THE FACTS
I. Description of the applicants and presentation of their applications
1. The seven applicants are: Gerard Donnelly, age 29 years (No.
5577/72), Gerard Bradley, age 20 years (No. 5578/72), Edward Duffy, age
17 years (No 5579/72), all resident in Belfast; John Carlin, age 24
years, resident in Londonderry (No 5580/72); Francis McBride, age 26
years, of Rasharkin, County Antrim (No 5581/72); Anthony Kelly, age 20
years (No 5582/72); and Thomas Kearns, age 29 years (No 5583/72); both
resident in Newry, County Down, in Northern Ireland. All seven
applicants are citizens of the United Kingdom. When lodging their
applications all applicants were held in custody. The applicants
Donnelly, Bradley and Duffy were subsequently released, but the
applicant Duffy is at present again in custody. The applicants have
made their applications jointly through their legal representatives Mr
C. Kevin Boyle, Barrister-at-law and a lecturer at Queen's University,
Belfast and Mr Hurst Hannum, A.B., J.D. of Belfast.
II. Summary of the applicants' original complaint and claim
2. The applicants stated that on various days during April and May 1972
they were taken into custody by members of the British Army or the
Royal Ulster constabulary (RUC), security forces responsible to the
respondent Government, and subjected to interrogation, during which
time they were the victims of torture, inhuman and degrading treatment
contrary to Article 3 of the Convention.
3. The following allegations were made with regard to the particular
applicants:
(a) Applicants Donnelly, Bradley and Duffy stated that they had been
arrested together about midnight on 20 April 1972 by soldiers of the
British Army. They had been held at a military post for eighteen hours
during which time they had been separately interrogated and had been
the victims of torture, inhuman and degrading treatment at the hands
of Special Branch Officers of the RUC and the British soldiers. Each
of them had signed statements which each alleged had been made under
duress. The applicants had been charged with various offenses the
following day, 21 April 1972, on the basis of these statements. Each
of them had been remanded to a military hospital for medical treatment
for the injuries inflicted on him during interrogation.
Each applicant submitted to the Commission a signed statement giving
a detailed description of the ill-treatment to which he alleged that
he had been subjected. All of them claimed that they had been
repeatedly beaten on the head and body and kicked in the genitals.
Applicant Donnelly also alleged that he had been given electric shocks
in the genitals.
Medical reports were submitted in respect of each applicant indicating
the injuries which had been found at an examination on 22 April 1972.
The reports were accompanied by photographs.
(b) Applicant McBride stated that he had been arrested on the afternoon
of 13 April 1972 by members of the RUC. He had been taken to various
places while in custody for a period of two days, during which time he
had been interrogated and had been the victim of torture, inhuman and
degrading treatment at the hands of officers of the RUC. The applicant
had signed a statement which he alleged he made under duress and had
been charged with an offence on the basis of this statement on 13 April
1972.
The applicant submitted to the Commission a signed statement describing
how he had been repeatedly beaten. He also stated that he had been
given tea to drink which made him feel dizzy.
(c) Applicant Carlin stated that he had been arrested on the evening
of 25 April 1972 by members of the RUC. He had been taken to various
places while in custody for a period of three days and during this time
he had been interrogated and had been the victim of torture, inhuman
and degrading treatment at the hands of members of the RUC. This
applicant alleged that he had been made to sign a statement under
duress that he had not been ill-treated by the police. He had refused
to sign other statements implicating him in offenses.
In a statement the applicant described the alleged ill-treatment which
included beatings and kicking. He also submitted a report on a medical
examination carried out on 2 May 1972.
(d) Applicant Kelly stated that he had been arrested on the evening of
29 April 1972 by soldiers of the British Army. He had been beaten by
the soldiers, then taken to a police station and had been in custody
for a period of two days, during which time he had been interrogated
and had been the victim of torture, inhuman and degrading treatment at
the hands of officers of the RUC. This applicant reported suffering
hallucinations while in custody and submitted medical evidence in
support which indicated that drugs had been administered to him with
the purpose of having him admit to offenses. He had signed a statement
which he alleged had been made under duress. The applicant had been
charged with an offence on the basis of this statement on 1 May 1972.
This applicant submitted a signed statement describing the alleged
ill-treatment and a report of medical examinations carried out on 1 and
4 May 1972.
(e) The allegations in respect of the applicant Kearns were made in
similar terms to those used with regard to Kelly.
No personal statement was submitted in respect of this applicant. A
medical report was filed concerning the results of a medical
examination carried out on 1 May 1972. The report concluded that the
applicant had been given amphetamines deliberately to cause an anxiety
state.
4. The seven applicants jointly submitted that the "practices and
procedures to which they and each of them were subjected are in
flagrant breach of Article 1 and Article 3 of the said Convention and
constitute part of a systematic administrative pattern which permits
and encourages brutality and is incompatible with the said Convention".
5. In support of their allegations the applicants submitted a number
of documents including copies of the Compton and Parker Reports and a
report published in March 1972 by Amnesty International. In particular,
the applicants referred to 157 specific cases of alleged ill-treatment.
These cases wee taken from the following sources: the Compton and
Amnesty reports, a booklet prepared by the Association for Legal
Justice in Northern Ireland entitled "The Mailed Fist", a booklet
prepared by Father Denis Faul and Father Raymond Murray entitled
"British Army and Special Branch RUC Brutalities", statements taken by
the Association for Legal Justice and from certain newspaper reports.
The applicants also made extensive arguments intended to show that the
applications should not be rejected for failure to satisfy the rule of
exhaustion of domestic remedies in Article 26 of the Convention.
6. The applicants asked the Commission, inter alia, to "Commence as
soon as possible a full investigation of the allegations made in the
present application as well as of the system of interrogation currently
employed by security forces under the control of the United Kingdom in
Northern Ireland, with the purpose of determining whether or not such
specific acts and administrative practices are incompatible with the
European Convention for the Protection of Human Rights and Fundamental
Freedoms."
In addition, the applicants requested that the Convention should issue
a temporary injunction. However, in view of the Commission's decision
of 14 July 1972 to the effect that it did not have the power,
consistent with its functions under the Convention, to meet this
request, the applicants do not pursue this request and have made no
further observations in this respect.
III. Submissions of the parties
A. As to the facts and relevant provisions of United Kingdom law
7. In their written observations and oral submissions on admissibility
the respondent Government strongly denied that there had been in
Northern Ireland, at any time relevant to these applications, any
administrative practice of ill-treatment or other conduct which might
contravene Article 3 of the Convention or any official tolerance of
such conduct. The respondent Government further stated that they did
not admit that the applicants had been treated in the manner alleged
or that they had been treated in any way amounting to a violation of
Article 3 of the Convention.
8. As regards the facts which the Government considered relevant to
admissibility, it was submitted as follows:
(a) The applicants Bradley, Duffy and Donnelly were arrested on 21
April 1972; they were subsequently charged with causing an explosion
on 13 November 1971, and Duffy and Donnelly were also charged with
causing a further explosion on 30 March 1972. The three applicants
appeared at Belfast Custody Court on 22 April 1972. At Belfast
Magistrates Court, on 6 June 1972, no evidence was offered against the
applicants and they were released from custody.
On 16 May 1972 (while they were still in custody) the three applicants
commenced proceedings against the Crown, the Chief Constable and a
member of the RUC by issuing writs of summons. They claimed damages for
personal injuries and loss sustained by them by reason of assault and
battery and trespass. None of the applicants had taken any further step
to pursue these actions.
At the hearing on 22 April 1972, complaints were made that the
applicants had been subjected to ill-treatment whilst they were in
custody; these were investigated under Sec 13 of the Police Act
(Northern Ireland) 1970. As a result of these investigations, two
Detective Constables were charged with causing grievous bodily harm to
the applicants. In addition a soldier was charged with causing actual
bodily harm to Duffy. The case against them was tried before the Lord
Chief Justice of Northern Ireland and a jury. On 16 March 1973 the jury
returned verdicts of not guilty and all three defendants were
acquitted.
(b) The applicant McBride was arrested on 13 April 1972 and was
subsequently charged with murder. He was remanded in custody and
returned for trial in October 1972 on charges of the murder of a woman,
the attempted murder of a police constable and offenses under the
Explosive Substances Act. At the trial the applicant pleaded guilty to
manslaughter and was sentenced to ten years' imprisonment.
On 28 April 1972 complaints were received concerning allegations of
ill-treatment whilst he was in custody. These complaints were currently
under investigation.
(c) The applicants Kelly and Kearns were arrested on 29 April 1972 and
were both charged with conspiracy to murder and illegal possession of
firearms. Both were remanded in custody, and were returned for trial
for the October assizes. At their first trial the jury failed to reach
an agreement. When they were again put on trial, the applicants pleaded
guilty to certain offenses. On 8 May 1972 complaints were received
concerning allegations by them of ill-treatment while they were in
custody. These complaints were currently under investigation.
9. As regards the relevant provisions of United Kingdom law the
respondent Government first submitted that a person who claimed that
he had been ill-treated while in custody might, under the common law,
bring an action for damages, which, as a general rule, would be an
action for assault (this expression being used here to include
battery), against the person or persons allegedly responsible for the
assault. In certain circumstances an action for negligence might be
available where an action for assault would not lie.
The Crown was vicariously liable, by virtue of the Crown Proceedings
Act 1947, in respect of tortious acts of its servants committed in the
course of their duties. Thus, if a person was ill-treated by a Crown
servant (including a soldier), he had a right of action either against
the soldier allegedly responsible or against the Crown. A right of
action lay against the Crown even where it was not possible to identify
an individual soldier with sufficient precision to enable proceedings
to be instituted against him. When it was alleged that ill-treatment
or injury had been caused by a police officer (ie a member of the RUC),
the Chief Constable of the RUC might be sued under Section 14 of the
Police Act (Northern Ireland) 1970, which provided that proceedings
might be brought against the Chief Constable in respect of torts
committed by members of the police force in the exercise, or purported
exercise, of their functions.
An assault might also constitute a criminal offence for which an
alleged wrongdoer might be prosecuted either at the instance of the
Crown or at that of an injured party, for a variety of offenses
depending on the seriousness of the assault. Moreover, a person who
sustained an injury which was directly attributable to a criminal
offence, might bring an action in a county court for compensation under
the Criminal Injuries to Persons (Compensation) Act (Northern Ireland)
1968. It was not necessary to identify the wrongdoer provided it
appeared on the balance of probabilities that the injury resulted from
a criminal act, nor was it necessary for the persons responsible for
the injury to have been prosecuted for a criminal offence in respect
of it. The court had jurisdiction to award compensation whatever the
amount claimed.
10. Where a complaint was made by a member of the public against a
member of the police force, the Chief Constable of the RUC was
required, by Section 13 of the Police Act (Northern Ireland) 1970,
forthwith to record the complaint and cause it to be investigated.
Where a complaint was made against a member of the armed forces (which
amounted to an allegation of a criminal offence) involving a civilian,
it was the responsibility of the civil authorities, not the army
authorities, to investigate the complaint and the Director of Public
Prosecutions decided what legal action, if any, was required. But a
Commanding Officer might impose a disciplinary penalty, should he
consider that a soldier's misbehaviour, although not amounting to a
criminal offence, had been a breach of army discipline.
11. By virtue of the rules made under the Prison Act (Northern Ireland)
1953, an untried prisoner (by which term was meant a person detained
pending trial) should, at his request, be allowed to see his legal
adviser. Such visits should not be in the hearing of any officer or
other person nor, so far as was consistent with security and the
interests of justice, in the sight of any such person, unless the
prisoner or his legal adviser so desired. Untried prisoners might
commence legal proceedings after obtaining the permission of the
Governor of the prison; such permission was invariably given if the
reasons for commencing legal proceedings were themselves given. Similar
arrangements applied in the case of internees and detainees.
12. In their submissions the applicants did not dispute the
Government's above submissions. They pointed out, however, that, while
certain members of the security forces had been prosecuted as a result
of complaints made by the applicants Bradley, Duffy and Donnelly,
complaints of the other applicants were described as being merely under
investigation. The applicants also emphasised that the question whether
any particular applicant was charged or convicted of any particular
offence had no bearing on the substantive allegations in a complaint
under Article 3 of the Convention.
B. As to the admissibility of the applications
- Questions under Article 27 (1) and (2)
13. In their written observations the respondent Government referred
to the statement in the original application that the applicants were
bringing the applications "on behalf of themselves and all other
persons similarly situated". Furthermore, the Government stated that
the application was directed exclusively to questions of compatibility
with the Convention of an alleged administrative practice. The
respondent Government submitted that an application under Article 25
of such a nature and with such an object was inadmissible under Article
27. In particular, they submitted that, insofar as the application
purported to be made in respect of persons other than the seven named
applicants, it was incompatible with the Convention within the meaning
of Article 27 (2); it was also anonymous within the meaning of Article
27 (1) (a) as it was made otherwise than by or on behalf of a person
claiming to be a victim of a violation of the Convention. In addition,
since the application apparently complained exclusively of alleged
general practices and sought an investigation to the compatibility of
such practices, the application, being an individual application, was
as a whole incompatible with the Convention within the meaning of
Article 27, paragraph (2). In support of this submission the Government
referred to the Commission's case-law according to which the Commission
was not competent to examine in abstracto the question whether domestic
legislation was incompatible with the Convention, but could only
examine the compatibility of such legislation as it affected the
applicant. Reference was also made to the judgment of the European
Court of Human Rights in the De Becker Case. The Government argued that
this case-law was equally applicable to an application which sought to
obtain a determination of the compatibility of certain alleged
practices.
14. At the hearing these submissions were developed further on behalf
of the Government. It was then submitted that the applicants were, in
fact, putting two separate claims before the Commission. The first
claim was for a determination whether their individual rights under
Article 3 of the Convention had been separately violated. Subject to
the conditions in Article 26, such a claim was compatible with the
Convention. The second claim was a request for a determination whether
there had been a series of acts allegedly forming an administrative
practice. In the Government's submission, the latter claim was
incompatible with the provisions of the Convention in an application
under Article 25. The Commission had no competence to examine such a
claim regardless of the question whether it was made alone or together
with a claim that individual rights had been violated.
The Government submitted that it was clear, both from the text of the
Convention itself and from the Commission's and the Court's case-law,
that an individual could not raise before the Commission the question
of the compatibility with the Convention of legislation or an
administrative practice in general. Such a general claim could only be
considered in an application under Article 24 of the Convention. In an
application under Article 25 the Commission was only competent to
examine the compatibility of legislation insofar as it had actually
impinged on the applicant. If no application of a statute was involved,
an individual could only complain of a particular action which affected
him and the Commission had no power to consider whether there were
other actions which might form an administrative practice.
15. If, notwithstanding the above submissions, consideration were to
be given to the issue of compatibility raised in the application, the
Government submitted in their written observations that this
application was in terms and essence the same as a matter which was
already under examination by the Commission in application No 5310/71
(the Government of Ireland v. the Government of the United Kingdom).
This followed from the fact that application No 5310/71 had been
declared admissible on 1 October 1972, inter alia, insofar as it
related to "the allegation that the treatment of persons in custody,
in particular the methods of interrogation of such persons constitutes
an administrative practice in breach of Article 3 of the Convention"
(Collection of Decisions, Vol. 41, pp. 3, 91).
Having regard to the applicants' observations at the hearing the
Government in their final submissions on this point asked the
Commission to reject the application in accordance with Article 27 (1)
(b) of the Convention insofar as the applicants were claiming that the
methods of interrogation presently used in Northern Ireland, since the
abandonment of the five interrogation techniques referred to in the
Compton Report, constituted an administrative practice which was
incompatible with the Convention.
16. As regards the applicants' reference to Article 1 of the
Convention, the Government submitted in their written observations that
no question on the merits could arise in respect of an allegation of
a contravention of Article 1 separate from an allegation of a
contravention of one of the rights and freedoms defined in Section I
in the Convention. The Commission should therefore reject any such
complaint on the grounds that it was incompatible with the Convention
within the meaning of Article 27, paragraph (2). At the hearing the
Government's representative took note of the fact that the applicants
had renounced their intention to make a separate claim under Article
1 of the Convention.
17. In their written observations, the applicants denied that their
application was anonymous and thus inadmissible under Article 27 (1)
(a). It had been brought under Article 25 of the Convention by seven
named individuals and evidence had been submitted on behalf of each of
them that he was a victim of a violation of Article 3. The references
to "persons similarly situated" in the original application primarily
concerned the request for a temporary injunction pending a full hearing
of the allegations.
18. The applicants also denied that they were requesting the Commission
to examine in abstracto an administrative practice alleged to be
incompatible with the Convention. Their claim was based on personal
experiences and they had requested a decision that they had been
subjected to treatment contrary to Article 3 of the Convention. In
addition to such a determination of a violation the applicants sought
to have the Commission protect them from further abuse of their rights
by requiring that such practices in breach of the Convention be
stopped. In order to ensure this protection the Commission should
require the respondent Government to satisfy it that domestic law no
longer facilitated or permitted such practices. The applicants
envisaged particularly powers under the Civil Authorities (Special
Powers) Act (Northern Ireland) 1922 which allowed for arrest and
detention for interrogation in depth for indefinite periods. The
applicants argued that they were fully entitled to request from the
Commission the relief set forth in paragraph 6 above.
19. The applicants further denied that their application was in terms
and essence the same as a matter before the Commission. In particular,
their application was submitted under Article 25 whereas application
No 5310/71 was submitted under Article 24. The applicants had no
connection, for the purpose of these proceedings, with the Government
which had initiated the inter-State application, nor did they have any
control in respect of that application which might be abandoned or
settled pursuant to Article 28 of the Convention. The applicants were
seeking individual remedies in their respective cases of their claim
that they had been victims of a violation of Article 3 of the
Convention. Furthermore, the applicants argued that the present
application was not the same as a matter "which has already been
examined" by the Commission, neither at the date of the introduction
of the application, nor at the date of the submission of their
observations. The applicants also pointed out that it was clear from
the applicant Government's submissions in the inter-State case that
they were not seeking relief in the name of any individual whereas the
present application was seeking such relief.
20. The applicants accepted that, under the Commission's case-law,
Article 1 did not create a separate enforceable right, but they argued
that it did reinforce the observations of the respondent Government
under Article 3 and that it underlined the competence of the Commission
to receive complaints of denials or violations of rights under Article
3.
21. In their submissions at the hearing the applicants' representatives
maintained the above submissions. They denied that they were raising,
as had been submitted by the respondent Government, two separate and
distinct issues before the Commission, namely the question of violation
of the applicants' individual rights and an in abstracto or general
claim. The applicants agreed that an individual was not competent to
raise in abstracto a general issue before the Commission. However, the
applicants sought to put in issue the existence of an administrative
practice of torture, inhuman and degrading treatment only in relation
to their claim that the direct application to each of them of this
practice had violated their rights under Article 3 of the Convention.
In this connection the applicants also referred to the Commission's
decision on admissibility of 16 December 1972 of application No 5155/71
(Kjeldsen v. Denmark) where a complaint concerning legislation on
compulsory sex education had been declared admissible although the
legislation had not yet been applied to the particular applicants or
their daughter. In the applicants' view this was, in a technical sense,
a complaint about a future violation, and they argued that in this
respect no distinction should be made between legislation and
administrative practices.
The applicants further argued that the competence of a State Party to
the Convention to raise an issue of the compatibility of legislative
measures and administrative practices could not detract from the power
of an individual applicant under Article 25 to raise the issue of an
administrative practice which directly affected him as a victim. The
distinction under the Convention between the powers of a State and an
individual would still be maintained because an individual application
was subject to the requirements under Article 25 and Article 27.
- Questions under Article 26
Submissions of the respondent Government
22. If the application were considered as a claim of a violation of the
Convention by each of the seven individual applicants in respect of
treatment he allegedly suffered himself, the respondent Government
submitted in their written and oral observations that the application
was inadmissible because each of the applicants had failed to exhaust
the remedies available to him under domestic law. It was further
submitted that the remedies described under Section IV A above were
adequate and sufficient remedies in respect of the treatment of which
the applicants complained and that these remedies were freely available
to each applicant. Reference was made to the Commission's case-law
according to which proceedings for damages for assault had been
considered an effective and sufficient remedy in respect of allegations
under Article 3 regarding ill-treatment by the police (eg application
No 4225/69, Collection of Decisions, Vol.33, p. 34).
23. Moreover, such remedies had been and were being pursued against the
Crown, the RUC and other authorities in Northern Ireland, including
claims of the kind made by the applicants. In particular, Bradley,
Duffy and Donnelly had commenced such proceedings and three persons had
been prosecuted for criminal offenses arising out of the complaints by
these three applicants.
24. The main written submissions by the respondent Government in reply
to the applicants' arguments that domestic remedies were not effective
or adequate may be summarised as follows:
- remedies were available against the Crown and the Chief Constable of
the RUC, even if the actual assailants were unknown to the applicant,
and the position was therefore different from the one referred to in
the Second Cyprus Case which had been invoked by the applicants
(Yearbook, Vol. 2, p. 186);
- the argument that any remedy for damages would not have any
preventive effect and could not protect individuals from future
ill-treatment was not relevant in an application under Article 25 of
the Convention as an applicant was required to exhaust the remedies
available to him in respect of the precise violation alleged;
- the argument that, because of the alleged lack of interrogation
guidelines, the respondent Government's practices could not be
adequately questioned or examined was equally irrelevant in a claim
under Article 25.
25. The Government maintained that the findings of the Commission in
the decisions on admissibility in the First Cyprus Case (Yearbook, Vol.
2, pp. 182, 284) and the First Greek Case that "the rule requiring the
exhaustion of domestic remedies does not apply where an application
raises, as a general issue, the compatibility with the Convention of
'legislative measures and administrative practices'" (Yearbook, Vol.
11, pp. 730, 770) was inapplicable to an application under Article 25.
This rule was only excluded in an application raising a general issue
which the Commission examined distinct from its effect on individuals.
It was not open to an applicant under Article 25 to prefer a claim of
such a nature and with such an object.
26. The Government accepted that an alleged administrative practice
could be considered by the Commission in relation to the effectiveness
of domestic remedies. However, such a practice could only be relevant
to the extent it was established that the particular practice impeded
the effectiveness of the particular remedy open to the applicant. In
the Government's view none of the applicants had shown that, as a
result of any practice as to the conduct of interrogation, he had been
impeded in his access to the domestic remedies available. The
applicant's contention that Article 26 did not apply to this
application was therefore misconceived and ill-founded.
27. If the Commission nonetheless were to consider the allegations of
an administrative practice, the Government submitted that the
applicants had not discharged the burden of proving the existence, at
any time relevant to the application, of any such practice. The
Government denied that there was or had been at any relevant time such
a practice of ill-treatment or other conduct which might contravene
Article 3 or, in particular, that there was any official tolerance of
any ill-treatment or conduct. Furthermore:
- as announced by the Prime Minister in the House of Commons on 2 March
1972, the five techniques used as an aid to interrogation examined by
the Compton and Parker Committees had been discontinued. It was denied
that any of these techniques violated Article 3. No other techniques
had been authorised. The applicants' suggestion that "beating, torture,
humiliation" had been or were authorised was untrue. Interrogation in
depth without the use of the abandoned techniques continued but meant
only extensive and searching questioning of suspects;
- to guard against ill-treatment during interrogation the Attorney
General had issued instructions that interrogation must only be
conducted in accordance with the law and he had warned the security
forces that, if there was evidence of assault or intimidation, those
responsible would be prosecuted;
- whenever complaints had been made that the security forces had acted
in a way which might be said to contravene Article 3 of the Convention,
the Government had acted promptly to investigate the complaints.
28. At the hearing the respondent Government developed these arguments
in greater detail in the light of the applicants' written and oral
submissions.
As regards the applicants' argument that Article 26 of the Convention
did not apply to the present applications because they raised an issue
of an administrative practice, the Government now also referred to the
Commission's decisions on the admissibility of the Second Greek Case
(Yearbook, Vol. 3, pp. 122, 132) and the Ireland v. the United Kingdom
Case (Collection of Decisions, Vol. 41, pp. 3, 84). In the Government's
view it was clear from these decisions that the exception to Article
26 of the Convention invoked by the applicants could not be applied to
an application under Article 25, in which no general issue of
compatibility could be raised. Moreover, the Commission had held in the
latter decision that, even in an application under Article 24 where
such a general issue could be raised, the domestic remedies' rule
applied where the State also complained of the violation of the rights
of individuals. It must follow a fortiori that, in an Article 25
application, in which an applicant was only entitled to complain of a
violation of his individual rights, his complaint could only be
admitted if he had exhausted domestic remedies.
29. The Government maintained that adequate and effective remedies were
available and had not been exhausted by any of the applicants. The
Government then replied to the various arguments made by the applicants
to show that there were no such remedies. It was first recalled that
remedies were available against the Crown or the Chief Constable of the
RUC even if the individual assailant could not be identified. Moreover,
the Commission had previously held that in general an action for
damages was a sufficient remedy for physical assault. The Government
then referred to the applicants' argument that an award for
compensation was not a remedy as they were not seeking compensation but
protection for themselves and others from brutality which they thought
they might suffer in the future. The answer to this argument was that
Article 25 only entitled an applicant to complain of violations of
which he was a victim and gave him no right to be protected from
something which had not yet happened.
The Government further maintained that the absence of interrogation
guidelines to which the applicants had referred was irrelevant to the
question of remedies. Such guidelines could only direct soldiers or
policemen to interrogate people in accordance with the law and could
not affect the right of action for assault or battery.
It was true that, as stated by the applicants, "a person's
international human rights were not justiciable under internal British
law". However, although the acts of which the applicants complained
might well infringe international human rights, they would also
constitute an infringement of rights under domestic law for which there
was a domestic remedy. It could not affect the effectiveness of the
remedy if the domestic law placed the act in the category of acts
infringing domestic law rather than acts infringing international law.
It was also true that the existence of legislation or administrative
practice incompatible with the Convention could not be raised before
a Court in the United Kingdom. This did not, however, mean that no
effective remedy was available for a violation of rights of which the
applicants were entitled to complain to the Commission, since under
Article 25 individuals could not complain of the compatibility of an
administrative practice in general. Their right under Article 3 of the
Convention was a right not to be subjected to torture or inhuman or
degrading treatment and the Government repeated that, if there was a
violation of this right, a domestic remedy was available.
30. The Government also denied that there was any evidence of an
administrative practice in Northern Ireland which would prevent the
effective pursuit of domestic remedies. In this connection, the
Government recalled that the Commission had held in the Ireland v. the
United Kingdom case that an applicant who sought to exclude the
application of the domestic remedies' rule on the ground of the
existence of an administrative practice was required to establish the
existence of such practice by means of substantial evidence.
(Collection of Decisions, Vol. 41, pp. 3, 85). In the Government's
submission the applicants had produced no substantial evidence to show
that they were being deterred from pursuing the remedies available to
them by reason of harassment by the security forces or of fear of
continuing incarceration. In fact such remedies were being pursued by
individuals against agents of the respondent Government. In this
connection, the Government submitted information as to proceedings
taken during the period between 9 August 1971 (when internment was
introduced) and the present day.
The figure submitted showed, inter alia that civil actions for
maltreatment and false arrest and imprisonment and been brought by 152
persons. Of these cases 31 had already been settled or decided and 40
cases had been commenced while the plaintiff was in custody. Legal aid
had been granted in 16 cases. There had also been 83 actions alleging
false arrest and imprisonment. Of these seven had been settled or
decided and seven commenced while the plaintiff was in custody. As
regards prosecutions against members of the security forces for assault
or other offenses of a similar nature, 30 cases had been decided. Of
these eight had resulted in convictions: four on indictment (ie tried
before a judge and jury) and four in the magistrate's court (sitting
without a jury). In 12 cases the defendants had pleaded guilty and in
10 cases the defendants had been acquitted. There were 17 further cases
pending. In 49 cases (and possibly in a few more recent cases) the
Director of Public Prosecutions had directed that no prosecutions
should be brought. In this context the Government also gave information
as to the sentences imposed.
31. The Government rejected the applicants' suggestion that there had
been any official tolerance of maltreatment such as alleged and they
again referred to the instructions issued by the Attorney General as
to the way persons in custody should be treated. Moreover, the
above-mentioned prosecutions against members of the security forces
showed that there was no such tolerance on the part of the United
Kingdom authorities. The Government also rejected the suggestions that
the prosecution against the three members of the security forces
suspected of assault upon the applicants Donnelly, Bradley and Duffy
had not been pressed with due vigour. The fact was that these persons
had been properly tried according to the regular course of criminal
procedure and acquitted by the jury. It was true that Mr Duffy had been
arrested in the course of the trial after he had given his
evidence-in-chief. The reason was, however, that Mr Duffy was suspected
of having abducted two men at gunpoint in February 1973. At the time
of the trial, the police had been unable to find Mr Duffy and they were
afraid that he would not return the next day to complete his evidence.
32. The Government also commented on the particular details given by
the applicants in support of their allegations that they were harassed
or had been frightened of what would happen to them if they pursued any
remedies. In fact, MM. Donnelly, Bradley and Duffy had commenced
proceedings which they, in their own submission, had not yet pursued
only because they were awaiting the outcome of the trial. Particulars
of alleged harassment had only been given with regard to these three
applicants. The Government were unable to agree with certain of these
allegations. In particular as regards Mr Duffy, the Government pointed
out that he had been arrested and convicted of certain offenses in
August 1972 and that he was now awaiting trial on more serious charges.
33. In reply to the applicants' suggestions that the Commission should,
if necessary, join the question of exhaustion of domestic remedies to
the merits of the application, the respondent Government submitted that
the situation in the present case was unlike the situation in previous
cases where the Commission had adopted such a course. In the previous
cases the issue under Article 26 of the Convention had been practically
identical with one of the substantive issued raised by the applicants.
The Government claimed that there was no such connection in the present
case and that, if the case were to proceed to an examination of the
merits, there would no longer be any issue of an administrative
practice. Moreover, the Government asked the Commission, bearing in
mind the circumstances out of which this case arose, to hesitate before
taking a course which might involve the parties in an investigation of
the merits which in the ultimate issue would prove to be unwarranted.
Submissions of the applicants
34. In their written observations the applicants denied that their
application was inadmissible on the ground that they had failed to
exhaust the domestic remedies available to them.
In the first place, the applicants argued that the exception to the
domestic remedies's rule relating to administrative practices in the
context of Article 3, elaborated by the Commission in the First Cyprus
and First Greek Cases, was not limited to applications under Article
24. The Commission might, in an application by an individual, examine
the existence of "administrative practices" as part of the
determination of whether the applicant's rights had been denied him.
In its discretion, the Commission might choose to postpone a decision
on this point until the merits.
35. The applicants submitted that, provided they were victims of
violations of Article 3 and claimed that the violation resulted
directly from the administrative practice complained of, there was no
barrier to prevent them putting in issue the existence of an
administrative pattern as part of their application. The applicants
therefore asserted that, given the existence of an administrative
pattern of torture and brutality which allegedly existed in Northern
Ireland and under the jurisprudence of the Cyprus and Greek cases,
Article 26 was inapplicable and thus no barrier to their application.
36. In the alternative, should the Commission take the view that the
decision in the Cyprus and Greek cases was not applicable to the
applications under Article 25 of the Convention, the applicants urged
that the arguments which led to the creation of the exception were
equally valid in an application under Article 25. It was clear that,
whether the complaint was an individual or a State, no adequate and
effective domestic remedy could exist where there was a continuing
administrative pattern of violation of the Convention. The situation
complained of remained the same, whether the complainant was an
individual or a State Party to the Convention and whether or not an
individual complainant might later be financially compensated for his
physical injuries. The emphasis given to the inviolability of Article
3 rights in the Convention lead to the conclusion that the broadest
possible scope must be given to the Commission to examine alleged
violations of these fundamental rights.
37. In the further alternative, should the Commission accept the
respondent Government's argument that an administrative pattern must
be shown to affect the obligation regarding domestic remedies open to
the individual applicants, the applicants submitted that such had in
fact been the case.
According to the respondent Government's own figures in their written
observations, half of the formal complaints alleging physical
ill-treatment by security forces had not been pursued. It was evident
that the existence of a widespread pattern of torture and brutality
would necessarily intimidate those who might wish to complain about the
treatment they had received. The situation in Northern Ireland at the
time of this application, and at present, remained one where emergency
measures had been invoked, where over 20,000 members of the British
Army were present, and where powers of detention without trial or under
special trial procedures were still operative. All of the circumstances
created an atmosphere where complainants must be assumed to have
serious hesitation in pursuing any action against the Government.
In the context of the present application, four of the applicants had
been in continuous custody throughout all the stages of the
application. The three applicants not in such custody, particularly Mr
Duffy, had complained of continuing harassment by the security forces.
In the applicants' submission it was very possible that this harassment
and the continuing incarceration of the other four applicants was
intended as a warning to others who might wish to pursue legal remedies
against agents of the respondent Government.
38. In the future alternative, the applicants submitted that, in the
light of the remedy which they sought of the Commission, no adequate
or effective domestic relief existed.
39. The applicants submitted that Article 3 of the Convention was by
its nature of special concern to the Commission. Its prohibition was
absolute and it could not be derogated from in any circumstances. The
physical and psychological scars of torture, brutality, and humiliation
were not easily erased, nor were they confined only to those who had
themselves undergone physical mistreatment. Where torture was
widespread, it would have a chilling effect on all members of society,
and it would inhibit the full exercise of political rights as well as
violate the rights of those actually brutalised. If the applicants'
experiences had been isolated cases of security forces' brutality
without the tacit approval of higher officials, the applicants might
be prepared to accept the argument that the existence of domestic
legislation would be adequate to protect their rights. Where it was
alleged, however, that the experiences of the applicants were merely
one part of a larger pattern of brutality and torture directed against
a political minority, the Government responsible for such activities
should not be allowed to continue to violate Article 3 of the
Convention and at the same time argue that, as long as compensation was
available, such violations could not be examined by the Commission.
While three prosecutions had been initiated by the respondent
Government this did not touch the question of the encouragement or
toleration of brutality that must have existed at higher levels in the
chain of command.
40. Specific acts of torture might be illegal under the domestic law
of assault, for example, but the question of whether or not a person's
international human rights had been violated was not justiciable under
internal British law. The existence of legislation or an administrative
practice incompatible with the Convention could not be raised in the
courts of the United Kingdom.
41. While it was true that such a situation might be the subject of
complaint and referred to the Commission through an inter-State
application, the rights of an individual and the protection provided
by the Convention could not be made to depend solely on the good
offices of another nation.
The applicants were themselves victims of the administrative pattern
or brutality and torture about which they were complaining. Due to the
special status of Article 3 in the scheme of the Convention and due to
the difficulties referred to above in obtaining adequate relief for a
widespread pattern of violation, they submitted that it was proper, and
entirely compatible with the provisions of the Convention, for them to
seek a determination by the Commission of the question whether or not
such acts and administrative practices violated Article 3 of the
Convention, as well as a determination of the question whether their
individual rights were violated as a result of treatment meted out to
them in furtherance of such administrative practice. In their view only
such relief would provide the applicants with an adequate and effective
remedy.
42. At the hearing the applicants' representatives maintained these
submissions. The applicants claimed that, because they were victims of
violations of Article 3 of the Convention and because the injuries
inflicted on them in breach of that Article took place within a system
of interrogation and officially tolerated torture, inhuman and
degrading treatment or punishment, they were not bound to exhaust
domestic remedies before seeking relief before the Commission. The
applicants argued that they suffered their injuries as part of a
systematic, repeated and official interrogation procedure known as
interrogation in depth, whereby acts of physical beatings,
psychological intimidation and sensory deprivation through the
administration of drugs were either officially authorised, condoned or
tolerated at various levels in the chain of command.
43. The applicants admitted that, in normal circumstances, an isolated
incident of police brutality could only be brought before the
Commission where the domestic remedies had been exhausted. However, the
situation was entirely different where, as in the present case, police
officers and security forces were guilty of systematic brutality as
part of a policy of extracting information or obtaining confessions in
order to achieve convictions; furthermore, this had to be seen against
the background of an official policy which included the mass arrest of
political suspects and the exercise of emergency powers of arrest
allowing unlimited detention and interrogation. The applicants alleged
that the circumstances of their arrest and interrogation showed several
common features. In particular, they claimed that the purpose of their
interrogation and treatment was to obtain a confession. With the
exception of Mr Carlin, they all signed statements which they later
repudiated as having been obtained as a result of physical or
psychological pressure.
In support of their allegation that their ill-treatment formed part of
an administrative pattern the applicants referred to the statements and
other evidence filed with their application. In their view this
evidence established the existence of an administrative pattern by
showing both a repetition of acts and official tolerance of such acts.
44. The applicants maintained that the exception to the domestic
remedies' rule in applications in respect of legislative measures and
administrative practices applied to applications under Article 25 of
the Convention as well as to those under Article 24 of the Convention.
In the applicants' opinion there was no support in the Commission's
case-law for the contention that this exception should be confined to
applications under Article 24, although it was true that the Commission
had not previously held that it applied also to an Article 25
application.
45. In terms of relief the applicants sought from the Commission that
it both enquired into the administrative practice alleged and declared
that their experiences were violations of Article 3. Further, they
sought from the Commission such protection as would ensure that their
rights could be protected in the future from violation which would in
fact continue if the administrative practice alleged did not cease. The
process of providing such relief made it necessary for the Commission
to consider the compatibility with the Convention of the administrative
practices relating to interrogation in Northern Ireland.
It might be objected that, to hold that Article 26 did not apply to an
application under Article 25 where the individual alleged that he was
the victim of an administrative practice, would render Article 26 an
ineffective first barrier to the Commission's jurisdiction and expose
it to a flood of claims from people who had not exhausted domestic
remedies. However, the combined effect of the normal application of
Article 26, of the requirements of Article 25 and the powers given to
the Commission to reject applications under Article 27 were powerful
controls available to the Commission on claims brought under Article
25. To hold that the exception to Article 26 developed in inter-State
cases also applied to applications under Article 25 would not in any
way affect the intent and purposes of the limitations and conditions
with regard to the right of individual petition. Moreover, to hold that
the exception did not apply would run counter to the purpose of the
Convention which was to provide full protection not to States but to
individuals. In the applicants' submission, to hold that Article 26
applied differently to States and individuals would be contrary to
normal rules of interpretation of treaties generally and found no
support in the decisions of the Convention, the language of the
Convention or the travaux préparatoires to it.
46. In this connection, the applicants also referred to the decision
on admissibility in the Ireland v United Kingdom case (Collection of
Decisions, Vol. 41, pp. 3, 86) where the existence of an administrative
practice with regard to the interrogation techniques practised by the
security forces in Northern Ireland had been considered. In that case
the Commission held that the so-called Compton techniques amounted to
an administrative practice. In the applicants' submission it would be
unreasonable if such an administrative pattern could not be questioned
by an individual applicant.
47. As regards the burden of proof, the applicants submitted that no
such burden rested on them at the admissibility stage with respect to
their claim that they personally were victims of violations of the
Convention. It was true, however, that the Commission's case-law
required, in relation to Article 26, the existence of legislative
measures or an administrative practice to be shown by substantial
evidence. The applicants argued that, where under Article 25 such a
measure or practice was alleged by an individual, the burden of proof
ought more properly to be on a lower level, namely, in the presentation
of a prima facie case. However, the applicants claimed that they had,
in any event, produced such substantial evidence as was required.
48. In their oral submissions the applicants' representatives also
developed the applicants' arguments that, even if Article 26 could not
be excluded on the above ground, domestic remedies were not adequate
and effective in the circumstances of this case.
It was submitted that the concept of adequacy meant that there must not
only be some remedy available to the applicants, but also an
appropriate remedy which was capable of redressing their specific
grievances. In order to judge the appropriateness it was necessary to
examine the nature of the applicants' claim and whether the relief
requested was available to them. The applicants argued that they were
entitled to seek relief by way of declaration that they had been
subjected to treatment in breach of Article 3 as part of and
administrative practice. However, the only remedies indicated by the
respondent Government were directed either to compensation to the
victims for their injuries or to the prosecution of those responsible
for causing the injuries. The applicants submitted that criminal
prosecution could not provide an adequate remedy because the applicants
had no control over the initiation of such proceedings and any private
prosecution might be quashed by the Public Prosecutor. Moreover, the
inherent difficulties of identification and proof in such criminal
prosecutions would render them a rather haphazard method at best. In
this connection, the applicants also referred to the alleged official
toleration of violations of Article 3 of the Convention at a relatively
high level of administration and to the collaboration in concealment
of such violations at a lower level in the security forces.
49. As regards compensation, the applicants conceded that the civil
actions referred to by the respondent Government would constitute
adequate remedies for isolated cases of police brutality. However, in
the present case there were consistent, widespread acts of brutality
and torture, and merely awarding damages to a few individuals would
have no ameliorative effect on the practice itself.
50. With regard to the effectiveness of the remedies concerned, the
applicants claimed that the existence of the administrative practice
of which they had offered substantial evidence was the primary factor
in rendering any theoretically available remedy ineffective in Northern
Ireland. In the prevailing circumstances many individuals did not have
the courage to pursue legal remedies when they knew that they were
liable to be harassed, probably arrested, and possibly beaten as a
result. In this context the applicants described what they considered
to be the pattern of intimidation followed by the security forces. They
also referred to the 157 cases of alleged ill-treatment dealt with in
the statements and other evidence filed with their application. The
applicants also referred to certain more recent incidents, one of which
involved the arrest by the army of Mr Hannum and an English journalist
on the totally unfounded suspicion of being members of the IRA. Further
reference was made to incidents, subsequent to the introduction of
these applications, concerning the applicants Donnelly, Bradley and
Duffy, ie the only applicants not to have been in continuous custody
during this period. In particular, Mr Bradley's home has been raided
on numerous occasions and finally rendered uninhabitable by the army
in November 1972. All three applicants had been arrested at least once
during the period June 1972 - March 1973. Mr Duffy had been arrested
four times and Mr Donnelly had been photographed constantly by the
security forces and forced to move to the Republic of Ireland. The
applicants claimed that their experiences were typical of those
suffered by many who made allegations of ill-treatment against the
security forces.
51. The applicants also stressed that the lack of co-operation by
members of the security forces in civil or criminal proceedings had
been judicially noted. While it was true that a few soldiers had been
prosecuted for assault in Northern Ireland, there had been a lack of
enthusiasm in convicting and imposing realistic sentences on those who
participated in the continuing violations of Article 3. With regard to
the figures regarding legal proceedings presented at the hearing by the
respondent Government, the applicants observed that the number of
prosecutions had been extremely small in relation to the number of
allegations made. As to the civil actions only 31 cases out of 152 had
been decided. Of these 31 cases 29 had been settled out of court and
this again raised the question whether it was possible for the
Government to escape examination of its practices by simply paying
those whom they had ill-treated. Moreover, the number of actions filed
seemed in itself to indicate the existence of a pattern. According to
the applicants there was no let-up in complaints being filed and this
showed that these figures were irrelevant as regards the stopping of
the administrative practice alleged.
52. The applicants commented in detail on the proceedings brought
against three members of the security forces on charges of having
assaulted the applicants Donnelly, Bradley and Duffy. The applicants
maintained that this trial could not be cited as an example of vigorous
prosecution or the efficiency of judicial remedies generally. It also
evidenced the conspiracy of silence or concealment that existed among
the security forces when an issue of this kind was raised. Moreover,
as a result of the jury system in Northern Ireland, where only those
who own property are entitled to sit on the jury panel, the jury was
primarily, if not entirely, Loyalist or Protestant in composition. The
applicants claimed that Loyalists and Protestants tended to be
prejudiced against suspected terrorists and in favour of the security
forces. Finally, the applicants maintained that the fact that Mr Duffy
was arrested in the middle of the trial and appeared the next day in
the custody of four police officers to complete his evidence, was an
extremely prejudicial action which had no reasonable foundation.
53. The applicants stated that the civil proceedings instituted by MM
Donnelly, Bradley and Duffy had not been pursued because they wanted
to await the outcome of the criminal proceedings against the members
of the security forces who had been prosecuted. As regards the other
applicants it was admitted that there was no legal impediment to civil
proceedings, but these applicants had taken the view that to bring a
civil action would in fact provide a hopeless and ineffective remedy.
Moreover, MM Kelly and Kearns had stated that they did not wish to
pursue any civil proceedings until they were released from prison
because they believed that such action would prejudice their chances
for parole.
THE LAW
1. The applicants have alleged that, following their arrest by the
security forces in Northern Ireland, they were victims of violations
of Article 3 (Art. 3) of the Convention, and that the injuries so
suffered by them were part of an administrative practice authorising
or condoning torture or degrading or inhuman treatment within the
meaning of that Article.
The respondent Government have denied that there has been in Northern
Ireland, at any time relevant to the applications, any administrative
practice of ill-treatment or other conduct which might contravene
Article 3 (Art. 3). They have also denied that the applicants were
treated in the manner alleged by them, or that they were otherwise
treated in any way amounting to a violation of Article 3 (Art. 3) of
the Convention. The respondent Government further have submitted that
the Commission has no competence, under Article 25 (Art. 25) of the
Convention, to examine the applications insofar as the applicants are
complaining of the incompatibility with the Convention of an alleged
administrative practice. As regards treatment allegedly suffered by
each of the individual applicants, the respondent Government have
submitted that the applications are inadmissible on the ground that the
applicants have failed to exhaust the domestic remedies available to
them as is required under Article 26 (Art. 26) of the Convention.
If nevertheless, consideration were to be given by the Commission to
the issue of compatibility raised in the applications, the respondent
Government have then asked the Commission to reject the applications
in accordance with Article 27 (1) (b) (Art. 27-1-b) of the Convention
insofar as the applicants are claiming that the methods of
interrogation presently used in Northern Ireland, since the abandonment
of the five interrogation techniques referred to in the Compton Report,
constitute an administrative practice which is incompatible with the
Convention. Such complaints constitute the same matter as is already
before the Commission in application No 5310/71 lodged by the
Government of Ireland against the Government of the United Kingdom.
The applicants have stated in reply that they are entitled to raise the
issue of the compatibility with the Convention of an administrative
practice insofar as it relates to their claim that the application of
such practice to each of them has violated their rights under Article
3 (Art. 3) of the Convention. They have further submitted that Article
26 (Art. 26) of the Convention does not apply in the present case where
prima facie evidence of an administrative practice in violation of the
Convention had been produced. In the alternative, the applicants have
argued, that no adequate or effective remedies are available to them
under the law of Northern Ireland in view of the relief they seek from
the Commission and of the particular circumstances prevailing in
Northern Ireland.
As regards the respondent Government's submissions under Article 27 (1)
(b) (Art. 27-1-b) of the Convention, the applicants have denied that
their applications are in either their terms or essence the same as a
matter already before the Commission, namely application No. 5310/71.
In particular, they have emphasised that their application has been
lodged under Article 25 (Art. 25) whereas application No. 5310/71 was
lodged under Article 24 (Art. 24) of the Convention and that,
furthermore, the applicants in each case are different. Moreover, the
applicants are seeking individual remedies in respect of their claim
that they have themselves been victims of violations of Article 3
(Art. 3) of the Convention whereas the above inter-State case does not
seek relief in the name of any individual.
2. The Commission first observes that, under Article 25 (Art. 25) of
the Convention, it may only receive petitions from a 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 this Convention". It follows that the Commission
can only consider the present applications insofar as they have been
brought by the seven applicants on their own behalf and the Commission
cannot, within the framework of the present case, examine whether or
not there had been a violation of the rights under the Convention of
any other individuals. However, neither Article 25 (Art. 25), nor any
other provisions in the Convention, inter alia Article 27 (1) (a)
(Art. 27-1-a), prevent an individual applicant from raising before the
Commission a complaint in respect of an alleged administrative practice
in breach of the Convention provided that he brings prima facie
evidence of such a practice and of his being a victim of it.
3. The Commission has further considered the respondent Government's
objection based on Article 26 (Art. 26) of the Convention to the effect
that the applicants have not exhausted the domestic remedies available
to them. The Commission here recalls that it has, in a number of
applications introduced under Article 24 (Art. 24) of the Convention,
held that the rule requiring the exhaustion of domestic remedies does
not apply where an application raises as a general issue, inter alia,
the compatibility with Article 3 (Art. 3) of the Convention of an
administrative practice (see decisions on admissibility in the First
Cyprus Case, Yearbook, Vol. 2, pp. 182, 184, the First Greek Case,
Yearbook, Vol. 13, pp. 122, 132-133, and the Northern Ireland
inter-State case, Collection of Decisions, Vol. 41, pp. 3, 86-87).
Furthermore, the Commission has defined the essential characteristics
of an administrative practice as it is to be understood in relation to
the application of the principle of exhaustion of domestic remedies in
its Report on the First Greek Case (Vol. II, p. 12 and Yearbook, Vol.
12 bis (The Greek Case) p. 194).
In particular, the Commission stated that where "there is a practice
of non-observance of certain Convention provisions, the remedies
prescribed will of necessity be side-stepped or rendered inadequate.
Thus, if there was an administrative practice of torture or
ill-treatment, judicial remedies prescribed would tend to be rendered
ineffective by the difficulty of securing probative evidence, and
administrative enquiries would either not be instituted, or if they
were, would be likely to be half-hearted and incomplete".
The Commission considers that, by similar reasoning, where an applicant
under Article 25 (Art. 25) submits evidence, prima facie substantiating
both the existence of an administrative practice of the nature
described above, which he alleges to be contrary to Article 3, and his
claim to be a victim of acts part of that practice, the domestic
remedies' rule in Article 26 (Art. 26) does not apply to that part of
his application.
In the present case, the Commission has examined the allegations made
by each of the applicants in the light of its previous decision of 1
October 1972 on the admissibility of application No 5310/71 introduced
by the Government of Ireland against the Government of the United
Kingdom. In that decision the Commission considered the applicant
Government's allegations that persons in custody in Northern Ireland
had been subjected to treatment which constituted torture and inhuman
and degrading treatment and punishment within the meaning of Article
3 (Art. 3) of the Convention and that such treatment constituted an
administrative practice. The Commission found first that the employment
of the five interrogation techniques referred to in the Compton Report
constituted an "administrative practice" and that consequently the rule
of exhaustion of domestic remedies did not apply to the applicant
Government's allegations under Article 3 (Art. 3) in respect of them.
Secondly, the Commission found that other forms of ill-treatment, were
alleged as forming part of the admitted administrative practice of
interrogation in depth, and that, therefore, the domestic remedies'
rule could not be properly applied to those allegations. The Commission
has also carried out a preliminary examination of the evidence
submitted jointly on behalf of each of the present applicants, in
particular the statements made by other persons in Northern Ireland
claiming to be victims of ill-treatment at the hands of the security
forces during the course of interrogation. Having in mind its decision
referred to above of 1 October 1972, and taking into account the
evidence submitted by the applicants jointly and by each of them
individually, the Commission finds that the applicants have provided
evidence which prima facie substantiates their allegations of the
existence of an administrative practice in violation of Article 3
(Art. 3) of the Convention and of their being victims of that practice.
It therefore follows that the domestic remedies' rule does not apply
to this part of the present applications and the Commission finds that
the applicants' complaint in this respect raises issues of law and fact
whose determination should depend upon an examination of the merits of
the case.
4. The Commission has next considered the applications insofar as they
might raise the question whether each applicant was himself a victim
of specific acts, as distinct from an administrative practice, in
violation of Article 3 (Art. 3). The Commission observes that, in
principle, the applicants must be required under Article 26 (Art. 26)
of the Convention to exhaust the domestic remedies available to them
under the law of Northern Ireland with regard to such acts. However,
the Commission has frequently stated that the exhaustion of a given
remedy ceases to be necessary if the applicant can show that, in the
particular circumstances of his case, this remedy was unlikely to be
effective and adequate in regard to the grievances in question (see eg
the decision on admissibility of application No 4340/69, Simon-Herold
v. Austria, Collection of Decisions, Vol. 39, pp. 18-33).
In the present case, the question of the effectiveness of the remedies
available to the applicants is, for the reasons set out above, closely
linked with the alleged existence of an administrative practice in
breach of Article 3 (Art. 3) of the Convention. In these circumstances,
the Commission finds that the issue under Article 26 (Art. 26) cannot
be examined without an examination of questions which concern the
merits of the applicant's complaint concerning the alleged
administrative practice. The Commission has already found that the
determination of the part of the application relating to such
administrative practice should depend upon an examination of the
merits. Accordingly, the Commission finds it appropriate to join to the
merits the issue under Article 26 (Art. 26) of the Convention relating
to the applicants' allegations that each of them was a victim of
specific acts in breach of Article 3 (Art. 3).
5. The Commission has also considered, in the light of the arguments
of the parties, the question whether any part of the present
applications should be rejected under Article 27 (1) (b) (Art. 27-1-b)
of the Convention, which provides that the Commission shall not deal
with any application submitted under Article 25 (Art. 25) which "...
is substantially the same as a matter which has already been examined
by the Commission ... and if it contains no relevant new information
...". The Commission, however, feels unable to accept the respondent
Government's submission that, in view of application No 5310/71 lodged
by the Government of Ireland against the United Kingdom, the present
applications should, in part, be declared inadmissible on this ground.
It is true that in the inter-State case similar issues under Article
3 (Art. 3) of the Convention have been raised and that the applicant
Government in that case have referred to the treatment of five of the
present applicants in support of their allegations under Article 3
(Art. 3). It is also true that an examination of the admissibility of
the inter-State case has already taken place. However, following the
Commission's decision to declare the relevant part of the inter-State
case admissible, an examination of the merits in accordance with
Article 28 (Art. 28) of the Convention still remained to be carried
out. This examination is currently being undertaken with the aim of
drawing up a report under Article 30 or Article 31 (Art. 30, 31) of the
Convention.
The relevant part of the inter-State case has therefore not yet been
"examined" within the meaning of Article 27, paragraph (1), (b)
(Art. 27-1-b) of the Convention. It follows that apart from the fact
that the applicants are different in each case and their respective
claims are also different, this complaint could still not be rejected
under Article 27 (1) (b) (Art. 27-1-b) of the Convention.
6. Finally, the Commission points out that, at this stage of the
proceedings, it has no competence to grant any "declarative relief" of
the kind requested by the applicants, its only task at present being
to decide on the question of the admissibility of the applications.
For these reasons, the Commission
1. Declares ADMISSIBLE and retains, without in any way prejudging the
merits of the case, the issue raised by the applicants that they were
victims of an administrative practice in violation of Article 3 (Art.
3) of the Convention;
2. Joins to the merits any question relating to the remedies to be
exhausted by each applicant as the alleged victim of specific acts, as
distinct from an administrative practice, in violation of Article 3
(Art. 3).