SEPARATE OPINION OF JUDGE O ’ DONOGHUE

On the findings of the Court summarized at pp. 94 to 96 of the judgment I share the unanimous views of my colleagues as well as the majority conclusion at no. 3. It is, however, with profound regret that I must record disagreement with the majority opinion at nos. 4, 5, 7, 9, 13, 15 and 17, and state the reasons in this separate opinion.

The report of the Commission covers 502 pages and was produced after a lengthy inquiry. It is to be commended for its comprehensive review of the facts. This is all the more praiseworthy to the authors when consideration is given to the sad lack of cooperation shown by the respondent Government to the Commission and its delegates. I do not go beyond the narrative of the facts stated in the report, but set down my reasons where I differ from the conclusions of the Commission.

In noting the development of the crisis up to 1969 the report mentions the resentment shown by the majority against proposed concessions to the minority and which took a somewhat savage form.

The report at p. 135 [*] finds three salient facts:

(i) that in 1968-69 the IRA was virtually non-existent;

(ii) that the Civil Rights movement begun in 1968 and developed in 1969, was solely concerned with the civil rights of the people in Northern Ireland;

(iii) the Civil Rights movement produced a violent and well organized reaction against the minority and the Government when the latter appeared to concede reforms to the minority.

At pp. 169-173 there is described the attack on a peaceable march set upon at Burntollet Bridge, the burning out of hundreds of the minority living in Bombay Street, and the complete destruction of 30 licensed premises and the partial demolition of 46 similar premises, - all owned by members of the minority. At this juncture there was no forceful provocation on the minority side. Again it will be found at pp. 170-171, a reference to the series of explosions at electricity stations and water reservoirs early in 1969, and to the fact that although these outrages were at first attributed by the authorities to the IRA, this conclusion was found to be erroneous and terrorists on the majority side were held to have been responsible. I find that the report fails to place in its true perspective the weight and extent of the violence in 1968-69, which came from the majority terrorists.

The publication of the Hunt report in 1969, involving the disbandment of the Special Constabulary, also led to a violent reaction on the part of the majority and is outlined at p. 175 of the report of the Commission. The formation early in 1972 of the Ulster Vanguard Movement as a para-military body estimated to have numbered 50,000 after its inception, with threats expressed to liquidate the minority, conveys some idea of the strength and menace to peace from this source (p. 191).

I consider that the foregoing events have not been appraised correctly in the report so as to give an accurate picture of the respective dangers to peace in 1968-1971 coming from the two communities in contention. The defenceless plight of the minority furnished ample excuses for the IRA to become reactivated, and the comment in the report that the several happenings noted therein had a disenchanting effect on the peaceable members of the minority strikes me as a somewhat bland euphemism. One must remember that the Cameron report noted at p. 165 of the Commission ’ s report sheds a flood of informative light on the plight of the minority community for almost half a century, and the cloud of discrimination which enveloped it. Again the comment of the Commission (p. 213) that there was an element of inherent bias in the whole political system in Northern Ireland in favour of one community retains a euphemistic flavour.

When the decision to introduce detention and internment was taken, it was stated to be a temporary measure against persons suspected of terrorist activities against whom evidence was not available. Persons were arrested under the Operation Demetrius and even detained on the basis of inadequate or inaccurate information. Furthermore, no reasons were given for detention of those taken into custody and in the early period no effective machinery for review was available to the detainee. I am of opinion that the deplorable effect on the peaceable members of the minority of this sweeping-up operation has not been fully appreciated.

I find it devoid of any realistic approach to the true situation to see expressions again in the Commission ’ s report as to their surprise at the effect on the minority community - comprising practically in all one-third of the whole population - of the varied steps to deal ostensibly with the IRA. It is difficult, and has not been conveyed in the report, to describe the shocked reaction, far beyond the area of Northern Ireland , at the shooting down of thirteen civilians in Londonderry in January 1972. Military forces were responsible and suffered no loss.

When the Government decided that the situation in 1971 called for extraordinary steps, I am far from satisfied that there was a full review of the position in the light of all the events in the years 1968-1971. I am cognizant of the difficulties confronting the Government but I am unable to see how the enforcement of detention and internment could be justified when for a year and a half it was carried out against the minority community only without exposing the Government to a charge of discrimination. There was a disregard of the massive build-up of organized para-military bodies from majority sources and the extent of the threat to peace from such sources in the terror inflicted on the minority in 1968-69. These forces were capable of paralysing community services and did so at least on two occasions. I will advert again to the Government apprehension at the strength of these forces and their reluctance to assert the law. I see in the selectivity in the enforcement of internment until 1973 the continuance of that element of inherent bias in favour of one community. This hinges on the evidence taken on the discrimination issue under Article 14 (art. 14). There are many issues of fact in this entire case and the issue of discrimination is one of them. To attempt to answer or contradict the plain trend of the evidence submitted by the applicant Government to the Commission by proffering the testimony of witnesses sheltered and protected from observation or cross-examination falls far short of meeting the requirements of a thorough and even-handed inquiry into the facts. For this the respondent Government was responsible.

I am, therefore, obliged to conclude upon all the evidence in the report that the respondent Government was guilty of discrimination in its application of extrajudicial steps to deal with the crisis in 1971-1973.

The report (pp. 108-135 and 225-244) records the protracted process to devise a procedure to hear evidence under Article 3 (art. 3). It is for anyone to read these pages in order to see the marked and persistent reluctance on the part of the respondent Government to comply fully or at all in some instances with the directions of the Commission and the delegates. A great deal of Respondent ’ s evidence on the issues of fact under Article 3 (art. 3) should have been heard in Strasbourg or Belfast or elsewhere in Northern Ireland . Evidence on behalf of Respondent was heard in Northern Ireland during all the years covered by the inquiry on many aspects of the crisis by the many Commissions established by the Government such as the Cameron, Hunt, Scarman, Compton, Gardiner and Widgery tribunals. Again, there was no apparent difficulty in tendering evidence by State forces for the defence in Moore v. Shillington. This evidence was disbelieved by the Judge in that case and no appeal was taken against his judgment. Yet these witnesses were not produced before the delegates.

The value of hearing evidence in a local venue cannot be overestimated. As a member of the Sub-Commission in the Greek case, I visited some of the places of detention and heard the witnesses on complaints of ill-treatment inflicted on them in detention. No written description, however colourful, could have been as informative as the visit to Boubolinos Street in Athens . Yet no visit was made to Palace Barracks, Girdwood Park , Ballykinler or any of the other places used for detention. It would also have been instructive and illuminating to have seen the extent of the destruction throughout Belfast .

The claim that the respondent Government was to be the sole judge on matters claimed to involve security shows the extent to which it sought to dictate the manner in which and the extent to which evidence was to be vouchsafed to the delegates. At the end of p. 235, respondent Government claimed to instruct witnesses as to how they should answer questions. Can anyone express surprise that the applicant Government ’ s Attorney General described the proposals of the respondent Government as "outrageous" (p. 118)? I reject the claim of the respondent Government that arrangements could not have been made to have much of the evidence heard in the local venue, and I regard the claim as an effort to raise a smoke-screen to hamper the investigation.

Article 3 (art. 3)

The report devotes half of its content to the allegations as to breaches of Article 3 (art. 3) (pp. 221-473). Any one as a judge of fact can say whether and how far he or she can agree with the conclusions of the Commission. For my part I agree with the unanimous finding of the Commission that the use of the five techniques constituted "torture" in breach of the Convention. Careful consideration was given in the Greek case to the meaning to be given to the notion of "torture", "inhuman treatment" and "degrading treatment". Recognizing the difficulty, as the Court has discovered, to fashion a precise definition of these terms which would be of universal application, I take the view that the approach made by the Commission in the Greek case was a reasonable one in the light of a Convention which proclaims it is expressly designed to defend human rights (p. 377).

It must remain for any judicial body to say if the facts before it amount to torture, inhuman or degrading treatment, having regard to the entire circumstances of the case under investigation. One is not bound to regard torture as only present in a mediaeval dungeon where the appliances of rack and thumbscrew or similar devices were employed. Indeed in the present-day world there can be little doubt that torture may be inflicted in the mental sphere. Torture is, of course, a more severe type of inhuman treatment. No amount of careful consideration can alter my opinion that the approach of the Commission at p. 402 was the correct one. Accordingly, I conclude that the combined use of the five techniques constituted a practice of inhuman treatment and torture in breach of Article 3 (art. 3).

It must be emphasized that this finding by the Commission was a unanimous one arrived at after hearing many witnesses. The Court did not have the advantage of hearing any evidence from witnesses. Moreover, although the charges under Article 3 (art. 3) were vigorously contested by the respondent Government in the proceedings before the Commission, the finding against that Government by the Commission in its report has not been contested by the respondent Government before the Court. It must be stated again that, while the evidence of the applicant Government was quite properly subjected to rigorous cross-examination, the same attitude was not displayed to all the witnesses for the respondent Government. Here was a lamentable lack in the manner adopted in carrying out a searching and even-handed investigation.

While I accept the Commission ’ s conclusions in sub-paragraphs (1) and (2) noted at p. 473 of the report, I take a different view on the evidence in the report in respect of sub-paragraphs (3) and (4) on the same page. I regard it as absurd to hold that there was not constant and close communication at all relevant times between the numerous centres used for detention, including Palace Barracks, Girdwood Park , and Ballykinler. I adopt the meaning accorded in the Greek case to the terms "repetition of acts" and "official tolerance", and to the establishment of an "administrative practice", where such conditions were present. The repeated factual events in the above-named centres which went unchecked compel me to find on the merits a practice of inhuman treatment in breach of Article 3 (art. 3). This conclusion is not displaced but rather confirmed by the awards of compensation made in the majority of cases.

When I look at the evidence as to Girdwood Park and Ballykinler, where conditions prevailing in the detention centres were complained of, and see the coincidence of the happenings in these places with the remaining "illustrative" cases in some unknown interrogation centres in the autumn of 1971, it points clearly in my judgment to the existence at that time of a practice in breach of Article 3 (art. 3).

I am a firm upholder of the doctrine frequently approved by the Court that a margin of appreciation should be accorded to a State for its action taken in an emergency and impugned as a contravention of the Convention. In the present case, however, the invocation of this principle in favour of the respondent Government has been treated by the Court, in my opinion, as a blanket exculpation for many actions taken which cannot be reconciled with observance of the obligations imposed by the Convention.

To cite a few passages in this judgment to show the tendency of the Court to depart from that cold objectivity I would mention paragraph 63. It is just not accurate to say the Loyalist terrorist groups were more amorphous than the IRA and were "criminals" or "hooligans". This might have been a convenient way for the security forces to so regard the massive para-military strength of the UDA, the UVF and the Vanguard movement. Indeed, in paragraph 66 this is borne out by the apprehension of the authorities and their reluctance to contemplate the detention of Loyalists, and is confirmed by the events noted in paragraph 73.

I have called attention to the ill-balanced approach by the Commission to the extensive attacks on the minority by the majority in 1969 and it is regrettable that this is adopted by the Court as a true appraisal of the situation. It is also quite wrong to attempt to isolate complaints such as those in Moore v. Shillington and not to face up to the concerted and united effort to hold and interrogate those arrested in 1971 and the constant communication between the detention centres which could only point to the existence of a practice. To attempt to isolate the case of Moore v. Shillington or any other individual case of the many brought before the Commission is to contradict the dictum laid down in paragraph 243 of the judgment and to tear provisions out of context and not to look at the entire spectrum of the situation as a whole. To deal with incidents as isolated events seems to me merely to seek an excuse to exonerate the respondent Government. For example, why say that the treatment in Moore v. Shillington was merely "discreditable and reprehensible" and not a breach of Article 3 (art. 3)?

Of course, the Court is not bound by the strict rules of evidence but it should be careful not to abuse this privilege. It would presumably look for the best evidence obtainable. I find nothing even approaching disapproval by the Court at the non-cooperative attitude of the respondent Government. It would be lacking in candour if I did not state that there is much in the tone and general approach of the judgment that must discourage member States from invoking Article 24 (art. 24). The concept of this being a collective guarantee in that Article (art. 24) to secure observance of human rights has been severely damaged.

Article 15 (art. 15)

I agree that the events justified derogation by the respondent Government under Article 15 (art. 15) but would point out the limitation imposed by that Article (art. 15) in requiring such departure from the Conventional obligations to be to the extent strictly required by the exigencies of the situation. I hope it will not be considered presumptuous to call special attention to the use of the word "strictly" and to suggest that some meaning be found for its insertion in the Article (art. 15).

It is erroneous to seek to establish a parallel with the Lawless case where the threat was to a small unitary State, not long recovered from a civil war situation, whereas in this case the threat must relate to the existence of the United Kingdom and not to the Six Counties only. It is necessary to examine the extent to which Articles 5 and 6 (art. 5, art. 6) were breached and to ascertain if the exigencies of the situation required those steps.

In view of my conclusions as to the breaches of Article 3 (art. 3) and to the discriminating employment of arrest and detention it is sufficient for me to express the opinion that the situation did not require the extrajudicial power of arrest and detention to have been employed without two safeguards viz: informing the person arrested and detained of the grounds therefore , and providing some means of obtaining a review of the extrajudicial action and release if the reviewing body was not satisfied. I regard these safeguards as necessary and indeed the logical sequence of the principles laid down in the Lawless case. Any such safeguards were not present in the early stages under Regulations 10, 11 and 12, and to the extent of their absence there was a breach in my opinion of Article 5 para. 4 (art. 5-4).

It is hardly necessary to pursue the question whether Article 6 (art. 6) was also contravened and I regard any breach of that Article (art. 6) to have been technical once it is accepted that there was for a period a breach of Article 5 para. 4 (art. 5-4) for the reasons stated above. It is no answer to say that the maximum or unlimited periods of detention were not exceeded or made use of in practice. The complaint here under Article 24 (art. 24) is that the Regulations sanctioned such excesses and that these contravened the Convention. Once again, it seems to me that the Court has strained beyond breaking point their conception of the margin of appreciation in Respondent ’ s favour.

Consequential Order

I have a doubt as to the jurisdiction of the Court to make any effective order of a consequential nature as sought by the applicant Government. After such a lapse of time there would be practical difficulties in securing compliance with any such order. In my view it should not be made. Lest it might be overlooked I would observe there were a number of cases mentioned in the report in which complaints duly made as to assaults and ill-treatment by State forces on persons in custody were ignored by the authorities.

Article 1 (art. 1)

The question of interpretation of Article 1 (art. 1) of the Convention has not been satisfactorily treated by the Commission. Consideration of this problem turns largely on the meaning of Article 24 (art. 24). I would incline, therefore, to the approach in the separate opinions of Messrs. Sperduti, Opsahl, Ermacora and Mangan.

I would point out that the applicant Government is in the same position as the Scandinavian States in the Greek case. In both instances the applicant States ask for a collective enforcement of the guarantee in the Convention to secure the enjoyment of rights and freedoms.

In my opinion, at p. 501 of the report Mr. Mangan has summarized the true interpretation of Article 1 (art. 1) in this context as follows: "It is true that it is always necessary to invoke another Article in conjunction with Article 1 (art. 1), but once violations are threatening because of a failure to secure a right, one of the differences between the position of a State under Article 24 (art. 24) and an individual is exactly that the State may take action against anticipated breaches." At the conclusion of the proceedings before the Court the principal delegate of the Commission filed a memorial (Cour (77) 24) and at p. 5 thereof there will be found the concluding submission with which I fully agree: "Accordingly, the conclusion to be reached on the general problem of the interpretation of the European Convention is that a State that does not fulfil its domestic-guarantee obligation thereby infringes the Convention so that it may be found guilty of a breach of the Convention as a result of an application submitted under Article 24 (art. 24), even before any individuals personally experience the ill-effects of such a situation and are able to make a complaint under Article 25 (art. 25)."