DISSENTING OPINION OF JUDGE O’LEARY

1. Pursuant to Rule 80, the Court was requested to revise its judgment in Ireland v. the United Kingdom insofar as the latter found that, while use of the five techniques on persons interned in Northern Ireland in 1971 violated Article 3 of the Convention, it constituted inhuman and degrading treatment but not torture. [1]

2. The five techniques, which consisted of wall-standing, hooding, exposure to noise, sleep deprivation and deprivation of food and drink, forcibly applied over an unknown period of four to seven days for an unspecified number of hours at any given time and with probable recourse to physical violence during their application in at least some cases, are described in detail in the Commission’s report, the original judgment and the majority judgment on the revision request (hereafter the “revision judgment”). [2]

3. The revision request is composed of two interrelated limbs. Firstly, the new material uncovered is said to reveal that the United Kingdom had possession of material, including but not only medical reports, revealing that the five techniques could have substantial, severe and long-lasting effects on those on whom it was inflicted (the “medical evidence” limb). It is claimed that this body of evidence, which was built up contemporaneously in the domestic proceedings for damages instituted by the 14 detainees, contradicted that which had been provided to the Commission by the respondent Government and was never shared with the Commission, the Court or the applicant State. Secondly, the archive material is said to demonstrate on a more general level that, at the relevant time, the authorities of the respondent State adopted and implemented a clear policy of obstruction and non-disclosure, withholding key information from the Commission and subsequently the Court about the authorisation, teaching, implementation and effects of the five techniques (the “non ‑ disclosure” limb).

4. For the reasons explained below, I endorse the revision judgment regarding compliance with the six-month time-limit established by Rule 80 (§§ 82-95 of the revision judgment) as well as confirmation that the revision request may seek to vary the grounds on which the original judgment found a violation of Article 3 (§§ 98-103 of the revision judgment).

5. In contrast, I respectfully disagree with the decision of the majority to reject the second limb of the revision request on the grounds that the non ‑ disclosure limb is based on facts which were known to the Court at the time of the original judgment (§§ 114-118 of the revision judgment) and to reject the first limb in relation to the medical evidence on the grounds that the latter did not fulfil the Rule 80 “decisive influence” criterion (§§ 119 ‑ 135 of the revision judgment).

6. As can be seen from §§ 132-135 of the revision judgment, the majority have based themselves almost exclusively on two paragraphs of the original judgment − §§ 167 and 168 − where the Court concluded that the five techniques constituted inhuman and degrading treatment but not torture. On the basis of an unduly narrow approach to the original judgment, the proceedings which led to it and the revision request itself, the majority consider that:

“ Without an indication in the original judgment that , had it been shown that the five techniques could have severe long-term psychiatric effects, this one element would have led the Court to the conclusion that the use of the five techniques occasioned such ‘very serious and cruel suffering’ that they had to be qualified as a practice of torture, the Court cannot conclude that the new facts might have had a decisive influence on the original judgment.” [3]

7. In addition, although at the heart of the reasoning of the Commission and the Court, as reflected in the original judgment, was the finding of an administrative practice in relation to the treatment of 14 detainees, the majority restrict their legal analysis further by concentrating exclusively on the two detainees chosen as illustrative cases and heard by the Commission to the exclusion of new evidence in relation to the remaining cases. The thrust and extensive detail in the revision request appears to have been ignored; as have the nature and scope of the original proceedings and of the original judgment. Furthermore, the implications which this judgment might have for other interstate cases or applications in which the Court proceeds by way of illustrative or sample cases appear not to have been considered.

8. The revision request was about non-disclosure – of a specific and of a general nature − by a High Contracting Party and its alleged failure to cooperate with the Convention organs. It sought to demonstrate the purpose, nature and extent of such non-disclosure which had been alleged or suspected during the original proceedings but which had not been amenable to proof and to establish the effect on the legal reasoning of the Court, and indeed the Commission, which proof of such a policy might or would have had.

In the coming sections I seek to place the revision request in context (A.), highlight aspects of the original proceedings, Commission Report and judgment which are relevant to the request (B.), outline applicable case-law which was passed over in silence by the majority (C.) and briefly touch on the functioning of Rule 80 (D.). The critique of the core of the revision judgment is contained in section E. While sections A and B are case specific, sections C and E raise issues which go beyond the case of Ireland v. the United Kingdom .

A. Preliminary remarks

9. Some preliminary remarks are, in my view, necessary in order to properly delimit the legal questions to which the revision request gave rise and to clarify the context in which it did so.

10. Firstly, the Chamber was not called on to decide whether, were a complaint under Article 3 relating to administration of the five techniques now to arise, this Court or a national court charged with the same question would qualify that practice as one of torture. An answer to that question seems already to have been provided in different cases which have arisen before courts in the United Kingdom. Thus, in 2006, in A. and others v. Secretary of State for the Home Department , Lord Bingham, having cited the 1999 judgment of this Court in Selmouni , stated:

“It may well be that the conduct complained of in Ireland v. the United Kingdom [...] would now be held to fall within the definition in Article 1 of the Torture Convention.” [4]

More recently, in 2017, in McKenna , re judicial review − proceedings brought in Northern Ireland by some of the 14 detainees subject to the five techniques in 1971 or by their surviving family members, referred to in § 18 of the revision judgment − McGuire J. stated as follows:

“[...] it seems likely to the [High Court of Justice in Northern Ireland] that if the events here at issue were to be replicated today the outcome would probably be that the ECtHR would accept the description of torture in respect of these events as accurate. [...] These points support a conclusion that the sort of activity with which this case is concerned has a larger dimension than an ordinary criminal offence and would amount to the negation of the very foundations of the Convention .” [5]

Moreover, that an administrative practice consisting of the forcible application of the five techniques would now be recognised by the Court as constituting torture seems to be the inference which the majority wishes the reader to draw from § 124 of the revision judgment, where reference is also made to Selmouni and to the Court’s evolving case-law on torture. It was not for the Court in the present case to apply retrospectively Article 3 case ‑ law on what is now considered to constitute torture. A request for revision is not a means for a party to seek a review of an original judgment in the light of the Court’s subsequent case-law nor, as the respondent Government rightly pointed out, a form of appeal. [6]

11. Nevertheless, the Chamber could and should have had recourse to cases relating to Article 3 which had already been examined by the Commission and the Court by 1978, not least interstate applications (see further §§ 38-40 below). Yet this case-law was ignored. Given the nature of the revision request, it should also have referred to Convention articles and established case-law on the duty of Contracting Parties to cooperate with the Convention institutions and on the respective roles of those institutions at the relevant time as regards the establishment of facts (see further §§ 41-49 below).

12. Secondly, when balancing respect for legal certainty with the public interest in the revision of erroneous judgments a forty year time lapse between the original and revision judgments might seem to tip the scales firmly in favour of the former. However, the “thirty years rule” meant the new evidence relied on was only ever going to be accessible many years after the original judgment, following declassification. [7]

The task which confronted the Chamber in the present case was to assess whether the admittedly strict procedural and substantive conditions which flow from Rule 80 had been met in this case, while keeping in mind the Court’s overall task pursuant to Article 19 of the Convention, namely to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties. It will be remembered that, when deciding in the original judgment to re-examine the uncontested finding of torture, the Court attached considerable importance to this latter responsibility assigned to it under the Convention system. [8]

13. Thirdly, there may be a temptation to view the revision request as two Council of Europe Member States pitted against each other 40 to 47 years after the fact. However, this would be to lose sight of the fact that the system of international protection in the Convention is founded upon the concept of a “collective guarantee” of the rights and freedoms contained in it. An interstate case is:

“not the exercise of a right of action to enforce the applicant state’s rights but an action against an alleged violation of the public order of Europe .” [9]

This was recognised by both Governments in the original proceedings, both of which regarded the case as one of “importance and lasting influence”. [10] A request to revise an inter-state judgment of this nature should have been viewed in the same light. Whatever the political context, past or present, the Court’s response had to be both solid and juridical as its reasoning may have consequences beyond the original case here at issue and beyond requests under Rule 80.

Furthermore, given the close ties which bind the peoples of the United Kingdom and Ireland – the geographic, historic, linguistic, economic, political and family ties whose strength, depth and complexity only those who live on the two islands can perhaps fully appreciate – it is safe to presume that the decision to introduce the present request was not one taken lightly. The mutual cooperation and respect which both applicant and respondent States have striven for in recent years and which has been evident in their cooperation during the course of the revision proceedings and, more importantly, in the peace and reconciliation process at the heart of the Good Friday Agreement, should not go unmentioned.

14. In brief, although the case is, by its nature, a difficult one, the legal questions before the Court were relatively simple. On the one hand, did the applicant Government put forward, in a timely manner, new facts unknown to them, to the Commission and to the Court at the relevant time. On the other hand, had those facts been known at that time, might or would they have had a decisive influence on the Court’s finding in its original judgment. The judges were being asked to put themselves in the shoes of their judicial predecessors. Looking at the original proceedings as a whole, the Commission’s Report and the Court’s method and reasoning, all of which led to the conclusion in §§ 167 and 168 of the original judgment, might or would a majority of the Court have confirmed the Commission’s unanimous decision and found a practice of torture had they known what the Court knows today?

B. The original proceedings and the original judgment

15. In a revision procedure, in order to establish whether the new facts submitted by an applicant party disclose “facts which might by their nature have a decisive influence” those facts have to be considered in relation to the original judgment whose revision is sought. Procedure, reasoning and conclusions must all be examined. This is the methodology outlined in the Pardo revision case, to which the majority refers, and applied in numerous others. [11]

16. Extracts from the Commission Report and the original judgment are reproduced in the revision judgment. However, were Pardo to have really been applied, the “scene-setting” paragraphs of the revision judgment (§§ 14-16) should have highlighted several important elements of the original judgment which should in turn have fed into the reasoning of the majority on revision.

1. Time-line of the original proceedings

17. It is necessary to restate the time-line of the original proceedings given the reasoning in parts of the revision judgment. [12]

18. Those proceedings commenced on 16 December 1971 when the applicant Government lodged its application with the Commission; deemed partially admissible on 1 October 1972. The proceedings before the Commission involved written and oral submissions from the two States Parties, as well as the taking of evidence at a series of hearings held in Strasbourg, Sola Air Base in Norway and London. [13] In the Report transmitted to the Committee of Ministers on 9 February 1976, the Commission found, unanimously, that administration of the five techniques constituted torture in breach of Article 3 of the Convention. [14] The then respondent Government did not contest this decision or the findings of fact on which it was based. [15]

19. The applicant Government lodged its application with the Court on 10 March 1976. Written memorials were lodged with the Court between 2 August 1976 and 15 December 1976. [16] A first set of oral hearings was held on 7-9 February 1977. By order of 11 February 1977, the Court decided that it had jurisdiction to pronounce on the uncontested Article 3 violation and stated “the Court considers that it is already in possession of sufficient information and materials to enable it to make such a pronouncement”. [17] The second set of Court hearings was held from 19 ‑ 22 April 1977. On 18 January 1978, the Court found, by 13 votes to 4, that use of the five techniques constituted inhuman treatment in breach of Article 3 but not torture. [18] The original proceedings thus lasted from December 1971 until January 1978.

2. Obtainment and assessment of evidence and establishment of facts

20. The procedure followed for the purposes of ascertaining the facts was one decided by the Commission and accepted by the parties. The choice of illustrative cases was for the purposes of procedural economy. [19] In relation to the Article 3 complaint which is the subject of the revision request, the applicant Government had referred to the Commission eight cases of persons subjected to the five techniques at the unidentified interrogation centre in August 1971 and a further case – it would appear to be that of T 22 – subject to them in October 1971. [20] The Commission examined the cases of T 6 and T 13 as “illustrative” cases, heard those two detainees and based itself on specific medical reports in their regard. [21] However, it also received written observations and evidence from the two Governments, their oral submissions and, in relation to the Article 3 complaints one hundred witnesses were heard. Medical evidence of both a specific and a general nature was provided. [22]

21. Although the respondent Government initially contested the existence of an administrative practice, they later conceded this point but relied on this concession to contend that how the practice had arisen was not important. [23] The level of authorisation was never disclosed.

22. At the evidential hearings before the Commission there was a stark conflict between the evidence adduced by the applicant and respondent Governments regarding the effects of the five techniques. [24] Two of the experts called on behalf of the applicant Government gave evidence that the effects were likely to be substantial, severe and long-term. Dr. L., on behalf of the respondent Government, testified that although the internees had suffered acute psychiatric symptoms during the interrogation, the psychiatric effects of the five techniques were minor and short-term; diminishing and not severe. [25] The verbatim report of the hearings before the Commission reveal, in addition, that Dr. L. stated that there was no good evidence as to whether the five techniques would in fact cause long-term effects, that in his view they would probably not, but that his view about the long-term effects was no more than an informed guess as he had not been given access to information about how the five techniques had actually been administered. Properly administered, the five techniques should not, in the view of Dr. L., have produced lasting damage. [26] When questioned about the quantum of damages settled in the context of the domestic proceedings involving the 14 detainees, he denied that the sums in question bore out the view of the other expert witnesses in terms of the nature and effects of the five techniques. Further, questioned by one of the Commission delegates about whether the recommendation to the Crown in those civil cases was the same as that to the Commission, Dr. L. replied:

“Yes, exactly the same as here. These reports are the ones that are sent to the Crown.” [27]

23. It would appear from the verbatim record and transcript of the Commission hearings that the medical experts called by both sides had not examined all the detainees subject to the five techniques. Dr. O’Malley had examined only two of them and he had done so in the immediate aftermath of the interrogation. Dr. L., in contrast, examined more, but not all, of the 14 men and his examinations took place at different intervals over a much longer period of time. [28]

24. The Commission found that the expert psychiatric evidence «disagreed considerably» on the after-effects of the five techniques and the prognosis for recovery. [29] Where the allegations of ill-treatment were in dispute, the Commission thus treated as “the most important objective evidence” the medical findings which were not contested as such. [30]

25. After the case was referred, the Court explained its approach to evidence as follows:

“[the Court] examines the material before it, whether originating from the Commission, the Parties or other sources and, if necessary, obtains material proprio motu ”. [31]

26. In places the Court overturned the Commission’s findings of fact, without taking new evidence and without explaining on what basis it did so. [32] Where questions arose relating to evidence of individual violations of Article 3 or a practice violating that article in other interrogation centres such as Girdwood Park or Ballykinler, the Court indicated as follows:

“The Court would be empowered to obtain, if necessary proprio motu , additional evidence (Rule 38 of the Rules of Court). However, such a course would oblige the Court to select a series of further ‘illustrative’ cases and to hear a substantial number of further witnesses, failing which it might as well, as the delegates of the Commission emphasised, arrive at extremely tenuous conclusions . It is not essential to re-open the investigation in this way in the present case. ... the findings made in connection with the five techniques [...] henceforth embodied in a binding judgment of the Court, provide a far from negligible guarantee against a return to the serious errors of former times. In these circumstances, the interests protected by the Convention do not compel the Court to undertake lengthy researches that would delay the Court’s decision .” [33]

27. In § 105 of the revision judgment it is stated that:

“ Certain important facts relating to the five techniques, namely that they were authorised at a high level, that they consisted in a combination of measures and caused both physical and mental suffering to the detainees subjected to them, were not contested in the original proceedings and are not in dispute now.”

What the revision judgment does not highlight, however, are other important facts relating to the five techniques which the Commission had emphasised were lacking due to what it described as an “embargo” on evidence imposed by the respondent party [34] : for example, it was known that the techniques were taught orally at a seminar organised by the English intelligence centre in April 1971 but they were never committed to writing or authorised in any official document; no evidence was forthcoming on how they were administered; the detainees were brought to an undisclosed location or locations; the interrogation records were not made available to the Commission or the Court; the Commission delegates were not able to hear oral evidence from members of the security forces in relation to the allegations concerning the interrogation centres; witnesses present at those centres were not made available; those witnesses for the respondent Government heard at Sola were instructed not to reply to any questions regarding the five techniques and their use; the instruction to security force witnesses not to answer questions on the use of the five techniques was justified in terms of the need to protect their safety; while the respondent Government conceded the practice had been authorised at a “high level”, it did not disclose at what level and by whom; when the political witnesses called by the respondent Government (principal advisers to that government) were interviewed in London by Commission delegates on 20 February 1975, the representatives of the parties were not allowed to cross-examine them and were instead obliged to leave the room. [35] The material available to the Commission and the Court at the relevant time was determined by the above.

3. Duty to cooperate

28. In the original proceedings, the applicant Government maintained that the respondent Government had failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation. In relation, for example, to the evidence submitted to the Commission on the subject of the five techniques and that compiled in the context of domestic proceedings for damages introduced by the 14 detainees, it stated:

“In cases where proceedings had been instituted against the respondent Government, the facts must have been investigated and evidence obtained. Nevertheless, this evidence had not been made available to the Commission.” [36]

29. The Court noted that it was not being asked to give a separate ruling on this issue, observed that the Commission had also indicated a lack of desirable assistance from the respondent Government but simply stated:

“The Court regrets this attitude [...]; it must stress the fundamental importance of the principle, enshrined in Article 28, sub-paragraph (a) in fine , that the Contracting States have a duty to cooperate with the Convention institutions.” [37]

30. Crucially, however, the question of the conduct of the parties re-emerged in the specific context of the standard of proof to be applied and the evidence on which to base the decision whether there had been a violation of Article 3 and, if so, what type of violation. The applicant Government had argued that the Commission standard – beyond reasonable doubt – could or would prove excessively rigid in the context of the proceedings in the particular case. In their view, the system of Convention enforcement would prove ineffectual if, where there is a prima facie case of violation of Article 3, the risk of a finding of such a violation was not borne by a State which fails in its obligation to assist the Commission in establishing the truth. [38] The Court confirmed the Commission standard as the correct one for assessing the evidence but added the following important caveat at § 161 of the original judgment:

“[S]uch proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similarly unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account. ” [39]

C. Revision requests

31. Pursuant to Rule 80, the relevant criteria for the examination of a revision request are as follows:

- Discovery of a fact which might by its nature have a decisive influence. [40]

- That fact was unknown to the Court at the time of the original judgment.

- That fact could not reasonably have been known to the applicant Government at that time.

- The applicant Government must request the Court to revise the original judgment within a period of six months after it acquired knowledge of the fact.

32. The Court has consistently held that inasmuch as revision calls into question the final character of judgments, the possibility for revision, which is not provided in the Convention but was introduced in the Rules of Court, is an exceptional procedure. [41]

33. The type of cases in which the Court has thus far received revision requests are outlined in §§ 91-93, 100, 120-121 of the revision judgment. The present case, which did not lend itself to a formalistic application of this largely inapposite case-law, [42] has several distinctive features.

34. Firstly, knowledge of the facts on which the revision request was based only having been acquired in 2014, re-composition of the Plenary which had handed down the original judgment, as envisaged by Rule 80 § 3, was not possible.

35. Secondly, the revision request was not seeking to rely on “a fact”. It relied instead on a series of facts, documents, medical reports and inter-ministerial statements and comments. The revision judgment found, unanimously, that the 6-month time-limit was complied with in the present case precisely because a body of sufficient and obtainable evidence had to be built up over time. [43]

36. Thirdly, the case was not standard revision fare. It sought to revise the original judgment in the first interstate application which proceeded to judgment stage. Interstate applications are rare and sensitive. Rule 80 has never been applied to a case such as this because this situation has never procedurally presented itself. The fact that there was no precedent in which the Court, on foot of a revision request, varied the grounds on which a violation of the Convention had been found, was no reason, contrary to the position of the respondent Government, to exclude that possibility. [44]

D. Relevant general principles derived from the Court’s case-law

37. It is striking to what extent the revision judgment largely ignores or avoids case-law of relevance to the key legal questions before it.

1. On the notion of an administrative practice

38. Central to the original proceedings, the original judgment and the standard and means of proof applied was the fact that recourse to the five techniques was found to constitute an administrative practice. The latter has two components – repetition of the impugned acts and official tolerance. The first component was defined by the Court in Ireland v. the United Kingdom , applying the previous Commission decision in the Greek case , as:

“an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system.” [45]

39. As regards the second component, official tolerance, the Commission and Court had made clear that though acts of torture and ill ‑ treatment are illegal, they may be tolerated by the superiors of those immediately responsible who may be cognisant of the impugned acts but may take no action or by the higher authorities of the State who are not entitled to claim a lack of awareness of the existence of such a practice. [46]

40. Where the acts complained of are found to constitute an administrative practice, there are procedural and substantive consequences. Firstly, exhaustion rules are suspended as the Commission or the Court are not being asked to give a decision on each of the cases put forward as proof or illustration of that practice. Evidence in relation to those cases is viewed, however, as part of an overall assessment. [47] Secondly, from a substantive point of view, the level of authorisation of the practice is considered central to the assessment of any violation and its seriousness. [48] The higher the body authorising or tolerating the acts, the more serious the violation.

2. On the respective roles of the Commission and the Court regarding fact-finding

41. Under the Convention system prior to 1 November 1998, pursuant to Articles 28 § 1 and 31, the establishment and verification of the facts were primarily a matter for the Commission, in the light of all the material before it. While the Court held that it was not bound by the Commission’s findings of fact and it remained free to make its own appreciation in the light of all the material before it, it was only in exceptional circumstances that it would exercise its powers in this area. Such exceptional circumstances might arise in particular if the Court, following a careful examination of the evidence on which the Commission had based its conclusion, found that the facts had not been proved beyond reasonable doubt. [49] In this connection, citing Ireland v. the United Kingdom , the Court has often added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences. [50] It has also stressed that it is acutely aware of its own shortcomings as a first-instance tribunal of fact, particularly when faced with factual accounts of events which are contradictory and conflicting, where it lacked detailed and direct familiarity with the conditions pertaining, where witnesses failed to appear or to give evidence when they did and where a detailed investigation at domestic level is lacking. [51]

3. On the relevance of the duty to disclose generally, in revision and in interstate cases

42. Having stressed the fundamental importance of the duty on Contracting States, pursuant to Article 28 of the Convention (now Article 38) to cooperate with the Convention institutions, the Court emphasised in the original judgment that “the conduct of the Parties when evidence is being obtained has to be taken into account”. [52]

43. While the revision request could not be determined with reference to evolving case-law on the notion of torture (see paragraph 11 above), the duty on States parties to cooperate with the Court and to disclose relevant evidence, enshrined in the Convention itself, was well-established when the first interstate judgment was handed down. The Rules of Court, which now detail the duty to cooperate fully, merely codify what already applied in 1976-1978, as the original judgment in Ireland v. the United Kingdom testifies. [53]

44. In the context of Article 3 complaints by detainees, numerous examples of the inferences drawn by the Court from the conduct of respondent States when evidence is being obtained and their failure to disclose or cooperate are available. Ireland v. the United Kingdom is consistently cited in support of this “inferences to be drawn”/“conduct of the parties” standard. [54] Take for example Timurtas v. Turkey :

“[...] the Court would emphasise that Convention proceedings do not in all cases lend themselves to rigorous application of the principle of affirmanti incumbit probatio (he who alleges something must prove that allegation). [...] States should furnish all necessary facilities to make possible a proper and effective examination of applications [...]. It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent State has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information as is in their hands without a satisfactory explanation may not only reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (former Article 28 § 1 (a)), but may also give rise to the drawing of inferences as to the well-foundedness of the allegations. In this respect, the Court reiterates that the conduct of the parties may be taken into account when evidence is being obtained (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161).” [55]

45. In Ahmet Ozkan and others v. Turkey the Court made clear that States must produce all relevant evidence and not just documents whose existence is known to the Court and the Commission such that they can be explicitly requested:

“It is true that it cannot be said that the Government failed to react with the required diligence in submitting documents once they were explicitly identified and requested by the Commission. However, the Court also considers that the Government’s passive attitude in producing documents which were in their possession and which were unquestionably of fundamental importance for elucidating disputed facts, and the Government’s failure to submit these documents of their own motion at a much earlier stage in the proceedings, was at best very unhelpful.” [56]

46. The reason why a duty of disclosure is so important in Article 3 cases relating to detainees and allegations of torture or ill-treatment had already been explained in the Greek case and was reiterated by the Commission in Ireland v. the United Kingdom . According to the Commission in the former case, “since torture and ill-treatment are alleged to occur in places under the control of the police or military authorities, evidence tending to show the truth or falsity of such allegations lies peculiarly within the knowledge or control of these authorities”. Furthermore, any “judicial remedies prescribed would tend to be rendered ineffective by the difficulty of securing probative evidence and administrative inquiries would either not be instituted or, if they were, would likely to be half-hearted and incomplete". [57]

What has always been key is whether the refusal to provide information at all, completely or on time prevented the Convention institutions from examining the case or precluded the establishment of the facts. [58] If the information concerns the very core of the case the Court has expected sufficient explanations for the failure to disclose it. [59] The disclosure of medical evidence regarding the physical and mental condition of detainees has regularly been at issue. [60] The point is that the proper functioning of the Court, or the proper conduct of the proceedings before it, must not be impeded and the Court must be in a position to rule on the matter in full knowledge of the facts. [61]

47. The consequences of non-disclosure have also been central in many of the revision requests which the Court has accepted. In Pennino v. Italy , for example, cited in § 92 of the revision judgment, the Court made clear that “parties are obliged to bring to the attention of the Court all relevant facts which have been produced in the domestic legal context, in particular where those facts are decisive for the outcome of the case”. [62] Gardean and S.C. Grup , Cernescu and Manolache and Hertzog are examples of the same. [63]

48. The duties to disclose and cooperate have been no less relevant in inter-state cases, both before and after the original judgment. [64] In Georgia v. Russia , the Court reiterated the standard of proof “beyond reasonable doubt” laid down in interstate cases, explicitly relying on Ireland v. the United Kingdom , and explained:

“it has never been [the Court’s] purpose to borrow the approach of the national legal systems that use that standard in criminal cases. The Court’s role is to rule not on guilt under criminal law or on civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the High Contracting Parties of their engagements to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.” [65]

It then reiterated that in cases in which there are conflicting accounts of the events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When the respondent Government have exclusive access to information capable of corroborating or refuting the applicant Government’s allegations, lack of co ‑ operation by the former without a satisfactory explanation may give rise to the drawing of inferences as to the well-founded nature of the applicant Government’s allegations. Where a failure to disclose is established, a strong presumption works in favour of the applicant Government, particularly when findings or inferences of fact are the result of investigations which are serious, consistent and corroborated by other sources. [66] While the cases just referred to post-date the original judgment, all reflect the principle of effective cooperation enshrined in the Convention in Article 38, previously Article 28. Respect for that principle is considered intrinsic to the effective operation of applications under Articles 33 and 34, previously Articles 24 and 25.

49. Did the duty to disclose relevant and available information and cooperate with the Convention institutions in the gathering of evidence and the establishment of facts cease because the respondent State did not contest the Commission finding of torture? The revision judgment appears to be at least partly premised on this idea. However, the Court made clear that it had jurisdiction to reopen the uncontested findings. As such, the United Kingdom’s no contest cannot have been the basis for it or the Court, which had decided to reopen a central question and exercise its jurisdiction, to ignore principles of fundamental importance to the authority of the Court and the exercise by it of its Article 19 tasks.

E. Examination of the revision judgment

50. The terms of Rule 80 are clear: the fact(s) relied on must have been unknown to the Court at the time of the original judgment, could not reasonably have been known to the applicant Government at that time and the latter must have acquired knowledge of those facts in the six months prior to lodging their request to revise.

1. First limb relating to the medical evidence

(a) Medical evidence - new facts?

51. When accepting that the 6-month time-limit had been complied with, the chamber concluded unanimously that the documents containing the new facts on which the applicant Government relied could not have been known to it until the RTÉ broadcast on 4 June 2014 (§§ 86-90 and §§ 93-95 of the revision judgment). In § 89 of the revision judgment, the following is clearly stated (emphasis added):

“This requirement relates 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. ” [67]

52. After examining the documents submitted in relation to the medical evidence limb, the majority concede that they provide sufficient prima facie evidence in support of the applicant Government’s position. [68] This conclusion meant that the medical evidence limb would be examined with reference to whether the documents now available and the new facts they disclose might have had a decisive influence on the original judgment.

53. However, when reaching this conclusion on the prima facie sufficiency of the evidence the majority went to some length to explain its “doubts” regarding the new facts and evidence relied on. According to the majority: the “new” facts regarding Dr. L’s medical evidence post-dated the Commission hearings (§109); the new medical evidence related to a Mr. S.K. who was not, however, one of the two illustrative cases on which Dr. L had given evidence to the Commission (§ 109); the new evidence in relation to Mr. S.K., who died soon after he was examined by Dr. L. in 1975, is irrelevant as it simply proves his prior ill-health, is not proof of generalized long-term effects and does not reveal that statements made in respect of the effects of the five techniques were misleading or made in bad faith (§ 109), and new evidence detailing medical examinations of other detainees which indicated that the interrogation method had had long-term serious effects and the discussions which took place leading to settlements of domestic proceedings for damages is deemed irrelevant or to have been known (§§ 110-111).

54. I respectfully disagree with my colleagues’ analysis of the original case and of the material submitted under the medical evidence limb in support of the revision request. Firstly, it is true that the evidence of Dr. L. and others indicating recognition of the long-term, serious, psychiatric effects of the five techniques post-date the Commission hearings. However, the original proceedings commenced on 10 December 1971, when the application was lodged with the Commission, and terminated on 18 January 1978, when the original judgment was handed down. As such, the Commission hearings cannot be taken as the sole point of reference, particularly given the extensive written and oral submissions subsequently made before the Court in 1976-1977 (see §§ 17-19 above). Reference to the conflict of expert opinion on the seriousness of the psychiatric after-effects of the five techniques pepper the parties’ submissions to the Commission, the Commission’s analysis and that of the Court in the original case. [69] The medical evidence submitted by Dr. L., insisting on their minor, short-term effects, formed part of the case submitted to the Court and had been the basis for the Commission stating that it could not take a clearer position on long-term effects. It was central to the Court’s assessment of the intensity of the detainees’ suffering. Dr. L.’s evidence to the Commission was never amended or supplemented with reference to the different medical evidence compiled by him and others and relied on in domestic proceedings which were progressing in parallel to the Convention proceedings before both the Commission and Court.

55. Secondly, while it is also true that the new medical evidence related to examinations of Messrs. S.K., B.T. and W.S. and that none of these men were one of the two illustrative cases heard by the Commission, all were amongst the 14 detainees subjected to the five techniques. As is clearly stated in §§ 11-13 of the revision judgment and as outlined in §§ 20-24 above, medical evidence of a specific nature in relation to T 6 and T 13 and of a general nature regarding the effects of the five techniques was before the Commission and the Court. Furthermore, it is here the revision judgment begins to stray far from the terms and scope of the original judgment. The latter found an administrative practice in relation to 14 detainees in breach of Article 3 of the Convention. It did not find a breach merely in relation to two illustrative cases. Reference to illustrative cases had, moreover, been a method preferred by the Commission for reasons of procedural economy. Medical evidence both general and specific in relation to the effects of the five techniques and any of the 14 detainees remained relevant because that is where the conflict of evidence lay. Furthermore, 11 of the 14 detainees had been the subject of the Compton Report which was the only item of direct evidence filed by the respondent Government. In addition, while an interstate case where an administrative practice is at issue does not involve the Court giving a ruling on individual violations of Convention rights, individual cases that have been brought to its attention can and must be examined as evidence of a possible practice. [70] As the Court clearly stated in a revision context in Pennino and other cases, referred to above, parties are obliged to bring to the attention of the Court all relevant facts which have been produced in the domestic legal order. As outlined in the duty of disclosure case-law (see §§ 42-48 above), active assistance and cooperation are a prerequisite for the Convention institutions to exercise their jurisdiction effectively. The majority’s approach to illustrative cases should be a cause for concern in future and pending interstate cases and beyond. [71]

56. Thirdly, according to the majority, Mr. S.K.’s state of health was such that medical evidence in relation to him should be treated as irrelevant in the assessment of the overall effects of the five techniques. However, the assessment of treatment with reference to Article 3 is, according to the case-law, in the nature of things, relative. It depends on circumstances, duration, physical and mental effects and, in some cases, sex, age and state of health (see § 131 of the revision judgment and § 162 of the original). The majority picks and chooses which of the factors listed it considers relevant, for what purpose and when it will accord them relevance. In this part of the revision judgment the state of health of a detainee is not considered relevant for the assessment of the long-term effects of the five techniques while later, in §§ 134-135, the relevance of long-term effects for the overall assessment of the treatment inflicted is downgraded or excluded. However, if the factors listed in § 162 of the original judgment and relied on in Article 3 case-law ever since are relevant to assessing whether the Article 3 minimum threshold is crossed, they are and were also relevant in the overall assessment of the impugned treatment. [72] Mr. S.K.’s state of health was recorded in the medical entry records at the Ballykelly interrogation centre but the five techniques were administered in any event. In addition, it is erroneous to reduce the applicant Government’s argument to one of bad faith on the part of Dr. L. or to the treatment of one of the detainees, Mr. S.K. As stated previously, the applicant State makes very clear that Dr. L.’s evidence fits, in its view, into a larger overall pattern and attitude adopted by the respondent Government in the original proceedings.

57. Finally, while the documents relating to settlement of the domestic proceedings may not be determinative, they are illustrative of the nature and effect of the new facts alleged, namely that the seriousness and duration of the mental and physical effects of the five techniques after they were no longer applied was something presented differently before the Commission and the Court on the one hand and in the context of domestic proceedings on the other. Evidence in relation to the serious and long-term effects of the five techniques was being reported in relation to detainees other than Mr. S.K. (Messrs. B.T. and W.S. for example) in the period covered by the original proceedings up until the Court’s original judgment. This new evidence is noted in para. 111 of the revision judgment but is again dismissed as “none of the men referred to had been among the illustrative cases”. For the reasons outlined in § 55 above, this reasoning does not hold water. Moreover, in the proceedings before the Commission, the applicant Government had criticised the fact that while the respondent Government had received all of the evidence on which the complaints were based, it had filed no rebutting evidence in relation to several of the illustrative cases and had refused to submit the facts investigated and the evidence obtained in those domestic proceedings. Some of that undisclosed material is now before the Court.

58. Given the fact-finding procedure established in the original proceedings, the conduct of those proceedings and the manner in which they fed into the reasoning adopted in the original judgment, the doubts expressed in §§ 109-113 of the revision judgment are both unfounded and surprising.

(b) Medical evidence - decisive influence

59. The revision judgment establishes the relevant test as follows:

“it must 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.” [73]

As highlighted previously, with reference to established revision case ‑ law (see § 15 above), procedure, reasoning and conclusions are all relevant when assessing whether this test is met.

60. The revision judgment emphasises two points which the revision request never sought to call into question. Firstly, the distinction between inhuman and degrading treatment and torture derives from the intensity of the suffering inflicted. Secondly, the assessment of the different degree of the intensity in suffering must depend on a number of elements. [74] However, according to the majority, since the original judgment did not explicitly mention the issue of possible long-term effects in the legal assessment, it was difficult to attach any particular importance to uncertainty as to the long-term effects of the five techniques, let alone afford this element decisive influence. Without an indication in the original judgment to the effect that, had severe long-term psychiatric effects been proved, this one element would have led the Court to decide differently, then the majority finds that it cannot conclude that the new facts relied on might have had a decisive influence (§§ 134-135 of the revision judgment).

61. The effect of this reasoning is to ignore the path which led to the key paragraphs of the original judgment on torture, to diminish in stature both the content and effect of the original judgment as a consequence, to devalue the evidence which was available to the Commission and Court at the relevant time and to ignore, once again, the terms and content of the revision request. Moreover, the “decisive influence” criterion in Rule 80 is adapted to suggest that the new element(s) on which the applicant Government sought to rely had to constitute the one or a decisive element in its legal definition of torture.

62. Medical evidence played an important, indeed central, role in Ireland v. the United Kingdom . [75] The Commission made clear that it regarded it, where not contested, as the most important objective evidence. It examined that evidence and its value for the establishment of the facts before it examined evidence from members of the security forces and the case witnesses. The revision judgment concedes that the effects of the treatment on the victim was one of the elements considered at the time of the original judgment in assessing whether the treatment fell within the scope of Article 3 but it argues that the relevance of the long-term effects of a treatment when distinguishing inhuman and degrading treatment and torture only emerged years later. [76] However handy or superficially convincing this reasoning might at first sight appear, an examination of the original proceedings, the original judgment and indeed the dissents reveals it is mistaken. The dissenting judges, all of whom were present in the deliberations, highlighted the modern and systematic nature of the treatment administered, as well as the centrality to the judicial discussion of the treatment’s purpose and effects:

“the [Commission and Court] definitions of torture concentrate on the effects of the acts in question on the victim.” [77]

Furthermore, the nature of non-physical torture and the effects of severe psychological pressure were not new to the Convention institutions, which had already examined such features in the Greek case . [78]

63. We now know that medical evidence on the long-term psychiatric effects of the five techniques was available but not disclosed to either the Commission, before its report was published, or to the Court, for two years when the case was pending before it (see §§ 21-27 and §§ 109-112 of the revision judgment).

The revision request did not seek to question the legal definition of torture established by the Court in 1978. It did not seek to establish that, had the Court in 1978 had available to it what the Court in 2018 now has available to it, it would have altered its legal definition of torture or the special stigma attached to torture. Instead the revision request sought to establish that, when applying that legal definition in the circumstances of this case the Court would not have departed from the Commission’s factual assessment as to the effects of the five techniques and the intensity of the suffering endured as a result of their administration. Newly available evidence on the effects which the five techniques had on detainees as well as extensive evidence on the extent, nature and purpose of non-disclosure would have made it very difficult, if not impossible, to displace the Commission’s unanimous finding of torture in the circumstances of this case. It is now clear, for example, that the non-attendance of certain witnesses or the refusal of others to answer questions was not only or primarily to protect their security. There is no doubt that the Court in 1978 was, pursuant to Article 55 of the Convention, “master of its own procedure and of its own rules and had complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it”. [79] However, this jurisdiction would have also extended to assessing the impact of evidence not placed before it, probing why that evidence had not been disclosed and deciding how, once disclosed, it completed the overall picture on the long term physical and mental effects of the five techniques.

The decision not to categorise the treatment inflicted as torture was based on the Court’s assessment of the degree of intensity of the suffering inflicted. However, the majority appear to limit that assessment to the mental and physical suffering during the interrogation itself, excluding the relevance of physical and mental after effects. I respectfully disagree with their analysis of the original judgment in this regard. Questions relating to the severity of effects and intensity of suffering were clearly assessed with reference to the medical evidence made available. There was a conflict of evidence on the long-term effects of the five techniques simply because, as we now know, not all evidence was disclosed. [80]

2. Second limb relating to the non-disclosure evidence

(a) Non-disclosure evidence - new facts?

64. Were the new facts disclosed in support of the second limb unknown to the applicant Government and to the Court at the time of the original judgment?

65. As regards the applicant Government, the revision judgment does not directly address this point. Again, one can deduce from §§ 89, 93-94 of the revision judgment on the 6-month time-limit that if the applicant Government acquired knowledge of the “new facts” or of the documents containing those new facts in June 2014, they could not have known of them in January 1978. The use of “alleged new facts” and “potentially disclosing new facts” in the revision judgment appears to be a means to undermine at this early stage in the judgment the probative force (or “newness”) of what is deemed admissible for having complied with the six ‑ month time bar.

66. As regards the Court, the revision judgment concludes that the facts revealed in the documents relied on in support of the non-disclosure limb were known to the Court when the original judgment was delivered in January 1978 (§ 118 of the revision judgment). In brief, the majority appear to conclude that the documents uncovered may be new but that the facts they reveal are not. Furthermore, according to the majority, what the applicant Government may have alleged but did not know – and could not prove – in 1978, the Court knew when the original judgment was delivered.

67. The conclusion of the majority in § 118 of the revision judgment is striking. Because the Court in 1978 “regretted” the attitude of the respondent Government (see § 148 of the original judgment) and, implicitly, because the respondent Government did not contest the Commission’s finding of torture, the non-disclosure limb crumbles. Here too, I respectfully disagree with my colleagues. The documents containing the new facts or materials are summarised in §§ 22-43 of the revision judgment. They speak for themselves. Suffice it to point out that several documents reveal that knowledge and authorisation of the five techniques was at ministerial level. As indicated in the Greek case (see § 40 above), that level of authorisation would have been central to the assessment of the seriousness of any breach flowing from the existence or exercise of an administrative practice. The documents also reveal that one government minister referred, at a time when the case was pending before the Court, to “the decision to use torture in Northern Ireland” (§ 43 of the revision judgment). A Secretary of State for defence quickly suggested a more suitable, neutral choice of language ‒ preferring “the decision to use interrogation in depth” (ibidem). In terms of an overall assessment of the circumstances surrounding Operation Demetrius and administration of the five techniques, both these documents, while not determinative, are new and highly relevant. Notes on Foreign and Commonwealth Office documents indicate the view of one official – “We have always said that S’bg should not be allowed to affect what is right and necessary in NI” (§ 41). Other material indicates that the Standing Order for the running of the interrogation centre at an undisclosed location were for the Attorney General’s information only. The majority prefers to view the documents detailed in §§ 22-43 of the revision judgment in terms of the respondent Government’s litigation strategy (see § 114 of the revision judgment) despite repeated references to the possibility of damaging allegations of or findings against Her Majesty’s Government (HMG), or individual members of it, for conspiracy (see the material reproduced at §§ 31, 33 and 38 of the revision judgment). Despite being faced with this new material, and despite the inferences standard established in the Greek and Ireland v. the United Kingdom cases working generally to the disadvantage of the obstructing party, [81] the majority concludes that the relevant facts were “not unknown to the Court” in 1978.

68. Whether or not knowledge of these documents and their contents might or would have been regarded as capable of having a decisive influence at the relevant time, I have difficulty understanding how the Court could have known of facts in 1978 which, in § 89 of the revision judgment it recognises were contained in documents, previously classified, which could only have been known to the applicant State long after the conclusion of the original proceedings. To dismiss the non-disclosure core of the revision request for the reasons outlined in §§ 114-118 bears little relation to the original proceedings, to how the Commission obtained, assessed and established the facts, to the obstacles encountered on the way, or indeed to the reasoning followed by the Court in 1978 en route to the conclusion in §§ 167 and 168 of the original judgment on which the majority now exclusively rely.

69. I referred previously to the judgment in McKenna , a judgment handed down by the High Court of Justice in Northern Ireland in October 2017. That case concerned the procedural limb of Articles 2 and 3 and the need or absence of an effective investigation in relation to the treatment of the 14 detainees. It was lodged before that court following the discovery and on the basis of the archival material now before this Court. While the object of the two proceedings is distinct, the material examined is similar or identical. In relation to the archival material, McGuire J. stated that it was necessary to treat it “with some circumspection” as:

“there could be no serious argument that the court is obtaining a full, as against a partial, picture of events. Self-evidently, there will have been, and perhaps still are, many other documents which the court has not seen.”

In addition, he considered that it ought also to keep in mind that many of the documents the domestic court was looking at arose from a different era. [82] Despite this very wise and legitimate circumspection, having considered the factual background in some detail, together with the extensive documentary material with which the High Court was provided, and before addressing the law, McGuire J. stated that “there is evidence which supports the view that informed authorisation in advance was given by one, if not two, Cabinet Ministers, as well as by the Northern Ireland Minister for Home Affairs”. [83] The state of knowledge of the authoriser was, he said, a subject which had been “largely finessed in the official line” at the time of the original proceedings. [84] Furthermore, it is stated that, after the interrogation in depth of twelve of the detainees but before administration of the techniques to two others in October 1971, the Minister for State was both briefed on the interrogation and watched a demonstration of the five techniques. [85]

As indicated previously, the legal questions before the High Court of Justice in McKenna and this Court under Rule 80 are different. Nevertheless, the assessment by the two courts of the archival material now available and of the facts contained therein differs markedly. [86] In short, it is difficult to understand how this Court knew as established facts in 1978 what others suspected but were previously unable to prove until the archive material had been declassified, found and compiled.

(b) Non-disclosure evidence - decisive influence

70. In my view, the Chamber could and should have examined both limbs of the revision request under the decisive influence criterion. When doing so, it might have been possible to argue that, no matter what new facts or evidence are now before us – evidence not disclosed to the Commission or Court between 1971 and 1978 – none of it would have changed the decision of the Court in 1978 to overturn the unanimous finding of torture by the Commission and find instead a violation due to inhuman and degrading treatment. The 1978 Court, the revision judgment would thus have said, decided to use the occasion offered by the referral of the Ireland v. the United Kingdom case to ensure that there were gradations of treatment causing suffering covered by Article 3 and that torture corresponded to the gravest form. It might also have been possible to recognize openly, in 2018, that the Court in 1978 had been unwilling to find the United Kingdom, a founding father of the Convention system, responsible for a violation to which a special stigma attached.

71. However, even such an approach, characterised by “realpolitik”, would be open to challenge. The Court had declared in the original judgment that it proceeded on the basis of “all the material before it, whether originating from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu ” (§ 161 of the original judgment). We know that it did not obtain material proprio motu and we now know that the material before both it and the Commission was incomplete in several important and one crucial respects. As stated previously, the revision request did not seek to alter the Court’s 1978 legal definition of torture. Rather it sought to establish that new evidence regarding the nature and intensity of the suffering which the five techniques inflicted, combined with the inferences which the Court clearly stated it would draw from non-disclosure and obstruction – of which it now has evidence – might or would have had a decisive influence. At the very least, if furnished with the new evidence now before the Court, it seems inevitable that, before overturning the uncontested, unanimous decision of its fact ‑ finding body, which had seen and cross-examined the witnesses and tested the probative value of the evidence before it over years, the Court in 1978 would have had to obtain new evidence proprio motu . Otherwise, as it stated in § 184 of the original judgment, it risked arriving at “extremely tenuous conclusions”. [87]

72. Furthermore, it should not be forgotten that the Court’s decision to exercise its jurisdiction in relation to the uncontested finding of torture was motivated by the fact that its judgments “elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (Article 19) (art. 19)”. [88] It is difficult to see how a Court, faced with the extensive material now available to the revision Chamber, would consider that ignoring that material and the obstruction it reveals would serve to contribute to the observance by the obstructing party, or any other Contracting Party, of the engagements undertaken by them.

73. The judgment in Ireland v. the United Kingdom established the first definition of torture under Article 3 of the Convention and remains a landmark in that regard. However, it was also the first interstate case to proceed to judgment. The majority in the present case did not consider whether a court then in its infancy could have afforded to be cavalier when it came to the duty of Contracting Parties to cooperate with the Convention organs in order to ensure the effective functioning of the Convention system. As the Court made clear in Georgia v. Russia n o 1, the specificity of its task under Article 19 of the Convention conditions its approach to the issues of evidence and proof in interstate cases, but also to that of non ‑ disclosure and obstruction. [89] A Court which is called on to intervene in political and highly sensitive inter-state cases knows the threat to the certainty and authority of its own rulings – the values which the principle of legal certainty also seeks to protect ‒ of turning a blind eye on a policy of extensive non-disclosure and obstruction.

F. Concluding remarks

74. The majority has opted for an extremely narrow version of what the Court was dealing with in 1976-1978 and has excluded or severely narrowed the relevance of the Commission and Court proceedings which led to the two concluding paragraphs of the original judgment on which almost exclusive reliance is placed. Inadvertently, in order to dismiss the revision request, the reasoning preferred by the majority diminishes in places the content and stature of the original judgment.

The principle of legal certainty is recognised, correctly, as being of fundamental importance. However, it appears to have been used in the instant case in three peculiar ways. Firstly, the majority proceeded on the basis that only absolute certainty as to the alternative outcome sought – a finding of torture given the new material disclosed – would suffice to overturn the original judgment. It is never made clear from whence this standard proceeds. [90] Secondly, the “decisive influence” criterion in Rule 80 is adapted. According to the majority, for the conditions under Rule 80 to have been met, it had to be demonstrated that proof that the long-term effects of the five techniques would have been the one or decisive element which would have led the original Court to a finding of torture. There is a remarkable degree of judicial acrobacy in § 135 of the revision judgment in this regard. Thirdly, there is an underlying supposition that the absolute certainty referred to above would also have had to be accompanied by a (near) unanimous finding of torture. Yet, in sensitive cases in particular the Plenary or Grand Chamber is often divided. The question, in reality, was whether the material now disclosed would, if known at the relevant time, have led five of the 13 majority judges to cross the floor. The majority have sought certainty where only probability can apply.

75. For the reasons outlined above, I consider that it would. Both limbs of the revision request reveal new facts which were unknown both to the Court and to the applicant State when the original judgment was handed down. Those new facts reveal (i) that medical expertise was available to the respondent Government pointing to the long-term serious mental effects of the five techniques, such that in reality there was no conflict of evidence on this crucial point which related to the intensity of the suffering endured, and (ii) the existence, nature, extent and purpose of a policy of non-disclosure and obstruction by the respondent State. Also for the reasons outlined above, I consider that those new facts might or would have had a decisive influence when the Court considered whether it should confirm or overturn the unanimous Commission finding of torture. It should not be forgotten that this was a finding which the respondent State, much to its credit, had not contested at that time.

76. In 1978, the Court decided not to draw certain inferences from what was alleged but could not then be proved as being the conduct of the respondent State. In 2018, a majority of the chamber has decided to ignore the bigger picture now available to it on the grounds that the principle of legal certainty must prevail. However, it is difficult to see in what way legal certainty was endangered in a case where a violation of Article 3 had in any event been found, where the respondent State did not contest the Commission finding of torture and where the revision request sought not to call into question the legal principles established but rather their application in the circumstances, now properly demonstrated, of the original case.

77. In my view, 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. I regret that my colleagues in Chamber were not able or willing to see this. Revision must remain exceptional and requests should, where appropriate, be defeated by the very legitimate and fundamental principle of legal certainty. However, in the present case it is difficult to avoid the impression that it is the Court which has sought to shelter itself behind that principle. By doing so it risked damaging the authority of the case-law which that principle seeks to safeguard and overlooking its own responsibilities pursuant to Article 19 of the Convention. [91] I can only conclude with regret − in a similar vein to my predecessor in the original case – that there is much in the general approach of the original and revision judgments that must discourage Member States from invoking Article 33 of the Convention and, regrettably, much to encourage future respondent States with reference to which that article may be invoked.

[1] Application n° 5310/71, 18 January 1978, Series A no. 25, hereafter the “original judgment”.

[2] See pp. 389-402 of the Commission Report; § 96 and §§ 165-168 of the original judgment, and §§ 13-14 of the revision judgment. In the Compton Report, which was presented as evidence to the Commission, it was stated that periods totalling nine to 43.5 hours were spent at the wall in the required posture but that records for the August detainees were mostly discontinued during the course of their detention (Commission Report pp. 247-248). On the question of probable recourse to physical violence in some cases, see p. 413 of the Commission Report. In §§ 105, 169 and 170 of the original judgment, although it procured no new or additional evidence proprio motu , the Court found that, except in relation to one of the two illustrative cases (T 6), there was no evidence to support a finding of a breach of Article 3 over and above that resulting from use of the five techniques in relation to the other 13 men. The 14 detainees are designated by their initials in the revision judgment and, accordingly, in this separate opinion. Their names are, however, in the public domain.

[3] §135 of the revision judgment (emphasis added).

[4] See A and others (no. 2) [2006] 2 AC 221, § 53, citing § 101 of Selmouni v. France [GC], n° 25803/94, 28 July 1999.

[5] McKenna, re judicial review [2017] NIQB 96, §§ 252-254 (emphasis added), citing both A and others and Selmouni . On 6 th February 2018, when the present case was deliberated, no information was forthcoming regarding whether the High Court judgment in McKenna would be appealed.

[6] See § 125 of the revision judgment and the reference to Harkins v. the United Kingdom (dec.) [GC] n° 71537/14, § 56, ECHR 2017.

[7] § 94 of the revision judgment.

[8] §§ 154-155 of the original judgment.

[9] Austria v. Italy , no. 788/60, admissibility decision of 11 January 1961. See also Cyprus v. Turkey [GC], n° 25781/94, 10 May 2001, § 78 on the Convention “as an instrument of European public order”.

[10] See the submissions of the United Kingdom Government, reproduced in the Commission Report, p. 339. See also the submissions of the Irish Government, Transcript of proceedings on 14 March 1975, p. 131: “[…] long after the tragic events which the people of Northern Ireland are now experiencing will have come to an end, this case will be read and studied. Its influence will be immense and lasting [and] will set standards, not just in relation to the five techniques, but also in relation to the behaviour of security forces […]”.

[11] See, inter alia , Pardo v. France (revision – admissibility), n° 13416/87, 10 July 1996, § 22, Reports of Judgments and Decisions 1996-111; Gustafsson v. Sweden (revision - merits), n° 15573/89, 30 July 1998, § 27, Reports 1998-V (which connects the Court’s reasoning and its conclusions); Stoicescu v. Romania (revision), n° 31551/96, 21 September 2004, § 38 (which explicitly refers to the relevance of procedure); Hertzog and others v. Romania (revision), n° 34011/02, 14 April 2009, § 15 and Cernescu and Manolache v. Romania (revision), n° 28607/04, 30 November 2010, § 11.

[12] See, for example, §§ 109 – 113 of the revision judgment, where the majority concede the prima facie relevance of the new facts submitted under the medical evidence limb while undermining this finding through the expression of a series of “doubts”. The unfounded nature of the latter is discussed further below.

[13] See pp. 5-6 of the Commission Report.

[14] See, in particular, pp. 398-399 of the Commission’s Report.

[15] See §§ 147 and 152 of the original judgment. See further Ireland v. the United Kingdom , Series B: Pleadings, Oral Arguments and documents, no. 23-11, at p.345, where the respondent Government recognised: «the full gravity of the adverse conclusions of the Commission under Article 3. We have chosen not to put those conclusions in issue before the Court either as regards the ‘five techniques’ or as regards the adverse conclusions under Article 3. We fully accept their value and importance in setting the international standards of acceptable conduct required by Article 3 of the Convention». This fact, combined with the undertaking not to reintroduce the five techniques, led the United Kingdom to argue that questions relating to the five techniques were moot (§ 152 of the original judgment).

[16] § 6 of the original judgment.

[17] § 8 of the original judgment.

[18] Ibid., §§ 160-168 and operative parts 3 and 4. See also § 56 of the judgment in McKenna , cited above.

[19] Commission Report, pp. 224-225. See also the Commission Report in Cyprus v. Turkey , n° 6780/74 and 6950/75, 10 July 1976, § 77; §§ 111 and 339 of the judgment in Cyprus v. Turkey , n° 25781/94, where it was stated that resort to illustrative cases was justified by time constraints and the Commission’s assessment of the relevance of additional witness testimony, and later Georgia v. Russia n° 1 [GC], n° 13255/07, 3 July 2014, § 128.

[20] § 103 of the original judgment. The case of T 22 was examined in conjunction with a group referred to as the “41 cases” – see § 106 of the original judgment, where it is indicated that the Commission found in relation to T 22 that there was a strong indication that the course of events was similar to that found in the illustrative case(s).

[21] T 6 (referred to in the revision judgment as Mr. P.S), and T 13 (referred to as Mr. P.C) gave evidence to the Commission on 26-27 and 27 November 1973. At p. 232 of the Commission Report it is indicated that 13 witnesses relating to the 8 illustrative cases referred by the applicant Government were heard and that two doctors gave evidence in relation to 6 of those cases. On p. 242 of the Report it is explained that the Commission heard evidence in one additional illustrative case – choosing a substitute case proposed by the applicant Government – but it decided not to hear oral evidence in further illustrative cases.

[22] §§ 146 and 161 of the original judgment and §§ 11-13 and § 107 of the revision judgment.

[23] See the Commission Report, p.275, and the respondent Government’s Attorney General: “How that administrative practice may have arisen is not a matter which is of any importance so far as these proceedings are concerned. […] The questions of official tolerance, of orders and so on, would be material if we made no such concession.”

[24] Medical evidence was provided by Professor Daly, a professor of psychiatry and Clinical Director of the Southern Health Board Psychiatric Service, who had worked with the Royal Air Force and Professor Bastiaans, a professor of psychiatry at the University of Leiden, who had treated Nazi death camp survivors, who were called by the applicant Government. Dr. L. was the only expert witness employed by the respondent Government. He was a consultant psychiatrist to the British army and was questioned by the Commission on 15 June 1974 and 18 January 1975. He also acted as medico-legal expert for the defence in the civil cases brought at domestic level. A consultant psychiatrist and neurologist called by the Commission, Dr. O’Malley, had examined two of the internees (Mr. P.C. and Mr. P.S.) in Crumlin Road prison when they were released in August 1971 and he examined Mr. P.S. a second time in August 1972.

[25] See, in particular, pp. 398-402 of the Commission Report.

[26] In McKenna , cited above, the taking of evidence in the original proceedings is described in the following terms: “The overall issues were subjected to careful consideration and evidence taking, albeit on a limited scale. Ultimately, the UK Government conceded the administrative practice point but the issue of the impact of deep interrogation on the mental health of the individual who was the subject of it was contested”.

[27] Transcript 12-15 June 1974, at p. 438.

[28] In the material submitted in the context of the revision proceedings reference is made to medical examinations of Messrs. S.K., B.T. and W.S.

[29] Commission Report, p. 398.

[30] See § 93 of the original judgment.

[31] § 161 of the original judgment.

[32] Contrast the approach in Cyprus v. Turkey (judgment).

[33] § 184 of the original judgment.

[34] See variously pp. 107 et seq., pp. 153 et seq. and pp. 396-398 of the Commission Report.

[35] See variously pp. 117-122 and p. 275 of the Commission Report; §§ 97 and 146 of the original judgment.

[36] Commission Report, pp. 333-334.

[37] § 148 of the original judgment (emphasis added).

[38] See § 161 of the original judgment.

[39] Idem (emphasis added). On conduct and inferences see the minority judges: Evrigenis - “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 (…) confirms this conclusion (of torture)”; Matscher, who commented that, the respondent Government had been very unforthcoming during the enquiry such that “an unfettered assessment of the evidence does not operate in their favour”; Zekia, who noted that withholding of evidence and a non-cooperative attitude by a respondent State no doubt might cause the Commission to draw adverse inferences, and reference to the sad lack of cooperation shown by the respondent Government to the Commission and its delegates observed by O’Donoghue, who also noted, with regret, that there was “nothing even approaching disapproval by the Court at the non-cooperative attitude of the respondent Government”.

[40] While Rule 80 refers explicitly to “a fact which might by its nature have a decisive influence ”, when the substance of the request is being examined the Court has decided that it “will examine whether the evidence adduced by the applicant in the revision proceedings would actually have had a decisive influence on the judgment”. See, for example, the Pardo judgments, § 10 (admissibility) and § 23 (merits) (emphasis added), or Gustafsson (revision – merits), §§ 27 and 32). Between §§ 120, 123, 125 and 135 of the revision judgment, the majority waiver between “would” and “might”.

[41] § 78 of the revision judgment. While Pardo (revision - admissibility), § 21, concentrated on strict scrutiny as regards admissibility, an approach reflected in the context in which Rule 80 is relied on in the Grand Chamber’s recent decision in Harkins , §§ 53-54, Gustafsson (revision – merits), § 25, extended strict scrutiny to admissibility and merits.

[42] For a sense of why see Judge Maruste, dissenting in McGinley and Egan v. the United Kingdom (revision) (nos. 21825/93 and 23414/94, judgment of 28 January 2000): “allowance must always be made for exceptions on a case-by-case basis (…), the more so where the application of a procedural rule may jeopardise the exercise of a substantive right”.

[43] See §§ 82-95 of the revision judgment.

[44] See §§ 98-103 of the revision judgment.

[45] § 159 of the original judgment and, previously, the Greek case [no. 3321/67, D enmark v. Greece ; no. 3322/67, Norway v. Greece ; no. 3323/67, Sweden v. Greece ; no. 3344 Netherlands v. Greece ] (Report of 18 November 1969) 12 Yearbook 186], § 28. See, soon after, France, Norway, Denmark, Sweden and the Netherlands v. Turkey , n° 9940-9944/82, Commission decision of 6 December 1983, § 19, or, more recently, Georgia v. Russia n° 1, § 123.

[46] § 159 of the original judgment; pp. 384-387 of the Commission Report. Once again, see also § 29 of the Report in the Greek case.

[47] § 159 of the original judgment; later relied on in, for example, France, Norway, Denmark, Sweden, Netherlands v. Turkey , n os 9940-9944/82, admissibility decision of the Commission of 6 December 1983, § 22. See also the judgments in Cyprus v. Turkey , § 115 or Georgia v. Russia n° 1 , § 125.

[48] Commission Report, p. 385.

[49] See Stocké v. Germany , n° 11755/85, 19 March 1991, § 53; Cruz Varas and others v. Sweden , judgment of 20 March 1991, Series A no. 201, p. 29, § 74; Kraska v. Switzerland , judgment of 19 April 1993, Series A n° 254 ‑ B, § 22, or Aydin v. Turkey , n° 23178/94, 25 September 1997, §§ 70-73.

[50] See Aydın v. Turkey , judgment of 25 September 1997, Reports 1997-VI, pp. 1888–89, § 73. See also the detailed reasons provided by the Court to explain on other occasions why it would not overturn the Commission’s decision and the circumstances which led it to conclude that the establishment of the facts by the Commission was based on the appropriate evidentiary requirement: Mente and others v. Turkey , n° 23186/94, 28 November 1997, §§ 66-69; Selçuk and Asker , n° 23184/89, 24 April 1998, Reports 1998-II, §§ 53-57 or Kurt , n° 24276/94, 25 May 1998, Reports 1998-III, §§ 94-99.

[51] See, for example, Denizci and others v. Cyprus , n os 25316-25321/94 and 27202/95, 23 May 2001, § 315 et seq.

[52] § 161 of the original judgment.

[53] See Rules 44A, 44B and 44C. See also, prior to Ireland v. the United Kingdom , Part V of the Commission Report in the Greek case, p. 503.

[54] Hudoc research indicates this “inferences” paragraph appears in 1 Ukrainian case, 12 Turkish cases and 152 Russian cases. See also, at the relevant time, the Commission Report on the Greek case , § 34, where it took into account the respondent Government’s refusal to give the Commission delegates access to individuals who might have given direct evidence of torture or ill-treatment and Artico v. Italy , n° 6694/74, 13 May 1980, Series A. no. 37, §§ 29-30. See subsequently, Tanrikulu v. Turkey [GC], no. 23763/94, 8 July 1999, §§ 69-70.

[55] N° 23531/94, ECHR 2000-VI, § 66. See also Akkum and others v. Turkey , n° 21894/93, 24 March 2005, § 211; Khadisov and Tsechoyev v. Russia , n° 21519/02, 5 February 2009, §§ 176-177; Shakhgiriyeva and others v. Russia , n° 27251/03, 8 January 2009, § 134; Medova v. Russia , n° 25385/04, 15 January 2009, § 76; Utsayeva and others v. Russia , no. 29133/03, 29 May 2008, § 149, or Lisnyy and others v. Ukraine and Russia , n° 5355/15, 5 July 2016, §§ 25-26.

[56] Ahmet Ozkan and others v. Turkey , no. 21689/93, 6 April 2004, § 481 (emphasis added). The Court found substantive violations of Articles 2 and 3 but not a separate violation of Article 38 in the circumstances of that case.

[57] §§ 25-26 and 31 of the Commission’s Report in the Greek cases. See also pp. 384-388 of the Commission Report.

[58] See, for example, Karov v. Bulgaria , n° 45964/99, 16 November 2006, § 97 and Giuliani and Gaggio v. Italy [GC], n° 23458/02, 24 March 2011, §§ 341-344.

[59] See, for example, Hadrabova v. Czech Republic , n° 42165/02 and n° 466/03, 25 September 2007, where this question was examined in the context of abuse of the right to individual petition.

[60] See, for example, Taş v. Turkey , no. 24396/94, 14 November 2000, § 54; Orhan v. Turkey , no. 25656/94, 18 June 2002, §§ 266-275; Süheyla Aydin v. Turkey, no. 25660/94, 24 May 2005, § 143; Trubnikov v. Russia , n° 49790/99, 5 July 2005, §§ 50-52 and 57; Nevmerzhitsky v. Ukraine , n° 54825/00, ECHR 2005-II (extracts), §§ 76-77, where the respondent State had refused to provide “detailed information and to comment on the conditions of the applicant's detention in the isolation cell and his general conditions of detention, his medical treatment and the medical assistance provided to him”.

[61] See, for a recent example, with multiple references, Albertina Carvalho v. Portugal , n° 23603/14, 4 July 2017, §§ 27-33.

[62] Pennino v. Italy (revision), n° 43892/04, 8 July 2014, § 19.

[63] Gardean , §§ 11, 15, 18 and 20; Cernescu and Manolache , §§ 7, 11 and 13 and Hertzog , §§ 11, 15 and 17.

[64] See, for example, the Greek case, Annex VII and p. 197, § 34 of the Report; and Cyprus v. Turkey , n° 8007/77, Commission Report 4 October 1983, pp. 11 et seq.

[65] § 94, Georgia v. Russia n° 1.

[66] Ibid, §§ 104, 128 and 130.

[67] See also § 93 of the revision judgment, which emphasises that the present revision request relates to knowledge of new facts acquired after delivery of the original judgment.

[68] §§ 108-113 of the revision judgment. It has to be assumed from §§ 89 and 94 of the revision judgment on the 6 ‑ month time-limit and §§ 108 – 113 on the medical evidence limb that the majority also conceded that the new facts relied on in relation to this first limb were unknown to the Court at the time of the original judgment. This is not explicitly stated.

[69] See variously, p. 273 and p. 398 of the Commission Report and §§ 93 and 160 of the original judgment.

[70] See Georgia v. Russia n° 1, § 128, citing Ireland v. the United Kingdom , § 157 in fine .

[71] On reliance on illustrative cases and questions of procedural equality between the parties see the judgment in Cyprus v. Turkey , §§ 105-106 and 339.

[72] The majority concede this in § 135 of the revision judgment but require an explicit indication in the original judgment that the question of long-term psychiatric effects would have been the one decisive element leading the Court to confirm the Commission’s position. See further below on the question of decisive influence.

[73] § 121 of the revision judgment.

[74] Ibid., §§ 132 and 135.

[75] See further MacDonald, R. St. J., Matscher, F. and Petzold, H (eds.), The European System for the Protection of Human Rights, Martinus Nijhoff, 1993, p. 694. One of the editors was one of the dissenting judges in Ireland v. the United Kingdom .

[76] See § 124 of the revision judgment, citing Egmez v. Cyprus , n° 30873/96, § 78, 21 December 2000.

[77] See the dissent of Judge Evrigenis.

[78] See part V of the Commission Report on allegations of non-physical torture or ill-treatment in the Greek cases, p. 461 et seq. See also, dissenting in the original judgment, Judge O’Donoghue: “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 ”.

[79] § 210 of the original judgment.

[80] See also § 135 of the revision judgment in this regard: «the assessment of this difference in degree [which depended on the suffering inflicted] must depend on a number of elements» namely, the circumstances of the case, the duration of the treatment, its physical and mental effects, sex, age and state of health.

[81] For an extensive analysis of the relevant case-law see P. Leach et al., International Human Rights and Fact ‑ Finding , Human Rights and Social Justice Institute, London Metropolitan University, 2009.

[82] §§ 139-141 McKenna , cited above.

[83] § 177 McKenna , cited above.

[84] Ibid , § 142.

[85] Ibid , § 153. At the relevant time when this occurred, the Comption inquiry was ongoing.

[86] See also McKenna , §§ 260-261, where the Brecknell doctrine is applied, meaning the new archive material was said to come within the description of plausible or credible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator.

[87] See also the respondent Government in its submissions to the Court on why the latter should not disturb the Commission’s findings of fact (pp. 78 and 93 of the verbatim reports of the April 1977 hearings): “it is only by a detailed examination of the facts of each case, which involves the hearing of oral evidence, tested by cross-examination, and the opportunity for the tribunal to see the demeanour of the witnesses and to assess their truthfulness, that a conclusion can be come to as to whether the allegations in the case are true or false, or have some basis or are exaggerated”.

[88] § 154 of the original judgment.

[89] §§ 94-95, 99-110, Georgia v. Russia n° 1.

[90] § 122 of the revision judgment.

[91] §§ 154-155 of the original judgment.