JURIST Guest Columnist Philip Leach, of Middlesex University and the European Human Rights Advocacy Centre (EHRAC), discusses how the Irish government has urged the European Court of Human Rights to reopen the 1978 case Ireland v. UK …

The Irish government announced this week that it is applying to the European Court of Human Rights (ECHR) to re-open the case it instigated in the early 1970s against the UK government concerning the treatment in detention of fourteen IRA suspects, following their arrest by the British army under internment powers. In its 1978 judgment in the interstate case of Ireland v. UK, the court found the use of five interrogation techniques (wall-standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink) violated the prohibition of inhuman and degrading treatment under Article 3 [PDF] of the European Convention on Human Rights, but did not constitute torture. The prior decision in the case by the European Commission of Human Rights had, by contrast, found such treatment to amount to torture. The Commission found that the five techniques were designed to cause severe mental and physical stress in order to obtain information and described them as a “sophisticated method to break or even eliminate the will.” For the court, however, the interrogation techniques did not cause suffering of the requisite intensity and cruelty to justify a finding of torture.

The request for the judgment to be reviewed follows the broadcast of an RTÉ documentary about the case that aired in June, The Torture Files, which exposed newly-discovered archive documents from the public records office in London. On December 2, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, announced the application for the revision of the judgment:

On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the ‘Hooded Men’ should be recognised as torture.

According to the Irish government, the documentary alleged that the British authorities purposely misled the European Commission and court by withholding information, and claimed that the decision to use the interrogation techniques was taken at cabinet level. The Pat Finucane Centre reported [PDF] that these documents include medical evidence, relevant to the impact of the internees’ treatment.

Four decades on, where might this lead? The European Court’s power of revision is seldom invoked. It has very rarely been the basis of a successful challenge to a core substantive finding in a judgment, which is what the Irish government is seeking to achieve in this case. It is considered exceptional, because the procedure challenges the principle of the finality of judgments. Rule 80 [PDF] of the ECHR’s rules of court allows revision where a decisive new fact is discovered. The exacting conditions are threefold:

(i) a fact has been discovered which might have a decisive influence;
(ii) when the judgment was delivered the fact was unknown to the court; and
(iii) when the judgment was delivered the fact could not reasonably have been known to the requesting party.

The requirements on timing allow a case to be re-opened even many years after the original judgment, because the key juncture is the point at which the party became aware of the “decisive new fact.” From then, there is a six month time limit to reapply to the Strasbourg Court, which the Irish government seems to have complied with in this case—if it became aware of the “new fact” when the documentary was broadcast in June.

The court’s power of revision has most frequently been applied where applicants have died before judgment in their case was issued, and changes therefore need to be made to the named recipients of any damages awarded, or indeed to amend the award of damages itself. In Nicola v. Turkey, the applicant’s successful Convention claim concerning the denial of access to his property was later overturned when it transpired that he had not in fact been the owner of the property. A judgment may also be revised where the court itself makes an error. For example, the case of Naumoski v. the former Yugoslav Republic of Macedonia was re-opened because the court got the date of a domestic court judgment wrong. In Damir Sibgatullin v. Russia, a finding of a violation of Article 38 of the Convention (the failure to facilitate the court’s examination of a case) was overturned when the court accepted that it incorrectly found that the government failed to submit certain key witness statements. In fact it had done so, but there had been a glitch with the court’s IT system.

The difficulties inherent in the preconditions applied to requests for revision are illustrated in McGinley and Egan v. UK, which concerned the fairness of proceedings before the Pensions Appeal Tribunal (PAT). The applicants took part in nuclear tests conducted at Christmas Island in 1958 and they complained, unsuccessfully, about the lack of access to the contemporaneous records of the tests. When the applicants subsequently lodged correspondence relating to other comparable PAT proceedings, and sought revision of the judgment, the European Commission accepted that the conditions for submitting such a request were satisfied. The Commission found that the letters cast doubt on the government’s assertion as to how the PAT disclosure process operated. Accordingly, the new facts might have had a decisive influence on the court’s judgment had they been known to the court at the time.

When the case passed to the court, however, it rejected the request for revision on the basis that the applicants had in fact been aware of the existence of the body of correspondence in question, before the court’s judgment was delivered (even though it accepted that the applicants may not have obtained the letters in question themselves until after the judgment had been delivered). They were facts which therefore “could reasonably have been known” to the applicants prior to the judgment. This precondition may well be raised in the ‘Hooded Men’ case, if there are questions as to when the Irish government had access to the documents featured in the RTÉ documentary, or indeed as to its prior knowledge of the existence of those documents.

The question as to whether newly discovered documents would have had a “decisive influence” was in issue in Pardo v. France. Mr. Pardo originally complained of various violations of his right to a fair hearing. Specifically, he had not been granted an oral hearing before the court of appeal, even though, he claimed, the president of the court said that there would be such a hearing. The European Court found that there was insufficient evidence to justify Mr. Pardo’s version of events. When he later submitted various documents obtained from the court of appeal’s case file, the European Court initially found that the documents revealed that Mr. Pardo was correct, and accepted his request for revision. However, it subsequently dismissed his application, finding that the documents would not have had a decisive influence on the original judgment.

If the Irish government is successful in meeting the preconditions for revision in the ‘Hooded Men’ case, how likely is it that the original 1978 judgment will be substantively revised? In a well-known passage in Selmouni v. France, the court explicitly recognized that the thresholds applicable to the concepts of torture, on the one hand, and inhuman and degrading treatment on the other, can be re-calibrated, because of the application of the “living instrument” principle. If the Irish government’s revision request is accepted, the court’s task will be to assess the treatment of the internees as against its conception of what constitutes torture in 2015 (assuming the case is decided next year) rather than standards applicable in the 1970s. Indeed, in a 2005 House of Lords judgment, Lord Bingham, in light of this passage, suggested that the techniques complained of in Ireland v. UK could well be characterized as torture.

Torture has been defined by the European Court as “deliberate inhuman treatment causing very serious and cruel suffering”. The generally higher standards imposed by human rights norm now will mean that there is a greater likelihood of a finding of torture (although it is of course not inevitable). For example, if the new documents include pertinent medical evidence as to the long term consequences of the ill-treatment, that is one of the factors which would be relevant to its classification, as the court held in Egmez v. Cyprus. The court reiterated more recently in the secret rendition cases, [PDF] aside from the infliction of physical pain, the level of victims’ mental suffering, their anguish and stress, will be highly relevant to the question of the classification. In its 2010 judgment in Gäfgen v. Germany, the court found that a threat of torture can itself amount to torture.

The effects of ill-treatment on victims may well depend on their particular vulnerabilities, as the court held in Menesheva v. Russia. The practice of hooding the victims of extraordinary rendition was one of the factors relevant to a finding of torture in El-Masri v. the former Yugoslav Republic of Macedonia, as was blindfolding in Dikme v. Turkey. In Al Nashiri v. Poland, the court found that the applicant had been tortured by the CIA in detention in Poland, employing various premeditated interrogation measures, including hooding and the use of stress positions. The explicit aims of such interrogation were “to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist … efforts to obtain critical intelligence.” Clearly, if any of the new documents in the ‘Hooded Men’ case provide further evidence as to the purposive element to the ill-treatment, that may also be an important factor for the court.

Interstate cases still remain a real rarity [PDF] in Strasbourg—the most recent being an application by Ukraine against Russia concerning its occupation of Crimea and its military operations in eastern Ukraine. Whatever the outcome of the review application, the Irish government is to be applauded for seeking to utilize and engage in a process that reflects the collective responsibility of the Council of Europe states. As Thomas Hammarberg recently argued, “It should be in the interest of the UK government, as a signatory of the UN Convention against Torture and the European Convention on Human Rights, to ensure that facts be clarified in this critical case and remedial action be taken.”

Philip Leach is Professor of Human Rights Law at Middlesex University and Director of the European Human Rights Advocacy Centre. Professor Leach thanks Victoria Barlow for her research assistance.

Suggested citation: Philip Leach, Ireland v. UK: Revisiting the Treatment of the ‘Hooded Men’ , JURIST – Student Commentary, Dec. 6, 2014, http://jurist.org/student/2014/12/Philip-Leach-Hooded-Men.php.