AS TO THE ADMISSIBILITY OF
Application No. 16751/90
by Dominic McGLINCHEY
against Ireland
The European Commission of Human Rights sitting in private
on 5 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
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 RUIZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy 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 19 January 1990
by Dominic McGLINCHEY against Ireland and registered on 20 June 1990
under file No. 16751/90;
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 applicant is an Irish citizen born in 1954 and currently
serving a prison sentence in Portlaoise Prison, Ireland. He is
represented by Mr. McDonnell, a solicitor practising in Dundalk.
A previous application (No. 14774/89) was declared inadmissible
on 4 September 1989.
On 24 June 1981, a warrant for the applicant's arrest on a
charge of murder was issued in Northern Ireland and endorsed in
Ireland for execution under the 1965 Extradition Act. The applicant
was arrested on 27 January 1982 and on 2 February 1982 his extradition
ordered by the District Court. On 9 February 1982, he applied to the
High Court claiming release on the ground that his offence was
political. His application and subsequent appeal were refused. The
applicant, who had been released on bail, then failed to comply with
its terms and disappeared.
On 17 March 1984, the applicant was arrested in
Newmarket-upon-Fergus under Section 30 of the Offences Against the
State Act 1939 after an incident in which the police entered a house
under a search warrant and were fired upon by a number of armed men.
An extradition order being in existence, the applicant was extradited
to Northern Ireland to await trial there. The applicant had applied to
the High Court to restrain his extradition but his application was
refused. His appeal to the Supreme Court was also dismissed and he
was handed over into the custody of the Royal Ulster Constabulary
(R.U.C). The applicant was tried and convicted in Northern Ireland
but the conviction was then set aside on appeal on 9 October 1985.
On 18 May 1984 a warrant was issued at Ennis for the
applicant's arrest for offences allegedly committed on 17 March 1984,
e.g. shooting at a member of the police with intent to kill and with
intent to resist lawful apprehension.
On 2 July 1984, the Special Criminal Court found guilty the
other two men, arrested with the applicant on 17 March 1984. The
applicant first became aware of the transcript of the proceedings in
this case in 1987.
On 11 October 1985, following the applicant's extradition from
Northern Ireland, the arrest warrant was executed at Carrickarnon and
the charges put to the applicant, who was taken to Ennis and detained
in custody by the District Court for a week on the charge of shooting
at a police officer with intent to commit murder.
On 18 October 1985, the applicant was brought back before the
court. The charge of shooting at a member of the police with intent
to murder was withdrawn and he was remanded in custody on a charge of
possession of a firearm with intent to endanger life.
On 4 November 1985, a certificate was issued by the Director
of Public Prosecutions in respect of the applicant's trial to the
effect that the applicant should be tried before the Special Criminal
Court.
The applicant was tried before the Special Criminal Court
between 18 February 1986 and 11 March 1986. On 11 March 1986, he was
found guilty of three offences (possession of a firearm with intent to
endanger life, possession of a firearm with the purpose of resisting
arrest and shooting at a police officer with intent to resist his
lawful apprehension) and sentenced to 10 years' imprisonment.
In May and June 1987, the applicant made several applications
for habeas corpus to the High Court, which refused them. One of the
grounds of the application concerned the fact that the judge presiding
at the applicant's trial had retired as a High Court judge and the
applicant argued that he was no longer qualified to preside over the
trial. On 27 July 1987 the Supreme Court ordered the High Court to
hold an enquiry pursuant to Article 40 of the Constitution into the
legality of the applicant's detention.
The application was heard before the High Court on 14 December
1987. In its judgment dated 13 January 1988 the High Court found
inter alia that the Special Criminal Court was a court duly
established by law and exercising lawful authority in the matter upon
which the detention of the applicant was ordered. The applicant's
detention was accordingly found to be in accordance with law. Whilst
commenting that the lawfulness of pre-trial procedures was for the
normal trial and appeal courts to determine, the Court also found no
substance in the arguments of the applicant as to the validity of the
arrest warrants and procedures utilised in his arrest and committal
for trial. The applicant appealed to the Supreme Court. In its
decision dated 20 July 1988, the Supreme Court held that while the
presiding judge had retired as a High Court judge he nonetheless fell
within the statutory qualification for sitting since he still remained
a barrister of not less than 7 years' standing. The Court also found
no substance in the applicant's other procedural complaints concerning
his arrest and committal for trial. The Court concluded that the
applicant was a person properly convicted by a duly established and
lawful court and that there was no doubt as to the legality of his
detention.
The applicant appealed to the Court of Criminal Appeal
against his conviction of 11 March 1986 on 12 grounds, inter alia,
that the applicant had not been properly arrested and charged at the
first reasonable opportunity.
On 10 April 1989, the Court of Criminal Appeal refused leave
to appeal and ruled, without hearing argument, that it could not deal
with certain grounds since they had been dealt with by the Supreme
Court on 20 July 1988 and were res judicata. Amongst the grounds
excluded by the Court was that concerning the lawfulness of the
applicant's arrest and detention on 17 March 1984. Following a
hearing, the Court found that the other grounds raised by the
applicant had no substance, and concluded that the trial was
satisfactory and in no way unfair. In its decision of 11 April 1989
the Court of Appeal noted that no member of the Special Criminal Court
which found the other two men guilty on 2 July 1984 also participated
in the trial and conviction of the applicant in 1986. Moreover, no
application had been made to the Special Criminal Court for a
transcript of the proceedings concerning the two men, and no questions
concerning these proceedings had been put by the applicant's counsel
to witnesses in his own trial by way of cross-examination or
otherwise.
On 5 October 1989 the Office of the Attorney General refused
to grant a certificate, under Section 29 of the Courts of Justice Act
1924, to allow an appeal to the Supreme Court from the decision of
the Court of Criminal Appeal.
On 8 June 1989, the High Court refused a new application by the
applicant for an enquiry into the legality of his detention pursuant
to Article 40 of the Constitution. It held that most, if not all, of
the matters raised by the applicant had been dealt with in the
previous reviews in 1987 and 1988, and that any other matters raised
were too vague to constitute new relevant information justifying
futher enquiry. The applicant appealed to the Supreme Court which on
21 December 1989 found that the great majority of the grounds had
already been subject of a lengthy enquiry by the High Court and that
insofar as new matters were raised they did not contain any matter
which cast doubt on the legality of the applicant's detention.
The applicant also instituted proceedings claiming, inter
alia, that the warrant for his arrest issued on 24 June 1981 in
Northern Ireland was invalid, his subsequent detention in 1982 had
been illegal and that the Extradition Act 1965 failed to protect the
applicant against such illegal proceedings and was unconstitutional.
The purpose of the proceedings was to obtain declarations, not
damages. The applicant expressly acknowledged that declarations in
his favour on these issues could not have any bearing on the validity
of his present detention. Mr. Justice Costello found on 6 December
1989 that the warrant of 24 June 1981 had apparently not been issued
in accordance with the laws of Northern Ireland and was invalid.
However, he made no determination as to the lawfulness of the
applicant's arrest and detention under Irish law on 27 January 1982.
Instead he held that, even assuming that this meant that the
applicant's subsequent detention in 1982 under the extradition order
was illegal, the Extradition Act 1965 was not unconstitutional since
it contained safeguards allowing the validity of warrants and orders
to be challenged by way of habeas corpus. The question of the
legality of the applicant's arrest in 1984 was not raised again in the
pleadings. The applicant's request for declarations was refused.
COMPLAINTS
The applicant complains of being unlawfully deprived of his
liberty on 17 March 1984 contrary to Article 5 para. 1 of the
Convention because allegedly he was unlawfully sent from the
jurisdiction on 17 March 1984 without charges being preferred or
without being brought before a judge or other officer of the law, and
because he was convicted by an incompetent court. He alleges that he
was not informed promptly of any charge against him, i.e. until
11 October 1985, contrary to Article 5 para. 2 of the Convention. He
also alleges that he was not brought promptly before a judge contrary
to Article 5 para. 3 of the Convention. He states further that he did
not receive a proper hearing as required under Article 5 para. 4 since
the High Court on 14 December 1987 allegedly excluded from
consideration all matters relating to 17 March 1984 and limited its
own enquiry, and on 21 December 1989 the Supreme Court refused to make
a further Order of Enquiry.
The applicant next complains that he was not presumed innocent
as required by Article 6 para. 2 of the Convention. He submits that
he was not informed promptly of the charges against him as required by
Article 6 para. 3 (a) of the Convention or provided with a transcript
of the proceedings against the other two men arrested on 17 March 1984,
contrary to Article 6 para. 3 (b) and (d) of the Convention. He
contends that he did not receive a fair, independent and impartial
hearing as required by Article 6 para. 1 of the Convention since,
inter alia, the Special Criminal Court did not facilitate the
disclosure of the transcript of the previous proceedings and the Court
of Criminal Appeal on 10 April 1989 had determined the appeal before
the hearing took place by taking the view that certain grounds were
res judicata and refusing to hear further arguments on them.
The applicant also invokes Article 13 of the Convention in
that by reason of the segmenting of his complaints he has not had an
effective remedy for his unlawful deprivation of liberty which is a
consequence of the fact that no lawful authority existed to commence
the chain of events arising from the attempt to execute a warrant
unlawfully issued in Northern Ireland, and Article 14 in that the lack
of effective remedy in his case is a direct cause of his political
opinions.
THE LAW
1. The applicant has complained of being unlawfully deprived of
his liberty on 17 March 1984 contrary to Article 5 para. 1 (Art. 5-1)
of the Convention. He has also complained of the ensuing proceedings:
- of not being informed promptly of the shooting charges, of not being
brought before a judge, of a denial of an effective remedy to
challenge the lawfulness of his detention, a denial of the presumption
of innocence, inadequate transcript facilities and a denial of fair,
independent or impartial hearings before the trial and appeal courts.
He invokes Article 5 paras. 1, 2, 3 and 4 (Art. 5-1, 5-2, 5-3, 5-4)
and Article 6 paras. 1, 2, 3 (a), (b) and (d) (Art. 6-1, 6-2, 6-3-a,
6-3-b, 6-3-d).
However, the Commission notes that the final decision
regarding the criminal proceedings against the applicant, which
confirmed his conviction and sentence and the lawfulness of
pre-trial and trial procedures, was that of the Court of Criminal
Appeal on 10 April 1989. The applicant's further attempts to revive
these proceedings through the High Court did not effectively continue
them, given the High Court's decision of 8 June 1989, upheld by the
Supreme Court on 21 December 1989, that most matters had already been
decided by the courts and that the applicant's remaining claims
presented no new relevant information justifying further enquiry.
Moreover, the Attorney General's decision of 5 October 1990 to refuse
a certificate under Section 29 of the Courts of Justice Act 1924
cannot be taken into account in determining the date of the final
decision (No. 9136/80, Dec. 10.7.91, D.R. 26 p. 242).
The application was introduced on 19 January 1990, more than
six months after the Court of Criminal Appeal's decision of 10 April
1989. The Commission is, therefore, unable to deal with these aspects
of the case as the applicant has failed to observe the six months'
rule laid down in Article 26 (Art. 26) of the Convention. It follows
that this part of the application must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
Nevertheless, as regards the applicant's complaint that he was
unlawfully detained on 17 March 1984, contrary to Article 5 para. 1
(Art. 5-1) of the Convention, and even assuming that the applicant may
be said to have complied with the requirements of Article 26 (Art. 26)
of the Convention, the Commission considers that anyway this aspect of
the case must be rejected as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention for the
following reasons: There is no evidence in the case-file that the
applicant was not lawfully detained pursuant to Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention on his arrest for firearms offences in
accordance with Section 30 of the Offences Against the State Act 1939.
Almost immediately after his arrest he was also detained pursuant to
the extradition order issued in 1982. He was, therefore, lawfully
detained as a person against whom action was being taken with a view
to extradition, within the meaning of Article 5 para. 1 (f)
(Art. 5-1-f) of the Convention.
2. Finally, the applicant has complained that he had no effective
domestic remedy for his Convention complaints, contrary to Article 5
para. 4 (Art. 5-4) or Article 13 (Art. 13) of the Convention, and that
he suffered discrimination, contrary to Article 14 (Art. 14) of the
Convention read in conjunction with Article 13 (Art. 13), in view of
his political opinions.
However, the Commission finds no evidence in the case-file
which might substantiate the applicant's claims. In particular, the
Commission notes that the Irish courts have thoroughly examined the
lawfulness of the applicant's arrest and detention as of 17 March 1984
and given the applicant every opportunity to defend his rights under
Articles 5 and 6 (Art. 5, 6) of the Convention, which in themselves
provide stronger guarantees than Article 13 (Art. 13) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A.NØRGAARD)
Full & Egal Universal Law Academy