AS TO THE ADMISSIBILITY OF
Applications Nos. 14673/89, 14706/89, 14708/89,
14709/89, 14710/89 and 14760/89
by Michael FOX, Michael MULLIN, Kevin MULLIN,
Mark MULLIN, Arthur McNALLY and Peter HUGHES
against the United Kingdom
The European Commission of Human Rights (Second Chamber)
sitting in private on 5 March 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
Mr. F. MARTINEZ RUIZ
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 first application introduced on 31 January 1989 by Michael
FOX against the United Kingdom and registered on 20 February 1989
under file No. 14673/89;
- the second, third and fourth applications introduced on
13 February 1989 by Michael MULLIN, Kevin MULLIN and Mark MULLIN
against the United Kingdom and registered on 28 February 1989 under
file Nos. 14706/89, 14708/89 and 14709/89;
- the fifth application introduced on 16 February 1989 by Arthur
McNALLY against the United Kingdom and registered on 28 February 1989
under file No. 14710/89;
- the sixth application introduced on 22 February 1989 by Peter
HUGHES against the United Kingdom and registered on 8 March 1989 under
file No. 14760/89;
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 first applicant, Michael Fox, is a citizen of the United
Kingdom, born in 1955 and resident in Mountfield, County Tyrone,
Northern Ireland.
The second applicant, Michael Mullin, is a citizen of the
United Kingdom, born in 1959 and resident in Killyclougher, County
Tyrone.
The third applicant, Kevin Mullin, is a citizen of the
United Kingdom, born in 1956 and resident in Sixmilecross, County
Tyrone.
The fourth applicant, Mark Mullin, is a citizen of the
United Kingdom, born in 1965 and resident in Sixmilecross, County
Tyrone.
The fifth applicant, Arthur McNally, is a citizen of the
United Kingdom, born in 1953 and resident in Carrickmore, County
Tyrone.
The sixth applicant, Peter Hughes, is a citizen of the
United Kingdom, born in 1955 and resident in Sixmilecross, County
Tyrone.
The applicants are represented before the Commission by
Messrs. J. Christopher Napier & Co., Solicitors, Belfast.
The facts of the present cases, as submitted by the parties,
may be summarised as follows.
At about 00.30 hrs. on 20 August 1988, as unmarked civilian
buses were travelling along the main road from Ballygawley to Omagh in
County Tyrone, an explosive device of approximately 100 lbs.
(approximately 45 kilos) concealed by the side of the road was
detonated by a command wire which ran for 300 metres to a battery pack
located on a hill overlooking the road. In the explosion, eight
soldiers, travelling in one of the buses from Aldergrove airport,
Belfast, to their base in Omagh, were killed and another 27 in the bus
were injured, some seriously. The Tyrone Brigade of the Provisional
IRA subsequently admitted responsibility for the explosion.
On the basis of the information which became available to the
police after the explosion, the police believed that these six
applicants, who all live in Tyrone close to where the explosion took
place, were all involved in the atrocity. Accordingly, each of them
was arrested under section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1984.
The first applicant
Michael Fox was arrested at his home at 04.03 hrs. on
24 August 1988. He was told that he was being arrested under section
12 of the 1984 Act as he was suspected of being involved in
terrorism. He was taken to Armagh Police Office. On his arrival
there, he was given a copy of the notice to persons in police
custody. His detention was extended for three days until 04.03 hrs.
on 29 August and he was released without charge at 18.40 hrs. on
28 August 1988. He was thus detained for 4 days, 14 hours and
37 minutes.
He saw a solicitor on 26 and 28 August 1988.
At his first interview, which began at 09.30 hrs. on
24 August, he was told that the police were enquiring into the bombing
on 20 August of the bus carrying the soldiers and that the police
believed that he could help them with their enquiries. He was asked
to give an account of his movements for the later part of 19 August
and early part of 20 August. He declined to do so or to give any
information about the incident. At subsequent interviews he was asked
about his movements, about the bombing and about his membership of the
Provisional IRA. At first he declined to answer questions; then
later, on 24 August, he said that the person he was with for most of
the time on 19 August was now out of the country on his honeymoon. He
refused to name him or to give any further details other than that he
had attended the wedding on the morning of 20 August at Lifford. The
next day he offered an account of his movements. He stated, inter
alia, that from about 22.00 hrs. on 19 August until about 03.00 hrs.
on 20 August he had been drinking in a pub in Greencastle on his own,
except for a time when he had been drinking with his brother-in-law,
with whom he left the pub at about 02.00 hrs. He returned there and
stayed until 03.00 hrs. when he went home. Later he indicated that
others had been present. He refused throughout to identify any other
person to whom he had spoken, or who had seen him, at the pub. He
later denied involvement in the incident or membership of the
Provisional IRA.
The second applicant
Michael Mullin was arrested at his home at 04.05 hrs. on
24 August 1988. He was told that he was being arrested under section
12 of the 1984 Act as he was suspected of being involved in
terrorism. He was taken to Armagh Police Office. On his arrival
there, he was given a copy of the notice to persons in police
custody. His detention was extended for three days until 04.05 hrs.
on 29 August and he was released without charge at 18.30 hrs. on
28 August 1988. He was thus detained for 4 days, 14 hours and
25 minutes.
He saw a solicitor on 25 and 27 August 1988.
At his first interview, which began at 09.50 hrs. on
24 August, he was told that the police were enquiring into the bus
atrocity on 20 August. He was asked about the incident and his
membership of the Provisional IRA. At the second interview that
morning, which began at 11.30 hrs., he was told that he was suspected
of being involved in the atrocity and he was asked to account for his
movements. He made no reply but stared at a fixed point. He refused
to answer questions but stared at the floor, wall or ceilings or, on
occasions, turned his back to the police officers conducting the
interview or sat biting his fingernails. However, at an interview on
the evening of 27 August he said that he had an alibi for the time of
the bomb incident but would not give details of it. Thereafter at
subsequent interviews he reverted to being silent in answer to any
questions about his movements at that time, about the bomb or other
terrorist incidents in the area and about his membership of the
Provisional IRA. He declined to sign any interview notes.
The third applicant
Kevin Mullin was arrested at his home at approximately
04.02 hrs. on 24 August 1988. He was told that he was being arrested
under section 12 of the 1984 Act because he was suspected of
involvement in terrorism. He was taken to Armagh Police Office. On
his arrival there, he was given a copy of the notice to persons in
police custody. His detention was extended for three days until
04.02 hrs. on 29 August 1988 and he was released without charge at
18.30 hrs. on 28 August. He was thus detained for 4 days, 14 hours
and 28 minutes.
He saw a solicitor on 26 and 28 August 1988.
At the outset of his first interview, which began at 09.50
hrs. on the morning of his arrest, he was told that the police were
enquiring into the bomb explosion on 20 August and he was asked to
account for his movements on 19 August. He refused to answer any
questions. At subsequent interviews he was asked about his movements
then and about his involvement in the bomb explosion and about his
membership of the Provisional IRA. He remained silent throughout and
refused to sign the interview notes.
The fourth applicant
Mark Mullin was arrested at his home at 04.07 hrs. on
24 August 1988. On his arrest he was told that he was being arrested
under section 12 of the 1984 Act as he was suspected of involvement in
terrorism. He was taken to Armagh Police Office. On his arrival
there, he was given a copy of the notice to persons in police custody.
His detention was extended by three days until 04.07 hrs. on 29 August
1988 and he was released without charge at 18.35 hrs. on 28 August.
He was thus detained for 4 days, 14 hours and 28 minutes.
He was seen by a solicitor on 26 and 28 August 1988.
At the outset of his first interview, which began at
09.45 hrs. on the morning of his arrest, he was told that the police
were making inquiries into the bombing of the bus and murder of eight
soldiers on 20 August and he was asked what his movements had been on
the evening of 19 August. He was asked about his involvement in the
bombing. He remained silent and sat with his eyes closed. At
subsequent interviews he was further asked about his movements and his
involvement in the bombing. He said nothing but sat with his eyes
closed or staring at the floor, ceiling or interview table. He
declined to sign any interview notes.
The fifth applicant
Arthur McNally (who was convicted in 1976 of conspiracy to
cause explosions, possession of explosives (2 counts) and of firearms
(2 counts)) was arrested at his home at 04.10 hrs. on 24 August 1988.
He was told that he was being arrested under section 12 of the 1984
Act as he was suspected of being involved in terrorism. He was taken
to Armagh Police Office. On his arrival there, he was given a copy of
the notice to persons in police custody. His detention was extended
by three days until 04.00 hrs. on 29 August and he was released
without charge at 18.40 hrs. on 28 August 1988. He was thus detained
for 4 days, 14 hours and 30 minutes.
He saw a solicitor on 26 and 28 August 1988.
At the outset of his first interview, which began at
09.44 hrs. on the morning of his arrest, he was told that the police
were making inquiries into the bomb explosion on 20 August and he was
asked to account for his movements on 19 and 20 August. He gave no
reply. This line of questioning was repeated at subsequent interviews
and he was asked about his involvement in the bombing and also about
his association with a certain Michael Harte, his membership of the
Provisional IRA and his participation in Provisional IRA activities.
He remained silent throughout for the most part, staring at the floor
or interview table or otherwise avoiding eye contact with those
interviewing him, though on occasions blushing as matters were put to
him. At one point, on the evening of 27 August, he shook his head as
if to deny involvement in the bombing of the soldiers' bus, but he
made no indication when immediately thereafter he was asked if he
wished to provide an alibi. He declined to sign the interview notes.
The sixth applicant
Peter Hughes was arrested at his home at 04.14 hrs. on
24 August 1988. He was told that he was being arrested under section
12 of the 1984 Act as he was suspected of being involved in terrorism.
He was taken to Armagh Police Office. On his arrival there, he was
given a copy of the notice to persons in police custody. His
detention was extended by three days until 04.14 hrs. on 29 August and
he was released without charge at 18.40 hrs. on 28 August 1988. He
was thus detained for 4 days, 14 hours and 26 minutes.
He saw a solicitor on 26 August 1988.
At the outset of his first interview, which began at
09.30 hrs. on the morning of his arrest, he was told that the police
were enquiring into his suspected involvement in the murder of the
eight soldiers in the explosion on 20 August. He was asked to account
for his movements on that day and to tell the police the part he
played in the murders. He made no reply. At later interviews he was
again asked to account for his movements, about the bomb explosion and
about his membership of the Provisional IRA, but he remained silent
and refused to answer any of the questions. On occasions he lay or
sat on the floor, sometimes for the entire duration of the interview,
and refused to sit on a chair. For most of the time during interviews
he sat with his head in his hands, sometimes staring at a radiator,
sometimes with his back to the interviewing police officers. He
declined to sign the interview notes.
COMPLAINTS
The applicants allege that they were detained in breach of
Article 5 para. 3 of the Convention, in that they were not brought
promptly before a judge in order to be charged, or released promptly
enough without charge. They complain that they had no right to
compensation for this alleged breach of Article 5 para. 3, pursuant to
Article 5 para. 5 of the Convention.
The applicants originally complained of a violation of Article
5 para. 2 of the Convention. After the European Court of Human Rights
had given its judgment in the Fox, Campbell and Hartley case, they
conceded that in that case the Court had made a finding of no
violation in circumstances very similar to their own in relation to
Article 5 para. 2 (cf. Eur. Court H.R., Fox, Campbell and Hartley
judgment of 30 August 1990, Series A no. 182, paras. 37-43).
PROCEEDINGS BEFORE THE COMMISSION
The first application was introduced on 31 January 1989 and
registered on 20 February 1989.
The second, third and fourth applications were introduced on
13 February 1989 and registered on 28 February 1989.
The fifth application was introduced on 16 February 1989 and
registered on 28 February 1989.
The sixth application was introduced on 22 February 1989 and
registered on 8 March 1989.
After a preliminary examination of the cases by the
Rapporteur, the Commission considered the admissibility of the
applications on 6 May 1989. The Commission decided to request the
parties' written observations on the admissibility and merits of the
applications, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure (former version). They were joined with 10 other
applications of a similar kind.
The Government lodged their observations on 21 September 1989
after an extension of the time-limit fixed for their submission. The
applicants' representatives submitted observations in reply on
18 October 1989.
On 6 February 1990 the Commission decided to adjourn its
examination of the applications pending the judgment of the Court in
the case of Fox, Campbell and Hartley v. the United Kingdom, in view
of an original complaint made by the applicants under Article 5
para. 2 of the Convention. The Court delivered its judgment in this
case on 30 August 1990.
On 7 September 1990 the Commission decided to invite the
parties to submit any comments they might have on the significance of
this judgment for the admissibility of the applications. The
applicants' representatives submitted their comments on 5 October
1990. The Government lodged their comments on 23 November 1990 after
an extension of the time limit fixed for their submission.
In their various observations the applicants withdrew certain
original complaints they had made under Article 5 paras. 1 (c) and 4
and Article 13 of the Convention. As regards Article 5 para. 2, the
applicants conceded that the European Court's finding in the Fox,
Campbell and Hartley case was made in circumstances very similar to
their own (see above under COMPLAINTS).
On 26 February 1991 the Commission decided to refer the cases
to the Second Chamber.
THE LAW
1. The applicants complain that their arrest and detention under
section 12 of the Prevention of Terrorism (Temporary Provisions) Act
1984 from 24 to 28 August 1988 failed to observe the requirement of
promptness laid down in Article 5 para. 3 (Art. 5-3) of the
Convention, for which failure they had no enforceable right to
compensation, contrary to Article 5 para. 5 (Art. 5-5) of the
Convention.
Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention
provides as follows:
"3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (Art. 5-1-c)
shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees
to appear for trial."
"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."
The Government submit that the precise basis for the
applicants' claim under Article 5 para. 3 (Art. 5-3) of the
Convention is unclear and that no issue arises in these cases under
Article 5 para. 5. (Art. 5-5) Accordingly their claims should be
rejected as being manifestly ill-founded. The applicants, in reply,
rely on the judgment of the Court in the case of Brogan and Others
(Eur. Court H.R., judgment of 29 November 1988, Series A no. 145-B)
in support of their claims under Article 5 paras. 3 and 5 (Art. 5-3,
5-5) of the Convention.
The Commission recalls that in the Brogan and Others case the
Commission and the Court found a violation of Article 5 para. 3
(Art. 5-3) of the Convention in respect of the detention of four
applicants under section 12 of the Prevention of Terrorism (Temporary
Provisions) Act 1984, for periods varying from 4 days 6 hours to 6
days 16 1/2 hours, without being brought before a judicial authority.
In the same case, the Commission and the Court also 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 in respect of the
violation of Article 5 para. 3 (Art. 5-3).
The Commission notes that the applicants were all detained for
4 days 14 hours and between 25 and 37 minutes under the same
provisions as in the Brogan and Others case, without being brought
before a judge or other officer authorised by law to exercise judicial
power. The Commission finds, therefore, that the applicants'
complaints under Article 5 paras. 3 and 5 (Art. 5-3, 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 the cases inadmissible has been established.
2. After having first complained of a violation of Article 5
para. 2 (Art. 5-2) of the Convention, the applicants subsequently
conceded that in the Fox, Campbell and Hartley case the European Court
of Human Rights had made a finding of no violation of that provision
in circumstances very similar to their own (cf. Eur. Court H.R.,
Fox, Campbell and Hartley judgment of 30 August 1990, Series A no.
182, paras. 37-43). The Commission interprets this statement as a
withdrawal of their complaint in this regard and therefore makes no
finding in respect of Article 5 para. 2 (Art. 5-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATIONS ADMISSIBLE
without prejudging the merits of the cases.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy