CEDH · CASELAW;REPORTS;ENG — 7 décembre 1990

.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 }  Application Nos. 15096/89, 15097/89 and 15098/89   Paul McGLINCHEY, Paul QUINN and James BARROW   against   THE UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 7 December 1990)                           TABLE OF CONTENTS                                                                   Pages   I.       INTRODUCTION         (paras. 1 - 15) ......................................     1 - 3           A.   The applications             (paras. 2 - 5) ...................................       1           B.   The proceedings             (paras. 6 - 10) ..................................     1 - 2           C.   The present Report             (paras. 11 - 15) .................................     2 - 3   II.      ESTABLISHMENT OF THE FACTS         (paras. 16 - 19) .....................................     4 - 5   III.     OPINION OF THE COMMISSION         (paras. 20 - 33) .....................................     6 - 8           A.   Complaint declared admissible             (para. 20) .......................................       6           B.   Points at issue             (para. 21) .......................................       6           C.   As regards Article 5 para. 3 of the Convention             (paras. 22 - 27) .................................     6 - 8               Conclusion (para. 27) ............................       8           D.   As regards Article 5 para. 5 of the Convention             (paras. 28 - 31) .................................       8               Conclusion (para. 31) ............................       8           E.   Recapitulation             (paras. 32 - 33) .................................       8   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................       9   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............    10 - 12   I.       INTRODUCTION   1.       The following is an outline of the cases, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The applications   2.       The first applicant, Paul Gerard McGlinchey, was born in 1963.   The second applicant, Paul Christopher Quinn, was born in 1961. The third applicant, James Gerard Barrow, was born in 1957.   They all have dual Irish and British nationality.   They are unemployed and live in Londonderry, Northern Ireland.   3.       The applicants are represented before the Commission by Messrs.   McCormick and Nicholson, solicitors, Newton Stewart, Wigtownshire, Scotland.   4.       The applications are directed against the United Kingdom. The respondent Government are represented by their Agent, Mrs.   A. Glover, of the Foreign and Commonwealth Office.   5.       The applications concern the applicants' arrest and detention under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984, which detention they claim was in breach of their right to be brought promptly before a judge, ensured by Article 5 para. 3 of the Convention, and for which breach no compensation was available, contrary to Article 5 para. 5 of the Convention.   B.       The proceedings   6.       The applications were introduced on 29 March 1989 and registered on 8 June 1989.   After a preliminary examination of the cases by the Rapporteur, the Commission decided on 2 October 1989 to join the applications, to give notice of them to the respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version), and to invite the parties to submit their written observations on the admissibility and merits of the applications.   7.       On 19 January 1990 the Government informed the Commission that they waived objections to the admissibility of the applications in view of their similarity to the case of Brogan and Others (Eur.   Court H.R., Brogan and Others judgment of 29 November 1988, Series A no. 145-B).   The Government pointed out that since that judgment they have lodged a specific derogation under Article 15 of the Convention concerning Prevention of Terrorism legislation, whereas the events complained of in these cases took place before that judgment and derogation.   8.       On 4 August 1990 the applicants' representatives informed the Commission that they had taken note of the Government's observations, but maintained their applications and the claim of breaches of Article 5 paras. 3 and 5 of the Convention, for which breaches they requested that the Commission and Court fix an appropriate level of damages.   The Commission had granted the applicants legal aid on 16 February 1990.   9.       On 2 July 1990 the Commission declared the applications admissible.   The text of its decision was sent to the parties on 12 July 1990 and they were invited to submit any observations they might have on the merits of the cases.   The Government declined this invitation on 27 September 1990 in view of the aforementioned judgment in the case of Brogan and Others.   The applicants did not submit any observations either.   10.      After declaring the cases admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              M.    C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A. V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ   12.      The text of this Report was adopted on 7 December 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   14.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.      The full text of the parties' submissions, together with the documents lodged as exhibits, is held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   16.      At about 22.00 h on 29 September 1988 the applicants were stopped by police officers as they were on the point of boarding a ferry at Stranraer, Scotland, which was going to Northern Ireland. They were informed that they were being arrested under the Prevention of Terrorism (Temporary Provisions) Act 1984 and detained at 22.10 h under Section 12 of the Act which provides as follows:-           "(1)     A constable may arrest without warrant a person         whom he reasonably suspects to be -                   (a)   a person guilty of an offence under Sections 1,                 9, 10 or 11 of this Act;                   (b)   a person who is or has been concerned in the                 commission, preparation or instigation of acts                 of terrorism;                   (c)   a person subject to an exclusion order.           ...           (3)      The acts of terrorism to which this Part of the Act         applies are: -                   (a)   acts of terrorism connected with the affairs of                 Northern Ireland; and                   (b)   acts of terrorism of any other description except                 acts connected solely with the affairs of the United                 Kingdom or any part of the United Kingdom other than                 Northern Ireland.           (4)      A person arrested under this section shall not be         detained in right of the arrest for more than forty-eight hours         after his arrest, but the Secretary of State may, in any         particular case, extend the period of forty-eight hours by a         further period or periods specified by him.           (5)      Any such further period or periods shall not exceed         five days in all.           (6)      The following provisions (requirement to bring an         accused person before the court after his arrest) shall not         apply to a person detained in right of the arrest -                   ...                   (d)   Article 131 of the Magistrates' Courts (Northern                 Ireland) Order 1981; ..."   17.      On 1 October 1988, the Secretary of State for the Home Office granted an extension of 72 hours in the applicants' detention, in accordance with Section 12 (4) of the Act.   18.      On 3 October 1988, the police made an application for Exclusion Orders in respect of the three applicants.   On 4 October 1988, the Secretary of State granted the Exclusion Orders, which were served on the applicants at approximately 18.00 h.   These Orders, made pursuant to Section 4 (1) and (2) of the 1984 Act, stated that the Secretary of State was satisfied that the applicants were or had been concerned in the commission, preparation or instigation of acts of terrorism designed to influence public opinion or Government policy with respect to affairs in Northern Ireland, and prohibited the applicants from being in or entering Great Britain.   The applicants were released at 18.30 h into the custody of the Captain of the Ferry at Stranraer and duly returned to Northern Ireland.   They had thus been detained for a total of four days, 20 hours and 30 minutes by the police.   19.      The applicants' appeals against the Exclusion Orders were dismissed on 25 November 1988 and the three year Exclusion Orders confirmed.   III.     OPINION OF THE COMMISSION   A.       Complaint declared admissible   20.      The Commission has declared admissible the applicants' complaint that their arrest and detention under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 were in breach of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention.   B.       Points at issue   21.      The following are the points at issue in the present cases:        -   whether the applicants were brought promptly before a judge         or other officer authorised by law to exercise judicial power,         as required by Article 5 para. 3 (Art. 5-3) of the Convention;        -   whether the applicants had an enforceable right to         compensation, as required by Article 5 para. 5 (Art. 5-5)         of the Convention.   C.       As regards Article 5 para. 3 (Art. 5-3) of the Convention   22.      Article 5 para. 3 (Art. 5-3) of the Convention provides as follows:   "Everyone arrested or detained in accordance with the provisions of paragraph 1(c) (Art. 5-1-c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."   23.      The applicants have complained that they were not brought "promptly" before a judge after their arrest, contrary to Article 5 para. 3 (Art. 5-3) of the Convention.   They were held for four days, 20 hours and 30 minutes before being released and removed from Great Britain. At no point during their detention were they brought before a judge to be charged with a criminal offence.   24.      The Government have not sought to justify the length of the applicants' detention without judicial control in view of the Court's judgment in the case of Brogan and Others involving similar periods of detention under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (Eur.   Court H.R., Brogan and Others judgment of 29 November 1988, Series A no. 145 - B).   25.      The Commission notes that at paragraphs 61 and 62 of that judgment the Court held as follows:   "61.     The investigation of terrorist offences undoubtedly presents the authorities with special problems.   ...   The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3 (Art. 5-3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer.           The difficulties, alluded to by the Govenment, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 para. 3 (Art. 5-3), for example in calling for appropriate procedural precautions in view of the nature of the suspected offences.   However, they cannot justify, under Article 5 para. 3 (Art. 5-3), dispensing altogether with 'prompt' judicial control.   62.      ... the scope for flexibility in interpreting and applying the notion of 'promptness' is very limited.   In the Court's view, even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by (one of the applicants) falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (Art. 5-3).   To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word 'promptly'. An interpretation to this effect would import into Article 5 para. 3 (Art. 5-3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.   The Court thus has to conclude that none of the applicants was either brought 'promptly' before a judicial authority or released 'promptly' following his arrest.   The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3 (Art. 5-3).           There has thus been a breach of Article 5 para. 3 (Art. 5-3) in respect of all four applicants."   26.      In view of the fact that the applicants in the present cases were detained for a longer period than that of four days and six hours mentioned in the above extract from the Brogan and Others judgment, namely a period of four days, 20 hours and 30 minutes, the Commission is of the opinion that the applicants were not brought "promptly" before a judge, as required by Article 5 para. 3 (Art. 5-3) of the Convention.           Conclusion   27.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.   D.       As regards Article 5 para. 5 (Art. 5-5) of the Convention   28.      Article 5 para. 5 (Art. 5-5) of the Convention guarantees as follows:           "Everyone who has been the victim of arrest or         detention in contravention of the provisions of         this Article shall have an enforceable right         to compensation."   29.      The applicants complained that they have no enforceable right to compensation in domestic law for the breach of Article 5 para. 3 (Art. 5-3) of the Convention which they suffered.   The Government make no submissions on this claim in view of the Court's judgment in the case of Brogan and Others, in which it found a breach of Article 5 para. 5 (Art. 5-5) of the Convention (ibid. paras. 66 - 67).   30.      In the present cases, the applicants were arrested and detained lawfully under domestic law but, as the Commission has concluded above, in breach of Article 5 para. 3 (Art. 5-3) of the Convention. This violation could not give rise, either before or after such a finding by the Convention organs, to an enforceable claim for compensation by the applicants before the courts in the United Kingdom.   The applicants do not, therefore, have any enforceable right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.           Conclusion   31.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention.   E.       Recapitulation   32.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (para. 27).   33.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 31).     Secretary to the Commission                 President of the Commission             (H.C. KRÜGER)                               (C.A. NØRGAARD)                                   APPENDIX I                           HISTORY OF THE PROCEEDINGS   Date                             Item   ______________________________________________________________________     29 March 1989                    Introduction of the applications     8 June 1989                     Registration of the applications     Examination of admissibility     2 October 1989                  Commission's decision to join the                                 applications and to invite the                                 parties to submit their written                                 observations on admissibility and                                 merits   19 January 1990                  Government's waiver of objections to                                 admissibility   16 February 1990                 Legal aid granted to applicants     4 April 1990                    Applicants' comments on Government's                                 waiver     2 July 1990                     Commission's decision to declare the                                 applications admissible   Examination of the merits   12 July 1990                     Parties invited to submit written                                 observations on the merits   27 September 1990                Government's indication waiving the                                 opportunity to submit observations                                 on the merits      December 1990                 Commission's deliberations on the                                 merits and final votes      December 1990                 Adoption of the present Report