AS TO THE ADMISSIBILITY OF
Applications Nos. 14759/89 and 14781/89
by Francis McKEOWN and Raymond LARMOUR
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 first application introduced on 22 February 1989 by
Francis McKEOWN against the United Kingdom and registered on 8 March
1989 under file No. 14759/89;
- the second application introduced on 7 March 1989 by Raymond
LARMOUR against the United Kingdom and registered on 15 March 1989
under file No. 14781/89;
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, Francis McKeown, is a citizen of the
United Kingdom, born in 1958 and resident in Moneymore, County
Londonderry, Northern Ireland.
The second applicant, Raymond Larmour, is a citizen of the
United Kingdom, born in 1958 and resident in Cookstown, Northern
Ireland.
The applicants are represented before the Commission by
Messrs. J. Christopher Napier & Co., Solicitors, Belfast.
The facts of the present cases, as submitted by the parties,
may be summarised as follows.
On 8 September 1988, an explosive device equivalent to
1000 lbs. (approx. 500 kgms.) of explosives concealed in a van parked
outside Coagh RUC Station in County Tyrone exploded, completely
destroying the building and injuring a number of police officers and
civilians. A number of private houses were also extensively damaged.
In a statement issued shortly afterwards the Provisional IRA (a
proscribed terrorist organisation) admitted responsibility for the
explosion. After the police had discovered what they suspected to be
a bomb, but before the bomb exploded, a car owned by the first
applicant, which was being driven from the direction of Coagh RUC
Station, was stopped at a vehicle check-point. In the car were found
two CB radios of a kind commonly used by the Provisional IRA. The
handset of one of these had been pulled through from the back seat
onto the front seat of the car. As the car was being searched, the
bomb exploded. The two occupants were Dermot Coyle and the second
applicant. Neither occupant was able to give a satisfactory account
of his movements and both were arrested under section 12 of the
Prevention of Terrorism (Temporary Provisions) Act 1984 at 21.48 hrs.
on 8 September, shortly after the explosion had occurred.
At the time of his arrest, Raymond Larmour was told that he
was being arrested under section 12 of the 1984 Act as he was
suspected of being involved in terrorism. 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 for
two days until 21.48 hrs. on 12 September and then for a further two
days until 21.48 hrs. on 14 September. He was released without charge
at 17.30 hrs. on 14 September.
He saw a solicitor on 10, 11, 13 and 14 September 1988.
At the outset of his first interview, which began at 12.20
hrs. on 9 September, he was told that the police were investigating
the explosion at Coagh RUC Station on the evening of 8 September and
that the police wished to have an account from him of his movements.
At that and at subsequent interviews he was asked about his movements
before the explosion, whether he had been given permission to drive
the car he had been in, how long he had known Dermot Coyle, about the
radios found in the car, whether he had been involved in stealing the
van used in the explosion and whether he was a member of the
Provisional IRA. He did not answer these questions but sat staring at
various fixed points, avoiding eye contact with those asking him the
questions. On one occasion, about five minutes after the interview
began on the morning of 12 September, he rolled off the chair on to
the floor and headbutted radiator pipework in the room, at which point
the interview was terminated. He was not re-interviewed until later
in the day when, having been passed fit for interview by a doctor, he
walked slowly and with apparent difficulty to the interview room and
on sitting down trembled and breathed heavily. However, once he had
been told that he had been passed fit for interview by the doctor he
quickly stopped breathing heavily and adjusted his seating position
and appeared to be quite comfortable. On another occasion he slid off
the chair on to the floor where he sat refusing to get back on to a
chair or sniffed and shook his legs vigorously or covered his ears
with his hands. He did not sign the interview notes.
The first applicant, who is a suspected member of the
Provisional IRA, was also suspected of involvement in the planning of
the attack on the RUC Station. Accordingly, at 13.35 hrs. on
9 September 1988 he was arrested at his home under section 12 of the
1984 Act. At the time of his arrest he was told that he was being
arrested under this provision as he was suspected of being involved in
terrorism. 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 for two days until 13.35 hrs. on
13 September and then for a further two days until 13.35 hrs. on
15 September. He was released without charge at 13.00 hrs. on
15 September 1988.
He saw his solicitor on 11, 12 and 14 September 1988.
At the outset of his first interview, which began at
17.05 hrs. on 9 September 1988, he was told that the police were
enquiring into the explosion at Coagh the previous day, and he was
asked to account for his movements from tea-time that day. He was
asked if he owned the car and about his association with Dermot Coyle.
In subsequent interviews he was again asked about his car and
association with Dermot Coyle and to account for his movements on the
day of the explosion and about CB radios found in the car. He
answered some questions but the answers in some respects conflicted
with information given to the police by Dermot Coyle. For the
remaining time he kept silent in answer to questions relating to the
bomb incident. He refused to sign the interview notes.
On 8 October 1988, an underground bunker measuring
approximately 7x3x2 metres was discovered by police during a search
under section 15 of the Northern Ireland (Emergency Provisions) Act
1978 at McKeown's Repair Garage owned by the second applicant at
Coltrim, Moneymore. The second applicant was not present when the
discovery was made, nor could he be found at his home. It was not
until 08.30 hrs. on 13 October 1988 that he was found there and again
arrested under section 12 of the 1984 Act.
At the time of this arrest, Francis McKeown was told that he
was being arrested under section 12 of the 1984 Act as he was
suspected of being involved in terrorism. He was taken to Armagh
Police Office where, on his arrival, he was given a copy of the notice
to persons in police custody. His detention was extended for three
days until 08.30 hrs. on 18 October and he was released without charge
at 18.40 hrs. on 17 October 1988.
He saw his solicitor on 14 and 16 October 1988.
At the outset of the first interview, which began at
12.35 hrs. on 13 October, he was told that the police were making
enquiries into the bunker found under the floor of his garage which
the police believed was to be used for terrorist purposes. He was
asked why this had been built under the floor of his garage and who
had been involved in building it. At subsequent interviews he was
asked further about the bunker. At first he remained silent
throughout the interviews sitting with his head bowed. He refused to
give any explanation for the bunker or to elaborate upon the
explanation for it which had appeared in an article in the edition for
11 October 1988 of the newspaper, the Irish News, in which the
applicant was quoted as saying that it had been constructed "for
perfectly legitimate business purposes". Then on 15 October he said
that the bunker was part of a proposed paint spraying operation which
he then proceeded to explain. The cavity was to house a tank. He
said that Dermot Coyle helped him build it. He was asked if plans
existed for the paint tank operation, whether planning permission had
been sought for the work, who had ordered the materials, whether they
had been paid for and why Sean O'Hagan, a suspected terrorist, was
present at the garage. He declined to answer these questions. It was
pointed out to him that the tank, which was apparently to be emptied
regularly, had no manhole cover for easy access or inspection. He was
asked why certain pipes of apparent importance in the scheme he had
described to the police were in fact covered with concrete (a feature
which served to obscure the existence of the bunker). He made no
comment nor did he explain why he needed a tank with a capacity of
about 1200 cubic feet (approximately 42 cubic metres) when, from his
own description of the proposed operation, he would use only about one
third of it. He refused to sign the interview notes.
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
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.
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 first application was introduced on 22 February 1989 and
registered on 8 March 1989.
The second application was introduced on 7 March 1989 and
registered on 15 March 1989.
After a preliminary examination of the cases by the
Rapporteur, the Commission considered the admissibility of the
applications on 6 May 1989. The Commission decided to request the
parties' written observations on the admissibility and merits of the
applications, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure (former version). They were joined with 14 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 applications 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 applications. 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 paras. 1 (c) and 4
and Article 13 of the Convention. 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 cases
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 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. The first applicant was
detained twice, from 9 to 15 September 1988 and from 13 to 17 October
1988. The second applicant was detained from 8 to 14 September 1988.
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 submit that the precise basis of the applicants'
complaint under Article 5 para. 3 (Art. 5-3) of the Convention is
unclear and the complaint manifestly ill-founded. As the facts of the
cases disclose no breach of this provision, Article 5 para. 5
(Art. 5-5) has no application.
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 two periods of 5 days 23 hours and 25 minutes, and 4 days
10 hours and 10 minutes, respectively. The second applicant was
arrested and detained for a period of 5 days 19 hours and 42 minutes.
Their arrest and detention was effected 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 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 the cases inadmissible has been established.
2. 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 THE APPLICATIONS ADMISSIBLE
without prejudging the merits of the cases.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy