AS TO THE ADMISSIBILITY OF
Application No. 12583/86
by T.N.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 5 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 November 1986
by T.N. against the United Kingdom and registered on 1 December 1986
under file No. 12583/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mr. T.N., is a citizen of the United Kingdom,
born in 1965. He is at present unemployed and lives in Cookstown,
Northern Ireland. He is represented in the proceedings before the
Commission by J.C. Napier & Co., solicitors, Belfast.
The facts as agreed between the parties may be summarised as
follows:
The applicant was arrested on 1 October 1986 by officers of
the Metropolitan Police Force at premises in Heston, Middlesex, under
Section 12 (1) (b) of the Terrorism (Temporary Provisions) Act 1984.*
He was told that he was being arrested under the 1984 Act on
suspicion that he had been involved in acts of terrorism on behalf of
the Provisional IRA.
_________
* The relevant parts of Section 12 of the 1984 Act provide as follows:
"(1) A constable may arrest without warrant a person whom he
reasonably suspects to be -
(a) a person guilty of an offence under section 1, 9, 10
or 11 of this Act;
(b) a person who is or has been concerned in the commission,
preparation or instigation of acts of terrorism;
(c) a person subject to an exclusion order.
(3) The acts of terrorism to which this Part of the Act applies are -
(a) acts of terrorism connected with the affairs of
Northern Ireland; and
(b) acts of terrorism of any other description except acts
connected solely with the affairs of the United Kingdom
or any part of the United Kingdom other than Northern Ireland.
(4) A person arrested under this section shall not be detained in
right of the arrest for more than forty-eight hours after his arrest;
but the Secretary of State may, in any particular case, extend the
period of forty-eight hours by a further period or periods specified by him.
(5) Any such further period or periods shall not exceed five days
in all.
(6) The following provisions (requirement to bring an accused person
before the court after his arrest) shall not apply to a person
detained in right of the arrest -
...
(d) Article 131 of the Magistrates' Courts (Northern
Ireland) Order 1981; ..."
The applicant had travelled to England in June 1986 from
Cookstown in Northern Ireland, where he lived. Information
received by the Metropolitan Police gave rise to concern that he may
have been present in Great Britain with a view to preparing acts of
terrorism connected with the affairs of Northern Ireland. In
particular he was suspected of membership of the Provisional IRA, an
organisation proscribed in Great Britain under Section 1 of and
Schedule 1 to the 1984 Act. The applicant had previously been
arrested in November 1985 with his brother on suspicion of involvement
in the planting of a bomb, although no charges were brought against
him on this occasion.
After his arrest the applicant was taken to Rochester Row
Police Station in London, where he was interrogated. He declined to
answer any questions.
On 2 October 1986, his detention was extended by a further
four days. The Secretary of State granted a further extension of the
applicant's detention by one day on 6 October 1986.
On 7 October 1986 an exclusion order under Section 4 of the
1984 Act was made against the applicant. The Secretary of State was
satisfied that he had been concerned in the commission, preparation or
instigation of acts of terrorism designed to influence public opinion
or government policy with respect to affairs in Northern Ireland. The
applicant was subsequently removed to Northern Ireland later that day.
On 1 October 1987 the applicant was charged with various
offences in Northern Ireland, including attempted murder of a member
of the security forces in Cookstown, possession of firearms and unlawful
imprisonment. He is, at present, remanded in custody awaiting trial.
COMPLAINTS
In the application form the applicant made the following
complaints under Article 5 of the Convention:
- that his arrest under Section 12 of the Act constituted a
breach of Article 5 paras. 1 and 2 of the Convention;
- that he was arrested solely for the purpose of detaining him
and that his detention was not justified under Article 5 para. 1;
- that he was arrested solely for the purposes of interrogation
contrary to Article 5 para. 1;
- that he was prevented from bringing any proceedings to
determine the lawfulness of his detention by Section 12 and para. 5
(2) Schedule 3 of the 1984 Act in breach of Article 5 para. 4;
- that he was denied any enforceable right to compensation as a
result of Section 12 and para. 5 (2) of Schedule 3 of the 1984 Act in
breach of Article 5 para. 5.
The applicant further claimed that the lack of an enforceable
right to compensation constitutes a breach of Article 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 November 1986 and
registered on 1 December 1986. It was first considered by the
Commission on 7 October 1987 when it was decided to give notice of the
application to the respondent Government, in accordance with Rule 42
para. 2 of the Rules of Procedure, and to adjourn the application
pending the judgment of the European Court of Human Rights in the case
of Brogan and Others v. the United Kingdom (Nos. 11209/84, 11234/84,
11266/84, 11385/85).
Following 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)
the Commission decided on 12 December 1988 to request the respondent
Government to submit written observations on the admissibility and
merits of the application.
The Government's observations were submitted on 31 March 1989
after an extension of the time-limit for the filing of the observations
had been granted. The applicant's observations in reply were
submitted on 25 April 1989. Comments on these observations were made
by the Government on 12 June 1989 followed by comments of the
applicant dated 18 October 1989.
The applicant was granted legal aid by the Commission on
12 May 1989.
In his observations in reply of 25 April 1989, the applicant
indicated that he was no longer complaining of a breach of Article 5
paras. 1, 2 and 4 of the Convention. He stated that he limited his
complaint to Article 5 paras. 3 and 5 of the Convention. He further
indicated that in the light of the case of Brogan and Others (loc.
cit) it was unnecessary to consider the case under Article 13 where
there were breaches of Article 5 paras. 3 and 5 of the Convention.
THE LAW
1. The applicant was arrested by the police in Heston, Middlesex,
on 1 October 1986 under Section 12 (1) (b) of the Prevention of
Terrorism (Temporary Provisions) Act 1984. He was told that he was
being arrested under the 1984 Act on suspicion that he had been
involved in acts of terrorism on behalf of the Provisional IRA. He
was detained by the police until 7 October 1986 when he was served
with an exclusion order requiring his removal from Great Britain to
Northern Ireland. In his application form to the Commission the
applicant, who was legally represented, alleged violations of
Article 5 paras. 1, 2, 4, 5 (Art. 5-1, 5-2, 5-4, 5-5) and Article 13
(Art. 13) of the Convention. He did not complain either formally
or in substance that he was not brought promptly before a judge in
breach of Article 5 para. 3 (Art. 5-3) of the Convention.
2. In his reply to the observations of the Government the
applicant conceded that there was no breach of Article 5 paras. 1, 2
and 4 (Art. 5-1, 5-2, 5-4) of the Convention. In these circumstances
the Commission considers that it is not necessary to examine these
complaints any further.
3. The applicant maintained, however, that that there was a
violation of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the
Convention in view of the case of Brogan and Others (Eur. Court H.R.,
judgment of 29 November 1988, Series A No. 145 B).
The Commission notes that the applicant did not complain under
Article 5 para. 3 (Art. 5-3) either formally or in substance when he
introduced the application before the Commission on 26 November 1986.
He first raised this complaint in his observations in reply dated 25
April 1989.
In the opinion of the Commission this complaint has thus been
introduced out of time since it was made more than six months from the
date of the applicant's arrest and detention, which must be regarded
as the final decision for the purposes of Article 26 (Art. 26) of the
Convention.
Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted
or suspended the running of that period.
It follows that the applicant's complaint under Article 5
para. 3 (Art. 5-3) must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicant further complains under Article 5 para. 5
(Art. 5-5) of the Convention which provides that
"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."
However, it is clear that an issue will only arise under this
provision where there has been an arrest or detention in contravention
of the provisions of Article 5 (Art. 5) (see the case of Brogan and Others,
loc. cit., p. 35 para. 67). For the reasons set out above, this issue
does not arise for consideration in the present case.
It follows that even if this complaint could be considered as
having been introduced in time, it must be rejected as manifestly
ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.
5. Finally, as regards the applicant's complaint under Article
13 (Art. 13), it is not clear from the applicant's submissions whether
it can be said that this complaint has been withdrawn. However, even
assuming that the complaint is maintained, it must also be considered
to have been introduced out of time insofar as the complaint is made
in conjunction with Article 5 para. 3 (Art. 5-3) of the Convention.
Consequently, it must also be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy