ECtHR: Application to revise ‘Hooded Men’ judgment is dismissed

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The request, based on two grounds of revision, was dismissed by 6-1, with Irish judge Síofra O’Leary providing a dissenting opinion in which she said that both limbs of the revision request provided new facts.

Grounds relied on by Ireland

The majority of files relating Ireland v the United Kingdom were released into the public archives pursuant to the “thirty years rule” between 2003 - 2008.

Ireland submitted that, subsequent to the broadcast of RTÉ’s programme “The torture files” in June 2014, they obtained a large number of documents from RTÉ which were reviewed in order to ascertain whether they disclosed grounds for revision of the Ireland v United Kingdom case.

They maintained that the documents demonstrated that the UK 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 1978 judgment.

Ireland submitted that the documents submitted disclosed two grounds for revision:

Ireland submitted that the new facts might have had a decisive influence as they related to the long term effects of the five techniques, which was a central element to the Court’s assessment under Article 3 of the Convention.

Ireland submitted that it was likely that the Court would have come to the conclusion that the application of the five techniques amounted to torture and not “only” to inhuman and degrading treatment, if the “new facts” were disclosed to the Court at the time.

Consideration by the Court

The Court emphasised the principle of finality of judgments in Article 44 of the Convention, and that the possibility of revision introduced by the Rules of Court should be considered an exceptional procedure.

As such, requests for revision should be subjected to strict scrutiny (McGinley and Egan v the United Kingdom (revision), nos. 21825/93 and 23414/94, § § 35 - 36, ECHR 2000 - I), Pardo v France (revision – admissibility), 10 July 1996, § 21, Reports of Judgments and Decisions 1996‑III; and Gustafsson v. Sweden (revision – merits), § 25, Reports 1998-V considered).

The Court said that whether the facts on which a request for revision is based “might by nature have a decisive influence”, they have to be considered in relation to the decision of the Court.

Considering whether Ireland submitted the request for revision within the six month time-limit laid down in Rule 80 § 1 of the Rules of Court, the Court was satisfied that Ireland could not ‘reasonably have “acquired knowledge” of the documents containing the facts relied on in their revision request before the RTE broadcast of 4 June 2014’.

On the first ground of revision submitted by Ireland, the Court expressed doubts whether the documents submitted by Ireland contained sufficient prima facie evidence of the alleged new fact.

Considering whether there were facts which might have a decisive influence on the 1978 judgment, the Court emphasised that the original judgment did not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment – therefore the Court said it was difficult to argue that the original judgment attached any particular importance to long-term effects, or considered this to be a decisive element.

From the reasoning of the original judgment, ‘the difference between the notions of “torture” and “inhuman and degrading treatment” is a question of degree depending on the intensity of the suffering inflicted’. As such, the Court said that without an indication in the original judgment, that the element of severe long-term psychiatric effects, would have led to the conclusion that the five techniques 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.

Considering the documents submitted in support of the second ground, the Court said was not satisfied that they demonstrated facts which were “unknown” at the time of the original judgment.

The Court added that “Even assuming that the documents submitted in support of the assertion the Commission was misled as regards the effects of the five techniques, the Court considers that it cannot be said that it might have had a decisive influence on the Court’s finding in the original judgment that the use of the five techniques constituted a practice of inhuman and degrading treatment in breach of Article 3 of the Convention but did not constitute a practice of torture within the meaning of that provision”.

As such, Ireland’s request for revision was dismissed by six votes to one.

Dissenting opinion of Judge Síofra O’Leary

In his dissenting opinion, Judge O’Leary criticised the majority opinion for being “not able or willing” to see that “it was the Court and the Convention system and not the respondent State which was primarily under scrutiny in the context of this revision request”.

According to Judge O’Leary, both limbs of the revision request reveal new facts which were unknown both to the Court and Ireland when the original judgment was handed down, namely:

Emphasising that the UK had not contested the unanimous Commission finding of torture, Judge O’Leary considered that the new facts “might or would have had a decisive influence when the Court considered whether it should confirm or overturn” the Commission’s finding of torture.