The ‘Torture Files’: What are the legal consequences?

Aisling O'Sullivan
Aisling O’Sullivan

In the ‘The Torture Files’, the Investigations Unit of the Irish national broadcasting service (RTE) argues that new evidence, which was unearthed in the British National Archives, could justify a re-visiting of the European Court of Human Rights judgment in the Ireland v United Kingdom case. The programme, broadcast on 4 June 2014, can be viewed here. Rita O’Reilly of the RTE Investigations Unit discusses their revelations in the Irish Times here.

Subsequent to the broadcast, Sinn Féin President Gerry Adams called on the Irish Government to request the ECHR to re-open the case. Amnesty International’s Northern Ireland Programme Director Patrick Corrigan has described the evidence that the British Government misled the European Commission and Court of Human Rights during the proceedings as ‘deeply worrying’.

‘The Torture Files’ traces the experiences of the 14 ‘Hooden Men’ who were subjected to what became known as the ‘Five Techniques’. As ‘The Torture Files’ recounts, the ‘Five Techniques’ involved five sensory deprivation methods applied in combination over several days. These are hooding, sleep deprivation, a severe wall-standing position, continual noise generator and bread/water diet. In August and October 1971, these ‘Five Techniques’ were used during the ‘interrogation in depth’ of 14 men. These interrogations arose out of the 1971Operation Demetrius, an operation mounted by the British Army and the RUC on the 9 August 1971 that detained 342 men and signalled the introduction of internment or detention without trial.

‘The Torture Files’ shows that the British Government was aware that the ‘five techniques’ produced severe long-term psychological effects. The Irish Government’s expert witnesses before the European Commission of Human Rights, psychiatrists Professor Robert Daly and Professor Baastians, argued that the effects of the techniques would be long-term mental and physical illness. In opposition, the British Government’s expert witness, Dr Leigh, argued that the ‘acute psychiatric symptoms developed during interrogation were minor and their persistence was the result of everyday life in Northern Ireland’. Yet, among other revelations, ‘The Torture Files’ divulge the contents of Dr Leigh’s Report where he later in 1975 assessed one of the 14 men and drew a completely opposite conclusion –considering that the ‘other psychiatric symptoms’ was probably the result of interrogation in depth.

The Irish Government argued in the European Commission on Human Rights hearings that ‘the British Government failed on several occasions in their duty to furnish the necessary facilities for the effective conduct of the investigation’. However, the European Commission did not draw this conclusion but as the Court’s judgment recalls, it did note that the assistance afforded was not always at a desirable standard.

Another significant revelation in the ‘The Torture Files’ is the letter from (Home Secretary at the time) Merlyn Rees to British Prime Minister Jim Callaghan in March 1977. Here, Rees stated that his view (confirmed by former Stormont Prime Minister Brian Faulkner) was that the decision to ‘use torture in Northern Ireland’ was ‘taken by Ministers in particular Lord Carrington, then Secretary of State for Defence’ and therefore, prosecutions of members of the security forces should not take place. The Ministry for Defence concurred.

Yet, in the UK Counter-Memorial, the British Government argued that they ‘do not admit any of torture filesthe particular allegations of ill-treatment made by the applicant Government, or that any particular act alleged is attributable to or the responsibility of the UK Government’. ‘So far as concerns the five techniques….the UK Government deny that the techniques, as applied in Northern Ireland, constituted ill-treatment contrary to Article 3 or that the use of these techniques constituted an administrative practice contrary to article 3…..the UK Government accordingly maintain that the allegation of an administrative practice is ill-founded’ (ECHR Report, p260).  Further, ‘it would be….neither be fair nor reasonable to regard condonation by sub-ordinate officers of acts forbidden by higher authorities as an administrative practice for which the Government is responsible and there was no evidence of such toleration’ (ECHR Report, p264). Here, the UK was arguing that the official tolerance element of an administrative practice must involve ‘a superior of such rank as to be entitled to speak for the Government’ or of rank that an inference of authority can be drawn. But the European Commission of Human Rights reiterated that official tolerance involved either the direct superiors of those immediately responsible for the acts or that of a higher authority. This allowed the Irish Government to successfully demonstrate an official tolerance despite the lack of evidence at the time of a political decision. Therefore, Merlyn Rees’ understanding would mean that the acts of lower level officers had not been prohibited by higher authorities but had been political sanctioned, despite consistently denying an official tolerance before the European Commission of Human Rights.

In light of these revelations, it has been argued that there are grounds to re-open the case and revisit the Court’s decision on article 3 where it found that the five techniques constituted a practice of inhuman and degrading treatment in breach of article 3 but did not amount to torture (the latter being the finding of the European Commission). The argument that the case can be re-opened hinges on previous situations where the European Court of Human Rights has reversed its earlier decisions. In Al-Khawaja and Tahery v United Kingdom, the UK Government requested the ECHR to revisit its judgment and in turn, the ECHR overturned its original finding that the UK violated article 6 in relation to admissibility of hearsay evidence. However, this procedure falls under article 43 of the ECHR, which permits any party to request, in exceptional cases, the case to the referred to the Grand Chamber within 3 months of the Chamber judgment. Rather ‘The Torture Files’ claim would fall under Rule 80 of the Rules of the Court. Under Rule 80(1), ‘a party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within the period of six months after that party acquired the knowledge of the fact, to revise the judgment’.

The Irish Times reports that the Irish Attorney General Maire Whelan has refused to seek the case to be re-opened after representations from lawyers acting for the ‘Hooded Men’. However, Rita O’Reilly reports that the Irish Department of Foreign Affairs has sought access to the RTE Investigation Unit’s research. Whether the Irish Government’s position will remain unchanged, time can only tell. The sequence of events in 1971 that led to Irish Government’s application to the European Commission on Human Rights began with a suggestion by Sean MacBride to make such an application, which was reported in the Irish media in August 1971 and which gathered considerable momentum over the following months.

 

Dr Aisling O’Sullivan is Lecturer in law at Sussex Law School. Dr O’Sullivan was project researcher with Professor Schabas, who was the Principal Investigator, on a project funded by the Irish Research Council for the Humanities and Social Sciences ‘Ireland’s Participation in International Human Rights Law and Institutions’. The research including an investigation of Irish and British National Archives files on the Ireland v UK case. The research, which was undertaken at the Irish Centre for Human Rights, was used by RTE in preparation of ‘The Torture Files’. This contribution is cross posted with permission from the Human Rights Doctorate Blog.

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You have the right to be forgotten

Andres Guadamuz
Andres Guadamuz

Everyone has something to hide. It can be something innocuous, like a mild Farmville addiction, a guilty enjoyment of the directorial efforts of Michael Bay, or an embarrassing video singing “Let It Go” in the shower. Some things can be more serious, such as a sexting session that was made public, an incriminating picture that may seriously hinder future employment efforts, information about one’s sexual orientation while living in a community that has low thresholds of tolerance. What if a link to that personal information was made available online for all the world to see? Could you have a legal recourse to remove it?

This is in a nutshell the right to be forgotten, and now the European Court of Justice has produced a landmark ruling (C‑131/12) which enacts a limited version of the right.

The case involves Mario Costeja González, a Spanish national, whose name was mentioned in some pages from the Spanish newspaper La Vanguardia detailing a real-estate auction connected with attachment proceedings for the recovery of social security debts. These pages always came up when there was a search of his name. Mr Costeja Gonzalez filed a complaint with the Spanish Data Protection Agency (Agencia Española de Protección de Datos, AEPD), seeking the removal or alteration of the pages from La Vanguardia, and he also requested Google Spain to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. The AEPD denied the request for La Vanguardia, but it was upheld with regards to Google, and required that search engine results involving Mr Costeja Gonzalez should not include the link to the offending pages. In a 2010 decision, the AEPD considered that “operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries in the information society.”  Unsurprisingly Google appealed the ruling to the national high court (Audiencia Nacional), which referred several questions to the ECJ asking for clarification as to the application of the Data Protection Directive 95/46.

These questions can be resumed in the following postulation: are search engine operators  under an obligation to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely?

The ECJ decided that:

  1. Search engines are to be classified as processing personal data, and therefore are to be considered data controllers.
  2. As such, they will be deemed to operate in a territory if they have a branch or subsidiary that sells advertisement in that country.
  3. As a data controller, the search engine will have an obligation “to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person”, even if the information displayed in that page is lawful.
  4. When analysing a data subject’s request to remove links to a search result, authorities should balance the interest of the subject in accordance to her rights under the European Convention on Human Rights, the economic interest of the service provider, the role played by the data subject in public life, and the public’s interest to have access to the information.

The decision has been universally heralded by the press as the rise of the “right to be forgotten”, which is technically incorrect. The ECJ has not created a new right, it has simply applied to search engines the existing rights to rectification, erasure, blocking and objection which are present in the DP Directive. The advocate general stated as much when he comments in his opinion that “the Directive does not provide for a general right to be forgotten in the sense that a data subject is entitled to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests.” However, the Advocate General was of the opinionright to be forgotten that the court should not extend these rights to search engines.

This case seems to pit privacy against freedom of speech, but in my view the ECJ has completely bypassed that discussion and has made it strictly a privacy issue. The Court comments:

“Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.”

In other words, there may be a privacy violation in a web page, but that is not important, what is important is that such a page shows up in search engine results. However, the court has left open the possibility of a case-by case appraisal by data protection authorities when asked to grant an order to remove search results:

“In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

As many people around the world, I am conflicted about this result. On the one hand, I oppose anything that may interfere with free access to information, and I suspect that we are about to see an abuse of these amendment orders, even if the court has specified that authorities should take into consideration the public interest aspect of the linked data.  On the other hand, I understand that there are valid reasons why a person would like some personal data not to show up when her name is searched, and that there should be a legal recourse to those whose privacy is being severely affected.

I would like to see this issue revisited after a couple of years to see how it is being applied in practice, and if the fear of abuse is justified.

Dr Andres Guadamuz is Senior Lecturer in Intellectual Property Law, University of Sussex