AS TO THE ADMISSIBILITY OF
Application No. 14765/89
by Patrick O'HAGAN
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 February
1989 by Patrick O'HAGAN against the United Kingdom and registered on
10 March 1989 under file No. 14765/89;
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, Patrick O'Hagan, is a citizen of the United
Kingdom, born in 1952 and resident in Omagh, 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 06.14 hrs. on 29 September 1988 the applicant, who is a
suspected member of the Provisional IRA and who has convictions for
possession of firearms and explosives, was arrested under section 12
of the Prevention of Terrorism (Temporary Provisions) Act 1984 at his
home. The police had received information that there was a suspected
munitions hide on his property. 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. 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 three
days until 06.14 hrs. on 4 October and he was released without charge
at 12.55 hrs. on 3 October.
A search of the applicant's house, outbuildings and land was
carried out from 29 September until 1 October 1988 pursuant to section
15 of the Northern Ireland (Emergency Provisions) Act 1978. Nothing
was found, with the exception of a quantity of republican literature.
The applicant saw a solicitor on 1 October 1988.
At the outset of his first interview, which began at 09.45 hrs.
on 29 September, he was told that the police were enquiring into
terrorist activity and involvement in the Mountfield and Carrickmore
areas of County Tyrone, where he lives. He was questioned about his
association with certain known Provisional IRA terrorists from these
areas, the murder of John Kyle in Greencastle in July 1986 and the
applicant's membership of the Provisional IRA. The applicant said
that since his release from a 12 year prison sentence he had married
and settled down and had no ties with Provisional IRA members, no
involvement with the organisation or membership of it and no knowledge
of the murder of John Kyle. At subsequent interviews he was further
questioned about these matters and about the suspected storage of
bombs, bomb-making equipment and weapons on his land and at his home.
He denied involvement in the matters put to him and further denied
that bombs or weapons were present on his land or at his home. He
declined to sign the interview notes.
COMPLAINTS
The applicant complains that his detention was unlawful,
contrary to Article 5 para. 1 of the Convention, in particular Article
5 para. 1 (c), because it was not effected for the purpose of bringing
him before a competent legal authority, but in order to ascertain more
about terrorist activity and involvement in the Mountfield and
Carrickmore areas of County Tyrone where he lives, and the involvement
of other people in terrorist activity.
He also 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 February 1989 and
registered on 10 March 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 para. 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 first contends that his arrest and detention
under section 12 of the Prevention of Terrorism (Temporary Provisions)
Act 1984 were in breach of Article 5 para. 1 (Art. 5-1) of the
Convention, in particular Article 5 para. 1 (c) (Art. 5-1-c). He
concedes that there was a reasonable suspicion against him which
entitled the Govenment to make the arrest, but from the facts, agreed
by the Government, it is clear that the purpose of his ensuing
detention was not to bring him before a competent legal authority, but
to obtain further information about terrorist activity in his locality
and others' involvement in such activity. He claims that this
rendered his detention unlawful for the purposes of the Convention.
The Government rely on the judgment of the Court in the Brogan
and Others case in support of their contention that the applicant was
lawfully detained under Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention.
The relevant part of Article 5 para. 1 (Art. 5-1) of the
Convention reads as follows:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
...
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence ..."
The Commission notes that there is no dispute that the
applicant's arrest and detention were "lawful" under Northern Ireland
law and, in particular, "in accordance with a procedure prescribed by
law". Nor does the applicant dispute that there was reason to suspect
him of a criminal offence at the time of his arrest. He only contests
the purpose of the arrest, which allegedly was not in order to bring
him before a competent legal authority.
The Commission refers to the Court's judgment in the case of
Brogan and Others in which it observed that the fact that applicants
are not charged or brought before a court does not necessarily mean
that the purpose of the detention was not in accordance with Article 5
para. 1 (c) (Art. 5-1-c) of the Convention:
"... the existence of such a purpose must be considered
independently of its achievement and sub-paragraph (c) of
Article 5 para. 1 (Art. 5-1-c) does not presuppose that the
police should have obtained sufficient evidence to bring charges,
either at the point of arrest or while the applicants are
in custody.
Such evidence may have been unobtainable or, in view of the
nature of the suspected offences, impossible to produce in
court without endangering the lives of others."
(Eur. Court H.R., judgment of 29 November 1988, Series A
No. 145-B pp. 29-30 para. 53)
The Commission finds that in the present case, as in the
Brogan and Others case, there is no reason to believe that the police
investigation regarding the applicant was not in good faith or that
his detention was not intended to further that investigation by way of
confirming or dispelling their concrete suspicions about his
involvement in a criminal offence, which had grounded his arrest. Had
it been possible, the police would presumably have laid charges and
the applicant would have been brought before the competent legal
authority. The Commission concludes, therefore, that his arrest and
detention were for the purpose specified in Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention. It follows that this aspect of the
case is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant next complains that his arrest and detention
under section 12 of the Prevention of Terrorism (Temporary Provisions)
Act 1984 from 29 September to 3 October 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 basis of the applicant's
complaint under Article 5 para. 3 (Art. 5-3) of the Convention is
unclear and manifestly ill-founded. 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 4 days 6 hours and 41 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 this
aspect of the case inadmissible has been established.
3. 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 ADMISSIBLE, without prejudging the merits of
the case, the applicant's complaints under Article 5
paras. 3 and 5 (Art. 5-3, 5-5) of the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy