The 'hooded men' described today’s ruling by the European Court of Human Rights as "a missed opportunity", but the Government could yet request a referral to the Grand Chamber to review it.
So far, the Tánaiste and Minister for Foreign Affairs and Trade Simon Coveney has said that "the ruling will be fully considered by the Government" and that he will meet the men in the coming weeks.
Today’s decision from a seven-member chamber, by a majority of six to one, dismissed Ireland’s application to revise the court’s 1978 Ireland v UK torture judgment in light of new evidence revealed in RTÉ Investigates ‘The Torture Files’ in 2014.
The only dissenting judge was the Irish nominee, Judge Síofra O’Leary.
A chamber is one of the courts within five administrative sections of the European Court of Human Rights (ECHR).
This one consisted of the sectional president, from Sweden; the Irish and the UK nominees; and four judges drawn by lots, from Serbia, Russia, Spain and Switzerland.
The government could seek a review of the decision at the grand chamber, which is a full 17-judge court.
The first step would be a request for a referral from Ireland, and then it would be up to a fresh panel of judges of the grand chamber to decide whether the referral should be accepted, which only happens "in exceptional circumstances".
Referrals to the grand chamber are not that unusual in ordinary case law, but this is no ordinary case.
It is an inter-state case, taken by one country against another, on a core convention issue, torture, which gave rise to the first inter-state judgment and one of the most important judgments of the court’s nearly 60-year history.
European court rejects 'hooded men' torture claims
RTÉ Investigations Unit: The Torture Files
Q&A: 'Hooded men' case at ECHR
However, in a significant dissenting judgment today, the Irish judge elected to the court, Judge Síofra O’Leary pointed to the rare, sensitive and unprecedented nature of the case as one of the factors in her dissent. This was "not standard revision fare", she wrote.
She disagreed with her colleagues’ reasoning and ruling on several grounds.
"The thrust and extensive detail in the revision request appears to have been ignored; as have the nature and scope of the original proceedings and of the original judgment," she wrote.
"It is striking to what extent the revision judgment largely ignores or avoids case-law of relevance to the key legal questions before it."
The majority judgment found that the new evidence submitted had not demonstrated facts that were unknown to the court at the time of its original judgment and even if it had, it could not be said that it would have had a decisive influence on the judgment.
It said: "Where doubts remain as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand."
But Judge O’Leary wrote: "A court which is called on to intervene in political and highly sensitive inter-state cases knows the threat to the certainty and authority of its own rulings – the values which the principle of legal certainty also seeks to protect ‒ of turning a blind eye on a policy of extensive non-disclosure and obstruction."
She said: "Inadvertently, in order to dismiss the revision request, the reasoning preferred by the majority diminishes in places the content and stature of the original judgment."
While it considers whether to make a request to the Grand Chamber, the Government may find much food for thought in her judgment.
Yesterday was the third anniversary of the death of Gerard McKerr, one of the Hooded Men, who appeared in ‘the Torture Files’ investigation.