AS TO THE ADMISSIBILITY OF
Application Nos. 14553/89 and 14554/89
by Peter BRANNIGAN and Patrick McBRIDE
against the United Kingdom
The European Commission of Human Rights sitting in private on
28 February 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms ;
Having regard to the applications introduced on 19 January
1989 by Peter BRANNIGAN and Patrick McBRIDE against the United Kingdom
and registered on 30 January 1989 under files Nos. 14553/89 and
14554/89 ;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission ;
- the written observations submitted by the Government on
16 February 1990, to which the applicants replied on
20 April 1990 ;
- the oral submissions of the parties at the hearing on
28 February 1991 ;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Irish citizen, born in 1964. He is
a labourer by trade and resides, at present, in Downpatrick, Northern
Ireland.
The second applicant is an Irish citizen born in 1951. He is
unemployed and resides, at present, in Belfast.
They are represented in the proceedings before the Commission
by Messrs. Madden and Finucane, Solicitors, Belfast.
The facts of the present cases, as submitted by the parties,
may be summarised as follows:
As regards the first applicant
The first applicant was arrested at his home in Downpatrick by
members of the Royal Ulster Constabulary on 9 January 1989 at
06.30 hours. He was then removed to the Interrogation Centre at Gough
Barracks, Armagh, where he was detained until 21.00 hours on
15 January 1989. He was therefore detained for a total period of
6 days, 14 hours and 30 minutes.
The first applicant was arrested under Section 12(1)(b) of
the Prevention of Terrorism (Temporary Provisions) Act 1984. Section
12 of the 1984 Act provides, inter alia, 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."
The first applicant states that he was interrogated
relentlessly throughout his detention. Visits or communication with
family or friends were not permitted. He was denied access to books,
newspapers and writing materials. He states that no provision was
made for radio or television and he was not allowed to associate with
other prisoners.
The Government state that the first applicant was seen by a
medical practitioner on 17 occasions. He declined to wait for a final
medical examination when being released from police custody. His
complaints of ill-treatment were investigated but found to be
unsubstantiated. Although initial access to a solicitor was delayed
because it was believed that such a visit would lead to interference
with the investigation, the applicant was subsequently visited by his
solicitor at 21.12 hours on 11 January 1989. Family visits are not
generally allowed, but a detainee is entitled to make a telephone call
on arrest and will generally be permitted to use the telephone to
speak to his friends, provided no hindrance is reasonably likely to be
caused to the processes of investigation or to the administration of
justice. No request for a family visit or a telephone call was made
by the applicant. Writing materials are available on request and
letters can be posted or delivered. No such request was made by the
applicant. No reading material is provided except a Bible and
detainees are not generally allowed to listen to radio or watch
television. This is not to deny them stimulation but because news
broadcasts may cause hindrance to the investigation. Association with
other detainees is not generally permitted for the same reason. The
custody record shows that requests for these facilities were not made
by the first applicant.
As regards the second applicant
The second applicant was arrested at his home by members of
the Royal Ulster Constabulary on 5 January 1989 at 05.05 hours. He
was then removed to Castlereagh Interrogation Centre where he was
detained until 11.30 hours on Monday 9 January 1989. He was therefore
detained for a total period of 4 days, 6 hours and 25 minutes.
Like the first applicant, the second applicant was arrested
under Section 12(1)(b) of the Prevention of Terrorism (Temporary
Provisions) Act 1984.
The second applicant states that he was interrogated
relentlessly all day, every day. Visits or communications with family
or friends were not permitted. He was denied access to books,
newspapers and writing materials. He states that no provision was
made for radio or television and he was not allowed to associate with
other prisoners. In addition, during interrogation sessions he was
required to stand and to remove his glasses.
The Government state that the second applicant was seen by a
medical practitioner eight times. He declined the offer of a medical
examination on four occasions and accepted on four other occasions.
His complaints of ill-treatment were investigated but found
unsubstantiated. At his request, his solicitors' office was informed
of his detention on 5 January 1989 at 09.40 hours. He received two
legal visits : from 20.57 hours until 22.00 hours on 5 January 1989
and from 20.35 hours to 21.30 hours on 7 January 1989. As regards
family or other outside contacts through telephone calls or writing
materials or other facilities, the custody record shows no request by
this applicant for such facilities.
COMPLAINTS
Articles 5 and 13 of the Convention
The applicants complain that their detention was in breach of
Article 5 para. 3 in that they were not brought promptly before a
judge. They claim that they had no domestic remedy against this
breach, in particular no right to compensation. In this regard they
also complain of a breach of Article 5 para. 5 and Article 13 of the
Convention.
Article 15 of the Convention
The applicants submit that the derogation lodged by the
respondent Government with the Secretary General of the Council of
Europe on 23 December 1988 does not comply with Article 15. In
particular they claim that the measures taken by the United Kingdom
were not strictly required by the exigencies of the situation and were
inconsistent with the United Kingdom's other obligations under
international law.
The applicants had also originally complained of breaches of
Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention. However,
in effect they withdrew their complaints under these provisions in
their observations on admissibility and merits.
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced on 19 January 1989 and
registered on 30 January 1989. After a preliminary examination of the
cases by the Rapporteur, the Commission considered the admissibility of
the applications on 5 September 1989. It decided to give notice of
the applications to the respondent Government and to invite the
parties to submit their written observations on admissibility and
merits, particularly regarding the applicants' challenge to the
validity of the derogation under Article 15 of the Convention.
The Government submitted their observations on 16 February 1990
after an extension of the time limit. The applicants replied on
20 April 1990 and, at the same time, withdrew their complaints under
Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention.
On 5 October 1990 the Commission decided, in accordance with
Rule 50(b) of the Rules of Procedure, to obtain the parties' oral
submissions on the cases. The hearing was held in Strasbourg on
28 February 1991. The Government were represented by Mrs. A. Glover,
Agent, Foreign and Commonwealth Office, and Mr. N. Bratza, QC, and
Mr. R. Weatherup, both of Counsel. The Government's representatives
were accompanied by 5 advisers. The applicants were represented by
Mr. R. Weir, QC, Mr. S. Treacy, BL, and Mr. I. Tannahill, BL, all of
Counsel, and Mr. K. Winters, Solicitor with Messrs. Madden & Finucane.
THE LAW
The applicants have complained that their detention for
periods in excess of four days, without charge and without being
brought before a judge, pursuant to Section 12(1)(b) of the Prevention
of Terrorism (Temporary Provisions) Act 1984, was in breach of Article
5 paras. 3 and 5 and Article 13 (Art. 5-3, 5-5, 13) of the Convention.
They relied on the judgment of the European Court of Human Rights in
the case of Brogan and Others in which the Court held that similar
detention for periods of over four days violated these provisions of
Article 5 (Art. 5) of the Convention (Eur. Court H.R., Brogan and
Others judgment of 29 November 1988, Series A No. 145, pp. 30-34 and
35, paras. 55-62 and 66-67). They contended, inter alia, that the
derogation lodged by the United Kingdom with the Secretary General of
the Council of Europe on 23 December 1988, a derogation from the
requirements of Article 5 (Art. 5) to enable the continued use of the
Prevention of Terrorism legislation, did not comply with Article 15
(Art. 15) of the Convention. In particular they claimed that the
measures taken by the United Kingdom were not strictly required by the
exigencies of the situation and were inconsistent with the United
Kingdom's other obligations under international law.
The Government drew attention to the problems, recognised by
the Court in the case of Brogan and Others, of dealing with the
continuing terrorist threat in connection with the affairs of Northern
Ireland and the particular difficulties of bringing those responsible
for horrifying and indiscriminate acts of terrorism to justice. They
submitted, inter alia, that a fair and proper balance had been struck
by the Prevention of Terrorism legislation in question, after thorough
and continued parliamentary and independent scrutiny, between the
protection of individual rights and the need to defend a democracy
against the threats posed by organised terrorism. It was contended
that the Government's derogation from their obligations under Article
5 (Art. 5) of the Convention was strictly required by the exigencies of the
situation and was in accordance with Article 15 (Art. 15) of the Convention.
Article 5 (Art. 5) of the Convention ensures the right to
liberty. All deprivations of liberty must be in accordance with a
procedure prescribed by law and for a lawful purpose, such as the
lawful arrest or detention of a person in order to bring him before
the competent legal authority on reasonable suspicion of having
committed a criminal offence (Article 5 para. 1 (c)) (Art. 5-1-c).
Persons arrested for this purpose must be brought promptly before a
judge (Article 5 para. 3) (Art. 5-3). Anyone arrested contrary to the
provisions of Article 5 (Art. 5) is entitled to compensation (Article
5 para. 5) (Art. 5-5). Article 13 (Art. 13) of the Convention
guarantees the right to an effective domestic remedy for Convention
breaches.
The Commission notes that the key issue in the present cases
involves Article 15 (Art. 15) of the Convention, the relevant part of
which provides as follows :
"1. In time of war or other public emergency threatening
the life of the nation any High Contracting Party may
take measures derogating from its obligations under this
Convention to the extent strictly required by the
exigencies of the situation, provided that such measures
are not inconsistent with its other obligations under
international law.
...
3. Any High Contracting Party availing itself of this
right of derogation shall keep the Secretary General of
the Council of Europe fully informed of the measures
which it has taken and the reasons therefor. It shall
also inform the Secretary General of the Council of Europe
when such measures have ceased to operate and the provisions
of the Convention are again being fully executed."
The Commission considers, in the light of the parties'
submissions, that the present cases raise complex issues of law and
fact under the Convention, the determination of which should depend on
an examination of the merits of the applications as a whole. The
Commission concludes, therefore, that the applications are not
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring them
inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATIONS ADMISSIBLE
without prejudging the merits of the cases.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy