EUROPEAN COURT OF HUMAN RIGHTS

Ireland v. United Kingdom

Application no. 5310/71

18 January 1978

(Excerpts)

AS TO THE LAW

I. ON ARTICLE 3 (art. 3)

150. Article 3 (art. 3) provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".

A. Preliminary questions

151. In their memorial of 26 October 1976 and at the hearings in February 1977, the United Kingdom Government raised two preliminary questions on the alleged violations of Article 3 (art. 3). The first concerns the violations which they no longer contest, the second certain of the violations whose existence they dispute.

1. Preliminary question on the non-contested violations of Article 3 (art. 3)

152. The United Kingdom Government contest neither the breaches of Article 3 (art. 3) as found by the Commission (see paragraph 147 above), nor - a point moreover that is beyond doubt - the Court's jurisdiction to examine such breaches. However, relying inter alia on the case-law of the International Court of Justice (Northern Cameroons case, judgment of 2 December 1963, and Nuclear Tests cases, judgments of 20 December 1974),they argue that the European Court has power to decline to exercise its jurisdiction where the objective of an application has been accomplished or where adjudication on the merits would be devoid of purpose. Such, they claim, is the situation here. They maintain that the findings in question not only are not contested but also have been widely publicised and that they do not give rise to problems of interpretation or application of the Convention sufficiently important to require a decision by the Court. Furthermore, for them the subject-matter of those findings now belongs to past history in view of the abandonment of the five techniques (1972), the solemn and unqualified undertaking not to reintroduce these techniques (8 February 1977) and the other measures taken by the United Kingdom to remedy, impose punishment for, and prevent the recurrence of, the various violations found by the Commission.

This argument is disputed by the applicant Government. Neither is it accepted in a general way by the delegates of the Commission; they stated, however, that they would express no conclusion as to whether or not the above-mentioned undertaking had deprived the claim concerning the five techniques of its object.

153. The Court takes formal note of the undertaking given before it, at the hearing on 8 February 1977, by the United Kingdom Attorney-General on behalf of the respondent Government. The terms of this undertaking were as follows:

"The Government of the United Kingdom have considered the question of the use of the 'five techniques' with very great care and with particular regard to Article 3 (art. 3) of the Convention. They now give this unqualified undertaking, that the 'five techniques' will not in any circumstances be reintroduced as an aid to interrogation."

The Court also notes that the United Kingdom has taken various measures designed to prevent the recurrence of the events complained of and to afford reparation for their consequences. For example, it has issued to the police and the army instructions and directives on the arrest, interrogation and treatment of persons in custody, reinforced the procedures for investigating complaints, appointed commissions of enquiry and paid or offered compensation in many cases (see paragraphs 99-100, 107, 110-111, 116-118, 121-122, 124, 128-130, 132, 135-139 and 142-143 above).

154. Nevertheless, the Court considers that the responsibilities assigned to it within the framework of the system under the Convention extend to pronouncing on the non-contested allegations of violation of Article 3 (art. 3). The Court's judgments in fact serve not only to decide those cases brought before the Court but, more generally, 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 (Article 19) (art. 19).

The conclusion thus arrived at by the Court is, moreover, confirmed by paragraph 3 of Rule 47 of the Rules of Court. If the Court may proceed with the consideration of a case and give a ruling thereon even in the event of a "notice of discontinuance, friendly settlement, arrangement" or "other fact of a kind to provide a solution of the matter", it is entitled a fortiori to adopt such a course of action when the conditions for the application of this Rule are not present.

155. Accordingly, that part of the present case which concerns the said allegations cannot be said to have become without object; the Court considers that it should rule thereon, notwithstanding the initiatives taken by the respondent State.

2. Preliminary question on certain of the contested violations of Article 3 (art. 3)

156. In their memorial of 28 July 1976, the Irish Government invited the Court to hold, unlike the Commission (see paragraphs 125, 130 and 147 above), that violations of Article 3 (art. 3) had occurred in the cases of T 3 (Ballykinler Regional Holding Centre, August 1971) and T 5 (St. Genevieve's School, Belfast, August 1972) as well as in numerous places in Northern Ireland from 1971 to 1974.

In addition to contesting the merits of these claims, the British Government also raised a preliminary question in connection therewith in their memorial of 26 October 1976 and at the hearings in February 1977. They argued that the complaints made did not expressly concern a practice but individual cases in which effective domestic remedies were available to the persons involved. Accordingly, in their submission, the said claims fell outside the area demarcated by the Commission on 1 October 1972 when it accepted the allegation that "the treatment of persons in custody ... constituted an administrative practice in breach of Article 3 (art. 3)".

The Irish Government replied that this line of argument was based on an incorrect interpretation of the above-mentioned decision and of the manner in which the Commission subsequently carried out its role.

According to the delegates of the Commission, the Irish Government had not made clear whether they were asking the Court to censure a practice or merely to hold that certain persons had been subjected to treatment contrary to Article 3 (art. 3). In the former case, but not in the latter, their request would, in the delegates' view, be in conformity with the decision of 1 October 1972.

157. The Court recalls that its jurisdiction in contentious matters is limited to applications which have first of all been lodged with and accepted by the Commission; this is perfectly clear from the structure of Sections III and IV of the Convention. The Commission's decision declaring an application admissible determines the object of the case brought before the Court; it is only within the framework so traced that the Court, once a case is duly referred to it, may take cognisance of all questions of fact or of law arising in the course of the proceedings (De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29-30, paras. 49 and 51; Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; Stögmüller and Matznetter judgments of 10 November 1969, Series A no. 9, p. 41, para. 7, and no. 10, pp. 31-32, para. 5; Delcourt judgment of 17 January 1970, Series A no. 11, p. 20, para. 40).

Again, Article 49 (art. 49) of the Convention provides that the Court shall settle disputes concerning its jurisdiction. It follows that, in order to rule on this preliminary plea, the Court must itself interpret the above-mentioned decision of 1 October 1972, in the particular light of the Commission's explanations (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, pp. 22-24, para. 48).

The allegation accepted by the Commission under Article 3 (art. 3) concerned a practice or practices and not individual cases as such. Accordingly, the Court's sole task is to give a ruling on that allegation.

However, a practice contrary to the Convention can result only from individual violations (see paragraph 159 below). Hence, it is open to the Court, just as it was to the Commission, to examine, as constituent elements or proof of a possible practice and not on an individual basis, specific cases alleged to have occurred in given places.

The Court concludes that it has jurisdiction to take cognisance of the contested cases of violation of Article 3 (art. 3) if and to the extent that the applicant Government put them forward as establishing the existence of a practice.

158. Following the Order of 11 February 1977 (see paragraph 8 above), the Irish Government indicated, at the hearings in April 1977, that they were asking the Court to hold that there had been in Northern Ireland, from 1971 to 1974, a practice or practices in breach of Article 3 (art. 3) and to specify, if need be, where they had occurred. They also declared that they were no longer seeking specific findings in relation to the cases of T 3 and T 5.

159. A practice incompatible with the Convention consists of 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; a practice does not of itself constitute a violation separate from such breaches.

It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected.

The concept of practice is of particular importance for the operation of the rule of exhaustion of domestic remedies. This rule, as embodied in Article 26 (art. 26) of the Convention, applies to State applications (Article 24) (art. 24), in the same way as it does to "individual" applications (Article 25) (art. 25), when the applicant State does no more than denounce a violation or violations allegedly suffered by "individuals" whose place, as it were, is taken by the State. On the other hand and in principle, the rule does not apply where the applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask the Commission or the Court to give a decision on each of the cases put forward as proof or illustrations of that practice. The Court agrees with the opinion which the Commission, following its earlier case-law, expressed on the subject in its decision of 1 October 1972 on the admissibility of the Irish Government's original application. Moreover, the Court notes that that decision is not contested by the respondent Government.

B. Questions of proof

160. In order to satisfy itself as to the existence or not in Northern Ireland of practices contrary to Article 3 (art. 3), the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned. In the cases referred to it, the Court examines all the material before it, whether originating from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu.

161. The Commission based its own conclusions mainly on the evidence of the one hundred witnesses heard in, and on the medical reports relating to, the sixteen "illustrative" cases it had asked the applicant Government to select. The Commission also relied, but to a lesser extent, on the documents and written comments submitted in connection with the "41 cases" and it referred to the numerous "remaining cases" (see paragraph 93 above). As in the "Greek case" (Yearbook of the Convention, 1969, The Greek case, p. 196, para. 30), the standard of proof the Commission adopted when evaluating the material it obtained was proof "beyond reasonable doubt".

The Irish Government see this as an excessively rigid standard for the purposes of the present proceedings. They maintain that the system of enforcement would prove ineffectual if, where there was a prima facie case of violation of Article 3 (art. 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 (Article 28, sub-paragraph (a) in fine, of the Convention) (art. 28-a). In their submission, this is how the attitude taken by the United Kingdom should be described.

The respondent Government dispute this contention and ask the Court to follow the same course as the Commission.

The Court agrees with the Commission's approach regarding the evidence on which to base the decision whether there has been violation of Article 3 (art. 3). To assess this evidence, the Court adopts the standard of proof "beyond reasonable doubt" but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account.

C. Questions concerning the merits

162. As was emphasised by the Commission, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

163. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and, under Article 15 para. 2 (art. 15-2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation.

164. In the instant case, the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment".