56 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL Reassessment of the Ireland v. the United Kingdom ECtHR case: A lost opportunity to clarify the distinction between torture and ill-treatment Vesna Stefanovska, PhD* torture, did not exist at that time. Although Key points of interest a re-opening of the case was requested in •• The European Court of Human 2014 by Ireland, forensic documentation Rights’ (ECtHR) decision on the using the Istanbul Protocol was not used; Ireland v. the United Kingdom in 2018, the ECtHR decided against re- case in 1978 based its judgment opening the case. Objective: By using the on the severity of the treatment Ireland v. The United Kingdom case, this without considering the long-term paper aims to map the origins of the five psychological effects of the five techniques, review whether applying them (torture) techniques. constitutes torture, analyze the information •• The decision of the ECtHR, in about the claimants available 30 years 2018, not to reassess their original later, and explore the ramifications of the judgement, based on the Istanbul ECtHR decision not to revise its judgment. Protocol and by considering the Methodology: Relevant texts were gathered long-term or permanent damage from the HUDOC database, Cambridge to the victims, may have adverse University Press, Wiley Online Library, repercussions for future cases. SCOPUS and MEDLINE /PubMed, and the Library of the ECtHR in Strasbourg. Abstract Discussion/conclusions: The five techniques, Introduction: In the 1978 Ireland v. the elaborated upon in the case of Ireland United Kingdom case, the European v. the United Kingdom, were used well Court of Human Rights (ECtHR) did not before the incidents in Northern Ireland consider that the so called “five techniques” in 1971 and there is evidence that United did not cause enough severity of suffering Kingdom officials have, subsequently, used to be considered torture. The intentionality the techniques. Furthermore, there is clear criterion, outlined in the Convention evidence that the “Hooded Men” had against Torture’s definition of torture, was cognitive, psychological and neurovegetative also not fully considered. The Istanbul symptoms as a result of the five techniques, Protocol, which is critical for evidencing which had long-term effects. The ECtHR did not take this into consideration when it decided not to re-open the case and the full *) Legal Researcher, Institute for Human Rights, implications of this decision for future cases Republic of North Macedonia and victims remain to be seen. TORTURE Volume 29, Number 1, 2019 Volume TORTURE Correspondence to: [email protected] https://doi.org/10.7146/torture.v29i1.110000 International Rehabilitation Council for Torture Victims. All rights reserved. 57 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL Keywords: Torture, inhuman treatment, They judged that ill-treatment must attain five techniques, psychological torture, a minimum level of severity to fall within interrogation the scope of Article 3 (Padeanu, 2018). The assessment of severity is relative and Introduction depends on all the circumstances of the Article 3 of the European Convention on case, such as the duration of the treatment, Human Rights (ECHR) enshrines one of its physical or mental effects and, in some the most fundamental values of democratic cases, the sex, age and state of health of the societies, stating that: “No one shall be victim (ECtHR, 1978: Ireland v. the United subjected to torture or to inhuman or Kingdom, §162). degrading treatment or punishment.” As Several years after this judgment, the one of the most difficult norms to interpret, 1984 Convention against Torture (UNCAT) the European Commission of Human put forward a definition of torture in which Rights (EcommHR; the Commission) and both physical and mental suffering can the European Court of Human Rights constitute torture on the condition that they (ECtHR; the Court) have faced a number are purposefully inflicted. Intentionality is of disagreements regarding what practices thus a critical criterion of torture; severe pain constitute torture. The Ireland v. the United or suffering, whether physical or mental, must Kingdom case provides a particularly be intentionally inflicted on a person. Indeed, illustrative case of this. Pérez-Sales (2017) argues that intention and In 1971, the Irish Government brought purpose go hand-in-hand; when a purpose an application to the ECommHR on can be identified, so too can intentionality. behalf of 14 “Hooded Men,” who were Purpose is, however, challenging to infer subjected to five harsh interrogation without proof of intentionality. techniques by the UK government during As evidenced by the Ireland case and “the Troubles”—a conflict regarding the others, initially, no precedent existed for constitutional status of Northern Ireland.1 the ECtHR using intention to infer torture; These techniques comprised: hooding, however, a number of cases have forced wall-standing in stress positions for long the ECtHR to reconsider its position in periods of time, noise, sleep deprivation, this regard. For example, if we analyze and food and water deprivation. After the the Strasbourg jurisprudence with the Commission unanimously decided that the intentionality criterion, Aksoy v. Turkey is an “five techniques” were in breach of Article informative case. The Court noted, “…this 3 of the European Convention on Human treatment could only have been deliberately TORTURE Rights (ECHR), it was referred to the inflicted...” and found that a certain ECtHR. In 1978, the ECtHR judged that amount of preparation and exertion would Volume 29, Number 1, 2019 Volume the practices used amounted to “inhuman have been required to carry it out (Reidy, and degrading treatment” but not torture. 2002, p.13). This was in relation to the so- called “Palestinian hanging” case, where the victim was suspended by his arms, which were tied behind his back (ECtHR, 1996: 1 Hooded Men is a term often used when referring Aksoy v. Turkey). to this group of 14 men in academic publications Despite this, in 2018, the ECtHR and news stories because hoods were placed on them while they were interrogated. rejected Ireland’s request—made in 2014— 58 SPECIAL SECTION: FORENSIC DOCUMENTATION OF TORTURE: REFLECTIONS AND LEARNINGS ON THE ISTANBUL PROTOCOL to revise the original decision relating to the The documents were reviewed and Hooded Men, which was made on the basis analyzed through two approaches. Firstly, of new evidence. This was a lost opportunity the sources were read thoroughly and to clarify the conceptual distinction between annotated to develop themes and gain a torture and cruel, inhuman or degrading clearer picture of psychological torture. treatment (CIDT), particularly in relation to Secondly, historical methods were psychological torture. used for gathering facts pertaining to After briefly detailing the methodology different decades and continents, with the used, this paper proceeds as follows: purpose of showing that the five (torture) demarcates psychological torture and maps techniques were applied well before the the historical origins and application of the incidents in Northern Ireland and that five techniques, which led to psychological they continued to be used after, although torture; details the interpretation of the they were considered to be illegal. Based five techniques in the original Ireland v. on this literature, comparable cases The United Kingdom case; reviews the were also sought to form comparisons implications of the recent decision by the between the case in question and other ECtHR not to revise its judgment; discusses cases from the Strasbourg and Inter- other disagreements between these two American case law. The purpose was to institutions; explores the jurisprudence of show that now the ECtHR has clarified the use of the five techniques documented in that the assessment of the minimum level other cases globally regarding psychological of severity is relative and depends on the torture; and concludes. circumstances of the case. Methodology Demarcating psychological torture The data that informed this paper Both physical and psychological torture consisted of books, articles, newspaper produce physical and mental suffering, searches, and cases. Some of the sources which makes distinguishing between them were collected during a research visit to the challenging. “Psychological torture” can ECtHR in Strasbourg. Other sources were relate to two different aspects of the same found using the Cambridge University entity. On the one hand, it can consist Press database. Databases such as Wiley of non-physical methods as “physical Online Library, SCOPUS and MEDLINE methods” of torture are often self-evident, /PubMed were also used to locate articles such as thumbscrews, flogging, application in relation to the Ireland v. The United of electric current to the body, and other Kingdom case, psychological torture, and similar techniques. On the other hand, the long-term effects of the five (torture) physical methods can also cause mental techniques. Court cases were found using suffering. In this context, “non-physical” the HUDOC database and the IACtHR. refers to a method that does not hurt, maim In total, 54 sources were identified, of or even touch the body, but touches the which 37 were deemed relevant and used mind instead (Reyes, 2007). Practices that in this research.