AS TO THE ADMISSIBILITY OF
Application No. 14707/89
by Malachy MULLIN
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 February
1989 by Malachy MULLIN against the United Kingdom and registered on
28 February 1989 under file No. 14707/89;
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, Malachy Mullin, is a citizen of the United
Kingdom, born in 1970 and resident in Sixmilecross, County Tyrone,
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 00.30 hrs. on 20 August 1988, as unmarked civilian
buses were travelling along the main road from Ballygawley to Omagh in
County Tyrone, an explosive device of approximately 100 lbs.
(approximately 45 kilos) concealed by the side of the road was
detonated by a command wire which ran for 300 metres to a battery pack
located on a hill overlooking the road. In the explosion, eight
soldiers, travelling in one of the buses from Aldergrove airport,
Belfast, to their base in Omagh, were killed and another 27 in the bus
were injured, some seriously. The Tyrone Brigade of the Provisional
IRA subsequently admitted responsibility for the explosion.
On the basis of the information which became available to the
police after the explosion, the police believed that the applicant,
who lived in Tyrone close to where the explosion took place, was
involved in the atrocity. Accordingly, he was arrested under section
12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 at
his home at 04.10 hrs. on 24 August 1988. He was told that he was
being arrested under section 12 of the 1984 Act as he was suspected of
involvement 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. He was released at 18.30 hrs. on 25 August 1988.
He asked to see a solicitor but access to a solicitor was
delayed under section 15 of the Northern Ireland (Emergency
Provisions) Act 1987 and he was released before the authorised periods
of delay had expired.
At the outset of the first interview, which began at
09.50 hrs. on 24 August, he was told that the police were making
inquiries into the bomb explosion on 20 August and that he was
believed to be involved in the explosion. He was asked where he was
on the evening of 19 August and about his membership of the
Provisional IRA. He remained silent. At a later interview he gave an
account of his movements for the evening of 19 August and during
20 August, which he repeated at subsequent interviews. These accounts
included accounts of the movements, at some points during the period
in question, of his brothers. He declined to sign 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 13 February 1989 and
registered on 28 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 24 to 25 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 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 precise basis of the
applicant's complaint under Article 5 para. 3 (Art. 5-3) of the
Convention is unclear. As the applicant was released after 1 day 14
hours and 20 minutes detention the requirement to bring him before a
judge did not arise. Referring to 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) and the Commission's established case-law
cited at para. 57 of that judgment, they submit that the applicant's
release within 2 days of his arrest was compatible with the
requirements of Article 5 para. 3 (Art. 5-3) of the Convention. As
the facts of the case disclose no breach of this provision, the
provisions of Article 5 para. 5 (Art. 5-5) have no application. In
reply, the applicant submits that the Government have made no attempt
to justify the length of his detention or shown how long it might
reasonably have taken to dispel the suspicions they held against him
when he was arrested. He considers that his case is indistinguishable
from the Brogan and Others judgment as regards the breaches found by
the Court in that case of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of
the Convention.
According to the constant case-law of the Commission, the
requirement of promptness in Article 5 para. 3 (Art. 5-3) of the
Convention means that arrested persons must be brought before a judge,
or other officer authorised by law to exercise judicial power, without
undue delay, the guarantees of Article 5 para. 3 (Art. 5-3), together
with Article 5 para. 1(c) (Art. 5-1-c), providing essential safeguards
against arbitrary deprivation of liberty and prolonged police or
administrative detention (No. 2894/66, Dec. 6.10.66, Yearbook 9 p.
564, Nos. 11209/84, 11234/84, 11266/84 and 11386/85, Brogan, Coyle,
McFadden and Tracey v. the United Kingdom, Comm. Report 14.5.87,
paras. 101-108).
The question whether or not the requirement of promptness in
Article 5 para. 3 (Art. 5-3) has been satisfied must be assessed in
each case according to its special features, the maximum time limit
for such detention, even in the most exceptional circumstances, being
no more than four days. In the light of these considerations and the
particular facts of the present case, the Commission concludes that
the period of detention experienced by the applicant does not disclose
any appearance of a breach of Article 5 para. 3 (Art. 5-3) of the
Convention. Accordingly this part of the application is manifestly
ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
Regarding the applicant's complaint under Article 5 para. 5
(Art. 5-5) of the Convention that he had no enforceable right to
compensation in domestic law for the alleged breach of Article 5 para.
3 (Art. 5-3) of the Convention, as the Commission has concluded that
this latter allegation is manifestly ill-founded, the applicant is not
entitled to such compensation. Accordingly his complaint under
Article 5 para. 5 (Art. 5-5) of the Convention must also be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
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 INADMISSIBLE.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy