AS TO THE ADMISSIBILITY OF
Applications Nos. 15096/89, 15097/89 and
15098/89
by Paul Gerard McGLINCHEY and Others
against the United Kingdom
The European Commission of Human Rights sitting in private
on 2 July 1990, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
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 applications introduced on 29 March 1989
by Paul Gerard McGLINCHEY and Others against the United Kingdom and
registered on 8 June 1989 under file Nos. 15096/89, 15097/89 and 15098/89;
Having regard to
- the reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Government's written submissions of 19 January 1990 and
the applicants' observations in reply of 4 April 1990;
Having deliberated;
Decides as follows:
THE FACTS
The three applicants are of Irish and British nationality and
resident in Londonderry. The first applicant was born in 1963, the
second in 1961 and the third in 1957. They are represented before the
Commission by Mr. Ian Hawton Milligan, a solicitor practising in
Newton Stewart, Wigtownshire, Scotland.
The facts as submitted by the applicants may be summarised as
follows.
At about 22.00 h on 29 September 1988, the applicants
were stopped by police officers as they were on the point of boarding
a ferry at Stranraer which was going to Northern Ireland. They were
informed that they were being arrested under the Prevention of
Terrorism (Temporary Provisions) Act 1984 and detained at 22.10 h
under Section 12 of the Act.
On 1 October 1988, the Secretary of State for Scotland
granted an extension of 72 hours in the applicants' detention under
the relevant legislation.
On 3 October 1988, the police made an application for
Exclusion Orders in respect of the three applicants. On 4 October
1988, the Secretary of State for the Home Department granted the
Exclusion Orders, which were served on the applicants at approximately
18.00 h. These orders stated that the Secretary of State was
satisfied that the applicants were or had been concerned in the
commission, preparation or instigation of acts of terrorism designed
to influence public opinion or Government policy with respect to
affairs in Northern Ireland and prohibited the applicants from being
in or entering Great Britain. The applicants were released at 18.30 h
into the custody of the Captain of the Ferry at Stranraer and duly
returned to Northern Ireland.
The applicants' appeals against the Exclusion Orders were
dismissed on 25 November 1988 and the three year Exclusion Orders
confirmed.
COMPLAINTS
The applicants complain that their detention by the police and
by the Secretary of State was in breach of Article 5 para. 3 of the
Convention since they were not brought promptly before a judge or
other officer authorised by law to exercise judicial power. They
consider themselves entitled to compensation under Article 5 para. 5
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 March 1989 and registered
on 8 June 1989.
On 2 October 1989 the Commission decided that notice of the
application should be given to the respondent Government, pursuant to
Rule 42 para. 2 (b) of its Rules of Procedure, and that the parties
should be invited to submit their written observations on the
admissibility and merits of the applicants' complaints.
The Government sent their written observations on 19 January
1990. The applicants' representative submitted the applicants' written
observations in reply on 4 April 1990.
The Commission decided to grant legal aid to the applicants on
16 February 1990.
THE LAW
The applicants complain that their arrest and detention under
Section 12 of the Prevention of Terrorism (Temporary Provisions) Act
1984 constitutes a violation of Article 5 para. 3 (Art. 5-3) of the
Convention. They also allege a violation of Article 5 para. 5 (Art. 5-5)
of the Convention.
Article 5 para. 3 (Art. 5-3) of the Convention provides:
"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."
Article 5 para. 5 (Art. 5-5) of the Convention provides:
"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 do not contest the admissibility of the
application.
The Commission recalls that in the BROGAN and Others case
(Eur. Court H.R., Brogan and Others judgment of 29 November 1988,
Series A No. 145-B), the Commission and the Court found a violation of
Article 5 para. 3 (Art. 5-3) in respect of the detention of four
applicants for periods varying from 4 days 6 hours to 6 days and 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) in that the applicants had not had a right to
compensation in respect of the violation of Article 5 para. 3
(Art. 5-3).
In the present case, the Commission recalls that the three
applicants were arrested and detained for 4 days 20 1/2 hours under the
same provisions as in the Brogan and Others case without being brought
before a judge or an officer authorised by law to exercise judicial
power. The Commission finds that the applications cannot be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. As no other ground for declaring them
inadmissible has been established these applications are admissible.
For these reasons, the Commission
DECLARES THE APPLICATIONS ADMISSIBLE
without prejudging the merits of the cases.
Secretary to the Commission President of the Commission
H.C. KRÜGER C.A. NØRGAARD
Full & Egal Universal Law Academy