CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 juillet 1986

.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 European Commission of Human Rights sitting in private on 12 July 1986, the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs. G. H. THUNE               Sir Basil HALL                 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 (Art. 25);   Having regard to the application introduced on 2 May 1985 by W. H. against the United Kingdom and registered on 7 May 1985 under file N° 11539/85;   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. William T. Harkin, born in 1961, is a citizen of the United Kingdom, at present residing in Belfast.   He is unemployed. He is represented, in proceedings before the Commission, by Mr. J. C. Napier, solicitor, Belfast.   On 22 April 1985 the applicant and four others were arrested at Cairnryan Harbour, Scotland, as he was about to board a ship to return to Northern Ireland.   He states that he was returning from a conference which had been held at Glasgow University on 19-21 April 1985 on the use of asbestos in public authority housing.   The applicant was told he was being detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1984.   Article 4(1) of the Order provides that   "an examining officer may examine any persons who have arrived in or are seeking to leave Great Britain by ship or aircraft for the purpose of determining   -        a. whether any such person appears to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Article applies;     ..."   Article 4(2) provides that   "the period of a person's examination under paragraph 1 shall not exceed twelve hours but, if an examining officer has reasonable grounds for suspecting that the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Article applies, he may require him, in writing, to submit to further examination."   Article 5(1) states "that it shall be the duty of any person examined under Article 4 to furnish to the person carrying out the examination all such information in his possession as that person may require for the purpose of his functions under that Article."   Article 9(1) concerns the detention of persons liable to examination and states as follows:   "A person who is examined under Article 4 may be detained, under the authority of an examining officer, pending the conclusion of his examination or pending consideration of the question whether to make an exclusion order against him for a period not exceeding 48 hours beginning with the time when he is first examined."   The applicant was served with a notice in the course of 22 April 1985 informing him that he was required to submit to further examination pursuant to Article 4(2) and that he was to be detained for this purpose under Article 9(1) of the Order.   He was detained at Stranraer Police Station from midday on 22 April until his release at 6.15 p.m. on 23 April.   His fingerprints and photograph were taken and he was confined to a cell.   He had one interview, lasting three quarters of an hour with a single police officer who discussed his family and friends and the purpose of his visit.   This took place in the evening of 22 April 1985.   He states that although his subsequent detention was not subject to any further interviews or questions, he was not released until 6.15 p.m. on the following day.   He states that he was not informed by the police officer of any criminal offence he was alleged to have committed or given any other reason for his arrest and detention.   He was not brought before a judge or other officer authorised by law to exercise judicial power or given any opportunity for release on bail.   COMPLAINTS AND SUBMISSIONS   The applicant complains that his arrest and detention constitute a breach of Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2, art. 5-4, art. 5-5) and Article 13 of the Convention (Art. 13).   He states that he was arrested solely for the purpose of detaining and harassing him.   The applicant submits that there are significant differences between his case and that of McVeigh and Others (Comm. Report 18.3.81, D.R. 25 pp. 15-59).   In the McVeigh case the applicants were resident in Britain and were returning to a place outside the United Kingdom. In the present case the applicant was travelling internally within the United Kingdom and had been admitted to mainland Britain from Northern Ireland a few days prior to his detention without any arrest or detention under the 1984 Order for examination.   He submits that in such circumstances the obligation to "submit to further examination" is not reasonable.   It is submitted that the Commission's reasoning in this case does not apply since the detention of the applicant was arbitrary or effected for an improper purpose or in excess of what was reasonable for the carrying into effect of the objects of the 1984 Act.   THE LAW   1.       The applicant complains of his arrest and detention under Articles 4 and 9 of the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1984.   He was detained for approximately 31 hours between 22 and 23 April 1985.   He alleges a breach of Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2, art. 5-4, art. 5-5) as well as of Article 13 of the Convention (Art. 13).     As regards Article 5 para. 1 (Art. 5-1)   2.       The relevant parts of the provision provide as follows:   1.   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: ...   (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;   3.       The Commission notes that the applicant was detained for examination as to whether he was a person concerned in the commission, preparation or instigation of acts of terrorism.   He was required to submit to further examination pursuant to Article 4(2) and detained under Article 9(1) of the Order.   4.       The Commission recalls that it considered, in detail, the same issue in the case of McVeigh and Others v. the United Kingdom concerning similar legal powers contained in the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1976.   It found, in that case, that the applicants' detention for 45 hours under these powers was justified under Article 5 para. 1 (b) (Art. 5-1-b). The Commission refers to its detailed examination of this issue in that case (see Comm. Report 18.3.81, D.R. 25 paras. 168-196).   5.       The Commission considered whether the obligation to submit to examination was sufficiently "concrete and specific" to be capable of falling within the scope of Article 5 para. 1 (b) (Art. 5-1-b), and if so whether there were circumstances sufficient to warrant the applicants' detention in order to secure its fulfilment (ibid., para. 182).   The Commission found as follows:   "186.   The obligation to submit to examination does not amount to a general obligation to submit to questioning or interrogation on any occasion, or for any purpose.   In this respect it can be contrasted with the power of arrest for interrogation under Regulation 10 of the Special Powers Regulations considered in the Irish inter-State Case   ... It is in essence an obligation to submit to a security check (if so required) on entering or leaving Great Britain.   The purpose of the check is limited to determining the matters set out in Article 5 of the 1976 Order.   The scope of the obligation is furthermore effectively limited by the limitation set on the duration of detention permitted under Article 10 of the 1976 Order.     ...   188.     In all the circumstances, the Commission considers that the obligation imposed on the present applicants to submit to examination was a specific and concrete obligation and that the United Kingdom authorities were therefore in principle entitled under Article 5 (1) (b) (Art. 5-1-b) to resort to detention to secure its fulfilment.   In reaching this conclusion the Commission has particularly taken into account the fact that the obligation in question arises only in limited circumstances, namely in the context of passage over a clear geographical or political boundary. Furthermore the purpose of the examination is limited and directed towards an end of evident public importance in the context of a serious and continuing threat from organised terrorism."   6.       The Commission further found that the applicant's detention was necessary to carry out the examination.   It stated:   "192.   The Commission has already noted that the obligation imposed on the applicants in the present case was, in essence, an obligation to submit to a security check on entering Great Britain, the scope of the check being limited (broadly speaking) to the prevention of terrorism. The importance in present day conditions of controlling the international movement of terrorists has been widely recognised in Western Europe, in particular by the Parliamentary Assembly of the Council of Europe ...   In the particular context of the United Kingdom there is also evident importance in controlling and detecting the movement of terrorists not only between the United Kingdom and the Republic of Ireland but also   between Great Britain and Ireland as a whole, including Northern Ireland.   The necessary checks must obviously be carried out as the person concerned enters or leaves the territory in question and there is a legitimate need to obtain immediate fulfilment of the obligation to submit to such checks.   193.   The Commission further notes that, from the information before it, it appears that the powers of examination are, so far as reasonably practicable, exercised without resort to detention, the majority of persons examined being subjected only to a relatively short examination at the port of entry or departure.   It is true that where the authorities consider a prolonged examination to be necessary, detention is apparently used invariably. There is no provision for release on bail pending examination, in contrast to the position under the normal immigration legislation in the United Kingdom ...   However, release on bail scarcely seems compatible with the effective operation of the limited security check at issue in the present case.   194.   It takes into account furthermore the practice whereby an examining officer does not exercise the powers of arrest and detention unless he is left in some suspicion as to the matters specified in Article 5 (1) (a) - (c) of the Order. In the context of such a security check it is obvious that a person engaged in terrorist activity is unlikely openly to refuse to reply to questions or otherwise fail to comply with the obligations incumbent on him. However he may well give false or incomplete information.   Accordingly in order effectively to secure the fulfilment of the obligation in question it may therefore be necessary to resort to detention even where it cannot be said with certainty that there has already been any culpable failure on the part of the detainee to fulfil the obligations incumbent on him."   7.       In the present case the Commission notes that, unlike the applicants in the McVeigh case, the present applicant was not detained coming into Great Britain but as he was preparing to return to Northern Ireland after a visit to Scotland.   However, the Commission does not attach any particular importance to this fact since a security check on leaving the mainland following a visit is clearly provided for in the legislation and fulfils an equally evident security requirement.   In itself, it does not support the applicant's allegation that his detention was arbitrary or effected for an improper purpose.   8.       The Commission observes that, unlike the 1976 Order examined in the McVeigh case, Article 4(2) of the 1984 Order requires "reasonable grounds for suspecting" terrorist involvement to justify detention for longer than twelve hours.   However, it is clear from the scheme of the 1984 Order that the purpose of detention is that of carrying out an examination of the person entering or leaving Great Britain with a view to determining whether or not he is involved in terrorist activities.   9.       The Commission, therefore, sees no reason why it should not follow its previous opinion in the case of McVeigh and Others which, in this respect, apart from the added safeguard of reasonable suspicion referred to above, is indistinguishable from the present case.   It therefore concludes that the applicant's arrest and detention under the 1984 Order were justified under Article 5 para. 1 (b) (Art. 5-1-b) in order to secure the fulfilment of an obligation prescribed by law.   As regards Article 5 para. 2 (Art. 5-2)   10.      The applicant complains under Article 5 para. 2 (Art. 5-2) that he was given insufficient reasons for his detention.   11.      Article 5 para. 2 of the Convention (Art. 5-2) states as follows:   "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."   12.      The Commission also examined this issue in the case of McVeigh and Others.   It rejected the applicants' complaint in the following terms:   "209.   There is no dispute in the present case that the applicants were sufficiently informed of the legal basis for their detention. The sole question is whether they should have been informed of the grounds for suspicion against them.   The Commission has already observed in its decision on admissibility that such information does not appear relevant to the lawfulness of their detention in domestic law, since the existence of "suspicion" is not a prerequisite for a lawful arrest under the 1976 Order. Equally the existence of "suspicion" is not a substantive requirement of Article 5 (1)(b) of the Convention (Art. 5-1-b).   Only Article 5 (1)(c) (Art. 5-1-c) requires it and in the Commission's opinion the applicants' detention was not covered by that provision.   210.   In the present case the applicants were informed of the nature of the obligation incumbent on them.   In the written notifications served on them they were expressly to submit to "further examination". Furthermore, as a matter of substance, the Commission considers that the information given them was quite sufficient in the circumstances to make it clear that this consisted of a form of security check to establish whether they were involved in terrorism.   211.   The applicants were, in the Commission's opinion, thus sufficiently informed of the legal basis for the detention in domestic law and of the substantive reasons for their detention under Article 5 (1)(b) of the Convention (Art. 5-1-b).   They were given the essential facts relevant to their detention under both domestic law and the Convention.   That is sufficient for the purposes of Article 5 (2) (Art. 5-2)."   13.      The applicant in the present case was informed in writing that there was reasonable ground for suspecting that he was "concerned in the commission, preparation or instigation of acts of terrorism".   As explained above (para. 8) the 1984 Order, unlike the 1976 Order, requires reasonable suspicion for detention exceeding twelve hours. However the Commission has found, in the particular circumstances of the case, that the detention was justified under Article 5 para. 1 (b) (Art. 5-1-b) as detention in order to fulfil the obligation to submit to a security check.   As in the McVeigh case, it considers that the information provided to the applicant was sufficient to make him aware of the purpose and reasons for his detention in satisfaction of the obligation under Article 5 para. 2 (Art. 5-2).   As regards Article 5 para. 4 (Art. 5-4)   14.      The applicant further complains that he was unable to challenge the lawfulness of his detention before a court, contrary to Article 5 para. 4 (Art. 5-4).   15.      This provision reads as follows:   "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."   16.      The Commission notes from its opinion in the case of McVeigh and Others that it found the remedy of habeas corpus to be open to the applicants.   As regards the scope of review it stated as follows:   "The Commission finds no reason to suppose that the review of lawfulness available in habeas corpus proceedings would as a matter of principle have been insufficient in the context of the present case, which, as the Commission has found, concerns detention falling within the scope of Article 5 (1)(b) of the Convention (Art. 5-1-b).   In particular, it finds no reason to doubt that the courts could have examined whether the applicants had been lawfully required to submit to examination and, as a matter of substance, whether they were detained for the purpose of securing fulfilment of that obligation, that being the substantive justification for the detention under Article 5 (1)(b) (Art. 5-1-b) ..." (loc. cit., para. 217)   17.      In the present case the Commission also considers that it would have been open to the applicant to challenge the lawfulness of his detention by way of habeas corpus.   The Commission has not been informed of any legal developments which would have impeded the courts from examining the lawful basis of his detention under Article 4 (1) and (2) of the 1984 Order.   Nor has it been alleged, as in the McVeigh case, that he was prevented from seeking this remedy. Accordingly the Commission sees no reason why it should not follow its previous finding in this respect.   As regards Article 5 para. 5 (Art. 5-5)   18.      The applicant also complains that he has been denied an enforceable right to compensation contrary to this provision.   19.      Article 5 para. 5 (Art. 5-5) states as follows:   Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (Art. 5) shall have an enforceable right to compensation.   20.      The Commission, however, has found no violation in respect of the applicant's complaints under Article 5 paras. 1, 2 and 4 (Art. 5-1, art. 5-2, art. 5-4).   It follows that Article 5 para. 5 (Art. 5-5) confers no right to compensation since the applicant has not "been the victim of arrest and detention in contravention of the provisions of this Article ..." (see also McVeigh and Others, loc. cit., para. 220).   As regards Article 13 (Art. 13)   21.      Finally, the applicant complains that he has no effective remedy under British law in respect of the above complaints.   22.      Article 13 (Art. 13) states as follows:   Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.   23.      The Commission recalls that it has already found that it was open to the applicant to challenge the lawfulness of his detention before a court as required by Article 5 para. 4 (Art. 5-4).   The Commission considers that this provision constitutes the lex specialis in this area and that no separate issue under Article 13 (Art. 13) arises in the present case (see No. 7341/76, Dec. 11.12.76, D.R. 6 p. 180).   Conclusion   The Commission concludes that the application must be rejected as manifestly ill-founded as a whole within the meaning of Article 27 para. 2 of the Convention (Art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission       (H. C. KRÜGER)                        (C. A. NØRGAARD)