CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 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                     Applications Nos. 14759/89 and 14781/89                   by Francis McKEOWN and Raymond LARMOUR                   against the United Kingdom             The European Commission of Human Rights (Second Chamber) sitting in private on 5 March 1991, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS              Mrs.   G.H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second Chamber             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to :   -        the first application introduced on 22 February 1989 by Francis McKEOWN against the United Kingdom and registered on 8 March 1989 under file No. 14759/89;   -        the second application introduced on 7 March 1989 by Raymond LARMOUR against the United Kingdom and registered on 15 March 1989 under file No. 14781/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant, Francis McKeown, is a citizen of the United Kingdom, born in 1958 and resident in Moneymore, County Londonderry, Northern Ireland.           The second applicant, Raymond Larmour, is a citizen of the United Kingdom, born in 1958 and resident in Cookstown, Northern Ireland.           The applicants are represented before the Commission by Messrs.   J. Christopher Napier & Co., Solicitors, Belfast.           The facts of the present cases, as submitted by the parties, may be summarised as follows.           On 8 September 1988, an explosive device equivalent to 1000 lbs. (approx. 500 kgms.) of explosives concealed in a van parked outside Coagh RUC Station in County Tyrone exploded, completely destroying the building and injuring a number of police officers and civilians.   A number of private houses were also extensively damaged. In a statement issued shortly afterwards the Provisional IRA (a proscribed terrorist organisation) admitted responsibility for the explosion.   After the police had discovered what they suspected to be a bomb, but before the bomb exploded, a car owned by the first applicant, which was being driven from the direction of Coagh RUC Station, was stopped at a vehicle check-point.   In the car were found two CB radios of a kind commonly used by the Provisional IRA.   The handset of one of these had been pulled through from the back seat onto the front seat of the car.   As the car was being searched, the bomb exploded.   The two occupants were Dermot Coyle and the second applicant.   Neither occupant was able to give a satisfactory account of his movements and both were arrested under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 at 21.48 hrs. on 8 September, shortly after the explosion had occurred.           At the time of his arrest, Raymond Larmour was told that he was being arrested under section 12 of the 1984 Act as he was suspected of being involved in terrorism.   He was taken to Armagh Police Office.   On his arrival there, he was given a copy of the notice to persons in police custody.   His detention was extended for two days until 21.48 hrs. on 12 September and then for a further two days until 21.48 hrs. on 14 September.   He was released without charge at 17.30 hrs. on 14 September.           He saw a solicitor on 10, 11, 13 and 14 September 1988.           At the outset of his first interview, which began at 12.20 hrs. on 9 September, he was told that the police were investigating the explosion at Coagh RUC Station on the evening of 8 September and that the police wished to have an account from him of his movements. At that and at subsequent interviews he was asked about his movements before the explosion, whether he had been given permission to drive the car he had been in, how long he had known Dermot Coyle, about the radios found in the car, whether he had been involved in stealing the van used in the explosion and whether he was a member of the Provisional IRA.   He did not answer these questions but sat staring at various fixed points, avoiding eye contact with those asking him the questions.   On one occasion, about five minutes after the interview began on the morning of 12 September, he rolled off the chair on to the floor and headbutted radiator pipework in the room, at which point the interview was terminated.   He was not re-interviewed until later in the day when, having been passed fit for interview by a doctor, he walked slowly and with apparent difficulty to the interview room and on sitting down trembled and breathed heavily.   However, once he had been told that he had been passed fit for interview by the doctor he quickly stopped breathing heavily and adjusted his seating position and appeared to be quite comfortable.   On another occasion he slid off the chair on to the floor where he sat refusing to get back on to a chair or sniffed and shook his legs vigorously or covered his ears with his hands.   He did not sign the interview notes.           The first applicant, who is a suspected member of the Provisional IRA, was also suspected of involvement in the planning of the attack on the RUC Station.   Accordingly, at 13.35 hrs. on 9 September 1988 he was arrested at his home under section 12 of the 1984 Act.   At the time of his arrest he was told that he was being arrested under this provision as he was suspected of being involved in terrorism.   He was taken to Armagh Police Office.   On his arrival there, he was given a copy of the notice to persons in police custody. His detention was extended for two days until 13.35 hrs. on 13 September and then for a further two days until 13.35 hrs. on 15 September.   He was released without charge at 13.00 hrs. on 15 September 1988.           He saw his solicitor on 11, 12 and 14 September 1988.           At the outset of his first interview, which began at 17.05 hrs. on 9 September 1988, he was told that the police were enquiring into the explosion at Coagh the previous day, and he was asked to account for his movements from tea-time that day.   He was asked if he owned the car and about his association with Dermot Coyle. In subsequent interviews he was again asked about his car and association with Dermot Coyle and to account for his movements on the day of the explosion and about CB radios found in the car.   He answered some questions but the answers in some respects conflicted with information given to the police by Dermot Coyle.   For the remaining time he kept silent in answer to questions relating to the bomb incident.   He refused to sign the interview notes.           On 8 October 1988, an underground bunker measuring approximately 7x3x2 metres was discovered by police during a search under section 15 of the Northern Ireland (Emergency Provisions) Act 1978 at McKeown's Repair Garage owned by the second applicant at Coltrim, Moneymore.   The second applicant was not present when the discovery was made, nor could he be found at his home.   It was not until 08.30 hrs. on 13 October 1988 that he was found there and again arrested under section 12 of the 1984 Act.           At the time of this arrest, Francis McKeown was told that he was being arrested under section 12 of the 1984 Act as he was suspected of being involved in terrorism.   He was taken to Armagh Police Office where, on his arrival, he was given a copy of the notice to persons in police custody.   His detention was extended for three days until 08.30 hrs. on 18 October and he was released without charge at 18.40 hrs. on 17 October 1988.           He saw his solicitor on 14 and 16 October 1988.           At the outset of the first interview, which began at 12.35 hrs. on 13 October, he was told that the police were making enquiries into the bunker found under the floor of his garage which the police believed was to be used for terrorist purposes.   He was asked why this had been built under the floor of his garage and who had been involved in building it.   At subsequent interviews he was asked further about the bunker.   At first he remained silent throughout the interviews sitting with his head bowed.   He refused to give any explanation for the bunker or to elaborate upon the explanation for it which had appeared in an article in the edition for 11 October 1988 of the newspaper, the Irish News, in which the applicant was quoted as saying that it had been constructed "for perfectly legitimate business purposes".   Then on 15 October he said that the bunker was part of a proposed paint spraying operation which he then proceeded to explain.   The cavity was to house a tank.   He said that Dermot Coyle helped him build it.   He was asked if plans existed for the paint tank operation, whether planning permission had been sought for the work, who had ordered the materials, whether they had been paid for and why Sean O'Hagan, a suspected terrorist, was present at the garage.   He declined to answer these questions.   It was pointed out to him that the tank, which was apparently to be emptied regularly, had no manhole cover for easy access or inspection.   He was asked why certain pipes of apparent importance in the scheme he had described to the police were in fact covered with concrete (a feature which served to obscure the existence of the bunker).   He made no comment nor did he explain why he needed a tank with a capacity of about 1200 cubic feet (approximately 42 cubic metres) when, from his own description of the proposed operation, he would use only about one third of it.   He refused to sign the interview notes.   COMPLAINTS           The applicants allege that they were detained in breach of Article 5 para. 3 of the Convention, in that they were not brought promptly before a judge in order to be charged, or released promptly without charge.   They complain that they had no right to compensation for this alleged breach of Article 5 para. 3, pursuant to Article 5 para. 5 of the Convention.           The applicants originally complained of a violation of Article 5 para. 2 of the Convention.   After the European Court of Human Rights had given its judgment in the Fox, Campbell and Hartley case, they conceded that in that case the Court had made a finding of no violation in circumstances very similar to their own in relation to Article 5 para. 2 (cf.   Eur.   Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, paras. 37-43).   PROCEEDINGS BEFORE THE COMMISSION           The first application was introduced on 22 February 1989 and registered on 8 March 1989.           The second application was introduced on 7 March 1989 and registered on 15 March 1989.           After a preliminary examination of the cases by the Rapporteur, the Commission considered the admissibility of the applications on 6 May 1989.   The Commission decided to request the parties' written observations on the admissibility and merits of the applications, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version).   They were joined with 14 other applications of a similar kind.           The Government lodged their observations on 21 September 1989 after an extension of the time-limit fixed for their submission.   The applicants' representatives submitted observations in reply on 18 October 1989.           On 6 February 1990 the Commission decided to adjourn its examination of the applications pending the judgment of the Court in the case of Fox, Campbell and Hartley v. the United Kingdom, in view of an original complaint made by the applicants under Article 5 para. 2 of the Convention.   The Court delivered its judgment in this case on 30 August 1990.           On 7 September 1990 the Commission decided to invite the parties to submit any comments they might have on the significance of this judgment for the admissibility of the applications.   The applicants' representatives submitted their comments on 5 October 1990.   The Government lodged their comments on 23 November 1990 after an extension of the time limit fixed for their submission.           In their various observations the applicants withdrew certain original complaints they had made under Article 5 paras. 1 (c) and 4 and Article 13 of the Convention.   As regards Article 5 para. 2, the applicants conceded that the European Court's finding in the Fox, Campbell and Hartley case was made in circumstances very similar to their own (see above under COMPLAINTS).           On 26 February 1991 the Commission decided to refer the cases to the Second Chamber.   THE LAW   1.       The applicants complain that their arrest and detention under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 failed to observe the requirement of promptness laid down in Article 5 para. 3 (Art. 5-3) of the Convention, for which failure they had no enforceable right to compensation, contrary to Article 5 para. 5 (Art. 5-5) of the Convention.   The first applicant was detained twice, from 9 to 15 September 1988 and from 13 to 17 October 1988.   The second applicant was detained from 8 to 14 September 1988.           Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention provides as follows:           "3.   Everyone arrested or detained in accordance with the         provisions of paragraph 1 (c) of this Article (Art. 5-1-c)         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."           "5.   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."           The Government submit that the precise basis of the applicants' complaint under Article 5 para. 3 (Art. 5-3) of the Convention is unclear and the complaint manifestly ill-founded.   As the facts of the cases disclose no breach of this provision, Article 5 para. 5 (Art. 5-5) has no application.           The Commission recalls that in the Brogan and Others case the Commission and the Court found a violation of Article 5 para. 3 (Art. 5-3) of the Convention in respect of the detention of four applicants under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984, for periods varying from 4 days 6 hours to 6 days 16 1/2 hours, without being brought before a judicial authority. In the same case, the Commission and the Court also found a violation of Article 5 para. 5 (Art. 5-5) of the Convention in that the applicants had not had a right to compensation in respect of the violation of Article 5 para. 3 (Art. 5-3).           The Commission notes that the first applicant was arrested and detained for two periods of 5 days 23 hours and 25 minutes, and 4 days 10 hours and 10 minutes, respectively.   The second applicant was arrested and detained for a period of 5 days 19 hours and 42 minutes.           Their arrest and detention was effected under the same provisions as in the Brogan and Others case, without being brought before a judge or other officer authorised by law to exercise judicial power.   The Commission finds, therefore, that the applicants' complaints under Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring the cases inadmissible has been established.   2.       After having first complained of a violation of Article 5 para. 2 (Art. 5-2) of the Convention, the applicants subsequently conceded that in the Fox, Campbell and Hartley case the European Court of Human Rights had made a finding of no violation of that provision in circumstances very similar to their own (cf.   Eur.   Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, paras. 37-43).   The Commission interprets this statement as a withdrawal of their complaint in this regard and therefore makes no finding in respect of Article 5 para. 2 (Art. 5-2).           For these reasons, the Commission unanimously           DECLARES THE APPLICATIONS ADMISSIBLE         without prejudging the merits of the cases.         Secretary to the                           President of the        Second Chamber                             Second Chamber              (K. ROGGE)                               (S. TRECHSEL)