SEPARATE OPINION OF JUDGE MATSCHER

1. Concerning the notion of torture (Article 3 of the Convention) (art. 3)

According to the reasoning of the majority of the Court in the present case, the principal criterion for distinguishing between inhuman treatment and torture is the intensity of the suffering inflicted. To my great regret I cannot agree with this interpretation.

My position on this is close to that adopted in the Commission ’ s unanimous opinion in the present case (pp. 389-402 of the report), which opinion is in turn based on the interpretation of the essential elements of Article 3 (art. 3) of the Convention developed in previous cases, mainly in the First Greek Case (pp. 377-379 of the report). In my view, the distinguishing feature of the notion of torture is the systematic, calculated (hence deliberate) and prolonged application of treatment causing physical or psychological suffering of a certain intensity, the aim of which may be to extort confessions, to obtain information or simply to break a person ’ s will in order to compel him to do something he would not otherwise do, or again, to make a person suffer for other reasons (sadism, aggravation of a punishment, etc.).

There is no doubt that one can speak of torture within the meaning of Article 3 (art. 3) only when the treatment inflicted on a person is such as to cause him physical or psychological suffering of a certain severity. However, I consider the element of intensity as complementary to the systematic element: the more sophisticated and refined the method, the less acute will be the pain (in the first place physical pain) which it has to cause to achieve its purpose. The modern methods of torture which in their outward aspects differ markedly from the primitive, brutal methods employed in former times are well known. In this sense torture is in no way a higher degree of inhuman treatment. On the contrary, one can envisage forms of brutality which cause much more acute bodily suffering but are not necessarily on that account comprised within the notion of torture.

Moreover, this notion of torture, to which I subscribe, does not differ essentially from those recently worked out by various international bodies, including the United Nations (see, for example, Article 1 of Resolution 3452 (XXX), adopted by the General Assembly on 9 December 1975). The notion seeks only to stress some of the features which are also included in those other notions and which seem to me to be the most important.

As regards the unanimous findings of fact by the Commission and the Court (paragraphs 96-107 of the judgment), the five techniques, as used in unidentified interrogation centres, constituted a highly sophisticated and refined system aimed at obtaining information or confession: "The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation" (paragraph 167 of the judgment). They thus constitute a typical example of torture within the meaning of Article 3 (art. 3) of the Convention.

2. Concerning Article 14 (art. 14) of the Convention

In my opinion, there is discrimination within the meaning of Article 14 (art. 14) of the Convention where a measure which in itself meets the requirements of the system for protecting the fundamental rights guaranteed by the Convention is applied in a different way to individuals or groups of individuals within the jurisdiction of a State Party to the Convention and when this difference in treatment is not justified by objective and reasonable motives (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, pp. 34-35, para. 10). A fortiori, there is discrimination where the different treatment is accounted for by motives based mainly on one of the criteria cited by way of example (see the words "such as ...") in Article 14 (art. 14) and expressly stated to be discriminatory.

My line of argument here follows the position of principle - a correct one, I think - which this Court adopted in the case of Engel and others (judgment of 8 June 1976 , Series A no. 22, para. 72) and which seems to me also to underlie the reasoning of the majority of the Court in the present case, namely that discrimination can also exist as regards restrictions - in themselves legitimate - on the rights guaranteed by the Convention. To put it another way, the wording of Article 14 (art. 14) - "enjoyment of the rights and freedoms set forth in [the] Convention" - must be given a broader conceptual scope so as to include therein, over and above enjoyment in the strict sense, the way in which the rights and liberties in question may have been restricted.

In the present case we are dealing with the application of the extrajudicial powers of detention and internment which the Court has rightly - in view of the circumstances prevailing in Northern Ireland at the relevant time - considered to be compatible with the system for protecting fundamental rights set up by the Convention (Articles 5 and 6 taken together with Article 15 (art. 15+5, art. 15+6).

It may be regarded as established that in the period up to 5 February 1973 these measures were applied only against Republican terrorists and not against Loyalist terrorists and that likewise in the subsequent period the measures in question affected the latter only to a far lesser extent. The crucial point is whether this different treatment was justified by objective and reasonable motives. If so, the difference is legitimate; if not, it constitutes discrimination within the meaning of Article 14 (art. 14).

There is no doubt that the extrajudicial measures were introduced at a time when terrorism of Republican origin had reached a high level. It has also been proved, however, that terrorism from Loyalist sources existed at the same time and on an increasing scale. That, from the quantitative point of view, a larger number of serious outrages were attributable to the Republican terrorists does nothing to alter the fact that in this same period two brands of terrorism were simultaneously rife in Northern Ireland. Moreover, at least from 1972 onwards, the two varieties of terrorism represented a comparable menace to law and order in the country. Nonetheless, up to 5 February 1973 the British authorities continued to apply the emergency measures to the Republican terrorists alone.

The reasons put forward by the respondent Government to justify such a difference hardly convince me, and it must also be remembered that, on this particular point, the respondent Government were very unforthcoming during the enquiry (pp. 107 et seq. and 153 et seq. of the Commission ’ s report), so that an unfettered assessment of the evidence does not operate in their favour. Examination of the material before the Court would seem to me rather to permit the conclusion that, besides the bias on the part of the authorities which characterises the general situation in Northern Ireland not only in the course of history but also at the time in question, there was hesitation over talking equally energetic action against the Loyalist terrorists and over using emergency powers against them because of fear of the political repercussions of such a step. In my view, this is not a justification based on objective and reasonable motives. For want of such justification, the different treatment, which has been proved objectively, constitutes discrimination within the meaning of Article 14 (art. 14) of the Convention.

There is also another point of view to be taken into account. If the authorities deemed it necessary in order to combat terrorism to take emergency measures which weighed heavily on the population concerned, and if these measures were applied to only one section of the population whereas, in order to combat a comparable terrorist campaign originating from the other side - insofar as it was seriously combated -, they thought that they could confine themselves to the ordinary means of prevention and punishment, the question also arises whether the emergency measures were really indispensable within the meaning of Article 15 (art. 15) of the Convention.

[*]  Note by the Registry: All page references to the Commission's

report are to the stencilled version.

[1] The techniques are listed and d escribed in paragraph 96 of the Judgment; but see paragraph 19 below.

[2] A convenient American locution for describing "an issue which during the course of a trial or pending an appeal has ceased to have practical importance" - (Radin's Law Dictionary, Oceana Publications, New York, 2nd Edn. 1970, p. 211); and see correspondingly the definition given in n. 1 on p. 86 of my separate opinion in the Northern Cameroons case before the International Court of Justice (I.C.J. Reports 1963, at p. 97).

[3] See my separate (partly dissent ing) opinion in the Golder case before the Court, paragraphs 38-45 and the conclusion drawn in paragraph 46 (Series A no. 18, 1975).

[4] "To ensure the observance of th e engagements undertaken by the High Contracting Parties in the present Convention [my italics], there shall be set up:

(1) A European Commission of Human Rig hts hereinafter referred to as 'the Commission';

(2) A European Court of Human Rights hereinafter referred to as 'the Court'."

[5] This is an over-simplified statement of what can in fact be a complicated matter, and needs qualification in various respects. However, this is not the place for any exposition of the law on the subject.

[6] This was the report of the Committee set up in August 1971 by the United Kingdom Home Secretary, under the chairmanship of Sir Edmund Compton, G.C.B., K.B.E., to consider allegations of ill-treatment of detainees - see Judgment, paragraph 99.

6a For reasons of convenience the quotations which I give are those provided by the Commission.  There is some obscurity as to the exact source from which the Commission is itself quoting - but there seems to be no doubt that as given on p. 247 they do reproduce the Compton formulation.

[7] To give examples of figurative use within most people's experience: - One hears it said "I call that inhuman", the reference being to the fact that there is no dining-car on the train.  "It's degrading for the poor man", one hears with reference to an employee who is being given all the unpleasant jobs.  "It's absolute torture to me", - and what the speaker means is having to sit through a boring lecture or sermon.  There is a lesson to be learnt here on the potential dangers of hyperbole.

[8] It is fairly clear that all five techniques could not have been employed simultaneously on the same person, though two or three of them might have been combined in that sense.  What the Judgment is actually referring to is the fact that each of the individuals concerned was subjected in one way or another and at one time or another, to all five techniques and not only to one or two.

[9] Of course they might do so in practice, in particular cases - e.g. if used on the old or infirm - but the question has to be considered on the basis of the average case.

[10] The evidence on this point is unsatisfactory.  I deduce that - (though not always) - the periods were long in the aggregate, but cannot have been continuous - see ante paragraph 19 (i) and (vii).

[11] There has been no suggestion that this impeded normal breathing.

[12] Equally, to characterize the instances I have given and other similar ones that could be thought of, as cases of "torture" is to misapply the latter term which is an expression having its own proper sphere.  It would also be to abolish the distinction between torture and inhuman treatment which Article 3 (art. 3) of the Convention specifically makes.  Of course all torture is "inhuman" but not all inhuman treatment involves or amounts to torture.

[13] From Man was made to Mourn: the couplet runs "Man's inhumanity to man makes countless thousands mourn."

[14] Romeo and Juliet, Act II, Scene 2, line 43.

[15] The principal dictionaries I have consulted are the Shorter Oxford ("shorter" only than the full Oxford in several volumes, and itself running to 2,500 pages); the superlative American Random House Dictionary of the English Language - probably the best one-volume English Dictionary extant; Webster's Third International; and, in the popular category, Professor Garmonsway's excellent Penguin English Dictionary.

[16] Speaking of persons, not actions, the dictionaries use such descriptions as "callous", "unfeeling", "destitute of natural kindness or pity", "lacking in the normal human qualities of sympathy, pity, warmth, compassion or the like".  But the absence of such feelings, natural enough in the circumstances of the present case, does not suffice of itself to make the acts or treatments involved "inhuman", - and it is the quality of these that must be looked to.  Other lines of definition, such as "not of or like the human race" and "not of the ordinary human type", are question-begging and evocative of a smile - remembering Burns (see end of paragraph 22 supra).

[17] Literally, "degraded" (de-graded) means reduced to a lower grade, rank, position or status; but the relevant meanings in the present context, as given in the dictionaries (see n. 15 supra) would be to "lower in estimation, character or quality" (Shorter Oxford); to "lower in dignity or estimation; bring into contempt" (Random House). Other descriptions used are "to debase" (ibid), "to humiliate" (Penguin).  The relevant notions here are clearly those of humiliation, bringing into contempt, loss of esteem, and debasement, presumably from status as a human being.

[18] From Outsider in Amsterdam , by Jan van de Wetering, Corgi Edn. 1977, p. 170.

[19] Prefacing the passage from paragraph 167 of the Judgment quoted first in my paragraph 34, and which sets out the Court's notion of what is not torture, are some lines qualifying this by an "although" clause, and stating 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 cause the necessary intensity of suffering, etc.  This qualification, in slightly different terms, also precedes the second passage quoted in my same paragraph.

[20] "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."