AS TO THE ADMISSIBILITY OF
Application No. 14632/89
by Sean McGOVERN
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 27 January
1989 by Sean McGOVERN against the United Kingdom and registered on
7 February 1989 under file No. 14632/89;
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 applicant, Sean McGovern, is a citizen of the United
Kingdom, born in 1958 and resident in Kinawley, County Fermanagh,
Northern Ireland. He is 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.
At about 19.07 hrs. on 26 October 1988 Reserve Constable
McCrone and a colleague were ambushed shortly after the two officers
left Kinawley RUC Station. Reserve Constable McCrone was shot dead
and his colleague seriously injured. A vehicle owned by the applicant
who is known to associate with members of the Provisional IRA, a
proscribed terrorist organisation, was seen by three witnesses in the
immediate vicinity of the shooting both before and after the incident.
At 07.00 hrs. on 27 October 1988, whilst his house was being
searched under section 15 of the Northern Ireland (Emergency
Provisions) Act 1978 and after he had been questioned by police
officers about his movements the night before, the applicant was
arrested under section 12 of the Prevention of Terrorism (Temporary
Provisions) Act 1984. 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 and, in particular, was
suspected of having been involved in the murder of Constable McCrone
at Kinawley on 26 October 1988. He was taken to Armagh Police
Office. On his arrival there he was given a copy of the notice to
persons in police custody. His detention was extended by the
Secretary of State for three days until 07.00 hrs. on 1 November and
then for a further two days until 07.00 hrs. on 3 November. He was
released without charge at 16.15 hrs. on 2 November.
He saw his solicitor on 29 and 31 October 1988.
At the outset of the first interview, which began at 10.35 hrs.
on 27 October 1988, he was told that the police were making enquiries
into the murder of a police officer the night before at Kinawley and
that they believed his car to have been observed shortly after the
shooting. During his detention he was asked about his movements at
the time of the ambush, how his car came to be seen in the vicinity of
the ambush speeding away, with another car, immediately after the
incident, whether he had been forced to allow his car to be used and
whether anyone had used his car at the material time, why a CB radio
and aerial, which showed signs of having been removed from his car
hastily, had been found at his house, and whether he was a member of
the Provisional IRA. For most of the time during the interviews he
remained silent, sitting with his arms folded or with his head in his
hands, sometimes whistling to himself, sometimes looking at the floor,
ceiling or walls and sometimes making chuckling noises. At one stage
he rubbed and poked his right eye continually for about half an hour
until it had reddened (he was asked if he wanted anything for his eye
but made no reply). Sometimes he refused to sit down. On other
occasions he referred to what he had said to the police before his
arrest. On 1 and 2 November he gave the police an account of his
movements on the day of the ambush and denied any involvement in the
murder. He declined to sign any of the interview notes.
COMPLAINTS
The applicant alleges that he was detained in breach of
Article 5 para. 3 of the Convention, in that he was not brought
promptly before a judge in order to be charged, or released promptly
without charge. He complains that he had no right to compensation for
this alleged breach of Article 5 para. 3, pursuant to Article 5 para.
5 of the Convention.
The applicant 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, he
conceded that in that case the Court had made a finding of no
violation in circumstances very similar to his 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 27 January 1989 and
registered on 7 February 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
applicant's 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 applicant 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
applicant's representatives submitted 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 his various observations the applicant withdrew certain
original complaints he had made under Article 5 paras. 1 (c) and 4
and Article 13 of the Convention. As regards Article 5 para. 2, the
applicant conceded that the European Court's finding in the Fox,
Campbell and Hartley case was made in circumstances very similar to
his own (see above under COMPLAINTS).
On 26 February 1991 the Commission decided to refer the case
to the Second Chamber.
THE LAW
1. The applicant complains that his arrest and detention under
section 12 of the Prevention of Terrorism (Temporary Provisions) Act
1984 from 14 to 17 September 1988 failed to observe the requirement of
promptness laid down in Article 5 para. 3 (Art. 5-3) of the
Convention, for which failure he 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, 5-5) 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 contend that the applicant's 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 his claim was 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 applicant, in reply, relies 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 his claims
under Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention, and
from which case he submits that his application is indistinguishable.
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) (Eur. Court H.R., judgment
of 29 November 1988, Series A no. 145-B, paras. 55-62 and paras.
66-67).
The Commission notes that the applicant was arrested and
detained for 6 days 9 hours and 15 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
Commission finds, therefore, that the applicant's 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
the case inadmissible has been established.
2. After having first complained of a violation of Article 5
para. 2 (Art. 5-2) of the Convention, the applicant 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 his 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 his 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 THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy