AS TO THE ADMISSIBILITY OF
1. Application No. 12690/87 2. Application No. 12731/87
P by James CLINTON P by Sean SIMPSON
3. Application No. 12823/87 4. Application No. 12900/87
P by Sean MAGUIRE P by Patrick McGEOWN
5. Application No. 13032/87 6. Application No. 13033/87
P by John MURRAY P by Philip CAMPBELL
7. Application No. 13246/87 8. Application No. 13231/87
P by Kieran SMYTH P by Guy BRESLIN
9. Application No. 13232/87 10. Application No. 13233/87
P by John CONNOLLY P by Sean McGUINNESS
11. Application No. 13310/87 12. Application No. 13553/88
NP by X. NP by Y.
13. Application No. 13555/88
NP by Z.
all against the United Kingdom
The European Commission of Human Rights sitting in private on
31 May 1991, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Sir Basil HALL
M. F. MARTINEZ
Mrs. J. LIDDY
MM. J.C. GEUS
M.P. PELLONPÄÄ
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 27 January 1987 by James CLINTON
against the United Kingdom and registered on 2 February 1987 under
file No. 12690/87;
- the application introduced on 6 February 1987 by Sean SIMPSON
against the United Kingdom and registered on 17 February 1987 under
file No. 12731/87;
- the application introduced on 13 March 1987 by Sean MAGUIRE
against the United Kingdom and registered on 24 March 1987 under file
No. 12823/87;
- the application introduced on 1 May 1987 by Patrick McGEOWN
against the United Kingdom and registered on 5 May 1987 under file
No. 12900/87;
- the application introduced on 1 June 1987 by John MURRAY
against the United Kingdom and registered on 9 June 1987 under file
No. 13032/87;
- the application introduced on 2 June 1987 by Philip CAMPBELL
against the United Kingdom and registered on 12 June 1987 under file
No. 13033/87;
- the application introduced on 18 September 1987 by Kieran
SMYTH against the United Kingdom and registered on 28 September 1987
under file No. 13246/87;
- the application introduced on 14 May 1987 by Guy BRESLIN
against the United Kingdom and registered on 28 September 1987 under
file No. 13231/87;
- the application introduced on 14 May 1987 by John CONNOLLY
against the United Kingdom and registered on 28 September 1987 under
file No. 13232/87;
- the application introduced on 14 May 1987 by Sean McGUINNESS
against the United Kingdom and registered on 28 September 1987 under
file No. 13233/87;
- the application introduced on 10 August 1987 by X.
against the United Kingdom and registered on 19 October 1987 under
file No. 13310/87;
- the application introduced on 1 October 1987 by Y.
against the United Kingdom and registered on 26 January 1987
under file No. 13533/88;
- the application introduced on 25 June 1987 by Z.
against the United Kingdom and registered on 26 January 1988 under
file No. 13555/88;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 7 October 1987 to bring
Applications Nos. 12690/87, 12731/87 and 12900/87 to the notice of the
respondent Government without inviting the parties to submit written
observations on admissibility and merits at that stage pending the
outcome of the case of Fox, Campbell and Hartley v. the United Kingdom
and, in the meantime, to adjourn its examination of these three
applications ;
- a similar decision of the Commission on 6 May 1989 in the
other 10 applications ;
- the Court's judgment in the above-mentioned case on 30 August
1990 (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August
1990, Series A no. 182) ;
- the Commission's decision of 7 September 1990 to invite the
parties to submit written observations on the applications in the
light of that judgment ;
- the observations of the applicants' representatives in the
last six applications submitted on 7 November 1990 ;
- the Government's observations submitted on 4 January 1991 ;
- the observations of the applicants' representatives in the
first seven applications submitted on 12 February 1991 ;
- the Commission's decision of 9 April 1991 to refer the
applications to the Second Chamber ;
Having deliberated;
Decides as follows:
THE FACTS
A. The first seven applicants
The first applicant, James Clinton, is an Irish citizen, born
in 1960 and resident in Belfast.
The second applicant, Sean Simpson, is an Irish citizen, born
in 1959 and resident in Belfast.
The third applicant, Sean Maguire, is an Irish citizen, born
in 1957 and resident in Belfast.
The fourth applicant, Patrick McGeown, is an Irish citizen,
born in 1956 and resident in Belfast.
The fifth applicant, John Murray, is an Irish citizen, born
in 1950 and resident in Belfast.
The sixth applicant, Philip Campbell, is an Irish citizen,
born in 1957 and resident in Belfast.
The seventh applicant, Kieran Smyth, is an Irish citizen, born
in 1960 and resident in Belfast.
The seven applicants are represented before the Commission by
Messrs. Madden and Finucane, Solicitors, Belfast.
B. The other six applicants
The eighth applicant, Guy Breslin, is a British citizen, born
in 1968 and resident in Strabane, County Tyrone.
The ninth applicant, John Connolly, is an Irish citizen, born
in 1968 and resident in Strabane, County Tyrone.
The tenth applicant, Sean McGuinness, is a British citizen,
born in 1966 and resident in Strabane, County Tyrone.
The eleventh applicant is a British citizen, born in 1969 and
resident in Strabane, County Tyrone.
The twelfth applicant is an Irish citizen, born in 1964 and
resident in Strabane, County Tyrone.
The thirteenth applicant is an Irish citizen, born in 1962 and
resident in Strabane, County Tyrone.
These six applicants are represented before the Commission by
Messrs. John Fahy & Co., Solicitors, Strabane, County Tyrone.
The facts of the present cases, as submitted by the parties,
may be summarised as follows :
C. The particular circumstances of the cases
1. Application No. 12690/87 : James Clinton
At 06.00 hours on 21 October 1986 the first applicant was
arrested under section 11 of the Northern Ireland (Emergency
Provisions) Act 1978 (the 1978 Act) and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested as a result of information received by the Royal Ulster
Constabulary (the RUC) from a usually reliable source which indicated
that he was involved in a terrorist incident, an attempted murder in
Ormeau Road on 3 October 1986. Interviewing began five hours later at
11.00 hours on the day of his arrest and at that interview the first
applicant was informed that he was being questioned in connection with
the aforementioned attempted murder and possession of firearms.
During his interviews the first applicant was questioned in connection
with the circumstances of the Ormeau Road incident and it was put to
him that on the night in question he was in possession of the firearm
which caused the terrorist incident. The first applicant declined to
answer any questions put to him during his interviews and refused to
speak at all. At 16.20 hours on 22 October 1986 he was released
without charge, within 35 hours of his arrest.
2. Application No. 12731/87 : Sean Simpson
The second applicant was arrested at 05.45 hours on 13 January
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested as a result of information received by the RUC from a usually
reliable source which indicated that he was a member of the
Provisional Irish Republican Army (PIRA). Interviewing began five and
a quarter hours later at 11.00 hours on the day of his arrest and he
was told that he was being questioned in connection with his suspected
membership of PIRA. During subsequent interviews the second applicant
was questioned about his membership of PIRA and, in particular, the
group within PIRA which, through violence and the threat of violence,
enforces discipline within that organisation. He was further
questioned about his involvement in the movement of weapons and in
terrorist activities in the Belfast area. The second applicant
declined to answer any questions or to speak at all. At 17.30 hours
on 14 January 1987 he was released without charge, within 36 hours of
his arrest.
3. Application No. 12823/87 : Sean Maguire
The third applicant was arrested at 06.35 hours on 11 November
1986 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he was a member of the Ardoyne
PIRA and involved in certain specific terrorist crimes in the North
Belfast area. Interviewing began four hours later at 10.40 hours
during which he was told he was being questioned in connection with
the aforementioned matters. He was subsequently questioned about
certain specific serious terrorist crimes in the North Belfast area.
The third applicant declined to answer any questions during his
interviews or to speak at all. At 14.00 hours on 13 November 1986 he
was released without charge, within 56 hours of his arrest. (At the
time of his arrest, the third applicant had previous convictions for
conspiracy to murder and possession of firearms and ammunition.)
4. Application No. 12900/87 : Patrick McGeown
At 04.40 hours on 1 April 1987 the fourth applicant was
arrested under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because of information received by the RUC from a usually
reliable source which indicated that he was a member of PIRA and had
had possession of weapons and explosives in the Greater Belfast area.
Interviewing began nearly six hours later at 10.35 hours on the
morning of his arrest when he was informed that he was being
questioned regarding his membership of PIRA and the possession of both
weapons and explosives in the Greater Belfast area since he rejoined
PIRA after his release from prison early in 1986. The fourth
applicant stated that he refused to answer any questions unless his
solicitor was present and thereafter declined to answer any questions.
At his first and subsequent interviews he was questioned at length
regarding his membership of and activities within PIRA and about his
knowledge of PIRA arms and explosives dumps. He was asked how long he
was out of prison before he rejoined active service with PIRA, what
position he held when he rejoined and who processed his application to
rejoin. He was asked what position he presently held within PIRA and
what he had done for PIRA since he rejoined. He was also asked what
future operations of PIRA he had knowledge of and about the identities
of present active PIRA members and their positions and ranks. At his
third interview he was asked whether he had been involved in any way
in a recent bombing in the Divis flats complex in which a soldier had
been killed. He was released from custody at 14.15 hours on 2 April
1987, within 34 hours of his arrest. (At the time of his arrest, the
fourth applicant had previous convictions for possessing explosives
with intent to endanger life or property, causing an explosion likely
to endanger life or property and belonging to a proscribed
organisation for which he was sentenced to a term of 15 years'
imprisonment.)
5. Application No. 13032/87 : John Murray
The fifth applicant was arrested at 04.50 hours on 1 April
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he had been involved in a recent
gun and rocket attack at New Barnsley RUC station at 12.15 hours on
31 March 1987. Interviewing began nearly six hours later at 10.45
hours on the morning of his arrest when he was informed that he was
being questioned in connection with his alleged membership of PIRA and
possession of weapons on behalf of that organisation. At that
interview he was also questioned about the aforementioned gun and
rocket attack at New Barnsley RUC Station. In subsequent interviews
he was further questioned about his association with known members of
PIRA and was asked if he had ever been involved in PIRA operations in
West Belfast. He was also questioned about a bomb attack at the Divis
flats on 30 March 1987 in which a soldier was murdered. During the
course of his interviews, the fifth applicant refused to answer any
questions which were put to him either in respect of the matters for
which he had been arrested or anything else. He was released from
custody at 12.45 hours on 3 April 1987 without being charged, within
56 hours of his arrest.
6. Application No. 13033/87 : Philip Campbell
The sixth applicant was arrested at 19.35 hours on 12 May 1987
under section 11 of the 1978 Act and was taken to Castlereagh Police
Office. At the time of his arrest he was told that he was being
arrested under section 11 of the 1978 Act as he was suspected of being
involved in terrorism. According to the Government, he was arrested
because information was received by the RUC from a usually reliable
source which indicated that he was a member of a PIRA bombing team.
Interviewing began an hour and a half later at 21.00 hours when he was
told that he was being questioned in connection with terrorist
incidents in the Belfast area as a member of a PIRA bombing team. He
declined to answer any questions during his interviews. He was
released without charge at 20.05 hours on 13 May 1987, within 25 hours
of his arrest. (On 10 December 1980 the sixth applicant was convicted
of being in possession of firearms and ammunition with intent, of
possession of firearms under suspicious circumstances and of
undertaking instruction in the use of firearms for which he was
sentenced to 7 years' imprisonment in respect of each offence to run
concurrently.)
7. Application No. 13246/87 : Kieran Smyth
The seventh applicant was arrested at 19.50 hours on 14 May
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he was involved in the hijacking
of a van on 6 April 1987 at Laganbank Road. Interviewing did not
begin until the next day, at 10.40 hours on 15 May 1987. The reason
for the delay in interviewing the seventh applicant was that a routine
medical examination of the applicant could not take place until 21.20
hours on 14 May and thereafter it was not possible to assemble a team
of officers to interview the seventh applicant until the following
morning. At his first interview the applicant was told that he was
being questioned in connection with the aforementioned hijacking of a
van. In subsequent interviews he was questioned about his involvement
in the movement of firearms in the Short Strand area and his suspected
membership of PIRA. Throughout his interviews he declined to answer
any questions or to speak at all. He was released without charge at
21.00 hours on 15 May 1987, within 26 hours of his arrest. (At the
time of his arrest, the seventh applicant had previous convictions for
riotous behaviour, intimidation, public nuisance, making use of
prohibited articles, malicious damage and belonging to a proscribed
organisation.)
8. Application No. 13231/87 : Guy Breslin
The eighth applicant was arrested at 12.25 hours on 15 April
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he was involved in the hijacking
and arson of an Ulster bus on 24 March 1987 at 16.30 hours at the
junction of Townsend Street / Fountain Street, Strabane. Interviewing
began three and a quarter hours later at 15.40 hours on the day of his
arrest when he was told that he was being questioned because of his
suspected involvement in the aforementioned hijacking and arson of an
Ulster bus. He was asked what he was doing on that date and whether
he was acquainted with certain individuals. He was asked if he was a
member of PIRA and whether he had attended the funeral of a certain
Gerald Logue at Londonderry on that date. In subsequent interviews he
was further questioned along the same lines. In none of his
interviews did he answer any of the questions which were put to him or
speak at all. He was released without charge at 18.50 hours on
16 April 1987, within 31 hours of his arrest.
9. Application No. 13232/87 : John Connolly
The ninth applicant was arrested at 07.05 hours on 15 April
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act. He declined to name
any person who should be informed of his arrest. According to the
Government, he was arrested because information was received by the
RUC from a usually reliable source which indicated that he had been
involved in the same hijacking and arson incident as in the eighth
applicant's case. Interviewing began over three and a half hours
later at 10.45 hours on the morning of his arrest and he was told that
the reason he was being questioned was that he was suspected of being
involved in the hijacking of the Ulster bus. He was asked if he had
attended the funeral of Gerald Logue in Londonderry on that date and
whether this was the reason for his becoming involved in the incident
in question. In subsequent interviews he was told that he was
suspected with two others of having masked and armed himself, boarded
the bus and ordered the driver off before driving the bus across the
road, breaking windows, pouring petrol inside it and setting fire to
it. He was also questioned about his involvement with PIRA in
Strabane and his association with other persons from that
organisation. Throughout the interviews the ninth applicant remained
silent, refusing to answer any questions which were put to him or
speak at all. He was released without charge on 16 April 1987 at
19.45 hours, within 37 hours of his arrest.
10. Application No. 13233/87 : Sean McGuinness
The tenth applicant was arrested at 08.35 hours on 11 May
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he was involved in the throwing
of petrol bombs at the police in a series of petrol bombing incidents
in the Strabane area that year, and that he was a member of PIRA.
Interviewing began over five and a half hours later at 14.15 hours on
the day of his arrest. He was told at that interview that the reason
he was being questioned was his suspected involvement in the petrol
bombing incidents and his involvement with PIRA. After denying his
involvement in any petrol bombing or riots, he declined to answer any
further questions in that interview. In subsequent interviews he was
asked if he was a member of PIRA and whether he had ever thrown petrol
bombs at the police. During his third interview the applicant was
asked whether he had been part of a crowd of youths who had thrown
petrol bombs at the police in Townsend Street on 23 February 1987.
The tenth applicant denied any involvement. He was further asked
whether he had been involved in throwing petrol bombs at the police in
Fountain Street on 6 February 1987. He denied any involvement,
although he said he had seen them being thrown in Fountain Street.
During a subsequent interview he was asked if he had ever been asked
to join PIRA, but he denied that he had. In further interviews he
agreed that he had seen petrol bombs at close quarters and described
them accurately. He admitted having thrown stones at police vehicles
when he was at school. He also said that he had read leaflets
distributed by Sinn Fein which advised those arrested for terrorist
offences not to speak to the police during interviews at Castlereagh
Police Office. He was questioned about his involvement in a riot on
23 February 1987 and a hijacking that night in Strabane when a
makeshift barricade was set on fire by a number of youths. He was
questioned in detail about many specific cases of fire bombing in
respect of which he was given the date and time of the incidents about
which he was being questioned. He denied any involvement. He was
released without charge at 11.20 hours on 13 May 1987, within 51 hours
of his arrest.
11. Application No. 13310/87
The eleventh applicant was arrested at 07.40 hours on 28 April
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he was involved in the same
hijacking incident as in the eighth applicant's case. Interviewing
began over three and a quarter hours later at 11.00 hours on the
morning of his arrest when he was told that he was being questioned
because he was suspected of being involved in the aforementioned bus
hijacking, the day of Gerald Logue's funeral, and of arson at Townsend
Street, Strabane. At subsequent interviews the applicant was asked
about his membership of the Irish National Liberation Army (INLA), a
proscribed organisation. He was also questioned in further detail
about the bus incident. Apart from denying, in the fifth interview,
that he was involved in the incident in question in any way, the
eleventh applicant declined to answer any questions. He was released
without charge at 15.10 hours on 30 April 1987, within 56 hours of his
arrest.
12. Application No. 13553/88
The twelfth applicant was arrested at 07.20 hours on 7 May
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. Interviewing began over three and a
quarter hours later at 10.40 hours on the morning of his arrest at
which he was informed that he was being questioned because he was
suspected of being a member of PIRA in Strabane. In addition, he was
questioned about his movements on and around 5 and 6 March 1987 and
about his involvement in causing an explosion at the primary school in
Barrack Street which occurred there at 12.25 hours on 6 March 1987.
In subsequent interviews he was questioned about possession of a rifle
with a certain J.B. in Strabane at the end of February 1987, as well
as his membership of PIRA. The twelfth applicant was asked whether he
knew J.B. or had ever spoken to him. He was also questioned about
whether he supported the aims and objectives of PIRA. Throughout his
interviews, he declined to answer any questions. He was released
without charge on 8 May 1987 at 19.00 hours, within 36 hours of his
arrest.
13. Application No. 13555/88
The thirteenth applicant was arrested at 08.40 hours on 11 May
1987 under section 11 of the 1978 Act and was taken to Castlereagh
Police Office. At the time of his arrest he was told that he was
being arrested under section 11 of the 1978 Act as he was suspected of
being involved in terrorism. According to the Government, he was
arrested because information was received by the RUC from a usually
reliable source which indicated that he had been in a series of petrol
bomb attacks in the Strabane area in the previous 12 months, and was
involved with PIRA. Interviewing began over five and a half hours
later at 14.15 hours on the day of his arrest. At that interview he
was informed that he was being questioned because he was suspected of
being involved in the series of petrol bombings. In subsequent
interviews he was further questioned about specific petrol bombing
incidents in Strabane during February and March 1987. He was asked
why the police would receive information to the effect that he had
been involved in these petrol bombings if it were not true. He denied
any involvement. He was released without being charged at 11.20 hours
on 13 May 1987, within 51 hours of his arrest.
D. The relevant domestic law and practice
Section 11 of the Northern Ireland (Emergency Provisions) Act
1978 conferred, inter alia, a power of arrest which is now repealed.
The relevant parts of section 11 provided as follows:
"1. Any constable may arrest without warrant any person whom
he suspects of being a terrorist ...
3. A person arrested under this section shall not be
detained in right of the arrest for more than 72 hours
after his arrest, and Article 131 of the Magistrates'
Courts (Northern Ireland) Order 1981 and section 50(3)
of the Children and Young Persons Act (Northern Ireland)
1968 (requirement to bring arrested person before a
magistrates' court not later than 48 hours after his
arrest) shall not apply to any such person."
The legislative history and domestic law relating to section
11 is summarised by the Court in paragraphs 18 to 22 of its Fox,
Campbell and Hartley judgment of 30 August 1990. As the Court
observed in paragraph 22 of its judgment, section 11(1) was replaced
by section 6 of the Northern Ireland (Emergency Provisions) Act 1987,
which came into effect on 15 June 1987, subsequent to the facts of all
the present applications. This new provision is confined to
conferring a power of entry and search of premises for the purpose of
arresting persons under section 14 of the Prevention of Terrorism
(Temporary Provisions) Act 1989. This latter provision expressly
limits powers of arrest without a warrant to cases in which there are
"reasonable grounds" for suspicion.
COMPLAINTS
The first seven applicants complain that their arrests were in
breach of Article 5 para. 1 of the Convention. In particular, they
state that their arrests were solely for the purpose of interrogating
them, rather than for the purpose of bringing them before a competent
legal authority, and that their detention was not justified under
Article 5 para. 1 (a), (b), (c) or (d) of the Convention. They
further complain that section 11 permitted arrest and detention solely
on grounds of suspicion, as opposed to the requirement of reasonable
suspicion under Article 5 para. 1 (c) of the Convention. Reliance is
placed on the finding of the Court in the aforementioned Fox, Campbell
and Hartley judgment. The applicants also complain that they were not
informed promptly of the reasons for their arrest as required by
Article 5 para. 2 of the Convention. They allege that since the
provisions of the Convention are not part of the domestic law they
were not able to bring any proceedings to determine the lawfulness of
their arrest and detention and that they were therefore denied an
enforceable right to compensation in breach of Article 5 para. 5. The
applicants claim that the lack of an enforceable right to compensation
constituted a breach of Article 13. As regards domestic remedies, the
applicants accept that the arresting officers had a suspicion that the
applicants were terrorists and that the arrests were executed lawfully
under Northern Ireland law. They point out that there was no
derogation under Article 15 of the Convention in existence at the
material time.
The last six applicants effectively limit their complaint to a
breach of Article 5 para. 1 of the Convention, in particular Article 5
para. 1 (c). They claim that their arrests were not based on any
reasonable suspicion of them having committed offences, the domestic
law only providing for a subjective evaluation by the arresting
officers acting on an honest and genuine suspicion. They also allege
that their arrests were not for the purpose of bringing them before a
competent court but merely for the purpose of interrogating them.
PROCEEDINGS BEFORE THE COMMISSION
The first application was introduced on 27 January 1987 and
registered on 2 February 1987.
The second application was introduced on 6 February 1987 and
registered on 17 February 1987.
The third application was introduced on 13 March 1987 and
registered on 24 March 1987.
The fourth application was introduced on 1 May 1987 and
registered on 5 May 1987.
The fifth application was introduced on 1 June 1987 and
registered on 9 June 1987.
The sixth application was introduced on 2 June 1987 and
registered on 12 June 1987.
The seventh application was introduced on 18 September 1987
and registered on 28 September 1987.
The eighth, ninth and tenth applications were introduced on
14 May 1987 and registered on 28 September 1987.
The eleventh application was introduced on 10 August 1987 and
registered on 19 October 1987.
The twelfth application was introduced on 1 October 1987 and
registered on 26 January 1988.
The thirteenth application was introduced on 25 June 1987 and
registered on 26 January 1988.
After a preliminary examination of the cases by the
Rapporteur, the Commission considered the admissibility of the first,
second and fourth applications on 7 October 1987. The Commission
decided, pursuant to Rule 42 of its Rules of Procedure (former
version), to give notice of the applications to the respondent
Government, but without inviting the parties to submit written
observations at that stage pending the outcome of the case of Fox,
Campbell and Hartley v. the United Kingdom, at that time pending
before the Commission and, subsequently, the Court. In the meantime
the examination of the three applications was adjourned. The
Commission took a similar decision in the other 10 cases on 6 May
1989.
The Court gave its judgment in the above-mentioned case on 30
August 1990 (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30
August 1990, Series A no. 182). On 7 September 1990 the Commission
decided to invite the parties to submit written observations on the
cases in the light of that judgment within similar time limits.
Messrs. John Fahy & Co., on behalf of the last six applicants,
submitted their observations on 7 November 1990. The Government
submitted their observations on 4 January 1991 after an extension of
the time limit. Messrs. Madden & Finucane, on behalf of the first
seven applicants, submitted their observations on 12 February 1991,
after the expiry of the time limit, followed by an extension.
On 10 April 1991 the Commission decided to refer the
applications to the Second Chamber.
THE LAW
1. As regards the applicants' complaints under Article 5
para. 1 (Art. 5-1) of the Convention
The applicants complain that their arrests and detention under
section 11 of the Northern Ireland (Emergency Provisions) Act 1978
were in breach of Article 5 para. 1 (Art. 5-1) of the Convention, in
particular Article 5 para. 1 (c) (Art. 5-1-c).
The applicants' first contention is that they were not
arrested for the purpose of bringing them before a competent legal
authority, but merely for the purpose of interrogating them. Their
second contention concerns the absence of any standard of reasonable
suspicion in the legislation which authorised their detention.
Section 11 of the Northern Ireland (Emergency Provision) Act 1978 did
not require the arresting officer to hold a reasonable suspicion that
the applicants had committed any criminal offences. The absence of
the requirement of reasonableness was, in their submission, given the
Court's judgment in the Fox, Campbell and Hartley case, in breach of
Article 5 para. 1 (Art. 5-1) of the Convention. The Government
contend, inter alia, that, although the legislation did not require
reasonable suspicion on arrest, in each of the present cases the
arresting officers had held reasonable suspicions that the applicants
had committed terrorist offences, even if the Government were unable
to disclose the sources of information upon which part of those
suspicions were based without jeopardising such sources.
The relevant part of Article 5 para. 1 (Art. 5-1) of the Convention
provides 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:
...
(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 ..."
The Commission notes that there is no dispute that the
applicants' arrests and detention were "lawful" under Northern Ireland
law and finds no reason to doubt that the arresting officers had a
suspicion that the applicants had committed, or were involved in,
terrorist offences.
The Commission recalls that it is essential that the arrest
and detention under Article 5 para. 1 (c) (Art. 5-1-c) be based on a
reasonable suspicion that the person concerned has committed or has
been involved in the commission of a criminal offence. This standard
of reasonableness and its absence from section 11 of the 1978 Act was
examined by the Court in the Fox, Campbell and Hartley case:
"32. The 'reasonableness' of the suspicion on which an arrest
must be based forms an essential part of the safeguard against
arbitrary arrest and detention which is laid down in Article
5 para. 1 (c) (Art. 5-1-c). The Court agrees with the
Commission and the Government that having a 'reasonable suspicion'
presupposes the existence of facts or information which would
satisfy an objective observer that the person concerned may have
committed the offence. What may be regarded as 'reasonable'
will however depend upon all the circumstances.
In this respect, terrorist crime falls into a special
category. Because of the attendant risk of loss of life and
human suffering, the police are obliged to act with utmost
urgency in following up all information, including
information from secret sources. Further, the police may
frequently have to arrest a suspected terrorist on the basis
of information which is reliable but which cannot, without
putting in jeopardy the source of the information, be
revealed to the suspect or produced in court to support a
charge.
As the Government pointed out, in view of the difficulties
inherent in the investigation and prosecution of
terrorist-type offences in Northern Ireland, the
'reasonableness' of the suspicion justifying such arrests
cannot always be judged according to the same standards as
are applied in dealing with conventional crime. Nevertheless,
the exigencies of dealing with terrorist crime cannot
justify stretching the notion of 'reasonableness' to the
point where the essence of the safeguard secured by Article
5 para. 1 (c) (Art. 5-1-c) is impaired (see, mutatis
mutandis, the Brogan and Others judgment previously cited,
Series A no. 145-B, pp. 32-33, para. 59).
...
34. Certainly Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention should not be applied in such a manner as to put
disproportionate difficulties in the way of the police
authorities of the Contracting States in taking effective
measures to counter organised terrorism (see, mutatis
mutandis, the Klass and Others judgment of 6 September 1978,
Series A no. 28, pp. 27 and 30-31, paras. 58 and
68). It follows that the Contracting States cannot be asked
to establish the reasonableness of the suspicion grounding
the arrest of a suspected terrorist by disclosing the
confidential sources of supporting information or even facts
which would be susceptible of indicating such sources or
their identity. Nevertheless the Court must be enabled to
ascertain whether the essence of the safeguard afforded by
Article 5 para. 1 (c) (Art. 5-1-c) has been secured.
Consequently the respondent Government have to furnish at
least some facts or information capable of satisfying the
Court that the arrested person was reasonably suspected of
having committed the alleged offence. This is all the more
necessary where, as in the present case, the domestic law
does not require reasonable suspicion, but sets a lower
threshold by merely requiring honest suspicion.
35. The Court accepts that the arrest and detention of each
of the present applicants was based on a bona fide suspicion
that he or she was a terrorist, and that each of them,
including Mr. Hartley, was questioned during his or her
detention about specific terrorist acts of which he or she
was suspected.
The fact that Mr. Fox and Ms. Campbell both have previous
convictions for acts of terrorism connected with the IRA,
although it could reinforce a suspicion linking them to the
commission of terrorist-type offences, cannot form the sole
basis of a suspicion justifying their arrest in 1986, some
seven years later.
The fact that all the applicants, during their detention, were
questioned about specific terrorist acts, does no more than
confirm that the arresting officers had a genuine suspicion
that they had been involved in those acts, but it cannot
satisfy an objective observer that the applicants may have
committed these acts.
The aforementioned elements on their own are insufficient to
support the conclusion that there was 'reasonable suspicion'.
The Government have not provided any further material on which
the suspicion against the applicants was based. Their
explanations therefore do not meet the minimum standard set
by Article 5 para. 1 (c) (Art. 5-1-c) for judging
the reasonableness of a suspicion for the arrest of an individual.
36. The Court accordingly holds that there has been a breach
of Article 5 para. 1. ..."(Art. 5-1)
(Eur. Court H.R., Fox, Campbell and Hartley judgment of
30 August 1990, Series A no. 182, pp. 16-18 paras. 32,
34-36).
In the light of this judgment, the Commission finds that the
present applicants' complaint about the alleged lack of reasonable
suspicion preceding their arrests and detention cannot be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The Commission also finds that the applicants' other complaint
under Article 5 para. 1 (Art. 5-1) about the purpose of their arrests,
allegedly for mere questioning, rather than for the purpose of
bringing them before a competent legal authority, cannot be separated
at this stage from their complaint concerning the reasonableness of
the suspicion against them. There are, therefore, no grounds for
declaring this part of the applications inadmissible.
2. The other complaints of the first seven applicants
a) As regards Article 5 para. 2 (Art. 5-2) of the Convention
The first seven applicants have next complained that they were
not informed promptly of the reasons for their arrests, as required by
Article 5 para. 2 (Art. 5-2) of the Convention. The Government rely on the
findings of the Court in the Fox, Campbell and Hartley case: Whilst
the applicants were told on arrest that they were being arrested under
section 11 of the 1978 Act, thereafter, during their interviews with
the police, it must have become clear to the applicants why they had
been arrested and the reasons why they were suspected of being
terrorists. Article 5 para. 2 (Art. 5-2) of the Convention does not
necessarily require this information to be related in its entirety by
the arresting officer at the very moment of the arrest. The fact that
a few hours elapsed before they were interviewed could not be regarded
as falling outside the constraints of time imposed by the notion of
promptness in Article 5 para. 2 (Art. 5-2) (ibid pp. 19-20, paras.
40-43).
Article 5 para. 2 (Art. 5-2) of the Convention provides as follows:
"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."
The Commission notes that the first seven applicants were only
initially informed that they were being arrested under section 11 of
the 1978 Act. Within a few hours of their arrest, however, they were
intensively interviewed about specific terrorist incidents or their
involvement in terrorist groups. There is no reason to doubt that
from these interviews they could have understood why they were being
arrested. The only issue distinguishing some of the present cases
from that of Fox, Campbell and Hartley is whether the requirement of
promptness was satisfied, given the delays between the initial arrests
and the commencement of the applicants' interviews. Questioning began
in the Fox, Campbell and Hartley case, at the latest, 4 hours and 35
minutes after arrest. In the present cases, apart from the third and
sixth applicants, who were interviewed within less than 4 hours and 35
minutes of arrest, the other five applicants were interviewed later
than this: The first applicant was interviewed 5 hours after arrest,
the second 5 hours and 15 minutes later, the fourth and fifth 5 hours
55 minutes later, and the seventh the day after his arrest, 14 hours
50 minutes later.
However, the Commission finds that where the applicants were
interviewed within six hours of their arrest it cannot be said that
the requirement of promptness in Article 5 para. 2 (Art. 5-2) of the
Convention was not respected. It follows that the complaint of the
first six applicants under Article 5 para. 2 (Art. 5-2) of the
Convention is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
The complaint of the seventh applicant, who was not
interviewed until the following day, cannot be so rejected. Moreover,
no other ground for declaring his complaint under Article 5 para. 2
(Art. 5-2) of the Convention inadmissible has been established.
b) As regards Articles 5 para. 5 and 13 (Art. 5-5, 13) of the
Convention
The first seven applicants also complain that they had no
enforceable right to compensation under domestic law for the alleged
breach of Article 5 para. 1 (Art. 5-1) of the Convention. They invoke
Articles 5 para. 5 and 13 (Art. 5-5, 13) of the Convention which
provide as follows:
Article 5 para. 5 (Art. 5-5-) :
"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."
Article 13 (Art. 13) :
"Everyone whose rights and freedoms as set forth in
this 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."
The Commission recalls that in the Fox, Campbell and Hartley
case the Court found a violation of Article 5 para. 5 (Art. 5-5) of the
Convention in that the applicants had not had a right to compensation
under domestic law in respect of the violation of Article 5 para. 1
(Art. 5-1) of the Convention (ibid. p. 21 para. 46). In the light of
this finding and the similar allegations made by the present
applicants, the Commission finds that the applicants' complaint under
Article 5 para. 5 (Art. 5-5) of the Convention cannot be declared
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention. No other ground for declaring this aspect of
the cases inadmissible has been established.
The Commission also finds that the applicants' complaint
regarding Article 13 (Art. 13) of the Convention raises no separate issue,
Article 5 para. 5 (Art. 5-5) being the lex specialis under the Convention
regarding the right to compensation for alleged breaches of the other
provisions of Article 5 (Art. 5).
For these reasons, the Commission
DECLARES ADMISSIBLE, without prejudging the merits of
the cases,
- by a majority, the applicants' complaints under Article 5
para. 1 (Art. 5-1) of the Convention ;
- by a majority, the first seven applicants' complaints
under Article 5 para. 5 (Art. 5-5) of the Convention ;
- unanimously, the seventh applicant's complaint under
Article 5 para. 2 (Art. 5-2) of the Convention (regarding
promptness of information) ;
DECLARES INADMISSIBLE, unanimously, the remainder of the
applications.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy