AS TO THE ADMISSIBILITY OF
Application No. 14550/89
by Sean McELDOWNEY and Kathleen McELDOWNEY
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 application introduced on 13 January
1989 by Sean McELDOWNEY and Kathleen McELDOWNEY against the United
Kingdom and registered on 18 January 1989 under file No. 14550/89;
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, Sean McEldowney, is a citizen of the
United Kingdom, born in 1956 and resident in Swatragh, Derry, Northern
Ireland. He is a joiner by profession.
The second applicant, Kathleen McEldowney, is his wife, a
citizen of the United Kingdom, born in 1960.
They are represented before the Commission by Messrs. J.
Christopher Napier & Co., Solicitors, Belfast.
The facts of the present case, as submitted by the parties,
may be summarised as follows.
On 24 August 1988 two police officers were injured when at
about 07.30 hrs. a 2001b (approximately 100 kg) bomb, which had been
concealed in a parked van on the main Maghera to Garvagh road in
County Londonderry, Northern Ireland, exploded as the officers drove
past in a police car. A subsequent search of the area revealed a
command wire leading from the van some 100m to the firing point. The
van had been stolen by a group which included a person who had been
armed with a hand gun. The description of this person subsequently
given to the police by the owners of the van was similar to that of
the applicant Kathleen McEldowney.
Acting on the basis of information available to them, a search
of the applicants' house was conducted by police under section 15 of
the Northern Ireland (Emergency Provisions) Act 1978 (which was
amended by section 7 of, and paragraph 3 of Schedule 1 to, the
Northern Ireland (Emergency Provisions) Act 1987) at approximately
12.50 hrs. on 24 August 1988. The house is approximately two miles
from the scene of the explosion. During the search a man identified
as Peter Bateson was found hiding in the roof-space of the house. He
was a leading activist in the Provisional IRA, a proscribed terrorist
organisation, who had been recently released from prison after serving
a sentence of 20 years' imprisonment for terrorist offences. The
search of the house also revealed that the shower had recently been
used and men's clothing was found in the clothes dryer. On Mr.
Bateson being discovered in the house, a police officer asked Kathleen
McEldowney if she knew Peter Bateson. She said that she did not.
Sean McEldowney was not present in the house.
At 14.50 hrs. Kathleen McEldowney was arrested under section
12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 and
was taken to Castlereagh Police Office. At the time of her arrest she
was told that she was being arrested under section 12 of the 1984 Act
as she was suspected of being involved in terrorism. Her father was
that afternoon informed of her arrest and that she had been taken to
Castlereagh Police Office.
Peter Bateson was also arrested under section 12 of the 1984
Act.
At 21.55 hrs. on 24 August, on his return to the house, the
applicant Sean McEldowney was arrested under section 12 of the 1984
Act. At the time of his arrest he was told that he was being arrested
under section 12 of the 1984 Act as he was suspected of being involved
in terrorism. Sean McEldowney was further informed by the arresting
officer at the time of his arrest that there had been an attempt to
murder members of the RUC by means of a van bomb at Moneyscarvin Road,
Maghera, earlier that day, and that shortly after that incident a
convicted terrorist, Peter Bateson, had been discovered in the
roof-space of the applicants' home. He was also taken to Castlereagh
Police Office. His brother was advised that he was being taken there.
On their arrival at the Police Office both applicants were
given a notice to persons in police custody setting out their rights
of access to legal advice, to have someone informed of their detention
and to be medically examined.
Kathleen McEldowney's detention under section 12 was extended
by the Secretary of State for two days, until 14.50 hrs. on 28 August
1988 and subsequently for a further three days until 14.50 hrs. on
31 August. She was released at 13.00 hrs. on 31 August without being
charged with any offence. At the outset of the first interview during
her detention, which began at 19.50 hrs. on 24 August, she was told
that the police were enquiring into the bomb explosion that morning at
Maghera and she was asked what Peter Bateson was doing in the
roof-space of her house. During her detention she was further
questioned about Mr. Bateson's presence in the roof-space of her
house, including when he had arrived, by whom he was brought, whether
Mr. Bateson had taken a shower and whether he had changed his clothes.
She was shown the articles of clothing found in the dryer. She was
also asked about the attempted murder of the police officers injured
in the bomb explosion on 24 August, whether she was a member of a
terrorist organisation, in particular of Cumann na mBan, a proscribed
terrorist organisation, or had attended "anti-interrogation lectures"
and whether she had allowed her house to be used as a "safe house" for
terrorists on other occasions. She made no reply to any such
questions and did not comment on the articles of clothing shown to her
but sat, looking down or staring at the wall, and showing no emotion.
She declined to sign copies of the interview notes of the various
interviews conducted with her. The second applicant consulted a
solicitor on 26, 28 and 30 August 1988.
Sean McEldowney's detention was extended by the Secretary of
State for two days until 21.55 hrs. on 28 August 1988 and subsequently
for a further three days until 21.55 hrs. on 31 August 1988. He was
released at 18.15 hrs. on 31 August without being charged with an
offence. At the outset of his first interview, which began at
11.00 hrs. on 25 August 1988, Sean McEldowney was told that the police
were enquiring into the van bomb explosion at Maghera and as to why a
known terrorist had been found in the roof space of his house. During
his detention he was asked about Peter Bateson's presence in the
roof-space, was shown the articles of men's clothing found in the
clothes dryer at his home. He was asked whether he provided the
Provisional IRA with a safe house. He was also asked about his
movements on the evening before and on the day of the explosion, in
particular at what time he had left home and whether he had been
stopped the previous morning by a police patrol at 8.30 am on his
journey to work, whether he was a member of the Provisional IRA or of
any other proscribed terrorist organisation, whether he had taken part
in the hijacking of the van (he was told that the sweater, trousers
and shoes, which had been brought to the police office for the
applicant to wear by his solicitor, were like the ones which the
police believed had been worn by a person involved in the hijack), and
whether he had been involved in the explosion on 24 August. He did
not answer any such questions and did not comment on the clothing
shown to him but for much of the time sat staring at the wall or
table. He declined to sign copies of the interview notes of the
various interviews conducted with him.
His clothing was forensically examined and he agreed to
provide a sample of blood for forensic examination. With his consent,
a mouth swab and hair sample were also taken.
He consulted a solicitor on the afternoon of 26 August 1988
and on 28 and 30 August.
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.
Kathleen McEldowney also complains that she was the victim of
a breach of Article 5 para. 1 (c) of the Convention as her arrest and
detention were allegedly not for the purposes of bringing her before a
competent legal authority on reasonable suspicion of having committed
an offence, but for the purposes of ascertaining more information
about Peter Bateson.
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 application was introduced on 13 January 1989 and
registered on 18 January 1989. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application on 6 May 1989. The Commission decided to request the
parties' written observations on the admissibility and merits of the
application, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure
(former version). It was joined with 15 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 application 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 application. 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 para. 4 and Article
13 of the Convention. Sean McEldowney also withdrew his original
complaint under Article 5 para. 1 of the Convention, in particular
under Article 5 para. 1 (c). 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 case
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 31 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) 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 applicants' complaint, as it
was originally formulated, does not concern Article 5 para. 3
(Art. 5-3) of the Convention but Article 5 para. 1 (c) (Art. 5-1-c),
under which provision their claims were without substance. As the
facts of the case disclose no breach of the other provisions of
Article 5 (Art. 5), no issue could arise under Article 5 para. 5
(Art. 5-5) of the Convention. 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 first applicant was arrested and
detained for 6 days 20 hours and 20 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
second applicant was similarly detained for a period of 6 days 22
hours and 10 minutes. 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 this aspect of the case inadmissible has been
established.
2. The second applicant also contends that her arrest and
detention was in breach of Article 5 para. 1 (Art. 5-1) of the
Convention, in particular Article 5 para. 1 (c) (Art. 5-1-c). She
concedes that there was a reasonable suspicion against her which
entitled the Government to make the arrest, but contends that from the
facts, agreed by the Government, it is clear that the purpose of her
ensuing detention was not to bring her before a competent legal
authority, but to obtain further information about Peter Bateson. She
claims that this rendered her detention unlawful for the purposes of
the Convention.
The Government rely on the judgment of the Court in the
aforementioned Brogan and Others case in support of their contention
that the applicant was lawfully detained under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention.
The relevant part of Article 5 para. 1 (Art. 5-1) of the
Convention reads as follows:
"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 second
applicant's arrest and detention were "lawful" under Northern Ireland
law and, in particular, "in accordance with a procedure prescribed by
law". Nor does the applicant dispute that there was reason to suspect
her of a criminal offence at the time of her arrest. She only
contests the purpose of the arrest, which allegedly was not in order
to bring her before a competent legal authority.
The Commission refers to the Court's judgment in the case of
Brogan and Others in which it observed that the fact that applicants
are not charged or brought before a court does not necessarily mean
that the purpose of the detention was not in accordance with Article 5
para. 1 (c) (Art. 5-1-c) of the Convention:
"... the existence of such a purpose must be considered
independently of its achievement and sub-paragraph (c) of
Article 5 para. 1 (Art. 5-1) does not presuppose that the police
should have obtained sufficient evidence to bring charges,
either at the point of arrest or while the applicants are
in custody.
Such evidence may have been unobtainable or, in view of the
nature of the suspected offences, impossible to produce in
court without endangering the lives of others."
(Ibid pp. 29-30 para. 53)
The Commission finds that in the present case, as in the
Brogan and Others case, there is no reason to believe that the police
investigation regarding the second applicant was not in good faith or
that her detention was not intended to further that investigation by
way of confirming or dispelling their concrete suspicions about her
involvement in a criminal offence, which had grounded her arrest. Had
it been possible, the police would presumably have laid charges and
the second applicant would have been brought before the competent
legal authority. The Commission concludes, therefore, that her arrest
and detention were for the purpose specified in Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention. It follows 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. 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 ADMISSIBLE, without prejudging the merits of
the case, the applicants complaints under Article 5
paras. 3 (Art. 5-3) and 5 (Art. 5) of the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy