Last Updated on November 2, 2019 by LawEuro
Overview of the Case-law of the ECHR 2018
Request for revision of a judgment (Rule 80 of the Rules of Court)
Ireland v. the United Kingdom[196] concerned the interpretation and application of Rule 80 of the Rules of Court in the context of a request for revision of a judgment of the Court in an inter-State case.
In its judgment of 18 January 1978 in Ireland v. the United Kingdom[197], the Court ruled that the respondent Government’s use of five specific interrogation techniques against fourteen detainees had amounted to a practice of inhuman and degrading treatment in breach of Article 3 of the Convention. However, and contrary to the findings of the Commission, it concluded that their use had not given rise to a practice of torture (see §§ 165-68 of the original judgment, and, as regards the nature of the interrogation techniques, §§ 96-104 and 106-07). In a request filed with the Court on 4 December 2014 pursuant to Rule 80 of the Rules of Court[198], the applicant Government sought the revision of the judgment, but only in so far as the Court had declined to characterise also as torture the application of the five techniques to the detainees. They relied on a television report of 4 June 2014 that had drawn attention to the factual content of documentary materials which, had it been known to the Court at the relevant time, would, in their view, have had a decisive influence on the manner in which the Court had treated the issue of torture. In essence, the applicant Government contended that the materials which had been uncovered revealed, firstly, that a Dr L. called by the respondent Government to give evidence before the Commission had misled the latter regarding the long-term effects of the above-mentioned five techniques and, secondly, that the then respondent Government had adopted a clear policy of withholding from the Convention institutions information regarding the use of these techniques.
The revision judgment is noteworthy for a number of reasons.
In the first place, and in contrast to other revision requests, the instant request was not aimed at modifying the Court’s finding on the merits. The applicant Government asserted that the new facts that had come to light required a modification of the reasons on which the finding of a breach of Article 3 was based to the effect that the use of the five techniques should be qualified as inhuman and degrading treatment as well as torture. The Court accepted that the issue raised could be the subject of a revision request, noting, among other things, the distinction it has drawn in its case-law between torture and other forms of conduct proscribed by Article 3.
Secondly, this is the first time that the Court has had to consider and apply its case-law under Rule 80 in the context of a revision request concerning a judgment delivered in an inter-State case. It is also rare for a request to be based on facts which, as with the instant request, emerged (long) after the delivery of a judgment.
Thirdly, the Court premised its analysis of the request on the fact that revision is an exceptional procedure, bearing in mind the final character of the Court’s judgments. It underscored that requests for revision must therefore be subjected to strict scrutiny. That view informed its approach to the treatment of the two essential requirements determining the admissibility of a revision request, namely “whether the documents submitted by the applicant Government disclose[d] new facts ‘which by their nature might have a decisive influence’ and whether the revision request has been submitted within the six-month time-limit”.
The Court accepted that the revision request, which had been submitted on 4 December 2014, complied with the six-month requirement contained in Rule 80 § 1, since it had been made within six months after the date the applicant Government had acquired knowledge of the new facts relied on, that is, 4 June 2014, the date of the television broadcast. It is noteworthy that the new facts relied on by the applicant Government emerged after the delivery of the original judgment. In that connection, the Court observed that it could be argued that once aware of possible grounds for revision a party had to take reasonable steps to ascertain whether such grounds actually exist, in order to put the Court in a position to rule on the matter without delay. It is of interest that the Court acknowledged that the applicant Government had received prior to the date of the broadcast a number of relevant documents lodged with the United Kingdom’s national archives potentially disclosing new facts. It observed, however, that the applicant Government had not remained passive following receipt of those documents and could not be criticised in the circumstances for a lack of diligence in following them up. The Court, notwithstanding the contrary view expressed by the respondent Government, doubted whether in the circumstances it could be said that the applicant Government could reasonably have acquired knowledge of the documents containing the facts relied on before 4 June 2014.
The key issue was whether the documents submitted by the applicant Government demonstrated any new facts and, if so, whether they might by their nature have had a decisive influence on the findings in the original judgment. The Court’s analysis of the documents, viewed against the background of the manner in which the facts were established, led it to conclude that, as regards the testimony of Dr L. in the proceedings before the Commission (the first ground for revision), they did not provide sufficient prima facie evidence of the new fact alleged, namely that he had misled the Commission. As to the documents submitted in support of the second ground for revision (see above), the Court found that the materials relied on did not demonstrate facts that were “unknown” to the Court when the original judgment was delivered.
However, it is noteworthy that the Court went on to find that, even assuming that the documents submitted in support of the first ground for revision demonstrated the facts alleged by the applicant Government, the revision request could not succeed. The following considerations were central to reaching this conclusion (see paragraph 122).
“… legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia, that where a court has finally determined an issue, its ruling should not be called into question (see Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 54, 15 June 2017). Subjecting requests for revision to strict scrutiny, the Court will only proceed to the revision of a judgment where it can be demonstrated that a particular statement or conclusion was the result of a factual error. In such a situation, the interest in correcting an evidently wrong or erroneous finding exceptionally outweighs the interest in legal certainty underlying the finality of the judgment. In contrast, where doubts remain as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.”
And with reference to the development of the notion of torture in the case-law since the date of the original judgment (see paragraph 125):
“… Having regard both to the wording of Rule 80 and to the purpose of revision proceedings, a request for revision is not meant to allow a party to seek a review in the light of the Court’s subsequent case-law (compare Harkins, cited above, § 56, in which the Court found that a development in its case-law could not by itself be considered as ‘relevant new information’ for the purpose of Article 35 § 2 (b) of the Convention). Consequently, the Court has to make its assessment in the light of the case-law on Article 3 of the Convention as it stood at the time.”
The Court noted that the findings contained in the original judgment were not influenced by the possible long-term effects the application of the five techniques may have had on the health of the detainees. That judgment was silent on this matter. Rather, the Court had placed emphasis on the distinction between, on the one hand, torture and, on the other hand, inhuman and degrading treatment in terms of the intensity of the suffering inflicted. The Court found in the original judgment 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 occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. The distinction between “torture” and “inhuman and degrading treatment” was a question of degree, to be assessed in the light of various elements. For the Court in the revision judgment (see paragraph 135)
“[w]ithout 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 alleged new facts might have had a decisive influence on the original judgment.”
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196. Ireland v. the United Kingdom, no. 5310/71, 20 March 2018.
197. Ireland v. the United Kingdom, 18 January 1978, Series A no. 25.
198. Rule 80 § 1 of the Rules of Court provides as follows: “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.”
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