EUROPEAN COURT OF HUMAN RIGHTS
In the case of Brogan and Others*,
_______________
* Note by the registry: The case is numbered 10/1987/133/184-187.
The second figure indicates the year in which the case was referred
to the Court and the first figure its place on the list of cases
referred in that year; the last two figures indicate, respectively,
the case's order on the list of cases and of originating applications
(to the Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of
the following judges:
Mr R. Ryssdal, President
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. Pinheiro Farinha,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr J. A. Carrillo Salcedo,
Mr N. Valticos,
Mr S. K. Martens,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 May and 28 October 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was brought before the Court on 15 July 1987 by the
European Commission of Human Rights ("the Commission") and on
3 August 1987 by the Government of the United Kingdom of Great Britain
and Northern Ireland ("the Government") within the period of three
months laid down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention"). The case originated in four
applications (nos. 11209/84, 11234/84, 11266/84 and 11386/85) against
the United Kingdom lodged with the Commission under Article 25
(art. 25) on 18 October 1984, 22 October 1984, 22 November 1984 and
8 February 1985 respectively by Mr Terence Brogan , Mr Dermot Coyle,
Mr William McFadden and Mr Michael Tracey, who are British citizens.
2. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request and of the Government's
application was to obtain a decision as to whether or not the facts of
the case disclosed a breach by the respondent State of its obligations
under Article 5 (art. 5) and, as far as the request was concerned,
Article 13 (art. 13) of the Convention.
3. In response to the inquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, each applicant stated that he
wished to participate in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
4. The Chamber to be constituted included, as ex officio members,
Sir Vincent Evans, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 August 1987, the
Vice-President of the Court, acting by delegation of the President of
the Court, drew by lot, in the presence of the Registrar, the names of
the five other members, namely Mr B. Walsh, Mr A. Spielmann,
Mr A. Donner, Mr J. De Meyer and Mr J.A. Carrillo Salcedo (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr J. Pinheiro Farinha, substitute judge, replaced Mr Donner, who was
prevented from taking part in the Chamber's consideration of the case
(Rules 22 para. 1 and 24 para. 1).
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5). He ascertained, through the Registrar, the views of
the Agent of the Government, the Delegate of the Commission and the
lawyer for the applicants regarding the need for a written procedure
(Rule 37 para. 1). Thereafter, in accordance with the Orders and
directions of the President of the Chamber, the memorial of the
Government was lodged at the registry on 14 December 1987 and the
memorial of the applicants on 18 January 1988.
The Secretary to the Commission informed the Registrar on
14 March 1988 that the Delegate would submit his observations at the
hearing.
Further documents were lodged at the registry on 24 February
and 18 March 1988 by the Agent of the Government and the applicants'
representatives respectively.
6. By letter received on 23 November 1987, the Standing Advisory
Commission on Human Rights, Belfast, sought leave to submit written
comments (Rule 37 para. 2). On 2 December 1987, the President granted
leave subject to certain conditions. The comments were filed at the
registry on 19 January 1988.
7. After consulting, through the Registrar, those who would be
appearing before the Court, the President directed on 15 March 1988
that the oral proceedings should open on 25 May 1988 (Rule 38).
8. On 23 March 1988, the Chamber relinquished jurisdiction in
favour of the plenary Court (Rule 50).
9. The hearing took place in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately prior to its opening,
the Court had held a preparatory meeting.
There appeared before the Court:
(a) for the Government
Mr M. Wood, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Sir Nicholas Lyell, Q.C., Solicitor-General,
Mr A. Campbell, Q.C.,
Mr N. Bratza, Q.C., Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicants
Mr R. Charles Hill, Q.C.,
Mr S. Treacy, Barrister-at-Law, Counsel,
Mr J. Christopher Napier, Solicitor.
10. The Court heard addresses by Sir Nicholas Lyell for the
Government, by Mr Danelius for the Commission and by Mr Hill for the
applicants. The Government filed their replies to the Court's
questions and to the questions put by one of the judges on 25 May and
24 June 1988 respectively.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Terence Patrick Brogan
11. The first applicant, Mr Terence Patrick Brogan , was born in
1961. He is a farmer and lives in County Tyrone, Northern Ireland.
12. He was arrested at his home at 6.15 a.m. on 17 September 1984
by police officers under section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1984 ("the 1984 Act"). He was then taken
to Gough Barracks, Armagh, where he was detained until his release at
5.20 p.m. on 22 September 1984, that is a period of detention of five
days and eleven hours.
13. Within a few hours of his arrest, he was questioned about his
suspected involvement in an attack on a police mobile patrol which
occurred on 11 August 1984 in County Tyrone and resulted in the death
of a police sergeant and serious injuries to another police officer.
He was also interrogated concerning his suspected membership of the
Provisional Irish Republican Army ("IRA"), a proscribed organisation
for the purposes of the 1984 Act. He maintained total silence and
refused to answer any questions put to him. In addition, he turned
away from his questioners and stared at the floor, ceiling or wall and
periodically stood to attention. He was visited by his solicitor on
19 and 21 September 1984.
B. Dermot Coyle
14. The second applicant, Mr Dermot Coyle, was born in 1953. He
is at present unemployed and lives in County Tyrone, Northern Ireland.
15. He was arrested at his home by police officers at 6.35 a.m. on
1 October 1984 under section 12 of the 1984 Act. He was then taken to
Gough Barracks, Armagh, where he was detained until his release at
11.05 p.m. on 7 October 1984, that is a period of detention of six
days and sixteen and a half hours.
16. Within a few hours of his arrest, he was questioned about the
planting of a land-mine intended to kill members of the security
forces on 23 February 1984 and a blast incendiary bomb attack
on 13 July 1984, both of which occurred in County Tyrone. He was also
interrogated about his suspected provision of firearms and about his
suspected membership of the Provisional IRA. He maintained complete
silence apart from one occasion when he asked for his cigarettes. In
one interview, he spat several times on the floor and across the table
in the interview room. He was visited by his solicitor on 3
and 4 October 1984.
C. William McFadden
17. The third applicant, Mr William McFadden, was born in 1959.
He is at present unemployed and lives in Londonderry, Northern
Ireland.
18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by
a police officer under section 12 of the 1984 Act. He was then taken
to Castlereagh Police Holding Centre, Belfast, where he was detained
until his release at 1.00 p.m. on 5 October 1984, that is a period of
four days and six hours.
19. Within a few hours of his arrest, he was questioned about the
murder of a soldier in a bomb attack in Londonderry on 15 October 1983
and the murder of another soldier during a petrol bomb and gunfire
attack in Londonderry on 23 April 1984. He was also interrogated
about his suspected membership of the Provisional IRA. Apart from one
interview when he answered questions of a general nature, he refused
to answer any questions put to him. In addition, he periodically
stood up or sat on the floor of the interview room. He was visited by
his solicitor on 3 October 1984.
D. Michael Tracey
20. The fourth applicant, Mr Michael Tracey, was born in 1962. He
is an apprentice joiner and lives in Londonderry, Northern Ireland.
21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by
police officers under section 12 of the 1984 Act. He was then taken
to Castlereagh Royal Ulster Constabulary ("RUC") Station, Belfast,
where he was detained until his release at 6.00 p.m. on
5 October 1984, that is a detention period of four days and eleven
hours.
22. Within a few hours of his arrest, he was questioned about the
armed robbery of post offices in Londonderry on 3 March 1984
and 29 May 1984 and a conspiracy to murder members of the security
forces. He was also interrogated concerning his suspected membership
of the Irish National Liberation Army ("INLA"), a proscribed terrorist
organisation. He remained silent in response to all questions except
certain questions of a general nature and sought to disrupt the
interviews by rapping on heating pipes in the interview room, singing,
whistling and banging his chair against the walls and on the floor.
He was visited by his solicitor on 3 October 1984.
E. Facts common to all four applicants
23. All of the applicants were informed by the arresting officer
that they were being arrested under section 12 of the 1984 Act and
that there were reasonable grounds for suspecting them to have been
involved in the commission, preparation or instigation of acts of
terrorism connected with the affairs of Northern Ireland. They were
cautioned that they need not say anything, but that anything they did
say might be used in evidence.
24. On the day following his arrest, each applicant was informed
by police officers that the Secretary of State for Northern Ireland
had agreed to extend his detention by a further five days under
section 12(4) of the 1984 Act. None of the applicants was brought
before a judge or other officer authorised by law to exercise judicial
power, nor were any of them charged after their release.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Introduction
25. The emergency situation in Northern Ireland in the early 1970s
and the attendant level of terrorist activity form the background to
the introduction of the Prevention of Terrorism (Temporary Provisions)
Act 1974 ("the 1974 Act"). Between 1972 and 1983, over two thousand
deaths were attributable to terrorism in Northern Ireland as compared
with about one hundred in Great Britain. In the mid 1980s, the number
of deaths was significantly lower than in the early 1970s but
organised terrorism continued to thrive.
26. The 1974 Act came into force on 29 November 1974. The Act
proscribed the IRA and made it an offence to display support in public
for that organisation in Great Britain. The IRA was already a
proscribed organisation in Northern Ireland. The Act also conferred
special powers of arrest and detention on the police so that they
could deal more effectively with the threat of terrorism
(see paragraphs 30-33 below).
27. The 1974 Act was subject to renewal every six months by
Parliament so that, inter alia, the need for the continued use of the
special powers could be monitored. The Act was thus renewed until
March 1976 when it was re-enacted with certain amendments.
Under section 17 of the 1976 Act, the special powers were subject to
parliamentary renewal every twelve months. The 1976 Act was in turn
renewed annually until 1984, when it was re-enacted with certain
amendments. The 1984 Act, which came into force in March 1984,
proscribed the INLA as well as the IRA. It has been renewed every
year but will expire in March 1989, when the Government intend to
introduce permanent legislation.
28. The 1976 Act was reviewed by Lord Shackleton in a report
published in July 1978 and subsequently by Lord Jellicoe in a report
published in January 1983. Annual reports on the 1984 Act have been
presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and
Viscount Colville (for 1986 and 1987), who also completed in 1987 a
wider-scale review of the operation of the 1984 Act.
29. These reviews were commissioned by the Government and
presented to Parliament to assist consideration of the continued need
for the legislation. The authors of these reviews concluded in
particular that in view of the problems inherent in the prevention and
investigation of terrorism, the continued use of the special powers of
arrest and detention was indispensable. The suggestion that decisions
extending detention should be taken by the courts was rejected,
notably because the information grounding those decisions was highly
sensitive and could not be disclosed to the persons in detention or
their legal advisers. For various reasons, the decisions fell
properly within the sphere of the executive.
B. Power to arrest without warrant under the 1984 and other Acts
30. The relevant provisions of section 12 of the 1984 Act,
substantially the same as those of the 1974 and 1976 Acts, are as
follows:
"12 (1) [A] constable may arrest without warrant a person whom he
has reasonable grounds for suspecting to be
...
(b) a person who is or has been concerned in the commission,
preparation or instigation of acts of terrorism to which this Part of
this Act applies;
...
(3) The acts of terrorism to which this Part of this Act applies are
(a) acts of terrorism connected with the affairs of Northern Ireland;
...
(4) A person arrested under this section shall not be detained in
right of the arrest for more than forty-eight hours after his arrest;
but the Secretary of State may, in any particular case, extend the
period of forty-eight hours by a period or periods specified by him.
(5) Any such further period or periods shall not exceed five days in
all.
(6) The following provisions (requirement to bring accused person
before the court after his arrest) shall not apply to a person
detained in right of the arrest
...
(d) Article 131 of the Magistrates' Courts (Northern Ireland) Order
1981;
...
(8) The provisions of this section are without prejudice to any power
of arrest exercisable apart from this section."
31. According to the definition given in section 14 (1) of the
1984 Act, terrorism "means the use of violence for political ends, and
includes any use of violence for the purpose of putting the public or
any section of the public in fear". An identical definition of
terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was
held to be "in wide terms" by the House of Lords, which rejected an
interpretation of the word "terrorist" that would have been "in
narrower terms than popular usage of the word 'terrorist' might
connote to a police officer or a layman" (McKee v. Chief Constable
for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per
Lord Roskill).
32. Article 131 of the Magistrates' Courts (Northern Ireland)
Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act
(see paragraph 30 above), provides that where a person arrested
without warrant is not within twenty-four hours released from custody,
he must be brought before a Magistrates' Court as soon as practicable
thereafter but not later than forty-eight hours after his arrest.
33. The Northern Ireland (Emergency Provisions) Act 1978 also
conferred special powers of arrest without warrant. Section 11
provided that a constable could arrest without warrant any person whom
he suspected of being a terrorist. Such a person could be detained
for up to seventy-two hours without being brought before a court.
The 1978 Act has been amended by the Northern Ireland (Emergency
Provisions) Act 1987, which came into force on 15 June 1987. The
powers of arrest under the 1978 Act have been replaced by a power to
enter and search premises for the purpose of arresting a suspected
terrorist under section 12 of the 1984 Act.
C. Exercise of the power to make an arrest under section 12 (1)(b) of
the 1984 Act
34. In order to make a lawful arrest under section 12(1)(b) of the
1984 Act, the arresting officer must have a reasonable suspicion that
the person being arrested is or has been concerned in the commission,
preparation or instigation of acts of terrorism. In addition, an
arrest without warrant is subject to the applicable common law rules
laid down by the House of Lords in the case of Christie v. Leachinsky
[1947] Appeal Cases 573 at 587 and 600. The person being arrested
must in ordinary circumstances be informed of the true ground of his
arrest at the time he is taken into custody or, if special
circumstances exist which excuse this, as soon thereafter as it is
reasonably practicable to inform him. This does not require technical
or precise language to be used provided the person being arrested
knows in substance why.
In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at
131, in which the arrested person sought a writ of habeas corpus, the
High Court of Northern Ireland discussed section 12(1)(b). The
arresting officer had told the applicant that he was arresting him
under section 12 of the 1976 Act as he suspected him of being involved
in terrorist activities. The High Court held that the officer had
communicated the true ground of arrest and had done what was
reasonable in the circumstances to convey to the applicant the nature
of his suspicion, namely that the applicant was involved in terrorist
activities. Accordingly, the High Court found that the lawfulness of
the arrest could not be impugned in this respect.
35. The arresting officer's suspicion must be reasonable in the
circumstances and to decide this the court must be told something
about the sources and grounds of the suspicion (per Higgins J. in
Van Hout v. Chief Constable of the RUC and the Northern Ireland
Office, decision of Northern Ireland High Court, 28 June 1984).
D. Purpose of arrest and detention under section 12 of the 1984 Act
36. Under ordinary law, there is no power to arrest and detain a
person merely to make enquiries about him. The questioning of a
suspect on the ground of a reasonable suspicion that he has committed
an arrestable offence is a legitimate cause for arrest and detention
without warrant where the purpose of such questioning is to dispel or
confirm such a reasonable suspicion, provided he is brought before a
court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal
Reports 197 at 205 and Holgate-Mohammed v. Duke [1984] 1 All England
Law Reports 1054 at 1059).
On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch
(loc. cit. at 131) that under the 1984 Act no specific crime need be
suspected to ground a proper arrest under section 12 (1)(b). He added
(ibid.):
"... [I]t is further to be noted that an arrest under section 12(1)
leads ... to a permitted period of detention without preferring a
charge. No charge may follow at all; thus an arrest is not
necessarily ... the first step in a criminal proceeding against a
suspected person on a charge which was intended to be judicially
investigated."
E. Extension of period of detention
37. In Northern Ireland, applications for extended detention
beyond the initial forty-eight-hour period are processed at senior
police level in Belfast and then forwarded to the Secretary of State
for Northern Ireland for approval by him or, if he is not available, a
junior minister.
There are no criteria in the 1984 Act (or its predecessors) governing
decisions to extend the initial period of detention, though strict
criteria that have been developed in practice are listed in the
reports and reviews appended to the Government's memorial.
According to statistics quoted by the Standing Advisory Commission on
Human Rights in its written submissions (see paragraph 6 above), just
over 2% of police requests for extended detention in Northern Ireland
between the entry into force of the 1984 Act in March 1984 and
June 1987 were refused by the Secretary of State.
F. Remedies
38. The principal remedies available to persons detained under the
1984 Act are an application for a writ of habeas corpus and a civil
action claiming damages for false imprisonment.
1. Habeas corpus
39. Under the 1984 Act, a person may be arrested and detained in
right of arrest for a total period of seven days (section 12 (4) and
(5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the
1984 Act provides that a person detained pursuant to an arrest under
section 12 of the Act "shall be deemed to be in legal custody when he
is so detained". However, the remedy of habeas corpus is not precluded
by paragraph 5 (2) cited above. If the initial arrest is unlawful, so
also is the detention grounded upon that arrest (per Higgins J. in the
Van Hout case, loc. cit., at 18).
40. Habeas corpus is a procedure whereby a detained person may
make an urgent application for release from custody on the basis that
his detention is unlawful.
The court hearing the application does not sit as a court of appeal to
consider the merits of the detention: it is confined to a review of
the lawfulness of the detention. The scope of this review is not
uniform and depends on the context of the particular case and, where
appropriate, the terms of the relevant statute under which the power
of detention is exercised. The review will encompass compliance with
the technical requirements of such a statute and may extend, inter
alia, to an inquiry into the reasonableness of the suspicion grounding
the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A
detention that is technically legal may also be reviewed on the basis
of an alleged misuse of power in that the authorities may have acted
in bad faith, capriciously or for an unlawful purpose (R v. Governor
of Brixton Prison, ex parte Sarno [1916] 2 King's Bench Reports 742
and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All
England Law Reports 641).
The burden of proof is on the respondent authorities which must
justify the legality of the decision to detain, provided that the
person applying for a writ of habeas corpus has firstly established a
prima facie case (Khawaja v. Secretary of State [1983] 1 All England
Law Reports 765).
2. False imprisonment
41. A person claiming that he has been unlawfully arrested and
detained may in addition bring an action seeking damages for false
imprisonment. Where the lawfulness of the arrest depends upon
reasonable cause for suspicion, it is for the defendant authority to
prove the existence of such reasonable cause (Dallison v. Caffrey
[1965] 1 Queen's Bench Reports 348 and Van Hout, loc. cit., at 15).
In false imprisonment proceedings, the reasonableness of an arrest may
be examined on the basis of the well-established principles of
judicial review of the exercise of executive discretion (see
Holgate-Mohammed v. Duke, loc. cit.).
PROCEEDINGS BEFORE THE COMMISSION
42. The applicants applied to the Commission on 18 October 1984,
22 October 1984, 22 November 1984 and 8 February 1985 respectively
(applications nos. 11209/84, 11234/84, 11266/84 and 11386/85). They
claimed that their arrest and detention were not justified under
Article 5 para. 1 (art. 5-1) of the Convention and that there had also
been breaches of paragraphs 2, 3, 4 and 5 of that Article (art. 5-2,
art. 5-3, art. 5-4, art. 5-5). They also alleged that, contrary to
Article 13 (art. 13), they had no effective remedy in respect of their
other complaints.
The complaint under Article 5 para. 2 (art. 5-2) was subsequently withdrawn.
43. On 10 July 1986, the Commission ordered the joinder of the
applications in pursuance of Rule 29 of its Rules of Procedure and, on
the following day, it declared the applications admissible.
In its report of 14 May 1987 (drawn up in accordance with Article 31)
(art. 31), the Commission concluded that there had been a breach of
paragraphs 3 and 5 of Article 5 (art. 5-3, art. 5-5) in respect of
Mr Brogan and Mr Coyle (by ten votes to two for paragraph 3
(art. 5-3), and nine votes to three for paragraph 5 (art. 5-5)), but
not in respect of Mr McFadden and Mr Tracey (by eight votes to four
for both paragraphs (art. 5-3, art. 5-5)). It also concluded that
there had been no breach of paragraphs 1 and 4 of Article 5
(art. 5-1, art. 5-4) (unanimously for paragraph 1 (art. 5-1),
and by ten votes to two for paragraph 4 (art. 5-4)) and finally that
no separate issue arose under Article 13 (art. 13) (unanimously).
The full text of the Commission's opinion and of the dissenting
opinions contained in the report is reproduced as an annex to this
judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
44. At the public hearing on 25 May 1988, the Government
maintained in substance the concluding submissions set out in their
memorial, whereby they requested the Court to decide
"(1) that the facts disclose no breach of paragraphs 1, 3, 4 or 5 of
Article 5 (art. 5-1, art. 5-3, art. 5-4, art. 5-5) of the Convention;
(2) that the facts disclose no breach of Article 13 (art. 13)
of the Convention, alternatively that no separate issue arises under
Article 13 (art. 13) of the Convention".
In addition, the Government requested the Court not to entertain the
complaint raised under Article 5 para. 2 (art. 5-2).
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT
45. In their original petitions to the Commission, the applicants
alleged breach of paragraph 2 of Article 5 (art. 5-2), which provides:
"Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
against him."
However, they subsequently withdrew the claim, and the Commission
noted in its admissibility decision that the applicants were no longer
complaining under paragraph 2 (art. 5-2).
In a letter filed in the registry on 17 May 1988, the applicants
sought the leave of the Court to reinstate the complaint. In their
oral pleadings both the respondent Government and the Commission
objected to the applicants' request.
46. The scope of the Court's jurisdiction is determined by the
Commission's decision declaring the originating application admissible
(see, inter alia, the Weeks judgment of 2 March 1987, Series A
no. 114, p. 21, para. 37). The Court considers that regard must be had in
the instant case to the express withdrawal of the claim under
paragraph 2 (art. 5-2). As a result, the Commission discontinued
its examination of the admissibility of this complaint. To permit the
applicants to resuscitate this complaint before the Court would be to
circumvent the machinery established for the examination of petitions
under the Convention.
47. Consequently, the allegation that there has been a breach of
Article 5 para. 2 (art. 5-2) cannot be entertained.
II. GENERAL APPROACH
48. The Government have adverted extensively to the existence of
particularly difficult circumstances in Northern Ireland, notably the
threat posed by organised terrorism.
The Court, having taken notice of the growth of terrorism in modern
society, has already recognised the need, inherent in the Convention
system, for a proper balance between the defence of the institutions
of democracy in the common interest and the protection of individual
rights (see the Klass and Others judgment of 6 September 1978,
Series A no. 28, pp. 23 and 27-28, paras. 48-49 and 59).
The Government informed the Secretary General of the Council of Europe
on 22 August 1984 that they were withdrawing a notice of derogation
under Article 15 (art. 15) which had relied on an emergency situation in
Northern Ireland (see Yearbook of the Convention, vol. 14, p. 32
[1971], vol. 16, pp. 26-28 [1973], vol. 18, p. 18 [1975], and vol. 21,
p. 22 [1978], for communications giving notice of derogation, and
Information Bulletin on Legal Activities within the Council of Europe
and in Member States, vol. 21, p. 2 [July, 1985], for the withdrawal).
The Government indicated accordingly that in their opinion "the
provisions of the Convention are being fully executed". In any event,
as they pointed out, the derogation did not apply to the area of law
in issue in the present case.
Consequently, there is no call in the present proceedings to consider
whether any derogation from the United Kingdom's obligations under the
Convention might be permissible under Article 15 (art. 15) by reason of a
terrorist campaign in Northern Ireland. Examination of the case must
proceed on the basis that the Articles of the Convention in respect of
which complaints have been made are fully applicable. This does not,
however, preclude proper account being taken of the background
circumstances of the case. In the context of Article 5 (art. 5), it
is for the Court to determine the significance to be attached to those
circumstances and to ascertain whether, in the instant case, the
balance struck complied with the applicable provisions of that Article
in the light of their particular wording and its overall object and
purpose.
III. ALLEGED BREACH OF ARTICLE 5 PARA. 1 (art. 5-1)
49. The applicants alleged breach of Article 5 para. 1 (art. 5-1)
of the Convention, which, in so far as relevant, provides:
"Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence ...;
..."
There was no dispute that the applicants' arrest and detention were
"lawful" under Northern Ireland law and, in particular, "in accordance
with a procedure prescribed by law". The applicants argued that the
deprivation of liberty they suffered by virtue of section 12 of the
1984 Act failed to comply with Article 5 para. 1 (c) (art. 5-1-c),
on the ground that they were not arrested on suspicion of an
"offence", nor was the purpose of their arrest to bring them before
the competent legal authority.
50. Under the first head of argument, the applicants maintained
that their arrest and detention were grounded on suspicion, not of
having committed a specific offence, but rather of involvement in
unspecified acts of terrorism, something which did not constitute a
breach of the criminal law in Northern Ireland and could not be
regarded as an "offence" under Article 5 para. 1 (c) (art. 5-1-c).
The Government have not disputed that the 1984 Act did not require an
arrest to be based on suspicion of a specific offence but argued that
the definition of terrorism in the Act was compatible with the concept
of an offence and satisfied the requirements of paragraph 1 (c)
(art. 5-1-c) in this respect, as the Court's case-law confirmed. In
this connection, the Government pointed out that the applicants were
not in fact suspected of involvement in terrorism in general, but of
membership of a proscribed organisation and involvement in specific
acts of terrorism, each of which constituted an offence under the law
of Northern Ireland and each of which was expressly put to the
applicants during the course of their interviews following their
arrests.
51. Section 14 of the 1984 Act defines terrorism as "the use of
violence for political ends", which includes "the use of violence for
the purpose of putting the public or any section of the public in
fear" (see paragraph 31 above). The same definition of acts of
terrorism - as contained in the Detention of Terrorists (Northern
Ireland) Order 1972 and the Northern Ireland (Emergency Provisions)
Act 1973 - has already been found by the Court to be "well in keeping
with the idea of an offence" (see the Ireland v. the United Kingdom
judgment of 18 January 1978, Series A no. 25, pp. 74-75, para. 196).
In addition, all of the applicants were questioned within a few hours
of their arrest about their suspected involvement in specific offences
and their suspected membership of proscribed organisations
(see paragraphs 13, 16, 19 and 22 above).
Accordingly, the arrest and subsequent detention of the applicants
were based on a reasonable suspicion of commission of an offence
within the meaning of Article 5 para. 1 (c) (art. 5-1-c).
52. Article 5 para. 1 (c) (art. 5-1-c) also requires that the purpose
of the arrest or detention should be to bring the person concerned
before the competent legal authority.
The Government and the Commission have argued that such an intention
was present and that if sufficient and usable evidence had been
obtained during the police investigation that followed the applicants'
arrest, they would undoubtedly have been charged and brought to trial.
The applicants contested these arguments and referred to the fact that
they were neither charged nor brought before a court during their
detention. No charge had necessarily to follow an arrest under
section 12 of the 1984 Act and the requirement under the ordinary law
to bring the person before a court had been made inapplicable to
detention under this Act (see paragraphs 30 and 32 above). In the
applicants' contention, this was therefore a power of administrative
detention exercised for the purpose of gathering information, as the
use in practice of the special powers corroborated.
53. The Court is not required to examine the impugned legislation
in abstracto, but must confine itself to the circumstances of the case
before it.
The fact that the applicants were neither charged nor brought before a
court does not necessarily mean that the purpose of their detention
was not in accordance with Article 5 para. 1 (c) (art. 5-1-c). As the
Government and the Commission have stated, the existence of such a
purpose must be considered independently of its achievement and
sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not presuppose
that the police should have obtained sufficient evidence to bring
charges, either at the point of arrest or while the applicants were in
custody.
Such evidence may have been unobtainable or, in view of the nature of
the suspected offences, impossible to produce in court without
endangering the lives of others. There is no reason to believe that
the police investigation in this case was not in good faith or that
the detention of the applicants was not intended to further that
investigation by way of confirming or dispelling the concrete
suspicions which, as the Court has found, grounded their arrest (see
paragraph 51 above). Had it been possible, the police would, it can
be assumed, have laid charges and the applicants would have been
brought before the competent legal authority.
Their arrest and detention must therefore be taken to have been
effected for the purpose specified in paragraph 1 (c) (art. 5-1-c).
54. In conclusion, there has been no violation of Article 5 para. 1
(art. 5-1).
IV. ALLEGED BREACH OF ARTICLE 5 PARA. 3 (art. 5-3)
55. Under the 1984 Act, a person arrested under section 12 on
reasonable suspicion of involvement in acts of terrorism may be
detained by police for an initial period of forty-eight hours, and, on
the authorisation of the Secretary of State for Northern Ireland, for
a further period or periods of up to five days (see paragraphs 30-37
above).
The applicants claimed, as a consequence of their arrest and detention
under this legislation, to have been the victims of a violation of
Article 5 para. 3 (art. 5-3), which provides:
"Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly
before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial."
The applicants noted that a person arrested under the ordinary law of
Northern Ireland must be brought before a Magistrates' Court within
forty-eight hours (see paragraph 32 above); and that under the
ordinary law in England and Wales (Police and Criminal Evidence
Act 1984) the maximum period of detention permitted without charge is
four days, judicial approval being required at the thirty-six hour
stage. In their submission, there was no plausible reason why a
seven-day detention period was necessary, marking as it did such a
radical departure from ordinary law and even from the three-day period
permitted under the special powers of detention embodied in the
Northern Ireland (Emergency Provisions) Act 1978 (see paragraph 33
above). Nor was there any justification for not entrusting such
decisions to the judiciary of Northern Ireland.
56. The Government have argued that in view of the nature and
extent of the terrorist threat and the resulting problems in obtaining
evidence sufficient to bring charges, the maximum statutory period of
detention of seven days was an indispensable part of the effort to
combat that threat, as successive parliamentary debates and reviews of
the legislation had confirmed (see paragraphs 26-29 above). In
particular, they drew attention to the difficulty faced by the
security forces in obtaining evidence which is both admissible and
usable in consequence of training in anti-interrogation techniques
adopted by those involved in terrorism. Time was also needed to
undertake necessary scientific examinations, to correlate information
from other detainees and to liaise with other security forces. The
Government claimed that the need for a power of extension of the
period of detention was borne out by statistics. For instance, in
1987 extensions were granted in Northern Ireland in respect of
365 persons. Some 83 were detained in excess of five days and of this
number 39 were charged with serious terrorist offences during the
extended period.
As regards the suggestion that extensions of detention beyond the
initial forty-eight-hour period should be controlled or even
authorised by a judge, the Government pointed out the difficulty, in
view of the acute sensitivity of some of the information on which the
suspicion was based, of producing it in court. Not only would the
court have to sit in camera but neither the detained person nor his
legal advisers could be present or told any of the details. This
would require a fundamental and undesirable change in the law and
procedure of the United Kingdom under which an individual who is
deprived of his liberty is entitled to be represented by his legal
advisers at any proceedings before a court relating to his detention.
If entrusted with the power to grant extensions of detention, the
judges would be seen to be exercising an executive rather than a
judicial function. It would add nothing to the safeguards against
abuse which the present arrangements are designed to achieve and could
lead to unanswerable criticism of the judiciary. In all the
circumstances, the Secretary of State was better placed to take such
decisions and to ensure a consistent approach. Moreover, the merits
of each request to extend detention were personally scrutinised by the
Secretary of State or, if he was unavailable, by another Minister
(see paragraph 37 above).
57. The Commission, in its report, cited its established case-law
to the effect that a period of four days in cases concerning ordinary
criminal offences and of five days in exceptional cases could be
considered compatible with the requirement of promptness in
Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in
application no. 2894/66, X v. the Netherlands, Yearbook of the
Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X
v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)). In
the Commission's opinion, given the context in which the applicants
were arrested and the special problems associated with the
investigation of terrorist offences, a somewhat longer period of
detention than in normal cases was justified. The Commission
concluded that the periods of four days and six hours (Mr McFadden)
and four days and eleven hours (Mr Tracey) did satisfy the requirement
of promptness, whereas the periods of five days and eleven hours
(Mr Brogan ) and six days and sixteen and a half hours (Mr Coyle) did
not.
58. The fact that a detained person is not charged or brought
before a court does not in itself amount to a violation of the first
part of Article 5 para. 3 (art. 5-3). No violation of Article 5 para. 3
(art. 5-3) can arise if the arrested person is released "promptly"
before any judicial control of his detention would have been feasible
(see the de Jong, Baljet and van den Brink judgment of 22 May 1984,
Series A no. 77, p. 25, para. 52). If the arrested person is not released
promptly, he is entitled to a prompt appearance before a judge or
judicial officer.
The assessment of "promptness" has to be made in the light of the
object and purpose of Article 5 (art. 5) (see paragraph 48 above).
The Court has regard to the importance of this Article (art. 5)
in the Convention system: it enshrines a fundamental human right,
namely the protection of the individual against arbitrary
interferences by the State with his right to liberty (see the Bozano
judgment of 18 December 1986, Series A no. 111, p. 23, para. 54).
Judicial control of interferences by the executive with the
individual's right to liberty is an essential feature of the guarantee
embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise
the risk of arbitrariness. Judicial control is implied by the rule of
law, "one of the fundamental principles of a democratic society ...,
which is expressly referred to in the Preamble to the Convention"
(see, mutatis mutandis, the above-mentioned Klass and Others judgment,
Series A no. 28, pp. 25-26, para. 55) and "from which the whole Convention
draws its inspiration" (see, mutatis mutandis, the Engel and Others
judgment of 8 June 1976, Series A no. 22, p. 28, para. 69).
59. The obligation expressed in English by the word "promptly" and
in French by the word "aussitôt" is clearly distinguishable from the
less strict requirement in the second part of paragraph 3 (art. 5-3)
("reasonable time"/"délai raisonnable") and even from that in
paragraph 4 of Article 5 (art. 5-4) ("speedily"/"à bref délai"). The
term "promptly" also occurs in the English text of paragraph 2
(art. 5-2), where the French text uses the words "dans le plus court
délai". As indicated in the Ireland v. the United Kingdom judgment
(18 January 1978, Series A no. 25, p. 76, para. 199), "promptly" in
paragraph 3 (art. 5-3) may be understood as having a broader
significance than "aussitôt", which literally means immediately. Thus
confronted with versions of a law-making treaty which are equally
authentic but not exactly the same, the Court must interpret them in a
way that reconciles them as far as possible and is most appropriate in
order to realise the aim and achieve the object of the treaty (see,
inter alia, the Sunday Times judgment of 26 April 1979, Series A
no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention
of 23 May 1969 on the Law of Treaties).
The use in the French text of the word "aussitôt", with its
constraining connotation of immediacy, confirms that the degree of
flexibility attaching to the notion of "promptness" is limited, even
if the attendant circumstances can never be ignored for the purposes
of the assessment under paragraph 3 (art. 5-3). Whereas promptness
is to be assessed in each case according to its special features (see
the above-mentioned de Jong, Baljet and van den Brink judgment,
Series A no. 77, p. 25, para. 52), the significance to be attached to
those features can never be taken to the point of impairing the very
essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that
is to the point of effectively negativing the State's obligation to
ensure a prompt release or a prompt appearance before a judicial
authority.
60. The instant case is exclusively concerned with the arrest and
detention, by virtue of powers granted under special legislation, of
persons suspected of involvement in terrorism in Northern Ireland.
The requirements under the ordinary law in Northern Ireland as to
bringing an accused before a court were expressly made inapplicable to
such arrest and detention by section 12(6) of the 1984 Act (see
paragraphs 30 and 32 above). There is no call to determine in the
present judgment whether in an ordinary criminal case any given
period, such as four days, in police or administrative custody would
as a general rule be capable of being compatible with the first part
of Article 5 para. 3 (art. 5-3).
None of the applicants was in fact brought before a judge or judicial
officer during his time in custody. The issue to be decided is
therefore whether, having regard to the special features relied on by
the Government, each applicant's release can be considered as "prompt"
for the purposes of Article 5 para. 3 (art. 5-3).
61. The investigation of terrorist offences undoubtedly presents
the authorities with special problems, partial reference to which has
already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53
above). The Court takes full judicial notice of the factors adverted
to by the Government in this connection. It is also true that in
Northern Ireland the referral of police requests for extended
detention to the Secretary of State and the individual scrutiny of
each police request by a Minister do provide a form of executive
control (see paragraph 37 above). In addition, the need for the
continuation of the special powers has been constantly monitored by
Parliament and their operation regularly reviewed by independent
personalities (see paragraphs 26-29 above). The Court accepts that,
subject to the existence of adequate safeguards, the context of
terrorism in Northern Ireland has the effect of prolonging the period
during which the authorities may, without violating Article 5 para. 3
(art. 5-3), keep a person suspected of serious terrorist offences in
custody before bringing him before a judge or other judicial officer.
The difficulties, alluded to by the Government, of judicial control
over decisions to arrest and detain suspected terrorists may affect
the manner of implementation of Article 5 para. 3 (art. 5-3), for
example in calling for appropriate procedural precautions in view of
the nature of the suspected offences. However, they cannot justify,
under Article 5 para. 3 (art. 5-3), dispensing altogether with "prompt"
judicial control.
62. As indicated above (paragraph 59), the scope for flexibility
in interpreting and applying the notion of "promptness" is very
limited. In the Court's view, even the shortest of the four periods
of detention, namely the four days and six hours spent in police
custody by Mr McFadden (see paragraph 18 above), falls outside the
strict constraints as to time permitted by the first part of
Article 5 para. 3 (art. 5-3). To attach such importance to the special
features of this case as to justify so lengthy a period of detention
without appearance before a judge or other judicial officer would be
an unacceptably wide interpretation of the plain meaning of the word
"promptly". An interpretation to this effect would import into
Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee
to the detriment of the individual and would entail consequences
impairing the very essence of the right protected by this provision.
The Court thus has to conclude that none of the applicants was either
brought "promptly" before a judicial authority or released "promptly"
following his arrest. The undoubted fact that the arrest and detention
of the applicants were inspired by the legitimate aim of protecting
the community as a whole from terrorism is not on its own sufficient
to ensure compliance with the specific requirements of Article 5 para. 3
(art. 5-3).
There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of
all four applicants.
V. ALLEGED BREACH OF ARTICLE 5 PARA. 4 (art. 5-4)
63. The applicants argued that as Article 5 (art. 5) had not been
incorporated into United Kingdom law, an effective review of the
lawfulness of their detention, as required by paragraph 4 of
Article 5 (art. 5-4), was precluded. Article 5 para. 4 (art. 5-4)
provides as follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
64. The remedy of habeas corpus was available to the applicants
in the present case, though they chose not to avail themselves of it.
Such proceedings would have led to a review of the lawfulness of their
arrest and detention under the terms of the 1984 Act and the
applicable principles developed by case-law (see paragraphs 39-40
above).
The Commission found that the requirements of Article 5 para. 4 (art. 5-4)
were satisfied since the review available in Northern Ireland would
have encompassed the procedural and substantive basis, under the
Convention, for their detention. The Government have adopted the same
reasoning.
65. According to the Court's established case-law, the notion of
"lawfulness" under paragraph 4 (art. 5-4) has the same meaning as
in paragraph 1 (art. 5-1) (see notably the Ashingdane judgment of
28 May 1985, Series A no. 93, p. 23, para. 52); and whether an "arrest" or
"detention" can be regarded as "lawful" has to be determined in the
light not only of domestic law, but also of the text of the
Convention, the general principles embodied therein and the aim of the
restrictions permitted by Article 5 para. 1 (art. 5-1) (see notably the
above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57). By
virtue of paragraph 4 of Article 5 (art. 5-4), arrested or detained
persons are entitled to a review bearing upon the procedural and
substantive conditions which are essential for the "lawfulness", in
the sense of the Convention, of their deprivation of liberty. This
means that, in the instant case, the applicants should have had
available to them a remedy allowing the competent court to examine not
only compliance with the procedural requirements set out in section 12
of the 1984 Act but also the reasonableness of the suspicion grounding
the arrest and the legitimacy of the purpose pursued by the arrest and
the ensuing detention.
As is shown by the relevant case-law, in particular the Van Hout and
Lynch judgments (see paragraph 40 above), these conditions are met in
the practice of the Northern Ireland courts in relation to the remedy
of habeas corpus.
Accordingly, there has been no violation of Article 5 para. 4 (art. 5-4).
VI. ALLEGED BREACH OF ARTICLE 5 PARA. 5 (art. 5-5)
66. The applicants further alleged breach of Article 5 para. 5
(art. 5-5) which reads:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
A claim for compensation for unlawful deprivation of liberty may be
made in the United Kingdom in respect of a breach of domestic law (see
paragraph 41 above on false imprisonment). As Article 5 (art. 5)
is not considered part of the domestic law of the United Kingdom, no
claim for compensation lies for a breach of any provision of Article 5
(art. 5) which does not at the same time constitute a breach of United
Kingdom law.
The Government argued, inter alia, that the aim of paragraph 5
(art. 5-5) is to ensure that the victim of an "unlawful" arrest or
detention should have an enforceable right to compensation. In this
regard, they have also contended that "lawful" for the purposes of the
various paragraphs of Article 5 (art. 5) is to be construed as essentially
referring back to domestic law and in addition as excluding any
element of arbitrariness. They concluded that even in the event of a
violation being found of any of the first four paragraphs, there has
been no violation of paragraph 5 because the applicants' deprivation
of liberty was lawful under Northern Ireland law and was not
arbitrary.
67. The Court, like the Commission, considers that such a
restrictive interpretation is incompatible with the terms of
paragraph 5 (art. 5-5) which refers to arrest or detention
"in contravention of the provisions of this Article".
In the instant case, the applicants were arrested and detained
lawfully under domestic law but in breach of paragraph 3 of Article 5
(art. 5-3). This violation could not give rise, either before or after
the findings made by the European Court in the present judgment, to an
enforceable claim for compensation by the victims before the domestic
courts; this was not disputed by the Government.
Accordingly, there has also been a breach of paragraph 5 (art. 5-5)
in this case in respect of all four applicants. This finding is
without prejudice to the Court's competence under Article 50
(art. 50) in the matter of awarding compensation by way of just
satisfaction (see the Neumeister judgment of 7 May 1974, Series A
no. 17, p. 13, para. 30).
VII. ALLEGED BREACH OF ARTICLE 13 (art. 13)
68. The applicants claimed before the Commission that they had no
effective remedy in Northern Ireland in respect of their complaints
under Article 5 (art. 5) and that consequently there was also a breach of
Article 13 (art. 13) which provides as follows:
"Everyone whose rights and freedoms as set forth in [the] Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
In the light of the finding that there has been no violation of
Article 5 para. 4 (art. 5-4) in this case, the Court does not deem it
necessary to inquire whether the less strict requirements of
Article 13 (art. 13) were complied with, especially as the applicants
did not pursue this complaint before the Court (see, inter alia, the
Bouamar judgment of 29 February 1988, Series A no. 129, p. 25, para. 65).
VIII. APPLICATION OF ARTICLE 50 (art. 50)
69. By virtue of Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
70. The applicants, three of whom have received legal aid before
the Commission and the Court, did not submit any claim for
reimbursement of costs and expenses, and this is not a matter which
the Court has to examine of its own motion (see, as the most recent
authority, the above-mentioned Bouamar judgment, ibid., p. 26, para. 68).
71. On the other hand, the applicants contended that "because the
breaches were conscious and flagrant, exemplary damages or an enhanced
award of damages ... would be appropriate". They suggested that
compensation should be calculated on the basis of approximately £2000
(two thousand pounds) per hour for each hour of wrongful detention.
The Government requested the Court to reserve the matter.
In the circumstances of the case, the Court considers that the
question of the application of Article 50 (art. 50) is not yet ready for
decision in relation to the claim for compensation for prejudice
suffered. It is therefore necessary to reserve the matter and to fix
the further procedure, taking due account of the possibility of an
agreement between the respondent State and the applicants
(Rule 53 paras. 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT
1. Holds by sixteen votes to three that there has been no violation
of Article 5 para. 1 (art. 5-1);
2. Holds by twelve votes to seven that there has been a violation of
Article 5 para. 3 (art. 5-3) in respect of all four applicants;
3. Holds unanimously that there has been no violation of
Article 5 para. 4 (art. 5-4);
4. Holds by thirteen votes to six that there has been a violation of
Article 5 para. 5 (art. 5-5) in respect of all four applicants;
5. Holds unanimously that it is not necessary also to consider the
case under Article 13 (art. 13);
6. Holds unanimously that there is no call to examine the application
of Article 50 (art. 50) in relation to reimbursement of any costs or
expenses incurred;
7. Holds unanimously that the question of the application of
Article 50 (art. 50) as raised in respect of compensation for prejudice
sustained is not ready for decision;
accordingly,
(a) reserves the said question in that respect;
(b) invites the Government to submit, within the forthcoming three
months, their written comments thereon and, in particular, to notify
the Court of any agreement reached between them and the applicants;
(c) reserves the further procedure and delegates to the President of
the Court power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg on 29 November 1988.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 52 para. 2 of the Rules of Court, the following separate opinions are
annexed to the present judgment:
- joint dissenting opinion of Mr Thór Vilhjálmsson,
Mrs Bindschedler-Robert, Mr Gölcüklü, Mr Matscher and Mr Valticos;
- partly dissenting opinion of Mr Pinheiro Farinha;
- dissenting opinion of Mr Walsh and Mr Carrillo Salcedo in respect of
Article 5 para. 1 (c) (art. 5-1-c);
- partly dissenting opinion of Sir Vincent Evans;
- concurring opinion of Mr De Meyer;
- dissenting opinion of Mr Martens.
Initialled: R.R.
Initialled: M.-A.E.
JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON,
BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER AND VALTICOS
(Translation)
1. The application of Article 5 para. 3 (art. 5-3) is complex in the
instant case, because it raises a question of legal construction
- which has in fact already been decided in earlier cases - and brings
different rights and interests into conflict. We cannot share the
view of the majority of the Court as to the way in which the issue
should be resolved.
As regards the question of legal construction, firstly, it is clear
that in several previous cases the Court and the Commission have both
taken the view that the requirement that "everyone arrested or
detained ... shall be brought promptly [in French: aussitôt] before a
judge ..." does not, given the English term used and the general
context, mean that this must be done immediately and instantaneously,
but that it must be done as soon as possible having regard to place,
time and the circumstances of each case. Some - limited - discretion
is here left to governments, subject to review by the Convention
institutions.
The question is how much latitude is allowable. Obviously the
acceptable period of time will not be the same in every case, and it
would be artificial to lay down a numerical limit valid for all
situations. The Court has on more than one occasion held that it is
impossible to translate the concept of reasonable time into a fixed
number of days, weeks, etc. (see the Stögmüller judgment of
10 November 1969, Series A no. 9). Thus, in each case, there arises a
question of assessment, which will depend on the particular
circumstances.
In earlier cases, the Commission took the view that in the case of
ordinary criminal offences a period of four days' detention was
consistent with the requirement of Article 5 para. 3 (art. 5-3), and a
period of five days was found to be acceptable in an exceptional case
in which the detainee had had to be hospitalised. On the other hand,
both the Court and the Commission held that various cases - concerning
mostly Sweden and the Netherlands - in which the periods spent in
custody prior to appearance before a judge or other judicial officer
ranged from seven to fifteen days were incompatible with the provision
in question.
The background to the instant case is a situation which no one would
deny is exceptional. Terrorism in Northern Ireland has assumed
alarming proportions and has claimed more than 2,000 victims who have
died following actions of this kind. The nature and organisation of
terrorism, the fear it inspires and the secrecy surrounding it make it
difficult, having regard also to the applicable criminal procedure
(which does not provide for the swift intervention of an investigating
judge), to bring detainees promptly before a court. At the same time
there can be no question of accepting prolonged detention, which
violates the rights of the persons detained and is in any case
expressly prohibited in Article 5 para. 3 (art. 5-3), a provision
fundamental to the protection of personal liberty.
It is therefore necessary to weigh carefully, on the one hand, the
rights of detainees and, on the other, those of the population as a
whole, which is seriously threatened by terrorist activity.
In the instant case, the four applicants were detained without being
brought before a judicial authority for periods varying from four days
and six hours to six days and sixteen and a half hours.
In our view, no distinction can be made between these individual cases
as they all fall within the same category and the various periods do
not differ very substantially.
In view of the exceptional situation in Northern Ireland, which was
referred to above, it seems to us that in the final analysis, if a
period of four days has been accepted in the case of normal
situations, it would be reasonable to regard the foregoing periods of
time, which are all less than a week, as being acceptable. Such a
view fits in with the case-law and is justified by the wholly
exceptional conditions obtaining in Northern Ireland.
While considering, therefore, that there was no breach of
Article 5 para. 3 (art. 5-3) in the instant case, we are anxious to stress
that this view can be maintained only in so far as such exceptional
conditions prevail in the country, and that the authorities should
monitor the situation closely in order to return to the practices of
ordinary law as soon as more normal conditions are restored, and even
that, until then, an effort should be made to reduce as much as
possible the length of time for which a person is detained before
being brought before a judge.
2. Nor can we follow the majority of the Court in finding a
breach of Article 5 para. 5 (art. 5-5). On the one hand, since we
take the view that there has been no violation of Article 5 para. 3
(art. 5-3), no question of reparation arises. On the other hand, the
determination of the exact scope of Article 5 para. 5 (art. 5-5) and of the
conditions under which a detention considered to be wrongful can
ground an entitlement to compensation raises difficult issues and it
does not appear appropriate to us to discuss them on the present
occasion.
PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
1. In my opinion, there was also a violation of Article 5 para. 1
(art. 5-1) for the following reasons.
2. "... [T]he Court has stressed the vital role of the
international jurisdiction and the necessity of interpreting
restrictions on personal freedom strictly having regard to the
exceptional importance of the right guaranteed, which is crucial for
the freedom and dignity of the human being" (Louis-Edmond Pettiti,
preface to the book by Vincent Berger, Jurisprudence de la Cour
européenne des Droits de l'Homme).
3. A "person whom it is reasonably considered necessary to
prevent ... committing an offence" may be arrested or detained only
"for the purpose of bringing him before the competent legal authority"
(see the Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-52,
para. 14). The applicants, however, were detained for the purposes of the
investigation so that evidence could be gathered, and not "for the
purpose of bringing [them] before the competent legal authority".
4. Detainees are required to be brought before the competent
legal authority in order that the lawfulness of their detention may be
monitored; an assessment has to be made of whether the suspicions of
the police are reasonable.
I do not consider it compatible with the Convention that a police
officer should arrest a person whom he reasonably suspects of being or
having been involved in the commission, preparation or instigation of
terrorist acts and that the police should not be required to answer to
a judicial authority in order that it may be verified that there is a
reasonable suspicion.
DISSENTING OPINION OF JUDGES WALSH AND CARRILLO SALCEDO IN RESPECT OF
ARTICLE 5 PARA. 1 (c) (art. 5-1-c)
We believe that Article 5 (art. 5) of the European Convention on Human
Rights does not afford to the State any margin of appreciation. If
the concept of a margin of appreciation were to be read into
Article 5 (art. 5), it would change the whole nature of this
all-important provision which would then become subject to executive
policy.
An arrest made under section 12 of the Prevention of Terrorism Act
1984 as modified or amended by the various orders mentioned in the
case and the detention thereby permitted do not require the preferring
of any charge against the arrested person at any time. Thus such an
arrest and detention
"is not necessarily ... the first step in a criminal proceeding
against a suspected person on a charge which was intended to be
judicially investigated" (see the judgment of Lord Lowry, Lord Chief
Justice, in the case of ex parte Lynch, referred to at paragraph 36 of
the judgment of the Court).
All that is required is a reasonable suspicion on the part of the
arresting authority that the person arrested is or has been concerned
in
"acts of terrorism connected with the affairs of Northern Ireland"
(see paragraph 30 of the judgment of the Court).
Although in fact there is no such offence as "terrorism" (definition
of which appears in paragraph 31 of the judgment of the Court), the
law does not require the detained person to be informed of any
specific criminal offence of which he may be suspected, nor does the
law require that his interrogation should be in respect of offences of
which he may be suspected. In fact his interrogation might be
confined solely to matters of which other persons are suspected. The
longer a person is detained in custody, the more likely he is to
confess to something. In our opinion, Article 5 (art. 5) does not
permit the arrest and detention of persons for interrogation in the
hope that something will turn up in the course of the interrogation
which would justify the bringing of a charge.
In our view the arrests in the present cases were for the purpose of
interrogation at a time when there was no evidential basis for the
bringing of any charge against them. No such evidence ever emerged
and eventually they had to be released. That the legislation in
question is used for such a purpose is amply borne out by the fact
that since 1974 15,173 persons have been arrested and detained in the
United Kingdom pursuant to the legislation yet less than 25% of those
persons, namely 3,342, have been charged with any criminal offence
arising out of the interrogation including offences totally
unconnected with the original arrest and detention. Still fewer of
them have been convicted of any offence of a terrorist type.
The Convention embodies the presumption of innocence and thus
enshrines a most fundamental human right, namely the protection of the
individual against arbitrary interference by the State with his right
to liberty. The circumstances of the arrest and detention in the
present cases were not compatible with this right and accordingly we
are of the opinion that Article 5 para. 1 (art. 5-1) has been violated.
The undoubted fact that the arrest of the applicants was inspired by
the legitimate aim of protecting the community as a whole from
terrorism is in our opinion not sufficient to ensure compliance with
the requirements of Article 5 para. 1 (c) (art. 5-1-c). Compliance
requires that the purpose of the arrest must be to bring the person
arrested before the competent legal authority on reasonable suspicion
of having committed a specified offence or offences. The Convention
does not permit an arrest for the purposes of interrogation in the
hope of getting enough information to ground a charge.
PARTLY DISSENTING OPINION OF JUDGE SIR VINCENT EVANS
1. I agree with the judgment of the Court that there was no
violation of Article 5 para. 1 (art. 5-1) or of Article 5 para. 4 (art. 5-4)
in this case and also that it is not necessary to consider the case
under Article 13 (art. 13). I am unable to agree, however, with the
majority of my colleagues that there have been violations of
Article 5 para. 3 and of Article 5 para. 5 (art. 5-3, art. 5-5).
2. The application of Article 5 para. 3 (art. 5-3) in the present
case turns on the meaning which should be given to the word "promptly"
in the context of the requirement that "everyone arrested or detained
in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c) shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power". Section 12 of
the Prevention of Terrorism (Temporary Provisions) Act 1984 permits a
person suspected on reasonable grounds of involvement in acts of
terrorism to be detained for a period of up to seven days, subject to
the authorisation of the Secretary of State after forty-eight hours,
before he is released or brought before a court. The question is
whether the detention of the applicants for periods ranging from four
days and six hours to six days and sixteen and a half hours under the
provisions of that section without being brought before a court was
compatible with Article 5 para. 3 (art. 5-3).
3. The Court has already recognised in several cases that the
word "promptly" in the context of Article 5 para. 3 (art. 5-3) cannot mean
"immediately". Thus in the case of de Jong, Baljet and van den Brink
the Court said: "The issue of promptness must be assessed in each case
according to its special features" (judgment of 22 May 1984, Series A
no. 77, p. 25, para. 52). In that case it found that "in the particular
circumstances, even taking into account the exigencies of military
life and military justice", intervals of six, seven and eleven days
could not be regarded as consistent with the required "promptness"
(ibid.). But the clear implication of this finding was that, in the
Court's opinion, it was consistent with the use of the word "promptly"
(and "aussitôt" in the French text) and with the object and purpose of
paragraph 3 (art. 5-3) to allow some - though certainly not unlimited -
flexibility having regard to the circumstances in which the
individuals concerned were detained.
The Commission for its part has for more than twenty years taken the
view that in normal cases a period of up to four days before the
detained person is brought before a judge is compatible with the
requirement of promptitude and that a somewhat longer period is
justifiable in some circumstances. The Court has not hitherto cast
doubt on the Commission's view in these respects. If anything, the
Court's judgments in the de Jong, Baljet and van den Brink and other
cases have tended by implication to confirm it.
Furthermore, the Court has consistently recognised that States must,
in assessing the compatibility of their laws and practices with the
requirements of the Convention, be permitted a "margin of
appreciation" and that inherent in the whole Convention is the search
for a fair balance between the demands of the general interest of the
community and the protection of the individual's fundamental rights.
In the Klass case, the Court agreed with the Commission that "some
compromise between the requirements of defending democratic society
and individual rights is inherent in the system of the Convention"
(judgment of 6 September 1978, Series A no. 28, p. 28, para. 59).
In my opinion, the jurisprudence thus far developed constitutes a
reasonable interpretation of Article 5 para. 3 (art. 5-3), and in
particular of the word "promptly".
4. The need to assess the issue of promptness according to the
special features of the case and to strike a fair balance between the
different rights and interests involved are considerations which are
surely relevant in the special circumstances of the situation in
Northern Ireland where more than thirty thousand persons have been
killed, maimed or injured as a direct result of terrorist activity in
the last twenty years. The balance to be sought in applying the
Convention in this situation is between, on the one hand, the
interests of the community and of ordinary decent men, women and
children who are so often the victims of terrorism and, on the other
hand, the rights of persons suspected on reasonable grounds of
belonging to or supporting a proscribed terrorist organisation or of
otherwise being concerned in the commission, preparation or
instigation of acts of terrorism.
The special factors held by the Government to justify the exceptional
powers of detention in cases under section 12 of the 1984 Act are
summarised in paragraph 56 of the Court's judgment. They include the
difficulty faced by the security forces in these cases in obtaining
evidence which is admissible and usable particularly in consequence of
the training received by terrorists in anti-interrogation techniques,
the highly sensitive nature of information on which suspicion is based
in many such cases making impossible its production in court in the
presence of the detained person or his legal adviser, and the extra
time needed for examining and correlating evidence and for liaison
with other security forces. The need for the exceptional powers under
section 12 to which such factors give rise is supported by the
statistics quoted in the same paragraph of the judgment - that in
1987, for instance, of some 83 persons detained in excess of five
days, 39 were charged with serious terrorist offences during the
extended period.
Viscount Colville in chapter 12 of his 1987 Report on the operation of
the 1984 Act accepted that there was no technical reason why the
decison to grant an extension of a person's detention beyond 48 hours
should not be made by a High Court Judge instead of by the Secretary
of State, but he concluded that such a change would be wrong. He
pointed out that the decisions in question would have to be made by a
judge sitting in camera without any effective representation of the
detained person and that in his opinion the change would add nothing
to the safeguards for civil liberties but could lead to unanswerable
criticisms of the judiciary. These considerations were of course
equally pertinent in 1984 when the applicants were detained (see, for
instance, Lord Jellicoe's Report of 1983 on the operation of the
Prevention of Terrorism (Temporary Provisions) Act 1976, para. 70). I
find them to be convincing and to support the view that the relevant
provisions of section 12 of the 1984 Act do enable a fair balance to
be struck between the interests of the community and the rights of
persons detained thereunder.
The Court in paragraph 61 of its judgment takes notice of and does not
dispute the factors adverted to by the Government and it acknowledges
the special problems which the investigation of terrorist offences
poses for the authorities of the State. It also accepts that the
difficulties of judicial control over decisions to arrest and detain
suspected terrorists may call for "appropriate procedural
precautions". The majority of the Court have nevertheless felt
constrained to interpret the word "promptly" as in effect making
incompatible with Article 5 para. 3 (art. 5-3) any period of detention
under section 12 of the 1984 Act exceeding the four days previously
considered, at least by the Commission, to be acceptable in normal
cases. In my opinion, given that the notion of promptness in the
context of Article 5 para. 3 (art. 5-3) must be applied with some degree of
flexibility, this is an unduly restrictive interpretation which does
not take sufficiently into account the special factors underlying the
provisions of section 12. My conclusion is that the provisions in
question are justified by the need to strike a fair balance in the
circumstances and that they are consonant with what must also be the
aim under the Convention of protecting human rights against the
continuing inhumanity of terrorism in Northern Ireland.
5. For these reasons, I do not find that the power under
section 12 of the 1984 Act to detain a person for up to seven days
without bringing him before a court is in itself incompatible with
Article 5 para. 3 (art. 5-3). As regards the exercise of that power in
the four instances before the Court, there is no reason to doubt that
each of the applicants was justifiably detained in accordance with
section 12 and consequently in my opinion there was no violation of
Article 5 para. 3 (art. 5-3) in any of these cases.
6. It follows that in my view there was no violation of
Article 5 para. 5 (art. 5-5) either.
CONCURRING OPINON OF JUDGE DE MEYER
Whilst wholly concurring in the result of the judgment, I would
observe, as to the dictum in paragraph 48, that the present case does
not really raise the issue of "the defence of the institutions of
democracy", but rather concerns a problem of civil coexistence within
a society deeply torn by national and religious antagonisms.
DISSENTING OPINION OF JUDGE MARTENS
I. Preliminary remarks
1. I find that I am unable to concur in the opinion of the
majority that the United Kingdom is in violation of its obligations
under Article 5 para. 3 (art. 5-3) of the Convention in this case.
I rather regret this because, being called to the Court but recently,
I am reluctant to disagree with so many of my more experienced
brethren.
2. I regret this all the more because, generally speaking, it is
my conviction that it enhances the Court's authority if the right to
express a dissenting opinion is used rather reticently. Moreover, in
this particular case I share to a great extent the opinions of the
majority. I to think: (1) that this case cannot be judged without
taking into account that it is concerned with terrorism (paragraph 48
of the Court's judgment); (2) that it is permissible to take this
factor into account although Article 15 (art. 15) of the Convention
does not apply (ibid.); and (3) that "judicial control of
interferences by the executive with the individual's right to liberty
is an essential feature of the guarantee embodied in Article 5 para. 3
(art. 5-3)" (paragraph 58 of the Court's judgment).
That I have nevertheless reached a different conclusion is, I think,
due to a difference of opinion with regard, firstly, to the weight to
be attached to terrorism, or rather to the liberty to be left to
Governments to cope with that and similar scourges of our times,
especially where the individual's right to liberty is concerned, and,
secondly, to the weight to be attached to the wording of the
Convention.
3. As the Court rightly recalls in paragraph 48 of its judgment,
terrorism is a feature of modern life, which has attained its present
extent and intensity only since the Convention was drafted. Terrorism
- and particularly terorrism on the scale obtaining in Northern
Ireland - is the very negation of the principles the Convention stands
for and should therefore be combated as vigorously as possible. It
seems obvious that to suppress terrorism the executive needs
extraordinary powers, just as it seems obvious that Governments should
to a large extent be free to choose the ways and means which they
think most efficacious for combating terrorism. Of course, in
combating terrorism the States Parties to the Convention have to
respect the rights and freedoms secured therein to everyone. I
subscribe to that and I am aware of the danger of measures being taken
which, as the Court has put it, may undermine or even destroy
democracy on the ground of defending it (see the Klass and Others
judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). But I
think that this danger must not be exaggerated - especially with
regard to States which have a long and firm traditon of democracy -
and should not lead to the wings of national authorities being
excessively clipped, for that would unduly benefit those who do not
hesitate to trample on the rights and freedoms of others.
4. It goes without saying that a person against whom there is a
reasonable suspicion of being involved in acts of terrorism should be free
from torture or inhuman or degrading treatment. But it seems to me
legitimate to ask whether he may not be detained, before being brought
before a judge, for a somewhat longer period than is acceptable under
ordinary criminal law. In this connection, I consider that the Court by
saying, in the second section of paragraph 58 of its judgment, that
Article 5 (art. 5) "enshrines a fundamental human right" somewhat
overestimates the importance of this provision in the Convention
system. Undoubtedly, the right to liberty and security of person is
an important right, but it does not belong to that small nucleus of
rights from which no derogation is permitted. This means that there
is room for weighing the general interest in an effective combating of
terrorism against the individual interests of those who are arrested
on a reasonable suspicion of involvement in acts of terrorism. The
search for such a fair balance between the general interest of the
community and the interests of the indiviudual is, as the Court has
already pointed out repeatedly and points out again in its present
judgment (paragraph 48), inherent in the whole of the Convention.
5. The Court finds it decisive, however, that the wording of
Article 5 para. 3 (art. 5-3) - especially "the plain meaning of the
word 'promptly'" - leaves no (or at least hardly any) room for such a
weighing of interests (see paragraphs 59 to 62 of its judgment). I
will explain in paragraphs 6 to 13 below why I do not share this view.
Here I should like to indicate breifly two reasons for thinking that
it is undesirable to attach a degree of importance to the wording of
this Convention that excludes application of a principle which seems
fundamental in this context and, under the Court's established
case-law, is inherent in the Convention as a whole.
The first reason is that the way the Convention is worded still bears
obvious traces of its origin : its wording is not seldom better suited
to a manifesto than to an international treaty designed to provide,
for a considerable time and for a great number of different legal
orders, answers to fundamental but often delicate questions of law.
The second reason for not attaching too much weight to the wording of
the Convention is that, in my belief, the Court should remain free to
adapt the interpretation of the Convention to changing social
conditions and moral opinions. That calls for methods of
interpretation that do not stop, prematurely, at the wording of a
provision.
II. Is the seven-day period under section 12 of the 1984 Act
compatible with the requirement of promptness?
6. I now turn to what in my opinion is the decisive question,
i.e. whether the seven-day period under section 12 of the 1984 Act is
compatible with Article 5 para. 3 (art. 5-3), and especially with the
requirement of "promptness" in that provision.
7. However, as this is the first time that I am called upon to
express an opinion on questions of construction of the Convention, I
will permit myself a short digression, which may serve both as an
explanation of my way of putting the above question and as a starting
point for further reasoning.
As we are dealing with a question of interpretation of Article 5
(art. 5) of the Convention, it may be worthwhile to start by
ascertaining exactly what are the engagements undertaken by the High
Contracting Parties in the Convention under this Article (art. 5).
To me it seems clear that these engagements are twofold:
(1) to ensure that their national law is in accordance with the
provisions of this Article; and
(2) to apply that law, and to have that law applied (1), in
accordance with these provisions.
_______________
(1) See the Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 91, para. 239.
_______________
I think that the same applies to the Convention as a whole. At first
sight, it may appear from the wording of many of its provisions that
they contain rules of uniform law, but, on reflection, it becomes
clear that, although perhaps they may exceptionally serve that
function, generally speaking their function is that of directives (2).
Directives for national law-making authorities (mainly legislators) to
model their laws, for national executive authorities to model their
conduct and for the Court to assess whether those laws and that
conduct are in conformity with the standards of the Convention.
_______________
(2) See the judgment of 23 July 1968 in the "Belgian Linguistic" case,
Series A no. 6, p. 35, para. 10 in fine; the Handyside judgment of<