SEPARATE OPINION OF JUDGE EVRIGENIS

Having felt unable to agree with the majority of the Court on points 4, 7, and 9 of the operative provisions of the judgment, I think it my duty to set out the reasons why I am of a different opinion.

(a) The majority of the Court considered that the combined use of the five techniques constituted inhuman and degrading treatment but not a practice of torture within the meaning of Article 3 (art. 3) of the Convention. I think, on the contrary, that the acts complained of, whilst amounting to inhuman and degrading treatment, do also come within the notion of torture. On this point I share the unanimous opinion of the Commission, which was not contested before the Court by the respondent Government. My disagreement with the majority of the Court concerns both of the premises underlying its reasoning, namely (i) the definition of the notion of torture and what distinguishes it from inhuman treatment as well as (ii) the assessment of the combined use of the five techniques from the factual point of view.

(i) The definition of torture - and hence the feature distinguishing torture from inhuman treatment - on which the judgment is based does not appear to differ appreciably from the one adopted by the Commission in its report. According to the Commission, torture is an "aggravated form of inhuman treatment", the latter in turn being such treatment as "deliberately causes severe suffering, mental or physical" (report, pp. 377, 379). For its part, the judgment defines torture as "deliberate inhuman treatment causing very serious and cruel suffering" (paragraph 167). Since the two definitions concentrate on the effects of the acts in question on the victim, it is difficult to distinguish between what should be regarded as an "aggravated form" of "treatment causing severe suffering" on the one hand and the infliction of "very serious and cruel suffering" on the other. To find the distinction between the two definitions of the notion of torture becomes even more difficult by reason of the fact that the Court draws some parallel between its own definition and that given by the United Nations General Assembly (in Resolution 3452 (XXX) of 9 December 1975, Article 1), which is in substance identical to the Commission ’ s definition.

The fact remains that this terminology, which is not very enlightening in itself, has to be seen as reflecting the tendency, apparent in the reasoning of the majority of the Court, to place the distinction between torture and inhuman treatment very high up on the scale of intensity of the suffering inflicted. Indeed, the judgment appears to reserve the category of "torture" exclusively for treatment which causes suffering of extreme intensity. I cannot agree with this interpretation.

The notion of torture which emerges from the judgment is in fact too limited. By adding to the notion of torture the notions of inhuman and degrading treatment, those who drew up the Convention wished, following Article 5 of the Universal Declaration of Human Rights, to extend the prohibition in Article 3 (art. 3) of the Convention – in principle directed against torture (cf. Collected Edition of the " Travaux Préparatoires ", volume II, pp. 38 et seq., 238 et seq.) – to other categories of acts causing intolerable suffering to individuals or affecting their dignity rather than to exclude from the traditional notion of torture certain apparently less serious forms of torture and to place them in the category of inhuman treatment which carries less of a "stigma" - to use the word appearing in the judgment. The clear intention of widening the scope of the prohibition in Article 3 (art. 3) by adding, alongside torture, other kinds of acts cannot have the effect of restricting the notion of torture. I might advance the hypothesis that, if Article 3 (art. 3) of the Convention referred solely to the notion of torture, it would be difficult not to accept that the combined use of the five techniques in the present case fell within its scope. I do not see why the fact that the Convention, with the sole aim of increasing protection of the individual, condemns not only torture but also other categories of acts should lead to a different conclusion.

The Court ’ s interpretation in this case seems also to be directed to a conception of torture based on methods of inflicting suffering which have already been overtaken by the ingenuity of modern techniques of oppression. Torture no longer presupposes violence, a notion to which the judgment refers expressly and generically. Torture can be practised - and indeed is practised - by using subtle techniques developed in multidisciplinary laboratories which claim to be scientific. By means of new forms of suffering that have little in common with the physical pain caused by conventional torture it aims to bring about, even if only temporarily, the disintegration of an individual ’ s personality, the shattering of his mental and psychological equilibrium and the crushing of his will. I should very much regret it if the definition of torture which emerges from the judgment could not cover these various forms of technologically sophisticated torture. Such an interpretation would overlook the current situation and the historical prospects in which the European Convention on Human Rights should be implemented.

(ii) I take a stronger position than the majority of the Court as regards the assessment of the combined use of the five techniques from the factual point of view. I am sure that the use of these carefully chosen and measured techniques must have caused those who underwent them extremely intense physical, mental and psychological suffering, inevitably covered by even the strictest definition of torture. The evidence which, despite a wall of absolute silence put up by the respondent Government, the Commission was able to gather about the short- or long-term psychiatric effects which the practice in question caused to the victims (paragraph 167 of the judgment) confirms this conclusion.

(b) I voted in favour of the view that a practice of torture existed in the cases referred to in point 7 of the operative provisions. I cannot characterise in another way treatment which, on the basis of the facts relied on by the Court (paragraph III of the judgment), caused "substantial" and "massive" injuries to detainees.

(c) I voted in favour of the view that Article 3 (art. 3) had been violated in the cases referred to in point 9 of the operative provisions. The practices described in the Moore case (paragraph 124 of the judgment) constituted, in my opinion, degrading treatment within the meaning of this provision.