CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 mai 1988

.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 }                         AS TO THE ADMISSIBILITY OF                         Applications Nos. 12244/86, 12245/86, 12383/86                       by Bernard FOX, Maire CAMPBELL and Samuel HARTLEY                       against the United Kingdom             The European Commission of Human Rights sitting in private on 10 May 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 applications introduced on 16 June 1986 by Bernard FOX and Maire CAMPBELL against the United Kingdom and registered on 19 June 1986 under files Nos. 12244/86 and 12245/86, and the application introduced by Samuel HARTLEY on 2 September 1986 against the United Kingdom and registered on 8 September 1986 under file No. 12383/86;             Having regard to   -        the report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the Commission's decision of 11 December 1986 to communicate the application to the respondent Government under Rule 42 para. 2 (b) and to join the cases under Rule 29 of the Rules of Procedure;   -        the submissions of the parties;           Having deliberated;           Decides as follows:     THE FACTS           The first applicant, Mr.   Bernard Fox, states that he is an Irish citizen born in 1951 and resides in Belfast, Northern Ireland. He is an unemployed coach-builder by profession.           The second applicant, Ms.   Maire Campbell, states that she is an Irish citizen born in 1959, and resides in Belfast, Northern Ireland. She is an unemployed secretary.           The third applicant, Mr.   Samuel Hartley, states that he is an Irish citizen born in 1962 and resides in Waterfoot, Co.   Antrim, Northern Ireland.   He is unemployed.           All three applicants are represented in the proceedings before the Commission by Messrs Madden & Finucane, solicitors, Belfast.           The facts as agreed by the parties may be summarised as follows:           On 5 February 1986 the first and second applicants were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary station where a full search of the vehicle in which they were travelling was carried out.   Twenty-five minutes after their arrival at the police station, at 15.40 hours, they were arrested under Section 11 (1) of the Northern Ireland (Emergency) Provisions Act 1978 (1).   They were informed that they were being arrested under this Section and that the arresting officer suspected them of being terrorists.   They were also informed that they could be detained for up to 72 hours (2).   The applicants were taken to Castlereagh Police Office.    The first applicant was interviewed by the police on the same day between 20.15 hours and 22.00 hours.   The second applicant was interviewed separately between 20.15 hours and 22.00 hours.           During their detention under Section 11 the applicants were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army [PIRA].   No charges were brought against either applicant.   The first applicant was released at 11.40 hours on 7 February 1986 and the second applicant, five minutes later, at 11.45 hours that day.   The first applicant had thus been detained one day and 20 hours and the second applicant one day, 20 hours and 5 minutes. __________ (1)   Section 11 (1) states:        "Any constable may arrest without warrant any person whom he suspects of heing a terrorist."   (2)   Section 11 (3) states:   "A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates' Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1986 (requirement to bring arrested person before a magistrates' court not later than forty-eight hours after his arrest) shall not apply to any such person."           The applicants state that they were not informed of the reasons for their arrest nor told that there was any charge against them except that they were arrested as suspected terrorists.   They were not brought before a judge or given any opportunity to apply for release on bail.           The third applicant (Mr.   Samuel Hartley) was arrested at his home, in his parents' presence at 07.55 hours on 18 August 1986 under Section 11 of the 1978 Act.   He was informed at the time of his arrest that he was being arrested under Section 11 (1) as he was suspected to be a terrorist.   He was taken to Antrim police station where he was interviewed by the police between 11.05 hours and 12.15 hours.           He was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men.   Those involved in the kidnapping were thought to have connections with PIRA.   The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to three years' imprisonment.   During the applicant's detention he was asked about his suspected involvement in the kidnapping incident.   He denied any such involvement.   No charges were brought against him.   He was released on 19 August 1986 at 14.10 hours after one day, 6 hours and 15 minutes in detention.           On 6 February 1986 the first two applicants initiated proceedings for habeas corpus.   The applicants were released, however, before the applications could be heard by a judge.   COMPLAINTS           The applicants point out that the United Kingdom Government withdrew its derogation under Article 15 of the Convention on 22 August 1984.           They complain first that their arrest contravened Article 5 para. 1 of the Convention in that it was solely for the purposes of detaining and interrogating them.   They further complain that their arrest and detention do not fall under Article 5 paras. 1(a)-(f). They point out that Section 11 of the 1978 Act permits arrest and detention solely on grounds of suspicion as opposed to "reasonable suspicion" under Article 5 para. 1(c).   Section 11 also permits detention for purposes other than those permitted by Article 5 para. 1.           The applicants also allege a breach of Article 5 para. 2 of the Convention in that they were not informed of the reasons for their arrest or of any charge against them.           The applicants further allege breaches of Article 5 para. 5 and Article 13 of the Convention in that they were denied an enforceable right to compensation.    In this connection the applicants in their petitions stated as follows:      "The applicant cannot challenge the said Section 11 of the Northern Ireland (Emergency Provisions) Act 1978 in any Court of law in Northern Ireland on the ground that it contravenes the European Convention because the clear jurisprudence of this jurisdiction is that the Convention is subordinate to express provisions of domestic law and accordingly the applicant is prevented from bringing any proceedings to determine the lawfulness of arrest and detention under and by virtue of the said Section 11 and it is therefore further denied any enforceable right to compensation in contravention of Article 5 para. 5 and Article 13."           Exhaustion of domestic remedies           Since the applicants' arrest was in accordance with the domestic law and since the provisions of the European Convention on Human Rights are not part of the law of Northern Ireland no domestic remedy is open to the applicants.           Object of the application           The applicants seek compensation for their arrest and detention in contravention of Article 5 of the Convention.   They also seek a declaration that their arrest and detention were in breach of Article 5 in order to ensure:   -        that they would be free from similar arrest and detention in the future;   -        that they and other persons who were so detained would have an enforceable right of compensation.     PROCEEDINGS BEFORE THE COMMISSION           The first and second applications (Fox and Campbell) were introduced on 16 June 1986 and registered on 19 June 1986.           The third application (Hartley) was introduced on 2 September 1986 and registered on 8 September 1986.           On 11 December 1986 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the applications to the respondent Government and to invite them to submit before 3 April 1987 their observations in writing on the admissibility and merits of the applicants' complaints under Articles 5 and 13 of the Convention.           The Commission further decided on the same date to join the cases pursuant to Rule 29 of its Rules of Procedure.           The observations of the respondent Government were submitted on 14 May 1987 after an extension of the time limit had been obtained. The applicants' observations in reply were submitted on 10 September 1987 after a similar extension of the time limit had been granted.           The Commission next considered the application on 9 December 1987 and decided to invite the parties to a joint hearing on the admissibility and merits of the case insofar as it raised issues under Articles 5 and 13 of the Convention.           The hearing before the Commission was held on 10 May 1988. The parties were represented as follows:     Respondent Government:   Mr.   M. WOOD, Agent, Foreign and Commonwealth Office   Mr.   A. CAMPBELL, Q.C., Counsel   Mr.   N. BRATZA, Q.C., Counsel   Two Government advisers were also present.       The applicants:   Mr.   R. WEIR, Q.C., Counsel   Mr.   S. TREACY, Counsel   Mr.   P. FINUCANE, solicitor.   The applicants were not present at the hearing.           SUBMISSIONS OF THE PARTIES           The respondent Government   As to Fact           The Government state that the first applicant, Fox, was convicted on 21 February 1979 of possession of explosive substances and of causing an explosion and of two other offences of causing an explosion.   For each of these four offences he was sentenced to 12 years' imprisonment, the sentences running concurrently.   On the same occasion he was sentenced to five years' imprisonment, also concurrent, for belonging to the IRA.   He was further convicted on 27 April 1979 of a further offence of possession of explosives and received a further 12-year concurrent sentence.   The second applicant received an 18 months' suspended sentence after being convicted of explosives offences.           The Government state that the record of the interviews with the first and second applicants shows that they were made aware of the "subject matter" of the enquiry and the day to which it related.   The third applicant was interviewed about terrorist activities in a specific geographical area and about involvement with the Provisional IRA.   Relevant domestic law and practice           The Government recall that for the past seventeen years the population of Northern Ireland has been subjected to a vicious campaign of terrorism aimed at overthrowing the democratic process by violent means.   More than 2,500 people, including almost 800 members of the security forces, have been killed, and many thousands more have been maimed or injured.   Such casualties in a close-knit population of 1.5 million emphasise the scale of human tragedy which the terrorists' campaign has caused.   Section 11 of the 1978 Act confers a power to arrest, and detain for a maximum of 72 hours, suspected terrorists and a power for them to be photographed and for finger and handprints to be taken.           Section 31 (1) of the 1978 Act defines "terrorist" and "terrorism".   A terrorist is "a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism".   Terrorism is defined as "the use of violence for the purpose of putting the public or any section of the public in fear".           Under Section 11 (1) a constable has power to arrest without warrant any person whom he suspects to be a terrorist.   Sub-section (2) gives power to enter and search premises where a suspected terrorist is or is suspected to have been.   Sub-section (3) allows a person arrested under Sub-section (1) to be detained in right of the arrest for 72 hours and disapplies provisions which otherwise would require a person who has been arrested to be brought before a magistrate within 48 hours of his arrest.   Under Sub-section (4) persons arrested under Section 11 (1) can be photographed and their finger and handprints taken by a constable on the order of an officer not below the rank of chief inspector.           Section 11 re-enacted the power of arrest and detention for up to 72 hours in Section 10 of the Northern Ireland (Emergency Provisions) Act 1973.   Since their enactment in 1973, these powers of arrest and detention have had to be renewed periodically by an order made by the Secretary of State with the approval of both houses of parliament, without which they would lapse.   Under the 1978 Act the provisions became renewable on a six-monthly basis (Section 33).   The powers in Section 11 have been renewed every six months pursuant to Section 33 of the 1978 Act.           In 1983 the Secretary of State for Northern Ireland invited Sir George Baker, a retired senior member of the judiciary to examine the operation of the 1978 Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime. There followed a number of recommendations in a report which was published in April 1984.           Section 11 (1) of the 1978 Act has now been replaced by Section 6 of the Northern Ireland (Emergency Provisions) Act 1987 which came into effect on 15 June 1987.   This new power is confined to conferring a power of entry and search of premises for the purpose of arresting persons under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984.           The exercise of the arrest power in Section 11 (1) has been considered by the House of Lords in the case of McKee v.   Chief Constable [1984] 1 W.L.R. 1358.   In that case the House of Lords decided that the proper exercise of the power of arrest in Section 11 depended upon the state of mind of the arresting officer and of no-one else.   It was necessary that the arresting officer suspected the person he was arresting to be a terrorist, otherwise the arrest was unlawful, although he could form that suspicion on the basis of information given to him by his superior officer.   He could not, however, arrest under Section 11 on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion.    Lord Roskill stated that the suspicion need not be a reasonable suspicion but it had to be honestly held. The requirement of a suspicion in the mind of a constable was a subjective test.   That being so, the courts could only enquire as to the bona fides of the existence of the suspicion.   He went on, "Did the constable in his own mind suspect and in my view the only other question of the courts is, was this an honest opinion?"           In addition to the arresting officer having an honestly held suspicion that the person concerned was a terrorist, the person who is arrested must be informed of the true grounds for the arrest in accordance with the requirements of a valid arrest set down by the House of Lords in the decision in Christie v.   Leachinsky [1947] A.C. 573.           A person who believes that his arrest or detention under Section 11 is unlawful can challenge his arrest or detention by seeking habeas corpus or by taking proceedings for damages for false imprisonment.   In either case the lawfulness of the police action would be tested.   Non-exhaustion of domestic remedies           The Government consider the circumstances of the arrest of the third applicant (Hartley) to raise a question as to whether the suspicion that he was a terrorist, which he appears to accept was entirely bona fide, related to a relevant matter.   A suspicion under Section 11 must be to the effect that the applicant was a terrorist as defined by Section 31 of the 1978 Act.   It would not have been a lawful use of the arrest power in Section 11 had he been suspected merely of involvement in some activity falling short of terrorism even though that activity might itself be criminal in character - such as kidnapping which is a common law offence in Northern Ireland when it is carried out without the use of violence or without the purpose of putting the public or a section of the public in fear.           The Government do not consider that an applicant who is aware of the relevant facts can be excused from the need to exhaust domestic remedies merely by asserting that he accepts that the matters about which he complains under the Convention were lawful as a matter of domestic law.   Mere doubts as to the prospects of success of a challenge to the lawfulness of his arrest and detention is not a sufficient basis for waiving the requirement of the exhaustion of domestic remedies.   The Government therefore submit that the application lodged by the third applicant is inadmissible under Article 26 of the Convention.   Six months rule           The Government submit that the applicants' complaint under Article 5 para. 4 of the Convention was first developed in the applicants' observations in reply dated 10 September 1987, that is, more than six months from their release from detention.   This complaint should therefore be rejected under Article 26 as having been submitted out of time.   Article 5 para. 1 of the Convention           The Government submit that the arrests and detention of the applicants fell within sub-paragraph (c) and were in accordance with a procedure prescribed by law, namely Section 11 of the Northern Ireland (Emergency Provisions) Act 1978.   The applicants' arrests were in each case lawful as a matter of domestic law both as regards the suspicion held that each was a terrorist and the reason given to each for his or her arrest.   The arrests and detention were in fact effected for the purpose of bringing them before a court "on reasonable suspicion of having committed an offence".           With respect to the issue that Section 11 refers merely to a "suspicion" as opposed to "a reasonable suspicion", the Government submit that the Convention organs are not called upon to examine in abstracto the compatibility of legislation with the Convention.   The Commission must confine its attention to the facts of the case.   Even where a statutory provision under which an arrest is effected does not require the existence of a reasonable suspicion, but only the existence of a suspicion of an offence, it does not follow that an arrest under this provision is in breach of Article 5 para. 1.   It is the fact   that a reasonable suspicion exists, not the terms of the provision   which is material for the purposes of paragraph 1 (c). Moreover, the existence of a reasonable suspicion does not mean that there is at the time of the arrest sufficient evidence to prosecute.           In deciding whether there was a reasonable suspicion, the Commission's task is not to assess the material available to the arresting officer in order to make an independent determination but rather to review under Article 5 para. 1 (c) of the Convention the decisions taken by the domestic authorities in order to determine on a prima facie basis whether or not the decisions were reasonable and were therefore justified.           The strength of the grounds necessary to satisfy the requirement of reasonable suspicion will necessarily vary with the circumstances of the particular case.   However, it is a material factor in determining the reasonableness of the suspicion held that the person concerned has previously been convicted of criminal offences of a similar nature to those for which he is being arrested (Nos. 5371/72 and 6579/74, Dec. 18.7.74, Collection 46 p. 71).           The Government refer to the acute sensitivity of the material on which arrests are frequently based in cases of suspected terrorism.   Where, as commonly occurs, the arrest and detention of a suspected terrorist is based on information provided by an informant, it is not possible to disclose the nature of the information supporting the suspicion for fear of compromising the source of the information or endangering the informant's life or safety. Accordingly, in the present case the Government state that it is not possible to disclose the material on which the suspicion of the arresting officer was based.   However, it has not been contested by the applicants that there existed a bona fide suspicion of their involvement in specific criminal acts and that the applicants Fox and Campbell had been previously convicted of terrorist-type offences as indicated above.           With reference to the applicants' submissions, the Government state that the fact that an arrested person is released without charge after one and a half days rather than three days reveals nothing about the reasonableness of the suspicion which existed at the time of the original arrest.   Nor can the reasonableness of the suspicion be called into question by the mere fact that an arrest is effected under a statute which permits detention for up to three days rather than under a statute which permits the period of detention to be extended for up to seven days as in Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984.   The Government indicate that a suspect will be arrested under Section 12 of the 1984 Act as opposed to Section 11 of the 1978 Act if the police believe that the enquiries to be made will last longer than 72 hours - the maximum period permitted under the 1978 Act.           Moreover, the purpose of the arrests was to bring the applicants before a court to face charges for offences.   At the time they were questioned there were insufficient grounds for arresting them on suspicion of having committed a specific offence.   Having regard to the nature of the suspicions there were reasonable grounds for suspecting them to be terrorists.   Terrorism is the use of violence for political ends, a criterion which the Court has recognised in the case of Ireland v. the United Kingdom to be in keeping with the idea of an offence (Eur.   Court H.R., judgment of 18 January 1978, Series A No. 25, p. 74, para. 196).   Had further admissible and usable evidence become available as a result of the applicants' interrogation appropriate charges would have been laid and the applicants would have been brought before a magistrate's court on the basis of them.           The Government dispute the applicants' claim that they were arrested for the purpose of detaining them and interrogating them. Attention is drawn to the terms of Section 11 which confer a power of arrest where the constable suspects the person of being a terrorist. It is differently framed from Regulation 10 of the Regulations under the Special Powers Act 1922 which did enable people to be arrested so that they could be interrogated.   It was for this reason that it was held by the Court to be incompatible with Article 5 para. 1 (c) (Ireland v.   United Kingdom, loc. cit., p. 75 para. 196).           It is true that in his report on the review of the 1978 Act Sir George Baker referred to Section 11 as a general power of arrest for questioning.   He went on, in para. 264 of his Report, to say that a Section 11 arrest need not be for the purpose of bringing an offender before a competent court.   The Government do not accept this description of the Section 11 power if by these remarks Sir George Baker sought to describe arrest under this provision as an arrest solely for the purposes of interrogation.           The purpose of the powers of arrest and detention under Section 11 was to enable the police to investigate whether there was sufficient usable and admissible evidence to justify the preferring of charges against the suspected person or to entitle the Secretary of State to make an exclusion order under the 1984 Act.   In this respect the position in relation to an arrest under Section 11 of the 1978 Act is identical to that in relation to an arrest under Section 12 of the 1984 Act.   The Government adopt, in this respect, the reasoning of the Commission set out in paras. 93 and 94 of the Report in the Brogan case.   Article 5 para. 1 (c) cannot mean that the suspected person's guilt can at this stage of arrest be established or proved (Brogan, Coyle, McFadden, Tracey v. the United Kingdom, Nos. 11209/84, 11234/84, 11266/84, 11386/85, Comm.   Report 14.5.87).   The very purpose of detaining a person after arrest and prior to bringing him before a court is to facilitate the proper conduct of the investigation into the suspected offence.   As the Commission observed in para. 94 of its Report, after a person has been arrested it will normally depend on the result of further investigations and questioning whether he will eventually be charged and brought to trial before a court.   It is particularly so in relation to suspected terrorist cases where there may exist ample material to found a suspicion of involvement in terrorism which justifies arresting a person but where that material cannot be used in court either because it is inadmissible on evidential grounds or because reasons of security preclude its use. The Government emphasise that in the case of arrest under Section 11 there exists at all times a firm purpose and intention to bring the arrested person before a court if usable and admissible evidence becomes available to confirm this suspicion and justify the bringing of charges.   Article 5 para. 2 of the Convention           In the Government's submission, the arrests in the present case satisfy Article 5 para. 2 of the Convention.   Not only were the applicants informed that they were being arrested under Section 11 of the 1978 Act but also of the fact that they were suspected of being terrorists.   Moreover, after their arrest they were questioned about specific activities in which they were suspected of having been involved.           It is clear from the constant jurisprudence of the Commission that information in general terms of the reasons for an arrest will suffice.   In its decision on the admissibility of the Caprino case (No. 6871/75, D.R. 12 p. 14) the Commission found that it was sufficient that the applicant was informed of the legal basis for his detention as well as the essential facts relevant to the lawfulness of his detention, i.e., that he was being detained pending deportation in the interests of national security.   Moreover, it is also clear from the Commission's decision on the admissibility of the Neumeister case (No. 1936/63, Dec. 6.7.64, Yearbook 7 p. 224) that, even where the grounds for an arrest are not maintained at the time the arrest is carried out, Article 5 para. 2 may still be satisfied if the reasons for the arrest become clear from the nature of the interrogation of the suspect.    The Government also refer to para. 210 of the Commission's Report in the case of McVeigh, O'Neill and Evans (Nos. 8022/77, 8025/77, 8027/77, Comm.   Report 18.3.81, D.R. 25 p. 15) where it is stated that the information given to the applicants at the time of their arrest, which consisted in their being told that they would be fingerprinted, photographed, questioned and otherwise "checked up on" was sufficient in the circumstances to make clear that this amounted to a form of security check to establish whether they were involved in terrorism.   This was held to be sufficient for the purposes of Article 5 para. 2.   Article 5 para. 4 of the Convention           It is not disputed that it was open to the applicants to seek the remedy of habeas corpus or to institute proceedings for damages for false imprisonment.   As the judgment of the House of Lords in the McKee case makes clear, the courts could not only review the formal or procedural legality of an arrest under Section 11 whether the arrested person was properly informed of the grounds of the arrest, but could also examine the substantive question whether the person was arrested as a suspected terrorist and whether the suspicion held by the person effecting the arrest was a genuine suspicion.           The power of review of the courts is not an illusory one.   If it were the case that the questioning of a person arrested under Section 11 was directed to matters unrelated to his involvement in terrorist activities or a terrorist-related offence, this could afford a strong basis for challenging the validity of the arrest on the grounds that it was not founded on any genuinely held suspicion that the individual concerned was a terrorist.           In its Report in the McVeigh case, the Commission found that there should be judicial review sufficient in scope to cover both the formal legality of the detention in domestic law and the substantive justification for the detention under Article 5 para. 1. The Commission stressed that the nature of the review required must depend on the nature of the detention (loc. cit., p. 47 para. 216). The Government submit that in respect of a Section 11 arrest, the scope of judicial review satisfies Article 5 para. 4 since judicial control can encompass the procedural and substantive basis of detention.   Article 5 para. 5 of the Convention           The requirement in Article 5 para. 5 to provide an enforceable right to compensation arises in relation to a case in which an arrest or detention contravenes Article 5.   Since the arrests and detention were "lawful" within the meaning of Article 5 in the present case, the Government submit that there is no requirement to provide an enforceable right to compensation under this provision.   In any event, had the arrest or detention of any one of them been unlawful, proceedings for damages for false imprisonment would have been open to any of the applicants.   Article 13 of the Convention           The Government submit firstly that since the applicant's complaints under Article 5 are manifestly ill-founded it follows that they have not established an arguable claim to be victims of a violation of this provision.   It is therefore submitted that the requirement under Article 13 to provide an effective remedy does not arise in the instant case.   In addition, the mere fact that a person who has been arrested and detained is released without charge does not of itself give rise to a breach of the Convention for which a remedy is required under Article 13.   A person so arrested and detained would only have an arguable claim of a breach of Article 5 if he could adduce grounds for contending that the arrest or detention did not satisfy one or more of the paragraphs of Article 5 para. 1 or, in a case within Article 5 para. 1 (c), that he was not brought before a judge or released promptly after his arrest as required by Article 5 para. 3, or that he was not given reasons for his arrest within Article 5 para. 2, or that he had no means of testing the lawfulness of his detention within Article 5 para. 4 or had no enforceable right to compensation for any contravention of the provisions of the Article. The Government submit that the powers of arrest and detention contained in Section 11 are fully compatible with Article 5 of the Convention and that the application of those powers to these applicants in the circumstances of their applications to the Commission were entirely lawful.           In its judgment in the case of James and Others (Eur.   Court H.R., judgment of 21 February 1986, Series A No. 98), the Court has held that where legislation is compatible with the substantive provisions of the Convention Article 13 is satisfied if there exists domestic machinery whereby the individual can secure compliance with the relevant laws.   Effective remedies in this sense were available to the applicants in the present case by way of an application for habeas corpus and proceedings for damages for false imprisonment in the event of any non-compliance with the provisions of domestic law.           In the alternative, the Government submit with reference to the Commission's Report in the Brogan case that Article 5 para. 4 must be regarded as the lex specialis in respect of complaints under Article 5 (loc. cit., para. 122).   Accordingly, it is submitted that no separate issue arises under this provision in the present case.               The Applicants   Six months rule           The applicants submit that the complaint under Article 5 para. 4 of the Convention is not a complaint which is   based upon any fresh facts.   It is grounded on facts which have already been set out in the original petitions.   Accordingly, no issue arises under the six months rule.   Non-exhaustion of domestic remedies           The third applicant Hartley contests the Government's submission that his application should be rejected for non-exhaustion of domestic remedies.   He draws particular attention to the fact that those involved in the kidnapping were believed to have connections with PIRA.   As a matter of domestic law the third applicant was lawfully arrested.   The lawfulness of an arrest under Section 11 is determined by the subjective bona fide belief of the arresting officer that the person arrested is a terrorist.   The third applicant accepts that the arresting officer had this subjective bona fide belief.   The facts underlying the third applicants' arrest have a distinct flavour of terrorism since those involved were believed to have connections with PIRA.   Moreover, kidnapping is a scheduled offence under Schedule 4 of the 1978 Act and can therefore only be tried on indictment in a non-jury "Diplock" court in accordance with the special provisions relating to terrorist trials contained in the 1978 Act.   Article 5 para. 1 of the Convention           It is submitted that Section 11 of the 1978 Act is repugnant to Article 5 para. 1 because (a) it permits arrest and detention for up to three days on bare suspicion, whereas Article 5 para. 1 (c) requires reasonable suspicion and (b) it authorises arrest and detention which is not effected for the purpose of bringing the person before the competent legal authority but is effected for the purpose of interrogation and information gathering.           The repugnancy of Section 11 with Article 5 is expressly recognised by Sir George Baker - a retired senior English judge who was requested by the respondent Government to carry out a review of the operation of the 1978 Act.   He received written and oral submissions from a large number of bodies and individuals who could be expected to be well acquainted with the operation and purpose of the Act.   These included former Secretaries of State of Northern Ireland, some of the most senior members of the judiciary in England,   senior members of the legal profession and the Royal Ulster Constabulary and many other sources.   His report was presented to Parliament in April 1984.           Paragraph 264 of his Report expressly recognises the incompatibility of Section 11 with Article 5 of the Convention:   "In contrast to the provisions of the E.P.A.* which deal with the trial of terrorist offences and do not require derogation from Article 6 of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5.   Consequently the U.K. entered a Notice of Derogation under Article 15.   Article 5 (1) c requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court.   Section 11 E.P.A. requires neither, nor is an offence necessary.   Nor need an arrest under the P.T.A.** be necessary for the purpose of bringing before a court." __________ *   Emergency Provisions Act ** Prevention of Terrorism Act           Sir George Baker also recognised that Section 11 conferred a general power of arrest for questioning.   Thus, in paragraph 263 of his Report he made the following remarks:   "Generally I find it helpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention Sections of the E.P.A. it is useful to note that Regulation 10 of the Special Powers Act (N.I.) 1922 provided           'Any Officer for the R.U.C. for the preservation         of the peace and maintenance of order, may         authorise the arrest without warrant and         detention for a period of not more than 48 hours         of any person for the purpose of interrogations.'   This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was reworded and to some extent re-enacted in the E.P.A. and P.T.A. But nowhere in these acts do the words 'for the purpose of interrogation' appear.   That is left to be inferred.   There is widespread criticism of the alleged illegal use of arrest for 'information gathering' or low grade intelligence and harassment.   It might be better if the power of the R.U.C. were expressly spelled out in the act linked of course to appropriate controls.   That the police have such a power under the P.T.A. was accepted by Lawton, L.J. in the English C.A. (Criminal Division) in R. v.   Houghton 1987 CAR197."           Historically the police in Northern Ireland have always had the power to arrest for the purpose of interrogation.   Furthermore an extremely high proportion of persons released without charge compared to the figures for release without charge in Great Britain confirms that the powers given by Section 11 are used for information gathering (see, The Use and Abuse of Emergency Legislation in Northern Ireland, Dermot P. J. Walsh, 1983).           Against this background the applicants submit that the predominant purpose of Section 11 is to facilitate arrest and detention for the purpose of interrogation and that the applicants were not arrested with a view to proceedings for criminal offences being brought against them.           The applicants also submit that Section 11 of the 1978 Act as consistently interpreted by the courts, does not require a reasonable suspicion within the meaning of this provision.   In support of this argument, they refer to the decisions of the Court of Appeal and the House of Lords in the case of Gerard McKee v. the Chief Constable for Northern Ireland   [1984] 1 W.L.R. 1358 and the judgment of Justice McGonigal in re McElduff [1972] NI 1.   Mr.   Justice McGonigal in considering the statutory power of arrest under Regulation 11 (1) of the Civil Authorities (Special Powers) Act 1922 stated as follows:   "In this case there is no reference to reasonableness nor do I find anything in the words of the regulation which suggests that it should be imported into it.   The use of the term 'reasonable suspicion' is so common that if the legislature had intended to impose a standard of reasonableness one would have expected the word to be included in the regulation.   I do not consider that I can now impose a standard which the legislature itself has not considered fit to impose. The test is therefore whether the arrestor suspected.   That does not appear to me to be open to an objective test.   It may be based on purely arbitrary grounds, on grounds which the courts, if this were an objective test of reasonableness might consider unreasonable.   But since reasonableness is not essential to the suspicion that is immaterial. What is required by the regulation is a suspicion existing in the mind of the constable.   That is a subjective test.   If that is correct, the courts in enquiring into the exercise of the power, can only enquire as to the bona fide of the existence of the suspicion.   Did the constable in his own mind suspect?   And in my view the only other question for the courts is, 'Was this an honest suspicion?'" (loc. cit., p. 19)           Similarly, Lord Roskill in the McKee case, which concerned an arrest under Section 11 (1) of the 1978 Act, stated as follows:     "On the true construction of Section 11 (1) of the statute, what matters is the state of mind of the arresting officer and of no one else.   That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer.   The arresting officer is not bound and indeed may well not be entitled to question those intructions or to ask upon what information they are founded.   It is, in my view, not legitimate in the light of the learned trial judge's findings as to Graham's state of mind at the time of the arrest, to seek to go behind that finding and deduce from Detective Constable Moody's evidence as to questioning which took place some time after the arrest what Jackson's state of mind may have been when he gave Graham his instructions.   It is Graham's state of mind that matters and that alone.   In my view the matter is concluded in favour of the appellant by the learned trial judge's findings to which I have already referred.   My lords, I do not doubt that the burden is on the appellant to justify the respondent's arrest.   In my view he has simply done so.   I have already said that I reached this conclusion simply upon the learned trial judge's finding as to Graham's state of mind.   That Graham honestly had that belief was not challenged and, if it be relevant, the existence of that honest belief seems to me to be well established by the fact that Graham said in evidence that Jackson had told him to be careful and that after knocking on the door of the respondent's house he (Graham) was 'standing back against the wall because I suspected he (the respondent) might have guns'.   In conclusion I would mention two other matters.   First I respectfully agree with all the learned judges below that on the true construction of the statute the powers of arrest under Section 11 are not qualified by any words of 'reasonableness'.   The suspicion has to be honestly held but it need not be a reasonable suspicion as well.   I also agree with what was said on this topic by Mr.   Justice McGonigal in In re McElduff in the passage quoted by Mr.   Justice Kelly."             The applicants state that as far as they are aware, no domestic court has eve