The Republic of Ireland v. The United Kingdom
Series A, No. 25
Before the European Court of Human Rights
18 January 1978
The British Government, faced with serious acts of terrorism perpetrated by members of the Irish Republican Army (IRA) and Loyalist groups in Northern Ireland, introduced special powers of arrest and detention without trial, which were widely used, chiefly against the IRA. Notices of derogation under Article 15 (1) were lodged with the Secretary-General of the Council of Europe in view of the 'public emergency threatening the life of the nation'. The Government of the Republic of Ireland brought an application before the Commission alleging, inter alia, ... (ii) that various interrogation practices--in particular the so-called 'five techniques', which included wall- standing, hooding and deprivation of sleep and food--and other practices to which suspects were subjected amounted to torture and inhuman or degrading treatment contrary to Article 3...The Commission unanimously found that the five techniques did constitute a practice of torture and that other practices amounted to inhuman and degrading treatment;:
(i) Ill-treatment had to attain a minimum level of severity to fall within Article 3, the assessment of which was necessarily relative, depending on all the circumstances, including the duration of the treatment, its physical or mental effects and, sometimes, the sex, age or state of health of the victim.
(j) Although the 'five techniques'were never officially authorised in writing, they were taught orally at a training centre and accordingly there was a practice.
(k) Since the five techniques were applied in combination, with premeditation and for hours at a time, causing at least intense physical and mental suffering and acute psychiatric disturbances, they amounted to inhuman treatment.
(l) Since the five techniques were such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, they were also degrading.
(m) The distinction between torture and inhuman or degrading treatment derived principally from a difference in the intensity of the suffering inflicted.
(n) The term 'torture' attached a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.
(o) The five techniques did not occasion suffering sufficient in intensity and cruelty to constitute torture.
(p) With regard to the alleged ill-treatment accompanying the five techniques in the autumn of 1971, many of those held in custody were subjected to violence by the police, which, being repeated, occurring in the same place and taking similar forms, constituted a practice, which, since it led to intense suffering and sometimes substantial physical injury, amounted to inhuman treatment though not torture.
(q) The ill-treatment at the Ballykinler military camp was discreditable and reprehensible but was not degrading or otherwise contrary to Article 3 .
I. THE EMERGENCY SITUATION AND ITS BACKGROUND
11. The tragic and lasting crisis in Northern Ireland lies at the root of the present case. In order to combat what the respondent Government describe as ' the longest and most violent terrorist campaign witnessed in either part of the island of Ireland', the authorities in Northern Ireland exercised from August 1971 until December 1975 a series of extrajudicial powers of arrest, detention and internment. The proceedings in this case concern the scope and the operation in practice of those measures as well as the alleged ill-treatment of persons thereby deprived of their liberty.
12. Up to March 1975, over 1,100 people had been killed, over 11,500 injured and more than140,000,000 pounds worth of property destroyed during the recent troubles in Northern Ireland. This violence found its expression in part in civil disorders, in part in terrorism, that is, organised violence for political ends.
III. ALLEGATIONS OF ILL-TREATMENT
92. As recounted above at paragraphs 39 and 41, on 9 August 1971 and thereafter numerous persons in Northern Ireland were arrested and taken into custody by the security forces acting in pursuance of the emergency powers. The persons arrested were interrogated, usually by members of the RUC, in order to determine whether they should be interned and/or to compile information about the IRA. In all, about 3,276 persons were processed by the police at various holding centres from August 1971 until June 1972. The holding centres were replaced in July 1972 by police offices in Belfast and at Ballykelly Military Barracks.
93. Allegations of ill-treatment have been made by the applicant Government in relation both to the initial arrests and to the subsequent interrogations. The applicant Government submitted written evidence to the Commission in respect of 228 cases concerning incidents between 9 August 1971 and 1974.
The procedure followed for the purposes of ascertaining the facts (Art. 28 (a) of the Convention) was one decided upon by the Commission and accepted by the Parties. The Commission examined in detail with medical reports and oral evidence 16 'illustrative' cases selected at its request by the applicant Government. The Commission considered a further 41 cases (the so-called '41 cases' ) on which it had received medical reports and invited written comments; it referred to the remaining cases. The nature of the evidence submitted by the two Governments and the procedure followed by the Commission in its investigation of such evidence are set out in some detail in the Commission's report. The Commission came to the view that neither the witnesses from the security forces nor the case-witnesses put forward by the applicant Government had given accurate and complete accounts of what had happened.
Consequently, where the allegations of ill-treatment were in dispute, the Commission treated as 'the most important objective evidence'the medical findings which were not contested as such. The following account of events is based on the information set out in the Commission's report and in the other documents before the Court.
94. In order to protect the identity of certain persons, notably witnesses, the published version of the Commission's report incorporated changes to the original text; these changes mainly took the form of designating such persons by letters and/or figures.
95. The Commission grouped the cases into five categories, according to the place where the ill-treatment was said to have been inflicted, namely:
(1) the unidentified interrogation centre or centres;
(2) Palace Barracks, Holywood;
(3) Girdwood Park Barracks;
(4) Ballykinler Regional Holding Centre; and
(5) various other miscellaneous places.
B. THE UNIDENTIFIED INTERROGATION CENTRE OR CENTRES
96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of 'interrogation in depth' which involved the combined application of five particular techniques. These methods, sometimes termed ' disorientation' or 'sensory deprivation'techniques, were not used in any cases other than the 14 so indicated above. The techniques consisted of the following:
(a) wall-standing: forcing the detainees to remain for periods of some hours in a 'stress position' , described by those who underwent it as being ' spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers';
(b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink:subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.
97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at 'high level'. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.
98. The two operations of interrogation in depth by means of the five techniques led to the obtaining of a considerable quantity of intelligence information, including the identification of 700 members of both IRA factions and the discovery of individual responsibility for about 85 previously unexplained criminal incidents.
99. Reports alleging physical brutality and ill-treatment by the security forces were made public within a few days of Operation Demetrius (see para. 39 above). A committee of enquiry under the chairmanship of Sir Edmund Compton was appointed by the United Kingdom Government on 31 August 1971 to investigate such allegations. Among the 40 cases this Committee examined were 11 cases of persons subjected to the five techniques in August 1971; its findings were that
interrogation in depth by means of the techniques constituted physical ill- treatment but not physical brutality as it understood that term. The Committee's report, adopted on 3 November 1971, was made public, [FN11]as was a supplemental report of 14 November by Sir Edmund in relation to three further cases occurring in September and October, one of which involved the techniques.
100. The Compton reports came under considerable criticism in the United Kingdom. On 16 November 1971, the British Home Secretary announced that a further Committee had been set up under the chairmanship of Lord Parker of Waddington to consider 'whether, and if so in what respects, the procedures currently authorised for interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment'. The Parker report, adopted on 31 January 1972, contained a majority and a minority opinion. [FN12] The majority report concluded that the application of the techniques, subject to recommended safeguards against excessive use, need not be ruled out on moral grounds. On the other hand, the minority report by Lord Gardiner disagreed that such interrogation procedures were morally justifiable,
even in emergency terrorist conditions. Both the majority and the minority considered the methods to be illegal under domestic law, although the majority confined their view to English law and to 'some if not all the techniques'.
101. The Parker report was published on 2 March 1972. On the same day, the United Kingdom Prime Minister stated in Parliament that the techniques would not be used in future as an aid to interrogation. As foreshadowed in the Prime Minister's statement, directives expressly prohibiting the use of the techniques, whether singly or in combination, were then issued to the security forces by the Government (see para. 135 below).
102. At the hearing before the Court on 8 February 1977, the United Kingdom Attorney-General declared that the 'five techniques' would not in any circumstances be reintroduced as an aid to interrogation.
103. The Irish Government referred to the Commission eight cases of persons submitted to the five techniques during interrogation at the unidentified centre or centres between 11 and 17 August 1971. A further case, that of T22, considered in the Commission's report in the context of Palace Barracks, concerned the use of the five techniques in October 1971. The Commission examined as illustrative the cases of T6 and T13, which were among the 11 cases investigated by the Compton Committee.
104. T6 and T13 were arrested on 9 August 1971 during Operation Demetrius. Two days later they were transferred from Magilligan Regional Holding Centre to an unidentified interrogation centre where they were medically examined on arrival. Thereafter, with intermittent periods of respite, they were subjected to the five techniques during four or possibly five days. The Commission was satisfied that T6 and T13 were kept at the wall for different periods totalling between 20 to 30 hours, but it did not consider it proved that the enforced stress position had lasted all the time they were at the wall. It stated in addition that the required posture caused physical pain and exhaustion. The Commission noted that, later on during his stay at the interrogation centre, T13 was allowed to take his hood off when he was alone in the room, provided that he turned his face to the wall. It was not found possible by the Commission to establish for what periods T6 and T13 had been without sleep, or to what extent they were deprived of nourishment and whether or not they were offered food but refused to take it.
The Commission found no physical injury to have resulted from the application of the five techniques as such, but loss of weight by the two case-witnesses and acute psychiatric symptoms developed by them during interrogation were recorded in the medical and other evidence. The Commission was unable to establish the exact degree of any psychiatric after-effects produced on T6 and T13, but on the general level it was satisfied that some psychiatric aftereffects in certain of the 14 persons subjected to the techniques could not be excluded.
105. T13 claimed in addition to have been beaten and otherwise physically ill-treated, but the medical evidence before the Commission gave reason to doubt that he had been assaulted to any severe degree, if at all. Accordingly, the Commission treated the allegations in regard to T13 as concerning the five techniques only. T6 similarly alleged that he was also assaulted in various ways at, or during transport to and from, the centre. On 17 August 1971 he was medically examined on leaving the centre and also on his subsequent arrival at Crumlin Road Prison where he was then detained until 3 May 1972. The medical reports of these examinations and photographs taken on the same day revealed on T6's body bruising and contusions that had not been present on 11 August. While not accepting all T6's allegations, the Commission was 'satisfied beyond a reasonable doubt that certain of these injuries ... [were] the result of assaults committed on him by the security forces at the centre' . As a general inference from the facts established in T6's case, the Commission also found it 'probable that physical violence was sometimes used in the forcible application of the five techniques'.
106. Although several other cases were referred to before the Commission by the applicant Government in connection with the unidentified interrogation centre or centres, no detailed allegations or findings are set out in the Commission's report except in the case of T22 which was one of the '41 cases'. The medical evidence established that when leaving the centre and on entering Crumlin Road Prison, T22 had suffered superficial bruising. The Commission's short assessment of this case, which it described as comparable to the case of T6, was that 'there exists a strong indication that the course of events was similar to that found in the illustrative [case]'.
107. T13 and T6 instituted civil proceedings in 1971 to recover damages for wrongful imprisonment and assault; their claims were settled in 1973 and 1975 respectively for <<PoundsSterling>>15,000 and <<PoundsSterling>>14,000. The 12 other individuals against whom the five techniques were used have all received in settlement of their civil claims compensation ranging from <<PoundsSterling>>10,000 to <<PoundsSterling>>25,000.
G. MEASURES CONCERNING THE TREATMENT OF PERSONS ARRESTED OR HELD BY THE SECURITY FORCES
1. Medical and other records
133. From May 1970 onwards, the army rule was that the person arrested and the arresting soldier were to be photographed together. With regard to the practice followed during Operation Demetrius, the Compton Committee noted that a photograph was taken of each person admitted to a regional holding centre and that on entry to Ballykinler and Magilligan, though not to Girdwood Park, a medical examination was carried out and its result recorded. As from 15 November 1971, every individual brought to a holding centre was medically examined on arrival and departure. Medical staff were instructed to submit reports whenever there was evidence or a complaint of ill-treatment. Furthermore, after a certain time, records were kept of the prisoner's condition during his progress through interrogation.
2. Provisions designed to prevent ill-treatment
134. It would appear that, at the beginning of the internment operation, reliance was simply placed on the normal regulations requiring humane treatment and forbidding the use of violence.
135. Following the Parker report and the Prime Minister's statement to Parliament (see para. 101 above), a directive on interrogation was issued prohibiting the use of coercion and, in particular, of the five techniques. In addition, it made mandatory medical examinations, the keeping of comprehensive records and the immediate reporting of any complaints of ill-treatment. In April 1972, army instructions and the RUC Force Order 64/72, concerning respectively arrests under the Special Powers Regulations and the treatment of prisoners, directed that excessive force should never be used. Shortly after the introduction of direct rule, the United Kingdom Attorney-General gave a ministerial directive on the proper treatment of persons in custody, making it clear that where any form of ill-treatment was reported, the Director of Public Prosecutions would prosecute. Further army and RUC instructions of August 1972 in respect of arrest and interrogation enjoined the proper and humane treatment of prisoners; they strictly forbade resort to violence, the five techniques, threats or insults and concluded with a prohibition similar to Article 3 of the Convention. In August 1973 new instructions with regard to arrests by the army re-emphasised the need for correct behaviour. The respondent Government submitted that steps had been taken for the diffusion and enforcement at all levels of these orders and directives. However, both the Commission and the applicant Government considered that there was a lack of satisfactory evidence as to how the regulations were implemented and obeyed in practice.
136. Section 6 of the Emergency Provisions Act (see para. 68 above) contained provisions designed to exclude as evidence before an ordinary criminal court statements by an accused obtained by torture or inhuman or degrading treatment; the section did not apply to the extrajudicial procedures or to statements by third parties.
148. Paragraph (d) of the application of 10 March 1976 states that the object of bringing the case before the Court (rule 31 (1) (d) of the Rules of Court) is 'to ensure the observance in Northern Ireland of the engagements undertaken by the respondent Government as a High Contracting Party to the Convention and in particular of the engagements specifically set out by the applicant Government in the pleadings filed and the submissions made on their behalf and described in the evidence adduced before the Commission in the hearings before them'. 'To this end', the Court is invited 'to consider the report of the Commission and to confirm the opinion of the Commission that breaches of the Convention have occurred and also to consider the claims of the applicant Government with regard to other alleged breaches and to make a finding of breach of the Convention where the Court is satisfied that a breach has occurred' .In their written and oral pleadings before the Court, the Irish Government allege breaches of Articles 1, 3, 5 (taken together with Article 15), 6 (taken together with Article 15) and 14 (taken together with Articles 5 and 6).
They also maintain--though they do not ask the Court to make a specific finding--that the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation. The Commission does not go as far as that; however, at various places in its report, the Commission points out, in substance, that the respondent Government did not always afford it the assistance desirable. The Court regrets this attitude on the part of that Government; it must stress the fundamental importance of the principle, enshrined in Article 28 (a) in fine, that the Contracting States have a duty to co-operate with the Convention institutions.
149. The Court notes first of all that it is not called upon to take cognisance of every single aspect of the tragic situation prevailing in Northern Ireland. For example, it is not required to rule on the terrorist activities in the six counties of individuals or of groups, activities that are in clear disregard of human rights. The Court has only to give a decision on the claims made before it by the Irish Republic against the United Kingdom. However, in so doing, the Court cannot lose sight of the events that form the background to this case.
I. ON ARTICLE 3
150. Article 3 provides that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
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 areunder a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected.
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. 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 1 and 4, Article 3 makes no provision for exceptions and, under Article 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'.
1. The unidentified interrogation centre or centres
(a) The 'five techniques'
165. The facts concerning the five techniques are summarised at paragraphs 96-104 and 106-107 above. In the Commission's estimation, those facts constituted a practice not only of inhuman and degrading treatment but also of torture. The applicant Government ask for confirmation of this opinion which is not contested before the Court by the respondent Government.
166. The police used the five techniques on 14 persons in 1971, that is, on 12, including T6 and T13, in August before the Compton Committee was set up, and on two in October whilst that Committee was carrying out its enquiry. Although never authorised in writing in any official document, the five techniques were taught orally by the English Intelligence Centre to members of the RUC at a seminar held in April 1971. There was accordingly a practice.
167. The five techniques were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3. The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.
On these two points, the Court is of the same view as the Commission.
In order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.
In the Court's view, this distinction derives principally from a difference in the intensity of the suffering inflicted.
The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between 'torture' and ' inhuman or degrading treatment', should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.
Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December, 1975, which declares: 'Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.'
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.
168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3.
Separate Opinion of Judge Zekia
With respect, I subscribe to the main part of the judgment of the Court. I maintain, however, a different view as to the notion and concept of the word ' torture' occurring in Article 3 of the Convention. Moreover, I entertain a lot of doubt whether the Court is justified in setting aside a unanimous conclusion of the Commission in respect of torture which has not been contested by the representatives of the two High Contracting States who took part in the proceedings before the Court.
I feel tempted also to deal briefly with the principle underlying the onus of
proof and the discharge of such onus in a case where a Contracting State is alleged to have violated its obligation under an Article of the Convention.
Admittedly the word 'torture' included in Article 3 of the Convention is not capable of an exact and comprehensive definition It is undoubtedly an aggravated form of inhuman treatment causing intense physical and/or mental suffering. Although the degree of intensity and the length of such suffering constitute the basic elements of torture, a lot of other relevant factors had to be taken into account. Such as: the nature of ill-treatment inflicted, the means and methods employed, the repetition and duration of such treatment, the age, sex and health condition of the person exposed to it, the likelihood that such treatment might injure the physical, mental and psychological condition of the person exposed. Whether the injuries inflicted caused serious consequences for short or long duration are all relevant matters to be considered together and arrive at a conclusion whether torture has been committed.
It seems to me permissible, in ascertaining whether torture or inhuman treatment has been committed or not, to apply not only the objective test but also the subjective test.
As an example I can refer to the case of an elderly sick man who is exposed to a harsh treatment--after given several blows and beaten to the floor, is dragged and kicked on the floor for several hours. I would say without hesitation that the poor man has been tortured. If such treatment is applied on a wrestler or even a young athlete, I would hesitate a lot to describe it as an inhuman treatment and I might regard it as a mere rough handling. Another example: if a mother, for interrogation, is separated from her suckling baby by keeping them apart in an adjoining room and the baby starts yelling of hunger for hours within the hearing of the mother and she is not allowed to attend her baby, again I should say both the mother and the baby have been subjected to inhuman treatment. The mother by being agonised and the baby by being deprived of the urgent attention of the mother. Neither the mother nor the child has been assaulted.
The salient facts
In August and October 1971, 14 persons were arrested with a view to extract confession or information from them. They were submitted to a form of ' interrogation in depth'by members of the security forces or persons authorised to do it. The said form of interrogation involved the application of the five techniques which consisted of:
1. hooding the detainees except during interrogation;
2. making them stand continuously against a wall in a spreadeagled and painful posture for prolonged periods of some hours;
3. submitting them to continuous and monotonous noise;
4. depriving them of sleep; and
5. restricting them to a diet of one round of bread and one pint of water at six-hourly intervals.
The five techniques were applied in combination and with premeditation and for hours at a stretch. They caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. This practice of interrogation continued interruptedly for some days. This is a short summary of facts and effects relating to the application of the five techniques.
B. Interpretation of Article 3
Reference was made to The Greek Case and also to Article 5 of the Universal Declaration of Human Rights and also to Article 7 of the International Covenant on Civil and Political Rights.
Finally, stress was laid on Resolution 3452 of the General Assembly of 9 December 1975 which was unanimously adopted.
Paragraph 1 of Article 1 of the Resolution referred to reads:
For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official ... for ... obtaining ... information or confession ....
Paragraph 2 of Article 1 reads:
Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.
Paragraph 1, which deals with the meaning to be attached to the word ' torture', is more relevant for the purpose of interpretation of Article 3 of the Convention.
It is significant that stress has been laid on the severity of physical and/or mental pain or suffering and it was not felt necessary to qualify the word 'severe' with an adjective denoting high degree of severity in the pain or suffering inflicted.
I do not share the view that extreme intensity of physical or mental suffering is a requisite for a case of ill-treatment to amount to 'torture' within the purport and object of Article 3 of the Convention. The nature of torture admits gradation in its intensity, in its severity and methods adopted. It is, therefore, primarily the duty and responsibility of the authority conducting the enquiries from close quarters, after taking into account all the surrounding circumstances, evidence and material available, to say whether in a particular case inhuman ill-treatment reached the degree of torture. In other words, this is a finding of fact for the competent authority dealing with the case in the first instance and, for reasons we give hereunder, we should not interfere with.
Separate Opinion of Judge Evrigenis
Since I am unable to follow the majority of the Court on points 4, 7 and 9 of the ruling of the Judgment, I feel I ought to set out the reasons for my different opinion.
(a) The majority considers that the combined use of the five techniques constituted inhuman and degrading treatment but not torture within the meaning of Article 3 of the Convention. I, on the other hand, consider that the acts in question not only were inhuman and degrading treatment but also came within the concept of torture. On this point I share the unanimous opinion of the Commission, which was not disputed before this Court by the defendant Government. My disagreement with the majority relates to both the premises of its reasoning, that is to say, (i) the definition of torture and its distinction from inhuman treatment, as well as (ii) the appraisal of the combined use of the five techniques as a question of fact.
(i) The definition of torture--and therefore the distinguishing element between torture and inhuman treatment--which lies behind the Judgment does not seem to be noticeably different from that which the Commission adopted in its report. According to the Commission, torture is an 'aggravated form of inhuman treatment', the latter in turn being treatment inducing 'voluntarily serious mental or physical suffering'.The Judgment defines torture as 'deliberate inhuman treatment provoking very serious and cruel suffering' (para. 167). Both definitions put the emphasis on the effects of the acts in question on the person subjected to them and it is therefore difficult to distinguish between what is an 'aggravated form' of 'treatment provoking serious suffering' and the infliction of 'very serious and cruel suffering' . The distinction between the two definitions of torture becomes even more difficult when one considers that the Court aligned its own definition on that of the General Assembly of the United Nations, [ which is substantially identical to that of the Commission.
Nonetheless, one can discern in this terminology, which in itself is not particularly enlightening, a tendency visible in the reasoning of the majority to place the distinction between torture and inhuman treatment at a very high level in the grading of the intensity of suffering inflicted.
Indeed, the judgment seems to reserve the term torture for treatment which causes suffering of an extreme intensity. I do not share that interpretation.
The concept of torture which emerges from the Judgment is too restricted. By adding to that concept that of inhuman and degrading treatment the authors of the Convention intended, following Article 5 of the Universal Declaration of Human Rights, [FN74] to extend the prohibition laid down in Article 3 of the Convention (and directed in principle at torture to other categories of act causing intolerable suffering to people or attacking their dignity, rather than to remove from the traditional concept of torture certain forms of torture which are apparently less serious and placing them in the less 'ignominious'category--to use the wording of the Judgment--of inhuman treatment. The clear intention to widen the field of action of the prohibition in Article 3 by the addition to torture of other categories of act could not have the effect of narrowing the concept of torture. I would go so far as to suggest that if Article 3 of the Convention referred solely to torture. It would be difficult not to find that the combined use of the five techniques in the present case fell within that Article. I do not see why the result should be different just because the Convention condemns not only torture but also other categories of act with the sole aim of enlarging the protection of the human person.
The interpretation adopted by the Court in this case also seems to point towards a conception of torture which is attached to devices for inflicting suffering which are now outdistanced by the ingenuity of modern methods of oppression. Torture does not necessarily involve violence, a notion to which the judgment refers expressly and generically. It can be--and indeed is-- carried out by subtle techniques, perfected in multidisciplinary laboratories which call them-selves scientific. It aims, through new forms of suffering which have little in common with the bodily pain caused by the conventional torments, at inducing even temporarily the disintegration of the human personality, the destruction of man's mental and psychological balance and the annihilation of his will. I should be extremely sorry if the definition of torture which comes out of the Judgment could not cover these different forms of technologically-refined torture. Such an interpretation would lose sight of the context and the historical perspectives in which the European Convention on Human Rights should be situated.
(ii) I can be more positive with regard to the holding of the majority as to the appraisal of the factual level of the combined use of the five techniques. I am convinced that the use of these procedures wittingly chosen and measured out caused to the persons subjected to them physical, mental and psychological suffering of an extreme intensity, necessarily covered by any definition, even the most restricted, of torture. The evidence which the Commission, working in face of a wall of absolute silence put up by the defendant Government, has been able to collect on the psychiatric short or long term effects on the victims induced by the practices in question (para. 167 of the Judgment) confirms this conclusion.