CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1973

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE PROCEEDINGS   On 16 December 1971 the Permanent Representative of Ireland to the Council of Europe filed with the Secretary General of the Council of Europe in Paris the original application which was dated 15 December 1971 and in which the applicant Government made various allegations under Articles 1, 2, 3, 5, 6 and 14 of the Convention in respect of matters concerning Northern Ireland. Copies of the application were received by the Commission's Secretary in Strasbourg on 17 December and it was registered on the same day under file No. 5310/71.   The Commission considered the application on 18 December 1971 and decided:   1.    to give precedence to the application in accordance with Rule 38, 1 of the Rules of Procedure;   2.    to request the Secretary General of the Council of Europe to give notice of the application to the respondent Government in accordance with Rule 44 of the Rules of Procedure;   3.    to invite the respondent Government to submit, before 29 February 1972, its observations in writing on the admissibility of the application.   On 25 February 1972 the applicant Government filed a supplementary memorial, dated 22 February, together with a covering letter requesting that the new memorial which contained allegations as to further and continuing breaches of Articles 1, 2, 3, 5, 6, and 14 of the Convention should be brought before the Commission as part of the original application.   The President decided that the supplementary material should be communicated at once to the respondent Government as part of the existing case-file and he extended provisionally until 21 March the time-limit for the submission of the respondent Government's written observations on admissibility. The Parties were informed accordingly and told that the Commission would consider during its next session the future procedure to be followed in regard to the new material.   Under cover of a letter dated 29 February 1972 the applicant Government submitted two affidavits which had inadvertently been omitted from the submissions of 23 February. These affidavits were also included in the case-file and copies went to the respondent Government.   Under cover of a letter, dated 3 March 1972, the applicant Government submitted a further memorial, with enclosures for inclusion in the case-file, in which the applicant Government alleged violations of Articles 1 and 7 of the Convention in relation to the Northern Ireland Act 1972. The Parties were informed that the Commission would decide the future procedure to be followed also in this regard during its next session.   The Commission considered the case on 20 March 1972 and decided that the Government's submissions of 3 March 1972 should be registered as a separate application (No. 5451/72). The respondent Government was invited to submit observations on the admissibility of this application before 1 May 1972.   With regard to the applicant Government's supplementary memorial of 22 February 1972 the Commission decided that it should be dealt with as part of the original application (No. 53110/71). The time-limit for the submission of the respondent Government's observations on the admissibility of this application was extended until 15 April 1972.   On 20 March 1972 the Commission also took note of a letter, received on the same day and dated 16 March, from the Agent of the applicant Government. It was submitted that the applicant Government had up to that date been receiving evidence from person in custody under the Special Powers Act indicating that they continued to be ill-treated in the manner complained of by the applicant Government as involving breach of Article 3 of the Convention. Reference was also made to a report, published on 13 March, of an inquiry by Amnesty International. The Commission was asked to request the respondent Government to take interim measures to ensure that such ill-treatment was discontinued pending a decision on the application in order to prevent irreparable damage. While recognising that the Commission was not expressly empowered to order or direct a Government to adopt such measures, the applicant Government submitted that the Commission did possess the power to undertake interim measures as this was the necessary attribute of its judicial function and therefore covered by the doctrine of implied powers. Reference was also made to previous cases in which the Commission had requested Governments to take interim measures. The applicant Government requested the Commission in particular to seek from the respondent Government:   first, an undertaking that all such treatment of persons in custody as had been complained of in the application as constituting a breach of Article 3 of the Convention should be discontinued; secondly, permission for attendance by observers nominated by the Commission at centres of custody to ascertain whether these persons were subjected to such treatment; and, thirdly, an undertaking that all such persons in custody should be taken to the centres where these observers would be located and that the observers should at all times be given access to such persons.   The applicant Government stated their view that the object of interim measures is generally the preservation of the rights of the parties, pending adjudication, insofar as the damage threatened to these rights would be irreparable. It was submitted that the measures suggested would not in any way prejudice the rights of the respondent Government, but that they would on the other hand protect from irreparable damage the right to physical integrity of those persons in custody who had been and were still being subjected to ill-treatment. Reference was made to the findings of the Compton Report and of the Parker Report as evidence of the ill-treatment of these persons.   The Commission decided to communicate this letter to the respondent Government for observations.   In a letter from the Agent of the respondent Government dated 23 March 1972, received by the Commission on 24 March, the respondent Government submitted their observations on the applicant Government's letter.   The Commission took note of these observations on 24 March 1972. The respondent Government observed first that the applicant Government were requesting the Commission to seek certain undertakings and were proposing in effect that the Commission should appoint observers to investigate certain allegations of violations of the Convention regardless of any considerations of admissibility. The respondent Government noted further that the proposal was made not in respect of material which the Government had already supplied to the Commission, but in respect of new and unspecified allegations. It was submitted that there was no provision in the Convention conferring on the Commission competence to order interim measures of the kind that were being sought and reference was made to the Commission's decision in application No. 297/57, Yearbook, Vol. 2, p. 204, at p. 212, that "the Convention does not contain any provision giving the Commission competence to order provisional measures".   It was submitted also that it would not be compatible with the Commission's functions under the Convention for it to seek from the respondent Government the undertakings or permission requested, or to appoint observers to supervise the activities of a State Party to the Convention. The respondent Government considered that the first undertaking which the applicant Government were requesting the Commission to seek went to the substance of certain allegations of violations of Article 3 of the Convention, and these violations were denied by the respondent Government. It was the view of the respondent Government that to seek an undertaking of the sort requested would not only amount to prejudging the question of admissibility, but in addition would prejudice any consideration of the substance of any allegations which might arise. The respondent Government made a clear distinction between this situation and those cases where in the course of proceedings before the Commission a Government have deferred a particular action. It was submitted that to request a Government to defer action which it admittedly intends to take is quite different from asking a Government to desist from acts which it denies. Objections were also made to the request that the Commission should nominate observers, the respondent Government considering that such action by the Commission would be incompatible with the Convention. While not accepting that the function of such observers would be the same as the function of determining the facts for which provision is made in Article 28 (a) of the Convention, the respondent Government observed that in any event the latter function falls to be exercised by the Commission only if a particular complaint is declared admissible.   It was the view of the respondent Government that the requests of the applicant Government constituted an attempt to circumvent the normal procedures laid down in the Convention for considering complaints and would, if acceded to, prejudge the question of admissibility of complaints which the respondent Government had not yet had the opportunity of rebutting. The respondent Government submitted that the applicant Government's requests and proposals should be rejected, emphasising that this submission was based solely on what the respondent Government regarded as the proper function of the Commission at this stage of the proceedings.   After considering the applicant Government's letter of 16 March 1972 and the observations of the respondent Government of 23 March, the Commission decided on 24 March 1972 that it did not have the power, consistent with its functions under the Convention, to meet the request made in the applicant Government's letter.   On 13 April 1972 the respondent Government requested an extension of the time-limit of 15 April for the submission of their observations on the admissibility of application No. 5310/71. In their request the Government referred to the supplementary material submitted on 25 February by the applicant Government. The respondent Government observed that a substantial part of this material related to the deaths which occurred in Londonderry on 30 January and stated that a Tribunal of Enquiry into the circumstances of these deaths had been instituted. The Tribunal had prepared its Report, which was currently under consideration by the Government. The respondent Government submitted that the Report of the Tribunal was a significant factor and that they should have time to consider its contents before commenting on the allegations of the applicant Government. They maintained that they should not, by reason of the submission of supplementary material which had been joined to the application, be asked to submit their observations otherwise than on the allegations made by the applicant Government as a whole.   On 17 April 1972 the President decided, after taking into consideration the statements made by the respondent Government in their letter of request of 13 April, to extend the time-limit until 3 May.   In a letter dated 17 April 1972 the respondent Government requested that the time-limit for the submission of their observations on the admissibility of application No. 5451/72 should be extended until 22 May.   The President granted this extension on 3 May 1972.   Under cover of a letter dated 2 May 1972, received by the Commission on 3 May, the respondent Government submitted their observations on the admissibility of application No. 5310/71. On 4 May copies of the observations were sent to the applicant Government, who were invited to submit their observations in reply before 29 June 1972.   The respondent Government's observations on the admissibility of application No. 5451/72, dated 22 May 1972, were received by the Commission on 25 May. On the same day copies of the observations were sent to the applicant Government, who were invited to submit their observations in reply before 20 July 1972.   On 30 May 1972 the Commission received the applicant Government's observations, dated 29 May, in reply to the observations of the respondent Government on the admissibility of application No. 5310/71.   The Commission decided on 30 May 1972 to invite the Parties to appear before the Commission at a hearing, opening on 17 July 1972, to make oral submissions on the admissibility of application No. 5310/71, and, if possible, also of application No. 5451/72.   By letter dated 2 June 1972 the respondent Government requested an adjournment of the hearing. On the same day the Commission decided to communicate this letter to the applicant Government for observations. In a letter of 8 June the applicant Government submitted their observations on the respondent Government's request for an adjournment. In this letter the applicant Government, while noting the difficulties which the proposed date for the opening of the hearing posed for the respondent Government, pointed out that they themselves faced similar difficulties, but were prepared to meet them. Mention was also made of the gravity of the case. The applicant Government recognised, however, that the fixing of the date of the hearing was a matter for the Commission and stated that they would understand if the Commission should decide to postpone the hearing.   On 12 June 1972 the Acting President decided to adjourn the hearing and to fix 25 September 1972 as the new opening date.   On 19 July 1972 the Commission received the observations of the applicant Government, dated 17 July 1972, in reply the respondent Government's observations on the admissibility of application No. 5451/72.   Under cover of a letter dated 29 August 1972 the respondent Government submitted copies of exhibits which they proposed to refer to in the course of the hearing on admissibility.   On 25 September 1972 the Commission decided to join applications No. 5310/71 and 5451/72 in accordance with Rule 39 of its Rules of Procedure.   The hearing on the admissibility of the two applications was held in Strasbourg on 25, 26, 27, 28 and 29 September 1972. During the course of the hearing oral and written submissions were made to the Commission by the Parties.   The applicant Government were represented at the hearing by:   MM. F.M. Hayes, Legal Adviser, Department of Foreign Affairs, Agent of the Irish Government Colm Condon, S.C., Attorney-General Miss Mary Tinney, Permanent Representative of Ireland to the Council of Europe MM. T.A. Finlay, S.C. A.J. Hederman, S.C. Aidan Browne, Barrister-at-Law John Murray, Barrister-at-Law Liam Lysaght, Chief State Solicitor P.D. Quigley, Senior Legal Assistant, Attorney-General's Office E. Gallagher, Counsellor at the Department of Foreign Affairs S. Donlon, Counsellor at the Department of Foreign Affairs Charles E. Lysaght, Assistant Legal Adviser at the Department   of Foreign Affairs Dermot Walshe, Chief State Solicitor's Office   The represenatives of the respondent Government were: Mr. Paul Fifoot, Barrister-at-Law, Legal Counsellor, Foreign and Commonwealth Office, Agent of the United Kingdom Government The Rt. Hon. Sir Peter Rawlinson, Q.C., M.P., Attorney-General MM. D.J.B. Robey, C.M.G., Permanent Representative of the United Kingdom to the Council of Europe J.G. Le Quesne, Q.C. J.B.E. Hutton, Q.C. Gordon Slynn, Barrister-at-Law, Juniour Counsel to the Treasury Nicholas Bratza, Barrister-at-Law M.G. de Winton, C.B.E., M.C., Solicitor of the Supreme Court, Assistant Legal Secretary to the Attorney-General MM. A.H. Hammond, Solicitor of the Supreme Court, Senior Legal Assistant, Home Office A.C. Thorpe, First Secretary, Foreign and Commonwealth Office R.C. Cox, First Secretary, Northern Ireland Office D. Fisher, Assistant Principal, Ministry of Defence Anthony Parry, Assistant Legal Adviser, Foreign and Commonwealth Office   THE FACTS   APPLICATION NO. 5310/71   The facts of the case, as they have been presented by the Parties, may be summarised as follows:   I.    The applicant Government's application   1.    The original submissions of 15 December 1971   On 15 December 1971 the applicant Government submitted to the Commission the application in the following terms: (1) ----------------------------- (1)   The footnotes appearing on pages 12 to 14 do not form part of the text of the original application, but have been added for editorial purposes. ----------------------------- "A.   The Objects of the Claim   The objects of the claim are:   1.    To ensure that the respondent Government will secure to everyone in Northern Ireland the rights and freedoms defined in Section 1 of the Convention and in particular the rights and freedoms defined in Articles 2, 3, 5, 6, and 14 of the Convention;   2.    To bring to the attention of the Commission breaches of Articles 1, 2, 3, 5, 6, and 14 of the Convention by the respondent Government in Northern Ireland;   3.    To determine the compatibility with the Convention of certain legislative measures and administrative practices of the respondent Government in Northern Ireland;   4.    To ensure the observance of the legal engagements and obligations undertaken by the respondent Government in the Convention.   Statements of the Facts and Arguments   B.    Breach of Article 1 of the Convention   1.    The applicant Government refers the Commission to the provisions of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 and the Statutory Rules, Regulations and Orders made thereunder. The said Act, Rules, Regulations and Orders and two commentaries upon them and three law reports (1) in which they are considered are contained in Appendix 1 of the attached documents. ----------------------------- (1)   McEldowney v. Forde [1971] AC 632 H.L. (N.I.); judgment of 12 October 1971 (so far unpublished) of McGonigal J. on a habeas corpus application by J. McElduff; and R. (O'Hanlon) v. Governor of Belfast Prison 56 Fr.L.T.R.170. ----------------------------- 2.    The applicant Government submits that the provisions of the said Act, Rules, Regulations and Orders herinbefore mentioned are of themselves a failure by the respondent Government to comply with the obligation imposed on it by Article 1.   3.    It further submits that the methods employed or permitted by the respondent Government in the implementation of the said Act, Rules, Regulations and Orders constitute an administrative practice by the respondent Government, as is evidenced by the facts submitted in support of the references concerning breaches of Articles 2, 3,   5, 6 and 14 of the Convention, (which said facts are relied on in support of this submission as well as in support of the submissions in respect of the breaches of the individual Articles), and constitute a breach by the respondent Government of its said obligations under Article 1.   4.    The matter herein being referred to the Commission, being a breach by the respondent Government of the obligations imposed on it by Article 1 of the Convention, there is no domestic remedy available to the applicant Government, or to any person in respect of the matter referred.   C.    Breach of Article 2 of the Convention   1.    The applicant Government refers the Commission to the deaths of Eamon McDevitt, Francis McGuiness, Father Hugh Mullan, William Kavanagh, Robert Anderson, James McLaughlin and Sean Ruddy, which said deaths were caused by security forces of the respondent Government.   2.    The facts relating to the said deaths are set out in Appendix 2 of the attached documents (2) ----------------------------- (2)   The deaths of the four first mentioned persons occurred in August 1971 and the other three died in October 1971. ----------------------------- 3.    The applicant Government submits that the said deaths are a breach by the respondent Government of Article 2 of the Convention.   4.    It further submits that the said deaths did not occur within the circumstances laid down in Article 2 (2) (a), 2 (2) (b), or 2 (2) (c) of the Convention.   5.    It refers the Commission to three communications of the respondent Government dated 27 June 1957 (1), 25 September 1969 (2) and 25 August 1971 (3), informing the Secretary General of the Council of Europe of measures taken by the respondent Government purporting to derogate from its obligations under the Convention and contained in Appendix 3. The said measures do not and could not constitute a derogation by the respondent Government from its obligations under Article 2 having regard to the provisions of Article 15 (2) of the Convention.   6.    It submits that the breaches of Article 2 of the Convention referred to the Commission are not only the deprivation of life of a number of individuals, but are also, and predominantly an administrative practice, and a series of operations endangering the right to life. The provisions of Article 26 of the Convention do not apply in such circumstances.   7.    It submits this constitutes a failure by the respondent Government as a matter of administrative practice to protect by law the right to life of persons within their jurisdiction in Northern Ireland; as such, there is no domestic remedy available to the applicant Government or to any individual or group of individuals in respect of the matter referred.   8.    It further submits that none of the persons killed in breach of Article 2 of the Convention, has got in himself any right to a remedy in accordance with the domestic law of the respondent Government, and the applicant Government will submit that such rights, if any, as exist in members of the family or dependents of individuals so killed, are irrelevant to the provisions of Article 26 of the Convention.   D.    Breaches of Article 3 of the Convention   1.    On the 9th day of August 1971 some 342 persons were taken into custody by security forces of the respondent Government. This was done pursuant to the provisions of the said Civil Authorities (Special Powers) Act (Northern Ireland) 1922 and the said Rules, Regulations and Orders made thereunder. Since that date more than 1,000 persons have been similarly taken into custody. ---------------------------------- (1)   Yearbook, Vol. 1, p. 50   (2)   Yearbook, Vol. 12, ppl 72-74   (3)   Annexed to this decision ----------------------------------   2.    Persons taken into custody in the early stages were detained in varying numbers of different centres, namely Palace Barracks, Girdwood Park and Ballykinlar and to a lesser extent in Magilligan and elsewhere. Of that 342 persons, about 105 persons were released within 48 hours without any charge having been preferred against them. Subsequently further persons were taken into custody and detained in Palace Barracks and elsewhere.   3.    The applicant Government refers the Commission to the affidavits and statements of persons so detained in the said Palace Barracks, Girdwood Park and Ballykinlar which are contained in Appendices 4, 5 and 6 respectively of the attached documents and to the affidavits and statements of persons who were detained elsewhere which are contained in Appendix 7 of the attached documents.   4.    It further refers the Commission to the statements of medical doctors and other medical specialists who subsequently saw or examined some of the persons who had been or were so detained, or who are in a position to comment on their treatment, which are contained in Appendix 8 of the attached documents.   5.    It further refers the Commission to a report and supplemental report of a Committee of Inquiry appointed by the Secretary of State for the Home Department of the respondent Government (known as the Compton Report) which are contained in Appendix 9 of the attached documents (1).   6.    The applicant Government submits that the persons referred to in the said Appendices were subjected to treatment which constitutes torture and inhuman and degrading treatment and punishment and which was carried out by the security forces of the respondent Government and is a breach of Article 3 of the Convention.   7.    The facts of torture and of inhuman and degrading treatment and punishment referred to in paragraph 6 and the failure to prosecute and punish those responsible constitute a denial of justice on the part of the respondent Government. The rule of international law according to which domestic remedies must be exhausted before the Commission can deal with an application does not apply where there is such a denial of justice as aforesaid.   8.    The forms of treatment to which the persons referred to were subjected and the power of re-arrest, detention and internment would constitute an impediment and deterrent to the pursuit of any remedy within the domestic law and of the respondent Government. ----------------------------------------------------------------------- -------- (1)   Report of the Enquiry into Allegations against the Security Forces of physical Brutality in Northern Ireland (Cmnd. 4823). ----------------------------------------------------------------------- --------   9.    It further submits that the matter here referred to the Commission is not only a number of breaches by the respondent Government of Article 3 of the Convention in respect of the treatment of individuals, but also constitutes an administrative practice, and a continued series of executive acts, exposing a section or sections of the entire population within its jurisdiction in Northern Ireland to torture or inhuman or degrading treatment or punishment.   10.   The applicant Government submits by reason of the foregoing that the matter being referred to the Commission is not one in respect of which the applicant Government or any person or group of individuals can obtain a remedy in accordance with the domestic law of the respondent Government.   11.   It further submits that the only purported remedy available to a person subjected to the aforesaid treatment constituting a breach of Article 3 of the Convention, within the domestic law of the respondent Government, is, in the case where the tort of assault has occurred, the right to claim monetary damages. Such a remedy is not an effective remedy, nor is it an sufficient or adequate remedy for the acts referred in this submission to the Commission, and constituting breaches of Article 3 of the Convention. Further, in cases where no such tort of assault has occurred not even this purported remedy exists.   12.   The applicant Government further submits that the said breaches of Article 3 of the Convention in addition constitute a breach by the respondent Government of Article 1 of the Convention, and submits that this is a matter in respect of which there is no domestic remedy within the law of the respondent Government.   E.    Breaches of Articles 5 and 6 of the Convention   1.    Subsequent to the events related in paragraphs D.1. and D.2. of this application a considerable number of persons were interned without trial by the respondent Government. The exact number of persons at present interned without trial is not known to the applicant Government but it is estimated to be in the region of some 400 persons. The applicant Government submits that the internment of persons as has been and is being carried out in Northern Ireland is a breach of Article 5 and 6 of the Convention.   2.    The applicant Government refers the Commission to the Civil Authorities (Special Powers) Act, (Northern Ireland) 1922 and the Statutory Rules, Regulations and Orders made thereunder, contained in Appendix 1 of the attached documents.   3.    The applicant Government submits that the powers contained in the said Act, Rules, Regulations and Orders and the operation by the respondent Government of the said powers in Northern Ireland are in breach of Articles 5 and 6 of the Convention.   4.    The applicant Government refers to the communications of the respondent Government referred to in paragraph C.5. and contained in Appendix 3 of the attached documents.   5.    The applicant Government submits that the scope and form of the measures taken by the respondent Government in purported derogation from its obligations under the Convention are far greater and more extensive than the measures which would be strictly required by the exigencies of the situation and are inconsistent with the obligations of the respondent Government under international law.   6.    The acts herein referred as breaches of Articles 5 and 6 of the Convention are lawful within the domestic law of the respondent Government, being in accordance with the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 and the Statutory Rules, Regulations and Orders made thereunder, and as such are acts in respect of which neither the individuals affected by them, nor the applicant Government, has any remedy within the domestic law of the respondent Government.   7.    The applicant Government further submits that the said breaches of Articles 5 and 6 of the Convention in addition constitute a breach by the respondent Government of Article 1 of the Convention and submit that this is a matter in respect of which there is no domestic remedy within the law of the respondent Government.   8.    The only possible purported remedy available to a person so interned in breach of Articles 5 and 6 of the Convention is a right to make representations to an advisory Committee to consider representations from internees (known as the Brown Committee). The applicant Government refers the Commission to a memorandum concerning the terms of reference of the said Committee which is attached in Appendix 10 of the attached documents. 9.    A person either arrested or detained pursuant to the provisions of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 or under the said Rules, Regulations or Orders made thereunder has no legal remedy.   10.   The said Committee is an advisory body only and has no power to release any person subjected to internment and its procedures are not in accordance with natural justice. No other body of a quasi-judicial or purported judicial nature has been provided by the domestic law of the respondent Government for the examination of or adjudication on the rights of persons so interned pursuant to the Act, Rules, Regulations and Orders hereinbefore mentioned.   11.   Persons not interned, but who are either held in custody or detained, have neither the right to make representations to the said Brown Committee or to any other Committee of a quasi-judicial or other purported judicial nature.   F.    Breaches of Article 14 of the Convention   1.    The applicant Government refers the Commission to its aforesaid submissions in relation to breaches of Article 5 and 6 of the Convention. It further refers the Commission to the matters set out in Appendix 11 of the attached documents.     2.   The applicant Government submits that the exercise by the respondent Government and by the security forces under its control of its powers to detain and intern persons has been and is being carried out with discrimination on the grounds of political opinion.   3.    It further submits that the acts of the respondent Government set out in paragraph 2 hereof is a failure to secure without discrimination to persons within its jurisdiction the rights and freedoms conferred by Articles 5 and 6 and is therefore a breach of Article 14 of the Convention.   4.    The applicant Government again refers the Commission to its aforesaid submissions in relation to Articles 5 and 6 of the Convention and to the matters set out in Appendix 11 of the attached documents. 5.    The applicant Government submits that the exercise by the respondent Government and by the security forces under its control of its powers to search homes has been and is being carried out with discrimination on the grounds of political opinion.   6.    It further submits that the acts of the respondent Government set out in paragraph 4 hereof is a failure to secure without discrimination to persons within its jurisdiction the rights and freedoms conferred by Article 8 of the Convention and is therefore a breach of Article 14 of the Convention.   7.    The applicant Government further submits that the said breaches of Article 14 of the Convention in addition constitute a breach by the respondent Government of Article 1 of the Convention and submits that this is a matter in respect of which there is no domestic remedy within the law of the respondent Government.   G.    General   1.    Where possible, the applicant Government has referred the Commission to sworn affidavits relating to the breaches of the Convention complained of. Photo-copies of these affidavits have been furnished to the Commission. The original affidavits are in the possession of the applicant Government and can be produced before the Commission if required.   2.    Where it has not been possible, for reasons outside the control of the applicant Government, to obtain sworn affidavits, statements relating to such breaches have been furnished to the Commission. The original statements are in the possession of the applicant Government and can be produced before the Commission if required.   3.    The Government further refers the Commission to newspaper articles, statements and other reports contained in Appendix 12 of the attached documents, which should assist the Commission both in giving it background information and corroborative evidence of the matters complained of in this application.   H.   1.    The applicant Government reserves the right to bring before the Commission on this application any further evidence or statements relating to any breach or to any future breach of any of the Articles mentioned in this application by the respondent Government in Northern Ireland where any such further evidence or statements becomes available to it and to submit further or other arguments as may appear to be necessary."   2.    The supplementary memorial of 22 February 1972   The applicant Government stated that the object of this supplementary memorial was to draw to the attention of the Commission further and continuing breaches of Articles 1, 2, 3, 5, 6 and 14 of the Convention.   In particular, reference was made to the deaths of two further persons on 8 July 1971 (1) and to the deaths of thirteen persons (2) and the wounding of sixteen others in Londonderry on 30 January 1972. It was alleged that these deaths had been caused by the security forces of the respondent Government in breach of Article 2 of the Convention.   As regards the alleged breaches of Article 3 of the Convention, the applicant Government referred to a number of further affidavits and other statements made by, or relating to, persons who had been held in custody by the security forces and to statements made by doctors who subsequently examined such persons. Further material and evidence were also submitted with regard to the alleged violations of Articles 5, 6 and 14 of the Convention. -------------------------------------- (1)   George Beattie and Seamus Cusack   (2)   Jackie Duddy, Patrick Doherty, Bernard McGuigan, Hugh Gilmore, Kevin McIlhinney, William Nash, John Young, Michael McDaid, Michael Kelly, James Joseph Wray, Gerald Donoghy, Gerald McKinney and William McKinney. --------------------------------------   3.    The final submissions of 29 September 1972   At the hearing on admissibility the Commission asked the applicant Government to indicate the elements in the situation today which, in their submission, were incompatible with the Convention. The applicant Government replied as follows:   "The elements in the situation today within the territory of the respondent Government which the applicant Government submits are incompatible with the Convention are the following legislative measures and administrative practices.   (1)   The persons responsible for the killing of the 22 people referred to in the Application have not been punished nor disciplined. This situation remaining today is incompatible with the respondent Government's obligations under Articles 1 and 2 to secure that the right to life is protected by law.   (2)   Beating and assault by security forces of persons arrested, detained and interned continues and remains unpunished and this situation today is incompatible with the respondent Government's obligations under Articles 1 and 3.   (3)   The provisions of the Special Powers Act (Northern Ireland) 1922 and the Rules, Regulations or Orders made under it and the method of implementing these measures remain today unchanged from the position outlined in the application and this situation today is incompatible with the respondent Government's obligations under Articles 1, 5, 6 and 14."   II.   Submissions of the Parties   In their written observations on admissibility and at the hearing of 25 to 29 September 1972 the Parties made further submissions as follows:   A.    As to the background   1.    Submissions of the respondent Government   (a)   In their written and oral observations on admissibility the respondent Government outlined the constitutional position of Northern Ireland and made certain other submissions which were described in the written observations as background material of a legal and factual nature.   The respondent Government stated that Northern Ireland was an integral part of the United Kingdom. The Government of Ireland Act 1920 established as separate Parliament and Executive for Northern Ireland. The Northern Ireland Parliament was given extensive legislative powers in respect of all domestic matters concerning the government of Northern Ireland except in certain specific matters excluded under the Act. Under Sec. 75 of the Act, the United Kingdom Parliament remained, however, the supreme authority over Northern Ireland but it was rare for the United Kingdom Parliament to legislate for Northern Ireland in matters within the competence of the Northern Ireland Parliament.   On 30 March 1972 the United Kingdom Parliament passed the Northern Ireland (Temporary Provisions) Act 1972 which made temporary provision for the exercise of the executive and legislative powers of the Government and Parliament of Northern Ireland by authorities of the United Kingdom. This Act was passed because of the public emergency in Northern Ireland and the reasons for its enactment were explained in a statement made by the Prime Minister in the House of Commons at Westminster on 24 March 1972.   (b)   The respondent Government also referred to the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 which, dealing with matters affecting law and order and the security of Northern Ireland, was an Act passed by the Northern Ireland Parliament. Under Sec. 1 (1) of the Act the Civil Authority had power, in respect of persons, matters and things within the jurisdiction of the Government of Northern Ireland, to take all such steps and issue all such orders as may be necessary for preserving peace and maintaining order in accordance with the Act and the Regulations ("the Special Powers Regulations") contained in the Schedule thereto, or any other Regulations made in accordance with the Act. This sub-section also required that the ordinary course of law and avocations of life and the enjoyment of property should be interfered with as little as might be permitted by the exigencies of the steps required to be taken under the Act. Section 1 (2) provided that the Civil Authority was the Minister of Home Affairs for Northern Ireland. Under the Act of 1972 the functions of this Minister were exercisable temporarily by the Secretary of State for Northern Ireland.   Under Section 1 (3) of the Act the Minister of Home Affairs had power to make further Regulations to the preservation of peace and maintenance of order and to vary or revoke any provision of the Regulations. Such Regulations were required to be laid before the Northern Ireland Parliament and were subject to amendment on an address by either House of that Parliament. Under the 1972 Act the power to make Regulations was vested in the Secretary of State for Northern Ireland who could not make Regulations unless a draft was approved by the United Kingdom Parliament, except where by reason of urgency this procedure could not be followed, in which case the Regulations had to be laid before the United Kingdom Parliament after being made and would expire if within 40 days they were not approved by each House.   Under Regulation 24 of the Special Powers Regulations certain associations were declared to be unlawful including the Irish Republican Army (hereinafter referred to as "the IRA").   (c)   The respondent Government further stated that there was, and had been at all times material to the application, a public emergency threatening the life of the nation. This emergency had been caused by the IRA which was a clandestine organisation with quasi-military dispositions, which accepted neither the structure of government in the Republic of Ireland nor the existence of Northern Ireland as part of the United Kingdom, and was dedicated to changing both by force. From time to time the IRA mounted campaigns of violence. Such, for example, were the campaigns of 1939-41 and 1956-62 which were referred to by the applicant Government in the Lawless Case (application No. 332/57). At present the IRA was divided into "Official" and "Provisional" wings. This division occurred in 1969 and led to a revival of organised violence and intimidation. During 1971 the incidence of violence, terrorism and intimidation intensified. The respondent Government made detailed written and oral submissions with regard to such acts of violence and stated, inter alia, in this connection that, between 1 August 1969 and 12 September 1972, indiscriminate bombings and other terrorist activity resulted in the death of at least 259 civilians and the injury of over 5,000 persons. 170 members of the British Army and the police were killed and 1,251 injured. In the same period there were more than 2,300 bomb explosions which caused extensive damage to property. During this period the security forces seized 1,715 firearms, including 75 machine guns and 690 rifles; 348,000 rounds of ammunition; 6 3/4 tons of explosives plus a further 7 tons of explosives retrieved from bombs dismantled by the security forces; 7,000 detonators; over 5 miles of fuse wire; 3,200 grenades and nail bombs and 250 gallons of acid for the making of bombs. The respondent Government submitted that the IRA had deliberately killed people on account of their political views or to prevent them from giving evidence. One effect of IRA terrorism was to deter people from coming forward as witnesses and this had stultified the ordinary methods of enforcing the law.   (d)   The respondent Government further stated that the applicant Government were well aware of the dangers to them from the IRA and had condemned its activities. During previous periods of violence the applicant Government had resorted to internment and the introduction of special criminal courts. However, despite the fact that the IRA has been declared an illegal organisation in the Republic of Ireland since 1936, both wings of the IRA operated from known addresses in Dublin, leading members of both wings were known to the public, and both wings openly claimed responsibility for specific acts of terrorism.   Little attempt appeared to have been made by the applicant Government to take effective action against the IRA and the ability of those responsible for acts of violence in the North to seek sanctuary south of the border had undoubtedly had an adverse effect on the security situation in the North, and contributed to the existence of a state of emergency in Northern Ireland. The ineffectiveness of the applicant Government in controlling the activities within their own territory was shown by a number of cross-border shootings by terrorists and other incidents of violence in the border area where terrorists had been seen to cross the border before or after an attack or had reasonably been believed to have done so.   The respondent Government also referred to representations made by them to authorities of the applicant Government on various occasions in connection with cross-border incidents and to the respondent Government's unsuccessful attempts to obtain the extradition of persons wanted by the Northern Ireland police.   2.    Submissions of the applicant Government   the applicant Government submitted in reply that the observations of the respondent Government, which have been summarised in paragraphs (a) and (b) above, called for no comment on the issue of the admissibility of the application. As regards the submissions summarised in paragraphs (c) and (d) above, these were relevant to the application (if at all) only to the extent to which they related to the question whether the notifications sent by the respondent Government pursuant to Article 15 (3) of the Convention were warranted under Article 5 (1). They were not relevant to the question of admissibility.   The applicant Government strongly objected to the respondent Government's allegations that they had in any way failed to take effective action against members of illegal organisations or to secure proper control of the border. The applicant Government maintained that such allegations of action or inaction on their part were wholly irrelevant to the present application. In the applicant Government's submission they had behaved with utmost responsibility in matters of security and in regard to the border. They had proposed that a United Nations observer group should operate in the border area on both sides to assist in preventing breaches of the peace but the respondent Government had not agreed to this proposal.   The applicant Government also emphasised that they had taken positive steps to deal with the security situation. The criminal law relating to firearms and explosives in Ireland was similar to the law in the United Kingdom. In 1971, legislation had been passed which made it clear that to possess arms with the intention of endangering life outside the jurisdiction of the applicant Government was a very serious offence. All firearms, except sporting shotguns, had been called in and there was rigorous control of explosive substances. In addition certain chemicals which could be used to make explosives had been banned. Moreover, the police force had been steadily increased and a high proportion of the force were stationed in the border area where they were assisted in policing the border by a substantial portion of the Irish Army. In view of the fact that certain persons, who appeared on the evidence to be guilty of offences against the legislation relating to illegal organisations, firearms, explosive substances or certain other matters, had been acquitted in the courts, a special court was set up in May 1972 to deal with cases of this type. Many cases had been dealt with by the court and there had been a high proportion of convictions. Every individual who could be proved to belong to a subversive organisation was brought to trial.   B.    General submissions Both Parties made certain general submissions, which relate to more than one Article of the Convention. These submissions were mainly under Article 15 (right of derogation in public emergency) and Article 25 of the Convention (question of exhaustion of domestic remedies).   1.    Submissions of the respondent Government   (a)   In their written and oral submissions the respondent Government denied that they were in breach of their obligations as alleged by the applicant Government; in particular they denied that they were in breach of their obligations under Articles 1, 2, 3, 5, 6 or 14 (or Articles cited in conjunction with 14) of the Convention.   (b)   Without prejudice to that submission the respondent Government reiterated that there was in Northern Ireland, and had been at all times relevant to this application, a public emergency threatening the lifes of the nation. This emergency existed because of the activities of the IRA in the pursuance of its aims to destroy the existence of Northern Ireland as a part