The Irish Case: Why Did the ECtHR Decide Not to Review Its Judgement?

According to the Judge of the European Court of Human Rights from the Republic of Ireland, Siofra O’Leary, ‘the judgment in Ireland v. the United Kingdom provided the first definition of torture under Article 3 of the Convention and remains a landmark in this regard’.

However, in March 2018, the ECtHR rejected Ireland’s request to review its 1978 judgment in Ireland v. the United Kingdom, in which the Court found that the use of the so-called ‘five techniques’ used by the UK government during the interrogation of 14 people constituted ‘inhuman and degrading treatment’ in violation of Article 3 of the Convention, but did not rise to the level of torture.

In its request, Ireland asked the ECtHR to review the original judgment on the basis of evidence that became available only in 2014 and to recognise that ‘five techniques’ amounted to torture.

The ECtHR rejected the request. However, it should be emphasised that an application for reconsideration is not an opportunity to correct past mistakes of the Court or to reconsider an old case in the light of recent case law. It is a technical process that allows the ECtHR to review a judgment only when new facts emerge that should have been available to the Court at the time of the initial judgment and that could have had a decisive impact on the Court’s initial judgment.

The initial judgment of the ECtHR

In December 1971, the Irish Government lodged an application against the United Kingdom on behalf of 14 men, known as the ‘hooded men’, who had been subjected to ‘in-depth’ interrogation techniques used during the early 1970s in Northern Ireland during the massive riots caused by a political crisis based on alleged discrimination against the Catholic minority by the Protestant majority.

The so-called ‘five techniques’ included: placing black or blue hoods over the victims’ heads for long periods of time, standing against a wall in a stressful position for long periods of time, noise exposure, sleep deprivation, and being on a strictly limited diet (literally bread and water).

The Commission issued its decision in January 1976: The Commission ruled unanimously that the use of the ‘five techniques’ constituted a practice of inhuman treatment and, more importantly, torture. Accordingly, the case was referred to the ECtHR.

The ECtHR agreed that the ‘five techniques’ constituted a practice of inhuman and degrading treatment.

However, the ECtHR did not conclude that they also amounted to torture. The ECtHR ruled that the ‘five techniques’ did not cause suffering of intensity and cruelty, which is what is meant by the word ‘torture’ as understood by the ECtHR at the time.

Legal grounds for review

In 2014, the Irish government filed an application with the ECtHR, claiming that it had become aware of documents that could have a decisive impact on the Court’s decision in the original case.

Thus, the documents referred to by the Irish government were transferred to the state archives by the UK government in accordance with the ‘thirty-year rule’ between 2003 and 2008 and were brought to the attention of the Irish government by the Pat Finucane Centre in August 2013. It was only after the Irish television network Raidió Teilifís Éireann broadcast the relevant information on 4 June 2014 that the Irish Government announced that it was fully aware of the scope and content of the documents.

Based on these documents, the Irish Government formulated two grounds for review:

1. At the time of the original proceedings, the UK Government had before it evidence showing that the effects of the ‘five techniques’ could be ‘significant, serious and long-lasting’, while claiming that the side effects were ‘minor and short-lived’.
2. The documents revealed that the then UK government had adopted a policy, authorised at ministerial level, of systematically concealing information about the techniques from the Commission and the Court.

Review procedure

The review procedure, which to some extent calls into question the final character of the Court’s judgments, is an exceptional procedure. An application for reconsideration is not a means of reconsidering the original judgment in the light of further developments in the ECtHR case-law or of deciding the same issues as if they were raised before the Court today. It is also not a form of appeal and is not a way to correct the Court’s past mistakes.

Over the past fifty years, the ECtHR case law on the concept of torture has developed more than significantly. The case law has broadened the concept of torture and explicitly considered the long-term consequences.

In contrast, long-term consequences were not considered by the Court when assessing whether treatment constituted ‘torture’ or ‘inhuman and degrading treatment’. Instead, the focus was on the intensity and severity of the treatment.

In its request, Ireland asked the ECtHR to take the position of the Court as it was in 1978 and to decide whether the newly released documents contain any facts that the Court would consider relevant in deciding whether the ‘five techniques’ deserve the ‘special stigma’ of torture in 1978.

It should be noted that neither Ireland nor the United Kingdom appealed against the Commission’s decision at the time. Neither Ireland nor the United Kingdom challenged the Commission’s classification of these methods as torture. The United Kingdom simply argued that it had ceased to use such methods. Ireland, in bringing the case to the Court, stated that it wanted to ensure that Northern Ireland complied with the obligations assumed by the United Kingdom and asked the Court to confirm the Commission’s conclusion. The Court decided to consider the classification of the methods and found that ‘five techniques’ did not rise to the level of torture.

Whether the Court erred in 1978 or not, these errors cannot be corrected by the Court today. This concept is fundamental to the ECtHR. Legal certainty is one of the fundamental elements of the rule of law, which requires that when a court has finally decided an issue, its decision should not be questioned.

First ground of review

Ireland, relying on documents relating to the evidence of Dr L., an expert for the United Kingdom Government, argued that Dr L. had misled the Commission as to the long-term effects of the ‘five techniques’. Although Dr L. testified that the techniques had only minor and short-term effects, the available documents show that Dr L. had expressed the opposite view in other circumstances. The Irish Government pointed to a medical report drawn up by Dr L. on another person who had been subjected to the same ‘methods’, where Dr L. had recognised their possible long-term effects.

However, even if this information had been available to the Court in 1978, it cannot be said that it would have been decisive in deciding whether the methods were classified as torture.

At the time of the original judgment, the decisive element for the Court was not the long-term effect of the methods, but their intensity and cruelty.

Thus, the information submitted did not demonstrate the intensity or cruelty of the methods, and therefore, the Court could not consider that this information would have had any impact on the 1978 ECtHR judgment.

Second ground for review

The Court found that the documents did not contain ‘new facts’.

Thus, Ireland argued that the new documents showed that the ‘five techniques’ constituted an administrative practice that was authorised at a high level.

However, both the ECtHR and the Commission were aware during the initial examination of the case of the actual sabotage by the British government in ensuring full cooperation. The Commission even drew attention to the ‘embargo on evidence’ imposed by the British government. The high-level authorisation for the use of the techniques had already been accepted and recognised by the British government, which acknowledged that the use of these techniques had indeed been authorised at a ‘high level’.

Therefore, the new documents did not meet the criterion of providing information about ‘new facts’, and therefore the ECtHR did not assess whether these facts would have had a ‘decisive influence’ on the Court’s decision at that time.

Conclusion

If the Court were to review its case-law not only whenever new determinative facts emerge, but also whenever a new fact or more recent case-law of the Court points to a different result, it would lead to chaos. Any applicant could reopen the proceedings, claiming that the Court had erred on the smallest and most insignificant issues. Legal certainty, a fundamental aspect of justice, is not a concept that can be easily disregarded.