The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgments of the European Court of Human
Rights in the Brogan and others case delivered on 29 November 1988 and
30 May 1989 and transmitted the same days to the Committee of
Ministers;
Recalling that the case originated in four applications against the
United Kingdom lodged with the European Commission of Human Rights
on 18 October 1984, 22 October 1984, 22 November 1984 and
8 February 1985 under Article 25 (art. 25) of the Convention by
Mr Terence Brogan, Mr Dermot Coyle, Mr William McFadden and
Mr Michael Tracey, British nationals, who complained of their arrest
and detention under Section 12 of the Prevention of Terrorism
(Temporary provisions) Act 1984;
Recalling that the case was brought before the Court by the
Commission on 15 July 1987 and by the Government of the United Kingdom
of Great Britain and Northern Ireland on 3 August 1987;
Whereas in its judgment of 29 November 1988 the Court held:
- by sixteen votes to three that there had been no violation of
Article 5, paragraph 1 (art. 5-1), of the Convention;
- by twelve votes to seven that there had been a violation of
Article 5, paragraph 3 (art. 5-3), of the Convention in respect of
all four applicants;
- unanimously that there had been no violation of Article 5,
paragraph 4 (art. 5-4), of the Convention;
- by thirteen votes to six that there had been a violation of
Article 5, paragraph 5 (art. 5-5), in respect of all four applicants;
- unanimously that it was not necessary also to consider the case
under Article 13 (art. 13) of the Convention;
Whereas in its judgment of 30 May 1989 the Court held unanimously
that the principal judgment in itself constituted sufficient just
satisfaction for the purposes of Article 50 (art. 50) of the Convention;
Having regard to the Rules adopted by the Committee of Ministers
concerning the application of Article 54 (art. 54) of the Convention;
Having invited the Government of the United Kingdom to inform it of
the measures which had been taken following the judgment of
29 November 1988, having regard to its obligation under Article 53
(art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee of
Ministers, the Government of the United Kingdom gave the Committee
information about the measures taken in consequence of the judgment,
which information appears in the appendix to this resolution;
Whereas in the present case it is not for the Committee of Ministers
to pronounce on the validity of a derogation entered according to
Article 15 (art. 15) of the European Convention on Human Rights,
Decides, after having taken note of the information supplied by the
Government of the United Kingdom, to discontinue its examination of
the present case.
Appendix to Resolution DH (90) 23
Information provided by the Government of the United Kingdom
during the examination of the Brogan and others case
by the Committee of Ministers
The Government of the United Kingdom informed the Committee of
Ministers that, notwithstanding careful consideration of possible
alternatives, it had not been possible to identify a procedure which
could satisfy the requirements of Article 5, paragraph 3 (art. 5-3),
of the Convention on the issue of the review of detention of terrorist
suspects by a judge or other officer authorised by law.
In consequence, and in the context of the continued threat to the
United Kingdom posed by terrorism connected with the affairs of
Northern Ireland, the Government of the United Kingdom has concluded
that the derogation notified on 23 December 1988 and 23 March 1989
that was entered according to the possibility afforded by Article 15
(art. 15) of the Convention to any High Contracting Party in time of war
or other public emergency threatening the life of the nation must
remain in place for as long as circumstances require. The arrest and
detention powers granted to the police and the Secretary of State
under the former Section 12 of the Prevention of Terrorism (Temporary
provisions) Act 1984 (now Section 14 of the Prevention of Terrorism
(Temporary provisions) Act 1989) will therefore remain.
The Government of the United Kingdom does not consider that any
action is required as a result of the finding of a violation by the
Court of Article 5, paragraph 5 (art. 5-5), of the Convention. It is the
Government's view that, provided the national law (if necessary as
modified by a derogation) complies with the state's obligations under
Article 5, paragraphs 1 to 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4),
no question of compensation arises. Article 5, paragraph 5
(art. 5-5), does not require in itself that paragraphs 1 to 4 of
Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) be incorporated
into domestic law.
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