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Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. the United Kingdom

Published online by Cambridge University Press:  27 February 2017

Michael O’Boyle
Michael O’Boyle*
Affiliation:
Queen’s University, Belfast
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Extract

With the arrival of the British Army in August 1969, in aid of the civil power, intercommunal strife in Northern Ireland entered a new phase, which saw the regeneration of the Irish Republican Army (IRA) and the emergence of a guerrilla conflict between the IRA and British Army. In the first half of 1971, 8 civilians, 10 soldiers, and 2 members of the Royal Ulster Constabulary (RUC) had been killed; 454 civilians, 110 soldiers, and 71 policemen had been injured. In July 1971 alone, traditionally a period of acute tension, there had been 86 explosions, 2 soldiers had been shot dead, and 21 persons injured. It was this rising tide of violence that set the scene for the introduction of internment without trial on August 9, 1971.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 4 , October 1977 , pp. 674 - 706
Copyright
Copyright © American Society of International Law 1977

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References

1 For the history of this phase in the current Northern Ireland troubles, see K. Boyle, T. Hadden,&P. Hill Yard, Law And State: The Case Of Northern Ireland 27-56. (1975); The Sunday Times Insight Team, Ulster (1972); Ireland v. The United Kingdom, Application No. 5310/71, Report Of The European Commission Of Human Rights 151-220 (adopted Jan. 25, 1976) [hereinafter cited as Echr Rep.].

2 For statistics on violence in Northern Ireland during the current emergency, see ECHR REP., supra note 1, at 533-37. The total fatalities arising out of the Northern Ireland problem from 1968-1975 are 1,391. See,R. Rose Northern Ireland: A Time Of Choice 25 (1976).

3 12 and 13 Geo. V. (N.I.) 1922. Excerpts in ECHR REP. supranote 1, at 517.

4 For accounts of Northern Ireland emergency legislation, see Boyle, Hadden, Hillyard, supranote 1, at 1; W. Twininc et al;Emergency Powers: A Fresh Start 466 (1972); Carroll, The Search for Justice in Northern Ireland,6 N. Y. J. Int. Law&PoliticS (1973); Palley, The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution,1 Anglo-American L. Rev. 368, at 400-03 (1972); Lord Macdermott, Law and Order in Times of Emergency,17 Juridical Rev. 1 (1972); J. Narain, Public Law In Northern Ireland, passim(1975).

5 Echr Rep., supra note1, at 97. See alsoReport Of The Commission To Consider Legal Procedures To Deal With Terrorist Activities In Northern Ireland (Diplock Report), Cmnd. No. 5185 (1972).

6 report Of A Committee To Consider, In The Context Of Civil Liberties And Human Rights, Measures To Deal With Terrorism In Northern Ireland, Cmnd. No. 5847, at 42 (1975).

7 Report Of The Enquiry Into Allegations Against The Security Forces Of Physical Brutality In Northern Ireland Arising Out Of Events On The 9th August 1971, Cmnd. No. 4823 (1971) [hereinafter cited as Compton Report].

8 Id. paras. 58-67, at 15-17 [hereinafter referred to as the five techniques].

9 Id.para. 105, at 23. This paragraph represents the total discussion on the meaning of the concept of brutality. The concept of torture and its possible meaning and relationship to brutality and ill treatment are not mentioned. A second Compton Report (not available to the public) considered the case of three other men who had been subjected to the five techniques. There was one finding of ill treatment. SeeThe Times (London), Nov. 17, 1971, at 5.

10 See Brownlie, , Interrogation in Depth: The Compton and Parker Reports, 35 Mod. L. Rev. 501-07 (1972)Google Scholar. Hull, R., The Irish Triangle, Conflict In Northern Ireland 180-86 (1976)Google Scholar; Amnesty International, Report On Torture 100-08 (1973).

11 Compton Report, supranote 7, para. 19, at 5. The hearing was in secret “in order to ensure the personal safety of members of the security forces against whom allegations might be made and that there should be no opportunity for a confrontation between complainants and the members of the security forces against whom complaints were made.” Id.para. 3, at 1.

12 SeeHull, supranote 10, at 182.

13 Report Of The Committee Of Privy Counsellors Appointed To Consider Authorised Procedures For The Interrogation Of Persons Suspected Of Terrorism, Cmnd. No. 4901 (1972). The Committee consisted of Lord Parker of Waddington, Mr. J. A. Boyd-Carpenter, and Lord Gardiner [hereinafter referred to as Parker Report].

14 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, dated at Geneva, Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, dated at Geneva, Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, dated at Geneva, Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, dated at Geneva, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

15 Cmnd. No. 3165 (1966).

16 This extract appears as an appendix to the Parker Report, supranote 13.

17 Id,para. 30, at 6-7. For a critique of the Parker Report, see Lowry, iU-Treatment, Brutality and Torture: Some Thoughts upon the “Treatment” of Irish Political Prisoners.22 D E Paul L. Rev. 553-81 (1972). The majority report claimed that substantial “hard” intelligence gains had resulted from the use of these interogation methods. Parker Report, supraat 5. But seeLord Gardiner's submissions on these points, id18. Although the five techniques were officially discontinued, the Ministry of Defence has admitted that British military personnel are still being trained to use and resist the five techniques for defensive purposes only. SeeIrish Times, Sept. 7, 1976.

18 Parker Report, supranote 13, paras. 35—42, at 7-9. The safeguards were: (1) the techniques should only be applied in conformity with the Directive and guidelines should be drawn up to assist personnel; (2) the techniques should only be applied under express authority of a U.K. Minister; (3) a Senior Officer should be in control at the interrogation centre and would carry personal responsibility; (4) a panel of highly skilled interrogators should be available to reduce the need to use the techniques; and (5) a doctor with psychiatric training should be present.

19 Id.at 11-12.

20 Id.para. 10(d), at 14. Lord Gardiner noted the provisions of international instruments which were relevant but expressed no opinion as to whether the five techniques violated these provisions. On the issue of their compatability with Article 3 of the European Convention on Human Rights, he felt the issue to be sub judice. Id.para. II ( b ) , at 15.

21 Idparas. 13-16, at 16-19. In both the Compton and Parker Reports Lord Gardiner was the only member to characterize the five techniques as a form of sensory deprivation. This is a well recognized method of inducing severe stress by an artificial deprivation of the senses—auditory, visual, tactile, and kinesthetic—in order to weaken morale and the habitual defenses of the victim. SeeJ. Mcguffin, The Guineapigs 36-43, (1974); Amnesty International, Report On Torture, supranote 10, at 35-51.

22 Parker Report, supranote 13, para. 21, at 22.

23 For the full statement, see Echr Rep., supranote 1, at 390.

24 Id.460.

25 Id.Directions to prosecute had been given in 86 cases; no prosecutions have been directed in 952 cases. Between August 1971 and January 31, 1975, damages were paid in respect of 473 claims for false arrest, false imprisonment, and assault and battery; 1,193 claims were still outstanding. Id.461.

26 W. 9-103.

27 I d .105-220.

28 Id.475-85.

29 Id.221-475.

30 Decision on Admissibility, Applications Nos. 5310/71 and 5452/72, 15 Yearbook Of The European Convention On Human Rights 76 (1972) [hereinafter cited as Yearbook]. Also in Echr Rep., supranote 1, Annex II, at 31.

31 For text of the Convention, see, Council Of Europe, Collected Texts 1-19 (9th ed. 1974). The Convention has five protocols. Id.19-51. For general works on the Convention, see J. E. S. Fawcett, The Application Of The European Convention On Human Rights (1969); F. Castberg, The European Convention On Human Rights (1974); F. G. Jacobs, The European Convention On Human Rights (1975); A. H. Robertson, Human Rights In Europe (2d Ed. 1977); A. Khol, Zwischen Staat Und Welstaat (1969); F. Monconduit, La Commission Européenne Des Droits De L'homme (1965); Teitgen, The European Guarantee of Human Rights: A Political Assessmentin Fourth International Colloquy On The European Convention On Human Rights, Council of Europe Doc. H/Coll. (75) 1 (1975); Zanghi, The Effectiveness and Efficiency of the Guarantees of Human Rights Enshrined in the European Convention on Human Rights,in id.,Council of Europe Doc. H/Coll. (75) 6 (1975).

32 G.A. Res. 217A, UN Doc. A/810, at 71 (1948).

33 There have been only five interestate cases so far: (i) Greece v. United Kingdom, Application Nos. 176/56 and 299/57, 2 Yearbook 182, 186 (1959) [hereinafter refered to as Cypruscase]; (ii) Austria v. Italy, Application No. 788/60, 4 Yearbook 116 (1961); (iii) Denmark et al.v. Greece, Application Nos. 3321, 3322, 3323, 3344/ 67, 11(2) Yearbook 690, 731 (1968) [hereinafter referred to as Greekcase]; (iv) Ireland v. United Kingdom, supranote 30; (v) Cyprus v. Turkey, Applications Nos. 5310/71, and 5451/72, 18 Yearbook 82 (1975).

34 As of January 1977, 7,740 individual cases had been filed; however only 142 of these were held to be admissible. [1976] Echr, Annual Rev. 31 (1977).

35 For a thorough analysis of the jurisprudence of admissibility under the Convention, see Danelius, Conditions for Admissibility in the Jurisprudence of the European Commission of Human Rights,2 Human Rights J. 284 (1969).

36 SeeArticles 8, 9, 10, and 11. The restrictive provision attaching to freedom of expression (Art. 10 (2)) is representative. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. SeeJacobs, The Restrictions on the Exercise of Rights and Freedoms Guaranteed by the European Convention on Human Rights: Their Evolution from 1950 to 1975,in Fourth International Colloquy … ,supranote 31, Council of Europe Doc. H/Coll.

37 Supranote 33.

38 Lawless v. Ireland, Application No. 322/57. For the Report of the Commission, See European Court Of Human Rights, Ser. B, Pleadings, Oral Arguments And Documents, 1960-61, at 9. For the judgments of the Court, see 3 Yearbook 492 (1960) and 4 Yearbook 438 (1961).

39 Supranote 33.

40 In its report on the Greekcase, the Commission stated that: Such a public emergency may then be seen to have, in particular, the following characteristics: (1) It must be actual or imminent. (2) Its effects must involve the whole nation. (3) The continuance of the organized life of the community must be threatened. (4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permited by the Convention for the maintenance of public safety, health and order, are plainly inadequate. 12 Yearbook: The Greek Case 72 (1969). The Commission's Report was published as a separate volume of the Yearbookand will hereinafter be cited as ECHR Greek REP.

41 Secretariat, Echr, Human Rights and Their Limitations, 4 Case-Law Topics 2 (1973)Google Scholar. See also Morrison, , Margin of Appreciation in European Human Rights Law, 4 Human Rights J. 263 (1971)Google Scholar and Opinion of Sir Humphrey Waldock in the Lawlesscase. Report of the Commission, supranote 38, at 114.

42 Other nonderogatable rights are Article 2 (right to life), Article 4 (freedom from slavery and forced labor), and Article 7 (freedom from retroactivity of the criminal law).

43 4 Yearbook 438, at 452 (1961).

44 SeeEchr Rep., supranote 1, at 9-103 and 105-220.

45 Id.221-473. More than 100 witnesses were heard by three delegates from the Commission. The Irish Government was asked to submit fifteen representative cases of ill treatment and a summary of the principal facts on which each witness should be heard. This was communicated to the U.K. Government which in turn was asked to propose witnesses and outline the nature of the evidence involved. Altogether six hearings of the delegation took place on Article 3 evidence between November 26, 1973 and March 1, 1975. The hearings and the reports from the delegates to the Commission were punctuated with disputes over various procedural issues, arising mostly out of security considerations. First, the United Kingdom objected to the hearing of its witnesses in Strasbourg on the ground that the Human Rights Building failed to meet their security requirements. The delegates and the Commission took the view, having regard to Article 28(a) of the Convention which obligated states to “furnish all necessary facilities,” that it was up to the United Kingdom to provide an alternative venue. The issue was finally settled by an offer from the Norwegian Government to allow the use of the military air base at Sola, near Stavanger, for United Kingdom witnesses. SeeEchr Rep., supranote 1, at 234. Second, the United Kingdom felt that, for security reasons, its witnesses should be visible only to the delegates and the Secretariat staff and that their identities should be withheld. The Commission felt that it was not in consisent with security considerations to enable the Irish leading counsel to see the witnesses they were cross-examining and that they would take the nondisclosure of identity into consideration when assessing the value of the evidence given. On a similar point, the delegates had ruled that witnesses for the Irish Government were not to be asked if they were members of the IRA on the basis that this was irrelevant for Article 3 purposes, although the United Kingdom responded that it was relevant in assessing credibility. Echr rep., supranote 1, at 234-38. Third, the United Kingdom was not prepared for reasons of security to submit the proofs of evidence to the Irish delegation a week in advance, notwithstanding the difficulties that that posed for cross-examination of the witnesses. The Commission accepted the Irish objection and instructed that proofs be made available a week in advance. Notwithstanding this ruling the U.K. delegation continued the practice of sending proofs at short notice and argued that “this was a security matter upon which they themselves could be the only judges.” Id.239. Security was again paramount when the delegates requested, as they are entitled to under the Rules of Procedure, that the interrogation records be submitted to the Commission. The United Kingdom replied claiming Crown privilege on the basis that their disclosure would be detrimental to the public interest. The point was curiously not pursued by the Commission. Id.240-41. See alsoCommissioner Mangan's Separate Opinion, id.,492. Finally the Irish Government objected to the disclosure by the United Kingdom of the transcript of evidence to its witnesses, arguing that this was a breach of the confidentiality of the proceedings. The United Kingdom responded that witnesses were shown relevant parts of the transcripts so that they would be in a position to deal with allegations made against them. The Commission accepted this point and took it into consideration in their assessment of the evidence. A similar decision was taken in relation to the Irish objection vis-à-vis the acceptance of anoymous affidavits. See id,237—41. For secrecy of Commission proceedings, see Article 33 of Convention. Collected Texts supranote 31, at 303.

46 Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Castberg states that the understanding of Article 3 has become one of the most serious and important problems in practice in the application of the Convention, to a degree that would not originally have been expected. Supranote 31, at 87.

47 Echr Rep., supranote 1, at 377 (quoting Echr Greek Rep., supranote 40, at 186).

48 Id.

49 Id.

50 Id.

51 Echr Greek Rep., supranote 40, at 461, quoted in Echr Rep., supranote 1, at 377.

52 Echr Greek Rep., supranote 40, at 501, quoted in Echr Rep., supranote 1, at 377.

53 Id.

54 Supranote 14.

55 Echr Rep., supranote 1, at 379.

56 G.A. Res. 3452. 30 GAOR, Supp. (No. 34) 91, UN Doc. A/10034 (1975). Article 1 of the Declaration states: 1. 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 on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. 2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

57 SeeEchr Rep., supra note 1, 497. For further discussion on the legal problem of defining torture, see Amnesty International, Report On Torture, supranote 10, at 29-35.

58 Supranote 56.

59 For a review of the academic development of the concept of jus cogens,see G. I. Tunkin, Theory Of International Law 147-61 (1974); Schwarzenberger, , International Ius Cogens, 43 Texas L.R. 455 (1965)Google Scholar; Schwelb, , Some Aspects of International Ius Cogens as Formulated by the International Law Commission, 61 AJIL 946 (1967)CrossRefGoogle Scholar; J. Setuck, Jus Cogens And The Vienna Convention On The Law Of Treaties (1974).

60 UN Doc. A/CONF.39/27 (1969), 63 AJIL 875 (1969).

61 Supranote 32.

62 G.A. Res. 2200. 21 GAOR, Supp. (No. 16) 49, UN Doc. A/6316 (1966).

63 OAS, T.S. No. 36, at 1, Oas Off. Rec, OEA/SER.A/16 (1969).

64 Supranote 56.

65 Supranote 14.

66 ECHR REP., supranote 1, at 495-97.

67 SeeKerkoub v. Belgium, Application No. 5012/71, 40 Collected Decisions 55 (1972) [Hereinafter COLL. DEC.]; Amerkrane v. United Kingdom, Application No. 5961/ 72, 44 id.101 (1973); Kuzban v. Federal Republic of Germany, Application No. 180/ 62, 6 Yearbook 462 (1970).

68 SeeEast African Asians v. United Kingdom, Application Nos. 4403/70, et seq.,13 Yearbook 928 (1970).

69 Greek case, supranote 33.

70 See Hannum, &Boyle, , Individual Applications under the European Convention on Human Rights and the Concept of Administrative Practice: The Donnelly Case, 68 AJIL 440 (1974)Google Scholar and McGovern, , The Local Remedies Rule and Aministrative Practice in the European Convention on Human Rights, 24 Int.&Comp. L. Q. 121 (1975).Google Scholar

71 Echr Rep., supranote 1, at 254-60.

72 Id.340-64.

73 Id.358.

74 Echr Greek Rep., supranote 40, at 195.

75 Id.196.

76 Echr Rep., supranote 1, at 382.

77 Id.383.

78 Id.386.

79 Id.386-87.

80 Echr Greek Rep., supranote 40, at 194.

81 Donnelly et al. v.United Kingdom, Applications Nos. 5577-5583/72, 16 Yearbook 212 (1973). For the Final Decision of the Commission of Dec. 15, 1975, see 4 Decisions And Reports (1976). See also Boyle, &Hannum, , The Donnelly Case, Administrative Practice and Domestic Remedies under the European Convention: One Step Forward and Two Steps Back, 71 AJIL 316 (1977).Google Scholar

82 Echr Rep., supranote 1, at 384-85, 388.

83 Id.385.

84 Id.385-86.

85 Excerpt from main judgment in 1 A Treatise On International Criminal Law: Crimes And Punishment 617-18 (Bassiouni&Nanda eds. 1973). See also In reYamashita, 327 U.S. 1 (1946), 4 Un War Crimes Commission, Law Reports Of Trials Of War Criminals 1 (1945) and United States v. Von Leeb et al.,12 id.1 (1949).

86 Echr Rep., supranote 1, at 340-41.

87 Supra note 81.

88 Echr Rep., supranote 1, at 391. In that case a friendly settlement of the whole case was not secured but the Commission did not express its opinion on the merits. In so deciding the Commission observed that the “Convention does not expressly provide how the Commission shall act if … some of the grounds of complaint are removed in the course of the proceedings, but others remain, and a friendly settlement covering all controversial points has not been secured.” Emphasizing the conciliatory function of the Commission, “with a view to ensuring the observance of the Convention and the maximum enjoyment of the rights guaranteed by it,” a majority of the Commission had decided to express no opinion on the merits of that case. Id.392.

89 SeeParker Report, supranote 13, at 14.

90 Echr Rep., supranote 1, at 394.

91 Id.395. The sound common sense of this view is borne out by the admission of the Ministry of Defense that a center for the teaching of the five techniques is still in operation. Supranote 17.

92 Echr Rep., supranote 1, at 402. Due to a conflict in the medical testimony, the Commission was unable to establish the degree of psychiatric after-effects. Id.398. Since the Commission's Report, the long term psychiatric effects of sensory deprivation techniques has been confirmed by continuing research on the “hooded” men. See71 New Scientist 272-75 (1976).

93 Echr Rep., supranote 1, at 393. The Commission noted that delegates were not able to hear evidence from the security forces who had been present at the interrogation center and that all of the witnesses at Sola were instructed not to reply to any questions regarding the five techniques. There was also an embargo on evidence relating to a “seminar” held in Northern Ireland by the English Intelligence Centre to teach the techniques to the Ruc. Id.396.

94 Id.402.

95 See1 Council Of Europe, Collected Edition Of The “Travaux Preparatoires” 116-17 (1975).

96 Echr Rep., supranote 1, at 401.

97 While the Commission did express a view that the Common Article 3 of the Geneva Conventions was not directly applicable, the point was not discussed and reasons werenot given. Id.379.

98 For a discussion of the applicability of the Common Article 3 to the Northern Ireland situation, see Hull, supranote 10, at 159-97. The United Kingdom refused to acknowledge that it was under any obligation to apply Article 3 in the Cyprus, Kenya, and Malaya conflicts. SeeThe International Regulation Of Civil Wars 169, 183 (Luard ed. 1971). See alsoVeuthey, Some Problems of Humanitarian Law in Non international Conflicts and Guerrilla Warfare,in A Treatise On International Criminal Law, supranote 85, at 422. For purposes of the five techniques, the relevant issue would be whether a conflict of a non international character existed in 1971.

99 Supranote 14.

100 Echr Rep., supranote 1, at 404, quoting Echr Greek Rep., supranote 40, at ]96. Contrastwith the burden of proof at the admissibility state. In these interstate cases the burden is to provide “substantial evidence; in individual applications the burden seems only to be to provide a “prima facie” case. SeeDonnelly v. United Kingdom, supranote 81, at 16 Yearbook 148.

101 echr Rep., supranote 1, at 405.

102 Id.404-05.

103 Id.

104 Id.407.

105 Id.459.

106 Id.264-71.

107 Id.459. See alsoEchr Greek Rep., supranote 40, at 196.

108 echr Rep., supranote 1, at 459.

109 Id.463. Most of these cases consisted of very severe beatings with fists, boots, and batons, all medically attested. Id.414-48.

110 Id.463.

111 Id.464.

112 Id.465.

113 Id.467-68.

114 Id.467.

115 Echr Greek Rep., supranote 40, at 196.

116 echr Rep., supranote 1, at 408.

117 SeeDeclaration of Tokyo of the World Medical Association, Guidelines for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted by 29th World Medical Assembly, Tokyo, Oct. 10, 1975. See alsoResolution of the International Council of Nurses, adopted Singapore, August 1975.

118 Echr Rep., supranote 1, at 477-80.

119 Id.477.

120 Id.478.

121 Id.481.

122 Id.483.

123 Id.482.

124 Id.483-85.

125 Id.484. The French text reads: “Les Hautes Parties Contractantes reconnaissent à toute personne relevant de leur juridiction les droits et libertés définis au Titre 1 de la présente Convention.” Collected Texts, supranote 31, at 2.

126 Echr Rep., supranote 1, at 484.

127 id.

128 Id.499-500.

129 Id.500-02.

130 Id.497-99.

131 SeeTunkin, supranote 59, at 83.

132 Supra note 33. 4 Yearbook 138-40.

133 See Fawcett, J. E. S., Human Rights and Domestic Jurisdictionin The International Protection Of Human Rights 286 (E. Luard Ed. 1967)Google Scholar.

134 Echr Greek Rep., supranote 41, at 31-32.

135 Report of the Commission, supranote 38, at 77.

136 Echr Rep., supranote 1, at 391-95.

137 12 Yearbook 78 (1969).

138 17 Yearbook 4 (1974). See alsoZanghi, supranote 31, at 8.

139 Echr Rep., supranote 1, at 461.

140 Id.

141 Article 28(a) states: In the event of the Commission accepting a petition referred to it: (a) it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities,after an exchange of views with the Commission. Emphasis added. See alsoCommissioner Mangan's Separate Opinion, Echr Rep., supranote 1, at 492.

142 This is the first interstate case to go to the Court. The first stage of the oral proceedings, held from February 7 to 9, 1977, was limited to questions concerning “(i) the scope and exercise of the jurisdiction of the Court …; (ii) the role of the Court as regards an enquiry into the facts and the procedure followed by the Commission; and (iii) the interpretation of Article 1 of the Convention.” Council of Europe, Press Release No. C (77) 1, January 1, 1977. On February 11, the President of the Court announced that the Court had decided, inter alia,(i) that it was not precluded from “pronouncing on the non-contested allegations of violations of Article 3” and that it had “sufficient information and materials” to enable it to do so; (ii) that it had “jurisdiction to take cognisance of the other contested cases of violation of Article 3,” if the Irish Government puts them forward “as establishing the existence of a practice;” and (iii) that it did not have jurisdiction “to rule on the correctness of the procedure followed by the Commission” in hearing certain witnesses, but “that it is empowered to assess the relevance and probative value of the evidence so obtained.” Council of Europe, Press Release No, C (77) 5, February 15, 1977. The second part of the oral procedings began on April 22, 1977. Council of Europe, Press Release No. C (77) 16, April 12, 1977.

143 UN Covenant on Civil and Political Rights, Art. 7, supranote 62; Inter-American Convention on Human Rights, Art. 5, supranote 63; UN Declaration on the Protection of All Persons from being subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supranote 56. See alsoG.A. Res. 3059. 28 GAOR, Supp. (No. 30, I) 73, UN Doc. A/9030 (1973); G.A. Res. 3218. 29 GAOR, Supp. (No. 31, II) 82, UN Doc. A/9631 (1974); and G.A. Res/3218. 30 GAOR, Supp. (No. 34) 92, UN Doc. A/10034 (1975).