The European Commission of Human Rights sitting in private on
12 July 1986, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 2 May 1985 by W. H.
against the United Kingdom and registered on 7 May 1985 under file
N° 11539/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mr. William T. Harkin, born in 1961, is a citizen of
the United Kingdom, at present residing in Belfast. He is unemployed.
He is represented, in proceedings before the Commission, by
Mr. J. C. Napier, solicitor, Belfast.
On 22 April 1985 the applicant and four others were arrested at
Cairnryan Harbour, Scotland, as he was about to board a ship to return
to Northern Ireland. He states that he was returning from a
conference which had been held at Glasgow University on
19-21 April 1985 on the use of asbestos in public authority housing.
The applicant was told he was being detained under the Prevention of
Terrorism (Temporary Provisions) Act 1984 and the Prevention of
Terrorism (Supplemental Temporary Provisions) Order 1984.
Article 4(1) of the Order provides that
"an examining officer may examine any persons who have arrived in or
are seeking to leave Great Britain by ship or aircraft for the purpose
of determining
- a. whether any such person appears to be a person who is or
has been concerned in the commission, preparation or instigation of
acts of terrorism to which this Article applies;
..."
Article 4(2) provides that
"the period of a person's examination under paragraph 1 shall not
exceed twelve hours but, if an examining officer has reasonable
grounds for suspecting that the person examined is or has been
concerned in the commission, preparation or instigation of acts of
terrorism to which this Article applies, he may require him, in
writing, to submit to further examination."
Article 5(1) states "that it shall be the duty of any person examined
under Article 4 to furnish to the person carrying out the examination
all such information in his possession as that person may require for
the purpose of his functions under that Article."
Article 9(1) concerns the detention of persons liable to examination
and states as follows:
"A person who is examined under Article 4 may be detained, under the
authority of an examining officer, pending the conclusion of his
examination or pending consideration of the question whether to make
an exclusion order against him for a period not exceeding 48 hours
beginning with the time when he is first examined."
The applicant was served with a notice in the course of 22 April 1985
informing him that he was required to submit to further examination
pursuant to Article 4(2) and that he was to be detained for this
purpose under Article 9(1) of the Order.
He was detained at Stranraer Police Station from midday on 22 April
until his release at 6.15 p.m. on 23 April. His fingerprints and
photograph were taken and he was confined to a cell. He had one
interview, lasting three quarters of an hour with a single police
officer who discussed his family and friends and the purpose of his
visit. This took place in the evening of 22 April 1985. He states
that although his subsequent detention was not subject to any further
interviews or questions, he was not released until 6.15 p.m. on the
following day.
He states that he was not informed by the police officer of any
criminal offence he was alleged to have committed or given any other
reason for his arrest and detention. He was not brought before a
judge or other officer authorised by law to exercise judicial power or
given any opportunity for release on bail.
COMPLAINTS AND SUBMISSIONS
The applicant complains that his arrest and detention constitute a
breach of Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2,
art. 5-4, art. 5-5) and Article 13 of the Convention (Art. 13). He
states that he was arrested solely for the purpose of detaining and
harassing him.
The applicant submits that there are significant differences between
his case and that of McVeigh and Others (Comm. Report 18.3.81,
D.R. 25 pp. 15-59). In the McVeigh case the applicants were resident
in Britain and were returning to a place outside the United Kingdom.
In the present case the applicant was travelling internally within the
United Kingdom and had been admitted to mainland Britain from Northern
Ireland a few days prior to his detention without any arrest or
detention under the 1984 Order for examination. He submits that in
such circumstances the obligation to "submit to further examination"
is not reasonable. It is submitted that the Commission's reasoning in
this case does not apply since the detention of the applicant was
arbitrary or effected for an improper purpose or in excess of what was
reasonable for the carrying into effect of the objects of the 1984
Act.
THE LAW
1. The applicant complains of his arrest and detention under
Articles 4 and 9 of the Prevention of Terrorism (Supplemental
Temporary Provisions) Order 1984. He was detained for approximately
31 hours between 22 and 23 April 1985. He alleges a breach of
Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2, art. 5-4,
art. 5-5) as well as of Article 13 of the Convention (Art. 13).
As regards Article 5 para. 1 (Art. 5-1)
2. The relevant parts of the provision 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;
3. The Commission notes that the applicant was detained for
examination as to whether he was a person concerned in the commission,
preparation or instigation of acts of terrorism. He was required to
submit to further examination pursuant to Article 4(2) and detained
under Article 9(1) of the Order.
4. The Commission recalls that it considered, in detail, the same
issue in the case of McVeigh and Others v. the United Kingdom
concerning similar legal powers contained in the Prevention of
Terrorism (Supplemental Temporary Provisions) Order 1976. It found,
in that case, that the applicants' detention for 45 hours under these
powers was justified under Article 5 para. 1 (b) (Art. 5-1-b).
The Commission refers to its detailed examination of this issue in
that case (see Comm. Report 18.3.81, D.R. 25 paras. 168-196).
5. The Commission considered whether the obligation to submit to
examination was sufficiently "concrete and specific" to be capable of
falling within the scope of Article 5 para. 1 (b) (Art. 5-1-b), and if
so whether there were circumstances sufficient to warrant the
applicants' detention in order to secure its fulfilment (ibid.,
para. 182).
The Commission found as follows:
"186. The obligation to submit to examination does not amount to a
general obligation to submit to questioning or interrogation on any
occasion, or for any purpose. In this respect it can be contrasted
with the power of arrest for interrogation under Regulation 10 of the
Special Powers Regulations considered in the Irish inter-State Case
... It is in essence an obligation to submit to a security check (if
so required) on entering or leaving Great Britain. The purpose of the
check is limited to determining the matters set out in Article 5 of
the 1976 Order. The scope of the obligation is furthermore
effectively limited by the limitation set on the duration of detention
permitted under Article 10 of the 1976 Order.
...
188. In all the circumstances, the Commission considers that the
obligation imposed on the present applicants to submit to examination
was a specific and concrete obligation and that the United Kingdom
authorities were therefore in principle entitled under Article 5 (1)
(b) (Art. 5-1-b) to resort to detention to secure its fulfilment. In
reaching this conclusion the Commission has particularly taken into
account the fact that the obligation in question arises only in
limited circumstances, namely in the context of passage over a clear
geographical or political boundary. Furthermore the purpose of the
examination is limited and directed towards an end of evident public
importance in the context of a serious and continuing threat from
organised terrorism."
6. The Commission further found that the applicant's detention
was necessary to carry out the examination. It stated:
"192. The Commission has already noted that the obligation imposed on
the applicants in the present case was, in essence, an obligation to
submit to a security check on entering Great Britain, the scope of the
check being limited (broadly speaking) to the prevention of terrorism.
The importance in present day conditions of controlling the
international movement of terrorists has been widely recognised in
Western Europe, in particular by the Parliamentary Assembly of the
Council of Europe ... In the particular context of the United Kingdom
there is also evident importance in controlling and detecting the
movement of terrorists not only between the United Kingdom and the
Republic of Ireland but also between Great Britain and Ireland as a
whole, including Northern Ireland. The necessary checks must
obviously be carried out as the person concerned enters or leaves the
territory in question and there is a legitimate need to obtain
immediate fulfilment of the obligation to submit to such checks.
193. The Commission further notes that, from the information before
it, it appears that the powers of examination are, so far as
reasonably practicable, exercised without resort to detention, the
majority of persons examined being subjected only to a relatively
short examination at the port of entry or departure. It is true that
where the authorities consider a prolonged examination to be
necessary, detention is apparently used invariably. There is no
provision for release on bail pending examination, in contrast to the
position under the normal immigration legislation in the United
Kingdom ... However, release on bail scarcely seems compatible with
the effective operation of the limited security check at issue in the
present case.
194. It takes into account furthermore the practice whereby an
examining officer does not exercise the powers of arrest and detention
unless he is left in some suspicion as to the matters specified in
Article 5 (1) (a) - (c) of the Order. In the context of such a
security check it is obvious that a person engaged in terrorist
activity is unlikely openly to refuse to reply to questions or
otherwise fail to comply with the obligations incumbent on him.
However he may well give false or incomplete information. Accordingly
in order effectively to secure the fulfilment of the obligation in
question it may therefore be necessary to resort to detention even
where it cannot be said with certainty that there has already been any
culpable failure on the part of the detainee to fulfil the obligations
incumbent on him."
7. In the present case the Commission notes that, unlike the
applicants in the McVeigh case, the present applicant was not detained
coming into Great Britain but as he was preparing to return to
Northern Ireland after a visit to Scotland. However, the Commission
does not attach any particular importance to this fact since a
security check on leaving the mainland following a visit is clearly
provided for in the legislation and fulfils an equally evident
security requirement. In itself, it does not support the applicant's
allegation that his detention was arbitrary or effected for an
improper purpose.
8. The Commission observes that, unlike the 1976 Order examined
in the McVeigh case, Article 4(2) of the 1984 Order requires
"reasonable grounds for suspecting" terrorist involvement to justify
detention for longer than twelve hours. However, it is clear from the
scheme of the 1984 Order that the purpose of detention is that of
carrying out an examination of the person entering or leaving Great
Britain with a view to determining whether or not he is involved in
terrorist activities.
9. The Commission, therefore, sees no reason why it should not
follow its previous opinion in the case of McVeigh and Others which,
in this respect, apart from the added safeguard of reasonable
suspicion referred to above, is indistinguishable from the present
case. It therefore concludes that the applicant's arrest and
detention under the 1984 Order were justified under Article 5 para. 1
(b) (Art. 5-1-b) in order to secure the fulfilment of an obligation
prescribed by law.
As regards Article 5 para. 2 (Art. 5-2)
10. The applicant complains under Article 5 para. 2 (Art. 5-2)
that he was given insufficient reasons for his detention.
11. Article 5 para. 2 of the Convention (Art. 5-2) states 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."
12. The Commission also examined this issue in the case of McVeigh
and Others. It rejected the applicants' complaint in the following
terms:
"209. There is no dispute in the present case that the applicants
were sufficiently informed of the legal basis for their detention. The
sole question is whether they should have been informed of the grounds
for suspicion against them. The Commission has already observed in
its decision on admissibility that such information does not appear
relevant to the lawfulness of their detention in domestic law, since
the existence of "suspicion" is not a prerequisite for a lawful arrest
under the 1976 Order. Equally the existence of "suspicion" is not a
substantive requirement of Article 5 (1)(b) of the Convention
(Art. 5-1-b). Only Article 5 (1)(c) (Art. 5-1-c) requires it and in
the Commission's opinion the applicants' detention was not covered by
that provision.
210. In the present case the applicants were informed of the nature
of the obligation incumbent on them. In the written notifications
served on them they were expressly to submit to "further examination".
Furthermore, as a matter of substance, the Commission considers that
the information given them was quite sufficient in the circumstances
to make it clear that this consisted of a form of security check to
establish whether they were involved in terrorism.
211. The applicants were, in the Commission's opinion, thus
sufficiently informed of the legal basis for the detention in domestic
law and of the substantive reasons for their detention under Article 5
(1)(b) of the Convention (Art. 5-1-b). They were given the essential
facts relevant to their detention under both domestic law and the
Convention. That is sufficient for the purposes of Article 5 (2)
(Art. 5-2)."
13. The applicant in the present case was informed in writing that
there was reasonable ground for suspecting that he was "concerned in
the commission, preparation or instigation of acts of terrorism". As
explained above (para. 8) the 1984 Order, unlike the 1976 Order,
requires reasonable suspicion for detention exceeding twelve hours.
However the Commission has found, in the particular circumstances of
the case, that the detention was justified under Article 5 para. 1 (b)
(Art. 5-1-b) as detention in order to fulfil the obligation to submit
to a security check. As in the McVeigh case, it considers that the
information provided to the applicant was sufficient to make him aware
of the purpose and reasons for his detention in satisfaction of the
obligation under Article 5 para. 2 (Art. 5-2).
As regards Article 5 para. 4 (Art. 5-4)
14. The applicant further complains that he was unable to
challenge the lawfulness of his detention before a court, contrary to
Article 5 para. 4 (Art. 5-4).
15. This provision reads as follows:
"Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful."
16. The Commission notes from its opinion in the case of McVeigh
and Others that it found the remedy of habeas corpus to be open
to the applicants.
As regards the scope of review it stated as follows:
"The Commission finds no reason to suppose that the review of
lawfulness available in habeas corpus proceedings would as a matter of
principle have been insufficient in the context of the present case,
which, as the Commission has found, concerns detention falling within
the scope of Article 5 (1)(b) of the Convention (Art. 5-1-b). In
particular, it finds no reason to doubt that the courts could have
examined whether the applicants had been lawfully required to submit
to examination and, as a matter of substance, whether they were
detained for the purpose of securing fulfilment of that obligation,
that being the substantive justification for the detention under
Article 5 (1)(b) (Art. 5-1-b) ..." (loc. cit., para. 217)
17. In the present case the Commission also considers that it
would have been open to the applicant to challenge the lawfulness of
his detention by way of habeas corpus. The Commission has not been
informed of any legal developments which would have impeded the courts
from examining the lawful basis of his detention under Article 4 (1)
and (2) of the 1984 Order. Nor has it been alleged, as in the McVeigh
case, that he was prevented from seeking this remedy. Accordingly the
Commission sees no reason why it should not follow its previous
finding in this respect.
As regards Article 5 para. 5 (Art. 5-5)
18. The applicant also complains that he has been denied an
enforceable right to compensation contrary to this provision.
19. Article 5 para. 5 (Art. 5-5) states as follows:
Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article (Art. 5)
shall have an enforceable right to compensation.
20. The Commission, however, has found no violation in respect of
the applicant's complaints under Article 5 paras. 1, 2 and 4
(Art. 5-1, art. 5-2, art. 5-4). It follows that Article 5 para. 5
(Art. 5-5) confers no right to compensation since the applicant has
not "been the victim of arrest and detention in contravention of the
provisions of this Article ..." (see also McVeigh and Others, loc.
cit., para. 220).
As regards Article 13 (Art. 13)
21. Finally, the applicant complains that he has no effective
remedy under British law in respect of the above complaints.
22. Article 13 (Art. 13) states as follows:
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.
23. The Commission recalls that it has already found that it was
open to the applicant to challenge the lawfulness of his detention
before a court as required by Article 5 para. 4 (Art. 5-4). The
Commission considers that this provision constitutes the lex specialis
in this area and that no separate issue under Article 13 (Art. 13)
arises in the present case (see No. 7341/76, Dec. 11.12.76, D.R. 6
p. 180).
Conclusion
The Commission concludes that the application must be rejected as
manifestly ill-founded as a whole within the meaning of Article 27
para. 2 of the Convention (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)