"No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 3—European Convention of Human Rights

The case of Ireland v. United Kingdom

The Ireland v. United Kingdom case was the first inter-State case brought before the European Court of Human Rights and as such, was the first ever legal proceedings between States before an international human rights tribunal. 

The Northern Ireland Stormont administration took the immensely controversial step of introducing internment or detention without trial on the 9 ^th August 1971. Under the first operation, Operation Demetrius, 342 members of the nationalist community were detained in different detention centres across Northern Ireland. Many of those detained were released within the first 48 hours.  However, allegations quickly emerged, from released detainees or relatives of those still detained, that detainees were being subjected to severe ill-treatment. 

The most infamous allegations were those relating to a particular number of detainees, who had been subjected to what would later be termed, ’the five techniques’ – hooding, wall-standing, continuous white noise, sleep deprivation and the bread and water diet.  The allegations of the ’five techniques’ were found to be substantiated by the Compton Report (November 1971), which declared the ’five techniques’ to be physical ill-treatment but not physical brutality (based on a definition of ’brutality’ drafted by the Compton Committee).

Ireland submitted its application in December 1971 to the European Commission of Human Rights after a covert investigation by the Department of Foreign Affairs, deliberation by a legal team assembled by the Attorney General Colm Condon and intense political pressure on all fronts. The application alleged that the United Kingdom Government had breached its obligations, as a result of an ’administrative practice’ violating the following rights: article 2 (right to life), article 3 (right to freedom from torture, inhuman or degrading treatment or punishment), article 5 (right to liberty and security of the person) and article 6 (right to fair trial) in the context of article 15 (right of State parties to derogate in times of war or emergency threatening the life of the nation), article 14 (right to equality and non-discrimination) in the context of article 15 (power to derogate) and  article 8 (right to private and family life) in the context of article 14 (right to equality).  The application also alleged that article 1 (duty to secure the rights and freedoms under the Convention) constituted a separate breach of the European Convention on Human Rights to the rights under Section I, arising from the existence of legislative enactments inconsistent with the duty to respect and protect human rights.

The European Commission of Human Rights delivered its decision on admissibility in October 1972.  It ruled that the Irish Government had successfully submitted ’substantial evidence’ of an administrative practice violating articles 3 (right to freedom from torture….), articles 5 (right to liberty…) and 6 (right to fair trial) in the context of article 15 (right of State parties to derogate) and article 14 (right to equality) in the context of article 15.  Article 1 (secure the rights and freedoms) was also joined to the merits. It dismissed the claim on article 2 (right to life), considering the allegation of an administrative practice as unsubstantiated, and the claim on article 8 (right to private and family life), considering the allegation, which has not been pleaded by the Irish Government in the oral hearings, as withdrawn. 

The merits stage before the European Commission of Human Rights extended from October 1972 to December 1975.  Along with the written pleading, witness hearings were held on various dates during the period 1973 to 1975 at Strasbourg (Irish witnesses), Stavanger Military Base in Norway (British Military and R.U.C. witnesses) and in a closed Commission session in London (British policy witnesses).  In total, 119 witnesses testified before the Sub-Committee of the European Commission of Human Rights of Messrs Opsahl (Norway), Frowein (Germany) and Norgaard (Denmark).

In January 1976, the European Commission of Human Rights adopted its lengthy and significant Report with the following findings.  Regarding article 3 (freedom from torture, inhuman or degrading treatment or punishment), the Commission ruled unanimously that the ’combined’ use of the five techniques ’constituted a practice of inhuman treatment and torture in breach of article 3 of the Convention’. On the other acts of ill-treatment, the Commission determined that in the illustrative cases of the unknown interrogation centre, Palace Barracks and ’various places’ during the Autumn of 1971, the ill-treatment by security forces constituted inhuman treatment as a violation of article 3.  In the context of individual detention centres, it found a practice of inhuman treatment violating article 3 in Palace Barracks but found no practice in violation of article 3 in Girdwood Park or Ballykinler.

Regarding article 5 (right to liberty..) in the context of article 15 (power of derogation), the Commission unanimously held that, while the measures of detention without trial during each legislative phase were not in conformity with article 5, they were measures ’strictly required by the exigencies of the situation’.  Regarding article 14 (right to equality), the European Commission of Human Rights considered that the measures did not discriminate on the grounds of political opinion as, it argued, there were a number of possible factors why the security forces approach towards violence within the nationalist and unionist community differed during the relevant periods.  It listed following possible factors based on the evidence before the European Commission of Human Rights: (i) objective of phasing out of internment in 1972 resulting in greater focus on mounting criminal prosecutions before the ordinary courts, (ii) albeit difficulties in securing evidence, the ability of the Police to enter unionist areas with greater ease than nationalist areas, (iii) the ’more highly organized and larger campaign of terrorism’ on the IRA side than on the Loyalist side (as an appreciation judged by the security forces at the relevant time); (iv) the estimation of a serious threat of a ’severe’ Loyalist campaign in response to internment and (v) the larger scale of the IRA campaign. 

Finally, the Commission disagreed that article 1 (duty to secure rights and freedoms) constituted a separate liability for the State parties to the Convention.  It determined that article 1 did not give rise to rights, additionally to Section I of the Convention, justiciable before the European enforcement procedures. 

The European Commission of Human Rights Report was forthwith transmitted to the States parties, namely Ireland, the United Kingdom and all other members of the Council of Europe.  However, on March 10 ^th 1976, the Irish Government decided to submit the inter-State case to the European Court of Human Rights and as a result, on September 2 ^nd 1976, the European Commission of Human Rights (Confidential) Report was published to the wider public. 

The hearings before the European Court of Human Rights were held in February and April 1977 and its judgment was delivered on January 18 ^th 1978.  Famously and controversially, the European Court of Human Rights ruled (by sixteen votes to one) that the combined ’five techniques’ constituted a practice of inhuman and degrading treatment in violation of article 3.  Famously and controversially, the Court further ruled (by fourteen votes to three) that ’five techniques’ did not constitute a practice of torture in violation of article 3. On the other allegations, it concurred with the findings in the European Commission’s Report.

Research

The Researcher completed the collection of all available material in the National Archives of Ireland and the British National Archives.  The material from the Irish government papers constitutes 294 files from recently released archival documents from the Department of the Taoiseach and Foreign Affairs, including transcripts of meetings between Heads of Government and other senior officials, correspondence between department officials and the legal team, correspondence with the Strasbourg institutions, legal opinions, drafts legal pleadings and press cuttings. 

Of the 294 files relevant to the case, 46 are restricted on the grounds of section 8 of the National Archives Act 1986. [1] All of the non-restricted files were accessed and the relevant material collected in the second year.  Unfortunately, the estimated 80-100 case files from the Attorney General’s Office have not been released.  A request was made in February 2006 for special access to these Attorney General papers, which remains pending.

The material includes nearly 1,700 pages of witness testimony before the Sub-Commission of the European Commission of Human Rights, which, under the European Convention on Human Rights, were tasked with the investigation and fact-finding element of the European Commission’s proceedings.  Such testimony, in keeping with the European Commission procedures, was taken in camera and hence, has not been disclosed publicly before.

A number of interviews of members of the Irish legal team and department officials, who were involved in the case, have been conducted.  Thus far, nine interviews have been undertaken (October 2006-July 2008).  

Further Information: 

• More info on Ireland v United Kingdom (1978)
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