European court shies away from torture finding in ‘hooded men’ case

Analysis: Asking ECHR to revisit judgment it made decades ago raised difficulties


The European Court of Human Rights has said new evidence provided by Ireland does not justify altering a 1978 judgment about inhuman treatment of detainees in Northern Ireland.

The “hooded men” case taken by Ireland against the UK at the European Court of Human Rights (ECHR) was important not just because it involved claims of torture by state agents, but also because it was a case taken by one state against another.

The original 1978 judgment was the first ever by the Strasbourg court in a case taken by one signatory to the European Convention of Human Rights, against another.

As noted by Irish judge Síofra O’Leary in her dissenting judgment yesterday, “interstate applications are rare and sensitive”.

In such cases, it should not be an instance of one state seeking to defend itself against accusations from another, but rather that both co-operate before the court to ensure that the rights outlined in the convention are upheld, for the good of citizens across Europe.

As the court itself has noted about interstate applications, it is not an attempt by one party to enforce its rights but “an action against an alleged violation of the public order of Europe”.

The 1978 ruling was a landmark one where the court first defined torture as mentioned in Article 3 of the convention, which prohibits torture and “inhuman or degrading treatment or punishment”.

It observed that there was a difference between torture, on the one hand, and inhuman and degrading treatment, and decided the case it was considering, involving the interrogation of 14 interned men in Northern Ireland in 1971, involved inhuman and degrading treatment, but not torture.

In 2014 the Irish Government asked the court to revise its ruling, on the grounds that newly-released documents in the UK archives showed that the UK had not fully disclosed all it knew to the Strasbourg court in the 1970s, and that the medical evidence given to the court in relation to the long-term effects on the 14 men was misleading, and underplayed the long-term damage.

Yesterday six of the seven-member Chamber decided not to revise the original ruling. The original 17-judge court had, it noted, expressed misgivings about the level of co-operation it received from the UK, and had known that the interrogation methods used were approved at the “highest level”.

It also said that it did not necessarily believe that the judges who made the original decision would have been decisively swayed by new evidence as to the long-term consequences of what was done to the men.

The original court decided that the men’s treatment did not involve “suffering of the particular intensity and cruelty implied by the word torture”. It voted 13 votes to four, in the Grand Chamber, to rule out torture. It wished to preserve the word torture for the gravest cases.

Asking a court to revise a ruling made decades earlier raises obvious difficulties in relation to the certainty of a court’s rulings. The Strasbourg court agreed to consider the Irish application, but has rejected it.

Judge O’Leary argued the Chamber should have given more weight to the fact this was an interstate case that involved less than full disclosure by one party. In her dissenting judgment she said it was the ECHR and the Convention, and not the UK, that were “primarily under scrutiny” in the case.

It was, she said, difficult to avoid the impression that the court “sought to shelter itself” behind the legal certainty principle. This, she said, would “discourage” other states from taking interstate actions, and “do much to encourage future” states that find themselves the subject of such actions.

The convention was drafted in the 1950s by the then newly-formed Council of Europe and the signatories include all major European states. Belarus is not a signatory.