Application No. 20440/92
by Owen RUSHE
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the 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 16 June 1992 by
Owen RUSHE against the United Kingdom and registered on 5 August 1992
under file No. 20440/92;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the Commission's decision of 31 March 1993 to communicate the
case to the respondent Government without requesting observations
and to adjourn it pending the outcome of Applications Nos.
14553/89 and 14554/89, Brannigan and McBride v. the United
Kingdom;
- the judgment of the European Court of Human Rights in those
applications on 26 May 1993;
- information provided by the applicant's representatives on
5 October 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1967 and resident in
County Fermanagh, Northern Ireland. He is a plasterer by profession.
He is represented before the Commission by Messrs. J. C. Napier
and Co., solicitors, Belfast, now incorporated in the firm of Ms. P.
Drinan, solicitor.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant was arrested under Section 14 of the Prevention of
Terrorism (Temporary Provisions) Act 1989 at 19.30 hours on 22 May
1992. He was taken to Castlereagh Detention Centre where he was
detained until 19.45 hours on 28 May 1992. He was released without
charge and without being brought before any judicial authority during
his detention.
On 23 December 1988, prior to the applicant's arrest, the United
Kingdom had informed the Secretary General of the Council of Europe
that they derogated from the requirements of Article 5 of the
Convention in respect of Section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1984. This provision was replaced by
Section 14 of the Prevention of Terrorism (Temporary Provisions) Act
1989, pursuant to which the applicant was detained.
COMPLAINTS
The applicant alleges that his arrest and detention were contrary
to Article 5 paras. 1, 2 and 3 of the Convention. He claims that he
was arrested merely for the purposes of detention and interrogation.
The applicant submits that, contrary to Article 5 para. 4 of the
Convention, he was precluded from bringing any proceedings to determine
the lawfulness of his detention. The applicant also contends that,
contrary to Article 5 para. 5 and Article 13 of the Convention, he has
no enforceable right to compensation in respect of the other alleged
breaches of Article 5.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 June 1992 and registered on
5 August 1992. The Commission decided on 31 March 1993 to communicate
the case to the respondent Government and to adjourn it pending the
outcome of two similar applications challenging the United Kingdom's
derogation of 23 December 1988: Applications Nos. 14553/89 and
14554/89, Brannigan and McBride v. the United Kingdom (Comm. Report
3.12.91), which had been referred to the European Court of Human
Rights.
The Court gave its judgment in the Brannigan and McBride cases
on 26 May 1993 (to be published in Series A no. 258-B). The
applicant's representatives were asked whether the applicant wished to
maintain his case and, if so, to submit comments on how his case could
be distinguished from those of Brannigan and McBride. On 5
1993 the applicant's representatives informed the Commission that,
"having considered the Decision in Brannigan and McBride v. the United
Kingdom and having received no further instructions in the matter, it
is not intended to proceed any further" with the case.
REASONS FOR THE DECISION
The Commission notes that the applicant complained of a denial
of his right to liberty, without redress, on his arrest and detention
under Section 14 of the Prevention of Terrorism (Temporary Provisions)
Act 1989. Article 5 of the Convention guarantees the right to liberty,
but the Court has held that detention of the duration experienced by
the applicant is compatible with Article 5 of the Convention, given the
valid derogation made by the United Kingdom on 23 December 1988. In
view of the derogation, it also held that compensation under Article
5 para. 5 of the Convention was not called for, and that detainees in
these circumstances had a remedy at their disposal in the form of an
application for habeas corpus which satisfied the requirements of
Article 5 para. 4 of the Convention in particular, and Article 13 in
general (Eur. Court H.R., Brannigan and McBride judgment of 26 May
1993, to be published in Series A no. 258-B). The Commission also
notes that in view of this case-law the applicant does not propose to
proceed with the application any further.
In these circumstances, the Commission finds that the applicant
does not intend to pursue the petition, within the meaning of Article
30 para. 1 (a) of the Convention, and that there are no reasons of a
general character concerning respect for Human Rights, within the
meaning of the last sentence of Article 30 para. 1, which require the
retention of the application.
For these reasons, the Commission, by a majority,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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