CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1991

.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   Application Nos. 14553/89 and 14554/89 by Peter BRANNIGAN and Patrick McBRIDE against the United Kingdom             The European Commission of Human Rights sitting in private on 28 February 1991, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      E. BUSUTTIL                      G. JÖRUNDSSON                      J.C. SOYER                      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                      M.P. PELLONPÄÄ                   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 19 January 1989 by Peter BRANNIGAN and Patrick McBRIDE against the United Kingdom and registered on 30 January 1989 under files Nos. 14553/89 and 14554/89 ;           Having regard to :       -    reports provided for in Rule 47 of the Rules of Procedure         of the Commission ;       -    the written observations submitted by the Government on         16 February 1990, to which the applicants replied on         20 April 1990 ;       -    the oral submissions of the parties at the hearing on         28 February 1991 ;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is an Irish citizen, born in 1964.   He is a labourer by trade and resides, at present, in Downpatrick, Northern Ireland.           The second applicant is an Irish citizen born in 1951.   He is unemployed and resides, at present, in Belfast.           They are represented in the proceedings before the Commission by Messrs.   Madden and Finucane, Solicitors, Belfast.           The facts of the present cases, as submitted by the parties, may be summarised as follows:   As regards the first applicant           The first applicant was arrested at his home in Downpatrick by members of the Royal Ulster Constabulary on 9 January 1989 at 06.30 hours.   He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was detained until 21.00 hours on 15 January 1989.   He was therefore detained for a total period of 6 days, 14 hours and 30 minutes.           The first applicant was arrested under Section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984.   Section 12 of the 1984 Act provides, inter alia, as follows:   "12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be           ...           (b) a person who is or has been concerned in the         commission, preparation or instigation of acts of         terrorism to which this Part of this Act applies;           ...       (3) The acts of terrorism to which this Part of this         Act applies are           (a) acts of terrorism connected with the affairs         of 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 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         accused person before the court after his arrest)         shall not apply to a person detained in right of         the arrest."           The first applicant states that he was interrogated relentlessly throughout his detention.   Visits or communication with family or friends were not permitted.   He was denied access to books, newspapers and writing materials.   He states that no provision was made for radio or television and he was not allowed to associate with other prisoners.           The Government state that the first applicant was seen by a medical practitioner on 17 occasions.   He declined to wait for a final medical examination when being released from police custody.   His complaints of ill-treatment were investigated but found to be unsubstantiated.   Although initial access to a solicitor was delayed because it was believed that such a visit would lead to interference with the investigation, the applicant was subsequently visited by his solicitor at 21.12 hours on 11 January 1989.   Family visits are not generally allowed, but a detainee is entitled to make a telephone call on arrest and will generally be permitted to use the telephone to speak to his friends, provided no hindrance is reasonably likely to be caused to the processes of investigation or to the administration of justice.   No request for a family visit or a telephone call was made by the applicant.   Writing materials are available on request and letters can be posted or delivered.   No such request was made by the applicant.   No reading material is provided except a Bible and detainees are not generally allowed to listen to radio or watch television.   This is   not to deny them stimulation but because news broadcasts may cause hindrance to the investigation.   Association with other detainees is not generally permitted for the same reason.   The custody record shows that requests for these facilities were not made by the first applicant.   As regards the second applicant           The second applicant was arrested at his home by members of the Royal Ulster Constabulary on 5 January 1989 at 05.05 hours.   He was then removed to Castlereagh Interrogation Centre where he was detained until 11.30 hours on Monday 9 January 1989.   He was therefore detained for a total period of 4 days, 6 hours and 25 minutes.           Like the first applicant, the second applicant was arrested under Section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984.           The second applicant states that he was interrogated relentlessly all day, every day.   Visits or communications with family or friends were not permitted.   He was denied access to books, newspapers and writing materials.   He states that no provision was made for radio or television and he was not allowed to associate with other prisoners.   In addition, during interrogation sessions he was required to stand and to remove his glasses.           The Government state that the second applicant was seen by a medical practitioner eight times.   He declined the offer of a medical examination on four occasions and accepted on four other occasions. His complaints of ill-treatment were investigated but found unsubstantiated.   At his request, his solicitors' office was informed of his detention on 5 January 1989 at 09.40 hours.   He received two legal visits : from 20.57 hours until 22.00 hours on 5 January 1989 and from 20.35 hours to 21.30 hours on 7 January 1989.   As regards family or other outside contacts through telephone calls or writing materials or other facilities, the custody record shows no request by this applicant for such facilities.   COMPLAINTS           Articles 5 and 13 of the Convention           The applicants complain that their detention was in breach of Article 5 para. 3 in that they were not brought promptly before a judge.   They claim that they had no domestic remedy against this breach, in particular no right to compensation.   In this regard they also complain of a breach of Article 5 para. 5 and Article 13 of the Convention.           Article 15 of the Convention           The applicants submit that the derogation lodged by the respondent Government with the Secretary General of the Council of Europe on 23 December 1988 does not comply with Article 15.   In particular they claim that the measures taken by the United Kingdom were not strictly required by the exigencies of the situation and were inconsistent with the United Kingdom's other obligations under international law.           The applicants had also originally complained of breaches of Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention.   However, in effect they withdrew their complaints under these provisions in their observations on admissibility and merits.   PROCEEDINGS BEFORE THE COMMISSION           The applications were introduced on 19 January 1989 and registered on 30 January 1989.   After a preliminary examination of the cases by the Rapporteur, the Commission considered the admissibility of the applications on 5 September 1989.   It decided to give notice of the applications to the respondent Government and to invite the parties to submit their written observations on admissibility and merits, particularly regarding the applicants' challenge to the validity of the derogation under Article 15 of the Convention.           The Government submitted their observations on 16 February 1990 after an extension of the time limit.   The applicants replied on 20 April 1990 and, at the same time, withdrew their complaints under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention.           On 5 October 1990 the Commission decided, in accordance with Rule 50(b) of the Rules of Procedure, to obtain the parties' oral submissions on the cases.   The hearing was held in Strasbourg on 28 February 1991.   The Government were represented by Mrs.   A. Glover, Agent, Foreign and Commonwealth Office, and Mr.   N. Bratza, QC, and Mr.   R. Weatherup, both of Counsel.   The Government's representatives were accompanied by 5 advisers.   The applicants were represented by Mr.   R. Weir, QC, Mr.   S. Treacy, BL, and Mr.   I. Tannahill, BL, all of Counsel, and Mr.   K. Winters, Solicitor with Messrs.   Madden & Finucane.   THE LAW           The applicants have complained that their detention for periods in excess of four days, without charge and without being brought before a judge, pursuant to Section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984, was in breach of Article 5 paras. 3 and 5 and Article 13 (Art. 5-3, 5-5, 13) of the Convention. They relied on the judgment of the European Court of Human Rights in the case of Brogan and Others in which the Court held that similar detention for periods of over four days violated these provisions of Article 5 (Art. 5) of the Convention (Eur.   Court H.R., Brogan and Others judgment of 29 November 1988, Series A No. 145, pp. 30-34 and 35, paras. 55-62 and 66-67).   They contended, inter alia, that the derogation lodged by the United Kingdom with the Secretary General of the Council of Europe on   23 December 1988, a derogation from the requirements of Article 5 (Art. 5) to enable the continued use of the Prevention of Terrorism legislation, did not comply with Article 15 (Art. 15) of the Convention.   In particular they claimed that the measures taken by the United Kingdom were not strictly required by the exigencies of the situation and were inconsistent with the United Kingdom's other obligations under international law.           The Government drew attention to the problems, recognised by the Court in the case of Brogan and Others, of dealing with the continuing terrorist threat in connection with the affairs of Northern Ireland and the particular difficulties of bringing those responsible for horrifying and indiscriminate acts of terrorism to justice.   They submitted, inter alia, that a fair and proper balance had been struck by the Prevention of Terrorism legislation in question, after thorough and continued parliamentary and independent scrutiny, between the protection of individual rights and the need to defend a democracy against the threats posed by organised terrorism.   It was contended that the Government's derogation from their obligations under Article 5 (Art. 5) of the Convention was strictly required by the exigencies of the situation and was in accordance with Article 15 (Art. 15) of the Convention.           Article 5 (Art. 5) of the Convention ensures the right to liberty.   All deprivations of liberty must be in accordance with a procedure prescribed by law and for a lawful purpose, such as the lawful arrest or detention of a person in order to bring him before the competent legal authority on reasonable suspicion of having committed a criminal offence (Article 5 para. 1 (c)) (Art. 5-1-c). Persons arrested for this purpose must be brought promptly before a judge (Article 5 para. 3) (Art. 5-3).   Anyone arrested contrary to the provisions of Article 5 (Art. 5) is entitled to compensation (Article 5 para. 5) (Art. 5-5).   Article 13 (Art. 13) of the Convention guarantees the right to an effective domestic remedy for Convention breaches.           The Commission notes that the key issue in the present cases involves Article 15 (Art. 15) of the Convention, the relevant part of which provides as follows :           "1.   In time of war or other public emergency threatening         the life of the nation any High Contracting Party may         take measures derogating from its obligations under this         Convention to the extent strictly required by the         exigencies of the situation, provided that such measures         are not inconsistent with its other obligations under         international law.         ...           3.    Any High Contracting Party availing itself of this         right of derogation shall keep the Secretary General of         the Council of Europe fully informed of the measures         which it has taken and the reasons therefor.   It shall         also inform the Secretary General of the Council of Europe         when such measures have ceased to operate and the provisions         of the Convention are again being fully executed."           The Commission considers, in the light of the parties' submissions, that the present cases raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the applications as a whole.   The Commission concludes, therefore, that the applications are not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring them inadmissible have been established.           For these reasons, the Commission, by a majority,           DECLARES THE APPLICATIONS ADMISSIBLE         without prejudging the merits of the cases.       Secretary to the Commission          President of the Commission              (H.C. KRÜGER)                       (C.A. NØRGAARD)