12 Feb Cruel Legacies: The CAT’s Decision in Coppin v Ireland
[Natasa Mavronicola is Professor of Human Rights Law at Birmingham Law School.]
‘it is the position of the State Party that, the acts complained of have neither the required level of intensity or cruelty nor the impermissible purpose to permit them to be defined as torture. Further, the acts complained of do not meet the standard so as to fall within the definition of cruel or inhuman or degrading treatment or punishment…’
The above statement is taken from the submissions of the Government of Ireland (on file with author) on the Merits of the Communication to the Committee Against Torture (CAT) made by Elizabeth Coppin, who had brought a complaint to the Committee regarding the abuse to which she had been subjected while being held at three Magdalene Laundries in Ireland between 1964 and 1968, when aged between 14 and 18 years of age—and Ireland’s continuing obligations regarding that abuse. This is what Elizabeth Coppin experienced in the Magdalene Laundries:
‘[Elizabeth Coppin] was subjected to arbitrary detention, servitude and forced labour without pay for six days a week in all three of the Magdalene laundries…She claims to have been subjected at numerous times to deliberate and ritual humiliation; denial of identity [(for a period she was systematically called by a male name, which had been the name of her tormentor at the Industrial School in which she had been previously held)], educational opportunity and privacy; neglect; and other forms of grave physical and psychological abuse.
At Saint Vincent’s [Magdalene Laundry in Cork], she was forbidden to speak and was generally deprived of human warmth and kindness. She lived in conditions of deliberate deprivation, with inadequate food and heating. She had limited contact with her family and was denied an education and any other opportunity to enjoy her childhood. She was also denigrated on religious grounds and was not informed as to whether she would ever be allowed to leave the laundries. She was convinced that she would die there and be buried in a mass grave.’paras 2.3-2.4
This is the rather sanitised, summary account of a litany of abuses further recounted by Elizabeth Coppin in her witness statement. For example, Elizabeth details being confined in a padded cell – experiencing total sensory and social isolation – for three days after being wrongly accused of stealing sweets. The European Court of Human Rights has repeatedly confirmed that ‘[c]omplete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment’ (para 191).
It is impossible to do justice, in a short comment such as this, to the gravity of abuse and of injustice experienced by Elizabeth Coppin since she entered ‘Magdalene Laundry number one’, as she describes it, in 1964. I want to focus, rather, on one element of Elizabeth Coppin’s complaint against Ireland, and of the CAT’s decision: the issue of the Irish Government’s refusal to acknowledge that Elizabeth Coppin (and by implication many women and girls who found themselves in such establishments) had been subjected to torture and cruel, inhuman and degrading treatment and punishment.
In her complaint to CAT, Elizabeth Coppin argued that Ireland had violated her rights under articles 12-14 of the Convention, in that it had failed to undertake a prompt and impartial investigation into her allegations of abuse and had not ensured that she could obtain full redress in respect of the abuse she had endured (including the means for as full rehabilitation as possible), as well as article 16 (which requires states parties to act to prevent cruel, inhuman or degrading treatment or punishment). The Committee issued its decision on 31 October 2022, concluding that Ireland was not in violation of these articles. Three out of the ten members of the Committee examining this communication dissented, an unusual step for CAT members. The dissenting opinions highlight that the majority’s decision is inconsistent with the Committee’s repeated findings and recommendations to Ireland since 2011 through the periodic reporting process, including a finding in 2017 that ‘the State party has not undertaken an independent, thorough and effective investigation into allegations of ill-treatment of women and children in the Magdalen laundries’ (para 25). According to Committee members Ana Racu and Erdogan Iscan, the inconsistencies between CAT’s prior statements and this decision ‘undermine the protective value of the Convention’ (Annex I, para 1). Committee member Todd Buchwald argues that ‘it is incumbent on the Committee to offer some kind of genuine explanation of why it is reversing itself, and failure to do so risks undermining the respect for the Committee’s work that is essential for it to be effective’ (Annex II, para 8).
A key aspect of Elizabeth Coppin’s complaint was that, in spite of a number of (inadequate) inquiries into the Magdalene Laundries, ex gratia payment schemes providing some financial and material support to survivors of these institutions on the condition of a litigation waiver, and a formal political apology for the harm suffered, there had been no official acknowledgement that what Elizabeth Coppin and thousands of others like her had experienced amounted to torture or other cruel, inhuman or degrading treatment or punishment (or any other form of serious human rights violation). Indeed, as the record of the case shows, the Irish Government has consistently sought to deny that what was done to women and girls in these laundries could be described as treatment falling within the ambit of the Convention Against Torture. A key element of the Irish Government’s position is encapsulated in this excerpt from its submissions to the CAT:
‘[It] is the position of the State Party that, the acts complained of have neither the required level of intensity or cruelty nor the impermissible purpose to permit them to be defined as torture. Further, the acts complained of do not meet the standard so as to fall within the definition of cruel or inhuman or degrading treatment or punishment. It was acknowledged in the report of the inter-departmental committee [chaired by Martin McAleese] that the regimes operated in Magdalen Laundries were harsh and caused significant hurt to the women resident in those institutions. The State Party has expressed its regret for the hurt experienced by the women who were resident in Magdalen Laundries. However, it is the position of the State Party that the minimum level of severity has not been met in this instance. The State Party submits that…the required special gravity is not present…nor can they be compared to the type of treatment that has been found to fall within the definitions of either torture or cruel or inhuman or degrading treatment or punishment by the Committee or other similar mechanisms and/or Courts.’para 96, Submissions of the Government of Ireland on the Merits of the Communication to the Committee Against Torture made by Elizabeth Coppin (on file with author)
To support its position, the Irish Government specifically alluded to the by now much discredited distinction, drawn by the European Court of Human Rights in its 1978 judgment in Ireland v UK, between torture and (cruel,) inhuman or degrading treatment or punishment, to the effect that this distinction ‘derives principally from a difference in the intensity of the suffering inflicted’ (para 167). The Irish Government also relied on the ECtHR’s apparent emphasis in Ireland v UK on a certain quantum of suffering as being key to reaching the ‘minimum level of severity’ in order to enter the scope of Article 3 ECHR, which proscribes torture and inhuman or degrading treatment or punishment. The Irish Government has itself (unsuccessfully) pursued a revision of the ECtHR’s 1978 Ireland v UK judgment, whose legacy includes being invoked in the US ‘Torture Memos’ to deny that practices designed to break people down as part of the CIA’s post-9/11 ‘enhanced interrogation techniques’ (including waterboarding, extreme sleep deprivation, and being placed in a confinement box with insects) amounted to torture.
Besides the moral dissonance inherent in relying on Ireland v UK, the Irish Government’s submissions fail to engage with a body of case law and principle that places the abuse experienced by Elizabeth Coppin squarely within the ambit of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. In particular, bodies such as the ECtHR, to which the Irish Government referred extensively in its submissions, have recognised that acts as well as conditions to which people are subjected can be cumulatively degrading, inhuman or torturous (see a distillation of relevant jurisprudence here). The ECtHR has, moreover, viewed subjection to the following harms as capable of reaching the ‘threshold’ of severity: ‘intense physical or mental suffering’ (Bouyid v Belgium, para 87, emphasis added); ‘feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ (Bouyid v Belgium, para 87) or ‘inducing desperation’ (MSS v Belgium and Greece, para 263); ‘feelings of fear, anxiety and powerlessness’ (Volodina v Russia, para 75); ‘extreme despair, anxiety and debasement’ (Shioshvili and others v Russia, para 84); ‘feeling afraid, depressed and hopeless’ (Premininy v Russia, para 81); ‘constant mental anxiety’ (Rodić and Others v Bosnia and Herzegovina, para 73); ‘serious distress’ (Yunzel v Russia, para 48); ‘a feeling of arbitrary treatment, injustice and powerlessness’ (Bouyid v Belgium, para 106); ‘feeling of subordination, total dependence, powerlessness and, consequently, humiliation’ (Csüllög v Hungary, para 37); ‘trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life’ (Varnava and others v Turkey, para 224). Many, if not all, of the above experiences describe the daily reality of life in the Magdalene Laundries. Moreover, as the ECtHR has underlined, ‘in respect of a person deprived of [their] liberty, any recourse to physical force which has not been made strictly necessary by [their] own conduct, whatever the impact on the person in question, diminishes human dignity and constitutes a violation of Article 3 of the Convention’ (e.g. Perkov v Croatia, para 51, emphasis added).
Bringing together a corpus of relevant pronouncements, the former United Nations Special Rapporteur on Torture indicated in 2019 that ‘torture denotes the intentional infliction on a powerless person of severe pain or suffering, whether physical or mental, for purposes such as obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination of any kind’ (para 8). Powerlessness exists where ‘someone is overpowered or otherwise under the control of the perpetrator and, at the time of the relevant act or omission, cannot effectively resist or escape the infliction of pain or suffering’ (para 8). Moreover, as the Rapporteur has underlined, ‘torture and ill-treatment can occur in both custodial and extracustodial contexts as well as in both the public and the private sphere, however these may be defined’ (para 8).
We know that Elizabeth Coppin was effectively deprived of her liberty and rendered powerless while at the Magdalene Laundries, and subjected to systemically or even systematically degrading conditions of living, in which both physical and verbal abuse was inflicted. Equivalent experiences in a prison context would readily be recognised as amounting at least to inhuman and degrading treatment by the ECtHR, and indeed to a violation of article 16 of the Convention Against Torture by CAT. Once the intentionality and purposiveness involved in the abuse inflicted – which was often orientated at punishing and intimidating, and which by default was inflicted only on women and girls who were in the Laundries because they were women and girls – is also taken into account, the key elements of torture are established.
The Irish Government has denied Elizabeth Coppin and many others this fundamental truth. And the CAT’s decision cements this refusal to acknowledge the truth of Elizabeth Coppin’s experience, to acknowledge the character of what she experienced. The CAT implicitly accepted that Elizabeth Coppin’s complaint disclosed ‘reasonable ground’ to believe that an act of torture or prohibited ill-treatment had been committed, thereby engaging articles 12 to 14 (see paras 11.2 and 11.3 of the CAT’s decision). Yet, while recognising that ‘payments, without responsibility and admission of liability by the State party, without truth, and without justice, are insufficient to meet the holistic “comprehensive reparative concept”’ governing reparations for torture and ill-treatment, the Committee concluded that ‘the right to truth has generally been guaranteed through the operation of the investigation commissions…and the restorative schemes established’ (para 11.7). In finding that, in spite of the Irish Government’s persistent denial that prohibited ill-treatment had taken place, ‘the right to truth has generally been guaranteed’ and that ‘the complainant’s access to justice, albeit limited, has not amounted to a violation of article 14, read in conjunction with article 16, of the Convention’ (para 11.7), the Committee explicitly accepts a form of partial justice and incomplete truth as meeting the demands of the Convention Against Torture.
The harms of this acceptance are manifold. First, and crucially, it hurts the survivors whose courageously (re)told trauma is mischaracterised as not being of ‘special gravity’, and denies them full reparation: as Committee members Ana Racu and Erdogan Iscan put it in their dissent, ‘[a]pology without acknowledgement of the harms inflicted cannot be considered to constitute full rehabilitation’ (Annex I, para 15). Second, this acceptance upholds and, accordingly, fosters patterns of State denial that can only undermine both reparation for past torture and ill-treatment, and the prevention of such abuse in the future, in Ireland and beyond.
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