Ireland v United Kingdom (1978) - a decision of the European Court of Human Rights

Because Module 4 asks you to compare the three regional arrangements, and the European system is the one that works. What makes it work is that a State may be brought before a court by another State, and an individual may be brought before it by himself, and the resulting judgment binds. Article 46 of the Convention provides that the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

This case is the demonstration of the first of those routes. Inter-State applications are rare - there are far more individual petitions than inter-State ones - and that rarity is itself examinable: States are reluctant to accuse each other, because the accusation can be returned.

Several members of the Irish Republican Army were arrested and detained in the United Kingdom. The interrogation practices applied to them included wall-standing, hooding, and deprivation of sleep and food.

The applicant was the Republic of Ireland, which claimed that the extrajudicial detention infringed human rights and that the interrogation practices amounted to torture and to inhuman or degrading treatment in violation of the Convention.

Notice who the applicant is. Ireland was not the victim, and it did not claim to be. Under an inter-State procedure a State Party enforces the Convention as a collective guarantee, not as an injury to itself. That is the conceptual difference between an inter-State human rights application and an ordinary claim in international law for injury to a State's own nationals.

Article 3 of the European Convention provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Compare it with the two texts you already know. Article 5 of the Universal Declaration and Article 7 of the Covenant on Civil and Political Rights are in the same terms with the addition of the word cruel. The three-fold structure - torture, inhuman treatment, degrading treatment - is common to all of them, and the whole of the case turns on it, because a practice may be inhuman or degrading without reaching the threshold of torture.

The Court held that the interrogation 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, and that this amounted to a violation of the Convention.

Take the three elements of that finding seriously, because they are a usable test:

• In combination. No single technique was examined in isolation. Standing against a wall, being hooded, being deprived of sleep and being deprived of food are each unpleasant; applied together and continuously they are something different in kind.
• With premeditation. These were not the excesses of individual officers. They were a system, designed and taught.
• For hours at a time. Duration converts discomfort into suffering.

The consequences the Court identified - intense physical and mental suffering and acute psychiatric disturbances - show that the harm need not be physical injury. Psychiatric harm counts.

Three features of the European system are visible in it, and each distinguishes Europe from the American and African arrangements.

A standing court with compulsory jurisdiction. Article 19 establishes a European Court of Human Rights functioning on a permanent basis. By Article 20 the Court consists of a number of judges equal to that of the High Contracting Parties. There is no separate step by which a State must additionally accept the Court's jurisdiction over contentious cases, as there is in the American system, where only some of the States which have ratified the American Convention have accepted the Court's contentious jurisdiction.

A genuine right of individual petition. Article 34 provides that "The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto." The Contracting Parties undertake not to hinder in any way the effective exercise of this right. The applicant must be directly and personally the victim; anonymous applications are not entertained; there is no cost in submitting an application, and legal aid may be applied for.

Admissibility discipline. By Article 35 the Court may deal with a matter only after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within the time limit the article prescribes. Applications proceed in two phases, admissibility and merits, and the proceedings are conducted primarily in writing.

Keep two short examples with this case, because a comparative answer is much stronger with three data points than with one.

• A deportation case in which the applicant lost. A Nigerian national complained that his deportation from the United Kingdom would breach his right not to be ill-treated and his right to private life. The Court found no violation of Article 8: although he was a settled migrant, the seriousness of the multiple drugs-related offences he had committed as an adult, together with the carefully considered preventive steps taken by the authorities to mitigate any risk of suicide, were sufficient to justify his deportation.
• A detention case in which the applicant won. An Iraqi national was kept in detention in Greece for over two years and three months with a view to his deportation, although an order had been made for his conditional release. The Court found violations, because the Greek legislation governing the detention of persons whose expulsion had been ordered by the courts laid down no maximum period.

The second is the more useful. It shows the Court reviewing the structure of a national statute, not merely its application to an individual - and a Court that can tell a State that its legislation lacks a necessary safeguard is exercising a power no other regional system exercises as routinely.