Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Ireland v. the United Kingdom (revision) – 5310/71
Judgment 20.3.2018 [Section III]
Article 33
Inter-State application
RULE 80 OF THE RULES OF COURT
Request for revision of a judgment
Alleged new fact of no decisive influence on findings in the original judgment: request for revision dismissed
Facts – In its judgment Ireland v. the United Kingdom (5310/71, 18 January 1978) the Court held, in the context of the crisis in Northern Ireland marked by terrorism and civil disorder, that the authorities’ use of the five techniques of interrogation in 1971 constituted a practice of inhuman and degrading treatment, in breach of Article 3, and that the said use of the five techniques did not constitute a practice of torture within the meaning of this Article.
On 4 June 2014 the Irish television network 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 recently become available from the United Kingdom archives.
On 4 December 2014 the applicant Government informed the Court that documents had come to their knowledge, which were not known by the Court at the time of the judgment and which 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. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court on the following two grounds:
– firstly, that a psychiatric expert called by the respondent Government in the original proceedings misled the Commission about the severe and long-term effects of the five techniques, and,
– secondly, that the then respondent Government withheld important information in respect of these techniques.
Law – Rule 80 of the Rules of Court: The possibility of revision introduced by the Rules of Court was an exceptional procedure. Requests for revision of judgments were therefore to be subjected to strict scrutiny.
(a) Whether the six-month time-limit laid down in Rule 80 § 1 of the Rules of Court has been complied with – The respondent Government had submitted that the applicant Government had received certain important documents even before June 2014. They argued, firstly, that the six-month time-limit for a revision request started running from the date on which the applicant Government could reasonably have known the new facts and, secondly, that facts ascertainable from publicly accessible sources were to be treated as known.
As regards a separate requirement of Rule 80 § 1, namely whether the new fact “could not reasonably have been known” to the party seeking revision, it related 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. However, having regard to the exceptional nature of the revision procedure, which called the final character of judgments of the Court into question, it could be argued that once aware of possible grounds for revision a party had a certain duty of diligence and thus had to take reasonable steps to ascertain whether such grounds actually existed, in order to put the Court in a position to rule on the matter without delay (see Grossi and Others v. Italy (revision), 18791/03, 30 October 2012).
The present request for revision was of a complex nature: the circumstances transpired from a significant number of documents which, analysed together, led the applicant Government to the conclusion that there was a basis for seeking revision. The applicant Government had not remained passive when they received documents potentially disclosing new facts before June 2014. Those documents had been submitted for review by counsel who had advised that they were not by themselves sufficient to merit a request for revision. As to whether they were under a duty to do more, it should be noted that the relevant documents were not readily available. The applicant Government would have had to carry out extensive research among a broad range of potentially relevant documents in the United Kingdom’s national archives.
In sum, the applicant Government had not “acquired knowledge” of any new facts before June 2014. The Court also doubted whether the applicant Government could reasonably have “acquired knowledge” of the documents containing the facts relied on in their revision request before June 2014. Therefore, the request for revision had been submitted within the six month time-limit laid down in Rule 80 § 1 of the Rules of Court.
(b) Whether there were facts “which by [their] nature might have a decisive influence” on the judgment of 18 January 1978
(i) The scope of the revision request – Though the applicant Government were not seeking to modify the Court’s finding of a violation of Article 3, but the reasons on which that finding was based, the revision sought related to an important finding in the original judgment set out in two separate points of its operative part and constituted matters which could be the subject of a revision request.
(ii) Whether the documents submitted by the applicant Government demonstrate new facts – Where documents were submitted in support of a revision request it had to be assessed whether they provided sufficient prima facie evidence in support of the party’s version of the events. In order to make that assessment the Court had regard to the conduct of the original proceedings and in particular to the manner in which the facts of the case were established.
Concerning the documents submitted in support of the first ground for revision, the Court doubted whether the documents contained sufficient prima facie evidence of the alleged new fact that the psychiatric expert had misled the Commission as to the serious and long-term effects of the five techniques. As to the second ground of revision, while a number of documents submitted in support demonstrated that the then Government of the United Kingdom wanted to avoid any detailed inquiry into the use of the five techniques, the relevant facts as such were not “unknown” to the Court at the time of the original proceedings. In the original judgment, the Court had regretted the attitude of the respondent Government which had not always afforded it the assistance desirable.
(iii) Whether the alleged new facts were of “decisive influence” – In order for revision to be granted, it had to be shown that there was an error of fact and a causal link between the erroneously established fact and a conclusion which the Court had drawn. It had to 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. In contrast, where doubts remained as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty had to prevail and the final judgment had to stand.
Having regard both to the wording of Rule 80 and to the purpose of revision proceedings, a request for revision was not meant to allow a party to seek a review in the light of the Court’s subsequent case-law. Consequently, the Court made its assessment in the light of the case-law on Article 3 as it stood at the time.
In the original proceedings the Commission had highlighted there were other experts who considered that the after-effects of the application of the five techniques were rather minor and did not produce long-term effects. Nonetheless, the uncertainty in that respect had not prevented it from concluding that the use of the five techniques amounted to torture within the meaning of Article 3.
Turning to the original judgment, the issue of possible long-term effects of the use of the five techniques had not been mentioned in the legal assessment. It was considered difficult to argue that the original judgment had attached any particular importance to the uncertainty as to their long-term effects, let alone considered this to be a decisive element for coming to another conclusion than the Commission. As followed from the reasoning of the original judgment, the difference between the notions of “torture” and “inhuman and degrading treatment” was a question of degree depending on the intensity of the suffering inflicted. Necessarily, the assessment of that difference in degree depended on a number of elements.
Without an indication in the original judgment that, had it been shown that the five techniques could have severe long-term psychiatric effects, that one element would have led the Court to the conclusion that the use of the five techniques had occasioned such “very serious and cruel suffering” that they had to be qualified as a practice of torture, the Court could not conclude that the alleged new facts might have had a decisive influence on the original judgment.
Conclusion: request for revision dismissed (six votes to one).
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