18 January 1978
In the case of Ireland v. the United Kingdom,
The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. P. O'DONOGHUE,
Mrs. H. PEDERSEN,
Mr. THÓR VILHJÁLMSSON,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 10 and 11 February, 22 and 25 to 27 April, 25 to 28 July and 6 to 13 December 1977,
Delivers the following judgment, which was adopted on the last-mentioned date:
The United Kingdom is one of the States which have declared that they recognise the compulsory jurisdiction of the Court (Article 46) (art. 46).
Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5).
The memorials of the applicant Government, the respondent Government and the delegates of the Commission were received at the registry on 30 July, 28 October and 15 December 1976, respectively.
"(a) Is the jurisdiction of the Court to examine any particular issue of fact or law limited by the original allegations of the Government of Ireland and/or by the decision of the Commission on the admissibility of application no. 5310/71? In the affirmative, do certain issues of fact or law fall outside this jurisdiction in the present case?
(b) Has the Court jurisdiction to pronounce on the existence of the violations of the Convention found by the Commission in its report and which are not contested by the United Kingdom Government? In the affirmative, should the Court exercise that jurisdiction?
(c) Should the Court examine the cases mentioned in paragraphs 2.30 and 2.31 of the memorial of the delegates of the Commission?
(d) Is it proper in the circumstances of this case for the Court, without further enquiry into the facts, to:
(i) confirm the conclusions of the Commission to the extent that they are not contested?
(ii) deal only with the substance of those questions which give rise to dispute between the Parties?
(e) Has the Court jurisdiction to review the procedural decisions of the Commission as such and/or should the Court, when assessing the conclusions of the Commission, have regard to the procedure followed by the latter body?
(f) Does Article 1 (art. 1) of the Convention create any rights in addition to those defined in Section I and can it be the subject of a separate breach?"
Oral hearings were accordingly held in public at the Human Rights Building, Strasbourg, from 7 to 9 February. Immediately afterwards, the Court deliberated in private. At its request, the President, by Order of 11 February, advised the Parties and the Commission of the following matters to be taken into account by them during the further procedure:
"1. In the circumstances of this case, the Court does not consider that the reasons which have been given why it should refrain from pronouncing on the non-contested allegations of violation of Article 3 (art. 3) of the Convention are such as to preclude it from so pronouncing. However, the Court considers that it is already in possession of sufficient information and materials to enable it to make such a pronouncement.
After consulting the representatives of the two Governments concerned and of the Commission, the President, by the same Order, fixed 19 April 1977 as the date for resumption of the hearings.
The second part of the hearings was held in public at the Human Rights Building, Strasbourg, from 19 to 22 April.
- for the applicant Government:
Mr. F.M. HAYES, Legal Adviser,
Department of Foreign Affairs, Agent,
Mr. D. COSTELLO, S.C., Attorney General,
Mr. A.J. HEDERMAN, S.C.,
Mr. R.J. O'HANLON, S.C.,
Mr. A. BROWNE, S.C.,
Mr. J. MURRAY, Barrister-at-Law, Counsel,
Mr. L. LYSAGHT, Chief State Solicitor,
Mr. P.P.D. QUIGLEY, Legal Assistant,
Attorney General's Office,
Mr. M. BURKE, First Secretary,
Department of Foreign Affairs (February hearings only),
Mrs. J. LIDDY, Assistant Legal Adviser,
Department of Foreign Affairs (February hearings only),
Mr. P. HENNESSY, First Secretary,
Department of Foreign Affairs,
Mr. D. WALSHE, Office of the Chief State Solicitor, Advisers;
- for the respondent Government:
Mr. D.H. ANDERSON, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr. I.K. MATHERS, Assistant Legal Adviser,
Foreign and Commonwealth Office, Assistant Agent,
The Rt. Hon. S. SILKIN, Q.C., M.P., Attorney-General,
Mr. J.B.E. HUTTON, Q.C.,
Mr. A. LESTER, Q.C.,
Mr. N. BRATZA, Barrister-at-Law, Counsel,
Sir Basil HALL, K.C.B., M.C., T.D., Treasury Solicitor,
Mr. C. LEONARD, Treasury Solicitor's Department,
Mr. M.L. SAUNDERS, Law Officers' Department
(February hearings only),
Mr. W.C. BECKETT, Law Officers' Department
(April hearings only),
Mr. A.P. WILSON, Northern Ireland Office,
Mr. N. VARNEY, Northern Ireland Office,
Mr. N. BRIDGES, Northern Ireland Office
(February hearings only),
Mr. R. SEAMAN, Northern Ireland Office
(April hearings only), Advisers;
- for the Commission:
Mr. G. SPERDUTI, Principal Delegate,
Mr. C. NØRGAARD, Delegate,
Mr. T. OPSAHL, Delegate.
The Court heard addresses by Mr. Costello for the applicant Government, by Mr. Silkin, Mr. Hutton and Mr. Lester for the respondent Government and by Mr. Sperduti, Mr. Nørgaard and Mr. Opsahl for the Commission, as well as their replies to a question put by the Court.
AS TO THE FACTS
I. THE EMERGENCY SITUATION AND ITS BACKGROUND
A. Social, constitutional and political background
During the time covered by the complaints of the applicant Government that is from 1971 to 1975 virtually all those members of the IRA living and operating in Northern Ireland were recruited from among the Catholic community.
From the time of partition onwards there has always been a greater or lesser degree of tension between the two communities, although since the early 1920's there have been no disturbances comparable in scale to those of recent years.
B. Development of the crisis up to 1969
At the same time, though, manifestations of Protestant violence began to emerge. In 1964 there was serious rioting in Belfast following a Protestant march. In March 1966, several petrol bombs were thrown at Catholic schools and property. In May 1966, a body calling itself the Ulster Volunteer Force (UVF), previously unknown to the police, issued a statement declaring war on the IRA and warning of its intention to execute all IRA men. Shortly thereafter, two Catholics were murdered and two others seriously wounded in Belfast. Three Protestants, members of the UVF, were subsequently charged and convicted for these attacks. The UVF, believed by the police to have consisted of only 5 to 6 persons, was declared illegal in June 1966 and seems to have remained inactive from then until 1969.
During this period, there was no violent activity of significance by the IRA, who, after 1962, appear to have concentrated on political activity.
The Northern Ireland Prime Minister, whose reform policies were unpopular with many Protestants, resigned at the end of April. A few days later, his successor declared a general amnesty for persons charged with or convicted of offences connected with the recent political protests and demonstrations.
The riots in August 1969 greatly exceeded in severity any that had occurred in the previous years. Casualties and damage to property were extensive. In Belfast, for instance, a large number of houses and licensed premises, mostly Catholic owned or occupied, were burnt down, destroyed or damaged.
In October, a programme of reform was announced; it included the reorganisation of the police force and local government, measures to prohibit discrimination in public employment, and the establishment of a Community Relations Commission and a central housing authority.
Towards the end of the year, the IRA split into two wings. For some time there had been dissension in the movement between those who hoped to bring about a form of socialist people's republic for all Ireland and those who considered that such involvement deflected the IRA from its traditional aims. The traditionalists formed themselves into the Provisional IRA whilst the followers of the new political doctrines became the Official IRA. Both factions remained organised along military lines.
C. Situation from 1970 until the introduction of internment on 9 august 1971
Apart from one explosion in which a civilian was killed, there is no evidence of any deaths or even injuries having been caused by Loyalist terrorists. On the applicant Government's own approximate estimate, Loyalist explosions accounted for only 14 out of the overall total of 304. Furthermore, as in 1970, Loyalist terrorists used mainly pipe bombs which were not very powerful in comparison with the devices employed by the IRA.
The Commission stated in its report that the IRA were indisputably responsible for the very great majority of the acts of violence during this period. Loyalist terrorist activity had declined; there is no evidence that such Loyalist terrorism as did exist formed part of a highly organised campaign in the sense that IRA activity did. The Commission's conclusion was that the threat and reality of serious terrorism came almost exclusively from the IRA.
D. 9 August 1971 (introduction of internment) until 30 March 1972 (introduction of direct rule)
1. The decision to introduce internment
The decision to introduce a policy of detention and internment was taken on 5 August 1971 by the Northern Ireland Government, following a meeting in London between the Northern Ireland and United Kingdom Governments. Prior to this, the question had been considered at the highest level in Northern Ireland and frequent consultations had taken place between the two Governments.
In the latter half of July 1971, as an apparent last resort to avoid introducing internment, the security forces had intensified operations against suspected terrorists, mounting searches and detaining for questioning what were believed to be key figures in the IRA. Some 90 persons were arrested but no significant results were yielded. Prior to August 1971, the intelligence obtained by the police had failed to provide anything but a very general picture of the IRA organisation.
2. Reasons for the decision to introduce internment
Three principal reasons for the decision have been cited by the respondent Government. Firstly, the authorities took the view that the normal procedures of investigation and criminal prosecution had become inadequate to deal with IRA terrorists; it was considered that the ordinary criminal courts could no longer be relied on as the sole process of law for restoring peace and order. The second reason given, which was closely related to the first, was the widespread intimidation of the population. Such intimidation often made it impossible to obtain sufficient evidence to secure a criminal conviction against a known IRA terrorist in the absence of an admissible confession or of police or army testimony. Furthermore, the conduct of police enquiries was seriously hampered by the grip the IRA had on certain so-called "no-go" areas, that is Catholic strongholds where terrorists, unlike the police, could operate in comparative safety. Thirdly, the ease of escape across the territorial border between Northern Ireland and the Republic of Ireland presented difficulties of control.
In addition to the three "security" reasons, there was, in the judgment of both the Northern Ireland Government and the United Kingdom Government, no hope of winning over the terrorists by political means, the reform programme initiated in 1969 having failed to prevent continuing violence.
The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be laid in court. This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA. It was intended that a respite would be provided so as to enable the political and social reforms already undertaken to achieve their full effects.
3. The decision whom to arrest, detain and intern
On account of the unprecedented level it had reached, and because of its nature as a highly organised, politically motivated campaign designed to overthrow the State, IRA terrorism was regarded as the real menace to law and order. Protestant terrorist activity, which was in the main directed against the Catholic community and not the State or the security forces, was seen by the authorities more as sporadic and as being on a minute scale in comparison and on a much less organised basis.
4. Operation Demetrius
Operation Demetrius, as the Commission points out, was not a selective manoeuvre aimed at individuals but a "sweeping-up" exercise directed against the IRA organisation as a whole. It is generally accepted that because of the scale and speed of the operation, some persons were arrested or even detained on the basis of inadequate or inaccurate information.
5. Events subsequent to Operation Demetrius
"The main target of the present operation is the Irish Republican Army ... They are the present threat; but we will not hesitate to take strong action against any other individuals or organisations who may present such a threat in the future."
The three regional holding centres were closed down in August 1971 shortly after Operation Demetrius was completed, and in September/October 1971 police centres were established at Palace Barracks (Holywood, County Down), Girdwood Park (Belfast), Gough (County Armagh) and Ballykelly (County Londonderry) for the purpose of holding and interrogating persons arrested under the Special Powers Regulations.
In the first three months of 1972, 87 people were killed, including 27 members of the security forces. Two assassinations carried out in March, one of a Protestant and the other of a Catholic, were the only deaths attributed to Loyalist activity. 421 explosions, the vast majority attributed to the IRA, were caused during the same period.
Throughout these months the numbers held under detention or internment orders proceeded to rise until a total of over 900 persons, all suspected of involvement with the IRA, were held at the end of March 1972. At the same time, the ordinary processes of the criminal law continued to be used, against Protestants as well as Catholics, whenever there was thought to be sufficient evidence to ground a criminal conviction. Thus, between 9 August 1971 and 31 March 1972, over 1,600 people were charged with "terrorist-type" offences.
Under the Northern Ireland (Temporary Provisions) Act 1972 (hereinafter referred to as the "Temporary Provisions Act"), which was passed by the United Kingdom Parliament and came into force on 30 March 1972, temporary provision was made for the exercise of the executive and legislative powers of the Northern Ireland Parliament and Government by the United Kingdom authorities. The Belfast Parliament was prorogued and the Queen empowered to legislate in its stead by Order in Council. The executive powers of the Belfast Government were transferred to the Secretary of State for Northern Ireland. This was a new office created for the purpose; its holder was a member of the United Kingdom Government and answerable to the United Kingdom Parliament. The legislation was enacted for a period of one year but was subsequently extended.
E. 30 March 1972 (introduction of direct rule) until 5 February 1973 (first detention of loyalists)
On the political level, the United Kingdom was seeking the establishment of an equitable form of government for Northern Ireland, acceptable to both communities.
Street demonstrations and marches called by the UDA appear to have begun shortly after 30 March 1972. The UDA was organised on pseudo-military lines, its members, estimated at between 20,000 and 30,000 persons, giving themselves military ranks. The UDA used its forces to erect barricades, set up road blocks and disrupt civil life generally. They paraded in large numbers through the centre of Belfast and elsewhere, many of them masked and dressed in para-military uniforms and on occasions openly carrying weapons such as sticks or cudgels. Such demonstrations, however, seem rarely to have led to physical violence. Whilst it was illegal to block roads, wear uniforms or carry offensive weapons, the security forces did not attempt to arrest those taking part in UDA demonstrations since they feared that major riots would result. Neither were the extrajudicial powers of detention and internment ever used, against either Catholics or Protestants, to combat this kind of illegal activity.
According to the respondent Government, consideration was given to the possibility of proscribing the UDA, but it was decided that on balance no good purpose would be served by doing so, not least because most of its members were not engaged in violence. It is generally accepted, however, that UDA membership overlapped, to some extent at least, with the smaller and more militant extremist bodies which were illegal, such as the UVF (see paragraph 20 above).
Sectarian assassinations, which the respondent Government term the outstanding feature of Loyalist violence since 1972, first reached serious proportions in the spring of 1972. Victims seem largely to have been chosen at random on no other ground than their membership of, or links with, the other community. Kidnapping and torturing sometimes accompanied this kind of indiscriminate killing. While both sides committed sectarian murders, it is generally accepted that Protestants were responsible for more than Catholics. The police had difficulty in detecting those responsible for sectarian assassinations. In particular, witnesses were reluctant to come forward and were subjected to intimidation. Accordingly, a confidential telephone system was installed in August 1972, whereby information could be given anonymously to the security forces.
Even after Operation Motorman the police were still not able to function properly in Catholic areas. Access to Protestant areas remained easier for the police and they were not subject there to the same risk of attack. The army operated principally, and was employed to carry out police duties, in those areas where the minority community predominated.
According to the respondent Government, a development contributing to the maintenance of this gradual reduction was the institution in November 1972 of a revised system for the detention of terrorists.
In the months following the introduction of direct rule – including July, the worst of these months for violence - no new internment orders were made and fresh detentions virtually ceased. From September onwards, after the breakdown of the attempted ceasefire, the number of detention orders - as before, against IRA suspects only - increased, while the rate of releases fell. There was, however, no large-scale operation to re-detain and re-intern people.
The United Kingdom Government therefore became convinced that it was necessary to find fresh means of separating known terrorists from the population at large. On 21 September 1972, the Government announced that it was to set up a Commission, subsequently appointed in October under the chairmanship of Lord Diplock,
- to consider "what arrangements for the administration of justice in Northern Ireland could be made in order to deal more effectively with terrorist organisations by bringing to book, otherwise than by internment by the Executive, individuals involved in terrorist activities, particularly those who plan and direct, but do not necessarily take part in, terrorist acts"; and
- "to make recommendations".
Without waiting for the report of the Diplock Commission, the Government brought into effect on 7 November 1972 the Detention of Terrorists (Northern Ireland) Order 1972 (abbreviated hereafter to the "Terrorists Order"), an Order made in exercise of the powers conferred by the Temporary Provisions Act (see paragraph 49 above). This Order, which was of a temporary nature, revoked Regulations 11 (2) (detention) and 12 (1) (internment); in replacement it instituted, with further procedural guarantees for the protection of the individual concerned, a new system of "interim custody" and "detention" for persons suspected of participation in terrorist activities. Regulations 10 and 11 (1) (arrest) remained. Further details on the Order are given below at paragraphs 85 to 87.
"The fear of intimidation is widespread and well-founded. Until it can be removed and the personal safety of witnesses and their families guaranteed, the use by the Executive of some extrajudicial process for the detention of terrorists cannot be dispensed with."
The European Commission of Human Rights, on the basis of the evidence it had itself obtained, accepted that the findings of the Diplock report as to the level of intimidation were generally warranted.
From 1 April 1972 until 31 January 1973, 398 persons were killed, 72 of these deaths being attributed to Loyalists. The overall total included 123 members of the security forces, the vast majority of whom were considered to have been killed by the IRA, and an equal number of victims of "factional or sectarian" assassinations. Of these assassinations, 69 were ascribed to Loyalists, 34 to the IRA, with no attribution being possible in the remaining 20 cases.
For their part, explosions totalled 1,141; no more than a small percentage - for example, 29 out of 691 explosions recorded between 1 July 1972 and 31 January 1973 - were regarded as being the work of Loyalists.
The increasing Protestant militancy was further evidenced by the statistics on intimidation, arms and ammunitions recovered, and charges brought for "terrorist-type offences". Thus, between 31 July 1972 and 31 January 1973, charges of the kind just referred to were laid against 640 persons, namely 402 Catholics and 238 Protestants; within this total, 45 individuals - 24 Protestants, including 16 in the one month of January 1973, and 21 Catholics – were charged with murder or attempted murder.
In the view of the respondent Government and of the Commission, Loyalist and IRA violence were to be distinguished in further respects in addition to volume. Loyalist terrorism consisted largely of intimidation and sectarian assassinations, whereas the IRA campaign also included attacks on members of the security forces and the bombing of public places. As indicated earlier (paragraph 37 above), the character, aims and background of the various organisations engaged in terrorism on the two sides differed. The evidence suggests that the Loyalist terrorist groups were at the time more amorphous than the IRA. Within the security forces there was a tendency, which the Commission regarded as justified in many ways, to look on Loyalist terrorists as "criminals" or "hooligans" and on the IRA as the organised "terrorist" enemy. The prospects of obtaining sufficient admissible evidence for a criminal prosecution were, it seems, judged by the security forces as being better in relation to Loyalists than to IRA suspects. Given the continued inability of the police to operate normally in Catholic areas and the greater extent and organisation of the IRA campaign, the Commission found such an attitude "not surprising".
Finally, the statistics referred to above at paragraph 61 indicate that action, in the form of searches, recovery of arms and the bringing of criminal charges, was being taken by the authorities against both sides.
(i) extrajudicial orders were served only on persons suspected of involvement in serious and organised terrorism;
(ii) they were used solely as a "last resort", that is only in cases where sufficient evidence was not available to justify prosecution before the ordinary courts;
(iii) as a general practice, they were not made against a person in respect of matters for which he had been tried and acquitted by an ordinary court, provided that it had been possible to put before the court all the relevant evidence.
Prior to February 1973, it seems, no recommendations had been made to the Secretary of State for the detention or internment of Loyalists.
F. 5 February 1973 onwards
From 1 February 1973 until 31 October 1974, the police registered 403 deaths, of which 116 were considered to be the responsibility of Loyalists. Of the 145 "factional or sectarian" murders recorded, 95 were ascribed to Loyalists and 40 to the IRA and in 10 cases no attribution was possible. In these twenty-two months, the number of explosions dropped to less than 1,600 - about 330 being attributed to Loyalists - as compared with approximately 1,400 in the one year of 1972. For their part, shootings fell from 10,628 to 7,112, although an increase occurred in punishment shootings such as "executions" and "knee-capping".
The provisions of the Act relating to legislative and executive powers required the passing by the United Kingdom Parliament of a Devolution Order. The Order was made on 19 December 1973 and the devolution became effective on 1 January 1974. This devolution, which was based on the principle of "power-sharing" between the two communities, marked for a certain time the end of direct rule.
On 17 July 1974, the Northern Ireland Act 1974 was passed by the United Kingdom Parliament in order to make temporary provision for the government of the six counties. This Act suspended the functions of the above-mentioned Assembly and enabled laws to be made by Order in Council, enacted that no appointments to the Executive were to be made, and made the province's departments subject to the direction and control of the Secretary of State for Northern Ireland.
The report of the Gardiner Committee was presented to the United Kingdom Parliament in January 1975. This report critically examined trial procedures before the ordinary courts, existing and proposed offences connected with terrorism, the powers of the security forces, prison accommodation, special category prisoners and detention. When dealing with the question of detention, the Gardiner Committee noted at paragraph 143:
"... We have detailed evidence of 482 cases of intimidation of witnesses between 1st January 1972 and 31st August 1974: and there must be many more. Civilian witnesses to murder and other terrorist offences are either too afraid to make any statement at all, or, having made a statement identifying the criminal, refuse in any circumstances to give evidence in court. The prevalence of murder and knee-capping make this only too easy to understand."
The Gardiner Committee, while making certain recommendations about detention and existing detention procedures, concluded at paragraphs 148 and 149:
"After long and anxious consideration, we are of the opinion that detention cannot remain as a long-term policy. In the short term, it may be an effective means of containing violence, but the prolonged effects of the use of detention are ultimately inimical to community life, fan a widespread sense of grievance and injustice, and obstruct those elements in Northern Ireland society which could lead to reconciliation. Detention can only be tolerated in a democratic society in the most extreme circumstances; it must be used with the utmost restraint and retained only as long as it is strictly necessary. We would like to be able to recommend that the time has come to abolish detention; but the present level of violence, the risks of increased violence, and the difficulty of predicting events even a few months ahead make it impossible for us to put forward a precise recommendation on the timing.
We think that this grave decision can only be made by the Government ..."
On 5 December 1975, the Secretary of State for Northern Ireland signed orders for the release from detention of the last 75 individuals held under the emergency legislation. Since December 1975, according to the data before the Court, no person has been held in detention under the extrajudicial measures in Northern Ireland.
The terrorism and violence in the province have persisted through 1976 until the present day, accounting, for instance, for the murders of 173 persons and injuries to 770 others between 1 January and 28 June 1976.
II. EXTRAJUDICIAL DEPRIVATION OF LIBERTY
- initial arrest for interrogation;
- detention for further interrogation (originally called "detention" and subsequently "interim custody");
- preventive detention (originally called "internment" and subsequently "detention").
A. The special powers act and regulations there under
The number and scope of the Regulations in force varied over the years; they could be brought into use without any legislative act or proclamation. Those relevant to the present case were made in 1956 (Regulations 11 and 12) and 1957 (Regulation 10). They were utilised to implement the policy of internment introduced on 9 August 1971 and advice of their use was given to the Secretary-General by the United Kingdom Government's notice of derogation of 20 August 1971 (Yearbook of the Convention, volume 14, page 32). They conferred the four powers described below.
1. Arrest under Regulation 10
- any individual could be arrested without warrant and detained for the purpose of interrogation;
- the arrest could be authorised by any officer of the RUC;
- the officer had to be of the opinion that the arrest should be realised "for the preservation of the peace and maintenance of order";
- the detention could not exceed forty-eight hours.
Exercise of the power was not conditional on suspicion of an offence and, following a practice originating in instructions issued to the military police in May 1970, the individual was not normally informed of the reason for his arrest. Although looked upon in principle as a preliminary to detention and internment (see paragraphs 83 and 84 below), arrest sometimes had the object of interrogating a person about the activities of others. Some arrests, and some subsequent detention orders, seem to have been made on the basis of inadequate or inaccurate information.
The individual could not apply for bail (see the judgment of 12 October 1971 delivered by the High Court of Justice in Northern Ireland in the case of In Re McElduff). Moreover, arrests under this Regulation could not as a general rule be questioned in the courts but it was held in the judgment of 18 February 1972 delivered by the Armagh County Court in the case of Moore v. Shillington and Ministry of Defence that failure to comply with the proper procedure, including certain fundamental principles of the common law, invalidated exercise of the power.
On 8 August 1973 the Emergency Provisions Act (see paragraph 88 below) repealed Regulation 10. 2,937 persons had been arrested there under prior to 30 March 1972, of whom 1,711 had been released within forty-eight hours and 1,226 had had their detention prolonged under other Regulations.
2. Arrest under Regulation 11 (1)
- any individual could be arrested without warrant;
- the arrest could be effected by any police constable, member of the forces or person authorised by the "Civil Authority" (i.e. the Minister of Home Affairs or his delegates);
- the person making the arrest had to suspect the individual of acting, having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order or of having committed an offence against the Regulations;
- the duration of the arrest was unlimited in law but limited in practice to seventy-two hours.
Arrest under this Regulation could follow arrest under Regulation 10, giving a total of at most one hundred and twenty hours. The individual was not normally informed of the reason for his arrest.
Judicial decisions show that review by the courts of the exercise of this power was limited. They could intervene if there had been bad faith, absence of a genuine suspicion, improper motive or failure to comply either with the statutory procedures or with such principles of the common law as were held not to be excluded by the language of the Regulation; however, they could not in general enquire into the reasonableness or fairness of the suspicion or of the decision to exercise the power (see the McElduff case and the judgment of 11 January 1973 delivered by the High Court of Justice in Northern Ireland in the case of Kelly v. Faulkner and others).
Under Regulation 11 (4), the individual could apply to the Civil Authority for release on bail and, if that Authority so directed, might be conditionally discharged from custody by a magistrate; however, this right was abolished on 7 November 1972 with the revocation of Regulation 11 (4) by the Terrorists Order (see paragraph 85 below).
Regulation 11 (1) was repealed on 8 August 1973 by the Emergency Provisions Act (see paragraph 88 below).
3. Detention under Regulation 11 (2)
- any individual arrested under Regulation 11 (1) could be detained in prison or elsewhere on the conditions directed by the Civil Authority;
- the power to make detention orders was vested in the Civil Authority and the initiative for them came from the police. The respondent Government said that they were always made on the personal decision, before direct rule, of the Prime Minister of Northern Ireland or, thereafter, of the Secretary of State for Northern Ireland or two other Ministers;
- detention continued until the individual was discharged by the Attorney-General or brought before a court. Its duration was unlimited in law but limited in practice, generally, to twenty-eight days.
The respondent Government said that detention orders were made to enable the police to complete enquiries. If they had sufficient evidence to secure a conviction, the individual would be brought before an ordinary court in which event he was entitled to at least twenty-four hours' notice of the charge. Alternatively, he might be released after a limited period or be the subject of an internment order (see paragraph 84 below).
The detainee had the limited right to apply for bail afforded by Regulation 11 (4) (see paragraph 82 above). The position concerning supervision by the courts was the same as under Regulations 10 and 11 (1) (see the McElduff and the Kelly cases) and there was no other procedure for review of the detention.
More than 1,250 detention orders were made under Regulation 11 (2), the vast majority before 30 March 1972. Nearly 120 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below).
4. Internment under Regulation 12 (1)
- any individual could by order be subjected to restrictions on movement or interned;
- the power to make such orders was vested before direct rule in the Minister of Home Affairs for Northern Ireland on the recommendation of a senior police officer or of an advisory committee. The respondent Government said that they were always made on the personal decision of the Prime Minister of Northern Ireland;
- the Minister had to be satisfied that for securing the preservation of the peace and the maintenance of order it was expedient that a person suspected of acting, having acted or being about to act in a manner prejudicial te peace and order be subjected to such restrictions or interned;
- the duration of internment was unlimited. In many cases, after prolongation under later legislation (see paragraphs 85 and 88 below), it lasted for some years.
Every order had to provide for the consideration by and advisory committee of representations made by the individual. In fact it reviewed the position of all internees whether they made representations or not. The committee composed of a judge and two laymen, could recommend, but not order, release.
The individual had no right in law to appear or be legally represented before the committee, to test the grounds for internment, to examine witnesses against him or to call his own witnesses. In fact, he was allowed to appear and be interviewed and every effort was made to trace witnesses he proposed. The committee required the security forces to produce the information in their possession but statements of evidence against the internee so obtained remained anonymous, apparently to avoid retaliation. According to the Commission, the committee probably relied on evidence not admissible in a court of law.
The position concerning the review of internment orders by the courts was the same as under Regulations 10, 11 (1) and 11 (2) (see the Kelly case).
796 orders were made under Regulation 12 (1), all before the introduction of direct rule. Nearly 170 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below).
By 30 March 1972, 588 of the 796 cases had been reviewed by the advisory committee (although 451 internees refused to appear) and 69 releases recommended. Of the 69 individuals all were released except 6 who refused to give an undertaking as to future good behaviour.
B. The terrorists order
The Secretary-General of the Council of Europe was advised of the making of this Order by the United Kingdom Government's notice of derogation of 23 January 1973 (Yearbook of the Convention, volume 16, pages 24 and 26). The Order conferred the powers described below and was repealed by the Emergency Provisions Act on 8 August 1973 (see paragraph 88 below).
1. Interim custody under Article 4
- any individual could by an interim custody order be temporarily detained;
- the power to make such orders was vested in the Secretary of State for Northern Ireland;
- the power was exercisable where it appeared to the Secretary of State that the individual was suspected of having been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism;
- detention was limited to twenty-eight days unless the case was referred by the Chief Constable - or, as regards persons originally held under the Special Powers Regulations, by the Secretary of State - to a commissioner for determination, in which event it could continue only until such determination.
The individual had to be released after twenty-eight days if his case had not by then been referred to a commissioner but, in fact, all cases, including those of persons originally detained or interned under the Special Powers Regulations, were so referred. During the order's initial twenty-eight days and during its extension pending the commissioner's adjudication, which could take up to six months, the individual had no means under the Terrorists Order of challenging the lawfulness of his detention.
Figures for interim custody orders appear in paragraph 89 below.
2. Detention under Article 5
- where the case of an individual subject to an interim custody order under Article 4 was referred to a commissioner, he could make a detention order for that individual's detention;
- the commissioner had first to satisfy himself by enquiry that the individual had been concerned in the commission or attempted commission of any act of terrorism or the organisation of persons for the purpose of terrorism and that his detention was necessary for the protection of the public. If so satisfied, he had to make an order; if not, he had to direct the individual's discharge;
- the duration of detention was unlimited. In many cases, after prolongation under later legislation (see paragraph 88 below), it lasted for some years.
Unlike the recommendation of the advisory committee under Regulation 12 (1), a commissioner's decision to release was binding. The Secretary of State retained independent powers to release detainees with or without conditions and to recall to detention an individual conditionally released by him. He could also at any time refer a detention order case to a commissioner for review; in that event discharge was obligatory unless the commissioner considered continued detention necessary for public protection.
Proceedings before a commissioner took place in private. At least three days before the hearing the individual had to be notified in writing of the nature of the terrorist activities to be enquired into. He had the right to legal aid and to be legally represented and had to be present unless removed on grounds of disorderly conduct or of security. He could be required to answer questions; he had no right to examine or have examined witnesses against him but the respondent Government said that, in practice, cross-examination took place. The individual had to be informed, as far as possible, of matters dealt with in his absence for security reasons but had no right to test evidence given at that time. The commissioner might receive evidence however obtained and irrespective of whether it would be admissible in a court of law. This procedure applied, mutatis mutandis, both to initial references to a commissioner and to later references for review.
Article 6 of the Terrorists Order introduced a right for the individual to appeal within twenty-one days against a detention order to a detention appeal tribunal of at least three members. Procedurally the individual's position before the tribunal was similar to his position before a commissioner; however, he was entitled to be present only when fresh evidence was produced, which was rare as the tribunal generally relied on the evidence furnished to the commissioner.
Both commissioners and members of the tribunal had to have experience of judicial office or at least ten years' experience as a barrister, advocate or solicitor.
Figures for detention orders appear in paragraph 89 below.
C. The emergency provisions act
The new Act (section 10 (5) and Schedule 1) re-enacted, in substance, the powers contained in the Terrorists Order, retaining its definition of terrorism. Accordingly, the powers to make interim custody and detention orders, and the review thereof by a commissioner and the appeal tribunal, continued in the manner, on the conditions and subject to the procedure described in paragraph 86 and 87 above, with the significant differences that:
- the individual had to receive a written statement concerning the terrorist activities to be investigated by the commissioner at least seven (rather than three) days before the hearing;
- in addition to his optional power to refer, the Secretary of State had to refer to a commissioner the case of anyone held under a detention order for one year since the making of the order or for six months since the last review.
Section 10 of the Act also provided that any constable might arrest without warrant a person whom he suspected of being a terrorist; detention after arrest was limited to seventy-two hours. The Act conferred certain other powers of arrest (sections 11 and 12) which are not in issue in the present case.
- November 1972 to 1 February 1973: 166 interim custody orders (under the Terrorists Order);
- November 1972 to January 1973: 128 individuals detained under the Terrorists Order and 94 released;
- November 1972 to 5 September 1973: the commissioners reviewed 579 cases (296 interim custody orders made under the Terrorists Order or the Emergency Provisions Act; 165 former internments and 118 former detentions under the Special Powers Regulations); they made 453 detention orders and directed release in the remaining 126 cases;
- November 1972 to 3 October 1973: 44 appeals were lodged with the detention appeal tribunal; 34 had been heard and 25 releases directed.
D. The emergency provisions amendment act
III. ALLEGATIONS OF ILL-TREATMENT
The procedure followed for the purposes of ascertaining the facts (Article 28, sub-paragraph (a), of the Convention) (art. 28-a) 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.
(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
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 "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers";
(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.
The 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.
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".
"[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 (see paragraph 135 below).
"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 (art. 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."
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.
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".
C. Palace barracks
The interrogations - records of which were kept for filing – were conducted solely by police, usually at least two in number, from the Special Branch of the RUC. These men, who were independent of the uniformed RUC, came under the responsibility of an officer in charge with the rank of inspector. Many of them interrogated prisoners both at Palace Barracks and at Girdwood Park on a rotating system.
2. The illustrative cases
(a) The cases of T 2, T 8, T 12 and T 15
Despite the absolute denials given in evidence by witnesses from the security forces at Palace Barracks, the Commission held the following facts, amongst others, to be established beyond reasonable doubt:
"The four men ... were severely beaten by members of the security forces ... The beating was not occasional but it was applied in a sort of scheme in order to make them speak ..."
Each man instituted civil proceedings for damages and rejected the offer of £750 made in settlement of his claim.
(b) The cases of T 9 and T 14
The medical evidence disclosed injuries described as "substantial" in T 9's case and "massive" in T 14's case. The Commission concluded that "the proved injuries must have been caused while the two men were at Palace Barracks". Fourteen members of the security forces at the centre gave evidence completely denying any knowledge of the injuries or their causes, but these denials were not believed by the Commission. While viewing certain of the two men's assertions as exaggerated, invented or improbable, the Commission made the following finding:
"T 9 and T 14 ... were subjected to physical violence, especially kicking and beating, during or between a series of 'interviews' conducted by the Special Branch."
Civil proceedings seeking damages were instituted by T 14 and T 9; their claims were settled for £2,250 and £1,975 respectively. They also, it seems, complained to the police, but no evidence was produced to the Commission of a police enquiry into their complaints.
(c) The cases of T 1 and T 4
T 1 alleged that he had been kicked and punched while being made to stand against the wall with his weight on his fingertips. These allegations were completely denied by witnesses from the police. No corroborated evidence was produced by either side to confirm or rebut the suggestion made by police witnesses that T 1 might have received his injuries after his release while being "questioned" by the IRA. T 1 did concede having had some previous contacts, albeit superficial and undesired, with IRA members. The Commission found inter alia:
"It cannot ... be concluded beyond a reasonable doubt that [T 1] ... received these injuries in the way alleged by him."
Although T 1 said that he had brought a civil action for damages, there is no information as to the outcome of those proceedings. He further stated that after complaint to the RUC, he was told that his allegations had been investigated but found to be unsubstantiated.
The day after his release, T 4 saw his family doctor who found extensive bruising to his body. On 4 November, he was admitted to hospital where he remained under observation for about two weeks.
The Commission considered that the medical evidence was difficult to reconcile with the account given by T 4 of his alleged ill-treatment. The findings of the Commission included the following:
"Bearing in mind that twelve hours elapsed from his release until his medical examination, the statements of the soldiers and some doubt about T 4's reliability, it cannot be concluded, solely on T 4's own statements, that he received these injuries at the hands of the army or the police."
There is no evidence of any civil action brought by T 4 or of any army investigation into complaints he apparently made; the results of a police enquiry are not known.
(d) The case of T 10
He was medically examined on arrival at Palace Barracks, when entering Crumlin Road Prison and on 20 November by his family doctor who saw him in prison. The latter two examinations revealed that T 10 had suffered a perforation to the right eardrum and some minor bruising. Despite absolute denials on the part of the five witnesses from the security forces, the Commission found it proved beyond reasonable doubt that T 10's injuries could not have been caused in any way materially different from that described in his evidence. In the Commission's view, it was to be taken as established that the acts complained of occurred at Palace Barracks.
T 10 did not, it seems, institute civil proceedings for damages. On the other hand, he complained through his lawyer against a number of police officers, but no evidence was produced by the respondent Government of any real police investigation.
3. The "41 cases"
The medical reports show that the persons concerned had sustained injuries in varying degrees. No evidence, though, was obtained from the respondent Government. The Commission, while therefore feeling it unsafe to make any findings on the basis of the medical reports alone, stated in its short assessment:
"Nevertheless, in those cases in which the victims were detained following their interrogation and were medically examined shortly after their committal to detention (the cases of T 22, T 27, T 48, T 29, T 30 and T 31), there exists a strong indication that the course of events was similar to that found in the illustrative cases."
T 27, T 30 and T 31 accepted sums of £900, £200 and £750 respectively in settlement of civil claims brought. At the time of the Commission's report, actions for damages were still pending in the cases of T 22 and T 29; a substantial sum was ultimately received by the former person as a victim of the five techniques (see paragraph 107 above).
4. The remaining cases
Knowledge on the part of the higher authorities of allegations regarding this centre was inferred by the Commission from various facts. Nevertheless, no evidence of police investigations into these allegations was produced to the Commission and, apart from Sir Edmund Compton's "supplemental" report into three Palace Barracks cases (see paragraph 99 above), no general enquiry took place. Furthermore, no disciplinary or criminal proceedings seem to have been instituted against any of the police officers who either committed or failed to react against the acts established. No special instructions relating to the proper treatment of persons in custody were issued to the RUC until April 1972 (see paragraph 135 below). Through their inaction, the authorities in Northern Ireland were held by the Commission to have shown indifference towards the treatment of prisoners at Palace Barracks in the autumn of 1971.
D. Girdwood park regional holding centre
2. Illustrative case
T 16 instituted civil proceedings for damages and the respondent Government indicated to the Commission that his action would certainly be settled. He had also complained immediately to the RUC but, according to the applicant Government, some three years elapsed before he was told that no action was going to be taken against the army; the British Government attributed the impossibility of initiating a prosecution to T 16's inability to identify his assailants.
3. The "41 cases"
In the Commission's view:
(a) it was fairly safe to conclude that certain of T 23's and T 50's injuries had been caused as alleged, particularly in the case of T 23, where the circumstances had been examined in connection with T 16's case (see paragraph 120 above). A strong probability also existed for T 32 whose claim for damages was later settled for £750;
(b) although injuries had been found on T 33, it would be difficult to consider the facts established;
(c) the allegations and injuries in the case of T 49 were comparable to those in the Palace Barracks cases; reference was made to the Commission's assessment of some of the "41 cases" relating to that place (see paragraph 116 above).
4. The remaining cases
E. Ballykinler regional holding centre
The applicant Government requested the Commission to make findings on all the 18 cases in respect of which they had filed statements alleging ill-treatment at the camp.
2. Illustrative case
(a) he and other persons arrested were made (in some cases before medical examination) to do exercises which caused considerable strain and hardship, especially to the elderly and those in poor physical condition;
(b) the exercises consisted partly of sitting on the floor with the legs outstretched and the hands raised high above, or clasped behind, the head, and partly of kneeling on the floor with the forehead touching the ground and the hands clasped behind the back;
(c) it was not possible to ascertain the exact length of time during which, or the degree of compulsion with which, the exercises were enforced;
(d) allegations, concerning both T 3 and others, of specific incidents of violence and of the use of considerable force had not been established;
(e) the camp had been swept out, and beds removed for security reasons, before persons arrested arrived; for a purpose not sufficiently explained, bedding was provided only for those who had been interrogated.
3. The "41" and the remaining cases
F. Miscellaneous places
2. The illustrative cases
(a) The case of T 7
The soldier in question was detained for four or five days and then admonished. T 7's claim for damages was settled for £600.
(b) The case of T 11
T 11's claim for damages was settled for £300. He also lodged a complaint with the RUC which was still under investigation when the Commission heard evidence on his case; the respondent Government stated that they did not know the reason for the delay.
(c) The case of T 5
A claim by T 5 for damages was settled in the sum of £236.79. His complaint to the RUC was unsuccessful.
In the light of its review of the medical evidence and the evidence of the security force witnesses and of T 5, the Commission concluded that T 5's allegations were not sufficiently established.
3. The "41 cases"
4. The remaining cases
G. Measures concerning the treatment of persons arrested or held by the security forces
1. Medical and other records
As from 15 November 1971, every individual brought to a holding centre was medically examined on arrival and departure. Medical staff was instructed to submit reports whenever there was evidence of a complaint of ill-treatment. Furthermore, after a certain time, records were kept of the prisoner's condition during his progress through interrogation.
2. Provisions designed to prevent ill-treatment
The respondent Government submitted that steps had been taken for the diffusion and enforcement at all levels of these orders and directives. However, both the Commission and the applicant Government considered that there was a lack of satisfactory evidence as to how the regulations were implemented and obeyed in practice.
3. Complaints procedures and criminal prosecutions
(a) The police
Where a serious criminal offence was disclosed, reports were submitted to the Attorney-General for Northern Ireland or, after the introduction of direct rule, to the Director of Public Prosecutions in Northern Ireland, a newly-created office, for decision whether to prosecute. On 15 June 1972, the United Kingdom Attorney-General instructed the Director of Public Prosecutions to direct the RUC to investigate and report on any circumstances which might involve the commission of a criminal offence by a member of the security forces. From November 1972 onwards, all completed investigations of both police officers and army personnel had to be sent to the Director of Public Prosecutions.
In September 1973, new disciplinary regulations brought the arrangements for the investigation of complaints against the RUC into line with the arrangements existing elsewhere in the United Kingdom. In 1975, a fresh unit was established within the RUC under the direct control of the Deputy Chief Constable to be responsible for the investigation of complaints.
The Police (Northern Ireland) Order 1977 established a completely independent Police Complaints Board for Northern Ireland with supervisory functions in the matter.
(b) The army
It would seem that in the early stages of the emergency complaints against soldiers were handled by the army authorities themselves; later on, two RUC officers were appointed to oversee army enquiries and subsequently investigations were actually carried out by the RUC, at least where there appeared to be a serious criminal offence. In addition, complainants were encouraged to channel their complaints through the police. On 20 January 1972 a joint army/RUC investigation team was created.
Complaints against the army were referred to an outside authority - the Director of Public Prosecutions as from April 1972 – for directions whether to prosecute.
(c) Statistics relating to complaints and prosecutions
As regards the army, from 31 March 1972 to 30 November 1974, 1,268 complaints in respect of assaults or shootings had been received and 1,078 cases of alleged assault were submitted to the Director of Public Prosecutions. By January 1975, directions to prosecute had been given in 86 out of the 1,038 cases then dealt with.
Overall, between April 1972 and the end of January 1977, 218 members of the security forces were prosecuted for assault at the direction of the Director of Public Prosecutions and 155 were convicted.
(d) Particular instances of investigation, disciplinary action or prosecution
PROCEEDINGS BEFORE THE COMMISSION
- the treatment of persons in custody, in particular the methods of interrogation of such persons, constituted an administrative practice in breach of Article 3 (art. 3);
- internment without trial and detention under the Special Powers Act and the Special Powers Regulations constituted an administrative practice in breach of Articles 5 and 6 in connection with Article 15 (art. 15+5, art. 15+6);
- the exercise by the respondent Government of their power to detain and intern persons was being carried out with discrimination on the grounds of political opinion and thus constituted a breach of Article 14 (art. 14) with respect to the rights and freedoms guaranteed in Articles 5 and 6 in conjunction with Article 15 (art. 15+5, art. 15+6);
- the administrative practices complained of also constituted a breach of Article 1 (art. 1).
(i) unanimously, that the powers of detention and internment without trial as exercised during the relevant periods were not in conformity with Article 5, paras. 1 to 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), but were "strictly required by the exigencies of the situation" in Northern Ireland, within the meaning of Article 15 para. 1 (art. 15-1);
(ii) unanimously, that Article 6 (art. 6) did not apply to the said powers;
(iii) unanimously, that the facts found in relation to the relevant periods did not disclose any discrimination contrary to Article 14 (art. 14) in the exercise of the said powers;
(iv) unanimously, that the combined use of the five techniques in the cases before it constituted a practice of inhuman treatment and of torture in breach of Article 3 (art. 3);
(v) unanimously, that violations of Article 3 (art. 3) occurred by inhuman, and in two cases degrading, treatment of
- T 6, in an unidentified interrogation centre in August 1971,
- T 2, T 8, T 12, T 15, T 9, T 14 and T 10 at Palace Barracks, Holywood, in September, October and November 1971,
- T 16, T 7 and T 11, at various places in August, October and December 1971;
(vi) unanimously, that there had been at Palace Barracks, Holywood, in the autumn of 1971, a practice in connection with the interrogation of prisoners by members of the RUC which was inhuman treatment in breach of Article 3 (art. 3) of the Convention;
(vii) unanimously, that no practice in breach of Article 3 (art. 3) had been found to exist in relation to the cases of T 16, T 7 and T 11, including the general conditions at Girdwood Park in August 1971;
(viii) unanimously, that the conditions of detention at Ballykinler in August 1971 did not disclose a violation of Article 3 (art. 3);
(ix) by twelve votes to one, that Article 1 (art. 1), not granting any rights in addition to those mentioned in Section I of the Convention, cannot be the subject of a separate breach.
The report contains various separate opinions.
AS TO THE LAW
In their written and oral pleadings before the Court, the Irish Government allege breaches of Articles 1, 3 (art. 1, art. 3), 5 (taken together with Article 15) (art. 15+5), 6 (taken together with Article 15) (art. 15+6) and 14 (taken together with Articles 5 and 6) (art. 14+5, art. 14+6).
They 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) (art. 28-a) in fine, that the Contracting States have a duty to cooperate with the Convention institutions.
I. ON ARTICLE 3 (art. 3)
A. Preliminary questions
1. Preliminary question on the non-contested violations of Article 3 (art. 3)
This argument is disputed by the applicant Government. Neither is it accepted in a general way by the delegates of the Commission; they stated, however, that they would express no conclusion as to whether or not the above-mentioned undertaking had deprived the claim concerning the five techniques of its object.
"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 (art. 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."
The Court also notes that the United Kingdom has taken various measures designed to prevent the recurrence of the events complained of and to afford reparation for their consequences. For example, it has issued to the police and the army instructions and directives on the arrest, interrogation and treatment of persons in custody, reinforced the procedures for investigating complaints, appointed commissions of enquiry and paid or offered compensation in many cases (see paragraphs 99-100, 107, 110-111, 116-118, 121-122, 124, 128-130, 132, 135-139 and 142-143 above).
The conclusion thus arrived at by the Court is, moreover, confirmed by paragraph 3 of Rule 47 of the Rules of Court. If the Court may proceed with the consideration of a case and give a ruling thereon even in the event of a "notice of discontinuance, friendly settlement, arrangement" or "other fact of a kind to provide a solution of the matter", it is entitled a fortiori to adopt such a course of action when the conditions for the application of this Rule are not present.
2. Preliminary question on certain of the contested violations of Article 3 (art. 3)
In addition to contesting the merits of these claims, the British Government also raised a preliminary question in connection therewith in their memorial of 26 October 1976 and at the hearings in February 1977. They argued that the complaints made did not expressly concern a practice but individual cases in which effective domestic remedies were available to the persons involved. Accordingly, in their submission, the said claims fell outside the area demarcated by the Commission on 1 October 1972 when it accepted the allegation that "the treatment of persons in custody ... constituted an administrative practice in breach of Article 3 (art. 3)".
The Irish Government replied that this line of argument was based on an incorrect interpretation of the above-mentioned decision and of the manner in which the Commission subsequently carried out its role.
According to the delegates of the Commission, the Irish Government had not made clear whether they were asking the Court to censure a practice or merely to hold that certain persons had been subjected to treatment contrary to Article 3 (art. 3). In the former case, but not in the latter, their request would, in the delegates' view, be in conformity with the decision of 1 October 1972.
Again, Article 49 (art. 49) of the Convention provides that the Court shall settle disputes concerning its jurisdiction. It follows that, in order to rule on this preliminary plea, the Court must itself interpret the above-mentioned decision of 1 October 1972, in the particular light of the Commission's explanations (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, pp. 22-24, para. 48).
The allegation accepted by the Commission under Article 3 (art. 3) concerned a practice or practices and not individual cases as such. Accordingly, the Court's sole task is to give a ruling on that allegation.
However, a practice contrary to the Convention can result only from individual violations (see paragraph 159 below). Hence, it is open to the Court, just as it was to the Commission, to examine, as constituent elements or proof of a possible practice and not on an individual basis, specific cases alleged to have occurred in given places.
The Court concludes that it has jurisdiction to take cognisance of the contested cases of violation of Article 3 (art. 3) if and to the extent that the applicant Government put them forward as establishing the existence of a practice.
It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected.
The concept of practice is of particular importance for the operation of the rule of exhaustion of domestic remedies. This rule, as embodied in Article 26 (art. 26) of the Convention, applies to State applications (Article 24) (art. 24), in the same way as it does to "individual" applications (Article 25) (art. 25), when the applicant State does no more than denounce a violation or violations allegedly suffered by "individuals" whose place, as it were, is taken by the State. On the other hand and in principle, the rule does not apply where the applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask the Commission or the Court to give a decision on each of the cases put forward as proof or illustrations of that practice. The Court agrees with the opinion which the Commission, following its earlier case-law, expressed on the subject in its decision of 1 October 1972 on the admissibility of the Irish Government's original application. Moreover, the Court notes that that decision is not contested by the respondent Government.
B. Questions of proof
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 (art. 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) (art. 28-a). 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 (art. 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
1. The unidentified interrogation centre or centres
(a) The "five techniques"
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 (art. 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 (art. 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.
(b) Ill-treatment alleged to have accompanied the use of the five techniques
The Commission has found such treatment only in the case of T 6, although it regarded it as probable that the use of the five techniques was sometimes accompanied by physical violence (see paragraph 105 above).
2. Palace Barracks
The British Government do not contest these conclusions; the Irish Government ask the Court to confirm them but also to supplement them in various respects.
(a) Autumn 1971
According to the applicant Government, the violence in question should also be classified, in some cases, as torture.
On the basis of the data before it, the Court does not share this view. Admittedly, the acts complained of often occurred during interrogation and, to this extent, were aimed at extracting confessions, the naming of others and/or information, but the severity of the suffering that they were capable of causing did not attain the particular level inherent in the notion of torture as understood by the Court (see paragraph 167 above).
The delegates of the Commission argued that it would serve no purpose to add these two cases to the list since, like the other seven, they date from the autumn of 1971 and there is no longer any dispute between those appearing before the Court as to the existence during this period of a practice in breach of Article 3 (art. 3).
At the hearings in February 1977, the Irish Government acknowledged the validity of this argument. They declared that the Court would not need to make a specific finding on the contested cases of T 1 and T 4 if it confirmed the Commission's non-contested conclusions.
The Court takes note of this declaration. For the reasons given by the delegates, it considers that an examination of these two individual cases would be superfluous.
(b) From autumn 1971 to June 1972
The respondent Government state, inter alia, that they do not perceive how, by relying on nothing more than inferences, the Court could on this issue reach a conclusion different from the Commission's.
3. Other places
The Commission was of the opinion that T 16 and T 7 had been victims of treatment that was both inhuman and degrading and T 11 of treatment that was inhuman: T 16 on 13 August 1971 at Girdwood Park, T 7 on 28 October 1971 in a street in Belfast and T 11 on 20 December 1971 at Albert Street Barracks, also in Belfast. However, the Commission considered that no practice in breach of Article 3 (art. 3) had been established in relation to these cases, including the general conditions at Girdwood Park (see paragraph 147 above) and, further, that the conditions of detention at Ballykinler did not disclose a violation of that Article (art. 3) (ibid.).
There was thus a practice rather than isolated incidents. The Court found confirmation of this in the judgment of 18 February 1972 in the Moore case.
To sum up, the RUC and the army followed at Ballykinler a practice which was discreditable and reprehensible but the Court does not consider that they infringed Article 3 (art. 3).
(b) Miscellaneous places
The Court shares this view. Admittedly, the evidence before the Court bears out the Commission's opinion on the cases of T 16, T 7 and T 11 which the respondent Government do not contest (see paragraphs 120, 128 and 129 above). However, these were incidents insufficiently numerous and inter-connected to amount to a practice, even if one were to add the contested case of T 5 (St. Genevieve's School, Belfast, 13 August 1972, paragraph 130 above), on which the applicant Government are no longer seeking a specific finding (see paragraph 158 above).
It is not essential to re-open the investigation in this way in the present case. Indeed, the preventive measures taken by the United Kingdom (see paragraphs 133-136 above) at first sight render hardly plausible, especially as regards the period after the introduction of direct rule (30 March 1972), if not the suggestion of individual violations of Article 3 (art. 3) - on which the Court does not have to give a specific ruling (see paragraph 157 above), at least the suggestion of the continuation or commencement of a practice or practices in breach of that Article (art. 3). Furthermore, anyone claiming to be the victim of a breach of Article 3 (art. 3) in Northern Ireland is entitled to exercise the domestic remedies open to him (Article 26 the Convention) (art. 26) and subsequently, if need be, to apply to the Commission whose competence to receive "individual" petitions has been recognised by the United Kingdom (Article 25) (art. 25); this in fact often happened. Finally, the findings made in connection with the five techniques and Palace Barracks, henceforth embodied in a binding judgment of the Court, provide a far from negligible guarantee against a return to the serious errors of former times.
In these circumstances, the interests protected by the Convention do not compel the Court to undertake lengthy researches that would delay the Court's decision.
4. The Irish request for a consequential order
- refrain from reintroducing the five techniques, as a method of interrogation or otherwise;
- proceed as appropriate, under the criminal law of the United Kingdom and the relevant disciplinary code, against those members of the security forces who have committed acts in breach of Article 3 (art. 3) referred to in the Commission's findings and conclusions, and against those who condoned or tolerated them.
At the hearings, the applicant Government withdrew the first request following the solemn undertaking given on behalf of the United Kingdom Government on 8 February 1977 (see paragraph 153 above); on the other hand, the second request was maintained.
II. ON ARTICLE 5 (art. 5)
- the various powers relating to extrajudicial deprivation of liberty which were used in the six counties from 9 August 1971 to March 1975 did not satisfy the conditions prescribed by Article 5 (art. 5);
- those powers violated Article 5 (art. 5) since they failed to meet in full the requirements of Article 15 (art. 15);
- those powers were furthermore exercised with discrimination and consequently also violated Article 14 taken together with Article 5 (art. 14+5).
A. Paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), taken alone
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2.. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3.. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4.. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The applicant Government agree with this conclusion; the respondent Government do not contest it but indicate that they do not necessarily accept all of the reasons.
1. Paragraph 1 (art. 5-1)
Neither were such deprivations covered by sub-paragraph (b) (art. 5-1-b), since they had no connection whatsoever with a "non-compliance with the ... order of a court" and were not designed to "secure the fulfilment of any obligation prescribed by law" (Lawless judgment of 1 July 1961, Series A no. 3, p. 51, para. 12; Engel and others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69, third sub-paragraph).
However, a "suspicion" of an "offence" was not required before a person could be arrested under Regulation 10, nor did it have to be "considered necessary to prevent his committing an offence or fleeing after having done so"; arrest had merely to be "for the preservation of the peace and maintenance of order" and was sometimes used to interrogate the person concerned about the activities of others (see paragraph 81 above).
On the other hand, the other three Regulations complained of by the Irish Government did require a suspicion. While Regulations 11 (1) (arrest) and 11 (2) (detention) spoke both of an "offence" and of activity "prejudicial to the preservation of the peace or maintenance of order" (see paragraphs 82 and 83 above), and while this latter concept alone appeared in Regulation 12 (1) (internment, paragraph 84 above), section 2 (4) of the Special Powers Act made such activity an offence.
The Terrorists Order (interim custody and detention) and the Emergency Provisions Act (arrest, interim custody and detention), for their part, were applicable only to individuals suspected of having been concerned in the commission or attempted commission of any act of terrorism, that is the use of violence for political ends, or in the organisation of persons for the purpose of terrorism; these criteria were well in keeping with the idea of an offence (see paragraphs 85-88 above).
Irrespective of whether extrajudicial deprivation of liberty was or was not founded in the majority of cases on suspicions of a kind that would render detention on remand justifiable under the Convention, such detention is permissible under Article 5 para. 1 (c) (art. 5-1-c) only if it is "effected for the purpose of bringing [the detainee] before the competent legal authority". Yet this condition – if interpreted, as must be done, in the light of paragraph 3 of Article 5 (art. 5-3) (Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-53, para. 14) - was not fulfilled; the Court refers, in this connection, to paragraph 199 below.
2. Paragraphs 2 to 4
Persons originally detained under, for example, Regulation 11 (2) were, in fact, sometimes brought before the ordinary courts (see paragraph 83 above), but paragraphs 1 (c) and 3 of Article 5 (art. 5-1-c, art. 5-3) of the Convention are not satisfied by an appearance "before the competent legal authority" in some cases since such appearance is obligatory in every single case governed by those paragraphs. For its part, the advisory committee before which were brought - on the occasions when they so consented – individuals interned under Regulation 12 (1) did not have power to order their release and accordingly did not constitute a "competent legal authority" (see paragraph 84 above).
On the other hand, such a power was vested by the Terrorists Order and, subsequently, by the Emergency Provisions Act in the commissioners who adjudicated on cases of persons subjected to interim custody orders made by the Secretary of State for Northern Ireland. However, even if such a commissioner is regarded as a judicial authority ("officer", "magistrat"), appearance before him did not take place "aussitôt", or even "promptly" (see paragraphs 86-88 above).
A person "arrested or detained" pursuant to one of the provisions complained of was even less entitled to "trial within a reasonable time" or to "release pending trial" conditioned, if need be, by "guarantees to appear for trial", within the meaning of Article 5 para. 3 (art. 5-3). Quite the contrary: the reason for the existence of those provisions and of the related practice was the fact that the circumstances prevailing at the time made it difficult, subject to exceptions, to institute criminal proceedings which would in principle have led to a judicial hearing ("audience") and to a "[decision] on the merits" (Lawless judgment of 1 July 1961, Series A no. 3, p. 52, first sub-paragraph).
Under Regulations 10, 11 (1) and 11 (2) there was no entitlement to "take proceedings by which the lawfulness of [the] detention [would] be decided speedily by a court" and "release ordered if the detention" proved to be "not lawful" (see paragraphs 81-83 above). As regards Regulation 12 (1), the advisory committee to which internees had the possibility of making representations could at most recommend, as opposed to order, release, as the Court has already noted (see paragraphs 84 and 199 above). Moreover, the committee's procedure did not afford the fundamental guarantees inherent in the notion of "court" as used in Article 5 para. 4 (art. 5-4) (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 40-42, para. 76, second and third sub-paragraphs, and para. 78; paragraph 84 above).
The last remark also applies, mutatis mutandis, to the commissioners and to the appeal tribunal entrusted with supervisory functions by the Terrorists Order and, subsequently, by the Emergency Provisions Act (see paragraphs 87-88 above). Here again, the Court does not consider it indispensable to enquire further into the matter. In fact, only the Chief Constable and, in certain circumstances, the Secretary of State were empowered to refer to a commissioner the case of a person detained under an interim custody order (see paragraphs 86-88 above). The detainee himself was not entitled to "take proceedings" in respect of an interim custody order; he had no means of contesting the "lawfulness" of his detention, either during its initial twenty-eight day period or during its extension pending the commissioner's adjudication (see paragraphs 86 and 88 above). When that adjudication resulted in a detention order, the individual could challenge the order before the appeal tribunal; in general, however, that tribunal did not give its decision "speedily", at least if, as must be done, the length of the earlier proceedings before the commissioner is also taken into account (see paragraphs 86-88 above). Accordingly, the commissioners and the appeal tribunal did not meet each of the requirements of Article 5 para. 4 (art. 5-4).
The respondent Government maintain that habeas corpus proceedings, on the other hand, fully satisfied those requirements. The Court has, in fact, cognisance of a judgment delivered by a court before whom an individual had challenged under common law his deprivation of liberty pursuant to Regulations 11 (1) and 11 (2) (the McElduff case, judgment of 12 October 1971). However, the courts considered that their powers did not go beyond the limits indicated in paragraphs 81-84 above. The judicial review of the lawfulness of the measures in issue was thus not sufficiently wide in scope, taking into account the purpose and object of Article 5 para. 4 (art. 5-4) of the Convention.
B. On Article 5 taken together with Article 15 (art. 15+5)
The Commission is unanimous in not accepting this claim and it is disputed by the respondent Government.
"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2.. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.
3.. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."
1. On the "public emergency threatening the life of the nation"
2. On the "extent strictly required"
(a) The role of the Court
It falls in the first place to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leaves those authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements (Article 19) (art. 19), is empowered to rule on whether the States have gone beyond the "extent strictly required by the exigencies" of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp. 57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European supervision.
(b) Questions of evidence
- by reason of their origin, the Diplock report (see paragraphs 58-59 above), statements made before the Commission by the representatives of the United Kingdom and the memorandum by the Northern Ireland Office, annexed to the British memorial to the Court;
- for the reasons given in paragraph 210 below, the oral evidence obtained by the Commission under Article 14 (art. 14), including that of the witnesses G 1, G 2 and G 3, who were heard in London on 20 February 1975 (see paragraph 146 above).
The Court finds in the first place that it does not have jurisdiction to rule on the correctness of the procedure followed at that hearing. The Commission, with its independence from the Court when carrying out its fact-finding role (Lawless judgment of 14 November 1960, Series A no. 1, p. 11, second sub-paragraph), is master of its procedure and of the interpretation of its Rules of Procedure - in this case Rule 34 para. 2 - which it draws up under Article 36 (art. 36) of the Convention.
On the other hand, the Court, being master of its own procedure and of its own rules (Article 55 of the Convention) (art. 55), has complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it. It cannot attach to the evidence of G 1, G 2 and G 3 as much weight as to the evidence of witnesses who have been cross-examined. The Court looks upon the evidence of G 1, G 2 and G 3 as no more than one source of information amongst others and one which, being evidence coming from senior British officials, falls into a similar category to the respective statements made by the representatives of the two Governments to the Commission and the Court. Although that evidence was given on oath, it was obtained under conditions which reduce its weight. Besides, its importance was not over-estimated by the Commission which bore the absence of cross-examination in mind; the delegates took care to emphasise this.
(c) Questions concerning the merits
(i) On the necessity for derogation from paragraph 1 of Article 5 (art. 5-1) by extrajudicial deprivation of liberty
However, under one of the provisions complained of, namely Regulation 10, a person who was in no way suspected of a crime or offence or of activities prejudicial to peace and order could be arrested for the sole purpose of obtaining from him information about others - and this sometimes occurred (see paragraphs 38 and 81 above). This sort of arrest can be justifiable only in a very exceptional situation, but the circumstances prevailing in Northern Ireland did fall into such a category. Many witnesses could not give evidence freely without running the greatest risks (see paragraphs 36, 53, 58-59 and 74 above); the competent authorities were entitled to take the view, without exceeding their margin of appreciation, that it was indispensable to arrest such witnesses so that they could be questioned in conditions of relative security and not be exposed to reprisals. Moreover and above all, Regulation 10 authorised deprivation of liberty only for a maximum of forty-eight hours.
The Court will examine below (paragraphs 228-232) whether the difference of treatment between the two types of terrorism was such as to violate Article 14 (art. 14) of the Convention.
This issue apart, it appears to the Court that the extrajudicial measures brought into operation could, in the situation described above, reasonably have been considered strictly required for the protection of public security and that, in the context of Article 15 (art. 15), their intrinsic necessity, once recognised, could not be affected by the restriction of their field of application.
The Court cannot accept this argument.
It is certainly not the Court's function to substitute for the British Government's assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism. The Court must do no more than review the lawfulness, under the Convention, of the measures adopted by that Government from 9 August 1971 onwards. For this purpose the Court must arrive at its decision in the light, not of a purely retrospective examination of the efficacy of those measures, but of the conditions and circumstances reigning when they were originally taken and subsequently applied.
Adopting, as it must, this approach, the Court accepts that the limits of the margin of appreciation left to the Contracting States by Article 15 para. 1 (art. 15-1) were not overstepped by the United Kingdom when it formed the opinion that extrajudicial deprivation of liberty was necessary from August 1971 to March 1975.
(ii) On the necessity for derogation from the guarantees under paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4)
The Northern Ireland Government sought in the first place - unsuccessfully - to meet the most pressing problem, to stem the wave of violence that was sweeping the region. After assuming direct responsibility for the future of the province, the British Government and Parliament lost little time in moderating in certain respects the severity of the laws applied in the early days. The Court asked itself whether those laws should not have been attenuated even more, especially as regards interim custody (see paragraph 217 above), but does not consider that it can give an affirmative answer. It must not be forgotten that the crisis experienced at the time by the six counties was serious and, hence, of a kind that justified far-reaching derogations from paragraphs 2 to 4 of Article 5 (art. 5-2, art. 5-3, art. 5-4). In view of the Contracting States' margin of appreciation, the Court does not find it established that the United Kingdom exceeded in this respect the "extent strictly required" referred to in Article 15 para. 1 (art. 15-1).
The Court emphasises, as do the respondent Government and the Commission that Articles 3 and 5 (art. 3, art. 5) embody quite separate obligations. Moreover, the violations of Article 3 (art. 3) found in the present judgment fail to show that it was not necessary to apply the extrajudicial powers in force.
3. On the "other obligations under international law"
4. On the observance of paragraph 3 of Article 15 (art. 15-3)
C. On Article 14 taken together with Article 5 (art. 14+5)
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Before 5 February 1973, the extrajudicial powers were employed only against persons suspected of engaging in, or of possessing information about, IRA terrorism; later on, they were also utilised, but to a far lesser extent, against supposed Loyalist terrorists. According to the applicant Government, the circumstances of the case show that the United Kingdom thereby followed a policy or practice of discrimination.
The Court's case-law does not, in fact, make the distinctions which the Irish Government seek to draw therefrom. That case-law was confirmed by the Court when, for example, it examined under Article 14 (art. 14) claims relating, like those in the present case, to the mere application of a law (Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no. 20, p. 17, paras. 45 in fine and 46; Schmidt and Dahlström judgment of 6 February 1976, Series A no. 21, p. 17, paras. 39 in fine and 40; Engel and others judgment of 8 June 1976, Series A no. 22, p. 42, paras. 102 in fine, and 103 in fine; Handyside judgment of 7 December 1976, Series A no. 24, pp. 30-31, para. 66). The Court sees no reason for departing from that case-law on this occasion.
The Court finds that there were profound differences between Loyalist and Republican terrorism.
At the time in question, the vast majority of murders, explosions and other outrages were attributable to Republicans. Although Loyalists had begun towards 1963 to perpetrate acts of violence, reaching a high level in 1969 when the IRA was scarcely in evidence (see paragraphs 20-28 above), since 1970 the scale of their activities had been minute in comparison with those of the IRA (see paragraphs 29-32, 37, 45 and 47 above).
In the second place, the IRA, with its far more structured organisation, constituted a far more serious menace than the Loyalist terrorists. In 1970 and 1971 the Protestant community included political pressure groups with extremist tendencies, but apparently concealed within its ranks no underground military force akin to the IRA. At that time Loyalist terrorism was seen by the authorities as the sporadic work of individuals or isolated factions (see paragraph 37 above).
Lastly, it was as a general rule easier to institute criminal proceedings against Loyalist terrorists than against their Republican counterparts and the former were frequently brought before the courts. Accordingly, although Loyalist terrorists were not extra judicially deprived of their liberty, they do not seem to have been able to act with impunity.
When assuming direct rule of the province (30 March 1972), the United Kingdom Government and Parliament wished, amongst other things, to combat the discrimination long prevalent there in the area of electoral rights, employment, housing, etc., in the hope of reaching an equitable solution to the Northern Ireland problem (see paragraphs 50, 60 and 77 above).
However, this approach did not have a consequence which might have been expected, namely a complete equality of treatment between the two categories of terrorists in the exercise of the special powers. Shortly after 30 March 1972, there was a spectacular increase in Loyalist terrorism. Furthermore, the UVF proved to have increased its membership, expanded its holding of arms and improved its organisation. Towards the middle of the year, the police as a general rule had reasonably good intelligence as to the identity of violent elements on the Protestant side but there were cases in which it was impossible to procure sufficient evidence to bring them before the courts. Nevertheless, about ten months elapsed before the first two Loyalists were extra judicially deprived of their liberty (see paragraphs 52-53, 57, 61-62 and 66 above).
Several explanations for what is at first sight a surprising time-lag are advanced by the respondent Government and the Commission, for example the three combined facts that it had been decided to attempt the phasing-out of internment, that the IRA were still responsible for the great majority of serious acts of terrorism and that, broadly speaking, the ordinary criminal processes remained far more suited to the campaign against the Loyalist terrorists than to that against their Republican opponents (see paragraphs 50, 54-58, 61 and 63 above).
The cause or causes behind the conduct of the Government and the security forces at the time cannot be determined with certainty from the evidence, but it seems beyond doubt that the reasons that had been influential before 30 March 1972 became less and less valid as time went on.
However, the Court considers it unrealistic to carve into clear-cut phases a situation that was inherently changing and constantly evolving. The Court can understand the authorities' hesitating about the course to take, feeling their way and needing a certain time to try to adapt themselves to the successive demands of an ugly crisis. On the basis of the data before it, and bearing in mind the limits on its powers of review, the Court cannot affirm that, during the period under consideration, the United Kingdom violated Article 14, taken together with Article 5 (art. 14+5), by employing the emergency powers against the IRA alone.
III. ON ARTICLE 6 (art. 6)
- the various powers concerning extrajudicial deprivation of liberty which were used in Northern Ireland from 9 August 1971 to March 1975 did not satisfy the conditions prescribed by Article 6 (art. 6);
- those powers violated Article 6 (art. 6) since they were not in full conformity with the requirements of Article 15 (art. 15);
- those powers were furthermore implemented with discrimination and consequently also violated Article 14 taken together with Article 6 (art. 14+6).
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.. Everyone charged with a criminal offence has the following minimum rights:(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b) to have adequate time and facilities for the preparation of his defence;(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
The Court does not consider it necessary to give a decision on this point. The applicant Government are complaining here of the same measures as under Article 5 (art. 5). However, assuming Article 6 (art. 6) to be material, the derogations from the guarantees of a judicial nature afforded by Article 5 (art. 5) perforce involved derogating from those afforded by Article 6 (art. 6). The Court has already held that the derogations from Article 5 (art. 5) met the requirements of Article 15 (art. 15) (see paragraph 224 above); in the circumstances of the case, it arrives at the same conclusion as regards the derogations from Article 6 (art. 6). In addition, the Court has held that no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established (see paragraph 232 above); it likewise finds no discrimination with respect to Article 6 (art. 6).
IV. ON ARTICLE 1 (art. 1)
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention."
Neither the British Government nor the Commission in its report concur with this argument. They consider, briefly, that Article 1 (art. 1) cannot be the subject of a separate breach since it grants no rights in addition to those mentioned in Section I.
The applicant Government replied that the issue of the legislative measures was also referred to in paragraph 7 of the reasons for the decision of 1 October 1972, that the operative provisions of that decision had not declared that issue inadmissible and that the Commission had examined it on the merits. The delegates expressed a similar opinion.
At the hearings in February 1977, the British Government withdrew this preliminary plea in the light, inter alia, of the Handyside judgment of 7 December 1976 (Series A no. 24, pp. 19-20, para. 41). The Court takes note of this withdrawal; it does not consider that it has to give a ruling on a question which does not concern public order (ordre public), which apparently was not raised before the Commission (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 30, para. 54) and which, anyway, appears to have been overtaken by events.
The Convention does not merely oblige the higher authorities of the Contracting States to respect for their own part the rights and freedoms it embodies; as is shown by Article 14 (art. 14) and the English text of Article 1 (art. 1) ("shall secure"), the Convention also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels.
The answer to this problem is to be found much less in Article 1 (art. 1) than in Article 24 (art. 24). Whereas, in order to be able to lodge a valid petition, a "person, non-governmental organisation or group of individuals" must, under Article 25 (art. 25), claim "to be the victim of a violation ... of the rights set forth", Article 24 (art. 24) enables each Contracting State to refer to the Commission "any alleged breach of [any of] the provisions of the Convention by another [State]".
Such a "breach" results from the mere existence of a law which introduces, directs or authorises measures incompatible with the rights and freedoms safeguarded; this is confirmed unequivocally by the travaux préparatoires (document H (61) 4, pp. 384, 502, 703 and 706).
Nevertheless, the institutions established by the Convention may find a breach of this kind only if the law challenged pursuant to Article 24 (art. 24) is couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision of the Convention institutions must be arrived at by reference to the manner in which the respondent State interprets and applies in concreto the impugned text or texts.
The absence of a law expressly prohibiting this or that violation does not suffice to establish a breach since such a prohibition does not represent the sole method of securing the enjoyment of the rights and freedoms guaranteed.
Examination in abstracto of the legislation in force at the relevant time in Northern Ireland reveals that it never introduced, directed or authorised recourse to torture or to inhuman or degrading treatment. On the contrary, it forbade any such ill-treatment in increasingly clear terms (see paragraphs 134-136 above). More generally, as from the end of August 1971 the higher authorities in the United Kingdom took a number of appropriate steps to prevent or remedy the individual violations of Article 3 (art. 3) (see paragraphs 99-101, 133 and 137-143 above).
Certain aspects of the legislation do give rise to doubts. Neither Regulations 11 (1) and 11 (2), nor Article 4 of the Terrorists Order, nor paragraph 11 of Schedule 1 to Emergency Provisions Act set any limit on the duration of the deprivation of liberty they authorised. Furthermore, they did not afford to the persons concerned any judicial or administrative remedy beyond the restricted right to apply for bail, a right that was moreover abolished on 7 November 1972 with the revocation of Regulation 11 (4) (see paragraphs 82, 83 and 85 above). These provisions differed, on the first point, from Regulation 10 (forty-eight hours) and section 10 of the Emergency Provisions Act (seventy-two hours) and, on the second, from Regulation 12 (1) (advisory committee), Article 6 of the Terrorists Order (appeal tribunal) and paragraphs 26 to 34 of Schedule 1 to the Emergency Provisions Act (idem).
The first-mentioned shortcoming resulted, however, from the mere silence of the legislation and was mitigated in practice (maximum of seventy-two hours for Regulation 11 (1) and, in general, twenty-eight days for Regulation 11 (2)).
The second shortcoming appears more serious, especially as regards Regulation 11 (2), Article 4 of the Terrorists Order and paragraph 11 of Schedule 1 to the Emergency Provisions Act; preferably, it should have been avoided. However, the deficiency was in part made good by the ordinary courts of the province by virtue of the common law (the McElduff case, judgment of 12 October 1971, and the Kelly case, judgment of 11 January 1973, Regulations 11 (1) and (2)).
Above all, one is dealing with special legislation designed to combat a public emergency threatening the life of the nation; such provisions cannot be torn out of context without leading to arbitrary results. It was hardly possible for this legislation to forecast in a rigid and inflexible manner the frontiers of the demands of an inherently fluid and changing situation; the massive scale of the outrages and the large number of the persons arrested, detained and interned prevented the provision of guarantees similar to those required by the Convention. In 1972 and 1973, the British authorities attenuated the severity of the original legislation, thereby demonstrating their concern not to go beyond the "extent strictly required by the exigencies" of the circumstances. On this, a question of fact rather than of law, the said authorities enjoyed a margin of appreciation which they do not seem to have exceeded. Here again, the Court considers that it would be unrealistic to isolate the first from the later phases (see paragraphs 220, first sub-paragraph, and 229, sixth sub-paragraph, above); as regards the legislation as such, the Court does not feel able to arrive at conclusions conflicting with its decision on the application of that legislation (see paragraphs 214 and 220 above).
Accordingly, on this issue no breach of Articles 5, 6 (art. 5, art. 6) - assuming the latter Article (art. 6) to be applicable in this case (see paragraph 235 above) - and 15, taken together with Articles 1 and 24 (art. 15+1, art. 15+24), is found to be established.
V. ON ARTICLE 50 (art. 50)
The Rules of Court specify that when the Court "finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 50 (art. 50) of the Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the question is not ready for decision, the [Court] shall reserve it in whole or in part and shall fix the further procedure" (Rule 50 para. 3, first sentence, read in conjunction with Rule 48 para. 3).
On 14 October 1977, the Agent of the applicant Government replied as follows:
"... the applicant Government, while not wishing to interfere with the de bene esse jurisdiction of the Court, have not as an object the obtaining of compensation for any individual person and do not invite the Court to afford just satisfaction under Article 50 (art. 50), of the nature of monetary compensation, to any individual victim of a breach of the Convention.
FOR THESE REASONS, THE COURT
I. ON ARTICLE 3 (art. 3)
II. ON ARTICLE 5 (art. 5)
III. ON ARTICLE 6 (art. 6)
IV. ON ARTICLE 50 (art. 50)
Done in English and French, both texts being authentic, at the Human Rights Building, Strasbourg, this eighteenth day of January, one thousand nine hundred and seventy-eight.
Giorgio BALLADORE PALLIERI
The separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court:
Sir Gerald FITZMAURICE;
G. B. P.
With respect, I subscribe to the main part of the judgment of the Court. I maintain, however, a different view as to the notion and concept of the word "torture" occurring in Article 3 (art. 3) of the Convention. Moreover, I entertain a lot of doubt whether the Court is justified in setting aside a unanimous conclusion of the Commission in respect of torture which has not been contested by the representatives of the two High Contracting States who took part in the proceedings before the Court.
I feel tempted also to deal briefly with the principle underlying the onus of proof and the discharge of such onus in a case where a Contracting State is alleged to have violated its obligation under an Article of the Convention.
Admittedly the word "torture" included in Article 3 (art. 3) of the Convention is not capable of an exact and comprehensive definition. It is undoubtedly an aggravated form of inhuman treatment causing intense physical and/or mental suffering. Although the degree of intensity and the length of such suffering constitute the basic elements of torture, a lot of other relevant factors had to be taken into account. Such as: the nature of ill-treatment inflicted, the means and methods employed, the repetition and duration of such treatment, the age, sex and health condition of the person exposed to it, the likelihood that such treatment might injure the physical, mental and psychological condition of the person exposed and whether the injuries inflicted caused serious consequences for short or long duration are all relevant matters to be considered together and arrive at a conclusion whether torture has been committed.
It seems to me permissible, in ascertaining whether torture or inhuman treatment has been committed or not, to apply not only the objective test but also the subjective test.
As an example I can refer to the case of an elderly sick man who is exposed to a harsh treatment - after being given several blows and beaten to the floor, he is dragged and kicked on the floor for several hours. I would say without hesitation that the poor man has been tortured. If such treatment is applied on a wrestler or even a young athlete, I would hesitate a lot to describe it as an inhuman treatment and I might regard it as a mere rough handling. Another example: if a mother, for interrogation, is separated from her suckling baby by keeping them apart in adjoining rooms and the baby, on account of hunger, starts yelling for hours within the hearing of the mother and she is not allowed to attend her baby, again I should say both the mother and the baby have been subjected to inhuman treatment, the mother by being agonized and the baby by being deprived of the urgent attention of the mother. Neither the mother nor the child has been assaulted.
The salient facts
In August and October 1971, fourteen persons were arrested with a view to extracting confession or information from them. They were submitted to a form of "interrogation in depth" by members of the security forces or persons authorised to do it. The said form of interrogation involved the application of the five techniques which consisted of:
- hooding the detainees except during interrogation;
- making them stand continuously against a wall in a spreadeagled and painful posture for prolonged periods of some hours;
- submitting them to continuous and monotonous noise;
- depriving them of sleep; and
- restricting them to a diet of one round of bread and one pint of water at six-hourly intervals.
The five techniques were applied in combination and 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. This practice of interrogation continued interruptedly for some days. This is a short summary of facts and effects relating to the application of the five techniques.
B. Interpretation of Article 3 (art. 3)
Reference was made to the Greek case and also to Article 5 of the Universal Declaration of Human Rights and also to Article 7 of the International Covenant on Civil and Political Rights.
Finally, stress was laid on Resolution 3452 of the United Nations General Assembly of 9 December 1975 which was unanimously adopted.
Paragraph 1 of Article 1 of the Resolution referred to reads:
"For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official ... for ... obtaining ... information or confession ...."
Paragraph 2 of Article 1 reads:
"Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment."
Paragraph 1, which deals with the meaning to be attached to the word "torture", is more relevant for the purpose of interpretation of Article 3 (art. 3) of the Convention.
It is significant that stress has been laid on the severity of physical and/or mental pain or suffering and it was not felt necessary to qualify the word "severe" with an adjective denoting a high degree of severity in the pain or suffering inflicted.
I do not share the view that extreme intensity of physical or mental suffering is a requisite for a case of ill-treatment to amount to "torture" within the purport and object of Article 3 (art. 3) of the Convention. The nature of torture admits gradation in its intensity, in its severity and in the methods adopted. It is, therefore, primarily the duty and responsibility of the authority conducting the enquiries from close quarters, after taking into account all the surrounding circumstances, evidence and material available, to say whether in a particular case inhuman ill-treatment reached the degree of torture. In other words, this is a finding of fact for the competent authority dealing with the case in the first instance and which, for reasons we give hereunder, we should not interfere with.
C. The uncontested finding
In the instant case, as I said earlier, the Commission was unanimously of the opinion that the effect of the combined application of the five techniques in the case of fourteen persons amounted to torture. This conclusion has not been contested by applicant or respondent Government; what is more, by the representatives of the respondent Government, we have been invited to adhere to the findings of the Commission unless there were compelling reasons or cogent reasons to do otherwise. It was further submitted that it is wrong to suggest that the Court should make its own findings of fact because under the Convention questions of fact, evidence, etc., are primarily for the Commission; the Court will review only where there are compelling grounds.
Adopting the test submitted by the Counsel of the respondent Government, not only can I not find compelling reason or circumstance to go against the finding of the Commission, but I am not even in possession of adequate reason to suspect the soundness of the Commission's finding.
The fourteen persons who have undergone the ordeal of the five techniques were awarded compensation by way of settlement ranging from £10,000 to £25,000 sterling each. Surely the amounts awarded constitute a strong indication of the degree of severity and the intensity and length of the suffering caused to the recipients.
No new material before the Court
There was no new material or evidence before the Court, which was not made available to the Commission, relating to the application of the five techniques and its effects.
For the reasons I have endeavoured to give, I am of the view that the Commission rightly found that a contravention of Article 3 (art. 3) for torture in respect of certain cases has taken place.
On whom lies the burden to discharge the onus of proof.
When a Contracting State is alleged to have committed a violation of a specific Article or Articles of the Convention by disregarding its obligation under it and such allegation is denied, surely there is a burden of proof to be discharged in some way or other in order to substantiate such accusation before an authorised organ of the Convention. What is material here is not whether a burden of proof does exist or not - it is an elementary rule of justice that it does exist and the fact that the presumption of innocence is codified by Article 6 para. 2 (art. 6-2) of the Convention is a strong indication of it - but by whom and how such onus should be discharged.
The national courts are bound both in civil and criminal matters by their procedural rules. A defendant or an accused might not have to defend his case until and unless some evidence has been adduced to support the charge or claim against him.
The national courts are bound by their rules of evidence governing the admissibility and inadmissibility of evidence to be adduced. Hearsay evidence as well as an unauthenticated documentary evidence, for instance, might be excluded and not heard or produced.
On the other hand, the European Commission of Human Rights, as one of the judicial organs of the Council of Europe, possess unfettered discretion within the purview of Article 28 (art. 28) of the Convention and Rules 39 to 52 of their Rules of Procedure, to conduct investigation and enquiries in the way they think proper and to receive any kind of evidence without restrictions. No doubt, in the evaluation of the probative value of the evidence adduced, the nature of the evidence and of the documents will receive the deserved weight.
The interested Contracting Parties, on the other hand, have to render assistance to the Commission and the sub-committees who undertake investigation in a case. Withholding of evidence and a non-cooperative attitude by a respondent State no doubt might cause the Commission to draw adverse inferences. Having made the above general remarks, I would say that, at the end of proceedings, the Commission or the Court has, on the totality of evidence and material before them, to decide whether the burden of proof required to substantiate an allegation of contravention of the Convention by the respondent State has been discharged or not.
On the findings of the Court summarized at pp. 94 to 96 of the judgment I share the unanimous views of my colleagues as well as the majority conclusion at no. 3. It is, however, with profound regret that I must record disagreement with the majority opinion at nos. 4, 5, 7, 9, 13, 15 and 17, and state the reasons in this separate opinion.
The report of the Commission covers 502 pages and was produced after a lengthy inquiry. It is to be commended for its comprehensive review of the facts. This is all the more praiseworthy to the authors when consideration is given to the sad lack of cooperation shown by the respondent Government to the Commission and its delegates. I do not go beyond the narrative of the facts stated in the report, but set down my reasons where I differ from the conclusions of the Commission.
In noting the development of the crisis up to 1969 the report mentions the resentment shown by the majority against proposed concessions to the minority and which took a somewhat savage form.
The report at p. 135... finds three salient facts:
(i) that in 1968-69 the IRA was virtually non-existent;
(ii) that the Civil Rights movement begun in 1968 and developed in 1969, was solely concerned with the civil rights of the people in Northern Ireland;
(iii) the Civil Rights movement produced a violent and well organized reaction against the minority and the Government when the latter appeared to concede reforms to the minority.
At pp. 169-173 there is described the attack on a peaceable march set upon at Burntollet Bridge, the burning out of hundreds of the minority living in Bombay Street, and the complete destruction of 30 licensed premises and the partial demolition of 46 similar premises, - all owned by members of the minority. At this juncture there was no forceful provocation on the minority side. Again it will be found at pp. 170-171, a reference to the series of explosions at electricity stations and water reservoirs early in 1969, and to the fact that although these outrages were at first attributed by the authorities to the IRA, this conclusion was found to be erroneous and terrorists on the majority side were held to have been responsible. I find that the report fails to place in its true perspective the weight and extent of the violence in 1968-69, which came from the majority terrorists.
The publication of the Hunt report in 1969, involving the disbandment of the Special Constabulary, also led to a violent reaction on the part of the majority and is outlined at p. 175 of the report of the Commission. The formation early in 1972 of the Ulster Vanguard Movement as a para-military body estimated to have numbered 50,000 after its inception, with threats expressed to liquidate the minority, conveys some idea of the strength and menace to peace from this source (p. 191).
I consider that the foregoing events have not been appraised correctly in the report so as to give an accurate picture of the respective dangers to peace in 1968-1971 coming from the two communities in contention. The defenceless plight of the minority furnished ample excuses for the IRA to become reactivated, and the comment in the report that the several happenings noted therein had a disenchanting effect on the peaceable members of the minority strikes me as a somewhat bland euphemism. One must remember that the Cameron report noted at p. 165 of the Commission's report sheds a flood of informative light on the plight of the minority community for almost half a century, and the cloud of discrimination which enveloped it. Again the comment of the Commission (p. 213) that there was an element of inherent bias in the whole political system in Northern Ireland in favour of one community retains a euphemistic flavour.
When the decision to introduce detention and internment was taken, it was stated to be a temporary measure against persons suspected of terrorist activities against whom evidence was not available. Persons were arrested under the Operation Demetrius and even detained on the basis of inadequate or inaccurate information. Furthermore, no reasons were given for detention of those taken into custody and in the early period no effective machinery for review was available to the detainee. I am of opinion that the deplorable effect on the peaceable members of the minority of this sweeping-up operation has not been fully appreciated.
I find it devoid of any realistic approach to the true situation to see expressions again in the Commission's report as to their surprise at the effect on the minority community - comprising practically in all one-third of the whole population - of the varied steps to deal ostensibly with the IRA. It is difficult, and has not been conveyed in the report, to describe the shocked reaction, far beyond the area of Northern Ireland, at the shooting down of thirteen civilians in Londonderry in January 1972. Military forces were responsible and suffered no loss.
When the Government decided that the situation in 1971 called for extraordinary steps, I am far from satisfied that there was a full review of the position in the light of all the events in the years 1968-1971. I am cognizant of the difficulties confronting the Government but I am unable to see how the enforcement of detention and internment could be justified when for a year and a half it was carried out against the minority community only without exposing the Government to a charge of discrimination. There was a disregard of the massive build-up of organized para-military bodies from majority sources and the extent of the threat to peace from such sources in the terror inflicted on the minority in 1968-69. These forces were capable of paralysing community services and did so at least on two occasions. I will advert again to the Government apprehension at the strength of these forces and their reluctance to assert the law. I see in the selectivity in the enforcement of internment until 1973 the continuance of that element of inherent bias in favour of one community. This hinges on the evidence taken on the discrimination issue under Article 14 (art. 14). There are many issues of fact in this entire case and the issue of discrimination is one of them. To attempt to answer or contradict the plain trend of the evidence submitted by the applicant Government to the Commission by proffering the testimony of witnesses sheltered and protected from observation or cross-examination falls far short of meeting the requirements of a thorough and even-handed inquiry into the facts. For this the respondent Government was responsible.
I am, therefore, obliged to conclude upon all the evidence in the report that the respondent Government was guilty of discrimination in its application of extrajudicial steps to deal with the crisis in 1971-1973.
The report (pp. 108-135 and 225-244) records the protracted process to devise a procedure to hear evidence under Article 3 (art. 3). It is for anyone to read these pages in order to see the marked and persistent reluctance on the part of the respondent Government to comply fully or at all in some instances with the directions of the Commission and the delegates. A great deal of Respondent's evidence on the issues of fact under Article 3 (art. 3) should have been heard in Strasbourg or Belfast or elsewhere in Northern Ireland. Evidence on behalf of Respondent was heard in Northern Ireland during all the years covered by the inquiry on many aspects of the crisis by the many Commissions established by the Government such as the Cameron, Hunt, Scarman, Compton, Gardiner and Widgery tribunals. Again, there was no apparent difficulty in tendering evidence by State forces for the defence in Moore v. Shillington. This evidence was disbelieved by the Judge in that case and no appeal was taken against his judgment. Yet these witnesses were not produced before the delegates.
The value of hearing evidence in a local venue cannot be overestimated. As a member of the Sub-Commission in the Greek case, I visited some of the places of detention and heard the witnesses on complaints of ill-treatment inflicted on them in detention. No written description, however colourful, could have been as informative as the visit to Boubolinos Street in Athens. Yet no visit was made to Palace Barracks, Girdwood Park, Ballykinler or any of the other places used for detention. It would also have been instructive and illuminating to have seen the extent of the destruction throughout Belfast.
The claim that the respondent Government was to be the sole judge on matters claimed to involve security shows the extent to which it sought to dictate the manner in which and the extent to which evidence was to be vouchsafed to the delegates. At the end of p. 235, respondent Government claimed to instruct witnesses as to how they should answer questions. Can anyone express surprise that the applicant Government's Attorney General described the proposals of the respondent Government as "outrageous" (p. 118)? I reject the claim of the respondent Government that arrangements could not have been made to have much of the evidence heard in the local venue, and I regard the claim as an effort to raise a smoke-screen to hamper the investigation.
Article 3 (art. 3)
The report devotes half of its content to the allegations as to breaches of Article 3 (art. 3) (pp. 221-473). Any one as a judge of fact can say whether and how far he or she can agree with the conclusions of the Commission. For my part I agree with the unanimous finding of the Commission that the use of the five techniques constituted "torture" in breach of the Convention. Careful consideration was given in the Greek case to the meaning to be given to the notion of "torture", "inhuman treatment" and "degrading treatment". Recognizing the difficulty, as the Court has discovered, to fashion a precise definition of these terms which would be of universal application, I take the view that the approach made by the Commission in the Greek case was a reasonable one in the light of a Convention which proclaims it is expressly designed to defend human rights (p. 377).
It must remain for any judicial body to say if the facts before it amount to torture, inhuman or degrading treatment, having regard to the entire circumstances of the case under investigation. One is not bound to regard torture as only present in a mediaeval dungeon where the appliances of rack and thumbscrew or similar devices were employed. Indeed in the present-day world there can be little doubt that torture may be inflicted in the mental sphere. Torture is, of course, a more severe type of inhuman treatment. No amount of careful consideration can alter my opinion that the approach of the Commission at p. 402 was the correct one. Accordingly, I conclude that the combined use of the five techniques constituted a practice of inhuman treatment and torture in breach of Article 3 (art. 3).
It must be emphasized that this finding by the Commission was a unanimous one arrived at after hearing many witnesses. The Court did not have the advantage of hearing any evidence from witnesses. Moreover, although the charges under Article 3 (art. 3) were vigorously contested by the respondent Government in the proceedings before the Commission, the finding against that Government by the Commission in its report has not been contested by the respondent Government before the Court. It must be stated again that, while the evidence of the applicant Government was quite properly subjected to rigorous cross-examination, the same attitude was not displayed to all the witnesses for the respondent Government. Here was a lamentable lack in the manner adopted in carrying out a searching and even-handed investigation.
While I accept the Commission's conclusions in sub-paragraphs (1) and (2) noted at p. 473 of the report, I take a different view on the evidence in the report in respect of sub-paragraphs (3) and (4) on the same page. I regard it as absurd to hold that there was not constant and close communication at all relevant times between the numerous centres used for detention, including Palace Barracks, Girdwood Park, and Ballykinler. I adopt the meaning accorded in the Greek case to the terms "repetition of acts" and "official tolerance", and to the establishment of an "administrative practice", where such conditions were present. The repeated factual events in the above-named centres which went unchecked compel me to find on the merits a practice of inhuman treatment in breach of Article 3 (art. 3). This conclusion is not displaced but rather confirmed by the awards of compensation made in the majority of cases.
When I look at the evidence as to Girdwood Park and Ballykinler, where conditions prevailing in the detention centres were complained of, and see the coincidence of the happenings in these places with the remaining "illustrative" cases in some unknown interrogation centres in the autumn of 1971, it points clearly in my judgment to the existence at that time of a practice in breach of Article 3 (art. 3).
I am a firm upholder of the doctrine frequently approved by the Court that a margin of appreciation should be accorded to a State for its action taken in an emergency and impugned as a contravention of the Convention. In the present case, however, the invocation of this principle in favour of the respondent Government has been treated by the Court, in my opinion, as a blanket exculpation for many actions taken which cannot be reconciled with observance of the obligations imposed by the Convention.
To cite a few passages in this judgment to show the tendency of the Court to depart from that cold objectivity I would mention paragraph 63. It is just not accurate to say the Loyalist terrorist groups were more amorphous than the IRA and were "criminals" or "hooligans". This might have been a convenient way for the security forces to so regard the massive para-military strength of the UDA, the UVF and the Vanguard movement. Indeed, in paragraph 66 this is borne out by the apprehension of the authorities and their reluctance to contemplate the detention of Loyalists, and is confirmed by the events noted in paragraph 73.
I have called attention to the ill-balanced approach by the Commission to the extensive attacks on the minority by the majority in 1969 and it is regrettable that this is adopted by the Court as a true appraisal of the situation. It is also quite wrong to attempt to isolate complaints such as those in Moore v. Shillington and not to face up to the concerted and united effort to hold and interrogate those arrested in 1971 and the constant communication between the detention centres which could only point to the existence of a practice. To attempt to isolate the case of Moore v. Shillington or any other individual case of the many brought before the Commission is to contradict the dictum laid down in paragraph 243 of the judgment and to tear provisions out of context and not to look at the entire spectrum of the situation as a whole. To deal with incidents as isolated events seems to me merely to seek an excuse to exonerate the respondent Government. For example, why say that the treatment in Moore v. Shillington was merely "discreditable and reprehensible" and not a breach of Article 3 (art. 3)?
Of course, the Court is not bound by the strict rules of evidence but it should be careful not to abuse this privilege. It would presumably look for the best evidence obtainable. I find nothing even approaching disapproval by the Court at the non-cooperative attitude of the respondent Government. It would be lacking in candour if I did not state that there is much in the tone and general approach of the judgment that must discourage member States from invoking Article 24 (art. 24). The concept of this being a collective guarantee in that Article (art. 24) to secure observance of human rights has been severely damaged.
Article 15 (art. 15)
I agree that the events justified derogation by the respondent Government under Article 15 (art. 15) but would point out the limitation imposed by that Article (art. 15) in requiring such departure from the Conventional obligations to be to the extent strictly required by the exigencies of the situation. I hope it will not be considered presumptuous to call special attention to the use of the word "strictly" and to suggest that some meaning be found for its insertion in the Article (art. 15).
It is erroneous to seek to establish a parallel with the Lawless case where the threat was to a small unitary State, not long recovered from a civil war situation, whereas in this case the threat must relate to the existence of the United Kingdom and not to the Six Counties only. It is necessary to examine the extent to which Articles 5 and 6 (art. 5, art. 6) were breached and to ascertain if the exigencies of the situation required those steps.
In view of my conclusions as to the breaches of Article 3 (art. 3) and to the discriminating employment of arrest and detention it is sufficient for me to express the opinion that the situation did not require the extrajudicial power of arrest and detention to have been employed without two safeguards viz: informing the person arrested and detained of the grounds therefore, and providing some means of obtaining a review of the extrajudicial action and release if the reviewing body was not satisfied. I regard these safeguards as necessary and indeed the logical sequence of the principles laid down in the Lawless case. Any such safeguards were not present in the early stages under Regulations 10, 11 and 12, and to the extent of their absence there was a breach in my opinion of Article 5 para. 4 (art. 5-4).
It is hardly necessary to pursue the question whether Article 6 (art. 6) was also contravened and I regard any breach of that Article (art. 6) to have been technical once it is accepted that there was for a period a breach of Article 5 para. 4 (art. 5-4) for the reasons stated above. It is no answer to say that the maximum or unlimited periods of detention were not exceeded or made use of in practice. The complaint here under Article 24 (art. 24) is that the Regulations sanctioned such excesses and that these contravened the Convention. Once again, it seems to me that the Court has strained beyond breaking point their conception of the margin of appreciation in Respondent's favour.
I have a doubt as to the jurisdiction of the Court to make any effective order of a consequential nature as sought by the applicant Government. After such a lapse of time there would be practical difficulties in securing compliance with any such order. In my view it should not be made. Lest it might be overlooked I would observe there were a number of cases mentioned in the report in which complaints duly made as to assaults and ill-treatment by State forces on persons in custody were ignored by the authorities.
Article 1 (art. 1)
The question of interpretation of Article 1 (art. 1) of the Convention has not been satisfactorily treated by the Commission. Consideration of this problem turns largely on the meaning of Article 24 (art. 24). I would incline, therefore, to the approach in the separate opinions of Messrs. Sperduti, Opsahl, Ermacora and Mangan.
I would point out that the applicant Government is in the same position as the Scandinavian States in the Greek case. In both instances the applicant States ask for a collective enforcement of the guarantee in the Convention to secure the enjoyment of rights and freedoms.
In my opinion, at p. 501 of the report Mr. Mangan has summarized the true interpretation of Article 1 (art. 1) in this context as follows: "It is true that it is always necessary to invoke another Article in conjunction with Article 1 (art. 1), but once violations are threatening because of a failure to secure a right, one of the differences between the position of a State under Article 24 (art. 24) and an individual is exactly that the State may take action against anticipated breaches." At the conclusion of the proceedings before the Court the principal delegate of the Commission filed a memorial (Cour (77) 24) and at p. 5 thereof there will be found the concluding submission with which I fully agree: "Accordingly, the conclusion to be reached on the general problem of the interpretation of the European Convention is that a State that does not fulfil its domestic-guarantee obligation thereby infringes the Convention so that it may be found guilty of a breach of the Convention as a result of an application submitted under Article 24 (art. 24), even before any individuals personally experience the ill-effects of such a situation and are able to make a complaint under Article 25 (art. 25)."
Article 3 (art. 3)
The uncontested allegations
Point 1 of the Dispositif - (the Court holds that "although certain violations of Article 3 (art. 3) were not contested [by the United Kingdom], a ruling should nevertheless be given thereon").
(a) To begin with - a point seemingly overlooked by the United Kingdom - it did not at all automatically follow that the Court would necessarily agree with all the findings of the Commission as to the character of the treatment of the detainees concerned who were undergoing interrogation in Northern Ireland, - and in point of fact the Court did not endorse the chief of these findings, namely that torture contrary to Article 3 (art. 3) of the European Convention was involved: it only concurred in the Commission's view that the treatment in question amounted to inhuman and/or degrading treatment. Therefore, had the Court accepted the United Kingdom contention that it need not and should not pronounce upon the non-contested allegations, the Commission's findings as to torture would have constituted the last word on the subject and, in the light of them, the United Kingdom would have stood convicted, so to speak, of that grave charge.
(b) But if the Court, in the course of reviewing the Commission's findings, was entitled, and indeed bound, to indicate which of them it disagrees with, must not the same hold good for those findings on which the Court is disposed to concur? - especially when, despite the fact that the defendant Government no longer contests the allegations in question, the plaintiff Government still maintains them and (as is here the case) presses for a ruling from the Court on the ground inter alia that the latter is alone competent to make pronouncements having a judicial character, and with binding effect, - those of the Commission, though entitled to the greatest respect, not being invested with that status.
Relevance of the existence of a practice
Point 2 of the Dispositif - (the Court holds "that it has jurisdiction to take cognisance of the cases of the alleged violation of Article 3 (art. 3) to the extent that the applicant Government put them forward as establishing the existence of a practice [i.e. of torture, inhuman treatment, etc.]".)
Essential features of Article 3 (art. 3)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
This wording, perhaps deliberately because of the virtual impossibility of arriving at any completely satisfactory definition of the notions involved, attempts none respecting torture, inhuman treatment, or degrading treatment. It is thus left to be determined in the light of the circumstances of each particular case whether what occurred amounted to, or constituted the specified treatment. Such a determination must necessarily be an entirely subjective one, so that differently constituted courts or commissions, functioning at different periods, might, on the basis of similar or analogous facts, reach different conclusions in border-line, or even not so border-line, cases. It results that there is little practical utility in speaking of torture or inhuman treatment, etc. "according to", or "within the meaning (or "scope" or "intention") of", Article 3 (art. 3) - (although the Judgment, probably by an oversight, uses such language here and there), - for that Article ascribes no meaning to the terms concerned, and gives no guidance as to their intended scope.
Nature of the five techniques
(i) As regards the phrase "for periods of some hours", see footnote 10 below. The Commission's version says that the "exact length of time ... could not be established", but mentions periods "totalling" 23 and 29 hours. Clearly these periods could not have been continuous, and one of the Compton reports (as quoted on p. 247 of the Commission's own report)6a speaks of "periodical lowering of the arms to restore circulation". There must have been other intervals also, - see (vii) below.
(ii) The term "spread eagled against the wall" cannot convey the correct picture, for the body was away from the wall and not in contact with it except through the fingers or flat of the hand (see (iii) below). If, however, the fingers (or part of the hands) were placed "high" above the head yet touched the wall, the body would necessarily be fairly close to the wall, resulting in a much less strained position.
(iii) "The weight of the body mainly on the fingers", - "mainly", which implies that it was sometimes on the flat of the hand, again reducing the stress.
(iv) "Causing them to stand on their toes" - this is not a necessary consequence of standing with legs apart and feet back; the stance is equally compatible with standing on the flat of the foot, whether the fingers or flat of the hand were against the wall, though more easily so in the latter case.
(v) It is therefore difficult to credit that those concerned were not able to vary their position from time to time, if only momentarily, which would bring relief.
(vi) The Commission states (p. 397) that the Compton report described "the position [of the detainee] as being a different one", and (p. 247) quotes the latter's much less detailed version as "Making the detainees stand against a wall in a required posture (facing wall, legs apart, with hands raised up against wall) ...". It also describes how detainees were not allowed to depart from this posture and were if necessary compelled to resume it.
(vii) It appears, however, from p. 248 of the Commission's report that although "some" detainees were standing "continuously" at the wall for periods of from 6-16 hours, this was "subject to breaks for bread and water and for toilet visits".
Hooding - as to one query that might arise, see footnote 11 below. Moreover the words "all the time", used in paragraph 96 of the Judgment, obviously cannot be taken literally. The fact, not mentioned in this paragraph - but see the Commission's and the Compton report - that the hood was removed during interrogation and - (at least in the particular cases cited) - when the detainee was alone - (provided, according to the Commission, that he kept his face to the wall) - seems to show that the principal object of the hooding was less to cause distress to the detainee than to prevent him seeing or communicating with other detainees. I think it worthwhile mentioning this, although I am aware that the absolute and unconditional character of Article 3 (art. 3) of the Convention makes the object or purpose of the treatment irrelevant (see paragraph 14 above), so long as it really constitutes treatment of the kind specified, - but it may all the same have considerable relevance to the question of whether or not it does constitute such treatment - (see as to this footnote 19 below).
Subjection to noise - paragraph 96 of the Judgment and the Commission's report (p. 397) describe the noise as "a loud and hissing noise". The Compton report, as cited by the Commission (p. 247), says "a continuous and monotonous noise", and as to its loudness says "of a volume calculated to isolate them [the detainees] from communication".
Deprivation of sleep - the Judgment says "Pending their interrogations, depriving the detainees of sleep": the Commission's version adds "but it was not possible to establish for what periods each witness had been without sleep". The Compton version on the other hand says "Depriving the detainees of sleep during the early days of the operation [i.e. of the detention]", and says nothing about for how long.
Deprivation of food and drink - the Judgment describes this as "subjecting the detainees to a reduced diet during their stay at the [interrogation] centre and pending interrogations". The Commission had said the same but added that 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" - i.e. went on hunger-strike. This last is a point of considerable significance given the fanatical atmosphere often prevalent. The Compton report on the other hand is more specific, and speaks of deprivation of nourishment "other than one round of bread and one pint of water at six-hourly intervals". In characterising this as "physical ill-treatment" the report adds "for men who were being exhausted by other means at the same time".
Alleged inhuman and/or degrading treatment
Point 3 of the Dispositif - (the Court holds [by sixteen votes to one] that "the use of the five techniques ... constituted a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3)").
A. "inhuman" treatment
"they caused, if not actual bodily injury [which means that they did not do so], at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation."
Most people feel "disturbed" during an interrogation that must necessarily be of a rigorous, searching and quasi-hostile character, and it is not surprising that there was medical evidence of it in certain particular cases. But what is the basis of the term "intense", qualifying "suffering", physical and mental? Such language is surely excessive and disproportionate and not justified by the evidence. To many people, several of the techniques would not cause "suffering" properly so called at all, and certainly not "intense" suffering. Even the wall-standing would give rise to something more in the nature of strain, aches and pains, fatigue, and the like. To speak of "intense physical ... suffering" comes very near to speaking of torture, and the Judgment rejects torture. The sort of epithets that would in my view be justified to describe the treatment involved (treatment that did not cause bodily injury) would be "unpleasant, harsh, tough, severe" and others of that order, but to call it "barbarous", "savage", "brutal" or "cruel", which is the least that is necessary if the notion of the inhuman is to be attained, constitutes an abuse of language and, as I have said earlier, amounts to a devaluing of what should be kept for much worse things. It is hardly a convincing exercise.
"They [i.e. the five techniques] 'accordingly' [my inner-quote marks] fall into the category of inhuman treatment 'within the meaning of Article 3 (art. 3)' [same remark]."
This is pure assertion. As I pointed out earlier (paragraph 12), there does not exist any "within the meaning of Article 3 (art. 3)" because that provision furnishes neither definition nor any aid to it. Consequently, what this phrase really signifies is "within the meaning that the Court has elected to ascribe to Article 3 (art. 3)". The "accordingly" is presumably predicated mainly upon the previous "they caused ... intense ... suffering", - and I need not re-state what I have said about that. But again, it does not convince: it leaves a large area of indeterminacy filled with question-marks. For my part, I consider that the concept of "inhuman" treatment should be confined to the kind of treatment that (taking some account of the circumstances) no member of the human species ought to inflict on another, or could so inflict without doing grave violence to the human, as opposed to the animal, element in his or her make-up. This I believe is the sense in which the notion of "inhuman" treatment was intended to be understood in Article 3 (art. 3), - as something amounting to an atrocity, or at least a barbarity. Hence it should not be employed as a mere figure of speech to denote what is bad treatment, ill-treatment, maltreatment, rather than, properly speaking, inhuman treatment.
B. "degrading" treatment
"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 and moral resistance."
That is all the Judgment says by way of defining or describing degrading treatment, and it calls for the following comments:
(a) Feelings of "fear, anguish and inferiority" are the common lot of mankind constantly experienced by everyone in the course of ordinary everyday life: this is "la condition humaine". Yet no one would consider himself, or regard others, as humiliated and debased because of experiencing such feelings, even though some experience them very easily and others only for greater cause. Thus it is not the subjective feelings aroused in the individual that humiliate or debase but the objective character of the act or treatment that gives rise to those feelings - if it does - and even if it does not, - for it is possible for fanatics at one end of the scale, and saints, martyrs and heroes at the other to undergo the most degrading treatment and feel neither humiliated nor debased, but even uplifted. Yet the treatment itself remains none the less degrading. The Judgment therefore applies here quite the wrong test, and does not ask any of the right questions, such as, for instance, what there is - if anything at all - that humiliates or debases in being kept on a reduced diet for a time, and whether this can really be called "degrading" treatment without great exaggeration or distortion.
(b) Nor does "possibly breaking their physical or moral resistance" furnish any more satisfactory test. Again it is the character of the treatment that counts, not its results. It is easy to think of ways in which physical and moral resistance can be broken without any resort to ill-treatment, the use of force, or acts of degradation. Alcohol will do it, and often does. More generally, simple persuasion, or consideration and indulgence, will do it. As has been well said, "There is no defence against kindness". The degradation lies not in what the treatment produces, but in how it does it: it might produce no result at all, but still be degrading because of its intrinsic character. That various kinds of treatment - and they cover a wide range - are capable of diminishing or breaking down physical or moral resistance is obvious, but the degradation, if any, consists not in that but in the particular methods employed.
Point 6 of the Dispositif - (the Court holds unanimously that "there existed at Palace Barracks in the autumn of 1971 a practice of inhuman treatment, which practice was in breach of Article 3 (art. 3)").
Point 4 of the Dispositif - (the Court holds that "the ... use of the five techniques did not constitute a practice of torture within the meaning of Article 3 (art. 3)").
Point 7 - (referring to Point 6 (supra) and the practice at Palace Barracks: the Court holds that "the [said] practice was not one of torture within the meaning of Article 3 (art. 3)").
It is not clear what the purpose of the reference to extracting confessions, the naming of others, etc. is. If it is intended to indicate that the existence of such objectives is a necessary ingredient before the treatment concerned can constitute torture, such an idea must be firmly rejected. Torture is torture whatever its object may be, or even if it has none, other than to cause pain, provided it is inflicted by force - (of course the suffering experienced in the dentist's chair, however intense, is not technically torture because the patient submits to it of his own volition).
However, the real question suggested by the references to the objectives of the torture is whether there can ever be an objective justifying its use. In strict terms of Article 3 (art. 3) of the Convention, the answer must be in the negative: the prohibition is unqualified and therefore absolute - see paragraph 14 above. Yet there have been cases in which the extraction of information under torture or extreme ill-treatment has led to the saving of hundreds, even thousands of lives. On this matter the temperate and carefully balanced separate opinion of Mr. J.E.S. Fawcett, President of the European Commission, recorded on pp. 495-7 of the Commission's report in the present case, repays careful study.
"they did not occasion suffering of the particular intensity and cruelty implied by the word torture ..."
(This passage is completed by the addition after the word "torture" of "as so understood", the object and effect of which escape me - but see footnote (19)). The same test of "intensity" is applied again in connexion with the happenings at Palace Barracks in the autumn of 1971. Despite this, and its finding of inhuman treatment, the Court, speaking of the acts complained of, said (third sub-paragraph of paragraph 174) that
"the severity of the suffering that they were capable of causing did not attain the particular level inherent in the notion of torture as understood by the Court ..."
And this was completed by a reference back to the former pronouncement in paragraph 167.
ARTICLES 5 AND 6, TAKEN IN CONJUNCTION WITH ARTICLE 15 (art. 15+5, art. 15+6)
ARTICLES 5 AND 15 (art. 5, art. 15)
(a) Where it is the fact (as the Court has found in the present case) that although there would have been a breach of the Convention under Article 5 (art. 5), if that provision had stood alone, - but that, by reason of the operation of Article 15 (art. 15), the putative or potential breach resting on Article 5 (art. 5) is so to speak redeemed, discharged or re-habilitated, - then what really results, when the ultimate situation is reached, is simply that there is no breach of the Convention at all, as such. In these circumstances, it seems to me wrong, or at least inappropriate, to give the impression, as there will be a tendency to do, at least initially, that there is a breach of the Convention because the acts complained of, taken by themselves, would have derogated from Article 5 (art. 5). The whole point is that once the respondent Government has pleaded justification under Article 15 (art. 15), the situation as it might exist under Article 5 (art. 5) alone cannot properly be taken by itself. The Court's present method of dealing with the matter is to hold that there has been a breach of the Convention because of derogations from it under a certain Article, - but then to hold that, by reason of the provisions of another Article, these derogations are excusable. But this is clearly incorrect. Article 15 (art. 15), where applicable to the facts of the case, does not merely excuse acts otherwise inconsistent with Article 5 (art. 5): it nullifies them qua breaches of the Convention as a whole, - or at least justifies them, so that no breach results.
(b) This being so, it seems to me that the present system puts the emphasis in the wrong place. It involves coming to the consequences of the respondent Party having pleaded Article 15 (art. 15), only after establishing that there has been a breach of Article 5 (art. 5), thus putting that Party in the posture of being, in principle, a Convention-breaker, although it has taken all the steps necessary to invoke and bring into play Article 15 (art. 15) which specifically provides that, in certain circumstances "any High Contracting Party may take measures derogating from ... this Convention". Moreover, there being in consequence no breach of the Convention as such, there cannot have been any breach of Article 5 (art. 5) either, - for Article 15 (art. 15) has acted retrospectively to prevent that. The respondent Party is therefore left in the invidious and false position of having prima facie violated the Convention, and having merely as it were subsequently atoned for that violation by bringing itself under Article 15 (art. 15), - whereas the true situation is that such a Party should be deemed never to have breached Article 5 (art. 5) at all as regards any acts for which Article 15 (art. 15) was invoked and found to be applicable.
ARTICLES 6 AND 15 (art. 6, art. 15)
ARTICLE 14 (art. 14)
Having felt unable to agree with the majority of the Court on points 4, 7, and 9 of the operative provisions of the judgment, I think it my duty to set out the reasons why I am of a different opinion.
(a) The majority of the Court considered that the combined use of the five techniques constituted inhuman and degrading treatment but not a practice of torture within the meaning of Article 3 (art. 3) of the Convention. I think, on the contrary, that the acts complained of, whilst amounting to inhuman and degrading treatment, do also come within the notion of torture. On this point I share the unanimous opinion of the Commission, which was not contested before the Court by the respondent Government. My disagreement with the majority of the Court concerns both of the premises underlying its reasoning, namely (i) the definition of the notion of torture and what distinguishes it from inhuman treatment as well as (ii) the assessment of the combined use of the five techniques from the factual point of view.
(i) The definition of torture - and hence the feature distinguishing torture from inhuman treatment - on which the judgment is based does not appear to differ appreciably from the one adopted by the Commission in its report. According to the Commission, torture is an "aggravated form of inhuman treatment", the latter in turn being such treatment as "deliberately causes severe suffering, mental or physical" (report, pp. 377, 379). For its part, the judgment defines torture as "deliberate inhuman treatment causing very serious and cruel suffering" (paragraph 167). Since the two definitions concentrate on the effects of the acts in question on the victim, it is difficult to distinguish between what should be regarded as an "aggravated form" of "treatment causing severe suffering" on the one hand and the infliction of "very serious and cruel suffering" on the other. To find the distinction between the two definitions of the notion of torture becomes even more difficult by reason of the fact that the Court draws some parallel between its own definition and that given by the United Nations General Assembly (in Resolution 3452 (XXX) of 9 December 1975, Article 1), which is in substance identical to the Commission's definition.
The fact remains that this terminology, which is not very enlightening in itself, has to be seen as reflecting the tendency, apparent in the reasoning of the majority of the Court, to place the distinction between torture and inhuman treatment very high up on the scale of intensity of the suffering inflicted. Indeed, the judgment appears to reserve the category of "torture" exclusively for treatment which causes suffering of extreme intensity. I cannot agree with this interpretation.
The notion of torture which emerges from the judgment is in fact too limited. By adding to the notion of torture the notions of inhuman and degrading treatment, those who drew up the Convention wished, following Article 5 of the Universal Declaration of Human Rights, to extend the prohibition in Article 3 (art. 3) of the Convention – in principle directed against torture (cf. Collected Edition of the "Travaux Préparatoires", volume II, pp. 38 et seq., 238 et seq.) – to other categories of acts causing intolerable suffering to individuals or affecting their dignity rather than to exclude from the traditional notion of torture certain apparently less serious forms of torture and to place them in the category of inhuman treatment which carries less of a "stigma" - to use the word appearing in the judgment. The clear intention of widening the scope of the prohibition in Article 3 (art. 3) by adding, alongside torture, other kinds of acts cannot have the effect of restricting the notion of torture. I might advance the hypothesis that, if Article 3 (art. 3) of the Convention referred solely to the notion of torture, it would be difficult not to accept that the combined use of the five techniques in the present case fell within its scope. I do not see why the fact that the Convention, with the sole aim of increasing protection of the individual, condemns not only torture but also other categories of acts should lead to a different conclusion.
The Court's interpretation in this case seems also to be directed to a conception of torture based on methods of inflicting suffering which have already been overtaken by the ingenuity of modern techniques of oppression. Torture no longer presupposes violence, a notion to which the judgment refers expressly and generically. Torture can be practised - and indeed is practised - by using subtle techniques developed in multidisciplinary laboratories which claim to be scientific. By means of new forms of suffering that have little in common with the physical pain caused by conventional torture it aims to bring about, even if only temporarily, the disintegration of an individual's personality, the shattering of his mental and psychological equilibrium and the crushing of his will. I should very much regret it if the definition of torture which emerges from the judgment could not cover these various forms of technologically sophisticated torture. Such an interpretation would overlook the current situation and the historical prospects in which the European Convention on Human Rights should be implemented.
(ii) I take a stronger position than the majority of the Court as regards the assessment of the combined use of the five techniques from the factual point of view. I am sure that the use of these carefully chosen and measured techniques must have caused those who underwent them extremely intense physical, mental and psychological suffering, inevitably covered by even the strictest definition of torture. The evidence which, despite a wall of absolute silence put up by the respondent Government, the Commission was able to gather about the short- or long-term psychiatric effects which the practice in question caused to the victims (paragraph 167 of the judgment) confirms this conclusion.
(b) I voted in favour of the view that a practice of torture existed in the cases referred to in point 7 of the operative provisions. I cannot characterise in another way treatment which, on the basis of the facts relied on by the Court (paragraph III of the judgment), caused "substantial" and "massive" injuries to detainees.
(c) I voted in favour of the view that Article 3 (art. 3) had been violated in the cases referred to in point 9 of the operative provisions. The practices described in the Moore case (paragraph 124 of the judgment) constituted, in my opinion, degrading treatment within the meaning of this provision.
According to the reasoning of the majority of the Court in the present case, the principal criterion for distinguishing between inhuman treatment and torture is the intensity of the suffering inflicted. To my great regret I cannot agree with this interpretation.
My position on this is close to that adopted in the Commission's unanimous opinion in the present case (pp. 389-402 of the report), which opinion is in turn based on the interpretation of the essential elements of Article 3 (art. 3) of the Convention developed in previous cases, mainly in the First Greek Case (pp. 377-379 of the report). In my view, the distinguishing feature of the notion of torture is the systematic, calculated (hence deliberate) and prolonged application of treatment causing physical or psychological suffering of a certain intensity, the aim of which may be to extort confessions, to obtain information or simply to break a person's will in order to compel him to do something he would not otherwise do, or again, to make a person suffer for other reasons (sadism, aggravation of a punishment, etc.).
There is no doubt that one can speak of torture within the meaning of Article 3 (art. 3) only when the treatment inflicted on a person is such as to cause him physical or psychological suffering of a certain severity. However, I consider the element of intensity as complementary to the systematic element: the more sophisticated and refined the method, the less acute will be the pain (in the first place physical pain) which it has to cause to achieve its purpose. The modern methods of torture which in their outward aspects differ markedly from the primitive, brutal methods employed in former times are well known. In this sense torture is in no way a higher degree of inhuman treatment. On the contrary, one can envisage forms of brutality which cause much more acute bodily suffering but are not necessarily on that account comprised within the notion of torture.
Moreover, this notion of torture, to which I subscribe, does not differ essentially from those recently worked out by various international bodies, including the United Nations (see, for example, Article 1 of Resolution 3452 (XXX), adopted by the General Assembly on 9 December 1975). The notion seeks only to stress some of the features which are also included in those other notions and which seem to me to be the most important.
As regards the unanimous findings of fact by the Commission and the Court (paragraphs 96-107 of the judgment), the five techniques, as used in unidentified interrogation centres, constituted a highly sophisticated and refined system aimed at obtaining information or confession: "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" (paragraph 167 of the judgment). They thus constitute a typical example of torture within the meaning of Article 3 (art. 3) of the Convention.
In my opinion, there is discrimination within the meaning of Article 14 (art. 14) of the Convention where a measure which in itself meets the requirements of the system for protecting the fundamental rights guaranteed by the Convention is applied in a different way to individuals or groups of individuals within the jurisdiction of a State Party to the Convention and when this difference in treatment is not justified by objective and reasonable motives (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, pp. 34-35, para. 10). A fortiori, there is discrimination where the different treatment is accounted for by motives based mainly on one of the criteria cited by way of example (see the words "such as ...") in Article 14 (art. 14) and expressly stated to be discriminatory.
My line of argument here follows the position of principle - a correct one, I think - which this Court adopted in the case of Engel and others (judgment of 8 June 1976, Series A no. 22, para. 72) and which seems to me also to underlie the reasoning of the majority of the Court in the present case, namely that discrimination can also exist as regards restrictions - in themselves legitimate - on the rights guaranteed by the Convention. To put it another way, the wording of Article 14 (art. 14) - "enjoyment of the rights and freedoms set forth in [the] Convention" - must be given a broader conceptual scope so as to include therein, over and above enjoyment in the strict sense, the way in which the rights and liberties in question may have been restricted.
In the present case we are dealing with the application of the extrajudicial powers of detention and internment which the Court has rightly - in view of the circumstances prevailing in Northern Ireland at the relevant time - considered to be compatible with the system for protecting fundamental rights set up by the Convention (Articles 5 and 6 taken together with Article 15 (art. 15+5, art. 15+6).
It may be regarded as established that in the period up to 5 February 1973 these measures were applied only against Republican terrorists and not against Loyalist terrorists and that likewise in the subsequent period the measures in question affected the latter only to a far lesser extent. The crucial point is whether this different treatment was justified by objective and reasonable motives. If so, the difference is legitimate; if not, it constitutes discrimination within the meaning of Article 14 (art. 14).
There is no doubt that the extrajudicial measures were introduced at a time when terrorism of Republican origin had reached a high level. It has also been proved, however, that terrorism from Loyalist sources existed at the same time and on an increasing scale. That, from the quantitative point of view, a larger number of serious outrages were attributable to the Republican terrorists does nothing to alter the fact that in this same period two brands of terrorism were simultaneously rife in Northern Ireland. Moreover, at least from 1972 onwards, the two varieties of terrorism represented a comparable menace to law and order in the country. Nonetheless, up to 5 February 1973 the British authorities continued to apply the emergency measures to the Republican terrorists alone.
The reasons put forward by the respondent Government to justify such a difference hardly convince me, and it must also be remembered that, on this particular point, the respondent Government were very unforthcoming during the enquiry (pp. 107 et seq. and 153 et seq. of the Commission's report), so that an unfettered assessment of the evidence does not operate in their favour. Examination of the material before the Court would seem to me rather to permit the conclusion that, besides the bias on the part of the authorities which characterises the general situation in Northern Ireland not only in the course of history but also at the time in question, there was hesitation over talking equally energetic action against the Loyalist terrorists and over using emergency powers against them because of fear of the political repercussions of such a step. In my view, this is not a justification based on objective and reasonable motives. For want of such justification, the different treatment, which has been proved objectively, constitutes discrimination within the meaning of Article 14 (art. 14) of the Convention.
There is also another point of view to be taken into account. If the authorities deemed it necessary in order to combat terrorism to take emergency measures which weighed heavily on the population concerned, and if these measures were applied to only one section of the population whereas, in order to combat a comparable terrorist campaign originating from the other side - insofar as it was seriously combated -, they thought that they could confine themselves to the ordinary means of prevention and punishment, the question also arises whether the emergency measures were really indispensable within the meaning of Article 15 (art. 15) of the Convention.
Note 3 A convenient American locution for describing "an issue which during the course of a trial or pending an appeal has ceased to have practical importance" - (Radin's Law Dictionary, Oceana Publications, New York, 2nd Edn. 1970, p. 211); and see correspondingly the definition given in n. 1 on p. 86 of my separate opinion in the Northern Cameroons case before the International Court of Justice (I.C.J. Reports 1963, at p. 97). [Back] Note 5 "To ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention [my italics], there shall be set up:
(1) A European Commission of Human Rights hereinafter referred to as 'the Commission';
(2) A European Court of Human Rights hereinafter referred to as 'the Court'."
[Back] Note 6 This is an over-simplified statement of what can in fact be a complicated matter, and needs qualification in various respects. However, this is not the place for any exposition of the law on the subject. [Back] Note 7 This was the report of the Committee set up in August 1971 by the United Kingdom Home Secretary, under the chairmanship of Sir Edmund Compton, G.C.B., K.B.E., to consider allegations of ill-treatment of detainees - see Judgment, paragraph 99.
6a For reasons of convenience the quotations which I give are those provided by the Commission. There is some obscurity as to the exact source from which the Commission is itself quoting - but there seems to be no doubt that as given on p. 247 they do reproduce the Compton formulation. [Back] Note 8 To give examples of figurative use within most people's experience: - One hears it said "I call that inhuman", the reference being to the fact that there is no dining-car on the train. "It's degrading for the poor man", one hears with reference to an employee who is being given all the unpleasant jobs. "It's absolute torture to me", - and what the speaker means is having to sit through a boring lecture or sermon. There is a lesson to be learnt here on the potential dangers of hyperbole. [Back] Note 9 It is fairly clear that all five techniques could not have been employed simultaneously on the same person, though two or three of them might have been combined in that sense. What the Judgment is actually referring to is the fact that each of the individuals concerned was subjected in one way or another and at one time or another, to all five techniques and not only to one or two. [Back] Note 11 The evidence on this point is unsatisfactory. I deduce that - (though not always) - the periods were long in the aggregate, but cannot have been continuous - see ante paragraph 19 (i) and (vii). [Back] Note 13 Equally, to characterize the instances I have given and other similar ones that could be thought of, as cases of "torture" is to misapply the latter term which is an expression having its own proper sphere. It would also be to abolish the distinction between torture and inhuman treatment which Article 3 (art. 3) of the Convention specifically makes. Of course all torture is "inhuman" but not all inhuman treatment involves or amounts to torture. [Back] Note 16 The principal dictionaries I have consulted are the Shorter Oxford ("shorter" only than the full Oxford in several volumes, and itself running to 2,500 pages); the superlative American Random House Dictionary of the English Language - probably the best one-volume English Dictionary extant; Webster's Third International; and, in the popular category, Professor Garmonsway's excellent Penguin English Dictionary. [Back] Note 17 Speaking of persons, not actions, the dictionaries use such descriptions as "callous", "unfeeling", "destitute of natural kindness or pity", "lacking in the normal human qualities of sympathy, pity, warmth, compassion or the like". But the absence of such feelings, natural enough in the circumstances of the present case, does not suffice of itself to make the acts or treatments involved "inhuman", - and it is the quality of these that must be looked to. Other lines of definition, such as "not of or like the human race" and "not of the ordinary human type", are question-begging and evocative of a smile - remembering Burns (see end of paragraph 22 supra). [Back] Note 18 Literally, "degraded" (de-graded) means reduced to a lower grade, rank, position or status; but the relevant meanings in the present context, as given in the dictionaries (see n. 15 supra) would be to "lower in estimation, character or quality" (Shorter Oxford); to "lower in dignity or estimation; bring into contempt" (Random House). Other descriptions used are "to debase" (ibid), "to humiliate" (Penguin). The relevant notions here are clearly those of humiliation, bringing into contempt, loss of esteem, and debasement, presumably from status as a human being. [Back] Note 20 Prefacing the passage from paragraph 167 of the Judgment quoted first in my paragraph 34, and which sets out the Court's notion of what is not torture, are some lines qualifying this by an "although" clause, and stating that although the object of the five techniques was "the extraction of confessions, the naming of others and/or information, and although they were used systematically", they did not cause the necessary intensity of suffering, etc. This qualification, in slightly different terms, also precedes the second passage quoted in my same paragraph. [Back] Note 21 "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." [Back]
Note 3 A convenient American locution for describing "an issue which during the course of a trial or pending an appeal has ceased to have practical importance" - (Radin's Law Dictionary, Oceana Publications, New York, 2nd Edn. 1970, p. 211); and see correspondingly the definition given in n. 1 on p. 86 of my separate opinion in the Northern Cameroons case before the International Court of Justice (I.C.J. Reports 1963, at p. 97). [Back]
Note 5 "To ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention [my italics], there shall be set up: (1) A European Commission of Human Rights hereinafter referred to as 'the Commission'; (2) A European Court of Human Rights hereinafter referred to as 'the Court'." [Back]
Note 6 This is an over-simplified statement of what can in fact be a complicated matter, and needs qualification in various respects. However, this is not the place for any exposition of the law on the subject. [Back]
Note 7 This was the report of the Committee set up in August 1971 by the United Kingdom Home Secretary, under the chairmanship of Sir Edmund Compton, G.C.B., K.B.E., to consider allegations of ill-treatment of detainees - see Judgment, paragraph 99. 6a For reasons of convenience the quotations which I give are those provided by the Commission. There is some obscurity as to the exact source from which the Commission is itself quoting - but there seems to be no doubt that as given on p. 247 they do reproduce the Compton formulation. [Back]
Note 8 To give examples of figurative use within most people's experience: - One hears it said "I call that inhuman", the reference being to the fact that there is no dining-car on the train. "It's degrading for the poor man", one hears with reference to an employee who is being given all the unpleasant jobs. "It's absolute torture to me", - and what the speaker means is having to sit through a boring lecture or sermon. There is a lesson to be learnt here on the potential dangers of hyperbole. [Back]
Note 9 It is fairly clear that all five techniques could not have been employed simultaneously on the same person, though two or three of them might have been combined in that sense. What the Judgment is actually referring to is the fact that each of the individuals concerned was subjected in one way or another and at one time or another, to all five techniques and not only to one or two. [Back]
Note 11 The evidence on this point is unsatisfactory. I deduce that - (though not always) - the periods were long in the aggregate, but cannot have been continuous - see ante paragraph 19 (i) and (vii). [Back]
Note 13 Equally, to characterize the instances I have given and other similar ones that could be thought of, as cases of "torture" is to misapply the latter term which is an expression having its own proper sphere. It would also be to abolish the distinction between torture and inhuman treatment which Article 3 (art. 3) of the Convention specifically makes. Of course all torture is "inhuman" but not all inhuman treatment involves or amounts to torture. [Back]
Note 16 The principal dictionaries I have consulted are the Shorter Oxford ("shorter" only than the full Oxford in several volumes, and itself running to 2,500 pages); the superlative American Random House Dictionary of the English Language - probably the best one-volume English Dictionary extant; Webster's Third International; and, in the popular category, Professor Garmonsway's excellent Penguin English Dictionary. [Back]
Note 17 Speaking of persons, not actions, the dictionaries use such descriptions as "callous", "unfeeling", "destitute of natural kindness or pity", "lacking in the normal human qualities of sympathy, pity, warmth, compassion or the like". But the absence of such feelings, natural enough in the circumstances of the present case, does not suffice of itself to make the acts or treatments involved "inhuman", - and it is the quality of these that must be looked to. Other lines of definition, such as "not of or like the human race" and "not of the ordinary human type", are question-begging and evocative of a smile - remembering Burns (see end of paragraph 22 supra). [Back]
Note 18 Literally, "degraded" (de-graded) means reduced to a lower grade, rank, position or status; but the relevant meanings in the present context, as given in the dictionaries (see n. 15 supra) would be to "lower in estimation, character or quality" (Shorter Oxford); to "lower in dignity or estimation; bring into contempt" (Random House). Other descriptions used are "to debase" (ibid), "to humiliate" (Penguin). The relevant notions here are clearly those of humiliation, bringing into contempt, loss of esteem, and debasement, presumably from status as a human being. [Back]
Note 20 Prefacing the passage from paragraph 167 of the Judgment quoted first in my paragraph 34, and which sets out the Court's notion of what is not torture, are some lines qualifying this by an "although" clause, and stating that although the object of the five techniques was "the extraction of confessions, the naming of others and/or information, and although they were used systematically", they did not cause the necessary intensity of suffering, etc. This qualification, in slightly different terms, also precedes the second passage quoted in my same paragraph. [Back]
Note 21 "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." [Back]