AS TO THE ADMISSIBILITY OF
Application No. 19805/92
by Thomas BRENNAN
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 January 1992
by Thomas BRENNAN against the United Kingdom and registered on 7 April
1992 under file No. 19805/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in Northern Ireland in
1962. He is a labourer by profession and by November 1990 he had
settled in London. He now lives in Strabane, Northern Ireland, where
he was brought up. He is represented before the Commission by Messrs.
Bindman & Partners, Solicitors, London.
The facts of the present case, as submitted by the applicant and
which may be deduced from documents lodged with the application, may
be summarised as follows:
On 11 November 1990 the applicant was arrested in London under
the Prevention of Terrorism (Temporary Provisions) Act 1989 (the PTA).
The applicant was taken to a London police station where he was
detained for nine days until 19 November 1990.
The PTA lays down procedures for, inter alia, the review of the
detention of persons who have been arrested and detained in pursuance
of the Act. It establishes that a person should not be detained for
more than 48 hours in the first instance. It also establishes that
within those first 48 hours the person's continuing detention can only
be justified if certain conditions are met. "Review officers"
ascertain at least every 12 hours whether those conditions continue to
be met. The first 41 hours of the applicant's detention were
authorised in accordance with these procedures.
The PTA lays down that a person can only be detained after
48 hours if an application has been made to the Secretary of State for
an extension of his detention. On such an application, the Secretary
of State can authorise the continued detention of the applicant for a
further 5 days. In the applicant's case, such an application was made
and granted on 12 November 1990. Thereafter, until 17 November, the
conditions for the applicant's continued detention ceased to be
reviewed.
The PTA provides that, where the Secretary of State is satisfied
that any person has been concerned in acts of terrorism, he may make
an "exclusion order" against that person prohibiting him from being in
Great Britain. On 17 November 1990 the Secretary of State made such
an order against the applicant. The Act also provides that where an
exclusion order has been made against a person, the Secretary of State
may give directions for his removal from Great Britain. That person
cannot be removed until certain procedures, prescribed by the PTA, have
been observed. The Act authorises the person's continued detention
pending the giving and execution of the removal directions. The
Secretary of State's order in respect of the applicant, dated
17 November 1990, also ordered the applicant's continued detention in
accordance with these provisions.
On 19 November 1990 the exclusion order was served on the
applicant and the removal directions were given and executed. On the
same day the applicant was taken to Northern Ireland where he was
released.
The PTA also contains procedures whereby a person subject to an
exclusion order can apply to the Secretary of State for a review of the
order. On 30 November 1990 the applicant applied for such a review.
At the same time, the applicant requested full details of the evidence
upon which the police and Secretary of State justified the applicant's
arrest, detention and exclusion. On 28 December 1990 the Secretary of
State stated that it was not the practice to give reasons for an
exclusion order. On 26 July 1991 the Secretary of State wrote to the
applicant informing him that the review had been completed and that he
had decided not to revoke the exclusion order. The applicant was
excluded from re-entering Great Britain for three years as of
19 November 1990 unless the order is revoked earlier.
The applicant applied for judicial review of the exclusion order
and the refusal to revoke it. One of the grounds of the application
was that the Secretary of State had fettered his discretion in not
disclosing the matters of which account had been taken for imposing the
exclusion order. (The applicant was aware, however, that the domestic
courts had already established that the Secretary of State was not
obliged to disclose his reasons in such national security matters : R
v. the Secretary of State for Home Affairs, ex parte Stitt application for judicial review on 24 January 1992 on counsel's advice. COMPLAINTS Whilst accepting that at all times he was detained in accordance with a procedure prescribed by law, the applicant complains that his detention from his arrest until an application was first made to the Secretary of State for an exclusion order constituted a violation of his right to be brought promptly before a judge under Article 5 para. 3 of the Convention. He contends that his detention thereafter until he was released in Northern Ireland constituted a violation of his right to liberty and security of person under Article 5 para. 1. He submits that the Secretary of State's refusal to disclose any of the evidence purportedly justifying his arrest, detention and exclusion deprived him of an enforceable right to compensation for the alleged violation of Article 5 paras. 1 and 3, in breach of Article 5 para. 5 of the Convention. THE LAW The applicant complains that his detention from 11 to 19 November 1990 was in breach of Article 5 paras. 1 and 3 (Art. 5-1, 5-3) of the Convention, for which he had no enforceable right to compensation in a civil action for false imprisonment, given the fact that he was unable to obtain evidence of the reasons for his arrest. In this latter respect he invokes Article 5 para. 5 (Art. 5) of the Convention. The relevant parts of Article 5 (Art. 5) of the Convention provide as follows : "1. 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: ... b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge ... 5. 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." However, the Commission is not required to decide whether or not the facts described by the applicant disclose any appearance of a violation of the above provisions as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken". In the present case the final decision, within the meaning of Article 26 (Art. 26) of the Convention, was the applicant's release from detention on 19 November 1990. The subsequent domestic decisions cannot be taken into account for the following reasons: The applicant concedes that his detention was in accordance with a procedure prescribed by law, in which case he would have had no prospects of success in any domestic civil proceedings for false imprisonment. This is reflected in the fact that he never instituted such proceedings. Instead he endeavoured to have the exclusion order against him revoked, but these proceedings had no bearing on the question of the lawfulness of his detention and could not provide him with compensatory damages. They are therefore irrelevant for the purposes of the applicant's claim under Article 5 (Art. 5) of the Convention. The applicant did not lodge his application with the Commission until 23 January 1992, more than six months after his release on 19 November 1990. An examination of this case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months period laid down in Article 26 (Art. 26) of the Convention. It follows that the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (S. TRECHSEL)
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