Information Note on the Court’s case-law No.
May 1993
Brannigan and McBride v. the United Kingdom - 14553/89 and 14554/89
Judgment 26.5.1993
Article 5
Article 5-3
Brought promptly before judge or other officer
Article 15
Article 15-1
Derogation
Arrest and detention of two suspects under section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984: validity of derogation under Article 15 (Northern Ireland)
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 5 OF THE CONVENTION
The applicants were detained for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively without being brought before a court. Having regard to Court's Brogan and Others judgment, Article 5 §§ 3 and 5 has not been respected. Examination of validity of Government's derogation called for.
1.Court's approach
It falls to each Contracting State with its responsibility for "the life of [its] nation" to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. In this matter a wide margin of appreciation should be left to the national authorities. Nevertheless, the domestic margin is accompanied by a European supervision. Court must give appropriate weight to such factors as the nature of the rights affected, the circumstances leading to, and the duration of, the emergency.
2.Existence of a public emergency
Not disputed that there was an emergency. Making its own assessment in the light of all the material before it, Court considers that an emergency existed at relevant time.
3.Measures strictly required by the exigencies of the situation?
(a)General considerations
Judicial control of deprivation of liberty implied by the rule of law. The notice of derogation was lodged soon after the Court had found the United Kingdom to be in breach of Article 5 § 3 in Brogan and Others. Derogation to be scrutinised against this background.
(b)Was the derogation a genuine response to the emergency?
Following Brogan and Others, the Government were faced with the option of either introducing judicial control or lodging a derogation. The derogation being linked to the persistence of the emergency situation, no indication that it was other than a genuine response.
(c)Was the derogation premature?
The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Such a process of continued reflection in keeping with Article 15 § 3 as well as the very notion of proportionality.
(d)Absence of judicial control justified?
The introduction of a "judge or other officer authorised by law to exercise judicial power" into the process of extension of detention would not necessarily bring about a situation of compliance with Article 5 § 3 which – like Article 5 § 4 – must be understood to require a procedure that has a judicial character. Not the Court's role to substitute its view as to what measures were most appropriate or expedient in dealing with an emergency for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand and respecting individual rights on the other. In the Northern Ireland context, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.
Government have thus not exceeded their margin of appreciation in deciding against judicial control.
(e)Safeguards against abuse
Habeas corpus is available to test the lawfulness of the original arrest and detention. This remedy was open to applicants and provides an important measure of protection against arbitrary detention.
Detainees also have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from time of arrest. They can also inform a relative or friend about their detention and have access to a doctor.
(f)Conclusion
Government have not exceeded their margin of appreciation in this respect.
4.Other obligations under international law
No plausible basis for applicants' argument that the emergency was not officially proclaimed as required by Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights. Secretary of State's statement of 22 December 1988 to House of Commons was well in keeping with the notion of an official proclamation.
5.Summary
Derogation satisfies the requirements of Article 15 and applicants cannot validly complain of violation of Article 5 § 3 (twenty-two votes to four).
Thus no obligation under Article 5 § 5 to provide applicants with enforceable right to compensation (twenty-two votes to four).
II.ARTICLE 13 OF THE CONVENTION
In Brogan and Others, Court found that habeas corpus satisfied Article 5 § 4. Since requirements of Article 13 are less strict than those of Article 5 § 4, which is the lex specialis in respect of Article 5 complaints, there has been no breach of this provision.
Conclusion: no violation (twenty-two votes to four).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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