Ireland v United Kingdom

• Date: 18 January 1978
• Court: European Court of Human Rights

European Court of Human Rights.

(Balladore Pallieri, President; Wiarda, Zekia, Cremona, O'Donoghue, Mrs Pedersen, Vilhjalmsson, Ryssdal, Ganshof van der Meersch, Sir Gerald Fitzmaurice, Mrs Bindschedler-Robert, Evrigenis, Teitgen, Lagergren, Liesch, Gölcüklü and Matscher, Judges)

Ireland

and

United Kingdom

The individual in international law — Human rights and freedoms — European Convention for Protection of — Application brought by one Contracting State against another under Article 24 — Failure of Respondent State fully to afford desirable assistance to the Commission — Article 28 (duty of Contracting States to cooperate with Convention institutions)

Article 3 (prohibition against torture or inhuman or degrading treatment or punishment) — Article 3 — Uncontested allegations of breach — Question whether an adjudication would be devoid of purpose — Role of Court in elucidating, safeguarding and developing the rules instituted by the Convention — Question of Court's jurisdiction to deal with individual cases in view of Commission's concern with an ‘administrative practice’— Commission's admissibility decision traces the framework for a case subsequently brought before Court — Definition of an ‘administrative practice’— Strict liability under the Convention of higher State authorities for actions of subordinates — Importance of concept of a practice in the context of the domestic remedies rule which applies equally to State and individual applications — Location of burden of proof — Standard of proof — Proof ‘beyond reasonable doubt’— Place of inferences, presumptions of fact and conduct of Parties in applying this standard — Minimum level of severity for treatment to fall within Article 3 — Relativity of such a level depending on all the circumstances of the case — Victim's conduct irrelevant in applying this standard — Evaluation of ‘the five techniques’— Whether reaching the particular intensity and cruelty implied by the term ‘torture’, whether ‘inhuman treatment’— Other alleged practices — Practices of physical ill-treatment which are discreditable and reprehensible but not in breach of Article 3

Request for a consequential order from the Court — Sanctions available to Court do not include power to direct a Contracting State to institute criminal or disciplinary proceedings

Article 5 (prohibition against arbitrary deprivation of liberty and protection of various ancillary rights) — List of cases in Article 5(1) in which it is permissible to deprive someone of his liberty is exhaustive — Various deprivations of liberty alleged unjustifiable under Article 5(1) — Failure to provide reasons for arrest — Breach of Article 5(2) — Impugned measures not effected for the purpose of bringing the persons concerned promptly before the competent legal authority — Breach of Article 5(3) — No entitlement to take proceedings by which the lawfulness of detentions would be decided speedily by a court — Breach of Article 5(4) — Habeas corpus in this context — Judicial review powers insufficiently wide in scope to satisfy Article 5(4)

Article 5 taken together with Article 15 (right of derogation in time of war or other public emergency) — Conditions under which Article 15 comes into play — Role of the Court in applying these criteria — Wide margin of appreciation afforded to national authorities in Article 15 determinations — Margin accompanied by international supervision — Evidentiary questions — Court's complete freedom in assessing admissibility, relevance, and probative value — Factors reducing weight of certain evidence — Factors establishing that Respondent was reasonably entitled to consider that normal legislation offered insufficient resources for campaign against terrorism — Arrest of persons for sole purpose of obtaining information from them about others — Fact that measures were used principally or exclusively against one group of terrorists and not against another in context of Article 15 — Whether such restriction of scope incompatible with the standard of being ‘strictly required’— Whether tendency towards a liberalisation of domestic enactments meaning that initial measures were not ‘strictly required’— Article 15 must leave a place for progressive adaptations

Article 5 taken together with Article 14 (prohibiting discrimination in the enjoyment of the protected rights and freedoms) — Difference in treatment between two groups of terrorists — Question of objective and reasonable justification in this regard — Existence of profound differences between the two sources of terrorist activity — Court unable to affirm, on evidence before it in view of margin of appreciation, that there was any violation of Article 14 in conjunction with Article 5

Article 6 (the principle of a fair trial) — Unnecessary to decide the matter — Assuming Article 6's materiality, derogations therefrom justifiable under Article 15 — Similarly, no discrimination contrary to Article 14 in the context of Article 6

Article 1 (duty to secure the rights and freedoms set out in the Convention) — Meaning and significance of Article 1 in the framework of the Convention — In order to secure the enjoyment of the rights and freedoms there set forth national authorities must prevent or remedy any breach at subordinate levels — Question whether a Contracting State is entitled to challenge a law in abstracto — Such a breach may be found only if it is immediately apparent — No such breaches existent in context of Articles 3, 5, 6 and 15, taken together with Articles 1 and 14

Summary 1: The facts:—From August 1971 until December 1975 the United Kingdom authorities in Northern Ireland had exercised a series of powers of arrest, detention and internment. The proceedings in this case concerned the scope, and the operation in practice, of those measures, as well as the alleged ill-treatment during interrogation (by the use of practices known as ‘the five techniques’) of persons thereby deprived of their liberty. The measures, and the treatment allegedly accompanying them, had occurred during and in the wake of large scale campaigns of terrorism which, in turn, had derived from aspects of the political situation in and pertaining to Northern Ireland; in particular, from the partition of Ireland (the southern part of which had become an independent Republic, while the north remained part of the United Kingdom), from allegations of religious discrimination in Northern Ireland, and from a sequence of reactions provoked initially by various campaigns to end such discrimination. The process had been marked by much loss of life, bombing and rioting, and by personal injuries and destruction of property on a widespread scale. Powers of detention had been exercised under a series of legislative measures, principally described in paragraphs 78 to 91 of the Judgment.2 Practice at a number of detention and interrogation centres (notably Palace Barracks, Holywood, Girdwood Park and Ballykinler) allegedly involving inhuman treatment of suspects, is described in paragraphs 92 to 158.

Proceedings before the Commission

The application (No. 5310/71), lodged with the Commission on 16 December 1971 and later supplemented, was brought by the Government of the Irish Republic3 which made various allegations of violations by the

United Kingdom of Articles 1,4 2,5 3,6 5,7 68 and 149 of the Convention. On 1 October 1972, the Commission declared the application inadmissible as regards Article 2 but accepted the allegations that:

• —the treatment of persons in custody, in particular the methods of interrogation of such persons, constituted an administrative practice in breach of Article 3;

• —internment without trial and detention under the Special Powers Act and the Special Powers Regulations constituted an administrative practice in breach of Articles 5 and 6 in connection with Article 15;l0

• —the exercise by the respondent Government of its power to detain and intern persons was being carried out with discrimination on the grounds of political opinion and thus constituted a breach of Article 14 with respect to the rights and freedoms guaranteed in Articles 5 and 6 in conjunction with Article 15, since internment was allegedly used primarily against the Irish Republican Army (IRA), which supported the re-unification of Ireland, and not against terrorist groups which sought to preserve the status quo;

• —the administrative practices complained of also constituted a breach of Article 1.

In addition to receiving written observations and evidence from the two Governments concerned and to hearing their oral submissions, the Commission also heard—through delegates and in the circumstances more particularly detailed in its report—a total of 119 witnesses. One hundred gave evidence in relation to the issues under Article 3 and nineteen in relation to those under Article 14; of the latter, three were witnesses proposed by the respondent Government who were heard by the delegates in London in the absence of representatives of the Parties and without being subjected to cross-examination.

The report drawn up by the Commission concerning the application was transmitted to the Committee of Ministers of the Council of Europe on 9 February 1976. In its report, the Commission expressed the opinion:

• —(unanimously), that the powers of detention and internment without trial as exercised during the relevant periods were not in conformity with Article 5, paragraphs (1) to (4), but were ‘strictly required by the exigencies of the situation’ in Northern Ireland, within the meaning of Article 15 (1);

• —(unanimously), that Article 6 did not apply to the said powers;

• —(unanimously), that the facts found in relation to the relevant periods did not disclose any discrimination contrary to Article 14 in the exercise of the said powers;

• —(unanimously), that the combined use of the five techniques in the cases before it constituted a practice of inhuman treatment and of torture in breach of...