On 4 June, RTE ran a program called The Torture Files, which introduced the Hooded Men to most of the world for the first time. I’ve spent the better part of seven years researching and writing about them, and have had the great fortune of hearing about their experiences first-hand. I have come to believe that their case is indeed the most important case of human rights abuse that no one has ever heard about. Their treatment, and the way it was handled by Britain and the European Court, paved the way for the use of torture as an interrogation technique by democratic societies, including the United States and Israel.
Most who follow Irish history know that on 9 August 1971, Northern Ireland Prime Minister Brian Faulkner exercised “the powers of detention and internment,” or imprisonment without trial. He explained this decision by saying:
the terrorist campaign continues at an unacceptable level, and I have had to conclude that the ordinary law cannot deal comprehensively or quickly enough with such ruthless viciousness. (The Guardian, 10 August 1971).
Within the first 24 hours of what was referred to as Operation Demetrius, the Special Branch of the Royal Ulster Constabulary (RUC) and the British Army rounded up 342 Catholic men who were suspected of being affiliated with the IRA.
As it turned out, British intelligence was lacking; most of those picked up had no connection to the war being fought on the streets in Belfast, Derry and other towns in the north of Ireland. Within 48 hours, 105 of those detained had been released. Twelve men, however, were selected for “interrogation in depth,” or The Five Techniques. The use of these techniques was neither new nor spontaneous; rather, they were methods of brutalizing prisoners which, as documented by Ian Cobain in his book Cruel Britannia, had been used extensively by Britain during colonial emergencies.
The Five Techniques included:
- Keeping the detainees’ heads covered by a black hood except when being interrogated or in a room by themselves;
- Submitting the detainees to continuous and monotonous noise of a volume calculated to isolate them from communication;
- Depriving the detainees of sleep during the early days of the operation;
- Depriving the detainees of food and water other than one round of bread and one pint of water at six-hourly intervals; and
- Making the detainees stand against a wall in a required posture (facing wall, legs apart, with hands raised up against the wall) except for periodical lowering of the arms to restore circulation, and that detainees attempting to rest or sleep by propping their heads against the wall were prevented from doing so and that, if a detainee collapsed on the floor, he was picked up by the armpits and placed against the wall to resume the required posture. (The Parker Report, 31 January 1972)
These were used in combination with standard methods of brutalizing prisoners, such as forcing them to strip naked, run through a gauntlet of club-wielding guards and regular beatings.
In his introduction to The Compton Report of November 1971, which examined the allegations of brutality against security forces, Home Secretary Reginald Maudling wrote:
This use was detailed in The Parker Report, commissioned following the public outrage with which The Compton Report’s findings were met:
In his introduction to The Compton Report of November 1971, which examined the allegations of brutality against security forces, Home Secretary Reginald Maudling wrote:
In the present circumstances of Northern Ireland … it is imperative to obtain all available intelligence in order to save the lives of civilians and members of the security forces; and it is therefore essential to interrogate suspects who are believed to have important information.The use of these methods resulted in charges of torture against Britain by local and international communities. Initially the British government denied these charges, while it later claimed torture was a legitimate and necessary tool against domestic terrorism, and had been employed “in all emergencies of this kind which Britain has been involved in recent years.” (The Compton Report, 3 November 1971).
This use was detailed in The Parker Report, commissioned following the public outrage with which The Compton Report’s findings were met:
Wall-standing, hooding, noise, bread and water diet and deprivation of sleep … have been developed since the War to deal with a number of situations involving internal security. Some or all have played an important part in the counter insurgency operations in Palestine, Malaya, Kenya and Cyprus and more recently in the British Cameroons, Brunei, British Guiana, Aden, Borneo/Malaysia, the Persian Gulf, and in Northern Ireland.
Some, including several of the Hooded Men, believe The Five Techniques were used in the north of Ireland not simply to elicit information, but to test the efficacy of sensory deprivation as an interrogation technique. The late John McGuffin wrote about this in his book, The Guineapigs. He believed that the twelve men detained in August 1971 were simply the first of what was planned to be several groups subjected to The Five Techniques. A second group of eleven men had already been chosen for similar treatment when the plan was curtailed, likely due to a visit made to British Prime Minister Edward Heath by the Archbishop of Armagh, Cardinal William Conway. After that, however, Britain became known as an expert on sensory deprivation, and held seminars and trainings on its implementation in the United States, Germany, and throughout the United Kingdom.
Long vocal about what he felt were civil rights violations against Catholics in the north of Ireland, Irish Taoiseach Jack Lynch decided that the case of the Hooded Men was his line in the sand. In acknowledging both the dangers faced by the Republic as a result of the violence in the north, and Ireland’s moral obligation to protect “people who are entitled constitutionally to regard themselves as citizens of the Republic as well as the United Kingdom,” the Irish government filed a complaint against the United Kingdom to the European Commission of Human Rights on 16 December 1971. (The Guardian, 3 September 1976).
The Commission gathered evidence from October 1972 through December 1975 including written and oral statements from 119 witnesses; over 4,500 pages of evidence were gathered. Eventually, the Commission considered 16 illustrative cases, including those of Pat Shivers and Paddy Joe McClean. In its report, the Commission found:
by a unanimous vote that the combined use of The Five Techniques in the case before it constituted a practice of inhuman treatment and torture in breach of Article 3 of the Convention. (Report of the Commission, Ireland v. the United Kingdom of Great Britain and Northern Ireland)
Based on these findings, the Irish government had the option of dropping the case. Believing, however, that there still needed to be a finding of responsibility for authorizing the use of torture, and fearing that there was no way to prevent the United Kingdom (or any other government) from using torture as an interrogation technique in the future, the Irish government decided to pursue the case with the European Court of Human Rights (ECtHR). This marked the first inter-state case brought before the Court since its inception in 1950 under the Convention for the Protection of Human Rights and Fundamental Freedom.
By a vote of 14 to 3, the Court found:
Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. (Judgment in the Case of Ireland v. The United Kingdom).
In response, Francie McGuigan, one of the Hooded Men, called the finding:
It turns out, Francie was right.
Israel, which has never shied away from its use of torture, used the European Court’s ruling that the Hooded Men were not subjected to torture in justifying its use of physical abuse during interrogation. In 1987, a governmental Commission was appointed to examine the Israeli General Security Service’s (GSS) use of physical force as an interrogation technique. Headed by former Supreme Court President Moshe Landau, who presided over the trial of Nazi Adolf Eichmann, the Commission was charged with determining whether or not members of the GSS routinely perjured themselves when giving testimony about physical abuse of prisoners, and what interrogation methods were permissible to use against such prisoners.
a political decision that suited Britain and suited the world. I think Strasbourg has now allowed all countries to use a certain amount of what they classify as degrading and inhuman treatment. The Court set a precedent in this.” (The Irish Times, 26 January 1978).
It turns out, Francie was right.
Israel, which has never shied away from its use of torture, used the European Court’s ruling that the Hooded Men were not subjected to torture in justifying its use of physical abuse during interrogation. In 1987, a governmental Commission was appointed to examine the Israeli General Security Service’s (GSS) use of physical force as an interrogation technique. Headed by former Supreme Court President Moshe Landau, who presided over the trial of Nazi Adolf Eichmann, the Commission was charged with determining whether or not members of the GSS routinely perjured themselves when giving testimony about physical abuse of prisoners, and what interrogation methods were permissible to use against such prisoners.
Among its findings, the Landau Commission determined that in Israel, the goal of interrogation-in-depth is not simply to obtain information, but to “protect the very existence of society and the State against terrorist acts directed against citizens.” (Israel Law Review 23 (1989): 154) Therefore, using the concept of “lesser evil,” the Commission found that “the exertion of a moderate degree of physical pressure cannot be avoided.” It concluded by establishing binding directives outlining the extent of force permissible in such situations. While the portion of the report containing these directives was not released to the public, the Commission provided assurance that the techniques followed the guidelines set by the European Court of Human Rights in 1978, and were less severe than those used by the British in Northern Ireland. (Amnesty International, July 1991)
More recently, former United States Assistant Attorney General Jay Bybee referred to the ECtHR findings in the infamous “Torture Memos,” which were used by then-President George W. Bush as the basis for the United States’ post-9/11 interrogation program. The memos laid out a rationale for denying protections of both the Geneva Conventions and the United States’ War Crimes Act 18 U.S.C. §2441 to members of al Qaeda and the Taliban. While using much of the same circular logic used in The Parker Report to contravene Article 3 of the Geneva Conventions, Bybee referred to Ireland v. the United Kingdom (1978) as the “leading European Court of Human Rights case explicating the differences between torture and cruel, inhuman or degrading treatment or punishment.”
More recently, former United States Assistant Attorney General Jay Bybee referred to the ECtHR findings in the infamous “Torture Memos,” which were used by then-President George W. Bush as the basis for the United States’ post-9/11 interrogation program. The memos laid out a rationale for denying protections of both the Geneva Conventions and the United States’ War Crimes Act 18 U.S.C. §2441 to members of al Qaeda and the Taliban. While using much of the same circular logic used in The Parker Report to contravene Article 3 of the Geneva Conventions, Bybee referred to Ireland v. the United Kingdom (1978) as the “leading European Court of Human Rights case explicating the differences between torture and cruel, inhuman or degrading treatment or punishment.”
He wrote:
Bybee also detailed the specific treatment endured by the Hooded Men before stating” “The court concluded that none of these situations ‘attain[ed] the particular level [of severity] inherent in the notion of torture.’”
The case of the Hooded Men, then became the benchmark by which other countries measure their “enhanced interrogation programs,” and continues to be used to justify the use of torture by democratic societies. That is why the Hooded Men have decided to bring their case back to the European Court – to ensure no other man or woman experiences the same horrific treatment they did, at the hands of a so-called “civilized” nation.
Careful attention to this case is worthwhile not just because it examines methods not used on the TVPA cases, but also because the Reagan administration relied on this case in reaching the conclusion that the term torture is reserved in international usage for ‘extreme, deliberate and unusually cruel practices.’(Memo to Alberto Gonzales regarding the standards of interrogation under 18 U.S.C. §2340-2340A, 1 August 2002)
Bybee also detailed the specific treatment endured by the Hooded Men before stating” “The court concluded that none of these situations ‘attain[ed] the particular level [of severity] inherent in the notion of torture.’”
The case of the Hooded Men, then became the benchmark by which other countries measure their “enhanced interrogation programs,” and continues to be used to justify the use of torture by democratic societies. That is why the Hooded Men have decided to bring their case back to the European Court – to ensure no other man or woman experiences the same horrific treatment they did, at the hands of a so-called “civilized” nation.
It is an interesting case and that it did indeed set a margin in which inhumane treatment could be used but I do not see how the case would pass the admissibility stage of the ECHR's?
ReplyDeleteArtcles 34 & 35 and European Court case law requires that the 6 month rule be observed. If the situation is a 'continuing state of affairs' then the 6 months are never really expired. But the applicants must be directly victim to the 'continuing state of affairs' which would seem to rule out the Hooded Men.
The precursor to the Hooded Men case was Donnelly v UK [1974]. That case involved mistreatment and an administrative practice --where the State itself endorsed or tolerated the practice of its agents. Again the applicants have to show that 1)they are still subject to the treatment and 2) provide evidence directly implicating the government or a government minister. This case ruled out applicants referring to other 'non-applicants' also experiencing the same ill-treatment.
ECHR case law has also rejected applications because the applicant "does not like the remedy". This would be even more so given the gap since the original decision in the late 70's until now.
What the Hooded Men might also consider is that if their legal action is ill-advised and ultimately rejected then Government or States may be able to use that rejection to bolster their arguments in other more current cases.
I should have added that in Donnelly v UK [1974] because the applicants had accepted compensation for their injuries and mistreatment their case had been resolved by the UK and thus their case was inadmissible. I would imagine that all of the Hooded Men have similarly received compensation from the UK... if so they accepted the UK remedy to address their complaint.
ReplyDeleteThe argument about the original decision sound reasonable but a re-run at Europe does not.
I would love to hear arguments on why they feel they could get by the first stage of the process??
It is an interesting case and that it did indeed set a margin in which inhumane treatment could be used but I do not see how the case would pass the admissibility stage of the ECHR's?
ReplyDeleteDid you actually listen to what was said tiarna ..? My take of it goes like this.. all roads lead to Rome. Go grab a cold beer and fast foward the The torture files until 28mins 40 seconds and listen until the end. And tell me why they'll listen to the ECH or pay them any heed.
They already said to the ECHR this will never happen again anywhere etc. But they are good at telling porkies..
They don't give two sweet fcuks what the ECHR say or do. They own the ECHR. They put who they want in for a reason. William Hague must wear sun glasses when talking about Israeli war crimes . And todays puppet masters have new guinea pigs to play with.
Maybe one day we'll all read a headline like this.. UK Government to Say Sorry for Colonialism
Think Africa Press has learnt the UK government will issue an "unequivocal apology" for its colonial past later today. According to sources close to the matter,the government held a cabinet meeting on 31 March at which those present gradually came to the decision that its previous position of "expressing regret without accepting responsibility" was "morally untenable."
Tiarna- "The argument about the original decision sound reasonable but a re-run at Europe does not."
ReplyDeleteI am unfamiliar with the procedures of the ECHR however it is often the case in jurisprudence that if new evidence is made available or discovered a case can be revisited. I am unsure about this specific instance.
International Law is difficult to enforce but a small number of sanctions, mainly diplomatic are possible although weak. In the original case discussed or when it was ruled illegal by the ECHR to hold suspects for more than 72 hours in the late 1980s the government according to many accounts went on to simply restrict the use of the illegal acts or use them surreptitiously only to bring them back wholeheartedly later.
This seems to be a problem with International Law. Although a decision in your favour supports your argument and should guide decisions by judges and public bodies it doesn't necessarily change the status quo.
The problem is that rulings only seem to be weakly enforced and any behavioral adjustments are purely temporary because of that. We need stronger international human rights law and tighter ways to enforce judgments.
The point being that human rights abuses once discovered should stop. Not raise their ugly head later in Iraq or Afghanistan.
Simon
ReplyDeleteThe European Court does not deal with evidence it looks at state procedures, practices, law and policies, things like that. If there was new evidence in any case the various stages of domestic legal avenues would all have to be exhausted first before an application to Europe could be made. The European Court would then look to see if the State followed its own laws and practices in a way compatible with the Convention.
I think this is a case where someone unfamiliar with NI has been shocked by what went on. Dr Lauretta Farrell seem to have a sense that she has uncovered something for the first time. She has devoted 7 years researching it and I am sure she would like to see herself as some sort of Erin Brockovich but here is what seems to be the sum total for going back to the European Court: " I have come to believe that their case is indeed the most important case of human rights abuse that no one has ever heard about. The woman appears to have no sense of how the Human Rights Courts work and how applications can be made. People should not have their hopes raised on the fanciful flights of fantasy of an academic.
Even on an outside chance that Europe would allow a second bite at the cherry then Rule 41 of the Rules of Court would come into play and that would mean that the Hooded Men could not expect to see a Judgment for at least 10 or more years given the case load and priority system at the European Court. The Hooded Men got their judgment from Europe and it was not a bad one, Europe has moved on since and already has recognized in its case law since the 1970's that what it did not consider to be torture back then that its current norms and standards are that it would recognize it as torture today. Is that not what Dr Lauretta Farrell believes a re-run at Europe would achieve?
The Hooded Men are all old now and they should be left to get on with what they have left of their lives -there are scores of other cases involving breaches of Article 3 currently with Europe.
Lastly: States can in certain circumstances Derogate from adhering to certain Articles of the Convention in times of war or emergency so the length of time of interrogations is one of those areas --false imprisonment or torture are not.
Tiarna- Saying that "The European Court does not deal with evidence" is nonsense. All courts consider evidence. In fact I would go so far as to say the only thing any court considers is evidence.
ReplyDelete"the various stages of domestic legal avenues would all have to be exhausted first before an application to Europe could be made." Not if the Republic of Ireland took a case in the same way they did previously.
As for derogation. I am unsure of what you mean by false imprisonment. Are you referring to the lack of habeas corpus in relation to internees or something else?
As for length of interrogations notice for derogation of this wasn't filed in relation to the troubles and I doubt the UK government could successfully argue that holding suspects for 28 days whether Republican or Loyalist was necessary to protect the life of the nation. This is a condition for successful derogation assuming of course notice of derogation was filed at all.
Sorry that last paragraph should say "current troubles".
ReplyDeleteSimon
ReplyDeleteThe European Court does not look at evidence. Its role is to look at how domestic courts approach the overall case and that it was done in accordance with the Convention. For example, a domestic court has the right to misunderstand forensic evidence as it has the right to understand it correctly --- but it cannot exclude it because it might be in a defendant's favour. It does not assess the value to be given to evidence as an ordinary court must do. This is why so many cases are rejected because many lawyers do not know the distinction. The European Court does not look at evidence.
The six month rule applies to interstate complaints just as it does to individual cases. Donnelly v UK was the first run at the brits on torture and when that failed the Irish government stepped in and put together the case we know today, Ireland v UK. Ireland is never going to resuscitate that case case for a re-run -it was dealt with and is over. That the Hooded Men will is a different story.
You are wrong about derogation --Brogan v UK is the derogation case. Europe found that interrogating brogan for more than 4 days breached his human rights. The Brits cited Article 15 -Right of States to Derogate which allows them to extend interrogation periods. Derogation is limited and Articles 2, 3, 4,and 5 are non-derogable rights. 28 day interrogation periods only came about in 2005.
Tiarna- I am confused by your statement "The European Court does not look at evidence." Where is your evidence for this?
ReplyDeleteMy handy legal dictionary explains that "Evidence" is "That which tends to prove the existence or nonexistence of some fact." Are you using another definition?
In the Rules of Court Rule 58 states "Once the Chamber has decided to admit an application made under Article 33 of the
Convention, the President of the Chamber shall, after consulting the Contracting Parties concerned, lay down the time-limits for the filing of written observations on the merits and for the production of any further evidence."
Rule 59 states "Once an application made under Article 34 of the Convention has been declared admissible, the Chamber or its President may invite the parties to submit further evidence and written observations."
Rule 106 states "In cases where the Commission has taken evidence but has been unable to adopt a
report in accordance with former Article 31 of the Convention, the Court shall take into
consideration the verbatim records, documentation and opinion of the Commission’s
delegations arising from such investigations."
Rule A7 states "Save in exceptional circumstances and with the consent of the head of the
delegation, witnesses, experts and other persons to be heard by a delegation will not be admitted to the hearing room before they give evidence."
I could go on.
I made a mistake when I referred to the troubles. I was talking about the current situation under which the 28 day rule is in force. I am unsure but has the UK government filed a derogation order for this rule? The derogation for suspects under the Prevention of Terrorism Act has lapsed. Therefore they would need to derogate again.
In 2008 the Joint Committee on Human Rights stated that the lack of judicial safeguards would be in breach of the right to liberty contained in article five of the ECHR and thus require a derogation in order for it to be lawful. Was this rectified? That was my point.
Tiarna, I am not sure who you are, or why you believe yourself to be an expert in the ECtHR, but you certainly do not understand what this is all about.
ReplyDeleteThe Hooded Men themselves have made a decision to go back to the Court based on evidence which, had it been available in the 1970s, might have influenced a different outcome. It is their decision to pursue this as a collective, they are working with a well-known human rights attorney from Belfast, and their goal is not compensation, but to get Britain to admit it used torture and that torture was pre-meditated, not the work of a handful of rogue police officers.
Never did I suggest that this is my case,or that it arose from my work. My work is focused on helping these "old men" realize their goal of eliminating the use of such tactics from the arsenal of democratic societies.
Perhaps you would do well to read both the report of the Commision of the European Court of Human Rights and the judgment of the European Court, which were at the time two separate entities.
And yes, I do believe this is the most important human rights case the general public has never heard about. Had there been more public awareness of this case, the Commision's report, which did find their treatment amounted to torture, and the British government's pledge to not engage in such tactics in the future (which influenced the Court's judgment), then perhaps Israel's, the United States' and Britain's widespread use of torture as a counterinsurgency technique might be lessened.
Simon
ReplyDeleteEurope does not look at evidence in the ordinary sense and the use of the word evidence in the Rules of Court has misled lawyers and individuals alike into submitting evidential arguments which are promptly rejected.
The European Court looks at state practices, policies and laws only in so far as they are compatible with the Convention. So for example when you refer to "the lack of judicial safeguards would be in breach of the right to liberty contained in article five" Europe would look for the existence of "judicial safeguards" and that they are compatible with the Convention. Forensic evidence or witness/expert evidence etc are matters left to domestic courts to interpret not europe.
Re: fresh derogation I think there is a case currently pending on the matter but because of dissident/Islamic extremism then the same scenario is likely where the European Court will say it is excessive but until such time as there is no threat the member state has a right to derogate under Article 15.
Dr. L. A. Farrell
For a long time I have observed how the techniques used on the Hooded men have been used ever since in other circumstances -even in subtle ways where complaints of torture do not arise.
Yes I understand that no case would be initiated without the men doing it themselves but what is their case beyond what you have written above?
You feel the world should know their story for the first time --almost any reading of all European case law involving torture to this day will usually cite two cases the Greek and Irish cases. So their case is well known.
Alright, the re-run is founded on Article 41 'Just Satisfaction'? Europe would likely say that they already had just satisfaction and that a rerun would really be vexatious and/or academic.
You suggest that they also intend to show an Administrative Practice, RE:Donnelly v UK 1974 & Greek Case. That side of their claim immediately looks dead in the water. They would first have to have attempted legal action against former members of government who they say were involved (involvement of more senior cops or army is insufficient) The standard is that they have to show that the Government or its Ministers' "endorsed or tolerated the practice". They would first have to have exhausted all domestic remedies through the civil courts. I understand that they were compensated by the brits --so they got their just satisfaction/remedy already. Read Donnelly.
And being represented by a "well-known human rights attorney from Belfast" does not mean that they have a case.
Given that we are talking about the Convention and Human Rights I presumed that you would have the gumption to figure out that when I refer to Europe there is only one Court relevant --sorry my bad, I should have made that clearer for you. And just in case you make another mistake - I am not referring to the International Court in the Hague which is another 'European' Court of sorts.
But perhaps you should have read more about the European Court of Human Rights to know or grasp some of the pretty basics to which I have referred to above. The European Court does not do re-runs and if it makes a finding different from an earlier decision it does not revisit the earlier judgment. Later victims can take advantage of either or both earlier judgments --but the Hooded men are not later victims otherwise they would be making fresh complaint.
Based on the Court's jurisprudence and all material I have encountered in the public domain or legal journals the men seem not to have any obvious case. Oh, and Europe (European Court of Human Rights) also throws out cases that are fundamentally academic --which at best seems to fit this case.
I would like to see the men succeed but there are more productive ways that they could probably spend the next lot of years of their time.
Because I know this basic information --you think I am an expert? You spent seven years studying this and you never knew any of this stuff --are you for real??
Dr Lauretta Farrell
ReplyDeleteI just want to clarify that I do find your work interesting it is timely and relevant.
And I trust that you are not the driving force behind any re-run at Europe. All too often lawyers, bleeding heart human rights 'activists' or academics pounce upon a human rights victim fire them up and get whatever mileage they can out of the victim before dumping them again.
Tiarna- First you said they don't look at evidence now you say they don't look at evidence in the ordinary sense of the word. There may be different types of evidence but lets be clear everything any court looks at is evidence.
ReplyDeleteEvidence is "That which tends to prove the existence or nonexistence of some fact.".
How else are courts to decide upon cases without judging them on evidence? I don't want to labour on but such a nonsensical statement such as "The European Court does not look at evidence." has to be challenged.
By the way the ECHR does look at expert and witness evidence. Examples are not hard to find. Like the doctors in the original case under discussion here.
I will post what I put above again in case you missed it:
Rule A7 states "Save in exceptional circumstances and with the consent of the head of the
delegation, witnesses, experts and other persons to be heard by a delegation will not be admitted to the hearing room before they give evidence."
Tiarna- "And being represented by a "well-known human rights attorney from Belfast" does not mean that they have a case."
You are absolutely right there. But that is a no-brainer.
Simon
ReplyDeleteIt's a different sort of Court than a domestic court. They will seek expert opinion at times but they are not an evidential court though they do find on the facts as argued between the Government and the Applicant/s.
You refereed to the ECtHR looking at 'new evidence' it does not do that "I am unfamiliar with the procedures of the ECHR however it is often the case in jurisprudence that if new evidence is made available or discovered a case can be revisited." -that sort of scenario crops up in domestic courts but not the ECtHR.
If we consider the the Hooded Men case and if any 'new evidence' arose. Europe will not look at it no matter what that evidence could possibly be. The men would have to instigate action at domestic level. Lets say the men exhaust all domestic avenues and then take their case to Europe. Europe won't second guess a domestic court's decision about the evidence because it does not look at evidence. But it will look at whether the evidence was not heard or was rejected contrary to domestic law or procedure. Europe wont care what the evidence is or whether the evidence supports the applicant or the state it will only consider if the domestic court acted unlawfully or unfairly contrary to the Convention. In its final Judgment it will make no assessment about the evidence only whether the Government followed proper procedure or that the applicant was treated fairly and had opportunity to present the case he/she wanted to make. But Europe will not second guess what weight domestic courts gave to any particular evidence nor will it Order a domestic court to re-look at the evidence. Its a totally different level and approach than regular courts.
Tiarna- "You refereed to the ECtHR looking at 'new evidence' it does not do that "I am unfamiliar with the procedures of the ECHR however it is often the case in jurisprudence that if new evidence is made available or discovered a case can be revisited." -that sort of scenario crops up in domestic courts but not the ECtHR. "
ReplyDeleteI had a cursory glance over the types of inadmissable applications to the ECtHR. "An application that is substantially the same as an application that has already been examined and one that introduces no new facts".
The important word in the last sentence is the word "and". The application has to be both substantially the same "and" introduce no new facts.
Therefore if an application is substantially the same as one that has been examined eg. the Ireland v UK case but has new facts it may be heard again. It doesn't mean it will be it just means it is possible. It can because it has new facts. It may be inadmissible under another ground of course.
I asked the question about new material pertinent to the case being discovered allowing a case to be revisited because although I knew it is key point of jurisprudence I was unfamiliar with the mechanisms of the ECtHR.
I wondered as it is a key principle of law that any miscarriages of justices can be rectified if there is new evidence made available.
I wasn't sure. But now I know. I got there in a kind of round-a-bout way. But thanks anyway.
From tiarna
ReplyDeleteSimon
"Therefore if an application is substantially the same as one that has been examined eg. the Ireland v UK case but has new facts it may be heard again. It doesn't mean it will be it just means it is possible. It can because it has new facts. It may be inadmissible under another ground of course."
Being inadmissible under another ground implies it is admissible under some ground so the case will be heard under that ground.
Miscarriage of Justice cases are state based cases and any new evidence is only relevant to the domestic courts not Europe.
But Europe will look at how the court conducts itself --at the minute Allen v Uk is about a miscarriage case -in that after the conviction has been quashed is denial of compensation compatible with the Convention.
Previously the European Court has found that compensation proceedings after an acquittal can breach Article 6 if they "do not serve the purpose of enabling a competent court to determine, in proper proceedings, whether a person is guilty of an offence." The ECtHR has also found that "following a final acquittal, even the voicing of suspicions regarding an accused’s innocence" can breach the right to a fair trial. A Government Minister's "finding, however, goes further than the voicing of mere suspicions. It amounts to a determination of the applicant's guilt without the Applicant having been "found guilty according to law""
When you say Europe may look again at a case --it has happened before but not in static cases like the Hooded Men. Say someone takes a case for unlawful arrest and the application is inadmissible if the case is continuing through the domestic process other rights may come into play at later stages which allow for fresh application to Europe. There is a term known as a "continuing state of affairs" where it will then be viewed as if the right is being breached on a daily basis.
Or if the Hooded Men were still being ill-treated (no longer static) then Europe would find their treatment to be torture today ( because its standard has changed) and because it originally occurred back in the 70's then it might view it as an unbroken chain that that would be torture also and not inhuman and degrading treatment.
However many re-applications of some cases where the facts have changed have been rejected because Europe may consider it purely academic because the original decision provided adequate remedy or there are other cases substantially the same. so very few re-runs ever occur. In fact very small percentage of first time applications ever make it to judgment stage.
Somehow I think Dr Farrell's suggestion that the Hooded Men have fresh shot at Europe has dissipated because I had hoped she would have made better case than she has to date. I can't for the life of me see what that was but she had my attention as I was keenly interested. That there probably is no realistic shot does not detract from her work because it does interest me as I wrote a paper "Rethinking Torture" a few years ago where Alan Dershowitz was advocating for courts to be allowed to grant Torture Warrants.
Tiarna-
ReplyDeleteYou said "Being inadmissible under another ground implies it is admissible under some ground so the case will be heard under that ground."
In my example where a case is substantially the same as one heard before but is not inadmissible because there are new facts that doesn't mean it will be heard. ie. If it is inadmissible under another ground. In fact all the admissibility criteria for bringing an application to the European Court of Human Rights must be fulfilled before an application can be entertained.
Do you agree?
If you do agree you would be right but you would also be at odds with what I quoted from you in the paragraph immediately before this one.
If an applicant loses his or her case at the ECtHR based on a violation of his or her rights because the government in question withholds some information from the ECtHR this would be a miscarriage of justice. Particularly if his or her rights continue to be abused. It is a failure of justice. A "miscarriage of justice" means justice has failed. That is one reason why, when new facts are available, cases may be able to be heard again.
I am not now talking specifically about the Hooded Men case. I am merely addressing your points above.
Simon
ReplyDeleteAbove at post 1:17 AM, June 12, 2014 you write that where a case "has new facts it may be heard again. It doesn't mean it will be it just means it is possible. It can because it has new facts. It may be inadmissible under another ground of course."
The Court has a mantra: "The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article (Relevant No.) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible."
A case can be inadmissible for the reasons you give: "In my example where a case is substantially the same as one heard before..."
But "It may be inadmissible under another ground" is different because many cases involve more than one argument and because one argument might be inadmissible does not exclude the others -the Court usually addresses them sequentially. Sometimes what can also happen (usually involving Article 13) the Court will find a breach of any Article between 2 -10 (which are common enough) and for example say that in finding a breach of Article 6 also addresses any complaint under Article 13 made in the same application.
I am not aware of any case which you suggest though it is conceivable. Say the Hooded Men happened to have 'new evidence' of the Brits having misled the ECtHR that would still require domestic courts to look at it. Another complication would be because Ireland (not the men) were plaintiffs they would have to persuade Ireland to pursue it again also probably at local level first before returning to Europe. I do not see Ireland having any stomach to do such a thing no matter the strength of any fresh grounds.
It is hard to say how Europe would deal with it -it could just acknowledge it but say further argument would be academic as it did originally find the UK in breach of Article 3 anyway.
And it does not really get the men anywhere either?? But using that information as evidence in a domestic court might open up a civil action against whatever gov dept or individuals??
Tiarna- Your mantra example says if a case is not inadmissible on one ground ie. It is not manifestly unfounded and is not inadmissible on another ground it is admissible.
ReplyDeleteYour example doesn't say if it is admissible on one ground and it is inadmissible on another ground it is admissible. You have to fulfill all the admissibility criteria before a case is entertained.
Tiarna- I think we are muddying the waters since it seems you misunderstood my point about a case being substantially the same as one heard earlier but which has new facts.
ReplyDeleteAll I was trying to do was point out that the Hooded men case may not be inadmissible on the ground that it has been heard already. It may pass this test as it has new facts.
However it is possible that it fails another admissibility test.
I wasn't talking originally about different grounds on which an application was built. I was talking about different grounds of inadmissibility.
Simon
ReplyDeleteNot my mantra its ECtHR. I think you are confusing some things. Articles 34 &36 first stage --is the application within 6 moths if not then irrelevant what the case is.
The second stage is admissibility, the substantive arguments could involve multiple complaints that various Articles 3, 5 & 6 have been breached for example. At this stage the Court could then find that Article 3 arguments are not admissible but 5 & 6 are. That means Article 5 & 6 are admissible and the Government will be asked to respond.
Then in the final merits stage after arguments have been made the Court could find that Article 5 has not been breached but Article 6 has.
So not every ground has to be successful. And sometimes the court finds a breach in a way that was not specifically argued as was the case in Murray v UK
Looks like the Irish government are seeking the re-opening of the "Hooded Men" case.
ReplyDelete