5310/71) lodged on 16 December 1971 with the European Commission of Human Rights (“the Commission”) by the Government of Ireland (“the applicant Government”) against the Government of Great Britain and Northern Ireland (“the respondent Government”) under former Article 24 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Commission adopted its report on 25 January 1976. The case was referred to the Court by the applicant Government.

2.  In a judgment delivered on 18 January 1978 (“the original judgment”), the Court held, in so far as relevant in the context of the present revision request, that the use of the five techniques of interrogation in August and October 1971 constituted a practice of inhuman and degrading treatment, in breach of Article 3 of the Convention, and that the said use of the five techniques did not constitute a practice of torture within the meaning of Article 3.

3.  On 4 December 2014 the applicant Government informed the Court that no earlier than 4 June 2014 documents had come to their knowledge which by their nature might have had a decisive influence on the Court’s judgment in respect of Article 3 of the Convention had they been known to the Court at the time of delivering judgment. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4.  The applicant Government were represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade. The respondent Government were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office.

5.  Pursuant to Rule 109 §§ 1 and 2 of the Rules of Court, which deals with requests for revision of a judgment given before the entry into force of Protocol No. 11 to the Convention, the President of the Court assigned the case to the First Section and, following a change in the composition of the Court, to the Third Section. The Chamber constituted within that Section in accordance with Rule 109 § 3 included ex officio Judges Síofra O’Leary, the judge elected in respect of Ireland, Paul Mahoney, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 109 § 3 (b)) and Luis López Guerra, the President of the Section, (Rule 109 § 3 (a)). The other members designated by the President of the Section by means of a drawing of lots from among the members of the Section were Judges Helena Jäderblom, Dmitry Dedov, Helen Keller and Johannes Silvis. Subsequently, Judge Mahoney withdrew from sitting in the Chamber (Rule 28). The President accordingly designated Lord Reed to sit as an ad hoc judge (Rule 29 in conjunction with Rule 109 § 3 (b)). Judge Silvis, whose term of office had ended on 31 August 2016, was replaced by Judge Branko Lubarda, substitute judge. On 1 February 2017 Judge Jäderblom succeeded Judge López Guerra as President of the Section.

6.  On 22 March 2016 the Chamber considered the request for revision and decided to communicate it to the respondent Government for observations. Those observations were received on 15 December 2016. The observations in reply by the applicant Government were received on 20 February 2017. Upon the respondent Government’s request, the President authorised a second round of observations. Those of the respondent Government were received on 13 April 2017 and those in reply by the applicant Government on 8 May 2017.

7.  On 18 January 2018 the President of the Court, on the basis of the order of the President of the European Commission of Human Rights of 29 October 1999, decided to lift the confidentiality restrictions in respect of the transcripts of the proceedings before the Commission, as redacted by the two Governments, to which direct reference is made by the parties in their submissions in the present revision proceedings. A schedule of the redacted documents was attached to that decision.

THE REQUEST FOR REVISION

8.  The applicant Government requested revision of the Court’s judgment of 18 January 1978 to the effect that the use of the five techniques of interrogation in depth amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention.

I.  THE PROCEEDINGS BEFORE THE COMMISSION

A.  The hearings before the Commission

9.  In the original proceedings the Commission took evidence inter alia by hearing witnesses. A brief summary of the hearing of witnesses, as far as relevant in the present case, is given below.

10.  In relation to the five techniques, the Commission’s delegates heard evidence, at hearings held between 26 and 29 November 1973, from two of the men subjected to the five techniques, Mr P.C. and Mr P.S. (referred to as T 13 and T 6 in the Commission’s report). They described the physical and mental effects which the use of the five techniques had had on them when they were applied and the mental disturbances from which they had suffered thereafter. The Commission’s delegates also heard Dr M., a consultant psychiatrist and neurologist (referred to as Dr 1 in its report), who had examined both men shortly after the five techniques had been applied to them in August 1971 and had examined P.S. a second time in August 1972. He had been called as an expert by the Commission. He had found that P.C. had recovered but had observed active psychiatric symptoms in P.S. which still persisted when he examined him a second time. He found it difficult to make any long-term prognosis. Two further psychiatric experts were called by the applicant Government, Professors Daly and Bastiaans. The former, who had also seen both men, disagreed with Dr M. He found that both men still suffered from psychiatric after-effects and that P.S. in particular would continue to be affected. Professor Bastiaans considered that serious, long‑term effects were to be expected in both cases.

11.  Dr L. (referred to as Dr 5 in the Commission’s report), a psychiatric expert called by the respondent Government, was heard initially at the hearings of 15 June 1974. He was questioned at length about the physical and mental effects and possible after-effects the use of the five techniques had had on the two men. He had examined both of them in February/March and again in December 1973, as an expert for the respondent Government in the context of civil proceedings for damages that were pending at that time before the courts in Northern Ireland. He found that they had suffered acute psychiatric symptoms in the period in which they had been subjected to the five techniques. Any after-effects were diminishing and not severe and were partly due to living conditions in Northern Ireland.

12.  Dr L. was heard a second time on 18 January 1975. On that date he was questioned extensively about his professional background and experience. He then gave evidence about the general effects produced by the use of the five techniques in the persons subjected to them. He disagreed with the views expressed by Professors Daly and Bastiaans and gave as his own view that the use of the five techniques would not cause lasting damage. In addition, questions were put to him in respect of the amounts received by the victims of the five techniques by way of settlement in the above-mentioned domestic proceedings, and in particular whether those high amounts were indicative of the seriousness of the effects of the five techniques and thus inconsistent with the views expressed by him. He considered that had the effects been as described by Professors Daly and Bastiaans the amounts would have been much higher.

B.  The report of the Commission

13.  The report of the Commission of 25 January 1976 contains the following text relating to the establishment of the facts and its opinion regarding the use of the five techniques (see pp. 395-402):

3.  ESTABLISHMENT OF THE FACTS

The cases of T.13 and T.6.

General remarks

The applicant Government have submitted the cases of eight persons in which the use of the five techniques and sometimes also other forms of ill-treatment were alleged. The Commission has examined the illustrative cases of T.13 and T.6. The allegations in regard to T.6 concern both the five techniques and other forms of alleged ill-treatment, whereas the allegations in regard to T.13 concern the five techniques only.

Both cases were among the eleven cases investigated by the Compton Committee. However, neither T.13 nor T.6 had given evidence before that Committee, which based its findings on the oral evidence of the persons who supervised the operations at the centre and of the medical officer who was stationed there, as well as on various medical records, colour photographs and the feeding record (cf. Compton Report, paras. 54 and 55, at p. 14).

The Delegates of the Commission heard both case witnesses who gave their evidence in detail and were also cross-examined by the respondent Government. They had before them extracts from the medical officer’s journal at Crumlin Road Prison, the medical examination records on arrival and on departure from the interrogation centre and colour photographs of T.6 as well as various reports by psychiatrists who also gave oral evidence.

However, the Delegates were not able to hear oral evidence from members of the security forces in relation to the allegations concerning the interrogation centre. In the first place no witnesses who had been present at that centre were made available. Secondly, the respondent Government stated at the hearing of witnesses at Sola in January 1975 that all of their witnesses had now been instructed not to reply to any questions regarding the five techniques and their use on the ground that the use of these techniques had been discontinued and that there were security considerations involved. This ‘embargo’ on the evidence also related to matters connected with a ‘seminar’ held in Northern Ireland in April 1971 by the English Intelligence Centre for members of the RUC [Royal Ulster Constabulary], where the use of the techniques was taught orally (cf. Parker Report, Minority Report, para. 6 at p. 12; also Witness 13G at VR 6, pp. 190 et seq.).

The Commission does not consider it necessary to pursue this matter any further. It is satisfied that the five methods in aid of interrogation which, as a matter of public record, were used in emergency situations at various other places before they were used in Northern Ireland in 1971 (Parker Report, Majority Report, para. 10 at p. 3) were applied to the two case witnesses in the present case. It is further satisfied that a ‘seminar’ as described was held in April 1971 by the English Intelligence Centre.

Course of events

The evidence before the Commission bears out the allegations made by the case witnesses and confirms the findings of the Compton Committee as regards the course of the events for the persons subjected to the five techniques.

T.13 and T.6 were, together with others, arrested in the early morning hours of 9 August 1971 and brought to Magilligan Camp, being one of the three Regional Holding Centres set up to receive arrested persons. They were held there for two days and, having been selected for special interrogation were brought, on 11 August 1971, to the unknown interrogation centre. On arrival at the centre they were medically examined and at one stage they were taken by helicopter to another place where they were served with a detention order. They were taken back to the centre where they were interrogated in depth being subjected to the five techniques in the following way:

a.  Wall-standing – the witnesses demonstrated how they were spreadeagled 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 (the stress position). They were forced to remain in this position. The exact length of time during which the witnesses were required to stand could not be established. Both witnesses said that they lost their sense of time but that it must have been many hours. The Compton Committee while describing the position as being a different one, found that T.13 had been against the wall during periods totalling 23 hours, and T.6 29 hours.

b.  Hooding – a black or navy coloured bag was put over the witnesses’ heads. Initially it was kept there all the time, except during interrogations, but later T.13 was allowed to take it off when he was alone in the room, provided that he turned his face to the wall.

c.  Noise – pending interrogations the witnesses were held in a room where there was a continuous loud and hissing noise.

d.  Sleep – pending interrogations the witnesses were deprived of sleep, but it was not possible to establish for what periods each witness had been without sleep.

e.  Food and drink – the witnesses were subjected to a reduced diet during their stay at the centre and pending interrogations. It was not possible to establish to what extent they were deprived of nourishment and whether or not they were offered food and drink but refused to take it.

The witnesses were at the centre from 11 to 17 August 1971, when they were transferred to Crumlin Road Prison in accordance with the detention order.

In 1971 T.13 and T.6 instituted domestic proceedings to recover damages for wrongful imprisonment and for assault and their claims were settled in 1973 and 1975 respectively for £ 15,000 and £ 14,000.

Physical and mental effects resulting from the use of the techniques

(i)  Physical effects

The Commission is satisfied from the evidence given that the witnesses suffered loss of weight resulting from their detention at the unknown interrogation centre and from the use of the five techniques. It is furthermore established that, particularly the wall‑standing technique, caused physical pain while it was being applied, but that the pain ceased when the person was no longer in that position.

(ii)  Mental effects

The witnesses themselves described feelings of anxiety and fear, as well as disorientation and isolation during the time they were subjected to the techniques and afterwards. However, the intensity of such sensations was different in respect of T.13 than in respect of T.6, as a result of differences in their personality. Consequently, T.13 had been more strongly affected by the application of the techniques than T.6.

On the other hand, the psychiatrists disagreed considerably on the after-effects of the treatment and on the prognosis for recovery. Professors Daly and Bastiaans considered that both witnesses would continue for a long time to have considerable disability shown by bouts of depression, insomnia and a generally neurotic condition resembling that found in victims of Nazi persecution. Drs. 5 and 1 considered that the acute psychiatric symptoms developed by the witnesses during the interrogation had been minor and that their persistence was the result of everyday life in Northern Ireland for an ex-detainee carrying out his work travelling to different localities. In no sense could the witnesses’ experiences be compared with those of the victims of Nazi persecution.

On the basis of this evidence the Commission is unable to establish the exact degree of the psychiatric after-effects which the use of the five techniques might have had on these witnesses or generally on persons subjected to them. It is satisfied, however, that, depending on the personality of the person concerned, the circumstances in which he finds himself, and the conditions of everyday life in Northern Ireland at the relevant time, some after-effects resulting from the application of the techniques cannot be excluded.

Findings of the Commission

The five techniques in aid of interrogation were used in August 1971 on T.13 and T.6. They were applied prior to, between and during interrogations, but not after interrogation was terminated. This means that the persons concerned were subject to the techniques during at least four, possibly five, days. The exact times could not be established. The Commission is satisfied the total periods during which the two witnesses were at the wall, [were] 23 and 29 hours respectively. A certain degree of force was used to make the detainees stand at the wall in the required posture which caused physical pain and exhaustion. The posture required was a stress position and not a normal position required to search a person, although it cannot be considered to be proved that the enforced stress position lasted all the time they were at the wall.

No physical injury resulted from the application of the techniques as such, but it caused mentally a number of acute psychiatric symptoms. It cannot be excluded that in certain persons some of these symptoms continue to exist for some time afterwards.

The damages granted to them under settlements in court are substantial sums and, although it is not possible in any settlement to say what part was paid with a view to what claim, it may be presumed that the greater part of the sum was awarded in view of the allegations of ill-treatment including the application of the five techniques, having regard to sums normally awarded by courts for claims of assault as compared with sums normally granted for claims of wrongful imprisonment.

4.  OPINION OF THE COMMISSION

In the present case the Commission is called upon to express an opinion as to whether or not the combined application of the five techniques in the cases of T.13 and T.6, and in the other cases referred to in the Compton Report, constituted a practice in breach of Art. 3 of the Convention.

As has already been stated, the question of practice is not in dispute as the use of the five techniques was admittedly authorised by the respondent Government and the existence of a practice has therefore been found to be established by the Commission in its decision on the admissibility of the case.

On the other hand, the question of whether or not the use of the five techniques taken together constituted a violation of Art. 3 of the Convention is still in issue between the parties.

The Commission has therefore examined the question whether or not, in the light of the considerations on the interpretation of that provision above (pp. 376-379), the five techniques were consistent with Art. 3 of the Convention. In doing so, it has also taken into account certain statements and legal texts which seem to throw some light on the kind of treatment against which Art. 3 of the Convention should protect, and are relevant to the particular facts established in this part of the present case.

In this connection, it first had regard to the preparatory works of the Convention, and, in particular, to a proposal by Mr. Cocks (United Kingdom) at the Plenary Sitting of the Consultative Assembly of the Council of Europe on 9 September 1949 to amend the draft Recommendation for the Convention on Human Rights. Mr. Cocks proposed to add to Art. 2 (1) of the Recommendation in the context of the protection of security of persons, the following text:

‘In particular no person shall be subjected to any form of mutilation or sterilisation or to any form of torture or beating. Nor shall he be forced to take drugs nor shall they be administered to him without his knowledge and consent. Nor shall he be subjected to imprisonment with such an excess of light, darkness, noise, or silence as to cause mental suffering’ (Collected Edition of the ‘Travaux Préparatoires’, Vol. I, p. 116/117).’

This proposal was later withdrawn because it was felt that the point which Mr Cocks wished to make was already in substance covered by the general terms of Art. 5 of the UN Declaration which corresponds to Art. 3 of the Convention. Nevertheless, there was agreement in the Assembly that the substance of what Mr. Cocks had emphasised in his amendment was to be read into the Convention (Debate in ‘Collected Edition’, Vol. I, pp. 153-154).

The Commission has further had regard to the Geneva Conventions of 1949 to which reference has also been made by Lord Gardiner in the Parker Report. It is, of course, clear that the main provisions of these Conventions are not directly applicable to the detainees in Northern Ireland. Nevertheless, they include provisions concerning investigation procedures and may also be relevant in the sense that they constitute an expression of the general principles of international law in regard to them and to the treatment of prisoners in general.

Thus Art. 13 of the Third Geneva Convention concerning prisoners of war prohibits all acts causing death or seriously endangering the health of a prisoner. Acts of intimidation and insults are specifically mentioned. As regards interrogation procedures, Art. 17, para. 4 states: ‘No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.’

The Fourth Geneva Convention concerning the protection of civilians provides in Art. 89 that internees shall receive sufficient food to keep them in a good state of health. Art. 118, para. 2, states; ‘Imprisonment in premises without daylight and, in general, all forms of cruelty without exception are forbidden’. Under Art. 119, para. 2, disciplinary measures may not be ‘inhuman, brutal, or dangerous for the health of internees’.

Concerning the five techniques in the present case, the Commission considers that it should express an opinion only as to whether or not the way in which they were applied here, namely in combination with each other, was in breach of Art. 3. It observes that, if they were considered separately, deprivation of sleep or restrictions on diet might not as such be regarded as constituting treatment prohibited by Art. 3. It would rather depend on the circumstances and the purpose and would largely be a question of degree.

In the present case, the five techniques applied together were designed to put severe mental and physical stress, causing severe suffering, on a person in order to obtain information from him. It is true that all methods of interrogation which go beyond the mere asking of questions may bring some pressure on the person concerned, but they cannot, by that very fact, be called inhuman. The five techniques are to be distinguished from those methods.

Compared with the inhuman treatment discussed earlier (pp. 376 seq.), the stress caused by the application of the five techniques is not only different in degree. The combined application of methods which prevent the use of the senses, especially the eyes and the ears, directly affects the personality physically and mentally. The will to resist or to give in cannot, under such conditions, be formed with any degree of independence. Those most firmly resistant might give in at an early stage when subjected to this sophisticated method to break or even eliminate the will.

It is this character of the combined use of the five techniques which, in the opinion of the Commission, renders them in breach of Art. 3 of the Convention in the form not only of inhuman and degrading treatment, but also of torture within the meaning of that provision.

Indeed, the systematic application of the techniques for the purpose of inducing a person to give information shows a clear resemblance to those methods of systematic torture which have been know over the ages. Although the five techniques – also called ‘disorientation’ or ‘sensory deprivation’ techniques – might not necessarily cause any severe after-effects the Commission sees in them a modern system of torture falling into the same category as those systems which have been applied in previous times as a means of obtaining information and confessions.

CONCLUSION

The Commission is of the opinion, by a unanimous vote, that the combined use of the five techniques in the cases before it constituted a practice of inhuman treatment and torture in breach of Art. 3 of the Convention.”

II.  THE COURT’S JUDGMENT OF 18 JANUARY 1978

14.  Regarding the establishment of the facts in respect of allegations of ill-treatment the Court stated as follows:

“III.  ALLEGATIONS OF ILL-TREATMENT

A.  Introduction

92.  As recounted above at paragraphs 39 and 41, on 9 August 1971 and thereafter numerous persons in Northern Ireland were arrested and taken into custody by the security forces acting in pursuance of the emergency powers. The persons arrested were interrogated, usually by members of the RUC, in order to determine whether they should be interned and/or to compile information about the IRA. In all, about 3,276 persons were processed by the police at various holding centres from August 1971 until June 1972. The holding centres were replaced in July 1972 by police offices in Belfast and at Ballykelly Military Barracks.

93.  Allegations of ill-treatment have been made by the applicant Government in relation both to the initial arrests and to the subsequent interrogations. The applicant Government submitted written evidence to the Commission in respect of 228 cases concerning incidents between 9 August 1971 and 1974.

The procedure followed for the purposes of ascertaining the facts (Article 28, sub‑paragraph (a), of the Convention) was one decided upon by the Commission and accepted by the Parties. The Commission examined in detail with medical reports and oral evidence 16 ‘illustrative’ cases selected at its request by the applicant Government. The Commission considered a further 41 cases (the so-called ‘41 cases’) on which it had received medical reports and invited written comments; it referred to the remaining cases.

The nature of the evidence submitted by the two Governments and the procedure followed by the Commission in its investigation of such evidence are set out in some detail in the Commission’s report. The Commission came to view that neither the witnesses from the security forces nor the case-witnesses put forward by the applicant Government had given accurate and complete accounts of what had happened. Consequently, where the allegations of ill-treatment were in dispute, the Commission treated as ‘the most important objective evidence’ the medical findings which were not contested as such.

The following account of events is based on the information set out in the Commission’s report and in the other documents before the Court.

94.  In order to protect the identity of certain persons, notably witnesses, the published version of the Commission’s report incorporated changes to the original text; these changes mainly took the form of designating such persons by letters and/or figures.

95.  The Commission grouped the cases into five categories, according to the place where the ill-treatment was said to have been inflicted, namely:

(1)  the unidentified interrogation centre or centres;

(2)  Palace Barracks, Holywood;

(3)  Girdwood Park Barracks;

(4)  Ballykinler Regional Holding Centre; and

(5)  various other miscellaneous places.

B.  The unidentified interrogation centre or centres

96.  Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of ‘interrogation in depth’ which involved the combined application of five particular techniques.

These methods, sometimes termed ‘disorientation’ or ‘sensory deprivation’ techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(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 ‘spreadeagled 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 Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97.  From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at ‘high level’. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

98.  The two operations of interrogation in depth by means of the five techniques led to the obtaining of a considerable quantity of intelligence information, including the identification of 700 members of both IRA factions and the discovery of individual responsibility for about 85 previously unexplained criminal incidents.

99.  Reports alleging physical brutality and ill-treatment by the security forces were made public within a few days of Operation Demetrius (described above at paragraph 39). A committee of enquiry under the chairmanship of Sir Edmund Compton was appointed by the United Kingdom Government on 31 August 1971 to investigate such allegations. Among the 40 cases this Committee examined were 11 cases of persons subjected to the five techniques in August 1971; its findings were that interrogation in depth by means of the techniques constituted physical ill‑treatment but not physical brutality as it understood that term. The Committee’s report, adopted on 3 November 1971, was made public, as was a supplemental report of 14 November by Sir Edmund Compton in relation to 3 further cases occurring in September and October, one of which involved the techniques.

100.  The Compton reports came under considerable criticism in the United Kingdom. On 16 November 1971, the British Home Secretary announced that a further Committee had been set up under the chairmanship of Lord Parker of Waddington to consider ‘whether, and if so in what respects, the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment’.

The Parker report, which was adopted on 31 January 1972, contained a majority and a minority opinion. The majority report concluded that the application of the techniques, subject to recommended safeguards against excessive use, need not be ruled out on moral grounds. On the other hand, the minority report by Lord Gardiner disagreed that such interrogation procedures were morally justifiable, even in emergency terrorist conditions. Both the majority and the minority considered the methods to be illegal under domestic law, although the majority confined their view to English law and to ‘some if not all the techniques’.

101.  The Parker report was published on 2 March 1972. On the same day, the United Kingdom Prime Minister stated in Parliament:

‘[The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques … will not be used in future as an aid to interrogation.’

He further declared:

‘The statement that I have made covers all future circumstances. If a Government did decide … that additional techniques were required for interrogation, then I think that … they would probably have to come to the House and ask for the powers to do it.’

As foreshadowed in the Prime Minister’s statement, directives expressly prohibiting the use of the techniques, whether singly or in combination were then issued to the security forces by the Government.

102.  At the hearing before the Court on 8 February 1977, the United Kingdom Attorney-General made the following declaration:

‘The Government of the United Kingdom have considered the question of the use of the ‘five techniques’ with very great care and with particular regard to Article 3 of the Convention. They now give this unqualified undertaking, that the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation.’

103.  The Irish Government referred to the Commission 8 cases of persons submitted to the five techniques during interrogation at the unidentified centre or centres between 11 and 17 August 1971. A further case, that of T 22, considered in the Commission’s report in the context of Palace Barracks, concerned the use of the five techniques in October 1971. The Commission examined as illustrative the cases of T 6 and T 13, which were among the 11 cases investigated by the Compton Committee.

104.  T 6 and T 13 were arrested on 9 August 1971 during Operation Demetrius. Two days later they were transferred from Magilligan Regional Holding Centre to an unidentified interrogation centre where they were medically examined on arrival. Thereafter, with intermittent periods of respite, they were subjected to the five techniques during four or possibly five days; neither the Compton or Parker Committees nor the Commission were able to establish the exact length of the periods of respite.

The Commission was satisfied that T 6 and T 13 were kept at the wall for different periods totalling between twenty to thirty hours, but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall. It stated in addition that the required posture caused physical pain and exhaustion. The Commission noted that, later on during his stay at the interrogation centre, T 13 was allowed to take his hood off when he was alone in the room, provided that he turned his face to the wall. It was not found possible by the Commission to establish for what periods T 6 and T 13 had been without sleep, or to what extent they were deprived of nourishment and whether or not they were offered food but refused to take it.

The Commission found no physical injury to have resulted from the application of the five techniques as such, but loss of weight by the two case-witnesses and acute psychiatric symptoms developed by them during interrogation were recorded in the medical and other evidence. The Commission, on the material before it, was unable to establish the exact degree of any psychiatric after-effects produced on T 6 and T 13, but on the general level it was satisfied that some psychiatric after-effects in certain of the fourteen persons subjected to the techniques could not be excluded.

105.  T 13 claimed in addition to have been beaten and otherwise physically ill‑treated, but the medical evidence before the Commission, as the delegates explained at the hearing before the Court on 21 April 1977, gave reason to doubt that he had been assaulted to any severe degree, if at all. Accordingly, the Commission treated the allegations in regard to T 13 as concerning the five techniques only.

T 6 similarly alleged that he was also assaulted in various ways at, or during transport to and from, the centre. On 17 August 1971 he was medically examined on leaving the centre and also on his subsequent arrival at Crumlin Road Prison where he was then detained until 3 May 1972. The medical reports of these examinations and photographs taken on the same day revealed on T 6’s body bruising and contusions that had not been present on 11 August. While not accepting all T 6’s allegations, the Commission was ‘satisfied beyond a reasonable doubt that certain of these injuries … [were] the result of assaults committed on him by the security forces at the centre’. As a general inference from the facts established in T 6’s case, the Commission also found it ‘probable that physical violence was sometimes used in the forcible application of the five techniques’.

106.  Although several other cases were referred to before the Commission by the applicant Government in connection with the unidentified interrogation centre or centres, no detailed allegations or findings are set out in the Commission’s report except in the case of T 22 which was one of the ‘41 cases’. The medical evidence established that when leaving the centre and on entering Crumlin Road Prison, T 22 had suffered superficial bruising. The Commission’s short assessment of this case, which it described as comparable to the case of T 6, was that ‘there exists a strong indication that the course of events was similar to that found in the illustrative [case]’.

107.  T 13 and T 6 instituted civil proceedings in 1971 to recover damages for wrongful imprisonment and assault; their claims were settled in 1973 and 1975 respectively for £15,000 and £14,000. The twelve other individuals against whom the five techniques were used have all received in settlement of their civil claims compensation ranging from £10,000 to £25,000.”

15.  Regarding the legal assessment of the five techniques under Article 3 of the Convention the Court found as follows:

“AS TO THE LAW

148.  … They [the applicant Government] also maintain – though they do not ask the Court to make a specific finding – that the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation. The Commission does not go as far as that; however, at various places in its report, the Commission points out, in substance, that the respondent Government did not always afford it the assistance desirable. The Court regrets this attitude on the part of that Government; it must stress the fundamental importance of the principle, enshrined in Article 28 sub-paragraph (a) in fine, that the Contracting States have a duty to cooperate with the Convention institutions.

…

B.  Questions of proof

160.  In order to satisfy itself as to the existence or not in Northern Ireland of practices contrary to Article 3, the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned. In the cases referred to it, the Court examines all the material before it, whether originating from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu.

161.  The Commission based its own conclusions mainly on the evidence of the one hundred witnesses heard in, and on the medical reports relating to, the sixteen ‘illustrative’ cases it had asked the applicant Government to select. The Commission also relied, but to a lesser extent, on the documents and written comments submitted in connection with the ‘41 cases’ and it referred to the numerous ‘remaining cases’. As in the ‘Greek case’ (The Greek case, p. 196, para. 30), the standard of proof the Commission adopted when evaluating the material it obtained was proof ‘beyond reasonable doubt’.

The Irish Government see this as an excessively rigid standard for the purposes of the present proceedings. They maintain that the system of enforcement would prove ineffectual if, where there was a prima facie case of violation of Article 3, the risk of a finding of such a violation was not borne by a State which fails in its obligation to assist the Commission in establishing the truth (Article 28, sub‑paragraph (a) in fine, of the Convention). In their submission, this is how the attitude taken by the United Kingdom should be described.

The respondent Government dispute this contention and ask the Court to follow the same course as the Commission.

The Court agrees with the Commission’s approach regarding the evidence on which to base the decision whether there has been violation of Article 3. To assess this evidence, the Court adopts the standard of proof ‘beyond reasonable doubt’ but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account.

C.  Questions concerning the merits

162.  As was emphasised by the Commission, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

163.  The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and, under Article 15 para. 2, there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation.

164.  In the instant case, the only relevant concepts are ‘torture’ and ‘inhuman or degrading treatment’, to the exclusion of ‘inhuman or degrading punishment’.

1.  The unidentified interrogation centre or centres

(a)  The ‘five techniques’

165.  The facts concerning the five techniques are summarised at paragraphs 96‑104 and 106‑107 above. In the Commission’s estimation, those facts constituted a practice not only of inhuman and degrading treatment but also of torture. The applicant Government asks for confirmation of this opinion which is not contested before the Court by the respondent Government.

166.  The police used the five techniques on fourteen persons in 1971 that is on twelve including T 6 and T 13, in August before the Compton Committee was set up, and on two in October whilst that Committee was carrying out its enquiry. Although never authorised in writing in any official document, the five techniques were taught orally by the English Intelligence Centre to members of the RUC at a seminar held in April 1971. There was accordingly a practice.

167.  The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3. The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

On these two points, the Court is of the same view as the Commission.

In order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.

In the Court’s view, this distinction derives principally from a difference in the intensity of the suffering inflicted.

The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between ‘torture’ and ‘inhuman or degrading treatment’, should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.

Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975, which declares: ‘Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.

Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168.  The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3.”

16.  The operative part of the original judgment, so far as relevant, reads as follows:

“FOR THESE REASONS, THE COURT

I.  ON ARTICLE 3

…

3.  holds, by sixteen votes to one that the use of the five techniques in August and October 1971 constituted a practice of inhuman and degrading treatment, which practice was in breach of Article 3;

4.  holds, by thirteen votes to four, that the said use of the five techniques did not constitute a practice of torture within the meaning of Article 3; …”

III.  THE RELEASE OF RELEVANT DOCUMENTS INTO THE RESPONDENT GOVERNMENT’S PUBLIC ARCHIVES

17.  According to the respondent Government, the majority of files relating to the Ireland v. the United Kingdom case were released into the public archives pursuant to the “thirty years rule” between 2003 and 2008.

18.  Furthermore, the respondent Government referred to proceedings which had been brought recently before the courts in Northern Ireland by or on behalf of the men who had been subjected to the five techniques, raising materially identical allegations to those raised in the present case. In the course of those proceedings the respondent Government had conducted a review of the material which had not been passed to the National Archives held by six Government Departments, namely the Ministry of Defence, the Northern Ireland Office, the Foreign and Commonwealth Office, the Home Office, the Attorney General’s Office and the Cabinet Office, and of closed files held by the National Archives. Certain files containing material relevant to the nature, conduct and effects of the five techniques were still being withheld from the public archives on grounds of protecting the health and safety of individuals, data protection grounds and on the ground that they contained information relating to intelligence or national security matters. In contrast, according to the respondent Government, all documents which could be disclosed under domestic law had been provided to the claimants in the above proceedings.

IV.  THE GROUNDS FOR REVISION RELIED ON BY THE APPLICANT GOVERNMENT

19.  The applicant Government stated that on 4 June 2014,the Irish television network, Raidió Teilifís Éireann (RTÉ), broadcast a programme entitled “The torture files” which discussed the original proceedings before the Commission and the Court and highlighted a number of documents which had become available from the United Kingdom archives in Kew, London. The applicant Government submitted that they had subsequently obtained a large number of documents from RTÉ and had them reviewed by counsel in order to ascertain whether they disclosed grounds for revision. They maintained that the documents in question demonstrated that the then respondent Government had withheld from the Commission and the Court certain important pieces of information which had therefore not been known to the Court at the time of the judgment and which would or might have had a decisive influence on the Court’s judgment on the specific question of whether or not the use of the five techniques amounted to torture.

20.  In particular, in the light of those documents, the applicant Government formulated the following two grounds for revision:

Firstly, that the then respondent Government had information within their possession, including medical reports from Dr L. demonstrating that the effects of the five techniques could be substantial, severe and long‑lasting while that Government, through the evidence of the same Dr L. before the Commission, had alleged in the Convention proceedings that the said effects were minor and short-term.

Secondly, the archive material revealed the extent to which, at the relevant time, the respondent Government had adopted and implemented a policy of withholding information from the Commission and the Court about key facts concerning the five techniques, including that their use had been authorised at ministerial level and their purpose in doing so.

The applicant Government submitted a number of documents in support of each of these two grounds for revision. These documents are described below.

A.  Documents submitted in respect of the first ground for revision

21.  In support of the first ground of their revision request the applicant Government submitted the documents listed below. Regarding the context from which these documents stem, the Court observes that the men who had been subjected to the five techniques had brought civil proceedings for damages before the courts in Northern Ireland, which were all terminated by way of settlements.

22.  A partial document from the respondent Government’s archives appears to be an excerpt from an opinion of counsel for the respondent Government as to the evidence in the domestic proceedings referring to three internees, Mr S.K., Mr B.T. and Mr W.S., who had all been examined by Dr L.

Paragraph 21 refers to Mr S.K. as having been released from prison on medical grounds in May 1972 for admission to a mental hospital. It records that when Dr L. examined him on 10 April 1974 he was

“… tense and anxious and sobbed at times during the interview, and complained of many serious psychiatric symptoms, including contemplation of suicide.”

Paragraph 22 refers to B.T.’s case and a nervous breakdown suffered by him and says that at his hearing there would

“… obviously be prolonged debate as to whether the deep interrogation had played a part in causing his subsequent nervous breakdown …”

Paragraph 23 of the document refers to the case of W.S. and says that when Dr L. examined him on 8 April 1974, Mr W.S. complained

“… that he has continued to be apprehensive, nervous and to sleep poorly, and it appears that Dr L. thought that [W.]S. was not a man who exaggerated.”

23.  A report of Dr L. in respect of his examination of Mr S.K. on 3 June 1975 is contained in the respondent Government’s archives. It contains the following opinion:

“Mr [S.K.] is now suffering from severe angina and a moderate hypertension. He has clearly gone downhill physically since I last saw him. On reading all the medical records, I note that prior to interrogation it was recorded by the doctor who examined him on admission to the Interrogation Centre on 11.8.71 that he suffered from mild heart trouble and that, in fact, I had asked him about this and he had told me that he had suffered from pain in the chest. I checked this matter through with Mr [S.K.] and he confirmed that it was the same kind of pain, although of a much milder character than he had been getting recently. It is clear, therefore, that at the time of admission to the Detention Centre he was already suffering from angina pectoris, and that his angina has increased in severity. In addition, he complained to me of a number of psychiatric symptoms, mainly of an anxious and fearful nature. He had suffered from an attack of facial palsy some time in December 1974, but has had no other illness experiences since I last examined him.

Angina pectoris is by many considered to be a psychosomatic disorder; it is a symptom of underlying heart disorder and is always associated with the risk of sudden death. It seems that Mr. [S.K.] was suffering from angina before he was interrogated and I think it would be hard to show

(a)  that it was wise to proceed with the interrogation, and

(b)  that the interrogation did not have the effect of worsening his angina.

With regard to his other psychiatric symptoms, I think that one will probably have to regard them as being the result of the so-called ‘deep interrogation’ procedures.”

The applicant Government underlined the fact that Mr S.K. died within days of that examination.

24.  A partial document dated 5 October 1974 from the respondent Government’s archives is headed “Civil actions in Northern Ireland against the Ministry of Defence: Interrogation in Depth cases”.

Paragraph 3 refers to:

“… one or two cases where the present psychiatric condition of the plaintiffs can be demonstrated to be very serious.”

At paragraph 4 it refers to:

“… the growing disposition of medical opinion to acknowledge the possibility that persons subjected to maximum stress and psychiatric trauma as in deep interrogation, become more liable to physical illness including illnesses of a malignant nature at a later stage, and that mental breakdown can take place many years after deep interrogation was undergone.”

Paragraph 5 contains the following passage:

“In fact there is no certainty that there will be long term effects, but equally none that there will be not. This uncertainty was first noted in the Parker inquiry and has persisted. What is new is the confidence with which the view is being expressed that there are such effects. The evidence draws on experience of other interrogation procedures, not excluding those of the wartime concentration camps. …”

Paragraph 7 states:

“… the longer that these cases go on without being disposed of, the greater is the risk that medical opinion will further crystallize on the question of long term effects, and this will manifest itself in ever more enhanced settlement figures. …”

Paragraph 8 refers again to:

“ … one or two cases where the very serious psychiatric effects of the deep interrogation are likely to be sufficiently proven. …”

25.  Another partial document (undated) from the respondent Government’s archives is headed “Deep interrogation” and refers to counsel’s opinion that if a case were heard in open court,

“… the medical evidence produced by the plaintiff would seek to demonstrate the thesis that interrogation in depth can lead to various forms of cancer. Our own medical evidence would be unlikely to disprove this thesis and may well be adjudged to be biased towards the Army bearing in mind that Dr L. will be cross-examined on the basis that he is an official medical adviser to the Army.”

26.  Another partial document (undated) from the respondent Government’s archives contains a discussion in relation to the domestic proceedings and refers to the case of Mr P.S., one of the internees who had been subjected to the five techniques. It states that

“… there is substantial medical evidence of lasting psychiatric damage, which led to a considerably higher assessment of damages on the count of psychiatric sequelae.”

27.  In the applicant Government’s view, the new documents showed that the evidence given by Dr L. before the Commission was misleading. It was at variance with his own contemporaneous findings based on the examination, for the purpose of domestic proceedings, of some of the internees who had been subjected to the five techniques. Had the Commission and the Court been aware of these findings, they would have concluded that the unanimous available expert evidence was that the suffering inflicted by the application of the five techniques was intense and that it often produced long-term effects. It was difficult to see how the Court could have reached the conclusion it did on the intensity of the suffering caused by the five techniques. At the very least the newly discovered documents might have had a decisive influence on its conclusion.

B.  Documents submitted in respect of the second ground for revision

28.  In support of the second ground of their revision request the applicant Government submitted the documents listed below.

29.  A document described as “Loose minute” containing a summary of the respondent Government’s internal view of the inter-State case was attached to a letter of 8 November 1972 from an official of the Ministry of Defence addressed to an official of the Republic of Ireland Department, Foreign and Commonwealth Office. It states as follows at paragraph 6:

“The Attorney General is satisfied that the methods used in deep interrogation cannot be described as other than administrative practice. The evidence is clear that the RUC were instructed by the Army and that Ministers approved the methods used if not the exact way in which they were used.”

30.  A letter of 15 December 1976 from Roy Mason MP, Secretary of State for Northern Ireland, to Airey Neave MP stating that the Hooded Men cases brought at domestic level had to be settled out of court because of the embarrassment which could arise for those concerned at the time, including Lord Carrington [the then Secretary of Defence].

31.  A document described as “Loose minute” was attached to a letter of 8 December 1976 from an official of the Ministry of Defence to the Assistant Under Secretary (General Staff) and others. The document relates to the deep-interrogation cases and explains the decision to settle them. It states that the Government had sought the very best legal advice on the fourteen civil actions, which were for wrongful arrest, false imprisonment, negligence, trespass to the person and assault, and conspiracy. The “uncompromising advice” was that the plaintiffs were certain to succeed. It goes on to note that

“The gravest allegation is that of conspiracy between the defendants (e.g. Mr Brian Faulkner [the then Prime Minister of Northern Ireland] and Lord Carrington) to subject the plaintiffs to unlawful acts.”

The document also records the disadvantages of fighting the cases, mentioning, among others:

“The plaintiffs would require discovery of a large number of sensitive Government papers relating to the deep interrogation operation, and could call as witnesses those responsible for authorising and carrying out the deep interrogation procedures.”

32.  A minute by an official of the Northern Ireland Office, dated 13 February 1978, with the title “Irish State case: Investigation of allegations of ill-treatment and prosecution of offenders”, from which it appears that after the Court’s judgment was delivered some consideration was given to the question of investigating and prosecuting allegations of ill‑treatment. It states that although most, but not all, of the cases before the Commission were investigated at the time, there was a large area of doubt about the adequacy of the investigations. It records that in April 1977 the Attorney General

“decided … to be considerably more circumspect in what he said to the Court about previous police investigations than he had been in February of that year. …”

The document goes on to say that

“… there was undoubtedly a cover-up on the part of the RUC at least in the years 1971 and 1972. Presumably it was this which led to the complete absence of prosecutions in the illustrative cases and to the paucity of prosecutions in the remaining cases.”

Further, the document says that the Commission’s report and the Court’s judgment are

“… broadly in accordance with the facts as we know them: that the record of investigations and prosecutions is deplorable in relation to 1971, but that the picture thereafter, although uncertain, is probably better.”

As regards the five techniques in particular, the document records that

“there is no point in talking about evidence or investigations. It would not be a week’s work to discover who was responsible if we set our minds to it. As I understand it, the decision not to prosecute was, and is, a policy decision (and no doubt an admirable one).”

The document also refers to the Court having been told that the RUC and the Army would investigate complaints whatever their source and notes:

“the obvious point that even some of the complaints brought to the notice of the RUC as having been included in the Irish Government’s application do not seem to have been investigated, since the police could be said to have some kind of immunity as regards these cases.”

33.  A minute dated 8 December 1976, by Mr B.B. Hall, Treasury Solicitors, addressed to 10 Downing Street, in which it is explained that Mr W.S., who was one of the internees subjected to the five techniques, claimed that there had been a conspiracy by the defendants, who included the Ministry of Defence, Mr Faulkner and Sir Graham Shillington, and opines that it would not be possible to meet allegations of ill-treatment as no rebutting evidence could be called and that the damages would be very high if there were a finding that the treatment constituted torture as found by the Commission.

34.  A minute dated 22 August 1972, referring to the Joint Directive on Military Interrogation in Internal Security Operations Overseas of 17 February 1965 as amended in February 1967 and stating that it was already published as an annex to the Parker report, but only in part. It also refers to Standing Orders for the running of the interrogation centre which were “for the Attorney General’s information only”.

35.  A document (undated) with the title “Irish State case at Strasbourg: the next stage” containing a discussion of tactics to be pursued by the respondent Government in the Convention proceedings. The document discusses the relationship between the likely timetable of the Convention proceedings and of progress towards a political settlement in Northern Ireland:

“It is desirable from our point of view that the Irish should clearly be seen to be pursuing a vendetta against a defunct administration since replaced by new constitutional arrangements generally accepted as representing a just and workable settlement. While maintaining a generally cooperative attitude toward the Commission we should therefore take every opportunity to delay the proceedings and should strongly resist any Irish attempt to speed them up.”

The document goes on to consider a number of possible methods of exerting pressure on the applicant Government to drop or settle the proceedings. It concludes that the United Kingdom should gather whatever evidence was possible and

 “… spin out the proceedings as long as possible, short of laying ourselves open to a charge of deliberately obstructing the Commission.”

36.  A document dated 31 October 1974 by a Legal Counsellor at the Foreign and Commonwealth Office, addressed to the Attorney General’s Department. It states:

“On Article 14 we reverted once again to the problem of producing a witness of sufficient authority and position to persuade the Commission of our problems and to convince it of our bona fides in dealing with the evolving situation in the way in which we do, in fact, deal with it. A top man is essential.”

The document suggests that efforts should be made to convince General Tuzo and Sir Graham Shillington to give evidence, but goes on to say the following:

“One obstacle to calling a witness of this calibre has always been considered the possibility of his being cross-examined on deep interrogation. Some of us, however, take the view that if we do field such a witness we should, and could, take the line that we are not going to deal, or permit them to deal with matters of deep interrogation (for one reason or another).”

37.  A letter dated 6 November 1974 by a Legal Adviser at the Foreign and Commonwealth Office, addressed to the Attorney General’s Department, discussing which officials should give evidence regarding the Article 14 claim and stating that further efforts should be made to see if General Tuzo and Sir Graham Shillington could be persuaded to give evidence. He expresses the view that

“… we could properly call them to give evidence under Article 14 and resist any attempts to ask them to deal with the allegations under Article 3, and in particular matters of deep interrogation.”

38.  A letter dated 28 November 1974 from Mr Bryars, Assistant Under Secretary of State, Ministry of Defence, to DJ Trevelyan, Northern Ireland Office, which reads as follows:

“There is one consideration bearing on the possible attendance of top level witnesses at Strasbourg which was not mentioned in the minute …. This is the policy which has already been decided on the settlement of the domestic cases in Northern Ireland involving deep interrogation.

…

An important object of the continuing efforts to achieve settlement in these cases has been to avoid any one of them coming into court, with the possible results of adverse publicity at a difficult time and, more importantly, of a damaging finding against HMG on the issue of conspiracy.

The defendants are:

• Brian Faulkner    
• Graham Shillington
• The Police Authority  
• Superintendent Reginald Speers
• The Ministry of Home Affairs 
• The MOD

If top level witnesses attended at Strasbourg, there is a strong possibility, to put it no higher, that attempts will be made by the Irish side to draw them out on the whole issue of deep interrogation, whether they attend the Commission in relation to Article 3 or Article 14. … it would place these witnesses in much the same position on this point at Strasbourg as they would be in the domestic cases which it has been our strategy to avoid; and if they refuse to answer questions … the effect could be to stimulate those concerned with the conduct of the plaintiff’s cases there to bring a case to court…”

39.  A memo dated 16 January 1975 to Sir John Hunt, with a handwritten note addressing it also to the Prime Minister, concerning a possible informal meeting of some potential witnesses with the delegates of the Commission. It starts by saying:

“A difficulty has arisen which the Attorney General intends to discuss with the Prime Minister and the Secretary of State for Northern Ireland at Chequers tomorrow.”

It refers to the fact that the Prime Minister had agreed that memoranda (not witnesses) should be provided to cover the Faulkner period when internment was introduced and that some of the delegates should have “a talk in London with Sir Frank Cooper, Mr. Woodfield, General Tuzo and, possibly, Sir Graham Shillington”. It records that it was important

“that these should constitute a team; if one of them was led to make damaging statements the others would be able to set the record straight.”

It notes that the Irish objected in strong terms to the proposal of an informal discussion, but that the Commission rejected the Irish view that an informal discussion was an “improper procedure”. Furthermore, it records that the Commission

“… expressed disappointment that we were not making Ministers available.”

Finally, it records that the Commission decided that they would meet informally with General Tuzo and Sir Graham Shillington only.

40.  A letter dated 10 February 1975 from Sir Basil Hall, Treasury Solicitor, to the Ministry of Defence enclosing a draft note to be given to the three witnesses to be heard by the Commission,

“giving instructions as to how the question of interrogation in depth is to be handled.”

In particular, the witnesses were not supposed to discuss the seminar referred to in the Parker report or any training for deep interrogation and/or indicate who recommended or authorised the use of the five techniques, the reasons for selecting particular individuals or the location where the interrogation in depth was carried out.

41.  A letter dated 3 December 1973 from Mr J.B. Donnelly of the Foreign and Commonwealth Office to Mr White. It contains a discussion on the interconnection between the Strasbourg proceedings and domestic political progress on Northern Ireland. The author expresses the view that the further the case advances, the more it weakens the United Kingdom’s argument for early settlement based on the destabilising effect of the proceedings. It includes the following line:

“our trump card, to hold events in the North hostage to the end of the case, cannot be played.”

The author concludes that the time has come to “de-politicise the case” and not expect Ireland to be persuaded to drop or settle the case. There are various handwritten notes on the document, one of which states that

“… no one will sabotage the achievement of 20 months (a power sharing Executive) for this silly Strasbourg quarrel. We have always said that S’bg should not be allowed to affect what is right or necessary in NI, that therefore the Irish have no lever to influence NI affairs, on points that matter.”

42.  A Northern Ireland Office note dated 18 April 1975 describing a conversation with the Irish ambassador stating as follows:

“I then rounded upon the Ambassador and suggested that if anything we had grounds for feeling that relations were strained by the insistence of his Government in pursuing the case at Strasbourg. We found this an irritation and it caused us a lot of work. It certainly was not conducive to the maintenance of good relations. What particularly puzzled me was the motive. I could not see that the Republic could be pursuing the case for anything other than a desire to use it for propaganda purposes …”

43.  A letter dated 31 March 1977 from the Secretary of State for Northern Ireland, Mr Merlyn Rees, to the Prime Minister. It is headed “Meeting between the Attorneys General of the Republic of Ireland and the United Kingdom” and refers to a meeting between the Attorneys General on 25 March of that year, at which the question of prosecution and/or disciplinary proceedings against those responsible for the acts found by the Commission to be in breach of Article 3 was raised. The letter continues as follows:

“It is my view (confirmed by Brian Faulkner 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.

If at any time methods of torture are used in Northern Ireland contrary to the view of the Government of the day I would agree that individual policemen or soldiers should be prosecuted or disciplined, but in the particular circumstances of 1971/72 a political decision was taken.”

The Court notes that the respondent Government objected to the choice of the extract by the applicant Government. The author of the letter, following a protest by the then Secretary of State for Defence, Mr F. Mulley, had corrected his comment in a later memorandum stating that instead of referring to “the decision to use methods of torture in Northern Ireland in 1971/72” it would have been better to refer to “the decision to use interrogation in depth in Northern Ireland in 1971/72”.

44.  In sum, the applicant Government considered that the above documents shed light on the then respondent Government’s attitude towards the evidence gathering process, and showed a pattern of preventing the Commission and the Court from accessing the full truth about the five techniques. Had the Court been aware of the respondent Government’s intention to avoid the hearing of evidence and to protect its Ministers, it would have resolved differently the various conflicts of fact which had arisen before it.

THE LAW

45.  Rule 80 § 1 of the Rules of Court 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.”

I.  THE PARTIES’ SUBMISSIONS

A.  The respondent Government

46.  The respondent Government made a number of preliminary points. They pointed out, firstly, that they had publicly accepted in the 1970s and accepted today that the five techniques had been authorised at a high level, represented an administrative practice and were unlawful under domestic law. Secondly, before the Commission, they had not made any positive case in relation to the five techniques, but had simply argued that the Commission should not express a view about their compatibility with Article 3 because they had been abandoned. Moreover, all the victims had received substantial compensation following the settlement of civil claims in the domestic courts. The Commission’s attention had been drawn to those settlements which had been concluded at the time of its hearings. Thirdly, before the Court, the respondent Government had not contested the Commission’s finding that the application of the five techniques amounted to torture. They had argued that a ruling would not be necessary given that the techniques would not be applied again. Fourthly, they had given a series of undertakings, both before the United Kingdom Parliament and before the Court, that the five techniques would not be used again.

47.  The respondent Government’s principal argument was that the revision request did not fulfil the requirements laid down in Rule 80 § 1 of the Rules of Court.

48.  The respondent Government contested the applicant Government’s position that the six-month time-limit had started running on 4 June 2014, the day of the RTÉ broadcast. In their view, it followed from the Court’s case-law that the time-limit for a revision request started running from the date on which the applicant could reasonably have known the new fact (Grossi and Others v. Italy (revision), no. 18791/03, §§ 23-24, 30 October 2012). A party “could reasonably have known” new facts from the moment it was aware of the existence of documents demonstrating these facts, not only from the date on which it obtained copies of the relevant documents (ibid.; McGinley and Egan v. the United Kingdom (revision), nos. 21825/93 and 23414/94, §§ 35-36, ECHR 2000‑I). Moreover, facts which were ascertainable from publicly accessible databases had to be treated as known (Bugajny and Others v. Poland, (revision) no. 22531/05, §§ 25-26, 15 December 2009). In their view, information in the public domain suggested that the applicant Government had acquired knowledge of the alleged new facts before the date of the RTÉ broadcast. They noted that research using documents released to the United Kingdom National Archives in Kew had been carried out in 2013 by an Irish non-governmental organisation, the Pat Finucane Centre (hereinafter “the PFC”). According to a PFC press release of 6 August 2013, the Irish Department for Foreign Affairs was notified of the existence of documents establishing the alleged new facts. Moreover, according to a BBC news article the Irish Attorney General had received copies of relevant documents no later than 28 November 2013.

49.  The respondent Government pointed out that the applicant Government had, in reply to their submissions, conceded having received a number of documents, including Dr L.’s medical report on Mr S.K., more than six months before filing the request for revision. The respondent Government deemed this to be the key document on which the revision request was based. None of the other documents was a first-hand report of Dr L.’s opinions and they could therefore not offer any basis for claiming that Dr L. had misled the Commission. Moreover, given that the applicant Government were aware of the research carried out by the PFC, other materials relied on in the revision request, which were available in public archives, could reasonably have been known to them at least a year before they submitted their request for revision. However, the respondent Government explicitly accepted that the six-month time-limit had not started running years earlier when the documents had become accessible at their National Archives.

50.  Furthermore, the respondent Government observed that the applicant Government were asking the Court to vary the grounds on which the finding of a violation in respect of the five techniques had been based in the original judgment. They were in fact seeking a rehearing, asking the Court to reconsider and weigh up a wide range of evidence. Nothing in the Court’s case-law suggested that the revision procedure was meant to fulfil such a purpose. It was considered as an extraordinary procedure, designed to correct clear errors of assessment where the requesting party demonstrated that the Court had proceeded on an identifiable error of fact.

51.  In the respondent Government’s view, the documents submitted by the applicant Government did not demonstrate any new fact. The Court’s case-law under Rule 80 of the Rules of Court required that the Court be made aware of a specific fact which might have a decisive influence on its findings. The respondent Government pointed out, in particular, that the Commission had not heard direct evidence on the long-term consequences of the five techniques. Two of the illustrative cases concerned men who had been subjected to the five techniques. The Commission had heard five different witnesses in respect of each of those two men, namely the victim himself, Professors Daly and Bastiaans and Doctors L. and M. Each of those witnesses had given lengthy and complex evidence concerning the men’s physical and mental health. Dr L.’s position had been measured. He recognised that the victims had some psychiatric symptoms but considered that they were not severe, while stressing the uncertain and predictive nature of the exercise.

52.  In sum, there was nothing in the material submitted by the applicant Government to show that the evidence given by Dr L. had been misleading. At its strongest, the applicant Government’s case concerning Dr L. was that his views might have developed to some degree in the light of his later re‑examination of another victim of the five techniques (Mr S.K.) for the purpose of civil-damages claims before the domestic courts. The applicant Government had failed to demonstrate that the Court had proceeded on the basis of a false fact as would be required by its case-law.

53.  Even assuming that the material submitted by the applicant Government demonstrated new facts, these were not by their nature decisive for the original judgment.

54.  In this connection the respondent Government argued that the first ground for revision rested on three propositions, namely that the United Kingdom’s position before the Commission and the Court was that the effects of the five techniques were minor and short-term; that Dr L. had misled the Commission in his evidence and that the documents demonstrated this; and that, had the Court known the actual position, this might have had a decisive influence on its finding on the issue of torture.

55.  In the respondent Government’s view, each of these propositions was incorrect. In the first place, they had not denied the breach of Article 3 in the original proceedings. Before the Court, they had even expressly accepted the Commission’s finding that the five techniques amounted to torture.

56.  Secondly, as already indicated above, they considered that the material did not demonstrate that Dr L. had misled the Commission. Dr L. was a leading international expert on neurological disorders resulting from imprisonment and interrogation. He had given a reasonable professional opinion describing himself as a conservative evidence-based psychiatrist, cautious before concluding that a person was suffering from a severe psychiatric illness. The medical report of June 1975 concerning Mr S.K. did not alter this position, as a change of opinion in a single case, involving an individual with a serious pre-existing medical condition, could not be generalised. There was no evidence that Dr L. had changed his opinion on the effects of the five techniques in the two cases before the Commission or in general.

57.  Thirdly, the report relating to Mr S.K. was privileged and confidential legal advice obtained by the respondent Government in the context of the friendly settlement of domestic proceedings which did not need to be disclosed. In any case, it had by no means been demonstrated that the Court would have come to another conclusion. It followed from the original judgment that the Court had wished to reserve the epithet “torture” for the most serious cases.

58.  Turning to the second ground for revision, the respondent Government argued in particular that they had conceded in the original proceedings that the five techniques had been authorised at a sufficiently high level to constitute an administrative practice. The Court itself had noted that the five techniques had been authorised at a “high level” and was aware that they had been taught to members of the RUC at a seminar held in April 1971.

59.  The respondent Government went on to comment in detail on the documents submitted in support of the second ground for the revision request. They concluded that much of the material was not new as the Court had been aware of the facts demonstrated by it. The material not within the Court’s knowledge was largely privileged material that was properly not disclosed at the time of the original proceedings. In any event, knowledge of those documents could not conceivably have resulted in the Court reaching a different view on whether the five techniques amounted to torture, given that the United Kingdom had conceded that there had been an administrative practice authorised at a high level and had accepted the Commission’s finding.

60.  Lastly, for the respondent Government, the revision request served no useful wider purpose as the Court’s case-law on Article 3 of the Convention had evolved since 1978. They referred in particular to Selmouni v. France [GC] (no. 25803/94, § 101, ECHR 1999‑V), in which the Court had rejected the argument submitted by the respondent State based on the Ireland v. the United Kingdom judgment, and had found that “greater firmness” and an “increasingly high standard” were needed in assessing alleged breaches of Article 3. They also mentioned that at least since the Court’s judgment in Egmez v. Cyprus (no. 30873/96, § 78, ECHR 2000‑XII), long-term effects have been relevant to the classification of acts as torture.

B.  The applicant Government

61.  As a preliminary observation, the applicant Government reiterated the grounds on which they had based their revision request.

62.  Firstly, the respondent Government had had within their possession information, including opinions of Dr L., which showed that the effects of the five techniques could be substantial, whereas their position presented to the Court through the evidence of Dr L. was that the effects were minor and short-term. Secondly, the archive material revealed the extent to which the then Government of the United Kingdom had adopted a policy of withholding from the Commission and the Court certain information regarding the five techniques and their purpose in doing so.

63.  They maintained their position that the evidence before the Commission and the Court was divided as to the long-term effects of the five techniques; that the new documents demonstrated that Dr L.’s evidence had been misleading; that the misleading evidence concerned a crucial issue and that knowledge of the withholding of evidence might have had a decisive influence on how the Court resolved conflicts of evidence.

64.  As to compliance with the requirements of Rule 80 § 1 of the Rules of Court, the applicant Government made the following submissions.

65.  The revision request had been made within the six-month time-limit. That time-limit had started running on 4 June 2014, the date of the RTÉ broadcast. Before that date they could not reasonably have been aware of the relevant facts relied on in their revision request.

66.  The applicant Government provided the following chronology of events: on 1 August 2013 the PFC informed the Department of Foreign Affairs and Trade that its members were reviewing declassified files in the United Kingdom which related to the Ireland v. the United Kingdom judgment of 1978, but did not furnish any documents. On 24 October 2013 a Belfast law firm transmitted a number of documents to the Office of the Attorney General of Ireland. These dealt mainly with the level of knowledge within the then respondent Government about the use of the five techniques and the location of detention centres. They were reviewed by counsel but were not of themselves considered sufficient to merit a request for revision. Two of the documents were later submitted in support of the revision request. On 6 March 2014 the PFC submitted a number of documents to the Attorney General’s Office, relating primarily to Mr S.K. and including a record of a medical examination by Dr L. in June 1975. Again, these documents were reviewed by counsel with the same conclusion as above. One of these documents, namely the above‑mentioned medical report by Dr L., was later submitted in support of the revision request. The applicant Government contested the respondent Government’s view that the said medical report was the key document on which the request for revision was based, noting that it had not been considered to form a sufficient basis for a revision request of itself. It had only taken on greater significance in the light of the other documents which were received later.

67.  Following the RTÉ broadcast, the PFC submitted several thousand pages of documents to the Department of Foreign Affairs on 13 June 2014. Additional material was transmitted by RTÉ on 23 June and 24 November 2014. The documents were reviewed by counsel with the help of documentary counsel. Thus, with the exception of three documents which counsel had not considered to merit of themselves a request for revision, all documents submitted in support of the revision request had been received between June and November 2014, following the RTE broadcast of 4 June 2014. The revision request had been lodged on 4 December 2014.

68.  The applicant Government contested the respondent Government’s view that they could have been expected to make further enquiries once they had received Dr L.’s report on Mr S.K. in March 2014. They argued in particular that in the case of Bugajny and Others (cited above), relied on by the respondent Government, the Court had refused a request for revision on the ground that the relevant information could have been obtained from the publicly available land register. However, the present case differed in that they could not reasonably be expected to search another Member State’s archives. The case of Cernescu and Manolache v. Romania (revision) (no. 28607/04, 30 November 2010) was more relevant in the present context, as it showed that, even where information on relevant facts was publicly available, a party’s failure to inform the Court of those facts in the original proceedings might be a relevant consideration in the examination of a revision request. In conclusion, they maintained that the revision request had been submitted in good time.

69.  The applicant Government submitted that neither Rule 80 nor the Court’s case-law indicated that the Court would be prevented from modifying the grounds on which a violation was found. In their view, the Court was called upon to reconsider, in the light of the new material, the grounds on which it had found a violation of Article 3 in respect of the five techniques.

70.  Furthermore, the applicant Government contended that the documents on which they relied in their revision request contained new facts which had been “unknown to the Court” when the original judgment had been delivered. They argued that the Commission and the Court had considered evidence as to the long-term effects of the five techniques which was at odds with the views that Dr L., the respondent Government’s chief witness on those effects, had expressed in the context of domestic proceedings brought by the men who had been subject to these techniques. They maintained their conclusion that Dr L. had misled the Commission on this point.

71.  Turning to the question whether the newly discovered facts “might by [their] nature have a decisive influence” on the original judgment, the applicant Government asserted that the new facts might and, in all probability, would have had such a decisive influence. They highlighted the importance of the long-term effects to determining what constitutes torture. Furthermore, they pointed out that the Commission had noted that the experts it had heard had disagreed on the matter and that it had thus been unable to establish the exact degree of the psychiatric after-effects. The Court in turn had relied on the evidence taken by the Commission.

72.  Furthermore, in reply to the respondent Government’s observations, the applicant Government commented in detail on the relevance of the documents submitted in support of the revision request.

73.  They maintained that Dr L. had been the only expert who had expressed the view that the five techniques would not have long‑term effects. The experts called by the applicant Government, Professors Daly and Bastiaans, gave evidence that the effects would be substantial, severe and long-lasting. Regarding Dr M., the applicant Government noted that this witness had been called by the Commission and not by the applicant Government. In the applicant Government’s view, Dr M, who had examined the two men (Mr P.C. and Mr P.S.) in August/September 1971 in the immediate aftermath of the application of the five techniques and one of them also a year later, had not excluded the possibility that they might produce long‑term effects.

74.  Referring to the transcripts of the hearings before the Commission, the applicant Government observed that Dr L. had given evidence on 15 June 1974 in the case of two men who had been subjected to the five techniques in 1971 and whom he had examined in 1973. On 18 January 1975 he had given evidence on his more general findings and conclusions, expressing the view that the five techniques did not expose the persons to whom they were applied to very severe stress and that their effects were rather minor and short-term than long-term, disagreeing strongly with the views of the other experts heard. In the applicant Government’s view, the evidence given by Dr L. was not the balanced, disinterested evidence of an independent expert as claimed by the respondent Government but was a robust and emphatic statement that the effects of the five techniques were neither severe nor long-lasting. Much was made by the respondent Government of the fact that Dr L. had made a number of concessions under cross-examination. However, he had only done so where necessary and had not allowed such concessions to detract from his overall views on the minor and short-term effects of the five techniques.

75.  The documents submitted in relation to the first ground for revision were relevant in that they showed that Dr L. had expressed different views in the context of the domestic proceedings brought by the men who had been subjected to the five techniques. The applicant Government noted that the first document contained legal advice on the amount of compensation to be awarded in domestic proceedings to three men who had been subjected to the five techniques (Mr S.K., Mr B.T. and Mr W.S.). It referred to views expressed by Dr L. in April 1974 when he had examined the men. Those views were radically different from the evidence he gave to the Commission in June 1974 and January 1975. The second document, that is the medical report by Dr L. in respect of the examination of Mr S.K. of June 1975, had been drawn up between the conclusion of the taking of evidence and the submission of the Commission’s report. In the applicant Government’s view, this did not relieve the respondent Government of their duty to bring relevant information to the attention of the Convention organs. That document too disclosed views with conflicted with the evidence given by Dr L. before the Commission. The third document was a report of 5 October 1974 in the context of domestic proceedings, referring to a growing tendency in medical opinion to acknowledge long-term effects of deep interrogation and advising strongly to settle the cases out of court. The views expressed by Dr L. before the Commission as to the possible long-term effects of the five techniques were in striking contrast to the views expressed in this report.

76.  In relation to the second ground for revision, the applicant Government submitted that the new documents showed the concern of the then respondent Government not to co-operate with the Convention organs in order to avoid damage to their reputation from any adverse finding of the Commission and the Court. The Commission and the Court would have considered the evidence given by Dr L. with greater scrutiny had they been aware of the full extent of those efforts. Furthermore, referring to the case of Cernescu and Manolache (cited above), the applicant Government argued that, according to the Court’s case-law, a party’s failure to comply with its obligations in the Convention proceedings might be relevant for the consideration of a request for revision.

77.  Lastly, the applicant Government argued that the revision request served a wider purpose and had current relevance. Although the Court’s case-law had evolved in respect of torture, the Ireland v. the United Kingdom judgment had a continuing life of its own, being relied on by other Governments, including Israel and the United States of America in 1999 and 2002, to classify conduct as not amounting to torture. The evolution of the Court’s case-law had not prevented the use of its findings in the original judgment for what did or did not constitute torture. The applicant Government stressed that both in 1977, when it had sought a ruling from the Court, and today, its chief concern was to establish clear guidance regarding what constituted torture under Article 3 of the Convention. Neither then nor now did it seek to embarrass the respondent Government.

II.  THE COURT’S ASSESSMENT

A.  General principles

78.  The Court notes the embodiment of the principle of finality of judgments in Article 44 of the Convention and reiterates that, in so far as it calls into question the final character of judgments of the Court, the possibility of revision, which is not provided for in the Convention but was introduced by the Rules of Court, is considered to be an exceptional procedure. Requests for revision of judgments are therefore to be subjected to strict scrutiny (McGinley and Egan, § 30, with references to Pardo v. France (revision – admissibility), 10 July 1996, § 21; Gustafsson v. Sweden (revision – merits).

79.  In order to establish whether the facts on which a request for revision is based “might by [their] nature have a decisive influence” they have to be considered in relation to the decision of the Court whose revision is sought (Pardo (revision – admissibility), cited above, § 22, and Hertzog and Others v. Romania (revision), no. 34011/02, § 15, 14 April 2009).

B.  Application of these principles to the present case

80.  In the present case two main points are in dispute, namely whether the documents submitted by the applicant Government disclose new facts “which by their nature might have a decisive influence” and whether the revision request has been submitted within the six-month time-limit.

81.  The Court will begin its examination with the question whether the revision request has been submitted in good time.

1.  Whether the six-month time-limit laid down in Rule 80 § 1 of the Rules of Court has been complied with

82.  Pursuant to Rule 80 § 1, a request for revision of a judgment has to be introduced “within a period of six months after [the] party acquired knowledge” of “a fact which might by its nature have a decisive influence and which, when the judgment was delivered, was unknown to the Court and could not reasonably have been known to that party” (hereinafter also referred to as the “new fact[s]”).

83.  As has already been set out above, the applicant Government relied on two grounds or new facts in support of their revision request. Based on a number of documents from the United Kingdom’s archives, they claimed, firstly, that Dr L. had misled the Commission regarding the long-term effects of the five techniques and, secondly, that the then respondent Government had adopted a clear policy of withholding from the Commission and the Court certain information regarding the five techniques. The question therefore arises when the applicant Government “acquired knowledge” of the documents containing these facts.

84.  The applicant Government argued that they had become aware of the relevant facts on 4 June 2014, the date of the RTÉ broadcast.

85.  The respondent Government contested this view. They submitted in particular that the applicant Government had received the key document on which they relied in their revision request, namely Dr L.’s medical report relating to Mr S.K., in March 2014. Moreover, the applicant Government had already been aware by the end of 2013 that substantial volumes of documents had been obtained and analysed by the PFC. Consequently, the materials relied on in the revision request had been available to them, or could reasonably have been known to them, more than six months before the application was made on 4 December 2014.

86.  The Court notes the applicant Government’s submission that they had received documents on two occasions before 4 June 2014. In October 2013 they had received documents relating mostly to the level of knowledge within the then respondent Government about the use of the five techniques. Two of these documents  were later submitted with the revision request. In March 2014 they had received documents relating mainly to Mr S.K., including Dr L.’s medical report. The latter document was subsequently submitted in support of the revision request. All other documents were received between June and November 2014, following the RTÉ broadcast of 4 June 2014.

87.  The applicant Government submitted the documents received in October 2013 and March 2014, respectively, for review by counsel and were advised that they were not of themselves sufficient to merit a request for revision. In these circumstances, the Court accepts that the applicant Government had not “acquired knowledge” of any new facts at that time.

88.  However, the respondent Government argued, firstly, that the six‑month time‑limit for a revision request started running from the date on which the applicant Government could reasonably have known the new facts. While accepting that the six-month time-limit did not start running with the release of documents to their National Archives, the respondent Government asserted that the applicant Government could reasonably have known the alleged new facts from the moment they learned about the research carried out by the PFC and started receiving documents, that is, more than a year before they submitted the request for revision or at the latest from March 2014, when they received Dr L.’s medical report on Mr S.K. They argued, secondly, that facts ascertainable from publicly accessible sources were to be treated as known.

89.  The Court observes that most of the case-law relied on by the parties does not deal with the six-month time-limit but with a separate requirement of Rule 80 § 1, namely whether the new fact “could not reasonably have been known” to the party seeking revision when the judgment was delivered. This requirement relates to situations in which the new fact forming the basis for the revision request could already have been known to the party before the delivery of the original judgment, not, as in the present case, long after the conclusion of the original proceedings.

90.  The case-law shows that the assessment of what a party can reasonably be expected to have known depends on the circumstances of each case.

91.  In McGinley and Egan (cited above, §§ 33-36), in which the applicants relied in their revision request on a series of letters relating to proceedings which could be relevant to their case, the Court observed that they had been aware of the existence of the correspondence and had obtained detailed information about the proceedings at issue. It therefore rejected the applicants’ request, finding that they could reasonably have been aware of the new facts before the delivery of the original judgment, although they might not have obtained copies of the relevant correspondence until thereafter. In Bugajny and Others (cited above, §§ 22‑26) the Court rejected the Government’s request for revision on the ground that they could reasonably have known the new fact, namely that the applicants had concluded easement contracts with the buyers of their real estate. While considering that the applicant’s conduct was improper, as they had failed to inform the Court of this fact, it found that the Government should have consulted the land register which was a public register kept by the district courts in order to make the status of immovable properties known to the public. Similarly, in Pennino v. Italy (revision), no. 43892/04, §§ 17-20, 8 July 2014 and De Luca v. Italy (revision), no. 43870/04, § 17‑20, 8 July 2014, the Court rejected the Government’s request for revision, on the ground that they could reasonably have known the new fact at the time of delivery of the judgment. It considered that the body administering an insolvent Town Council was an organ of the State and that the Government could and should have requested that body or the Town Council to provide information about the payment of the applicant’s claim.

92.  In contrast, in Cernescu and Manolache (cited above, §§ 12-14) the Court found that the Government could not reasonably have known the new fact, namely that the applicants had obtained restitution of the property concerned. In the Court’s view, the Government, who had enquired about the legal situation of the property with the domestic authorities before submitting their observations, could not be reproached for not having been aware of the judgment in favour of the applicants which had been given subsequently, even though it was public information. Moreover, the applicants had knowingly failed to inform the Court of the restitution (Hertzog and Others, §§ 16-18, 14 April 2009). Furthermore, in Stoicescu v. Romania (revision) (no. 31551/96, §§ 47-48, 21 September 2004), having regard to the absence, at the time, of a computerised system of judicial data, the Court held that the Government could not be expected to carry out extensive research in the relevant registers without having any indication that the applicant’s certificate of heritage had been challenged before the courts.

93.  In the present case the issue arises whether the case-law described above can be transposed to the phase after the delivery of the original judgment. Though the wording of Rule 80 § 1 – that the relevant fact has to be capable of having 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” – would point to the contrary, there may nonetheless be arguments in favour of a certain duty of diligence. In that context the Court refers in particular to the exceptional nature of the revision procedure, which calls the final character of judgments of the Court into question. It could therefore be argued that once aware of possible grounds for revision a party has to take reasonable steps to ascertain whether such grounds actually exist, in order to put the Court in a position to rule on the matter without delay. The case of Grossi and Others (cited above, §§ 22-24) appears to indicate such an approach. In that case the Government had become aware of the existence of documents demonstrating a new fact, namely the actual size of the property at issue, shortly after the delivery of the judgment but only submitted their revision request within six months from the date on which the competent Ministry had actually received the documents. The Court rejected the request as belated, on the ground that the Government could reasonably have known the new facts relied on as soon as they became aware of the existence of the documents.

94.  In the present case there are a number of elements to be taken into consideration: what was at stake was not the obtaining of a specific set of documents, the existence and relevance of which were known to the applicant Government from October 2013 or March 2014, nor the verification of a single fact (such as for example the existence of a contract in respect of real property or the payment of a claim) which can be ascertained by consulting one particular register or database. The present request for revision is of a more complex nature. The Court would accept the applicant Government’s claim that circumstances transpired from a significant number of documents which, analysed together, led them to the conclusion that there was a basis for seeking revision. The Court observes that the applicant Government did not remain passive when they received documents in October 2013 and March 2014 potentially disclosing new facts. On both occasions they had the documents reviewed by counsel, who advised them that the documents were not of themselves sufficient to justify a request for revision. As to whether they were under a duty to do more, for instance to actively carry out research, in particular after the receipt of Dr L.’s report on Mr S.K. in March 2014, the Court notes that relevant documents were not readily available in the applicant Government’s archives. The applicant Government would have had to carry out extensive research among a broad range of potentially relevant documents in the United Kingdom’s national archives. In sum, the Court doubts whether it can be said that the applicant Government could reasonably have “acquired knowledge” of the documents containing the facts relied on in their revision request before the RTE broadcast of 4 June 2014.

95.  Having regard to the above considerations, the Court considers that the applicant Government have submitted the request for revision within the six-month time-limit laid down in Rule 80 § 1 of the Rules of Court.

2.  Whether there are facts “which by [their] nature might have a decisive influence” on the judgment of 18 January 1978

96.  According to the applicant Government, the documents submitted disclosed new facts, namely that Dr L. had misled the Commission on the question whether the effects of the five techniques were severe and long-lasting and the extent to which the respondent Government at the time had deliberately withheld information about the five techniques from the Commission and the Court. In their view, the new facts might have had a decisive influence as they related to the long-term effects of the five techniques, an element which was central to the Court’s assessment under Article 3 of the Convention. Had the Court known the new facts at the time it would in all probability have come to the conclusion that the application of the five techniques amounted to torture and not “only” to inhuman and degrading treatment.

97.  The respondent Government contested every aspect of that assertion. In their view, the documents did not disclose any new facts. Regarding the first ground for revision, the documents did not support the conclusion that Dr L. had misled the Commission. The documents submitted in support of the second ground for revision were not relevant as the respondent Government had conceded in the original proceedings that the five techniques had been an administrative practice authorised at a “high level”. Furthermore, they noted that the applicant Government were not seeking to correct a clear error of fact in the original judgment but were asking the Court to vary the grounds on which the finding of a violation had been based. In any case, there was no indication that the Court would have come to another conclusion. It followed from the original judgment that the Court had wished to reserve the epithet “torture” for the most serious cases.

(a)  The scope of the revision request

98.  As a preliminary point, the Court will deal with one particular aspect of the present referral request: the applicant Government are not seeking to modify the Court’s finding that the use of the five techniques amounted to a violation of Article 3 of the Convention. However, they assert that the new facts require a modification of the reasons on which that finding is based to the effect that the use of the five techniques is to be qualified not “only” as inhuman and degrading treatment but as torture within the meaning of Article 3.

99.  The English version of Rule 80 § 1 (“… 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 [the] party…”) contains no indication on how to resolve the question of which parts of a judgment revision may address, while some support for a restrictive approach could be found in the French version (“En cas de découverte d’un fait qui, par sa nature, aurait pu exercer une influence décisive sur l’issue d’une affaire déjà tranchée et qui, à l’époque de l’arrêt, était inconnu de la Cour et ne pouvait raisonnablement être connu d’une partie …”).

100.  In the Court’s case-law a few examples can be found in which the revision procedure has been used to modify the reasoning of the original judgment. For instance, in Adamczuk v. Poland (revision) (no. 30523/07, §§ 83-85, 15 June 2010) the Court corrected the erroneous statement contained in the original judgment that the Government had not expressed a view on just satisfaction and added a summary of their comments, without however amending the award of just satisfaction. In Naumoski v. the former Yugoslav Republic of Macedonia (revision) (no. 25248/05, §§ 8-11, 5 December 2013), the Court corrected an error concerning the date of the Supreme Court’s decision, noted explicitly that the error had been part of the reasons which led to the conclusion that the length of the proceedings had been unreasonable, and amended the reasoning while confirming the conclusion of the original judgment that the duration of the proceedings had been excessive.

101.  Of relevance in the present case is that it concerns a violation of Article 3 of the Convention which prohibits distinct forms of conduct, namely subjecting a person to torture or to inhuman treatment (or punishment) or to degrading treatment (or punishment). According to the Court’s well-established case-law the distinction between the notion of torture and that of inhuman and degrading treatment would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (Selmouni, § 96; Egmez, § 77; Gäfgen v. Germany [GC], no. 22978/05, § 90; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 197). In many cases where the Court finds a violation of Article 3 it specifies whether the treatment at issue was degrading or inhuman or whether it amounted to torture (Selmouni, §§ 99-105; Gäfgen, §§ 101-08).

102.  The Court observes that the operative part of the original judgment contains two separate points concerning the findings under Article 3 in respect of the five techniques, namely that their use in August and October 1971 constituted a practice of inhuman and degrading treatment, which practice was in breach of Article 3 of the Convention, and that the said use did not constitute a practice of torture within the meaning of Article 3.

103.  The Court therefore considers that the revision sought by the applicant Government relates to an important finding in the original judgment set out in its operative part. The Court is satisfied that these are matters which can be the subject of a revision request.

(b)  Whether the documents submitted by the applicant Government demonstrate new facts

104.  The main point in dispute between the parties is whether the documents submitted by the applicant Government demonstrate any new facts and, if so, whether they might by their nature have had a decisive influence on the Court’s findings in the original judgment. The Court will examine these points in turn.

105.  Before undertaking this analysis, the Court points out the following specific feature of the present request for revision. Certain important facts relating to the five techniques, namely that they were authorised at a high level, that they consisted in a combination of measures and caused both physical and mental suffering to the detainees subjected to them, were not contested in the original proceedings and are not in dispute now. The documents submitted in support of the applicant Government’s revision request allegedly demonstrate that Dr L. misled the Commission about certain aspects of the five techniques, in particular their severe and long-term effects and the extent to which the then respondent Government withheld information in respect of the five techniques. The applicant Government claim that the alleged new facts had an impact on the Commission’s establishment of key facts in the original proceedings and by implication on the Court’s legal assessment. Their argument is in essence that, had the Commission been aware of the documents now submitted, it would have assessed the evidence before it differently and would consequently have come to a different establishment of the facts regarding in particular the long-term effects of the five techniques. The Court, for its part, would have come to a different legal assessment, namely qualification of the use of the five techniques not only as a practice of inhuman and degrading treatment but as a practice of torture.

106.  Where, as in the present case, documents are submitted in support of a revision request, the Court has to assess whether they provide sufficient prima facie evidence in support of the party’s version of the events (Pardo v. France (revision – merits), 29 April 1997, § 15).

107.  In order to make that assessment the Court will have regard to the conduct of the original proceedings before the Commission and the Court and in particular to the manner in which the facts of the case were established. It notes that the Commission established the facts having regard to illustrative cases (§ 93 of the original judgment). Two of these, Mr P.S. and Mr P.C. (referred to as T 6 and T 13 in the report of the Commission), concerned men who had been subjected to the five techniques. The Commission’s delegates heard these two men as witnesses, and also Dr L. and Dr M. (referred to as Doctors 5 and 1) as well as Professors Daly and Baastians. Dr L. first gave evidence in June 1974. On that occasion he was questioned in particular about the cases of the two men and the effects the use of the five techniques had had on them. At a further hearing, in January 1975, he was questioned extensively about his professional background and experience, about the general effects of the five techniques, including whether or not they were severe and long-term. He was also questioned in relation to the amounts received by victims of the five techniques by way of settlements in domestic compensation proceedings.

(i)  The documents submitted in support of the first ground for revision

108.  Turning to the documents submitted by the applicant Government in support of the first ground for revision, the Court observes that they all relate to compensation proceedings which the victims of the five techniques had brought before the domestic courts in Northern Ireland at the material time.

109.  Only one contains direct proof of Dr L.’s medical views on one of the men who had been subjected to the five techniques, namely his report of June 1975 on Mr S.K. The Court notes, firstly, that the report post-dates the hearings of Dr L. by the Commission which took place in June 1974 and January 1975. Secondly, the medical report relates to Mr S.K., who was not, however, one of the two illustrative cases on which Dr L. had given evidence to the Commission. Thirdly, it can be seen from the report that Mr S.K. had a serious medical pre-condition, namely angina pectoris, and that Dr L. considered that in view of that condition the five techniques should not have been applied at all. The fact that Dr L. had, some time after he had given evidence before the Commission, observed serious and long-term effects of the five techniques in the case of one man with a specific health condition does not in the Court’s view suffice as prima facie evidence that the statements he made in respect of the general effects of those techniques were misleading or were made in bad faith.

110.  The other documents contain counsel’s advice to the respondent Government in the domestic compensation proceedings and in particular on the desirability of concluding settlements in these cases. One of these documents refers to Dr L.’s views on three men, Mr S.K., Mr B.T. and Mr W.S. It transpires from this document that Dr L. had examined these men in April 1974, some two and a half years after they had been subjected to the five techniques and shortly before he was heard for the first time by the Commission in June 1974. It is true that, according to this document, Dr L. had observed serious mental effects in these men after a considerable lapse of time. Again, none of the men referred to had been among the illustrative cases, and the Court has doubts whether the document contains sufficient prima facie evidence that Dr L. gave misleading evidence on the question of whether the five techniques generally produced serious and long-term effects. It attaches importance to the indication contained in another document submitted by the applicant Government, namely that at the material time there was no consolidated scientific knowledge on this question.

111.  The remaining documents do not refer to Dr L.’s opinions but more generally to medical opinion pertaining at the time concerning the long-term effects of the five techniques. Only one, the document “Civil actions in Northern Ireland against the Ministry of Defence: Interrogation in Depth cases”, bears a date, namely 5 October 1974, and can therefore be said to reflect the position of medical opinion which existed before Dr L. was heard by the Commission for the second time in January 1975. The Court notes that although the document attests to there being a growing disposition in medical opinion to acknowledge the possibility that the five techniques might produce long‑term psychiatric effects, it also points out that there was no certainty at the time whether or not this was the case. It only refers to “one or two cases where the very serious psychiatric effects of the deep interrogation are likely to be sufficiently proven.”

112.  The last document concerns Mr P.S., one of the two illustrative cases. It refers to a considerably higher assessment of damages in the domestic proceedings on account of lasting psychiatric damage. The Court, apart from repeating that this document is not referring to Dr L.’s opinion, observes that the Commission and the Court were aware of the domestic proceedings and of the settlements concluded in those proceedings, including the amounts awarded in compensation (§ 107 of the original judgment). As follows from the questions put to Dr L. when he was heard by the Commission, the high amounts of damages awarded were regarded as an indicator of the seriousness of the effects of the five techniques.

113.  In conclusion, the Court has doubts as to whether the documents submitted by the applicant Government contain sufficient prima facie evidence of the alleged new fact, namely that Dr L. misled the Commission as to the serious and long-term effects of the five techniques.

(ii)  The documents submitted in support of the second ground for revision

114.  Turning to the documents submitted by the applicant Government in support of the second ground for revision, the Court observes that they are all internal Government papers. Some demonstrate that the use of the five techniques constituted an administrative practice which had been authorised at ministerial level, not only at a “high level” as admitted by the respondent Government in the original proceedings. Others give indications why the then respondent Government were anxious to conclude settlements in the domestic cases, namely precisely to avoid embarrassment and damage to the reputation of those who had authorised the use of the five techniques and the Government in general and also to prevent disclosure of sensitive Government papers. Furthermore, some documents shed light on the litigation strategy adopted by the respondent Government in the original proceedings, in particular their wish to protract the proceedings and the reasons for their opposition to the Commission hearing witnesses in respect of the five techniques, in particular to avoid their cross-examination. The remaining documents may be seen as providing some further background relating to the use of the five techniques and the then United Kingdom’s general attitude towards the Convention proceedings.

115.  The Court accepts that a number of documents submitted in support of the second ground demonstrate that the then Government of the United Kingdom were prepared to admit that the use of the five techniques had been authorised at “high level” to avoid any detailed inquiry into the issue and that they were opposed to the hearing of witnesses in respect of the five techniques in order to avoid exposing ministers involved. However, while the documents shed more light on the attitude of the then respondent Government, the Court does not find that the relevant facts as such, which the applicant Government qualify as the withholding of information about the five techniques by the United Kingdom, were “unknown” to the Court at the time of the original proceedings.

116.  Both the Commission and the Court were well aware of the United Kingdom’s general attitude regarding the establishment of facts in respect of the five techniques. The Commission noted that it had not been able to hear oral evidence from members of the security forces and that the respondent Government had stated at the hearing of witnesses in January 1975 that they had instructed all of their witnesses not to reply to any questions regarding the five techniques. The Court referred to the report of the Commission, noting that it had pointed out in various places that the respondent Government had not always afforded it the assistance desirable, and went on to say that it regretted this attitude (§ 148 of the original judgment).

117.  As regards the question of authorisation of the use of the five techniques, the Court noted in the original proceedings that the respondent Government had conceded from the start that the use of the five techniques had been authorised at a “high level” and that they had been taught to members of the RUC at a seminar held in April 1971 (§ 97 of the original judgment). Furthermore, the Court held that there had been a practice (§ 166 of the original judgment).

118.  The Court concludes that the documents submitted in support of the second ground do not demonstrate facts that were “unknown” to the Court when the original judgment was delivered.

(c)  Whether the alleged new facts were of “decisive influence”

119.  Even assuming that the documents submitted in support of the first ground for revision demonstrate the facts alleged by the applicant Government, namely that Dr L. misled the Commission regarding the effects of the five techniques, the Court considers that the revision request cannot succeed for the reasons set out below.

120.  The Court reiterates that in order to establish whether the facts on which a request for revision is based “might by [their] nature have a decisive influence” they have to be considered in relation to the decision of the Court whose revision is sought (Pardo (revision – admissibility), § 22). Once this is shown, in order to revise the original judgment it must be further established that these facts actually had a decisive influence on it (ibid, §§ 21 and 24, and Pardo (revision – merits), §§ 14 and 23; Gustafsson (revision), § 27; Hertzog and Others, §§ 15 and 20-25; Cernescu and Manolache, §§ 11 and 16-22).

121.  In order for revision to be granted, it must be shown that there was an error of fact and there must be a causal link between the erroneously established fact and a conclusion which the Court has drawn. In other words, it must be clear from the reasoning contained in the original judgment that the Court would not have come to a specific conclusion had it been aware of the true state of facts. Typical examples are cases in which, after the judgment has become final, the Court is informed that the applicant had died while the proceedings were pending. Where there are heirs the Court revises its judgments in respect of Article 41 of the Convention and orders that the sum awarded be paid to them (Tanișma v. Turkey (revision), no. 32219/05, 27 June 2017). Where there are no relatives wishing to pursue the examination of the case, the Court, on the Government’s revision request, strikes the application out of its list, considering that it is no longer justified to continue its examination (Eremiášová and Pechová v. the Czech Republic (revision), no. 23994/04, 20 June 2013). Other examples are cases in which the Court is informed that, at the time of the delivery of the original judgment, the applicants had no longer been the owners of part of the property at issue (Hertzog and Others, §§ 20-25) or had obtained restitution of their property (Cernescu and Manolache, §§ 16-22) or that the applicant’s inheritance title to the property had been annulled (Stoicescu,  §§ 55-60). Depending on the circumstances of the case, such facts are considered to be decisive for the applicant’s victim status or for the award of just satisfaction. Further examples are cases in which the Court had not made an award of just satisfaction in the original judgment erroneously considering that no claim had been made, while in fact the applicant had duly submitted such a claim. Here the Court revises the judgment and makes an award under Article 41 of the Convention (Sabri Taș v. Turkey (revision), no. 21179/02), §§ 6-12, 25 April 2006; Baumann v. Austria (revision), no. 76809/01, §§ 10-17, 9 June 2005; Fonyódi v. Hungary (revision), no. 30799/04, §§ 6-9, 7 April 2009).

122.  The Court reiterates that 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 (Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 54). Subjecting requests for revision to strict scrutiny, the Court will only proceed to the revision of a judgment where it can be demonstrated that a particular statement or conclusion was the result of a factual error. In such a situation, the interest in correcting an evidently wrong or erroneous finding exceptionally outweighs the interest in legal certainty underlying the finality of the judgment. In contrast, where doubts remain as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.

123.  The Court must therefore examine whether there is a basis in the reasoning of the original judgment that warrants the conclusion that the Court would have qualified the use of the five techniques as amounting to a practice of torture within the meaning of Article 3 had it been aware of the facts alleged by the applicant Government, assuming, as stated above, that they are sufficiently demonstrated by the documents submitted.

124.  Another consideration is worth pointing out in the present case, namely the long lapse of time between the delivery of the original judgment and the submission of the revision request owing to the fact that the documents on which the revision request relies were classified for thirty years and only came to light following comprehensive research carried out in the United Kingdom’s archives. During that lengthy period the Court’s case-law on the notion of torture has evolved. Most notably, in Selmouni (cited above, § 94 and §§ 100-105), the Court, dismissing the Government’s argument relying on the judgment in Ireland v. the United Kindgom (that is, the original judgment) that the ill-treatment inflicted on the applicant did not amount to torture, stated that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future”. Furthermore, while the effect of the treatment on the victim was already at the time of the original judgment one of the elements to be considered in the assessment whether a given treatment amounted to ill-treatment falling within the scope of Article 3, explicit references to the relevance of long-term effects of treatment when distinguishing between torture and inhuman treatment only appear in the Court’s subsequent case-law (Egmez,  § 78; Gäfgen, § 103).

125.  The Court therefore has to be careful when examining whether the alleged new facts had a decisive influence on the original judgment. Having regard both to the wording of Rule 80 and to the purpose of revision proceedings, a request for revision is not meant to allow a party to seek a review in the light of the Court’s subsequent case‑law (compare Harkins, cited above, § 56, in which the Court found that a development in its case-law could not of itself be considered as “relevant new information” for the purpose of Article 35 § 2(b) of the Convention). Consequently, the Court has to make its assessment in the light of the case‑law on Article 3 of the Convention as it stood at the time.

126.  As under the system in place at the time of the original proceedings it fell to the Commission to establish the relevant facts, the Court will also consider the findings of the Commission. The following elements are to be taken into account: in its report the Commission had noted that the psychiatrists disagreed considerably on the after-effects of the use of the five techniques, and the prognosis for recovery. It noted that two of them, Professors Daly and Bastiaans, considered that “both witnesses would continue for a long time to have considerable disability shown by bouts of depression, insomnia and a generally neurotic condition resembling that found in victims of Nazi persecution.” It went on to note as follows “Two others, Drs 5 and 1 [that is Dr L. and Dr M.] considered that the acute psychiatric symptoms developed by the witnesses during the interrogation had been minor and that their persistence was the result of everyday life in Northern Ireland for an ex-detainee carrying out his work travelling to different localities. In no sense could the witnesses’ experiences be compared to those of the victims of Nazi persecution”. The Commission found that on the basis of this evidence it was unable to establish the exact degree of the psychiatric after-effects which the use of the five techniques might have had on the witnesses or generally on persons subjected to them. It was nevertheless satisfied that some after-effects resulting from the application of the techniques could not be excluded.

127.  When expressing its opinion on the five techniques the Commission stated as follows “It is this character of the combined use of the five techniques which, in the opinion of the Commission, renders them in breach of Art. 3 of the Convention in the form not only of inhuman and degrading treatment, but also of torture within the meaning of that provision.” It then went on to say “Indeed, the systematic application of the techniques for the purpose of inducing a person to give information shows a clear resemblance to those methods of systematic torture which have been know over the ages. Although the five techniques – also called ‘disorientation’ or ‘sensory deprivation’ techniques – might not necessarily cause any severe after-effects the Commission sees in them a modern system of torture falling into the same category as those systems which have been applied in previous times as a means of obtaining information and confessions”.

128.  The Court therefore underlines that in the Commission’s view Dr L. was not the only expert who considered that the after-effects of the application of the five techniques were rather minor and did not produce long-term effects. Nonetheless, it did not exclude the possibility that they might produce some after-effects and, in any case, the uncertainty in this respect did not prevent the Commission from concluding that the use of the five techniques amounted to torture within the meaning of Article 3 of the Convention.

129.  Turning to the original judgment, the Court notes that it relied on the establishment of the facts by the Commission and other documents before it.

130.  As to the legal assessment, the original judgment set out the general principle that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3, and that the assessment of this minimum is relative, depending on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (§ 162 of the original judgment).

131.  The reasoning of the original judgment as regards the application of these principles to the five techniques is rather succinct (§§ 165-68). It starts by noting that the respondent Government did not contest the Commission’s opinion that the use of the five techniques constituted a practice not only of inhuman and degrading treatment but also of torture (§ 165).

132.  Noting that “the five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation”, the original judgment confirms the Commission’s view that the use of the five techniques amounted to a practice of inhuman and degrading treatment. However, the original judgment then states that the distinction between torture and inhuman and degrading treatment derives principally from a difference in the intensity of the suffering inflicted and considers that “it was the intention that the Convention, with its distinction between ‘torture’ and ‘inhuman or degrading treatment’, should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering” (§ 167).

133.  The conclusion of the original judgment in respect of the five techniques reads as follows: “Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3” (§ 167 in fine and 168).

134.  The Court observes in particular 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. It is therefore difficult to argue that the original judgment attached any particular importance to the uncertainty as to their long-term effects, which pertained according to the Commission’s establishment of the facts, let alone considered this to be a decisive element for coming to another conclusion than the Commission.

135.  Moreover, it follows from the reasoning of the original judgment that the difference between the notions of “torture” and “inhuman and degrading treatment” is a question of degree depending on the intensity of the suffering inflicted. Necessarily, like the assessment of whether a given treatment reaches the minimum level of severity required to bring it within the scope of Article 3, the assessment of this difference in degree must depend on a number of elements. Without an indication in the original judgment that, had it been shown that the five techniques could have severe long-term psychiatric effects, this one element would have led the Court to the conclusion that the use of the five techniques occasioned such “very serious and cruel suffering” that they had to be qualified as a practice of torture, the Court cannot conclude that the alleged new facts might have had a decisive influence on the original judgment.

3.  Conclusion

136.  The Court expresses doubts whether the documents submitted by the applicant Government in support of the first ground of revision contain sufficient prima facie evidence of the alleged new fact and considers that the documents submitted in support of the second ground did not demonstrate facts which were “unknown” to the Court when it delivered the original judgment.

137.  Even assuming that the documents submitted in support of the first ground for revision demonstrate the fact alleged, namely that Dr L. misled the Commission as regards the effects of the five techniques, the Court considers that it cannot be said that it might have had a decisive influence on the Court’s finding in the original judgment that the use of the five techniques constituted a practice of inhuman and degrading treatment in breach of Article 3 of the Convention but did not constitute a practice of torture within the meaning of that provision. The applicant Government’s request for revision must therefore be dismissed.

FOR THESE REASONS, THE COURT

Dismisses, by six votes to one, the request for revision.