CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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 No. 21624/93                       by Patrick O'REILLY                       against Ireland         The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 24 September 1992 by Patrick O'Reilly against Ireland and registered on 6 April 1993 under file No. 21624/93;         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 applicant is an Irish citizen born in 1957 and is currently serving a sentence of imprisonment at Cork Prison. He is represented before the Commission by Mr. Noel Forde, a solicitor practising in East Cork. The facts as submitted by the applicant may be summarised as follows.         The applicant was arrested and detained by the police for 48 hours under section 30 of the Offences Against the State Act 1939 (the 1939 Act).         The applicant was charged with offences of murder and burglary. At the beginning of his trial on 2 December 1985 in the Central Criminal Court, the prosecution elected to proceed on the count of murder alone and the count of burglary was adjourned.         The only evidence against the applicant was a statement allegedly made by him while in police custody under section 30. The applicant challenged the admissibility of the statement and the judge ruled the statement inadmissible on the basis that the section 30 power applied only to offences with a subversive element which was not present in the circumstances of this offence. Since the prosecution agreed that they had no other evidence, the judge directed the jury to find the applicant not guilty of murder and he was discharged.         The prosecution appealed to the Supreme Court against the trial judge's ruling. On 25 February 1986 the Supreme Court reversed the trial judge's ruling on section 30 statements. The Court found that section 30 applied to any scheduled offence whether or not motivated by political or subversive intent. The prosecution's application for a retrial of the applicant was refused on 29 July 1988 by the Supreme Court.         The prosecution sought to re-activate the original burglary charge. This charge came to trial on 31 October 1989. The applicant's objection to the proceedings was overruled by the trial judge. The applicant's objection to the admissibility of the section 30 statement as having been obtained by oppression was also overruled and the statement admitted in evidence. The applicant was convicted on 16 November 1989 and on 17 November 1989 he was sentenced to 8 years' imprisonment.         The applicant appealed against conviction and sentence. The appeal against conviction was heard in the Supreme Court on 11 February 1992. The appeal was dismissed on 14 July 1992.         The Supreme Court held, inter alia, that section 30 of the 1939 Act was not in violation of the Constitution. The Court considered that protections were available against abuse of power since a person could obtain release from the High Court under article 40 of the Constitution. The Court saw no substance in the allegation that the right to silence, assuming such was included in the rights guaranteed in the Constitution, was infringed by the section 30 power.         As regarded the applicant's submission that he should not have been tried due to the effluxion of time, the Chief Justice found that the reason given ie change of personal circumstances (he had married and had a child) were not relevant and did not affect his ability to defend himself. He found no fault on the part of the Director of Public Prosecutions. As regarded the severance of the two charges in 1985, he noted that the applicant had not objected at the time. The plea of autrefois acquit had no bearing since different charges were in issue in the two sets of proceedings. As regarded the admissibility of the section 30 statement, he noted that the judge had rejected the applicant's allegations that it had been made under threat and coercion and accepted the evidence of the police: this the judge was entitled to do on   his assessment of the credibility of the witnesses. He considered that there was no requirement to give the jury a warning of the danger of convicting on a statement alone, though in some cases it might be desirable to do so. Here the statement relied on was not oral but was written and signed by the applicant. The jury was not bound in its assessment by the judge's finding that the statements by the Gardai were true.         The appeal against sentence was heard by the Supreme Court on 30 July 1992 and rejected on the same date.   COMPLAINTS         The applicant complains of the power of arrest under section 30 of the 1939 Act. He complains of the provision in the Constitution of Ireland which allows a state of emergency to be declared (which has been in force from 1939 to 1976 and from 1976 to date) and in consequence for legislation to be enacted which abrogates human rights and has the effect of weakening the entire system of criminal justice. In this context he invokes Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the Convention.         The applicant complains of being tried on the count of burglary notwithstanding his acquittal on the previous murder charge. He complains of the role of the trial judge in ruling his statement admissible as regarded voluntariness and the fact that the jury then only has the role of assessing the truth or otherwise of the contents of the statement. He complains of the absence of any requirement that the judge give a warning to the jury of the dangers of convicting a person on the sole basis of a statement made by an accused who has been detained under section 30 and subject to periods of prolonged interrogation.         The applicant complains about the prosecution appeal against his acquittal on a charge of murder which he submits is in violation of Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the Convention.   THE LAW   1.     The applicant complains of the power under section 30 of the Offences Against the State Act 1939 to hold a person for 48 hours before being brought before a court. He complains also of the provision in the Constitution which has allowed a state of emergency to be imposed and that this is in abrogation of human rights and weakens the system of criminal justice. He has invoked Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 (Art. 3, 5, 6, 7, 8, 9, 10, 13, 14, 15) of the Convention in this respect.         The Commission recalls that Article 5 para. 3 (Art. 5-3) of the Convention provides as relevant:         "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..."         The requirement of promptness is an essential procedural guarantee against arbitrary interferences by the State with the right to liberty. It is to be assessed in each case according to its special features (eg. Eur. Court H.R. de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52).         The Court has held in the context of prevention of terrorist measures that a period of more than 4 days exceeds the requirement of promptness (Eur. Court H.R., Brogan judgment of 29 November 1988, Series A no. 145B). The Commission has found in general that in normal criminal proceedings a delay of up to 4 days is acceptable (see Brogan case, loc. cit. Comm. Rep. 14.5.87).         In the present case, it appears that the applicant was held for a maximum of 48 hours before being brought before a court. The Commission finds that this is reconcilable with the requirement of "promptly" in Article 5 para. 3 (Art. 5-3).         As regards   the complaint about the provision of the Constitution permitting the state of emergency, the Commission cannot examine domestic legislative or constitutional provisions in abstracto. The applicant has not indicated in what way he has thereby been rendered a victim of any violation of the provisions of the Convention         Consequently, the Commission finds no appearance of a violation of any other provisions of the Convention in respect of these complaints. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains of the prosecution appeal against his acquittal for murder. He also complains about his trial on the burglary charge, in particular, that the judge ruled the statement made while the applicant was detained under section 30 admissible which left only the issue of credibility to the jury and that he failed to warn the jury about convicting solely on a contested confession. He invokes Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 (Art. 3, 5, 6, 7, 8, 9, 10, 13, 14, 15) of the Convention.         Insofar as the applicant complains of the prosecution appeal, the Commission notes that the possibility of appeal by the prosecution from a first instance decision is a common feature of the criminal justice systems of the Contracting Parties. The Commission finds that this possibility is not in general incompatible with the requirements of the Convention. Even assuming that issues might arise in a particular case, the Commission notes that in the event the prosecution did not in fact succeed in obtaining a retrial of the charge on which the applicant had been acquitted.         As regards the complaints about the proceedings for the burglary charge, the Commission recalls that in accordance with Article 19 (Art. 19) of the Convention its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of fact or law have been committed by domestic courts, except where such errors might have involved a possible violation of any of the rights   and freedoms set out in the Convention (see eg. No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).         The Commission recalls that in the present case the applicant's complaints were considered before the Supreme   Court which rejected them. The Commission finds no indication on the facts of the case that the proceedings at first instance or appeal failed to comply with the standards of fairness of Article 6 para. 1 (Art. 6-1) of the Convention or that the matters raised by him disclose any appearance of a violation of the other provisions of the Convention.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant has also complained that the charge of burglary was proceeded with despite his earlier acquittal on the murder charge. In this regard, the Commission notes that the applicant was charged with both murder and burglary in 1985 and that the proceedings concerning the burglary charge, re-activated in or about 1989, did not conclude until 14 July 1992.         The Commission finds that this raises issues of fact and law under the Convention with regard to the length of the proceedings. It considers however that it cannot, on the basis of the file, determine the admissibility of this aspect and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of it to the respondent Government.         For these reasons, the Commission, unanimously         DECIDES TO ADJOURN   the examination of the issue as to the length       of the proceedings brought against the applicant;         DECLARES INADMISSIBLE   the remainder of the application.   Secretary to the First Chamber    President of the First Chamber         (M. F. BUQUICCHIO)                     (A. WEITZEL)