243 / 294
While the outcome of the hearings which lasted all of
last week has been obviously very satisfactory to the
Government, the Commission in announcing it under-
lined that admission of the application in no way pre-
judged its opinion as to whether or not the complaints
concerned violated the European Convention of Human
Rights and Fundamental Freedoms.
Of the seven charges, two are not to be taken any
further. One of them, relating to the Northern Ireland
Act, 1972, involved retrospective legislation, but the
British Government pointed out that no offences would
be prosecuted under it which occurred before the Act
was passed, and so the Irish Government withdrew the
charge.
The Commission also found that the Government
had not made out a case proving that the killing by
British troops in the North at various dates last year and
on Bloody Sunday in Derry last January, were the result
of "administrative practice", and did not admit the
charge.
The most important finding of the Commission, how-
ever, admitting part of the Irish application, is the one
relating to the Special Powers Act which has never
before been challenged in an international setting, lar-
gely because of the British Government's derogation
from the Convention. However, the Irish case resting on
Article 15, contended that this derogation only had
effect "to the extent strictly required by the exigencies
of the situation", and the Commission concluded that
this could only be decided by examining the merits. To
this extent, the Special Powers Act and, more precisely,
the internment without trial and detention, are to be
investigated.
The investigatory stage will also include examination
of the Government's charges involving interrogation
methods, and discrimination on political grounds. For
the first time, too, the Commission has atcepted a sub-
mission that charges should be investigated accusing
the British Government of failing to "secure" the rights
and freedom of people in the North, a decision which
extends the application of the Convention on Human
Rights as it deals with broad responsibility of Govern-
ments rather than particular responsibility.
The Procedure
Under the procedure of the European Commission,
Ireland would now have to prepare a submission on
the merits of the case within two months of hearing the
full judgment of the Commission—which is not expected
to be ready for a month or two—following which
Britain will have two months to prepare its reply. A
group of Commissioners will then visit Ireland to take
depositions and try to effect a friendly settlement. If
this is successful, the Commission will draw up a report
of the case for the Committee of Ministers and Secre-
tary-General of the Council of Europe for publication
and this will consist of a brief recital of the facts and
a statement of the solution reached.
However, if at this stage no solution is achieved, the
Commission will draw up a report on the facts and state
its opinion on whether the Convention has been
breached. The Committee of Ministers and Ireland and
Britain will receive copies of this report, which will not
be published. It can contain proposals for a settlement,
if the Commission thinks necessary.
It is only at this stage that the Dublin Government
will have to consider whether to bring the case to the
European Court of Human Rights. Both countries
would be obliged to accept the Court's verdict, from
which there is no appeal, and the Convention provides
that if there has been a violation and under British law
only partial reparation can be made, "the decision of
the court shall if necessary afford just satisfaction to
the injured party".
On the other hand, if the Irish Government does not
decide within three months after the report is in its
hands to go to the Court, the Committee of Ministers of
the Council of Europe must decide by a two-thirds
majority whether the Convention has been violated and,
if so, within what period Britain must act to remedy
the grounds of complaint. It is only if satisfactory
action is not taken that the facts are made public by
the publication of the report. As the Commission stresses,
the procedure is designed at all stages to try to con-
ciliate and not to condemn.
The Irish case argued last week was based on four
objectives laid out in the initial submissions. These
were to ensure that the British Government secured for
everyone in the North the basic rights and freedoms
under the convention of life and liberty and particular
rights described in various articles of the Convention;
to bring breaches of certain articles to the attention of
the Commission; to determine how far some of the
legislation and administrative practices in the North
were compatible with the Convention and to ensure
that Britain observed the engagements undertaken by
signing the Convention.
Vindication of Irish case
One possible step now could be pressure by the Irish
Government on the British to drop all practices which
could be described as brutal or as torture. There is a
possibility that if the Irish Government was fully con-
vinced that such practices had indeed ceased then it
would consider some form of withdrawal.
On the torture charges, however, the Irish case was on
firmer ground. The position was strengthened by the
evidence of a leading Dutch psychiatrist on the effects
of torture and more than 100 individual cases were also
entered in the evidence. The British reply that domestic
remedies were available to people alleging that they had
been tortured was countered on the ground that, effec-
tively, no domestic remedy is adequate. The conse-
quences of torture from a psychological point of view
cannot be determined precisely in money terms in the
way that physical damage in a road accident, for
example, can be assessed. And this argument was pre-
sented together with the contention that after the
Compton and Parker reports, it could be sustained that
an administrative practice of torture involving hooding,
wall-standing, lack of food and sleep, and noise, had
existed and that even if it had stopped, as the British
contended, this needed to be proved.
Under the heading of discrimination, the Govern-
ment's arguments were restricted to claiming that acti-
vities by British troops, such as house-searching, were
conducted in a politically discriminatory fashion but no
allegations were made of religious discrimination.
The British reply essentially was that discrimination
under the Special Powers Act (by, for example, troops
regularly searching one man's house) had a remedy in
the possibility of asking the High Court for an Order
showing
mala fides.
This, the Irish representatives
argued, was virtually impossible to do in practice.
Irish Times
(2nd October 1972)
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