AS TO THE ADMISSIBILITY OF
Application No. 14671/89
by Martin Desmond McCONNELL
against the United Kingdom
The European Commission of Human Rights sitting in private on
11 October 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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;
Having regard to the application introduced on 2 February 1989
by Martin Desmond McCONNELL against the United Kingdom and registered
on 20 February 1989 under file No. 14671/89;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the Commission's decision of 5 September 1989 to
bring the application to the notice of the respondent
Government and invite them to submit written
observations on its admissibility and merits;
- the observations submitted by the respondent
Government on 16 February 1990 and the observations
in reply submitted by the applicant on 15 May 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in
1963. He is an unemployed trainee accountant and resides, at present,
in County Tyrone, Northern Ireland.
He is represented in the proceedings before the Commission by
Mr. J. Christopher Napier, solicitor, Belfast.
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant was arrested at his home in Cookstown on
31 October 1988 at 07.06 hours. He was taken to Gough Barracks,
Armagh, where he was detained. He was interviewed six times by police
officers on 31 October 1988 about a number of specific crimes,
including involvement in the transport of a bomb in July 1988. He was
also interviewed on 1, 2, and 3 November. He was released from
custody at 19.30 hours on 3 November 1988. He was thus detained for
3 days, 12 hours and 24 minutes.
He was informed at the time of his arrest that he was being
arrested under Section 12 (1)(b) of the Prevention of Terrorism
(Temporary Provisions) Act 1984.
Section 12 of the 1984 Act provides, inter alia, as follows:
"12 (1) [A] constable may arrest without warrant a person
whom he has reasonable grounds for suspecting to be
...
(b) a person who is or has been concerned in the
commission, preparation or instigation of acts of
terrorism to which this Part of this Act applies;
...
(3) The acts of terrorism to which this Part of this
Act applies are
(a) acts of terrorism connected with the affairs
of Northern Ireland;
...
(4) A person arrested under this section shall not be
detained in right of the arrest for more than
forty-eight hours after his arrest; but the
Secretary of State may, in any particular case,
extend the period of forty-eight hours by a period
or periods specified by him.
(5) Any such further period or periods shall not exceed
five days in all.
(6) The following provisions (requirement to bring
accused person before the court after his arrest)
shall not apply to a person detained in right of
the arrest."
During his detention, the applicant was seen by a medical
practitioner on seven occasions. The applicant was visited by his
solicitor on two occasions: on 31 October 1988 from 14.21 hours to
14.35 hours and on 1 November from 19.38 to 20.10 hours.
On 17 January 1989, pursuant to Section 12 (1)(b) of the 1984
Act, the applicant was again arrested at his home at 07.00 hours and
brought to Gough Barracks where he was interviewed by officers who had
interviewed him during the previous period of detention. He had six
interviews about specific crimes on 17 January, followed by six
interviews on 18 January, and a further six on 19 January. At his
first interview, which commenced at 11.21 hours on 17 January, he was
informed that the police were enquiring into the attempted murder of a
woman police constable on 5 December 1988 at Cookstown, and that the
police were aware that he had an input into the bombing. He was
released on 20 January at 21.00 hours after five interviews. He was
thus detained for 3 days and 14 hours.
Although initial access to a solicitor was delayed because it
was believed that such a visit would lead to interference with the
investigation, the applicant was subsequently visited by his solicitor
on 19 January 1989 from 13.50 hours to 14.10 hours and again on 20
January 1989 from 15.46 hours to 16.30 hours.
COMPLAINTS
The applicant complains that his arrest under Section 12 of
the Act constituted a violation of Article 5 paras. 2, 3 and 5 of the
Convention.
The applicant submits that the Notice of Derogation lodged
with the Secretary General of the Council of Europe on 23 December 1988
was unjustified since no war or public emergency threatened the life
of the nation. In addition, the derogation is in excess of what is
strictly required by the exigencies of the situation and an abuse of
the margin of appreciation allowed to States under the Convention.
Finally, he states that the Government has invoked the derogation in
order to win time and thus delay the date of reforming the domestic
legislation as required by the judgment of the European Court of Human
Rights in the case of Brogan and Others (judgment of 29 November 1988,
Series A no. 145-b).
The applicant had originally also invoked Article 5 para. 1 of
the Convention. However, he, in effect, withdrew his complaints under
this provision in his observations on admissibility and merits.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 February 1989 and
registered on 20 February 1989. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application on 5 September 1989. It decided to give notice of the
application to the respondent Government and to invite the parties to
submit their written observations on admissibility and merits,
particularly regarding the applicant's challenge to the validity of
the derogation under Article 15 of the Convention.
The Government submitted their observations on 16 February 1990
after an extension of the time limit. The applicant replied on
15 May 1990 also after an extension of the time limit. In his
observations he, in effect, withdrew his complaints under Article 5 para.
1 of the Convention.
THE LAW
1. The applicant has complained that his arrest and detention in
October-November 1988 and January 1989 were in breach of Article 5
paras. 2, 3 and 5 (Art. 5-2, 5-3, 5-5) of the Convention the relevant
parts of which provide as follows:
"2. 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.
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1(c) (Art. 5-1-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 (Art. 5)
shall have an enforceable right to compensation."
2. The Government submitted that the applicant's complaint under
Article 5 para. 2 (Art. 5-2) of the Convention was inadmissible either for
non-exhaustion of domestic remedies, or as being unclear and
unsubstantiated and, therefore, manifestly ill-founded. The applicant
contends that his arrest was under the same conditions as in case of
Fox, Campbell and Hartley against the United Kingdom, and the
information lacking contrary to Article 5 para. 2 (Art. 5-2) of the
Convention.
However, the Commission refers to the judgment of the European
Court of Human Rights in the Fox, Campbell and Hartley case in which
it held that there was no ground to suppose that during the police
questioning of those applicants they were unable to understand why
they had been arrested. The reasons why they were suspected of being
terrorists were thereby brought to their attention during their
interrogation and, accordingly, they had not suffered a breach of
Article 5 para. 2 (Art. 5-2) of the Convention (Eur. Court H.R., Fox,
Campbell and Hartley judgment of 30 August 1990, Series A no. 182,
paras. 40-43).
The Commission finds no reason in the present application to
distinguish it from the Fox, Campbell and Hartley case. It also finds
no evidence in the case-file to suggest that during the questioning of
the applicant he was not made aware of the reasons for his arrest on
suspicion of being concerned in the commission, preparation or
instigation of specific acts of terrorism. It follows, assuming that
the applicant may be said to have complied with Article 26 (Art. 26) of
the Convention, that this aspect of the case is manifestly ill-founded,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant's principal complaint was that his detention for
3 days, 12 hours and 24 minutes as of 31 October 1988, and again for 3
days and 14 hours as of 17 January 1989, was in breach of Article 5
para. 3 (Art. 5-3) of the Convention because, in his submission, he
was not brought promptly before a judge. The Government contended
that, according to the constant case-law of the Commission and Court,
no violation of Article 5 para. 3 (Art. 5-3) of the Convention can
arise if the arrested person is released promptly before any judicial
control of the detention would have been feasible (Eur. Court H.R.,
Brogan and Others judgment of 29 November 1988, Series A no. 145-B,
p. 32 para. 58). The applicant's release within four days on each
occasion was sufficiently prompt to satisfy the requirement of Article
5 para. 3 (Art. 5-3) of the Convention. Furthermore, as regards the
second period of detention in this case, the Government considered
that it was anyway met by their notice of derogation given to the
Secretary General of the Council of Europe on 23 December 1988 under
Article 15 (Art. 15) of the Convention. Therefore, even if the second
period of detention did not conform with the requirements of Article 5
para. 3 (Art. 5-3) of the Convention, this provision was not breached
by virtue of that derogation.
According to the constant case-law of the Commission, the
requirement of promptness in Article 5 para. 3 (Art. 5-3) of the
Convention means that arrested persons must be brought before a judge
without undue delay, the guarantees of Article 5 para. 3 (Art. 5-3),
together with Article 5 para. 1 (c) (Art. 5-1-c), providing essential
safeguards against arbitrary deprivation of liberty and prolonged
police or administrative detention (No. 2894/66, Dec. 6.10.66,
Yearbook 9 p. 564, Nos. 11209/84, 11234/84, 11266/84 and 11386/85,
Brogan, Coyle, McFadden and Tracey v. the United Kingdom, Comm.
Report 14.5.87, paras. 101-108).
The question whether or not the requirement of promptness in
Article 5 para. 3 (Art. 5-3) has been satisfied must be assessed in
each case according to its special features, the maximum time limit
for such detention, even in the most exceptional circumstances, being
no more than four days. In the light of these considerations and the
particular facts of the present case, the Commission concludes that,
regardless of the United Kingdom's derogation under Article 15
(Art. 15) of the Convention as of 23 December 1988, neither period of
detention experienced by the applicant discloses any appearance of a
breach of Article 5 para. 3 (Art. 5-3) of the Convention. Accordingly
this part of the application is also manifestly ill-founded, within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Finally, the applicant complained that he had no enforceable
right to compensation in domestic law for the breaches of Article 5
(Art. 5) of the Convention which he had alleged. The Government
submitted, in reply, that as no breach of Article 5 (Art. 5) of the
Convention was disclosed in this case, the applicant had no right to
compensation.
The Commission refers to its conclusions above that the
applicant's complaints under Article 5 paras. 2 and 3 (Art. 5-2, 5-3)
of the Convention did not disclose any appearance of a violation
of these provisions. In these circumstances the applicant is not
entitled to compensation pursuant to Article 5 para. 5 (Art. 5-5) of
the Convention. Accordingly this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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