European Court of Human Rights

THIRD SECTION

CASE OF IRELAND v. THE UNITED KINGDOM

(Application no. 5310/71)

JUDGMENT

(Revision)

STRASBOURG

20 March 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ireland v. the United Kingdom (request for revision of the judgment of 18 January 1978),

Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,

Helen Keller,
Dmitry Dedov,

Síofra O'Leary, judges,
Robert Reed, ad hoc judge,
and Stephen Phillips, Section Registrar,

PROCEDURE

THE REQUEST FOR REVISION

I. THE PROCEEDINGS BEFORE THE COMMISSION

A. The hearings before the Commission

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

B. The report of the Commission

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

"3. ESTABLISHMENT OF THE FACTS

The cases of T.13 and T.6.

General remarks

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

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

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

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

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

Course of events

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

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

a. Wall-standing - the witnesses demonstrated how they were spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers (the stress position). They were forced to remain in this position. The exact length of time during which the witnesses were required to stand could not be established. Both witnesses said that they lost their sense of time but that it must have been many hours. The Compton Committee while describing the position as being a different one, found that T.13 had been against the wall during periods totalling 23 hours, and T.6 29 hours.

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

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

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

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

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

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

Physical and mental effects resulting from the use of the techniques

(i) Physical effects

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

(ii) Mental effects

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

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

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

Findings of the Commission

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

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

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

4. OPINION OF THE COMMISSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

II. THE COURT'S JUDGMENT OF 18 JANUARY 1978

"III. ALLEGATIONS OF ILL-TREATMENT

A. Introduction

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

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

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

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

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

94. In order to protect the identity of certain persons, notably witnesses, the published version of the Commission's report (see paragraph 7 above) incorporated changes to the original text; these changes mainly took the form of designating such persons by letters and/or figures.

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

(1) the unidentified interrogation centre or centres;

(2) Palace Barracks, Holywood;

(3) Girdwood Park Barracks;

(4) Ballykinler Regional Holding Centre; and

(5) various other miscellaneous places.

B. The unidentified interrogation centre or centres

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

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

(a) wall-standing: forcing the detainees to remain for periods of some hours in a 'stress position', described by those who underwent it as being 'spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers';

(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

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

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

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

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

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

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

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

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

He further declared:

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

As foreshadowed in the Prime Minister's statement, directives expressly prohibiting the use of the techniques, whether singly or in combination were then issued to the security forces by the Government (see paragraph 135 below).

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

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

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

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

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

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

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

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

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

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

"AS TO THE LAW

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

...

B. Questions of proof

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

161. The Commission based its own conclusions mainly on the evidence of the one hundred witnesses heard in, and on the medical reports relating to, the sixteen 'illustrative' cases it had asked the applicant Government to select. The Commission also relied, but to a lesser extent, on the documents and written comments submitted in connection with the '41 cases' and it referred to the numerous 'remaining cases' (see paragraph 93 above). As in the 'Greek case' (Yearbook of the Convention, 1969, The Greek case, p. 196, para. 30), the standard of proof the Commission adopted when evaluating the material it obtained was proof 'beyond reasonable doubt'.

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

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

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

C. Questions concerning the merits

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

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

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

1. The unidentified interrogation centre or centres

(a) The 'five techniques'

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

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

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

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

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

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

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

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

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

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

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

"FOR THESE REASONS, THE COURT

I. ON ARTICLE 3

...

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

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

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

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

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

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

21. In support of the first ground of their revision request the applicant Government submitted the documents listed below. Regarding the context from which these documents stem, the Court observes that the men who had been subjected to the five techniques had brought civil proceedings for damages before the courts in Northern Ireland, which were all terminated by way of settlements (see the report of the Commission, at paragraph 13 above, and the original judgment, § 107).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The document goes on to say that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[ ... ]

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

Brian Faulkner Graham Shillington

The Police AuthoritySuperintendent Reginald Speers

The Ministry of Home AffairsThe MOD

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

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

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

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

"... expressed disappointment that we were not making Ministers available."

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

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

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

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

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

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

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

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

"It is my view (confirmed by Brian Faulkner before his death) that the decision to use methods of torture in Northern Ireland in 1971/72 was taken by Ministers - in particular Lord Carrington, then Secretary of State for Defence.

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

THE LAW

"A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment."

I. THE PARTIES' SUBMISSIONS

A. The respondent Government

B. The applicant Government

II. THE COURT'S ASSESSMENT

A. General principles

B. Application of these principles to the present case

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

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

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

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

(a) The scope of the revision request

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

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

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

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

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

3. Conclusion

FOR THESE REASONS, THE COURT

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

Done in English, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge O'Leary is annexed to this judgment.

H.J.
J.S.P.

DISSENTING OPINION OF JUDGE O'LEARY

"Without an indication in the original judgment that, had it been shown that the five techniques could have severe long-term psychiatric effects, this one element would have led the Court to the conclusion that the use of the five techniques occasioned such 'very serious and cruel suffering' that they had to be qualified as a practice of torture, the Court cannot conclude that the new facts might have had a decisive influence on the original judgment."[3]

A. Preliminary remarks

"It may well be that the conduct complained of in Ireland v. the United Kingdom [...] would now be held to fall within the definition in Article 1 of the Torture Convention."[4]

"[...] it seems likely to the [High Court of Justice in Northern Ireland] that if the events here at issue were to be replicated today the outcome would probably be that the ECtHR would accept the description of torture in respect of these events as accurate. [...] These points support a conclusion that the sort of activity with which this case is concerned has a larger dimension than an ordinary criminal offence and would amount to the negation of the very foundations of the Convention."[5]

"not the exercise of a right of action to enforce the applicant state's rights but an action against an alleged violation of the public order of Europe."[9]

B. The original proceedings and the original judgment

1. Time-line of the original proceedings

2. Obtainment and assessment of evidence and establishment of facts

"Yes, exactly the same as here. These reports are the ones that are sent to the Crown."[27]

"[the Court] examines the material before it, whether originating from the Commission, the Parties or other sources and, if necessary, obtains material proprio motu".[31]

"The Court would be empowered to obtain, if necessary proprio motu, additional evidence (Rule 38 of the Rules of Court). However, such a course would oblige the Court to select a series of further 'illustrative' cases and to hear a substantial number of further witnesses, failing which it might as well, as the delegates of the Commission emphasised, arrive at extremely tenuous conclusions. It is not essential to re-open the investigation in this way in the present case. ... the findings made in connection with the five techniques [...] 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."[33]

"Certain important facts relating to the five techniques, namely that they were authorised at a high level, that they consisted in a combination of measures and caused both physical and mental suffering to the detainees subjected to them, were not contested in the original proceedings and are not in dispute now."

3. Duty to cooperate

"In cases where proceedings had been instituted against the respondent Government, the facts must have been investigated and evidence obtained. Nevertheless, this evidence had not been made available to the Commission."[36]

"The Court regrets this attitude [...]; it must stress the fundamental importance of the principle, enshrined in Article 28, sub-paragraph (a) in fine, that the Contracting States have a duty to cooperate with the Convention institutions."[37]

"[S]uch proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similarly unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account."[39]

C. Revision requests

- Discovery of a fact which might by its nature have a decisive influence.[40]

- That fact was unknown to the Court at the time of the original judgment.

- That fact could not reasonably have been known to the applicant Government at that time.

- The applicant Government must request the Court to revise the original judgment within a period of six months after it acquired knowledge of the fact.

D. Relevant general principles derived from the Court's case-law

1. On the notion of an administrative practice

"an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system."[45]

2. On the respective roles of the Commission and the Court regarding fact-finding

3. On the relevance of the duty to disclose generally, in revision and in interstate cases

"[...] the Court would emphasise that Convention proceedings do not in all cases lend themselves to rigorous application of the principle of affirmanti incumbit probatio (he who alleges something must prove that allegation). [...] States should furnish all necessary facilities to make possible a proper and effective examination of applications [...]. It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent State has access to information capable of corroborating or refuting these allegations. A failure on a Government's part to submit such information as is in their hands without a satisfactory explanation may not only reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (former Article 28 § 1 (a)), but may also give rise to the drawing of inferences as to the well-foundedness of the allegations. In this respect, the Court reiterates that the conduct of the parties may be taken into account when evidence is being obtained (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161)."[55]

"It is true that it cannot be said that the Government failed to react with the required diligence in submitting documents once they were explicitly identified and requested by the Commission. However, the Court also considers that the Government's passive attitude in producing documents which were in their possession and which were unquestionably of fundamental importance for elucidating disputed facts, and the Government's failure to submit these documents of their own motion at a much earlier stage in the proceedings, was at best very unhelpful."[56]

"it has never been [the Court's] purpose to borrow the approach of the national legal systems that use that standard in criminal cases. The Court's role is to rule not on guilt under criminal law or on civil liability but on Contracting States' responsibility under the Convention. The specificity of its task under Article 19 of the Convention - to ensure the observance by the High Contracting Parties of their engagements to secure the fundamental rights enshrined in the Convention - conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake."[65]

E. Examination of the revision judgment

1. First limb relating to the medical evidence

(a) Medical evidence - new facts?

"This requirement relates to situations in which the new fact forming the basis for the revision request could already have been known to the party before the delivery of the original judgment, not, as in the present case, long after the conclusion of the original proceedings."[67]

(b) Medical evidence - decisive influence

"it must be clear from the reasoning contained in the original judgment that the Court would not have come to a specific conclusion had it been aware of the true state of facts."[73]

"the [Commission and Court] definitions of torture concentrate on the effects of the acts in question on the victim."[77]

2. Second limb relating to the non-disclosure evidence

(a) Non-disclosure evidence - new facts?

"there could be no serious argument that the court is obtaining a full, as against a partial, picture of events. Self-evidently, there will have been, and perhaps still are, many other documents which the court has not seen."

(b) Non-disclosure evidence - decisive influence

F. Concluding remarks