Lexploria

THE PROCEEDINGS

On 16 December 1971 the Permanent Representative of Ireland to the

Council of Europe filed with the Secretary General of the Council of

Europe in Paris the original application which was dated 15 December

1971 and in which the applicant Government made various allegations

under Articles 1, 2, 3, 5, 6 and 14 of the Convention in respect of

matters concerning Northern Ireland. Copies of the application were

received by the Commission's Secretary in Strasbourg on 17 December and

it was registered on the same day under file No. 5310/71.

The Commission considered the application on 18 December 1971 and

decided:

1. to give precedence to the application in accordance with Rule 38,

1 of the Rules of Procedure;

2. to request the Secretary General of the Council of Europe to give

notice of the application to the respondent Government in accordance

with Rule 44 of the Rules of Procedure;

3. to invite the respondent Government to submit, before 29 February

1972, its observations in writing on the admissibility of the

application.

On 25 February 1972 the applicant Government filed a supplementary

memorial, dated 22 February, together with a covering letter requesting

that the new memorial which contained allegations as to further and

continuing breaches of Articles 1, 2, 3, 5, 6, and 14 of the Convention

should be brought before the Commission as part of the original

application.

The President decided that the supplementary material should be

communicated at once to the respondent Government as part of the

existing case-file and he extended provisionally until 21 March the

time-limit for the submission of the respondent Government's written

observations on admissibility. The Parties were informed accordingly

and told that the Commission would consider during its next session the

future procedure to be followed in regard to the new material.

Under cover of a letter dated 29 February 1972 the applicant Government

submitted two affidavits which had inadvertently been omitted from the

submissions of 23 February. These affidavits were also included in the

case-file and copies went to the respondent Government.

Under cover of a letter, dated 3 March 1972, the applicant Government

submitted a further memorial, with enclosures for inclusion in the

case-file, in which the applicant Government alleged violations of

Articles 1 and 7 of the Convention in relation to the Northern Ireland

Act 1972. The Parties were informed that the Commission would decide

the future procedure to be followed also in this regard during its next

session.

The Commission considered the case on 20 March 1972 and decided that

the Government's submissions of 3 March 1972 should be registered as

a separate application (No. 5451/72). The respondent Government was

invited to submit observations on the admissibility of this application

before 1 May 1972.

With regard to the applicant Government's supplementary memorial of 22

February 1972 the Commission decided that it should be dealt with as

part of the original application (No. 53110/71). The time-limit for the

submission of the respondent Government's observations on the

admissibility of this application was extended until 15 April 1972.

On 20 March 1972 the Commission also took note of a letter, received

on the same day and dated 16 March, from the Agent of the applicant

Government. It was submitted that the applicant Government had up to

that date been receiving evidence from person in custody under the

Special Powers Act indicating that they continued to be ill-treated in

the manner complained of by the applicant Government as involving

breach of Article 3 of the Convention. Reference was also made to a

report, published on 13 March, of an inquiry by Amnesty International.

The Commission was asked to request the respondent Government to take

interim measures to ensure that such ill-treatment was discontinued

pending a decision on the application in order to prevent irreparable

damage. While recognising that the Commission was not expressly

empowered to order or direct a Government to adopt such measures, the

applicant Government submitted that the Commission did possess the

power to undertake interim measures as this was the necessary attribute

of its judicial function and therefore covered by the doctrine of

implied powers. Reference was also made to previous cases in which the

Commission had requested Governments to take interim measures.

The applicant Government requested the Commission in particular to seek

from the respondent Government: first, an undertaking that all such

treatment of persons in custody as had been complained of in the

application as constituting a breach of Article 3 of the Convention

should be discontinued; secondly, permission for attendance by

observers nominated by the Commission at centres of custody to

ascertain whether these persons were subjected to such treatment; and,

thirdly, an undertaking that all such persons in custody should be

taken to the centres where these observers would be located and that

the observers should at all times be given access to such persons.

The applicant Government stated their view that the object of interim

measures is generally the preservation of the rights of the parties,

pending adjudication, insofar as the damage threatened to these rights

would be irreparable. It was submitted that the measures suggested

would not in any way prejudice the rights of the respondent Government,

but that they would on the other hand protect from irreparable damage

the right to physical integrity of those persons in custody who had

been and were still being subjected to ill-treatment. Reference was

made to the findings of the Compton Report and of the Parker Report as

evidence of the ill-treatment of these persons.

The Commission decided to communicate this letter to the respondent

Government for observations.

In a letter from the Agent of the respondent Government dated 23 March

1972, received by the Commission on 24 March, the respondent Government

submitted their observations on the applicant Government's letter.

The Commission took note of these observations on 24 March 1972. The

respondent Government observed first that the applicant Government were

requesting the Commission to seek certain undertakings and were

proposing in effect that the Commission should appoint observers to

investigate certain allegations of violations of the Convention

regardless of any considerations of admissibility. The respondent

Government noted further that the proposal was made not in respect of

material which the Government had already supplied to the Commission,

but in respect of new and unspecified allegations. It was submitted

that there was no provision in the Convention conferring on the

Commission competence to order interim measures of the kind that were

being sought and reference was made to the Commission's decision in

application No. 297/57, Yearbook, Vol. 2, p. 204, at p. 212, that "the

Convention does not contain any provision giving the Commission

competence to order provisional measures".

It was submitted also that it would not be compatible with the

Commission's functions under the Convention for it to seek from the

respondent Government the undertakings or permission requested, or to

appoint observers to supervise the activities of a State Party to the

Convention. The respondent Government considered that the first

undertaking which the applicant Government were requesting the

Commission to seek went to the substance of certain allegations of

violations of Article 3 of the Convention, and these violations were

denied by the respondent Government. It was the view of the respondent

Government that to seek an undertaking of the sort requested would not

only amount to prejudging the question of admissibility, but in

addition would prejudice any consideration of the substance of any

allegations which might arise. The respondent Government made a clear

distinction between this situation and those cases where in the course

of proceedings before the Commission a Government have deferred a

particular action. It was submitted that to request a Government to

defer action which it admittedly intends to take is quite different

from asking a Government to desist from acts which it denies.

Objections were also made to the request that the Commission should

nominate observers, the respondent Government considering that such

action by the Commission would be incompatible with the Convention.

While not accepting that the function of such observers would be the

same as the function of determining the facts for which provision is

made in Article 28 (a) of the Convention, the respondent Government

observed that in any event the latter function falls to be exercised

by the Commission only if a particular complaint is declared

admissible.

It was the view of the respondent Government that the requests of the

applicant Government constituted an attempt to circumvent the normal

procedures laid down in the Convention for considering complaints and

would, if acceded to, prejudge the question of admissibility of

complaints which the respondent Government had not yet had the

opportunity of rebutting. The respondent Government submitted that the

applicant Government's requests and proposals should be rejected,

emphasising that this submission was based solely on what the

respondent Government regarded as the proper function of the Commission

at this stage of the proceedings.

After considering the applicant Government's letter of 16 March 1972

and the observations of the respondent Government of 23 March, the

Commission decided on 24 March 1972 that it did not have the power,

consistent with its functions under the Convention, to meet the request

made in the applicant Government's letter.

On 13 April 1972 the respondent Government requested an extension of

the time-limit of 15 April for the submission of their observations on

the admissibility of application No. 5310/71. In their request the

Government referred to the supplementary material submitted on 25

February by the applicant Government. The respondent Government

observed that a substantial part of this material related to the deaths

which occurred in Londonderry on 30 January and stated that a Tribunal

of Enquiry into the circumstances of these deaths had been instituted.

The Tribunal had prepared its Report, which was currently under

consideration by the Government. The respondent Government submitted

that the Report of the Tribunal was a significant factor and that they

should have time to consider its contents before commenting on the

allegations of the applicant Government. They maintained that they

should not, by reason of the submission of supplementary material which

had been joined to the application, be asked to submit their

observations otherwise than on the allegations made by the applicant

Government as a whole.

On 17 April 1972 the President decided, after taking into consideration

the statements made by the respondent Government in their letter of

request of 13 April, to extend the time-limit until 3 May.

In a letter dated 17 April 1972 the respondent Government requested

that the time-limit for the submission of their observations on the

admissibility of application No. 5451/72 should be extended until 22

May.

The President granted this extension on 3 May 1972.

Under cover of a letter dated 2 May 1972, received by the Commission

on 3 May, the respondent Government submitted their observations on the

admissibility of application No. 5310/71. On 4 May copies of the

observations were sent to the applicant Government, who were invited

to submit their observations in reply before 29 June 1972.

The respondent Government's observations on the admissibility of

application No. 5451/72, dated 22 May 1972, were received by the

Commission on 25 May. On the same day copies of the observations were

sent to the applicant Government, who were invited to submit their

observations in reply before 20 July 1972.

On 30 May 1972 the Commission received the applicant Government's

observations, dated 29 May, in reply to the observations of the

respondent Government on the admissibility of application No. 5310/71.

The Commission decided on 30 May 1972 to invite the Parties to appear

before the Commission at a hearing, opening on 17 July 1972, to make

oral submissions on the admissibility of application No. 5310/71, and,

if possible, also of application No. 5451/72.

By letter dated 2 June 1972 the respondent Government requested an

adjournment of the hearing. On the same day the Commission decided to

communicate this letter to the applicant Government for observations.

In a letter of 8 June the applicant Government submitted their

observations on the respondent Government's request for an adjournment.

In this letter the applicant Government, while noting the difficulties

which the proposed date for the opening of the hearing posed for the

respondent Government, pointed out that they themselves faced similar

difficulties, but were prepared to meet them. Mention was also made of

the gravity of the case. The applicant Government recognised, however,

that the fixing of the date of the hearing was a matter for the

Commission and stated that they would understand if the Commission

should decide to postpone the hearing.

On 12 June 1972 the Acting President decided to adjourn the hearing and

to fix 25 September 1972 as the new opening date.

On 19 July 1972 the Commission received the observations of the

applicant Government, dated 17 July 1972, in reply the respondent

Government's observations on the admissibility of application No.

5451/72.

Under cover of a letter dated 29 August 1972 the respondent Government

submitted copies of exhibits which they proposed to refer to in the

course of the hearing on admissibility.

On 25 September 1972 the Commission decided to join applications No.

5310/71 and 5451/72 in accordance with Rule 39 of its Rules of

Procedure.

The hearing on the admissibility of the two applications was held in

Strasbourg on 25, 26, 27, 28 and 29 September 1972. During the course

of the hearing oral and written submissions were made to the Commission

by the Parties.

The applicant Government were represented at the hearing by:

MM. F.M. Hayes, Legal Adviser, Department of Foreign Affairs, Agent of

the Irish Government Colm Condon, S.C., Attorney-General

Miss Mary Tinney, Permanent Representative of Ireland to the Council

of Europe

MM. T.A. Finlay, S.C.

A.J. Hederman, S.C.

Aidan Browne, Barrister-at-Law

John Murray, Barrister-at-Law

Liam Lysaght, Chief State Solicitor

P.D. Quigley, Senior Legal Assistant, Attorney-General's Office

E. Gallagher, Counsellor at the Department of Foreign Affairs

S. Donlon, Counsellor at the Department of Foreign Affairs

Charles E. Lysaght, Assistant Legal Adviser at the Department of

Foreign Affairs

Dermot Walshe, Chief State Solicitor's Office

The represenatives of the respondent Government were:

Mr. Paul Fifoot, Barrister-at-Law, Legal Counsellor, Foreign and

Commonwealth Office, Agent of the United Kingdom Government

The Rt. Hon. Sir Peter Rawlinson, Q.C., M.P., Attorney-General

MM. D.J.B. Robey, C.M.G., Permanent Representative of the United

Kingdom to the Council of Europe

J.G. Le Quesne, Q.C.

J.B.E. Hutton, Q.C.

Gordon Slynn, Barrister-at-Law, Juniour Counsel to the Treasury

Nicholas Bratza, Barrister-at-Law

M.G. de Winton, C.B.E., M.C., Solicitor of the Supreme Court, Assistant

Legal Secretary to the Attorney-General

MM. A.H. Hammond, Solicitor of the Supreme Court, Senior Legal

Assistant, Home Office

A.C. Thorpe, First Secretary, Foreign and Commonwealth Office

R.C. Cox, First Secretary, Northern Ireland Office

D. Fisher, Assistant Principal, Ministry of Defence

Anthony Parry, Assistant Legal Adviser, Foreign and Commonwealth Office

THE FACTS

APPLICATION NO. 5310/71

The facts of the case, as they have been presented by the Parties, may

be summarised as follows:

I. The applicant Government's application

1. The original submissions of 15 December 1971

On 15 December 1971 the applicant Government submitted to the

Commission the application in the following terms: (1)

-----------------------------

(1) The footnotes appearing on pages 12 to 14 do not form part of the

text of the original application, but have been added for editorial

purposes.

-----------------------------

"A. The Objects of the Claim

The objects of the claim are:

1. To ensure that the respondent Government will secure to everyone

in Northern Ireland the rights and freedoms defined in Section 1 of the

Convention and in particular the rights and freedoms defined in

Articles 2, 3, 5, 6, and 14 of the Convention;

2. To bring to the attention of the Commission breaches of Articles

1, 2, 3, 5, 6, and 14 of the Convention by the respondent Government

in Northern Ireland;

3. To determine the compatibility with the Convention of certain

legislative measures and administrative practices of the respondent

Government in Northern Ireland;

4. To ensure the observance of the legal engagements and obligations

undertaken by the respondent Government in the Convention.

Statements of the Facts and Arguments

B. Breach of Article 1 of the Convention

1. The applicant Government refers the Commission to the provisions

of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922

and the Statutory Rules, Regulations and Orders made thereunder. The

said Act, Rules, Regulations and Orders and two commentaries upon them

and three law reports (1) in which they are considered are contained

in Appendix 1 of the attached documents.

-----------------------------

(1) McEldowney v. Forde [1971] AC 632 H.L. (N.I.); judgment of 12

October 1971 (so far unpublished) of McGonigal J. on a habeas corpus

application by J. McElduff; and R. (O'Hanlon) v. Governor of Belfast

Prison 56 Fr.L.T.R.170.

-----------------------------

2. The applicant Government submits that the provisions of the said

Act, Rules, Regulations and Orders herinbefore mentioned are of

themselves a failure by the respondent Government to comply with the

obligation imposed on it by Article 1.

3. It further submits that the methods employed or permitted by the

respondent Government in the implementation of the said Act, Rules,

Regulations and Orders constitute an administrative practice by the

respondent Government, as is evidenced by the facts submitted in

support of the references concerning breaches of Articles 2, 3, 5, 6

and 14 of the Convention, (which said facts are relied on in support

of this submission as well as in support of the submissions in respect

of the breaches of the individual Articles), and constitute a breach

by the respondent Government of its said obligations under Article 1.

4. The matter herein being referred to the Commission, being a

breach by the respondent Government of the obligations imposed on it

by Article 1 of the Convention, there is no domestic remedy available

to the applicant Government, or to any person in respect of the matter

referred.

C. Breach of Article 2 of the Convention

1. The applicant Government refers the Commission to the deaths of

Eamon McDevitt, Francis McGuiness, Father Hugh Mullan, William

Kavanagh, Robert Anderson, James McLaughlin and Sean Ruddy, which said

deaths were caused by security forces of the respondent Government.

2. The facts relating to the said deaths are set out in Appendix 2

of the attached documents (2)

-----------------------------

(2) The deaths of the four first mentioned persons occurred in August

1971 and the other three died in October 1971.

-----------------------------

3. The applicant Government submits that the said deaths are a

breach by the respondent Government of Article 2 of the Convention.

4. It further submits that the said deaths did not occur within the

circumstances laid down in Article 2 (2) (a), 2 (2) (b), or 2 (2) (c)

of the Convention.

5. It refers the Commission to three communications of the

respondent Government dated 27 June 1957 (1), 25 September 1969 (2) and

25 August 1971 (3), informing the Secretary General of the Council of

Europe of measures taken by the respondent Government purporting to

derogate from its obligations under the Convention and contained in

Appendix 3. The said measures do not and could not constitute a

derogation by the respondent Government from its obligations under

Article 2 having regard to the provisions of Article 15 (2) of the

Convention.

6. It submits that the breaches of Article 2 of the Convention

referred to the Commission are not only the deprivation of life of a

number of individuals, but are also, and predominantly an

administrative practice, and a series of operations endangering the

right to life. The provisions of Article 26 of the Convention do not

apply in such circumstances.

7. It submits this constitutes a failure by the respondent

Government as a matter of administrative practice to protect by law the

right to life of persons within their jurisdiction in Northern Ireland;

as such, there is no domestic remedy available to the applicant

Government or to any individual or group of individuals in respect of

the matter referred.

8. It further submits that none of the persons killed in breach of

Article 2 of the Convention, has got in himself any right to a remedy

in accordance with the domestic law of the respondent Government, and

the applicant Government will submit that such rights, if any, as exist

in members of the family or dependents of individuals so killed, are

irrelevant to the provisions of Article 26 of the Convention.

D. Breaches of Article 3 of the Convention

1. On the 9th day of August 1971 some 342 persons were taken into

custody by security forces of the respondent Government. This was done

pursuant to the provisions of the said Civil Authorities (Special

Powers) Act (Northern Ireland) 1922 and the said Rules, Regulations and

Orders made thereunder. Since that date more than 1,000 persons have

been similarly taken into custody.

----------------------------------

(1) Yearbook, Vol. 1, p. 50

(2) Yearbook, Vol. 12, ppl 72-74

(3) Annexed to this decision

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2. Persons taken into custody in the early stages were detained in

varying numbers of different centres, namely Palace Barracks, Girdwood

Park and Ballykinlar and to a lesser extent in Magilligan and

elsewhere. Of that 342 persons, about 105 persons were released within

48 hours without any charge having been preferred against them.

Subsequently further persons were taken into custody and detained in

Palace Barracks and elsewhere.

3. The applicant Government refers the Commission to the affidavits

and statements of persons so detained in the said Palace Barracks,

Girdwood Park and Ballykinlar which are contained in Appendices 4, 5

and 6 respectively of the attached documents and to the affidavits and

statements of persons who were detained elsewhere which are contained

in Appendix 7 of the attached documents.

4. It further refers the Commission to the statements of medical

doctors and other medical specialists who subsequently saw or examined

some of the persons who had been or were so detained, or who are in a

position to comment on their treatment, which are contained in Appendix

8 of the attached documents.

5. It further refers the Commission to a report and supplemental

report of a Committee of Inquiry appointed by the Secretary of State

for the Home Department of the respondent Government (known as the

Compton Report) which are contained in Appendix 9 of the attached

documents (1).

6. The applicant Government submits that the persons referred to in

the said Appendices were subjected to treatment which constitutes

torture and inhuman and degrading treatment and punishment and which

was carried out by the security forces of the respondent Government and

is a breach of Article 3 of the Convention.

7. The facts of torture and of inhuman and degrading treatment and

punishment referred to in paragraph 6 and the failure to prosecute and

punish those responsible constitute a denial of justice on the part of

the respondent Government. The rule of international law according to

which domestic remedies must be exhausted before the Commission can

deal with an application does not apply where there is such a denial

of justice as aforesaid.

8. The forms of treatment to which the persons referred to were

subjected and the power of re-arrest, detention and internment would

constitute an impediment and deterrent to the pursuit of any remedy

within the domestic law and of the respondent Government.

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(1) Report of the Enquiry into Allegations against the Security

Forces of physical Brutality in Northern Ireland (Cmnd. 4823).

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9. It further submits that the matter here referred to the

Commission is not only a number of breaches by the respondent

Government of Article 3 of the Convention in respect of the treatment

of individuals, but also constitutes an administrative practice, and

a continued series of executive acts, exposing a section or sections

of the entire population within its jurisdiction in Northern Ireland

to torture or inhuman or degrading treatment or punishment.

10. The applicant Government submits by reason of the foregoing that

the matter being referred to the Commission is not one in respect of

which the applicant Government or any person or group of individuals

can obtain a remedy in accordance with the domestic law of the

respondent Government.

11. It further submits that the only purported remedy available to

a person subjected to the aforesaid treatment constituting a breach of

Article 3 of the Convention, within the domestic law of the respondent

Government, is, in the case where the tort of assault has occurred, the

right to claim monetary damages. Such a remedy is not an effective

remedy, nor is it an sufficient or adequate remedy for the acts

referred in this submission to the Commission, and constituting

breaches of Article 3 of the Convention. Further, in cases where no

such tort of assault has occurred not even this purported remedy

exists.

12. The applicant Government further submits that the said breaches

of Article 3 of the Convention in addition constitute a breach by the

respondent Government of Article 1 of the Convention, and submits that

this is a matter in respect of which there is no domestic remedy within

the law of the respondent Government.

E. Breaches of Articles 5 and 6 of the Convention

1. Subsequent to the events related in paragraphs D.1. and D.2. of

this application a considerable number of persons were interned without

trial by the respondent Government. The exact number of persons at

present interned without trial is not known to the applicant Government

but it is estimated to be in the region of some 400 persons. The

applicant Government submits that the internment of persons as has been

and is being carried out in Northern Ireland is a breach of Article 5

and 6 of the Convention.

2. The applicant Government refers the Commission to the Civil

Authorities (Special Powers) Act, (Northern Ireland) 1922 and the

Statutory Rules, Regulations and Orders made thereunder, contained in

Appendix 1 of the attached documents.

3. The applicant Government submits that the powers contained in the

said Act, Rules, Regulations and Orders and the operation by the

respondent Government of the said powers in Northern Ireland are in

breach of Articles 5 and 6 of the Convention.

4. The applicant Government refers to the communications of the

respondent Government referred to in paragraph C.5. and contained in

Appendix 3 of the attached documents.

5. The applicant Government submits that the scope and form of the

measures taken by the respondent Government in purported derogation

from its obligations under the Convention are far greater and more

extensive than the measures which would be strictly required by the

exigencies of the situation and are inconsistent with the obligations

of the respondent Government under international law.

6. The acts herein referred as breaches of Articles 5 and 6 of the

Convention are lawful within the domestic law of the respondent

Government, being in accordance with the Civil Authorities (Special

Powers) Act (Northern Ireland) 1922 and the Statutory Rules,

Regulations and Orders made thereunder, and as such are acts in respect

of which neither the individuals affected by them, nor the applicant

Government, has any remedy within the domestic law of the respondent

Government.

7. The applicant Government further submits that the said breaches

of Articles 5 and 6 of the Convention in addition constitute a breach

by the respondent Government of Article 1 of the Convention and submit

that this is a matter in respect of which there is no domestic remedy

within the law of the respondent Government.

8. The only possible purported remedy available to a person so

interned in breach of Articles 5 and 6 of the Convention is a right to

make representations to an advisory Committee to consider

representations from internees (known as the Brown Committee). The

applicant Government refers the Commission to a memorandum concerning

the terms of reference of the said Committee which is attached in

Appendix 10 of the attached documents.

9. A person either arrested or detained pursuant to the provisions

of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922

or under the said Rules, Regulations or Orders made thereunder has no

legal remedy.

10. The said Committee is an advisory body only and has no power to

release any person subjected to internment and its procedures are not

in accordance with natural justice. No other body of a quasi-judicial

or purported judicial nature has been provided by the domestic law of

the respondent Government for the examination of or adjudication on the

rights of persons so interned pursuant to the Act, Rules, Regulations

and Orders hereinbefore mentioned.

11. Persons not interned, but who are either held in custody or

detained, have neither the right to make representations to the said

Brown Committee or to any other Committee of a quasi-judicial or other

purported judicial nature.

F. Breaches of Article 14 of the Convention

1. The applicant Government refers the Commission to its aforesaid

submissions in relation to breaches of Article 5 and 6 of the

Convention. It further refers the Commission to the matters set out in

Appendix 11 of the attached documents.

2. The applicant Government submits that the exercise by the

respondent Government and by the security forces under its control of

its powers to detain and intern persons has been and is being carried

out with discrimination on the grounds of political opinion.

3. It further submits that the acts of the respondent Government set

out in paragraph 2 hereof is a failure to secure without discrimination

to persons within its jurisdiction the rights and freedoms conferred

by Articles 5 and 6 and is therefore a breach of Article 14 of the

Convention.

4. The applicant Government again refers the Commission to its

aforesaid submissions in relation to Articles 5 and 6 of the Convention

and to the matters set out in Appendix 11 of the attached documents.

5. The applicant Government submits that the exercise by the

respondent Government and by the security forces under its control of

its powers to search homes has been and is being carried out with

discrimination on the grounds of political opinion.

6. It further submits that the acts of the respondent Government set

out in paragraph 4 hereof is a failure to secure without discrimination

to persons within its jurisdiction the rights and freedoms conferred

by Article 8 of the Convention and is therefore a breach of Article 14

of the Convention.

7. The applicant Government further submits that the said breaches

of Article 14 of the Convention in addition constitute a breach by the

respondent Government of Article 1 of the Convention and submits that

this is a matter in respect of which there is no domestic remedy within

the law of the respondent Government.

G. General

1. Where possible, the applicant Government has referred the

Commission to sworn affidavits relating to the breaches of the

Convention complained of. Photo-copies of these affidavits have been

furnished to the Commission. The original affidavits are in the

possession of the applicant Government and can be produced before the

Commission if required.

2. Where it has not been possible, for reasons outside the control

of the applicant Government, to obtain sworn affidavits, statements

relating to such breaches have been furnished to the Commission. The

original statements are in the possession of the applicant Government

and can be produced before the Commission if required.

3. The Government further refers the Commission to newspaper

articles, statements and other reports contained in Appendix 12 of the

attached documents, which should assist the Commission both in giving

it background information and corroborative evidence of the matters

complained of in this application.

H.

1. The applicant Government reserves the right to bring before the

Commission on this application any further evidence or statements

relating to any breach or to any future breach of any of the Articles

mentioned in this application by the respondent Government in Northern

Ireland where any such further evidence or statements becomes available

to it and to submit further or other arguments as may appear to be

necessary."

2. The supplementary memorial of 22 February 1972

The applicant Government stated that the object of this supplementary

memorial was to draw to the attention of the Commission further and

continuing breaches of Articles 1, 2, 3, 5, 6 and 14 of the Convention.

In particular, reference was made to the deaths of two further persons

on 8 July 1971 (1) and to the deaths of thirteen persons (2) and the

wounding of sixteen others in Londonderry on 30 January 1972. It was

alleged that these deaths had been caused by the security forces of the

respondent Government in breach of Article 2 of the Convention.

As regards the alleged breaches of Article 3 of the Convention, the

applicant Government referred to a number of further affidavits and

other statements made by, or relating to, persons who had been held in

custody by the security forces and to statements made by doctors who

subsequently examined such persons. Further material and evidence were

also submitted with regard to the alleged violations of Articles 5, 6

and 14 of the Convention.

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(1) George Beattie and Seamus Cusack

(2) Jackie Duddy, Patrick Doherty, Bernard McGuigan, Hugh Gilmore,

Kevin McIlhinney, William Nash, John Young, Michael McDaid, Michael

Kelly, James Joseph Wray, Gerald Donoghy, Gerald McKinney and William

McKinney.

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3. The final submissions of 29 September 1972

At the hearing on admissibility the Commission asked the applicant

Government to indicate the elements in the situation today which, in

their submission, were incompatible with the Convention. The applicant

Government replied as follows:

"The elements in the situation today within the territory of the

respondent Government which the applicant Government submits are

incompatible with the Convention are the following legislative measures

and administrative practices.

(1) The persons responsible for the killing of the 22 people referred

to in the Application have not been punished nor disciplined. This

situation remaining today is incompatible with the respondent

Government's obligations under Articles 1 and 2 to secure that the

right to life is protected by law.

(2) Beating and assault by security forces of persons arrested,

detained and interned continues and remains unpunished and this

situation today is incompatible with the respondent Government's

obligations under Articles 1 and 3.

(3) The provisions of the Special Powers Act (Northern Ireland) 1922

and the Rules, Regulations or Orders made under it and the method of

implementing these measures remain today unchanged from the position

outlined in the application and this situation today is incompatible

with the respondent Government's obligations under Articles 1, 5, 6 and

14."

II. Submissions of the Parties

In their written observations on admissibility and at the hearing of

25 to 29 September 1972 the Parties made further submissions as

follows:

A. As to the background

1. Submissions of the respondent Government

(a) In their written and oral observations on admissibility the

respondent Government outlined the constitutional position of Northern

Ireland and made certain other submissions which were described in the

written observations as background material of a legal and factual

nature.

The respondent Government stated that Northern Ireland was an integral

part of the United Kingdom. The Government of Ireland Act 1920

established as separate Parliament and Executive for Northern Ireland.

The Northern Ireland Parliament was given extensive legislative powers

in respect of all domestic matters concerning the government of

Northern Ireland except in certain specific matters excluded under the

Act. Under Sec. 75 of the Act, the United Kingdom Parliament remained,

however, the supreme authority over Northern Ireland but it was rare

for the United Kingdom Parliament to legislate for Northern Ireland in

matters within the competence of the Northern Ireland Parliament.

On 30 March 1972 the United Kingdom Parliament passed the Northern

Ireland (Temporary Provisions) Act 1972 which made temporary provision

for the exercise of the executive and legislative powers of the

Government and Parliament of Northern Ireland by authorities of the

United Kingdom. This Act was passed because of the public emergency in

Northern Ireland and the reasons for its enactment were explained in

a statement made by the Prime Minister in the House of Commons at

Westminster on 24 March 1972.

(b) The respondent Government also referred to the Civil Authorities

(Special Powers) Act (Northern Ireland) 1922 which, dealing with

matters affecting law and order and the security of Northern Ireland,

was an Act passed by the Northern Ireland Parliament. Under Sec. 1 (1)

of the Act the Civil Authority had power, in respect of persons,

matters and things within the jurisdiction of the Government of

Northern Ireland, to take all such steps and issue all such orders as

may be necessary for preserving peace and maintaining order in

accordance with the Act and the Regulations ("the Special Powers

Regulations") contained in the Schedule thereto, or any other

Regulations made in accordance with the Act. This sub-section also

required that the ordinary course of law and avocations of life and the

enjoyment of property should be interfered with as little as might be

permitted by the exigencies of the steps required to be taken under the

Act. Section 1 (2) provided that the Civil Authority was the Minister

of Home Affairs for Northern Ireland. Under the Act of 1972 the

functions of this Minister were exercisable temporarily by the

Secretary of State for Northern Ireland.

Under Section 1 (3) of the Act the Minister of Home Affairs had power

to make further Regulations to the preservation of peace and

maintenance of order and to vary or revoke any provision of the

Regulations. Such Regulations were required to be laid before the

Northern Ireland Parliament and were subject to amendment on an address

by either House of that Parliament. Under the 1972 Act the power to

make Regulations was vested in the Secretary of State for Northern

Ireland who could not make Regulations unless a draft was approved by

the United Kingdom Parliament, except where by reason of urgency this

procedure could not be followed, in which case the Regulations had to

be laid before the United Kingdom Parliament after being made and would

expire if within 40 days they were not approved by each House.

Under Regulation 24 of the Special Powers Regulations certain

associations were declared to be unlawful including the Irish

Republican Army (hereinafter referred to as "the IRA").

(c) The respondent Government further stated that there was, and had

been at all times material to the application, a public emergency

threatening the life of the nation. This emergency had been caused by

the IRA which was a clandestine organisation with quasi-military

dispositions, which accepted neither the structure of government in the

Republic of Ireland nor the existence of Northern Ireland as part of

the United Kingdom, and was dedicated to changing both by force. From

time to time the IRA mounted campaigns of violence. Such, for example,

were the campaigns of 1939-41 and 1956-62 which were referred to by the

applicant Government in the Lawless Case (application No. 332/57). At

present the IRA was divided into "Official" and "Provisional" wings.

This division occurred in 1969 and led to a revival of organised

violence and intimidation. During 1971 the incidence of violence,

terrorism and intimidation intensified. The respondent Government made

detailed written and oral submissions with regard to such acts of

violence and stated, inter alia, in this connection that, between 1

August 1969 and 12 September 1972, indiscriminate bombings and other

terrorist activity resulted in the death of at least 259 civilians and

the injury of over 5,000 persons. 170 members of the British Army and

the police were killed and 1,251 injured. In the same period there were

more than 2,300 bomb explosions which caused extensive damage to

property. During this period the security forces seized 1,715 firearms,

including 75 machine guns and 690 rifles; 348,000 rounds of ammunition;

6 3/4 tons of explosives plus a further 7 tons of explosives retrieved

from bombs dismantled by the security forces; 7,000 detonators; over

5 miles of fuse wire; 3,200 grenades and nail bombs and 250 gallons of

acid for the making of bombs.

The respondent Government submitted that the IRA had deliberately

killed people on account of their political views or to prevent them

from giving evidence. One effect of IRA terrorism was to deter people

from coming forward as witnesses and this had stultified the ordinary

methods of enforcing the law.

(d) The respondent Government further stated that the applicant

Government were well aware of the dangers to them from the IRA and had

condemned its activities. During previous periods of violence the

applicant Government had resorted to internment and the introduction

of special criminal courts. However, despite the fact that the IRA has

been declared an illegal organisation in the Republic of Ireland since

1936, both wings of the IRA operated from known addresses in Dublin,

leading members of both wings were known to the public, and both wings

openly claimed responsibility for specific acts of terrorism.

Little attempt appeared to have been made by the applicant Government

to take effective action against the IRA and the ability of those

responsible for acts of violence in the North to seek sanctuary south

of the border had undoubtedly had an adverse effect on the security

situation in the North, and contributed to the existence of a state of

emergency in Northern Ireland. The ineffectiveness of the applicant

Government in controlling the activities within their own territory was

shown by a number of cross-border shootings by terrorists and other

incidents of violence in the border area where terrorists had been seen

to cross the border before or after an attack or had reasonably been

believed to have done so.

The respondent Government also referred to representations made by them

to authorities of the applicant Government on various occasions in

connection with cross-border incidents and to the respondent

Government's unsuccessful attempts to obtain the extradition of persons

wanted by the Northern Ireland police.

2. Submissions of the applicant Government

the applicant Government submitted in reply that the observations of

the respondent Government, which have been summarised in paragraphs (a)

and (b) above, called for no comment on the issue of the admissibility

of the application. As regards the submissions summarised in paragraphs

(c) and (d) above, these were relevant to the application (if at all)

only to the extent to which they related to the question whether the

notifications sent by the respondent Government pursuant to Article 15

(3) of the Convention were warranted under Article 5 (1). They were not

relevant to the question of admissibility.

The applicant Government strongly objected to the respondent

Government's allegations that they had in any way failed to take

effective action against members of illegal organisations or to secure

proper control of the border. The applicant Government maintained that

such allegations of action or inaction on their part were wholly

irrelevant to the present application. In the applicant Government's

submission they had behaved with utmost responsibility in matters of

security and in regard to the border. They had proposed that a United

Nations observer group should operate in the border area on both sides

to assist in preventing breaches of the peace but the respondent

Government had not agreed to this proposal.

The applicant Government also emphasised that they had taken positive

steps to deal with the security situation. The criminal law relating

to firearms and explosives in Ireland was similar to the law in the

United Kingdom. In 1971, legislation had been passed which made it

clear that to possess arms with the intention of endangering life

outside the jurisdiction of the applicant Government was a very serious

offence. All firearms, except sporting shotguns, had been called in and

there was rigorous control of explosive substances. In addition certain

chemicals which could be used to make explosives had been banned.

Moreover, the police force had been steadily increased and a high

proportion of the force were stationed in the border area where they

were assisted in policing the border by a substantial portion of the

Irish Army. In view of the fact that certain persons, who appeared on

the evidence to be guilty of offences against the legislation relating

to illegal organisations, firearms, explosive substances or certain

other matters, had been acquitted in the courts, a special court was

set up in May 1972 to deal with cases of this type. Many cases had been

dealt with by the court and there had been a high proportion of

convictions. Every individual who could be proved to belong to a

subversive organisation was brought to trial.

B. General submissions

Both Parties made certain general submissions, which relate to more

than one Article of the Convention. These submissions were mainly under

Article 15 (right of derogation in public emergency) and Article 25 of

the Convention (question of exhaustion of domestic remedies).

1. Submissions of the respondent Government

(a) In their written and oral submissions the respondent Government

denied that they were in breach of their obligations as alleged by the

applicant Government; in particular they denied that they were in

breach of their obligations under Articles 1, 2, 3, 5, 6 or 14 (or

Articles cited in conjunction with 14) of the Convention.

(b) Without prejudice to that submission the respondent Government

reiterated that there was in Northern Ireland, and had been at all

times relevant to this application, a public emergency threatening the

lifes of the nation. This emergency existed because of the activities

of the IRA in the pursuance of its aims to destroy the existence of

Northern Ireland as a part of the United Kingdom and to subvert the

structure of government in the Republic of Ireland. It had accordingly

been necessary for the respondent Government to undertake certain

measures to counter the activities of the IRA. The respondent

Government referred to the right accorded to States by Article 15 (1)

of the Convention to derogate from their obligations in time of public

emergency treatening the life of the nation. The measures taken were

strictly required by the exigencies of the situation and were not

inconsistent with the respondent Government's obligations under

international law and, furthermore, they were taken within the margin

of appreciation accorded to States both as to the existence of an

emergency and as to the measures required by it. Accordingly, insofar

as the measures had effect in the field of Articles 5, 6 or 14 or any

other Article of the Convention taken in conjunction with Article 14,

these did not constitute a contravention of the Convention. The

respondent Government referred to their communication to the Secretary

General of the Council of Europe, pursuant to Article 15 (3), of

certain measures taken in connection with the exercise of the right of

derogation.

(c) The respondent Government stated that they were mindful of

decisions of the Commission that certain issues were, as such or in

certain conditions, not issues for determination at the admissibility

stage of applications made under Article 24. Reference was made to the

Commission's second decision on the admissibility of the First Greek

Case (Yearbook, Vol. 11, pp. 730, 768) where it was held that

allegations could not be rejected on the ground that no prima facie

proof had been produced. The respondent Government argued that this

decision did not apply to allegations which were not supported by any

assertion of law or fact. Moreover, allegations in an application under

Article 24 must at least contain a sufficient statement of fact or

argument as was required by Rule 41 of the Commission's Rules of

Procedure, to support them. In the absence of such supporting material

an allegation should be rejected, or the Commission should decline to

examine it further.

(d) The respondent Government also referred to the Commission's

further findings in the First Greek Case (ibidem p. 726) that the

provisions of Article 26 of the Convention concerning the exhaustion

of domestic remedies did not apply to applications whose object was to

determine the compatibility with the Convention of legislative measures

and administrative practices. The respondent Government submitted in

this connection that this decision did not, at the admissibility stage,

exclude from consideration bare allegations of an administrative

practice, i.e. an allegation of a practice unsupported by any assertion

of law or fact from which such practice was to be deduced. Moreover,

the onus of establishing the existence of an administrative practice

was on the applicant Government. Such onus was not satisfied without

supporting evidence of fact or submissions of law. In the absence of

such supporting material the issue of exhaustion of domestic remedies

was not to be excluded at this stage. In support of this submission

reference was again made to the second decision on the admissibility

of the First Greek Case (ibidem p. 770).

2. Submissions of the applicant Government

(a) The main arguments submitted by the applicant Government in their

written and oral submissions with regard to the relevance of Article

15 of the Convention at the stage of admissibility can be briefly

summarised as follows:

- the question whether an application under Article 24 of the

Convention was well-founded or not was solely a question relating to

the merits and, therefore, the effects of derogations made by the

respondent Government under Article 15 could not be considered by the

Commission at the stage of admissibility;

- accordingly, no questions relating to the extent of measures

taken in pursuance of a derogation or as to the validity of such a

derogation could arise at that stage;

- were the Commission nonetheless to consider the question of

derogation at that stage, the applicant Government would not contest

that there existed in Northern Ireland at all material times a public

emergency within the meaning of Article 15 (1) of the Convention but

they maintained that the measures concerned exceeded what was strictly

required by the exigencies of the situation.

The applicant Government developed these arguments in connection with

their submissions under Articles 5 and 6 of the Convention and their

case is therefore set out in greater detail below in the context of the

other submissions with regard to those Articles.

(b) In their written and oral submissions the applicant Government

maintained generally that the provisions of Article 26 of the

Convention concerning the exhaustion of domestic remedies did not apply

to any part of their application whose object and purpose was to seek

a determination of the compatibility of certain legislative measures

and administrative practices with the respondent Government's

obligations under the Convention. Moreover, the applicant Government

emphasised that, while the application was by necessity supported in

part by evidence of violations of the rights of individual persons, it

was neither in form nor in reality concerned with compensation for, or

reparation of, wrongs committed in respect of individual persons. There

was no domestic remedy available in respect of such a claim by a High

Contracting Party and no question of exhausting any domestic remedies

could arise.

In support of this submission the applicant Government referred, in the

first place, to the Commission's decisions on the admissibility in the

First Greek Case with regard to the interpretation of Articles 26 and

27. The applicant Government considered that no distinction could be

made between their claim in the present case and the claim of the

applicant Governments in the Greek case.

In the applicant Government's further submission a consideration de

novo of the relevant provisions of the Convention would for the

following reasons inevitably lead to the same result:

- Article 27 (2), of the Convention by its express terms applied

only to a petition under Article 25;

- the only issue which could arise at the admissibility stage of

an application under Article 24 of the Convention was the issue under

Article 26;

- the rule concerning domestic remedies in Article 26 was expressly

qualified by the reference to the generally recognised rules of

international law;

- such rules provided that, where a claim was made bona fide on the

ground of a breach of treaty only, no domestic remedy was available and

the domestic remedies' rules did not apply;

- in the present application the claim was only concerned with

ensuring the observance by the respondent Government of the obligations

undertaken by them in the Convention and the applicant Government

sought to obtain a determination of the compatibility with those

obligations of certain legislative measures and administrative

practices. The claim therefore constituted a breach of treaty claim.

In the applicant Government's view this submission constituted a

complete answer to the respondent Government's objections on

admissibility and would, if accepted by the Commission, lead to the

whole application being declared admissible.

In the course of the hearing before the Commission the representatives

of the applicant Government made detailed submissions in support of

their argument that a claim of the present nature, being a breach of

treaty claim, was not, according to the generally recognised rules of

international law, subject to the rule requiring the exhaustion of

domestic remedies. In particular, it was submitted that these generally

recognised rules made a distinction between a breach of treaty claim

and claims of diplomatic protection. The domestic remedies' rule only

applied to the latter category of cases. In this connection reference

was made to Meron, "The incidence of the rule of exhaustion of domestic

remedies" (British Yearbook of International Law 35 (1959), pp. 83,

86). The same distinction should be made with regard to claims brought

under Article 24 of the Convention. As an example of the equivalent to

a diplomatic protection claim under the Convention, the applicant

Government referred to the Commission's decision on the admissibility

of application No. 788/60 (Austria v. Italy).

The applicant Government also submitted that, having regard to the

object of the present application, namely to determine the

compatibility with the Convention of certain administrative practices,

it would be inconsistent with the Convention and the principles

underlying it to require substantial proof of the existence of such

practices at the admissibility stage. In such an application the

applicant Government would have to prove, first the existence of an

administrative practice and, secondly, the inconsistency with the

Convention of that practice. There could be no grounds for seeking

substantial proof of the practice, which was an integral part of the

case, at the admissibility stage, while leaving to the merits stage the

whole question of the incompatibility of the practice. If the

Commission rejected any part of the application on the ground that

substantial evidence of a practice had not been given, this would in

effect mean that the Commission was rejecting an application under

Article 24 for want of prima facie proof and this the Commission had

consistently refused to do.

C. As to the allegations relating to particular Articles of the

Convention

1. Under Article 1

(a) Submissions of the respondent Government

The respondent Government submitted in their written observations that

Article 1 of the Convention did not constitute a head of liability

otherwise than in respect of a right or freedom defined in Section I

of the Convention. Accordingly, no question on the merits could arise

in respect of a separate violation of Article 1. Since the applicant

Government's allegations under that Article did not give rise to any

issue which fell to be considered separately at any stage of the

proceedings before the Commission, this allegation did not come within

the terms of Article 24 of the Convention. The Commission should

therefore reject or, in the alternative decline to give further

consideration to, allegations of a contravention of Article 1 which

constituted in any sense substantive allegations separate from those

of an allegation of a right or freedom defined in Section I of the

Convention.

At the hearing the representatives of the respondent Government

developed their arguments in this respect. They submitted that the

interpretation of Article 1 suggested by the applicant Government,

namely that one act could constitute both a breach of one of the

Articles in Section I and at the same time a separate and additional

breach of Article 1 of the Convention, was wrong and contrary to the

Commission's case-law. Article 1 provided that the "High Contracting

Parties shall secure to everyone within their jurisdiction the rights

and freedoms defined in Section I of this Convention". Article 1 was

not in itself part of this Section which comprised Articles 2 - 18.

Section I was essentially a series of statements which are made binding

on the Parties by Article 1, whereas Article 1, on the other hand, was

meaningless if read in isolation. There could be no breach of Article

1 unless there was a denial of the rights stated in Section I but a

breach of one of those rights was a breach of the Convention solely by

virtue of Article 1. Strictly speaking, a breach of one of these

Articles was a breach of that Article read with Article 1. However, an

act such as, for example, depriving a man of his liberty in a manner

inconsistent with Article 5 constituted only a single breach of the

Convention, and that breach had a single and not a dual character.

It had been suggested in the past, and this was apparently repeated in

the present proceedings, that such an act was both a breach of the

provisions of the Convention and also of a treaty obligation accepted

by the Parties to the Convention inter se. This interpretation had,

however, previously been categorically rejected by the Commission (see

decisions on the admissibility of application No. 788/60, Austria v.

Italy, Yearbook, Vol. 4, p. 116 at pp. 138 and 140 and of the First

Greek Case, Yearbook, Vol. 11, p. 730 at p. 762).

The object of the applicant Government's interpretation of Article 1

was an attempt to evade the requirements of Article 26. Moreover, the

applicant Government was seeking to bring before the Commission matters

which did not amount to a breach of any provisions of Section I,

although the Commission had repeatedly decided that such matters could

not be the subject of a complaint. Further, the applicant Government

were asking the Commission to hold not that the respondent Government

had committed wrongs against specific individuals but that they had

been in breach of alleged "treaty obligations" in respect of certain

individuals. However, the Commission had repeatedly decided that it was

not the purpose of the Convention to create reciprocal rights between

the High Contracting Parties themselves. The applicant Government were

trying to extend the operation of the Convention to matters which lay

quite outside its ambit.

It was true that this was not stated in the Convention to be a ground

of inadmissibility. However, it would be objectionable for the

Commission to spend time investigating complaints of matters to which

the Convention did not apply. The Commission had previously recognised

that a complaint might be declared inadmissible on this ground. In

support of this proposition the respondent Government referred to the

Commission's decision on the admissibility of application No. 214/56

(de Becker v. Belgium, Yearbook, Vol. 2, p. 214, at p. 230) concerning

inadmissibility ratione temporis.

(b) Submissions of the applicant Government

In their written observations the applicant Government maintained that

there was a breach of Article 1 of the Convention by a High Contracting

Party through that Party's failure to secure the rights and freedoms

defined in Section I of the Convention where:

- the laws in force did not guarantee those rights and freedoms; or

- the laws in force permitted the infringement of those rights or

freedoms; or

- the Government failed to take effective remedial action to prevent

repeated violations of such rights and freedoms by those persons for

whose acts they were responsible.

In the applicant Government's submission, the respondent Government

were in breach of Article 1 of the Convention by the mere existence

(even if non-implemented) of the Special Powers Act and the Rules,

Regulations and Orders under it as part of the permanent legislation.

The implementation and exercise of these powers were also in

themselves:

- a further breach of Article 1 as being a positive failure by the

respondent Government to secure to persons within their jurisdiction

the rights and freedoms defined in Section I of the Convention; and

- a breach of Articles 2, 3, 5, 6 and 14, each taken in conjunction

with Article 1, as being breaches of the rights and freedoms set forth

in Section I of the Convention.

Accordingly, where a positive breach of any Article contained in

Section I occurred, there occurred in addition and by necessity a

breach of Article 1 of the Convention. Where no positive breach of any

other Article had occurred, there might still be a breach of Article

1 where legislation was enacted which could potentially deprive a

person of his rights and freedoms of Section I of the Convention.

The respondent Government had failed to take any effective remedial

action to prevent violations. Ordinary claims for compensation by way

of civil action were inadequate in this respect and the damage was not

reparable by monetary compensation. By failing to punish or discipline

those who assaulted detainees the respondent Government had failed in

their duty under Article 1. This breach was separate from the breach

constituted by the assault itself. It was not a matter for which any

domestic remedy existed so that the rule requiring the exhaustion of

domestic remedies could have no application.

The applicant Government further submitted that the repeated breaches

of rights and freedoms under the Convention with official tolerance

constituted a breach of treaty obligations additional to the rights and

freedoms of the individual victims. It created a situation where the

community generally was no longer secure in the enjoyment of the rights

and freedoms. A deliberate course of conduct in breach of the

Convention was properly categorised as a breach of a treaty obligation

rather than a wrong against a specific individual so the domestic

remedies' rule had no application.

At the hearing the representatives of the applicant Government made

further submissions in this respect. They argued that the issue as to

whether Article 1 was a separate head of obligation was not an

admissibility issue, and the respondent Government's contention that

it should be decided at the stage of admissibility in this application

was an attempt to apply to an application under Article 24 the

provisions of Article 27 (2), of the Convention which were expressly

confined to applications made under Article 25 of the Convention. In

the applicant Government's opinion it was inconceivable that the

Commission would at a preliminary stage decide such a fundamental

question as the interpretation and application of Article 1.

For the event that this issue was nevertheless to be considered at the

admissibility stage the applicant Government summarised, at one point,

their submissions in this respect as follows:

- The Convention was a treaty, being an international agreement

between the High Contracting Parties in which reciprocal agreement had

been reached. Reference was made to the Preamble and, in particular,

its ending with the words "have agreed as follows";

- The purpose of the treaty was to maintain and realise the

fundamental human rights and fundamental freedoms declared by the

Universal Declaration of Human Rights proclaimed by the United Nations

on 10 December 1948 as stated in the Preamble;

- The method of carrying out this purpose was that each High

Contracting Party agreed with each other such Party to secure to

everyone within their jurisdiction those rights and fundamental

freedoms;

- This differed from the nature and effect of the Universal

Declaration which consisted of a joint declaration by the Consenting

Parties through the General Assembly (of which they were members) of

the intention of each to promote respect for and recognition of these

rights. In the Preamble of the Declaration the effective word was

"proclaim" whereas in the Convention the effective words were "have

agreed".

- It should be noted that Articles 2-18 of the Convention were similar

in content and form to Articles 1-30 of the Universal Declaration;

- The difference between the two documents was therefore primarily to

be found in Article 1 of the Convention which expressed a complete

obligation to secure the rights and freedoms subsequently defined.

- This was a concrete obligation as was emphasised by the wording of

Article 19 of the Convention: "To ensure the observance of the

engagements undertaken by the High Contracting Parties";

- The Convention being by its express terms an agreement between the

High Contracting Parties, the engagements were obligations owed by

every such Party to each of the others. If such an obligation existed,

there should also be a possibility of it being broken. Therefore a

breach of Article 1 whose provisions created the specific obligation

to secure the rights and freedoms subsequently defined must be possible

and this was consistent with the jurisprudence of the Commission and

the Court;

- It was a principle of international law as well as of domestic law

that in the interpretation of any written agreement effect must be

given to every clause and every provision. To construe the Convention

in such a way that breaches could only occur of individual Articles

which defined specific rights and freedoms, e.g. Articles 2-14, would

be to give no effect at all to Article 1 of the Convention would have

that meaning if the words "have agreed as follows" were immediately

followed in the text by Article 2 and the succeeding Articles.

- If Article 1 did create an obligation capable of being breached then

it necessarily followed that, at the reference of a High Contracting

Party, such a breach was justiciable only by a court of international

law and specifically by the organs set up under Article 19 of the

Convention and could not be the subject of proceedings in any municipal

or domestic court.

In the course of the hearing the representatives of the applicant

Government developed in greater detail and with reference to the

Commission's case-law their submission that Article 1 constituted a

separate head of obligation. The applicant Government again emphasised

that this obligation was a positive duty to secure the rights and

freedoms concerned.

The applicant Government also made further arguments in support of the

contention that a legislative measure in itself could be a breach of

the Convention even without having been implemented. In this context

the applicant Government submitted as an example, that a High

Contracting Party which passed a statute providing for a degrading from

punishment, for instance the public whipping of adults, in clear

violation of Article 3, would be in breach of Article 1 even before

anybody had been punished. Before the law became operative in any

particular case, there could, on the other hand, be no violation of

Article 3 itself. To construe Article 1 of the Convention in such a way

generally that another High Contracting Party could not come to the

Commission until someone had been actually whipped could not

conceivably be in accordance with the declared intentions of the

Parties entering into the Convention.

2. Under Article 2

(a) Submissions of the respondent Government

In their written observations the respondent Government denied that the

incidents referred to by the applicant Government under this Article

(even on the facts adduced, which were not admitted) constituted a

breach of Article 2 of the Convention. Such incidents either fell

within the provisions of Article 2 (2) or did not constitute an

international deprivation of life within the meaning of Article 2 (1).

The main submissions on the admissibility of the allegation of a breach

of this Article were as follows:

- nothing in the relevant parts of this application constituted a basis

for the allegation that the loss of life of the individual concerned,

even if it had been caused by the security forces (and it was not

admitted that this was the case in all the incidents quoted),

constituted "predominantly an administrative practice ... endangering

the right to life" or a "series of operations endangering the right to

life";

- consequently the provisions of Article 26 of the Convention were

required to be satisfied; and

- these provisions had not been satisfied.

As regards the alleged administrative practice the respondent

Government submitted that administrative measures had always existed

to safeguard life in circumstances in which troops had to open fire.

In this connection, the respondent Government referred to the rules of

the common law and statutory provisions regarding the use of force in

the event of a civil disturbance. Under the law military forces, when

called upon to assist the civil authority in the maintenance of law and

order, were under the same obligation as the ordinary citizen, namely

to use only such force as was reasonably necessary to restore order.

Instructions on opening fire in circumstances where military forces

were so assisting the civil authorities were issued to every soldier

engaged in such duties. The instructions (known as the "Yellow Card")

were issued by the Director of Operations in Northern Ireland and were

subject to revision from time to time.

The respondent Government referred the Commission to the two revisions

of the Instructions in force at all times relevant to the application.

The Yellow Card was intended to give guidance to the soldiers on the

powers available to them under the law. In particular, the card gave

guidance to soldiers on the circumstances in which they might open fire

and in the manner in which they might fire if it was necessary to do

so. According to these instructions a soldier should on no occasion use

more force than the minimum necessary to enable him to carry out his

duties and should not open fire if the situation could be otherwise

handled; it was required that a warning should be given before opening

fire except in certain exceptional circumstances.

The respondent Government submitted that these instructions

demonstrated the clear intention of the authorities that soldiers

should only open fire as a last resort and that, if they did so, there

was to be no more shooting than the immediate circumstances demanded.

The instructions also demonstrated clearly that the guidance laid down

as to the circumstances when soldiers may open fire whilst quelling a

civil disturbance were consistent with the provisions of Article 2.

Moreover, the instructions should be considered against the background

of the common law and statutory provisions concerning the use of force.

In this connection the respondent Government also referred to the

findings in the Report of the Tribunal of Inquiry conducted by Lord

Widgery, the Lord Chief Justice of England, into the events in

Londonderry on 30 January 1972. Those findings were that "the standing

orders contained in the Yellow Card are satisfactory. Any further

restrictions on opening fire would inhibit the soldiers from taking

proper steps for his own safety and that of his colleagues and would

unduly hamper the engagement of gunmen."

The respondent Government then set out the relevant provisions of

United Kingdom law regarding the use of troops in a civil emergency and

any deaths resulting therefrom. An act committed by a person resulting

in the death of another person might give rise both to liability under

criminal law and to a civil action for damages. If the deaths, alleged

to have been caused in violation of Article 2, were caused in

circumstances which under the relevant provisions of United Kingdom law

were unlawful, it would have been the duty of the law enforcement

authorities to consider whether criminal proceedings should be taken.

Indeed, such action had been taken against service personnel (in

certain cases other than the cases of death referred to in the

application) in respect of incidents in which they used firearms.

If death was caused by a negligent act or by an intentional and

unjustified act, it was a wrong against the deceased for which his

personal representatives could, by virtue of the Law Reform

(Miscellaneous Provisions) Act (Northern Ireland) 1937, bring an action

in tort (i.e. civil wrong) against the person whose act caused the

death, or against the latter's employer if the act had been carried out

in the course of that person's employment. If the deceased would have

had an action against any person in respect of the act causing his

death (if death had not ensued), any dependants of the deceased had a

right of action for any pecuniary loss which they had suffered by

virtue of the Fatal Accidents Acts (Northern Ireland) 1946-1959.

Moreover, the Crown vas vicariously liable in respect of tortious acts

of its servants committed in the course of their duties by virtue of

the Crown Proceedings Act 1947. If a person suffered injury as a result

of a wrongful act of shooting by a Crown servant (including a soldier),

he (or his personal representative or, if the Fatal Accidents Acts were

applicable, his dependants) had a right of action either against the

soldier allegedly responsible, or against the Crown. A right of action

would lie against the Crown even if it was not possible to identify the

soldier concerned.

Finally, another remedy available to the dependants was to bring an

action in a County Court for the payment of compensation under the

Criminal Injuries to Persons (Compensation) Act (Northern Ireland)

1968, where the deceased's death was directly attributable to a

criminal offence (with certain exceptions) and where those dependants

could show that they suffered pecuniary loss as a result. Excessive use

of force would be an offence; and it was not necessary to identify the

wrong-doer, providing it appeared on the balance of probabilities that

the injury resulted from a criminal act; nor was it necessary for the

person responsible for the injury to have been prosecuted for a

criminal offence in respect of the death concerned.

It was apparent that domestic remedies within the meaning of Article

26 of the Convention had been and still were available, to the estate

or dependants of the deceased persons in respect of the deaths which

were the subject of the complaints under Article 2. These remedies had

not yet been exhausted although proceedings had been instituted in some

cases (cf. below p. 37).

The respondent Government referred to the applicant Government's

argument that the rights, if any, of dependants, or members of the

family, of individuals who were killed contrary to Article 2 were

irrelevant to the question of domestic remedies under Article 26. This

argument was, in the respondent Government's submission, tantamount to

saying that Article 26 had no application at all in relation to

allegations of a breach of Article 2. There was nothing in the

Convention to support such a suggestion. The remedies described above

constituted remedies according to the generally recognised rules of

international law. Contrary to what was stated in the original

application, monetary damages were recognised in international law as

an effective remedy in cases of death. As an illustration of the

recognition of damages as a remedy the respondent Government referred

to the Lusitania Case ((1923) 7 RIAA 32). Accordingly, the allegations

of the applicant Government under Article 2 should be rejected as

inadmissible under Article 27 (3) since domestic remedies had not been

exhausted as required by Article 26 of the Convention.

At the hearing the representatives of the respondent Government

developed their submissions in this respect; the allegation that the

22 deaths referred to in the application showed an administrative

practice of endangering life had to be seen in the right perspective.

At present there were about 20,000 troops stationed in Northern

Ireland. These troops had been involved in almost daily incidents. The

respondent Government stated that the 22 deaths concerned arose in

different ways and in greatly varying circumstances. The incidents

showed no distinctive pattern of conduct by the troops and had no

common factor save that in each case troops had opened fire which

resulted, or may have resulted, in deaths. In this connection the

respondent Government summarised briefly their view of the essential

facts relating to the nine deaths which occurred in 1971 and made the

following observations in this respect:

- George Beattie was killed by one bullet in the course of a riot

in Londonderry on 8 July 1971 where troops had been heavily stoned by

rioters. During four days the soldiers had been attacked by petrol and

nail bombs and fired at. In reply to those attacks, the troops fired

three rounds, of which two were fired at Beattie.

- Father Hugh Mullan was shot in Belfast on 9 August 1971 during

a heavy exchange of cross fire between British soldiers and gunmen and

there was no evidence that he had been killed by a shot fired by the

Army;

- Francis McGuiness - Whilst clearing a barricade in Belfast on 9

August 1971, the soldiers came under attack from a crowd of youths

hurling stones, bricks and bottles. Rubber bullets were fired to

disperse the crowd but with little effect. McGuiness was shot after

five petrol bombs had been thrown at the troops;

- Eamon McDevitt was killed by a single shot, which was the only

shot fired during a series of riots in the town of Strabane;

- Seamus Cusack was shot during the course of a riot in Londonderry

on 7 July 1971 when a crowd of over 100 men and boys had attacked the

troops with stones and other missiles. Cusack was not taken to hospital

in Londonderry but brought across the border to the Republic of Ireland

with a wound in his thigh and died there shortly after his arrival. The

Coroner subsequently found that Cusack would probably have survived if

he had received medical attention sooner.

- Villiam McKavanagh - on 11 August 1971, following prolonged riots in

Belfast, troops came across four youths acting suspiciously. They were

challenged to halt but failed to stop whereupon one of them,

McKavanagh, was shot;

- Robert Anderson, James McLaughlin and Sean Ruddy were shot in Newry

after having attacked two men engaged in depositing money in a night

safe of a bank. Soldiers on guard believed that the deceased were

attacking the bank by a bomb and twice called on them to halt but they

did not obey and were then fired upon.

As regards the 13 deaths in Londonderry, the respondent Government

referred to the Report of Lord Widgery. In view of the security

situation in Londonderry, the security forces decided to block a

protest march organised in the city by the Northern Ireland Civil

Rights Association on 30 January 1972 despite the prohibition by law

of parades and processions in Northern Ireland. A crowd of rioters

attacked the Army which was stationed behind three barricades and,

during the Army's attempts to arrest the rioters, the firing took

place. At the time it was suggested that the soldiers had blatantly

disregarded the instructions in the Yellow Card by firing

indiscriminately when the only threat to their safety came from a small

group of stone throwers. After his extensive inquiry Lord Widgery

concluded that the soldiers did, while trying to contain the

disturbance, come under fire from unknown snipers who, endangering the

lives of the soldiers, inflamed a situation

which might otherwise have passed without bloodshed. Lord Widgery found

(at paragraph 54 of the Report) that the first firing was directed

against the soldiers. He also found that there was no general breakdown

of discipline among the soldiers. In the respondent Government's

opinion the Report gave a picture of soldiers conscientiously doing

their best under very difficult circumstances and in many cases under

fire. The one or two cases where soldiers were found to have fired

without justification were exceptional and it would, in the

circumstances, have been remarkable if there had not been one or two

such incidents. However, no administrative practice contrary to Article

2 of the Convention could possibly be inferred from the two examples

where soldiers may conceivably have over-reacted.

In the respondent Government's submission the applicant Government

would, if they were to succeed in establishing an administrative

practice under Article 2, have to provide substantial evidence of a

pattern of killing or of acts endangering life. On the evidence before

the Commission, they had not even begun to discharge their burden.

Neither had the applicant Government established official tolerance of

acts contrary to Article 2. Whenever a death or serious injury

occurred, investigation was always carried out by the Army in addition

to the normal civil inquest. If evidence was disclosed of a criminal

offence the papers were passed to the civil authorities for criminal

proceedings. However, such proceedings would only be introduced where

there was sufficient evidence to merit the commencement of proceedings.

The question of criminal or disciplinary proceedings against the

soldiers involved in the Widgery Inquiry had been carefully considered

by the relevant authorities but these authorities were not satisfied

that such proceedings were justified. Moreover, there had been no

indifference shown on the part of the authorities by any refusal of

adequate investigation. In addition to the normal inquests held in case

of sudden death and inquiries where the security forces are involved,

the Home Secretary had set up the Widgery Inquiry. The urgency with

which the Inquiry was set up and the merits of this careful and

exhaustive inquiry showed that there was no attitude of indifference

on the part of the United Kingdom authorities. Neither was there any

official tolerance by denying a fair hearing in judicial proceedings.

The respondent Government stated at the hearing that, so far, claims

under the Criminal Injuries to Persons (Compensation) Act 1968 had been

commenced in respect of five of the first group of nine deaths. In

addition, an action had been commenced in the High Court in respect of

the death or Eamon McDevitt for the loss of expectation of life on

behalf of the estate and for financial loss on behalf of the

dependants. As regards the 13 deaths in Londonderry, claims under the

1968 Act had been commenced in respect of all cases and actions had

been brought in the High Court in respect of seven deaths. These

remedies had not yet been exhausted.

(b) Submissions of the applicant Government

In their written observations the applicant Government submitted that

the facts relating to the incidents concerned showed repeated and

successive breaches of the United Kingdom law, disobedience of the

instructions in the Yellow Card and breaches of Article 2 of the

Convention. The applicant Government pointed out that the respondent

Government had not, at that stage, submitted any facts to substantiate

their contention that there had been no such breaches. As regards the

Widgery Report, reference was made, by way of example, to the findings

of the Report that the firing of some soldiers had "bordered on the

reckless" and that "shots were fired without justification" (paragraph

85 and summary 8 of the Report). Moreover, Lord Widgery had found that

the firing of 12 rounds by one soldier was "unjustifiably dangerous for

people round about" (paragraph 101). Reference was also made to a

newspaper article in which the Report was criticised on a number of

points.

The applicant Government claimed that, in any event, no consideration

of the Widgery Report should be made at the stage of admissibility. At

that stage it had to be assumed that every allegation of fact and

contention of law by the applicant Government was meritorious. The

respondent Government's argument that the incidents referred to did not

constitute deprivation of life within the meaning of Article 2 (1) or,

alternatively, fell within the provisions of Article 2 (2) should also

only be considered on the merits.

It was further submitted that, although the facts set out in the

application showed a series of repeated operations of practices by the

security forces in breach of domestic criminal law and the Yellow Card,

no member of the security forces had been prosecuted or disciplined in

respect of any act arising out of the incidents concerned. By failing

to enforce the criminal law, or otherwise to punish or discipline such

members of the security forces, the respondent Government had shown

official tolerance and acceptance of military operations and practices

in which citizens had been killed contrary to Article 2, and such

toleration constituted an administrative practice. There was no

domestic remedy for this continuing practice.

Moreover, the respondent Government's contention that an award of

damages to dependants of a deceased person was a sufficient remedy was

in total disregard of the rights of such persons who had been killed

as a result of a criminal act on the part of the security forces. In

particular, it was a disregard for the rights of the community as a

whole to have the right to life protected by the enforcement of the law

designed to protect their rights under Article 2 of the Convention.

Once the respondent Government had failed to enforce such laws, no

remedy was available to the community or to persons in Northern Ireland

to have them enforced.

Monetary damages were not a sufficient remedy for the purposes of

Article 26 of the Convention since, as far as such a remedy was

available in Northern Ireland, such damages could only be obtained in

respect of actual financial loss sustained by the dependants by reason

of the loss of life, and such a remedy according to the generally

recognised rules of international law, it was only recognised as such

on the basis of the civil liability of a wrongdoer vis-à-vis the

dependants of the deceased concerned. Monetary damages were not an

adequate remedy in the context of a Convention designed to protect

human rights, including the right to life, even if they were such in

the case of claims of a different nature under international law. In

the applicant Government's submission the Lusitania Case ((1923) 7 RIAA

32), to which the respondent Government referred did not consider or

decide whether damages were or were not a sufficient remedy in cases

where death had been caused by wrongful acts of a Government or its

agents, having regard to the particular treaty obligations concerned

in that case which provided for the determination of claims by a Mixed

Claims Commission.

The applicant Government further maintained that no domestic remedy in

Northern Ireland gave a right to the relatives or dependants of

deceased persons to claim damages for mental distress and suffering or

"préjudice moral" arising from an unlawful killing. Insofar as damages

were a remedy (which was not admitted), the damages available under the

Acts referred to by the respondent Government were neither effective

nor adequate. In support of this submission reference was made, inter

alia, to the decision in the Lusitania Case as illustrative of the

recognition of the right to damages for mental distress as an essential

ingredient in awards of damages in death cases. The applicant

Government also argued that any monetary damages payable in the

circumstances alleged must allow for damages of any exemplary or

punitive character in order to be adequate or effective. The domestic

law of the respondent Government did not permit relatives or dependants

of a deceased person to recover such damages in any circumstances.

At the hearing, the representatives of the applicant Government

submitted that a consideration of each of the nine killings in the

first group showed that unprotected persons were killed by members of

security forces in contravention of the domestic criminal law, the

Yellow Card instructions, and Article 2 of the Convention. As regards

the thirteen deaths in Londonderry on 30 January 1972, the conclusions

of the Widgery Report were not accepted and were sometimes in total

conflict with the material presented by the applicant Government. This

material suggested that fire was first opened by soldiers before they

were fired on, and that this firing, which caused the killing of a

number of identifiable victims, was clearly in breach of Article 2.

However, even within the Widgery Report there were instances of firing

which were "reckless" or "bordering on the reckless or dangerous". In

the view of the applicant Government it should not be necessary,

particularly with regard to Article 2, to show a great number of cases

in order to establish an administrative practice. Moreover, it should

be noted that the respondent Government had again confirmed at the

hearing that no criminal or disciplinary action would be taken against

the soldiers concerned.

The applicant Government claimed that the summary of facts given by the

respondent Government, concerning the first group of deaths, was too

short to be of value and referred the Commission to the evidence filed

with the application. As regards the death of Eamon McDevitt, it

appeared that he was a deaf mute and mentally below normal. He had at

one time been holding a rubber bullet in his hand but he was shot after

he had thrown it away. He was wearing a red shirt and it seemed that

he had been picked out by the soldiers as a person to be shot. It was

plain that he had been a wholly innocent person and, in the

circumstances, it seemed impossible that no disciplinary action had

been taken in relation to this killing. The evidence presented by the

applicant Government indicated that Father Mullan was shot by British

troops while administering the last rites to a wounded person and while

he was carrying a make-shift truce flag. As regards Francis McGuiness,

the evidence emphasised that, at the time he was shot by the troops,

he was not armed or carrying anything that might be mistaken for a

weapon. Robert Anderson, James McLaughlin and Sean Ruddy were equally

unarmed. George Beattie and Seamus Cusack were also shot in situations

involving only stone throwing.

As regards the question of domestic remedies, the applicant Government

emphasised that the complaint under Article 2 of the Convention was not

made on behalf of any person although, in some respects, it was

supported by individual cases. The applicant Government was not seeking

reparation for the dependants of a deceased person but a determination

of the compatibility with the Convention of certain practices. The

situation was therefore different from an application made by an

individual being a dependant of a deceased person in relation to a

breach of Article 2. In that situation there would be a domestic remedy

and the Commission would have to consider its adequacy.

In the applicant Government's submission, the admitted absence in the

law of Northern Ireland of damages for grief or "préjudice moral"

rendered the remedies under the Fatal Injuries Acts and Criminal

Injuries to Persons (Compensation) Act insufficient. For example, if

a young person were killed in breach of Article 2, and if, his death

being immediate, there was no significant or real expense connected

with his recovery and if he left no financial dependant, nobody would

be entitled to compensation in Northern Ireland for that death. In this

situation it was impossible to say that an effective remedy within the

meaning of Article 26 of the Convention was available and should have

been exhausted.

3. Under Article 3

(a) Submissions of the respondent Government

In their written observations the respondent Government first stated

that the treatment alleged in the appendices to the application to be

contrary to Article 3 of the Convention should be regarded as falling

into three categories:

(a) treatment which in paragraphs 59 - 67 of the Compton Report was

associated with interrogation, namely hooding, noise, wall-standing,

deprivation of sleep and limited diet;

(b) other incidents referred to in the Report, namely the "obstacle

course" at Girdwood Park and "special exercises" at Ballykinlar;

(c) other individual allegations of ill-treatment or injury not

referred to under a) and b) above.

The main submissions on the admissibility of the allegations of a

breach of Article 3 of the Convention were summarised as follows:

- having regard to the discontinuance of the treatment described

in category a), it was appropriate that the Commission should decline

to proceed further in respect of that treatment; and, without prejudice

to that submission;

- no treatment or incident of a kind described in the Compton

Report and referred to in category a) or b) was capable of constituting

inhuman or degrading treatment or punishment within the meaning of

Article 3 of the Convention; nor, in the circumstances, did it

constitute such treatment contrary to Article 3;

and, without prejudice to that submission or in any way pronouncing on

the merits of any allegation of treatment as described in any of the

categories;

- any treatment of the nature alleged, if capable of constituting

a breach of Article 3, would, in the present context, be a wrong in

domestic law for which remedies existed in the law of Northern Ireland.

The respondent Government then developed these submissions. First, as

regards category a) the respondent Government referred to the statement

made by the Prime Minister of the United Kingdom in the House of

Commons on 2 March 1972 concerning the Report of a Committee of Privy

Councellors of which Lord Parker of Waddington was Chairman (the

"Parker Report") (1). That Committee investigated all the five

techniques used as an aid to interrogation described under a). The

Prime Minister then stated that: "The Government, having reviewed the

matter with great care and with particular reference to future

operations, have decided that the techniques which the Committee

examined will not be used in future as an aid to interrogation". The

Prime Minister added that "... if any Government did come to the

decision, after the most careful thought, that it was necessary to use

some or all of these techniques, it would be necessary to come to the

House first before doing so ...".

------------------------------

(1) "Report of the Committee of Privy Counsellors appointed to

consider authorised procedures for the interrogation of persons

suspected of terrorism", (Cmnd. 4901).

------------------------------

In this connection the respondent Government first recalled that the

stated object of the application was not to obtain compensation for the

alleged victims of the practices complained of but to achieve, through

the procedures laid down in the Convention, the abandonment of these

practices.

The respondent Government then submitted that, insofar as the

application complained of the treatment under a), and irrespective of

whether or not that treatment gave rise to an issue of Article 3 (which

was not admitted), the Prime Minister's announcement that such

techniques would not be used in the future removed the ground of this

complaint. In the respondent Government's submission it was not the

function of the Commission to determine, as a "judicial tribunal called

upon to decide a legal controversy between the Parties" the

compatibility with the Convention of measures which had been abandoned.

In the present circumstances the function of the Commission was

achieved by the measures taken. In support of this argument reference

was made to the provisions of Articles 19, 28, 30 and 31 of the

Convention and to the Report of the Commission in the First Cyprus Case

(No. 176/56, Vol I, pp. 106-114, not published). In that case the

Commission decided not to express an opinion on the compatibility of

certain legislative and administrative measures which were the subject

of the application and which had been revoked in the course of the

proceedings, even though no settlement had been reached on other

aspects of the case. The Commission considered that, while the

Convention gave no explicit guidance on this point in circumstances

where the revocation took place during the proceedings, the question

must be decided in the light of the general functions attributed to the

Commission by the Convention.

In the respondent Government's view there was, in principle, no

distinction between the situation where, as in the Cyprus case, the

administrative and legislative practices in question were revoked in

the course of the proceedings before the Commission and the present

situation where the measures in question had been abandoned before the

Commission had pronounced on the admissibility of the application. If

it would not be appropriate for the Commission to pronounce on the

compatibility of such measures with the Convention, where it had

already begun an examination on the merits of the complaint, there were

even more compelling reasons why it should decline to proceed to an

examination of the merits of a complaint relating to such measures. It

remained, of course, open to any person who was allegedly a victim of

such measures to pursue any remedy open to him under United Kingdom

law.

As regards the question of domestic remedies, the respondent Government

submitted that a person who claimed that he had been ill-treated whilst

in custody might, under the common law, bring an action in tort for

damages which, as a general rule, would be an action for assault (this

expression being used here to include battery).

In certain circumstances an action for negligence might be available

in a case where an action for assault would not lie. The Crown was

vicariously liable for torts of members of the armed forces even if it

was not known which individual service-man was responsible for the

alleged wrong. If the alleged treatment was caused by a police officer

(i.e. in Northern Ireland a member of the Royal Ulster Constabulary,

hereinafter referred to as the RUC) the Chief Constable of the RUC

could be sued under Section 14 of the Police Act (Northern Ireland)

1970, which provided that proceedings might be brought against him in

respect of torts committed by members of the police force under his

direction and control in the exercise or purported exercise of their

function.

Assault might also constitute a criminal offence, for which an alleged

wrongdoer might be prosecuted or, as mentioned under Article 2 of the

Convention above a person who sustained an injury, which was directly

attributable to a criminal offence, could apply for compensation under

the Criminal Injury to Persons (Compensation) Act (Northern Ireland)

1968.Furthermore, the Chief Constable of the RUC was required, by Sec. 13

of the Police Act, forthwith to record the complaint of a member of the

public against a member of the police force and to cause it to be

investigated. In certain cases such investigation was to be carried out

by a barrister or solicitor. Some 19 persons referred to in the

application had made formal complaints under this section.

In the respondent Government's submission these remedies constituted

remedies according to the generally recognised rules of international

law. Monetary damages were a sufficient and adequate remedy in domestic

law of both the applicant and the respondent Governments; in cases of

assault or personal injury monetary damages were recognised as

effective damages in international law. Contrary to what was alleged

in the application, domestic remedies were available to persons in

Northern Ireland who alleged acts capable of constituting a breach of

Article 3. Moreover, by April 1972, at least 22 persons named in the

application (at least 17 of them whilst detained or interned) had, in

regard to treatment allegedly received, instituted proceedings against

the Crown through various public authorities. The claims alleged, inter

alia, assault, battery and negligence. A list of these persons and the

substance of their claims was set out in annex to the respondent

Government's observations. In one case judgment had been recovered for

£300. In another case 16 persons who had taken proceedings against

various authorities received agreed damages of £250 or £150.

The respondent Government submitted that, insofar as any issue might

have fallen to be considered by the Commission in respect of treatment

alleged in the proceedings for which damages had been awarded, such

issues had been resolved and no further question remained for

determination in the present proceedings. Insofar as other allegations

were made of a violation of Article 3, it was submitted that, having

regard to the availability of remedies, there had been a failure to

exhaust domestic remedies by the persons specified in this part of the

application and, accordingly, the circumstances in which the Commission

might deal with this allegation as prescribed in Article 26 of the

Convention had not been satisfied. In this connection, reference was

made to the Commission's decision on admissibility in the Second Cyprus

Case (application No. 299/57, Yearbook, Vol. 2, p. 187) where the

Commission held inadmissible 20 complaints relating to certain

identified persons on the grounds that a remedy was available which had

not been exhausted. On the other hand, in respect of certain alleged

wrongdoers who had not been identified, no remedy had been available

against the Crown, except by petition which was not a remedy within the

meaning of Article 26 of the Convention. However, the situation in the

present case was different as, under the law in Northern Ireland, an

action always lay against the Crown. The respondent Government also

referred to the findings of the Commission in the Second Cyprus Case

as regards the bringing of actions by persons in custody (ibid. at p.

194).

The respondent Government then referred to the assertion made, in the

context of the alleged breach of Article 3, by the applicant Government

in the original application (paragraph D7, p. 14 above), that there had

been a denial of justice on the part of the respondent Government and

that the rule of exhaustion of domestic remedies therefore did not

apply. The respondent Government submitted that it was not clear

whether by the assertion it was simply claimed that there was no

effective remedy, or whether it had some wider context. As regards the

former alternative, the respondent Government repeated that remedies

were available and that proceedings had been taken in some cases. If

the assertion was made in a wider context, it was submitted that it was

misconceived; the concept of denial ofjustice in any other sense than

that in which this expression was used in international law had no

relevance and certainly not in relation to the admissibility of an

application under the Convention; nor had the applicant Government

alleged any matter which would confer jurisdiction on the Commission

or give rise to any claim to a locus standi for the applicant

Government in that regard.

In their observations the respondent Government then dealt with the

contention that the alleged breaches of Article 3 of the Convention

also constituted an administrative practice. The Government stated

that, to the extent that there might be evidence of a practice in

relation to the treatment described in category a) above, the treatment

had been discontinued. So far as concerned the allegations of treatment

described under b) and c), no allegation of fact had been cited in

support of the existence of a practice in relation to that treatment.

The respondent Government repeated their submission that a bare

allegation of a practice does not fall within decisions of the

Commission such as that in the First Greek Case, nor discharge the onus

on the applicant Government to establish such a practice, so as to

exclude from consideration at the admissibility stage the issue of

whether or not domestic remedies have been exhausted.

The respondent Government submitted that the allegations of a practice

relating to treatment described in categories a), b) and c) should

therefore be rejected under Articles 26 and 27 (3) of the Convention.

This submission was without prejudice to the earlier submissions that

the Commission should decline to proceed further with the examination

of those aspects of the application relating to treatment described in

category a) and that no treatment in categories a) and b) was capable

of constituting a breach of Article 3.

At the hearing the representatives of the respondent Government made

further arguments in support of their above submissions.

The respondent Government maintained that a distinction should be made

between the authorised aids to interrogation considered in the Compton

and Parker Reports (i.e. the above-mentioned category a)) and the other

forms of ill-treatment alleged.

As regards the previously authorised techniques, it was denied that

they had been used since 2 March 1972 when the Prime Minister announced

that they would be discontinued. Moreover, it was open to persons, who

complained of having been subjected to any of these techniques, to

bring civil proceedings against the Crown or the Chief Constable of the

RUC even if they could not identify an individual defendant. In fact,

out of the 12 persons mentioned in the Compton Report and in Sir Edmund

Compton's second report as having been subjected to these techniques,

six had already instituted civil proceedings. It was therefore clear

that, whether or not the techniques constituted a violation of Article

3, they had now ceased and domestic remedies were available. In this

situation it would be appropriate for the Commission to follow its

decision in the First Cyprus Case and decline to proceed further on

this aspect of the case. Moreover, whether or not the techniques had

constituted a practice, no such practice existed any longer. Even if

an administrative practice might obviate the need for an applicant to

exhaust domestic remedies, that situation no longer applied.

The respondent Government then referred to the Commission's finding in

the First Greek Case (Report II, 1, pp. 12 - 13) that there was a close

link between the notion of an administrative practice and the principle

of the exhaustion of domestic remedies and that, when there was a

practice of non-observance of certain Convention provisions, the

remedies would of necessity be side-stepped or rendered inadequate. In

the respondent Government's opinion the facts of the present case

disclosed no such position. As soon as allegations of fact were first

made, the Compton Committee was established to investigate them. When

the existence of certain facts, namely the five techniques, were

reported by that Committee, the Government set up the Parker Committee

to consider these techniques and, when this Committee submitted its

report, the techniques were abandoned. At all times it had been open

to persons to take proceedings arising from experiences of the

interrogation techniques. Such proceedings were in some cases commenced

before the Prime Minister's statement on 2 March.

As regards the allegations of other forms of ill-treatment the

respondent Government emphasised that these allegations were not

admitted. If such treatment took place, it was entirely unauthorised

and domestic remedies were available. The fact that the majority of the

persons complaining of ill-treatment were in custody under the Special

Powers Act did not affect their right under the common law to bring a

civil action for physical assault or ill-treatment. The allegations of

ill-treatment concerned fell into two groups, namely allegations of

force used against some of the detainees, such as kicking and beating,

and allegations of threats of force and violence. There was, however,

a domestic remedy available for all such allegations. Thus, a detainee

who was struck or threatened with violence could recover damages.. If

a physical assault had involved humiliation or degradation of the

injured party, this element could be taken into account by the court

in assessing the appropriate damages. In addition to the remedies for

a civil wrong, the Criminal Injuries to Persons (Compensation) Act

(Northern Ireland) 1968, provided a detainee who had suffered

maltreatment with a further effective remedy. Civil proceedings and a

claim for compensation under the 1968 Act could be pursued

simultaneously, but compensation awarded in such civil proceedings

would be taken into account when making the award under the Act.

The respondent Government further submitted that there was no evidence

to support the applicant Government's allegation that, for various

reasons, these remedies were ineffective or illusory.

In particular the facts showed that former detainees and internees had

not (as suggested by the applicant Government) been deterred from

bringing proceedings after their release by fear of re-arrest or

maltreatment. By 11 September 1972, 35 such former detainees or

internees named in the allegations of ill-treatment brought before the

Commission had commenced civil claims in the Northern Ireland courts;

16 of these were actions in the High Court, 14 were actions in the

county court and there were 5 claims under the 1968 Act. Moreover, 11

of these former detainees and internees had been granted legal aid to

enable them to bring their claims against the Crown. In this connection

the applicant Government had referred to the case of Moore v.

Shillington in which the judge had commented on the silence of the RUC

in face of allegations of maltreatment (1). However, the plaintiff was

in no way prejudiced in pursuing his domestic remedies but was awarded

the damages he asked for.

The applicant Government had been equally wrong in suggesting that

persons in custody might fact difficulties in bringing claims and that

this would render their right to institute proceedings illusory.

Detainees and internees might, and did, take legal advice if they

wished to intimate proceedings against the Crown and special

arrangements were made for solicitors to visit them and they might also

correspond with their solicitors. No permission was needed to institute

proceedings. In fact, while in custody, 48 persons had already

instituted proceedings against the Crown for maltreatment or wrongful

arrest.

--------------------------

(1) Judgments given on 3 January and 18 February 1972 by Judge

Conaghan in the Armagh County Court.

--------------------------

Furthermore, it was clear from the mass of statements and medical

reports (in some cases with photographs) submitted to the Commission

by the applicant Government that detainees and internees, who wished

to bring proceedings for alleged maltreatment, had no difficulty in

obtaining evidence.

In this context the respondent Government emphasised that there was in

Northern Ireland a strong and independent judiciary and legal

profession who were in no way subservient to the executive. This was

clearly shown, inter alia, by the cases to which the applicant

Government had referred in particular, the case of Moore v. Shillington

and the McElduff case. In this connection, the respondent Government

provided further information as to the number of claims brought for

maltreatment in Northern Ireland and the damages received for such

claims in cases which had been settled.

The respondent Government then turned to the allegation that (apart

from the authorised techniques of interrogation) there had been in

Northern Ireland an administrative practice of ill-treatment of persons

in custody contrary to Article 3 of the Convention. The respondent

Government again denied that, even assuming that specified acts of

ill-treatment occurred, they amounted to an administrative practice.

In view of the Commission's findings the First Greek Case the applicant

Government were obliged to produce substantial evidence, already at the

stage of admissibility, to show that there had been a steady and

systematic process of ill-treatment and that there had been official

tolerance of that process.

As regards the first element, the respondent Government emphasised that

the applicant Government only relied on complaints made in 127 cases,

although a total of about 3,500 persons had been arrested at some stage

during the serious emergency in Northern Ireland. Moreover, some of the

complaints made were trivial. In the respondent Government's submission

this did not reveal a systematic process of ill-treatment.

With regard to the second element, the respondent Government submitted

that there was nothing in the Special Powers Act or in any

administrative instruction authorising unlawful conduct. On the

contrary, the Parker Report set out a directive which specifically

outlawed violence to life and persons, ill-treatment, torture and

outrages on personal property, including humiliating and degrading

treatment. All soldiers in Northern Ireland were under strict

instructions to use no more force than was necessary to make arrests

and supervise persons in custody. Those instructions made it abundantly

clear that no form of physical ill-treatment as to be used against

individuals.

However, even if these rules and directives had been broken, the

respondent Government had not condoned such breaches. The Compton

Committee was established to investigate the truth of such allegations.

In addition, the Army and the RUC had carried out detailed

investigations into complaints concerning conduct of their members and

a number of cases had been submitted to the prosecution authorities for

decision whether criminal proceedings should be brought. However, as

was illustrated in the Compton Report, the authorities had encountered

difficulties in their investigation as a result of the failure of

detainees and internees to give evidence.

At the hearing the Attorney-General stated, on behalf of the respondent

Government, that since 30 March 1972 he had been ultimately responsible

for prosecutions in Northern Ireland. He submitted that it had been his

firm policy that criminal acts of physical ill-treatment by the

security forces should not be tolerated. In order to strengthen the

administration of criminal law, a Department of Public Prosecutions was

established in April 1972. The Attorney-General explained that he had

also warned and advised the competent authorities of the Army and the

police that, whenever there was sufficient evidence of conduct

amounting to the crime of assault or intimidation of a person in

custody, the person responsible would be prosecuted. Moreover, the

police and the Army had been informed that interrogation, whether under

ordinary police powers or under the Special Powers Act, must only be

conducted in accordance with the law; this meant that such

interrogation under proper and reasonable conditions, with reasonable

and proper opportunities for movement and with intervals for normal

refreshment and rest. The Attorney-General stated that he had no reason

to believe that such directions or warnings had been ignored.

In reply to a question from the Commission as to what interrogation in

depth meant at the present time, the Attorney-General stated, inter

alia, as follows:

"First, interrogation in depth means asking extensive and searching

questions on subjects specially selected as likely to be able to

provide useful information and its object is to obtain reliable

information concerning the disposition of the enemy and of his

intentions rather than to obtain evidence to achieve a conviction in

the courts. The statement of the Prime Minister on 2 March ... meant

that, while the use of the five techniques would be discontinued, the

process of asking extensive and searching questions would continue as

and when it was considered necessary. Obviously, when combatting

terrorist campaigns of the kind the IRA is currently waging, it is

necessary to obtain information which can be of use to the security

forces in preventing and combatting such terrorist attacks and thereby

in saving life. But while such interrogation continues in specially

selected cases, where the subject is considered to have information

likely to be of use to the security forces, clear instructions have

been issued to the Chief Constable of the Royal Ulster Constabulary

(and all interrogation is the responsibility of the police, not of the

Army) that the use of the five techniques set out in the Compton and

Parker Reports is no longer authorised and that any form of physical

ill-treatment is strictly forbidden."

(b) Submissions of the applicant Government

In their written observations the applicant Government rejected the

segregation made by the respondent Government between the authorised

aids of interrogation and other forms of alleged ill-treatment on the

grounds that such segregation was neither logically justifiable nor

appropriate. The applicant Government asked the Commission to define

the rights under Article 3 of the Convention and to reach more

acceptable standards as to what constituted torture or inhuman or

degrading treatment than those apparently accepted by the respondent

Government.

The applicant Government then made the following submissions:

- The Government would rely, inter alia, on the travaux

préparatoires of the Convention, the jurisprudence of the Commission

and on medical evidence in support of their contention that the forms

of ill-treatment complained of, whether taken individually or

collectively or in conjunction with other forms of ill-treatment,

constituted a breach of Article 3;

- The general physical brutality and ill-treatment complained of

had not been discontinued;

- In any event it was not accepted that discontinuance could, in

any circumstances, constitute a barrier to admissibility. At the

admissibility stage the sole function of the Commission was to decide

whether the conditions of Article 26 were fulfilled and no

consideration could be given to any conciliatory function;

- The Commission's decision in the First Cyprus Case was not a

binding precedent; in that application it was accepted that the

measures whose examination was not pursued, namely corporal punishment

and collective punishment, had been discontinued. Moreover, they were

not part of a larger practice or scheme of conduct. In the present case

neither of these conditions obtained.

The applicant Government referred to further affidavits, statements,

medical reports and photographs in support of their contention that,

despite the assurances of the Prime Minister of the United Kingdom,

continuing breaches of Article 3 of the Convention were still

occurring. In support of the contention that the treatment referred to

in the material submitted to the Commission in this respect, or in the

Compton Report was capable of constituting a breach of Article 3, the

applicant Government referred in particular to two reports by

psychiatrists. In the opinion of the applicant Government, the

observations made by the respondent Government in this regard were

irrelevant to the admissibility of the application as was evident from

the fact that such observations had not been considered at the

admissibility stage of previous applications by States relating to

Article 3. The only issue in such an application made under Article 24

was the question whether domestic remedies had been exhausted. In

considering this question it had to be assumed that every allegation

of fact and contention of law was meritorious.

The applicant Government further replied to the respondent Government's

objection that no allegation of fact was cited to support the assertion

that the treatment complained of constituted an administrative

practice. The applicant Government here referred to the evidence

contained in the appendices to their application and observations. The

applicant Government also noted that, although the treatment complained

of was clearly illegal, it was not suggested by the respondent

Government that those responsible for the acts concerned had been

punished; neither had the respondent Government taken any adequate or

effective action to prevent their repetition.

If, contrary to the applicant Government's above argument, it was

permissible to segregate certain forms of ill-treatment, it was

incumbent on the respondent Government to show what remedies were

available for each form of ill-treatment alleged in the application,

if they sought to contest the admissibility of the complaint in respect

of such ill-treatment. It was submitted that the respondent Government

had failed to discharge this burden. It was not sufficient for this

purpose to state in general terms, as had been done in the respondent

Government's observations, that any treatment of the nature alleged,

if capable of constituting a breach of Article 3, would, in the present

context, be a wrong in domestic law for which remedies existed. Further

specification in relation to each form of ill-treatment was necessary

because if the abridgement of the general principles of tort in common

law wrought by the Special Powers Act. The applicant Government also

observed that the respondent Government had made no reference to the

initiation or conclusion of any prosecutions or even investigations

under the Police Act 1970, despite the lapse of up to nine months since

the actions referred to in the appendices to the original application.

The applicant Government claimed that for the following reasons a civil

action for damages was by itself an inadequate remedy in the present

circumstances:

- First, an award of damages did nothing to prevent the recurrence of

such acts either by or against the same persons, or otherwise;

- Secondly, persons who had suffered from such ill-treatment from the

security forces were at a very serious disadvantage in seeking a

domestic remedy because:

a) they would find it difficult if not impossible to procure the

evidence of independent witnesses who could substantiate claims;

b) the security forces carrying out breaches as a planned system would

inevitably make concealment of these breaches a part of that planned

system;

c) the disadvantages were greatly increased when the person suffering

from the breaches was incarcerated immediately thereafter, thereby

being deprived of the freedom necessary for the normal collection of

evidence, e.g. prompt medical examination and instruction of a legal

adviser.

The applicant Government pointed out that it was a settled principle

in international law that the exhaustion of domestic remedies was not

required if, in the circumstances, such remedy would prove ineffectual

or inadequate. This rule was not a technical or rigid rule but one

which international tribunals had applied with a considerable degree

of elasticity. In the present case where there had been widespread,

repeated and flagrant breaches of Article 3, one of the most

fundamental of the Convention, involving irreparable damage to the

victims, a remedy must, if it was to be deemed adequate, be more

immediate and effective than the eventual prospect of monetary damages.

Nothing less than the vigorous enforcement of the law by the Executive,

through criminal prosecution and disciplinary action, could afford an

adequate remedy. In this context reference was made to the Commission's

Report in the First Greek Case (Vol. II, 1, p. 12, paragraph 25).

In the applicant Government's submission the Executive had, in the

present case, not only failed to secure by positive action the rights

guaranteed in Article 3 of the Convention but had also attempted to

obstruct the course of civil claims by maintaining a threat of

internment against the claimant. In support of this contention the

Commission was referred to two judgments given in the case of Moore v.

Shillington delivered on 3 January and 18 February 1972.

Moreover, the applicant Government claimed that the evidence submitted

by them disclosed a repetition of acts sufficient to constitute an

administrative practice especially when considered in conjunction with

the official tolerance evinced by the respondent Government's failure

to punish such acts or to prevent their repetition. In this context

reference was again made to the Commission's Report in the First Greek

Case (ibid. pp. -15 and pp. 412-420 and in particular to p. 13,

paragraph 27).

The applicant Government stated in conclusion that the remedies sought

by them could not be granted by a domestic court in the United Kingdom.

Such a Court had no jurisdiction to consider whether there had been a

breach of the Convention. Moreover, it was submitted that, where the

wrong sought to be remedied was a breach of a treaty and the remedy

sought was a declaration of that this had occurred, the domestic

remedies rule had no application.

At the hearing the representatives of the applicant Government

maintained that evidence of the existence of an alleged administrative

practice in breach of Article 3 of the Convention was not relevant to

the issue of admissibility in an inter-State application such as the

present, whose object was to determine the compatibility of an

administrative practice with the obligations of the respondent

Government and not to seek redress on behalf of individuals. The

applicant Government also claimed that, even if such evidence was

nevertheless considered to be relevant at the admissibility stage, this

evidence had clearly been provided in the application and the documents

supporting it.

According to the applicant Government, the factual information supplied

with the application related to a total of 103 persons and the

complaints of ill-treatment ran from 9 August 1971 to the end of

January 1972. The treatment complained of occurred in three

identifiable places. Eight persons complained of this type of

ill-treatment in Palace Barracks, which was one of the identified

places and nineteen persons had given statements with regard to such

treatment in the same place between 20 September 1971 and 7 January

1972. With regard to the Girwood Detention Centre there were thirty-one

statements relating to the period 9 August - 2 November 1971 and four

statements concerning the period 2 November 1971 - 25 January 1972. In

Ballykinlar eighteen persons made depositions concerning such treatment

alleged to have taken place on the same day, namely 9 August 1971. In

the areas which could not be identified, mostly due to the treatment

of the people concerned, there were nineteen persons involved and these

incidents had occurred from August to November 1971 in seven places and

from November 1971 to January 1972 in five places.

In the applicant Government's view the treatment to which these 103

persons were subjected had an extraordinary air of repetition. The

statements showed that precisely the same methods recurred repeatedly

with variations only in the order of application. Not only the

techniques referred to in the Parker Report, such as hooding,

wall-standing and noise, occurred as a total pattern but also the other

forms of ill-treatment, some of them more savage, recurred with the

same pattern. It would be illogical to separate the techniques referred

to in the Parker Report from the other forms of ill-treatment as the

statements showed that the same person was subjected to both kinds of

treatment in the same place and at the hands of the same security

personnel. The entire treatment of these 103 persons was closely

interrelated and showed a recurring pattern.

In the applicant Government's submission the failure to punish the

security personnel responsible for the alleged acts of ill-treatment

had three consequences. First, it constituted evidence of an official

tolerance which was an accepted ingredient in an administrative

practice. Secondly, it established in itself a failure to secure to

persons the rights and freedoms in Article 3. Thirdly, because the

executive could not be forced to punish the responsible persons, its

failure to do so rendered other apparent remedies for injuries to

individuals ineffective and insufficient in a situation where such

injury consisted of a failure by a Government to secure and protect the

individual's rights and freedoms.

When concluding their submissions under Article 3 of the Convention the

applicant Government referred to the account given by the

Attorney-General of the respondent Government as to the instructions

and steps he had taken to prevent ill-treatment when he became

responsible for prosecutions in Northern Ireland. The applicant

Government fully accepted that such instructions had been given.

However, there was substantial evidence of brutality apart from the

interrogation in depth techniques. The applicant Government was

regularly receiving information to the effect that physical brutality

continued. Moreover, constant charges of this kind were still being

made in the newspapers in Northern Ireland. In these circumstances,

there still remained a situation which should be investigated by the

Commission.

The applicant Government also asked the Commission to proceed with an

investigation of the interrogation in depth and pointed out that, while

certain techniques had been discontinued some form of such

interrogation was still in operation. In this connection, the applicant

Government described the forms and effects of the previously authorised

techniques. As regards wall-standing, the persons who were being

interrogated were kept in an uncomfortable posture with the tips of

their fingers against the wall for long periods. Their heads were

hooded and they were deprived of sleep and food. They were also

subjected to what the psychiatrists described as a "white noise" which

was a continuing noise with the object of producing a sense of

isolation in the victim as well as hallucinations. The hooding also

produced a sense of isolation and disorientation and, it was claimed,

in some cases a sense of panic or suffocation. It was clear from the

evidence submitted, in particular a report by Professor J. Bastiaans

of Leyden University that the intention was to isolate a person, not

only from communication with other persons, but also from himself. In

the applicant Government's submission anything more patently and

grossly in violation of Article 3 of the Convention than such

techniques could not be conceived.

At the present time the respondent Government had ceased these

particular practices but it appeared clearly that the possibility of

some of these measures being re-introduced was contemplated and the

respondent Government had expressly reserved to itself the right to

re-introduce them. The Parker Report showed that these interrogation

procedures had been used in Malaya, Palestine, Kenya and Cyprus where

they had similarly been discontinued until they were required again.

Thus, they had been used again in the British Cameroons (1960-61),

Brunei (1963), British Guiana (1964), Aden (1964-67), Borneo/Malaysia

(1965-66), the Persian Gulf (1970-71) and in Northern Ireland. It would

be appropriate and timely for the Commission to set standards and

limits as to what forms of interrogation in depth were permissible.

4. Under Article 5

(a) Submissions of the respondent Government

In their written observations the respondent Government referred to the

text of the original application in which it was alleged that the

internment of persons in Northern Ireland was a breach of Articles 5

and 6 of the Convention and that the powers contained in the Special

Powers Act and Regulations, as well as their operation, were in breach

of the said Articles. It was observed that, apart from a reference

(Part E, paragraph 11, see p. 16 above) to persons held in custody or

detained, no indication was given to the context in which such a breach

was alleged to exist, and no allegation of fact was made except with

regard to internment. The respondent Government therefore assumed that

the reference to the Special Powers Act and Regulations, and the

operation of the powers therein contained, was a reference to those

powers and their operation in regard to internment and to the holding

of persons in custody or detention in relation to the making of an

order of internment.

So far as concerned an alleged breach of Article 5 by reason of the

existence of the powers contained in the Special Powers Act and

Regulations, the respondent Government repeated that the application

failed to state how the existence, as distinct from the application,

of enabling legislation was capable of contravening the Convention. So

far as concerned the alleged breach of Article 5 by reason of the

operation of such powers, the respondent Government repeated their

observation that there was, and had been at all times material to the

application, a public emergency threatening the life of the nation and

that this fact was not disputed by the applicant Government. The

latter's submission on the present issue went not to the existence of

the emergency, but to the extent of the measures taken by the

respondent Government or the Government of Northern Ireland and their

consistency with the respondent Government's other obligations under

international law. With regard to the latter allegation, no indication

had been given of any specific obligation under international law with

which the measures taken were alleged to be inconsistent. The

respondent Government submitted therefore that this allegation should

be rejected, or that the Commission should decline to give further

consideration to it, on the ground that, in this respect, the applicant

Government had failed to comply with the Rules of Procedure.

The respondent Government then observed that, between January and the

end of July 1971, 2 police officers, 10 soldiers and 8 civilians, not

themselves the instigators of violence, were killed as a result of

terrorist activity. In January there were 16 explosions, in May 37

explosions, and in July 68 explosions. On 9 August 1971, the Northern

Ireland Government faced with this increasing violence and the

difficulty of bringing those responsible to justice, (due to

intimidation and the ease with which terrorists were able to cross the

border with the Republic of Ireland after carrying out their attacks),

decided, with the agreement of the respondent Government, that it was

necessary to use their powers of detention and internment in order to

protect the population as a whole from terrorism. Whenever possible the

normal processes of criminal law continued to be followed: between 9

August 1971 and 31 March 1972 over 888 people had been charged in the

ordinary way with offenses arising out of civil disturbances.

Internment had been ordered only in cases where, after careful

examination of a recommendation of a senior police officer, the

Minister of Home Affairs for Northern Ireland was satisfied that the

person concerned was at the time an active member of the IRA or had

been actively implicated in the IRA campaign. Between 9 August 1971 and

31 March 1972 796 persons had, from time to time, been interned for

varying periods without trial in exercise of the powers conferred by

the Special Powers Regulations.

Orders for internment made under the Special Powers Regulation

expressly provided that due consideration should be given by an

Advisory Committee to any representations which the person subject to

the Order might make. The current Advisory Committee comprised a Deputy

Judge of Oxfordshire Crown Court (who was a Roman Catholic) and 2 lay

members. Regulation 12 (3) required that the chairman held or had held

certain judicial appointments, or was a practising barrister of at

least ten years standing. Any internee might put such representations

as he wished to make against the internment order to the Committee,

either orally or in writing. He might be represented by an agent in the

preparation of his case and certain legal aid was available. The

function of the Committee was to consider whether or not the internee

could safely be released, whereupon they put their recommendation to

the Minister of Home Affairs whose functions were not exercised by the

Secretary of State for Northern Ireland. In addition the Committee had

conducted a systematic review of the position of persons interned under

the Regulations. By 30 March 1972, 588 cases had been heard by the

Committee (notwithstanding the refusal of 451 to appear or otherwise

make representations to the Committee), of whom 69 were recommended for

release. All of these were released except for 6 persons who refused

to give an undertaking not to engage in violence on their release and

this was in accordance with the policy stated by Mr. Faulkner, the then

Minister of Home Affairs, to the effect that the Committee's

recommendations would be followed whenever possible.

Following the enactment of the Northern Ireland (Temporary Provisions)

Act 1972 the functions of the Minister of Home Affairs of Northern

Ireland became exercisable by the Secretary of State for Northern

Ireland. In his statement, explaining the reasons for the introduction

of that Act, the Prime Minister of the United Kingdom referred to the

question of internment and said that, within the next few weeks, those

internees whose release was no longer thought likely to involve an

unacceptable risk would be set free. The Secretary of State for

Northern Ireland would establish a procedure to review each case

personally. In a subsequent statement in the House of Commons, the

Secretary of State explained the policy which he would adopt. In

particular, he said that cases which could be brought to trial would

be. He also stressed that the sooner violence ended the sooner could

internment be ended.

On 7 April 1972, the Secretary of State announced the immediate release

of a total of 47 internees and also of 26 detainees. Subsequent

releases of internees had brought the total of internees released from

7 April to 28 April to 118.

The respondent Government maintained that, faced with the prevailing

situation, they and the Government of Northern Ireland had, at all

times relevant to this application, been clearly entitled, within the

margin of appreciation accorded to Governments in such cases, to take

the view that internment measures in general had been and were required

by the exigencies of the situation within the meaning of Article 15

(1). They also maintained that the application of these measures in

practice had been within the margin of appreciation and had gone no

further than was strictly required by the exigencies of the situation

and, if that question remained in issue, were not inconsistent with

their obligations under international law. They therefore repeated

their submission that the matters of complaint in Part E of the

application did not constitute a contravention of their obligations

under the Convention.

The respondent Government stated that they were mindful of decisions

of the Commission reserving to its examination of the merits issues in

relation to Article 15. They submitted, however, that the question

whether measures taken by a State were measures in respect of which,

or taken in circumstances in which, a State was entitled to exercise

its right of derogation were matters which might properly be taken as

a preliminary issue. A determination that the measures fell within that

description rendered unnecessary any further examination of issues

under Articles other than those specified in Article 15 (2); before

there was a determination of the issue under Article 15 (1), the

examination of any such other issue would be premature. Accordingly

(and since the question was, as a matter of fact, capable of separate

consideration from issues as to which Article 15 did not permit

derogation) they submitted that it was appropriate that the issue

whether the measures taken were considered which were permitted under

Article 15 (1) should be considered as preliminary question. They

requested the Commission to consider it as such and to hold that the

matters referred to in this part of the application did not constitute

a contravention of the Convention.

In their oral observations at the hearing the representatives of the

respondent Government maintained these submissions. In this connection

reference was again made first to the reasons for introducing

internment and detention on 9 August 1972. Further reference was made

to the letters addressed on 25 August 1971 to the Secretary General of

the Council of Europe for the purpose of Article 15 (3) of the

Convention (see the annex below).

The respondent Government also recalled the statements made before the

European Court by the applicant Government in the Lawless Case as to

the activities of the IRA and the measures introduced by the applicant

Government, including detention without trial, to deal effectively with

the threats from the IRA. The respondent Government submitted that it

was clear that the previous campaigns referred to in the Lawless Case

did not approach in violence and extent the threat to security of the

present campaign in Northern Ireland.

The respondent Government emphasised that the power of internment under

the Special Powers Act was accompanied by important safeguards. In

particular, according to Regulation 12 (1), an internment order could

be made only if an officer of the RUC not below the rank of county

inspector, or an advisory committee, recommended that "for securing the

preservation of the peace and the maintenance of order in Northern

Ireland it is expedient that a person who is suspected of acting or

having acted or being about to act in a manner prejudicial to the

preservation of the peace and the maintenance of order in Northern

Ireland" shall be interned. Regulation 12 (1) also required any

internment order to contain express provision for consideration by an

advisory committee of any representations made against the order by the

person concerned. Moreover, it was recalled that Regulation 12 (3) laid

down that this committee should be presided over by a person holding,

or having held high judicial office, by a county court judge or a

practising barrister of at least ten years' standing.

The respondent Government gave further information to show that

internment was being phased out as quickly as possible and stated that,

between 30 March and 12 September 1972 a total of 557 internees and 166

detainees had been released. At the latter date there were still 171

internees and 67 detainees. However, on 21 September 1972, the

Secretary of State for Northern Ireland had announced new important

changes in the procedure. First, the Government would set up a

commission of experienced lawyers and laymen to advise them on the

measures required to deal with terrorist activity and to bring to book

individuals involved in terrorist activity without resorting to

internment. Pending this report and the subsequent legislation on it,

the Government proposed to change the existing law to facilitate the

prosecution of persons for membership of unlawful organisations. In

addition, provisions would be introduced under the Special Powers Act

to set up a tribunal to deal with persons suspected of participation

in terrorist activities. The relevant procedure would provide maximum

safeguards for the protection of the individual and, while eliminating

objectionable features of internment, notably judgment by executive

decisions alone, would be matched by the special conditions in Northern

Ireland. This tribunal would be asked to consider cases referred to it

(including cases of those presently interned or detained) and to

determine the nature of their involvement in terrorist activities with

a view to their release or committal to a period of detention.

The respondent Government further developed their submission that the

Commission should, in the present case, determine at the admissibility

stage the question whether the derogation from Article 5 was justified

under Article 15. In this connection the respondent Government referred

to the Commission's decision in the Lawless Case to join to the merits

of the case the respondent Government's preliminary objection under

Article 15 (Yearbook, Vol. 2, pp. 308, 334). In the respondent

Government's opinion that decision did not exclude the possibility

that, in an appropriate case, the Commission would decide at the

admissibility stage, on the question of a derogation under Article 15.

In the present application the two grounds indicated in the Lawless

Case for joining this issue to the merits did not apply. First, in the

present case, it was not disputed that there was, and had been when the

emergency measures were first taken, a public emergency in Northern

Ireland threatening the life of the province. Secondly, the Commission

had in the present case a full and detailed account of the threat posed

by the IRA to peace and security; of the powers contained in the

Special Powers Act and Regulations and the existing safeguards against

abuse of such powers, of the manner in which these powers had been

exercised in practice; of the functions of the Advisory Committee and

of the steps which had been taken since 30 March 1972 to bring

internment to an end. There could be no substantial dispute about these

facts nor about the situation confronting the respondent Government at

the time of the derogation and the steps taken to meet this situation.

What might be in dispute was whether these measures went beyond the

margin of appreciation allowed to a State in judging the extent that

was strictly required by the exigencies of the situation. In the

respondent Government's submission this question should be decided at

the present stage, the material needed for such decision being

available in the form of undisputed facts. The claims under Article 5

should therefore be declared inadmissible.

The respondent Government then turned to the particular submissions

made by the applicant Government in support of their contention that

the measures taken exceeded what was strictly required by the

exigencies of the situation. The first criticism was that the decision

to intern was taken previously by the Minister of Home Affairs but,

after 30 March 1972, it was taken by the Secretary of State for

Northern Ireland alone. Neither of these was bound by the views of the

Advisory Committee. This position would be changed by the setting up

shortly of the new tribunal announced on 21 September 1972. Moreover,

internment could only be ordered on the recommendation of a senior

police officer. As regards the Advisory Committee, their advice had not

been binding on the Minister but there were only six cases in which the

Minister had not released an interned person when this had been advised

by the Committee. These six persons were released by the Secretary of

State on 7 April 1972.

The applicant Government's second ground of criticism was that the

right of representation before the Advisory Committee did not include

a right to know the evidence on which that person was interned or the

right to enquire into, cross-examine, or refute that evidence. However,

the reasons for this restriction was self-evident. The IRA was prepared

to murder without scruple anyone who endangered or interfered with its

members or activities. To inform an interned person suspected of being

a member of the IRA of the names of the witnesses on whose evidence he

was interned would, in some cases, constitute a death warrant of these

witnesses or would ensure some lesser form of retribution on the part

of the IRA.

The third criticism was that there was no right given to an interned

person to appear or to be represented or give evidence before the

person who made the decision as to his internment. However, an interned

person had the right to appear or be represented before the Advisory

Committee whose advice had almost invariably been accepted.

The fourth criticism, finally, was that a person, who was detained

under the Special Powers Act and Regulations, had no remedy and not

even a remedy before the Advisory Committee to procure release as long

as the detention was a valid detention in accordance with the

requirements of the Act. In considering this criticism, the purpose and

the background of the Act and the Regulations had to be kept in mind.

They were made and passed in a situation of emergency and danger to the

community as a whole which would have to be dealt with, if it arose,

swiftly and quickly. Moreover, Sec. 1 of the Act provided that there

should be as little interference as possible with the ordinary course

of law, avocations of life and the enjoyment of property. In the

respondent Government's submission the existence of the Special Powers

Act and the Regulations had been, and was, necessary in the particular

situation prevailing in Northern Ireland and there was nothing to

suggest that the powers concerned had been abused or used contrary to

the provisions of Sec. 1.

Moreover, the courts had been astute to ensure that the powers

conferred were exercised in accordance with the strict requirements of

law. In this connection reference was made to the McElduff Case which

had been referred to by the applicant Government. In that case the

judge had to interpret Regulations 10 and 11 under which McElduff had

been arrested and he held that there was no valid arrest and ordered

that McElduff should be released. Furthermore, the civil authority

retained power to grant bail to all persons detained by virtue of

Regulation 11 (4). The respondent Government did not regard these

powers to detain and to intern as attractive powers, but they were

powers to be used when required for the security and safety of the

inhabitants of Northern Ireland. In this context the respondent

Government again referred to the McElduff Case where the power of

arrest was described "as part of legislation to meet unusual conditions

where more normal and conservative powers may be ineffective for

preserving peace and maintaining order in a troubled community". In the

applicant Government's submission the mere creation of the powers of

detention concerned, which were pursuant to an Act passed by a

democratically elected Parliament, could not and should not be accepted

as grounds of a viable application under the Convention. The need for

such powers were plain and it was necessary that detention should be

immediate. The fact that there was no express provision in the Act or

Regulations for a remedy by application to a court or some other

tribunal did not violate the Convention. It was also true that there

was no express provision limiting the period during which a person

might be detained but, if the existence of the powers was justified,

this was not surprising. The judge in the McElduff Case considered that

there was no such limitation enabling the courts to act as a court of

appeal on the issue of the time which the arrested man could be held

under Regulation 11. However, without suggesting that there was any

limitation as to the period a man could be detained, the respondent

Government stated that they were not aware of any court decision

specifically deciding whether or not there was any implied restriction

to the effect that a man could only be detained for a reasonable

period. If the courts found that it was right that there was no such

limitation on the basis that these powers were created to deal with

situations of emergency, it would be wrong to hold that there was, on

this basis an admissible application under the Convention. Nor did the

fact that people were detained under those powers ipso facto give

substance to such an application.

In this connection, the respondent Government referred to the applicant

Government's argument that the fact that the Special Powers Act and the

Regulations under it remained in force and did not have to be brought

into operation by a Government Proclamation or Resolution by

Parliament, constituted a breach of Article 1. Leaving aside the

question whether there could be a separate breach of Article 1, the

respondent Government submitted that there was no effective

interference with anyone's rights until the powers conferred by the

Regulations were exercised. in the respondent Government's submission,

the powers under the Act and the Regulations had never been used save

in circumstances when Article 15 of the Convention applied and the

respondent Government had then given due notification of the fact that

such powers had been exercised. The reason for these powers always

being in force was simply that, if a public announcement was required

before the powers of internment and detention could be exercised, the

period of time which would inevitably elapse between such a public

announcement and the attempt to detain individual persons, would enable

those persons to escape over the border.

The respondent Government stated that they did not accept the applicant

Government's submission that there was no remedy or only an illusory

remedy available under domestic law for this misuse of the Regulations.

The lack of justification for this submission was shown by the McElduff

Case. In that case, the judge accepted that the powers conferred under

the Regulations were wide, but he laid down that there were three

grounds on which it was open to the applicant to attack the order which

had been made against him. These were, first, whether the arresting

officer did indeed suspect that McElduff had acted in one of the ways

specified in the Regulation; secondly, whether he held that suspicion

bona fide and honestly; and thirdly, whether he carried out the

essential prerequisites to the arrest and, in particular - this being

the point in issue - whether he told the person being arrested the

things he was entitled to be told. The judge then held that, on the

third ground, the particular exercise of power in that case could

successfully be attacked.

In reply to a question from the Commission at the hearing, the

respondent Government gave detailed information as to the procedure

before the Advisory Committee and the way in which a case reached the

Committee. In particular, the respondent Government explained that an

interned person was informed in the internment order served on him of

his right to make representations. The interned person himself was

entitled to make representations and have his case considered by the

Committee under Regulation 12. In addition, the Advisory Committee

could consider internment cases on its own initiative even if the

interned person had not himself made representations to the Committee.

When internment was introduced in August 1971 the Advisory Committee

was established under the chairmanship of His Honour Judge Brown and

it commenced a review of all cases irrespective of whether the

individual interned persons had made representations to the Committee.

Between 4 October 1971 and 30 March 1972 the cases of 588 persons were

considered. In 451 cases the internee concerned chose not to appear

before the Committee. Of the cases considered the Committee recommended

in favour of the release of 69 persons, of whom 63 were in fact

released. On 15 April 1972, His Honour Judge Leonard became chairman

of the Committee which was still carrying out its statutory duty of

considering representations made to it by interned persons. However,

the general review of all internment cases was now being carried out

by the Secretary of State for Northern Ireland personally.

The Committee under the chairmanship of Judge Leonard, had considered

representations from nine interned persons and recommended the release

of four of these persons, and these recommendations had been followed.

An interned person might appear before the Committee either alone or

accompanied by a lawyer who could state his case. He was also entitled

to legal assistance in the preparation of his written representation

to the Committee. At the hearing the interned person or his lawyer was

given the opportunity to question the grounds for his internment as set

out in the internment order. The Committee also considered written and

oral representations of police officers but, in order to protect the

lives of witnesses against reprisals, the actual evidence against the

interned person was not notified to him or his lawyer.

(b) Submissions of the applicant Government

In their written observations the applicant Government first replied

to the respondent Government's observations concerning the alleged

contravention of the Convention by reason of the existence of the

Special Powers Act and the Regulations and the applicant Government

referred to their submissions in this respect under Article 1 (see pp.

29-32 above)

With regard to the respondent Government's observations on the alleged

breaches of Articles 5 and 6, the applicant Government made the

following comments which applied to both Articles:

(i) The observations of the respondent Government were not relevant

to the question of admissibility of the application;

(ii) The applicant Government noted the comments made by the

Commission in the first decision on the admissibility of the First

Greek Case (Yearbook, Vol. 11, pp. 690, 726-728) where the Commission

held that the provisions of Article 27 (1) and (2) did not apply to

applications submitted under Article 24 of the Convention and,

accordingly, that the question whether such an application was

well-founded or not was solely a question relating to the merits and,

therefore, the effects of derogations made by the respondent Government

under Article 15 could not be considered at the stage of admissibility;

(iii) The measures taken by the respondent Government exceeded what

was strictly required by the exigencies of the situation both by reason

of the continuing existence of the Special Powers Act as part of their

domestic legislation and in the operation by the respondent Government,

and by the security forces under their control, of the said Act and

Regulations and, in particular, in that:

- not with standing the observations made by the respondent Government

concerning the Advisory Committee, the internment (as distinct from

detention) of persons without trial was solely at the decision of the

Minister of Home Affairs for Northern Ireland, making such use as he,

in his sole discretion, might think fit of the views of and Advisory

Committee which, irrespective of the religious persuasion of its

Chairman, was merely advisory and not an independent judicial tribunal;

there were still 447 persons interned without trial in Northern

Ireland;

- the rights of representation before the Advisory Committee recently

conceded to an interned person did not include a right to know the

evidence on which that person was interned or the right to enquire

into, cross-examine as to, or refute that evidence;

- no right whatsoever was given to an interned person to appear before,

to be represented before or to give evidence before the person who made

the decision as to his internment.

- no remedy whatsoever, not even that of consideration of his case by

the Advisory Committee, was allowed to a person who was detained

without trial as distinct from being interned without trial; neither

was there any enforceable legal limit to the length of time for which

a person might be detained. There were still some 141 persons detained

without trial in Northern Ireland.

With reference to the respondent Government's submission that they were

entitled, within the margin of appreciation accorded to Governments,

to take the view that emergency measures were required by the

exigencies of the situation within the meaning of Article 15 (1), the

applicant Government pointed out that the margin of appreciation

referred to related to the assessment of the facts justifying measures

in derogation. It could not be invoked in defence of measures which

restricted the rights and freedoms secured and defined by the

Convention but which did not contribute in any way to safeguarding the

nation against the public emergency threatening its life. In this

connection reference was made to the detailed criticisms of the Special

Powers Act and the Regulations made thereunder as were contained in

appendix to the application. Reference was also made to the judgment

of the European Court in the Lawless Case (332/57) where, in deciding

that the derogation from the Convention came within the terms of

Article 15, stress was laid on the fact that the legislation permitting

internment without trial was "subject to a number of safeguards

designed to prevent abuses in the operation of the system of

administrative detention".

With regard to the respondent Government's statement that the Minister

of Home Affairs for Northern Ireland was satisfied that each person

interned "was at the time an active member of the IRA or had been

actively implicated in the IRA campaign" the applicant Government

submitted that:

- since neither the person interned nor the applicant Government was

aware of the evidence which so satisfied the Minister of Home Affairs

for Northern Ireland, and

- since the statements of many of the persons whose names were set out

in Appendices 4-7 and the Addenda thereto, denied the allegations made,

and

- since no independent judicial tribunal existed to examine the bases

on which the Minister of Home Affairs for Northern Ireland became so

satisfied,

the respondent Government's statement in this respect was unsupported

in fact, and, in any event, was irrelevant to the issue of

admissibility.

The applicant Government noted that it was not suggested by the

respondent Government that there was any domestic or legal remedy

available to any person arrested or detained (as distinct from

interned) pursuant to the provisions of the Special Powers Act.

It was noted that, although the respondent Government claimed that

detention and internment were measures strictly required by the

exigencies of the situation and 796 persons were interned without trial

between 9 August 1971 and 31 March 1972, yet in the same period of time

it was possible to have over 888 persons charged in the normal process

of criminal law.

The respondent Government had requested that the question whether the

measures taken were permissible under Article 15 (1) should be

considered as a preliminary question. The applicant Government referred

the Commission again to the objects of their claim set out in Section

A of the application and commented that, in such a case and where also

it was alleged that the existence of the Special Powers Act and

Regulations made thereunder were in themselves a breach of Article 1

of the Convention, it was unappropriated that the request of the

respondent Government should be acceded to.

With reference to the respondent Government's observations that the

application failed to state how "the existence, as distinct from the

application, of the Special Powers Act and Regulations was capable of

contravening the Convention", the applicant Government referred to the

obligation of Parties to secure the rights and freedoms defined in

Section I of the Convention. They also referred to the statement in the

Commission's decision on admissibility in the de Becker Case

(application No. 214/56) to the effect that the Convention was binding

on all the authorities of the Contracting Parties including the

legislative authority (Yearbook, Vol. 2, pp. 214, 234).

At the hearing, the representatives of the applicant Government

maintained that their allegations under Articles 5 and 6 should be

declared admissible and that no question as to the derogation under

Article 15, the extent of the measures taken in pursuance of such

derogation or its validity could arise at the admissibility stage.

In the event that the Commission would nevertheless consider the

question of derogation at that stage, the applicant Government also

maintained that the measures taken exceeded what was strictly required

by the exigencies of the situation.

In this connection the applicant Government explained that the Act and

Regulations gave to the executive three different powers of detention,

namely:

- a power to detain a person for up to 48 hours which did not, under

the Regulations, require suspicion either of a criminal offence having

been committed or that there had been an intention to commit an offence

(Regulation 10);

- a power of detention which was unlimited in time (Regulation 11).

- a power of internment in respect of which there was no effective

tribunal which could inquire into the validity or soundness of the

internment (Regulation 12);

The applicant Government then asked the Commission to consider what

measures might be strictly necessary in a situation of emergency.

First, whether any authority which had the power of internment, from

which there was no judicial escape, should have, for any purpose, the

concurrent power to order unlimited detention? Secondly, even if a

power of internment were a necessary measure in any given emergency,

what conceivable administrative or practical ground could there be for

denying an interned person the right to have his case considered by a

judicial tribunal which had effective power to release him or to

confirm his internment?

The applicant Government also recalled that the Special Powers Act and

Regulations had remained in force for 50 years and that it did not

require any legislative act, even a proclamation or order-in-council,

to make these powers effective. In particular, the respondent

Government had justified this absence of parliamentary control over the

times at which, or the circumstances under which, the power of

internment could be introduced on the ground that the time required to

proclaim or announce the introduction of the power of internment would

enable those persons, against whom it was intended to be operated, to

escape. In the applicant Government's opinion this explanation ignored,

however, the fact that, even if it were announced that there were now

or at any given time between 2,000 and 3,000 terrorists in Northern

Ireland, the whole population of 11/2 million people lived permanently

under the shadow of the possibility of being interned immediately and

without prior notice.

The applicant Government then commented on the provisions of

Regulations 10, 11 and 12. Regulation 10 provides that:

"Any officer of the Royal Ulster Constabulary, 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 interrogation."

As regards this Regulation the applicant Government noted that it was

not necessary that the officer authorising the arrest of a person

should in any way suspect the person arrested or about to be arrested

of doing any wrongful act, or of intending or of being involved in the

doing of any such act. Moreover, under this Regulation a person might

be arrested for interrogation in connection with another person but

without any connection with his own activities.

Even more drastic powers were to be found in Regulation 11 (1) which

permitted any person so authorised by the civil authority, or any

police constable or any soldier, to arrest without warrant any person

whom he suspected of acting in a manner prejudicial to the maintenance

of peace and order, or to arrest any person found with a book or

document which gave ground for such suspicion. This was simply a power

of arrest. However, under Regulation 11 (2) a person so arrested might,

on the order of the civil authority, be detained in prison or elsewhere

as directed until he was discharged by the Attorney-General or brought

before a court of summary jurisdiction. This Regulation gave an

unlimited power of detention. Once the arrest had been achieved by any

of the officers referred to in Regulation 11 (1), the civil authority

could detain a person without any reference to any court or without any

form of adjudication until he was discharged. The applicant Government

stated that the judgment in the McElduff Case showed that there was no

time-limit within which a detention order under Regulation 11 (2) had

to be made, nor was there any limitation of the period an arrested

person could be held in custody under Regulation 11 (1). The same

judgment showed that the courts could not be asked to determine whether

the grounds of suspicion on which a person was arrested and

subsequently detained were reasonable or not.

The applicant Government then referred to the power of internment in

Regulation 12 which provided that, on the recommendation of an officer

of the RUC or of an Advisory Committee, the Minister of Home Affairs

might, for the purpose of securing peace and order and where it

appeared to him that it was expedient to do so, order that a person who

was suspected of acting in a manner prejudicial to the preservation of

peace and order should reside in a certain place and report to the

police at regular intervals or be interned.

The applicant Government recalled that a person so interned had a right

to have his case reviewed by an Advisory Committee which could

recommend that the internment should continue or be ended. In this

connection, the applicant Government repeated their submissions with

regard to the procedure before the Committee and the advisory character

of that Committee.

By way of comparison the applicant Government then referred to the

relevant parts of the legislation in the Republic of Ireland which had

been considered in the Lawless Case, namely Part VI of the Offenses

Against the State (Amendment) Act 1940. The applicant Government

pointed out that there were important differences between the Special

Powers Act and that legislation. In particular, the 1940 Act could only

be brought into operation by a Government proclamation which itself was

liable to annulment by Parliament. The 1940 Act also provided that an

interned person had a right of appeal to a Detention Commission whose

decision, where it ordered that an internee should be released, was

binding on the executive and the courts. Moreover, the Detention

Commission could require the Minister for Justice to furnish all

relevant information or documents. These safeguards were considered and

given much significance by the Commission in its Report in the Lawless

Case (European Court of Human Rights series B, 1960-61, pp. 123, 133

and 134). However, none of these safeguards was provided for, or at

least not provided for in an effective form, under the Special Powers

Act.

The applicant Government also referred to the statements recently made

by the Secretary of State for Northern Ireland as to the respondent

Government's future intentions about internment and the setting up of

a new tribunal. It was submitted that, even assuming that these matters

could be considered by the Commission at the admissibility stage, there

was no suggestion that this new tribunal was a tribunal to which a

person had access as of right and which was capable of releasing him

from internment.

At the hearing the representatives of the applicant Government also

developed their submission that no effective remedies were available

to a person deprived of his liberty under the Special Powers Act in

breach or Article 5 of the Convention. It was true that, if there had

been a failure by the security forces or the executive to comply with

the precise procedural requirements of the Special Powers Act and

Regulations, the courts could release a person from what would then be

an invalid detention. In this context, the applicant Government

stressed that the judiciary in Northern Ireland had been scrupulous in

its observance of these technicalities. On the other hand, if these

procedural requirements were complied with, there was no effective

recourse to any ordinary court in relation to the deprivation of

liberty.

In support of this submission the applicant Government referred to the

judgment in the McElduff Case where the position of the courts in

relation to the exercise of the powers under the Special Powers Act was

described. In that case the judge considered, inter alia, the question

whether the power of arrest under Regulation 11 (1) could be exercised

on any suspicion regardless of whether it was reasonable or not. The

judge held that it was sufficient if the suspicion in the mind of the

arrestor was an honest and genuine suspicion and that, in an

application of the sort concerned, the court could only enquire into

the existence of the suspicion in the mind of the constable and whether

the suspicion was an honest one.

The applicant Government argued that this judgment showed that relief

was only possible if mala fides could be established. In view of the

serious practical difficulties involved in proving such mala fides this

remedy was purely illusory. In support of this argument reference was

made to de Smith "The Judicial Review of Administrative Action" (second

ed. p. 315). The applicant Government added that the right of a

detained person to obtain access to a solicitor was irrelevant in view

of the very limited competence left to the courts in this respect.

5. Under Article 6 of the Convention

(a) Submissions of the respondent Government

With regard to the alleged breach of Article 6 of the Convention in

relation to persons interned without trial, the respondent Government

first referred in their written observations to the European Court's

decision in the Lawless Case that "the rules set forth in Article 5,

paragraph 1 (b) and Article 6 respectively are irrelevant to the

present proceedings ... the latter because there was no criminal charge

against him" (judgment of 1 July 1961, p. 51). The respondent

Government stated that no allegation of fact was made in the present

instance in relation to Article 6 other than that certain persons were

interned without trial; in particular, there was no assertion of a

criminal charge in respect of the persons interned without trial.

Indeed such an assertion would be at variance with the allegation of

a breach of Article 5. The respondent Government submitted that,

according to the above decision of the Court, Article 6 was equally

irrelevant to the present proceedings.

The respondent Government then referred to the Commission's decision

on the admissibility of application No. 788/60 (Austria v. Italy,

Yearbook, Vol. 4, pp. 116, 180-182) with regard to the argument put

forward by the respondent Government in that case that the complaints

did not come within the competence of the Commission ratione materiae.

In reply to this argument the Commission had held that the provisions

of Article 27 (2), of the Convention were not applicable to an

application under Article 24 and it had found that the complaints set

forth in the application were not outside the general scope of the

Convention.

The respondent Government stated that their submission in the present

case as regards Article 6 was to be distinguished from the argument

ratione materiae in the previous case in that their present argument

was directly based on a decision of the European Court in a case which

was directly relevant and in which the issue was determined as a matter

of law. The legal issue was the same in the present case. So far as

concerned Article 27 (2), of the Convention that Article required the

Commission to consider inadmissible a petition under Article 25 which

it considered, inter alia, incompatible with the provisions of the

Convention. It was submitted that such a provision did not preclude the

Commission from rejecting a particular allegation or declining to

examine it further, whether on the merits or otherwise, in a case where

it was apparent that, as a matter of law, the examination could only

concern an issue which in the light of the decision of the Court, was

irrelevant. The Commission, it was submitted, had the power, by virtue

of its function and irrespective of specific provisions, to refuse to

give further consideration to issues which had been raised in disregard

of the jurisprudence of the Convention. In connection with this

submission the respondent Government referred the Commission to the

decision of the International Court of Justice not to adjudicate upon

the merits of the claim in the Norther Cameroons Case (I.C.J. Reports

1963, pp. 15, 38).

Such a course, it was submitted, was equally appropriate in proceedings

before the Commission where it would be meaningless to pursue a

particular claim.

Accordingly the respondent Government submitted that Article 6 was

irrelevant to the present proceedings and that the allegation of a

breach of that Article should be rejected or that the Commission should

decline to examine that allegation further.

At the hearing the representatives of the respondent Government

repeated this submission. In particular, it was argued that under the

general rules of international law, as exemplified in the Northern

Cameroons Case, the Commission had the power to decline to allow its

judicial function to be engaged where no purpose would be served by

undertaking an examination on the merits which, in the light of the

Court's decision in the Lawless Case, must inevitably lead to the

dismissal of the complaint.

The respondent Government also replied to the applicant Government's

further argument that there had been a breach of Article 6 on the

ground that an interned or detained person should have a civil right

to have his position considered in accordance with the provisions of

that Article. The respondent Government submitted that an interned or

detained person did in fact have such a right and that there was

nothing in the application to suggest that there was any interference

with that right. The respondent Government argued that the question

under Article 6 was not whether a person was wrongly detained but

whether he had been wrongly deprived of the right to test the legality

of his detention. The final answer to any suggestion that there was any

denial of this right was provided by the McElduff Case, where a

detained person successfully availed himself of the right to have his

position determined.

(b) Submissions of the applicant Government

In the applicant Government's written observations the allegations

under Articles 5 and 6 were dealt with jointly and these submissions

have been set out under Article 5 above (p. 64-67)

At the hearing the representatives of the applicant Government

maintained that this part of the application should be declared

admissible and made further submissions under Article 6. They pointed

out that the arguments originally put forward by the respondent

Government related only to the determination of a criminal charge.

However, Article 6 (1) applied equally to the determination of civil

rights and obligations. In the applicant Government's submission a

person who was detained or interned under the Special Powers Act and

Regulations was deprived of his right to liberty. He therefore had a

civil right to have his position considered and was entitled to a fair

and impartial hearing in accordance with Article 6 (1). However, the

Act gave a detained person, whether he was detained for short or

unlimited periods, no right of access to any form of tribunal for the

determination of this civil right. This was not only contrary to a

particular facet of Article 6 (1) but violated the whole concept of the

Article.

A person who was interned (as distinct from detained) had the

possibility to go before the Advisory Committee but that Committee did

not, in the applicant Government's submission, have the effective

powers or characteristics laid down in Article 6 (1) of the Convention.

The applicant Government argued that the finding of the European Court

in the Lawless Case, as regards the application of Article 6 to an

interned person, was not decisive as it dealt only with the question

of a criminal charge. The arguments put forward by the applicant

Government in the present case in regard to Article 6 (1) were never

before the Commission nor considered ex officio by it in the Lawless

Case. The applicant Government did not accept the respondent

Government's submission that the requirement of Article 6 (1) of the

Convention were satisfied because a person, who was detained or

interned, could go to a court either on the ground that the order of

detention or internment was not made in accordance with the strict

requirements of the Act or in order to try to establish bad faith on

the part of the arrestor. In the applicant Government's view the right

concerned was the right of liberty and, a person seeking a

determination of that right should, at the minimum, be entitled to a

determination as to whether total deprivation of his liberty was in

accordance with natural justice. No principle of international law

could set a lesser standard, nor could Article 6 (1) of the Convention

be given less meaning than that. As long as the law of Northern Ireland

did not give any public court the power to consider and make an

effective decision as to the reasonableness of the suspicion on which

a person had been deprived of his liberty, that person did not have the

right to a determination of his civil rights as provided for in Article

6 (1) of the Convention.

6. Under Article 14 of the Convention

(a) Submissions of the respondent Government

In their written observations the respondent Government referred to

part F of the application (p. 17 above) and first recalled their

submissions with regard to the substantive allegations of a breach of

Article 6. Having regard to these submissions the respondent Government

took the view that there was no issue which fell to be considered under

this head in relation to Article 6 of the Convention.

As regards the alleged discrimination with regard to rights conferred

by Articles 5 and 8, the respondent Government observed that it

appeared to be the basis of the applicant Government's complaint that

the powers to search homes and to arrest, detain and intern persons had

been exercised on the ground that those against whom the powers were

exercised merely held certain unspecified political opinions and not

on grounds connected with the activities of the persons concerned. The

respondent Government denied that the exercise of the powers to detain

or intern persons or to search homes had been or was being carried out

with discrimination on grounds of political opinion in contravention

of Article 14 of the Convention.

The relevant powers (Regulations 4, 10, 11 and 12 of the Special Powers

Regulations) were exercisable only for the preservation of the peace

and the maintenance of order or, in some cases, where it was suspected

that an offence against the Regulations had been, or was being, or was

about to be, committed. It would be an improper exercise of these

powers to exercise them merely on the ground that a person had

particular views or views which differed from those of the Government

and it was open to any person, against whom any of these powers had

been exercised, to challenge the legality of their exercise in the

courts of Northern Ireland by an action for habeas corpus, for damages

for trespass (including false imprisonment), or for a declaration that

the powers were unlawfully exercised, as appropriate.

It was submitted that the above-mentioned remedies constituted an

effective remedy for the purposes of Article 26 of the Convention and

that the applicant Government had neither adduced any reason why these

remedies should not be exhausted by the persons to whom the allegations

in Part F of their application related nor had the applicant Government

demonstrated that such remedies had been exhausted as required by

Article 26 of the Convention. Accordingly, it was further submitted

that, insofar as the application alleged a breach of Article 14 of the

Convention in relation to Articles 5, 6, or 8 in respect of the

exercise of powers to search homes and to arrest, detain and intern

under the Special Powers Regulations, the application should be

rejected as inadmissible under Articles 26 and 27 (3).

At the hearing the representatives of the respondent Government first

pointed out that, although the application itself only alleged

discrimination in the exercise of the power to detain, intern and

search homes, the material referred to in this part of the application

included much wider allegations of discrimination which, in the

respondent Government's view, were wholly unsubstantiated by evidence.

The respondent Government's observations were, however, only concerned

with the three specific grounds.

The respondent Government emphasised that the purpose of the emergency

measures was not to prevent or inhibit the free expression of political

views opposed to those of the Government of Northern Ireland, nor to

suppress those who were dedicated to changing the form of government

by constitutional and democratic means. However, it could not be

tolerated in any democratic society that deliberate attempts were made

to change the form or method of government by undemocratic,

unconstitutional and unlawful means. This had always been the avowed

aim of the IRA, namely to destroy the democratic constitution of

Northern Ireland by resorting to flagrant acts of terrorism and

intimidation. The respondent Government were aware that there were

other organisations in Northern Ireland which were also prepared to use

unlawful means to bring to an end the existing form of democratic

government in the province. The organisations outlawed under Regulation

24A of the Special Powers Act included the Ulster Volunteer Force which

was associated with a different faction of extremists. However, the

most serious threat to peace and order in the province in August 1971

did not come from these organisations but from the two wings of the

IRA. Even if certain acts of violence were carried out at the time by

other illegal organisations, the threat posed by such organisations

could not remotely be compared with the acts of terrorism which were

being carried out daily by the IRA.

Since the emergency measures were intended to contain this serious

threat to the province, it was inevitable that those most directly

affected by the implementation of the Act were supporters of the IRA,

but it was not because they held and expressed views which were opposed

to the Government that they were detained, interned or had their houses

searched; it was because they were known or thought to be actively

engaged with the IRA in achieving their political aims by violent

means. Moreover, in considering the alleged discrimination the reasons

why the powers had been invoked and the circumstances in which they

were being used had to be kept in mind. There was no discrimination

within the meaning of Article 14 of the Convention if these powers were

being exercised only against those who had rendered themselves liable

to them and not against those who had not.

The respondent Government repeated that, if the powers concerned were

exercised against certain people because of their political opinions

or religious belief and not on proper security grounds, the exercise

of the powers would be in bad faith. The case-law of the British courts

clearly established that, where it was alleged that a power had been

exercised in bad faith and bad faith was proven, the courts would give

relief in respect of that power. In the respondent Government's

submission there was no reason, either in principle or on the decided

cases, to indicate that an exercise in bad faith of a power under the

Special Powers Act would not be remedied by the courts in the same way

as any other power. There were therefore adequate domestic remedies

available and these remedies had not been exhausted.

(b) Submissions of the applicant Government

In their written observations the applicant Government commented on the

written observations made by the respondent Government with regard to

the alleged breaches of Article 14.

The applicant Government asked the Commission to note that while they

had submitted affidavits and statements contained in appendices to the

application from responsible Members of Parliament, solicitors,

journalists and businessmen in support of their contention that the

exercise by the respondent Government and by the security forces under

their control of their powers to detain and intern persons had been and

was being carried out with discrimination on the grounds of political

opinion, the only observation of the respondent Government in this

respect was a denial simpliciter of the matters alleged without any

contradiction of the detailed allegations contained in the said

appendices.

As regards the remedies indicated by the respondent Government with

regard to this part of the application the applicant Government stated

that it was not open to anyone to challenge the legality of the

exercise of the powers of detention, internment or search in the courts

by way of habeas corpus, an action for trespass or false imprisonment

or by way of declaration that the powers were unlawfully exercised.

Provided the detention, internment or search was made pursuant to the

provisions of the Special Powers Act and Regulations there was no such

or any other domestic remedy available to any person provided that such

detention or internment was made strictly in accordance with the legal

requirements of the Special Powers Act. In this context reference was

again made to the decision in R. (O'Hanlon) v Governor of Belfast

Prison ([1922] 56 I.L.T.R. 170).

It was further submitted that, where the strict legal requirements of

the Special Powers Act were complied with, the law of the respondent

Government afforded no relief to a person detained or interned without

trial even if his detention or internment was decreed on a basis of

discrimination as to his political opinion.

It was further to be noted that, in their observations on the

substantive allegations of breaches of Articles 5 and 6, it was not

suggested by the respondent Government that any domestic remedies could

apply.

At the hearing the representatives of the applicant Government shortly

summarised the material which they had submitted to the Commission in

support of their complaint under Article 14. They pointed out that this

material consisted of a series of statements asserting that, with

particular reference to powers of detention, internment and search,

these powers had been operated with discrimination in the sense that

they had frequently, if not oppressively, been operated against a

section of the population holding one political opinion, but not

against another section of the population which held a different

political opinion and which was apparently prepared to achieve their

political ends by the same violent means.

In the applicant Government's submission the essence of discrimination

within the meaning of Article 14 of the Convention was not that

something was done against one person, but that it was not done against

all people equally. The respondent Government had suggested that there

had been a failure to exhaust the domestic remedies because a person

could technically seek a remedy in relation to the exercise of one of

the special powers against him if he could plead that it had been done

male fide. In this connection the applicant Government recalled their

submissions with regard to the possibility and practicability of such

an action, which had been described as an "illusory remedy". However,

even assuming that such a remedy existed, it was not, in the applicant

Government's view, an appropriate or sufficient remedy for a breach of

Article 14 of the Convention. Such a breach consisted essentially of

the failure of the executive to apply equally the powers against all

persons in the community to whom such powers were applicable. The only

effective domestic remedy in relation to Article 14 would be if an

order of mandamus could be obtained from some judicial authority

directing the executive to use its powers without discrimination. In

this context the applicant Government referred, by way of example, to

the position of an innocent person who was living in a particular area

surrounded by people of a particular political opinion whose opinion

he might share without nevertheless agreeing with the use of violent

means. This person might be constantly searched and his house invaded

in pursuance of a search and it might well be that in that particular

street or area constant searching was justifiable. However, there would

be discrimination if a person holding a different political opinion,

whether approving or condemning violence, found himself totally

unmolested.

At the hearing the Commission asked the applicant Government to

indicate the elements in the situation today within the territory of

the respondent Government which they considered incompatible with the

Convention. The applicant Government answered that the provisions of

the Special Powers Act and the Regulations made under it, and the

methods implementing these measures, remained today unchanged from the

position outlined in the application and this present situation was

incompatible with the respondent Government's obligations under

Articles 1, 5, 6 and 14.

APPLICATION NO. 5451/72

I. The applicant Government's application

In their submissions of 3 March 1972 the applicant Government referred

the Commission to the Northern Ireland Act 1972, an Act passed by the

Parliament of the United Kingdom on 24 February 1972. The applicant

Government alleged that the Act was of itself a failure by the

respondent Government to comply with the observations imposed on them

by Article 1 of the Convention, in that it constituted a positive

denial to persons resident in Northern Ireland of the rights defined

in Article 7 of the Convention.

The full text of the Northern Ireland Act 1972 was attached to the

submissions. Section 1, which is the operative part of the Act,

provides as follows:

"The limitations imposed by paragraph 3 of Section 4 (1) of the

Government of Ireland Act 1920 on the powers of the Parliament of

Northern Ireland to make laws shall not have effect, and shall be

deemed never to have had effect, to preclude the inclusion in laws made

by the Parliament for the peace, order and good government of Northern

Ireland of all provision relating to members of Her Majesty's Forces

as such or to things done by them when on duty, and in particular shall

not preclude, and shall be deemed never to have precluded, the

conferment on them by, under or in pursuance of any such law of powers,

authorities, privileges or immunities in relation to the preservation

of the peace or maintenance of order in Northern Ireland."

It was further alleged that the Act was per se a breach of Article 7

of the Convention in that it provided that persons were held guilty of

offences for acts and omissions which did not constitute criminal

offences under national or international law at the time they were

committed.

The applicant Government referred the Commission to a judgment of the

Divisional Court of the High Court of Northern Ireland on 23 February

1972 (1). In this case five persons had been convicted by a

Magistrates' Court for having remained in an "assembly of three or more

persons" after having been ordered to disperse by a commissioned

officer of Her Majesty's Forces, contrary to Regulation 38 (1) of the

Regulations made under the Civil Authorities (Special Powers) Act

(Northern Ireland) 1922. The five persons concerned applied to the

Divisional Court of the High Court of Northern Ireland to have their

convictions quashed. In their application

----------------------------------

(1) The Queen (at the prosecution of John Hume and others) v. The

Justices of the Peace for the County and City of Londonderry.

----------------------------------

they alleged that, having regard to Section 4 (1) (3) of the Government

of Ireland Act 1920, Regulation 38 (1) was outside the competence of

the Northern Ireland Parliament and of the Minister who purported to

make the Regulations. This argument was accepted by the Court and the

convictions were quashed.

The applicant Government submitted that the effect of the judgment of

the Divisional Court was that failure to comply with an order of a

member of the security forces given under the Regulations to the Act

of 1922 was not an offence under that Act.

It was further submitted that by the Northern Ireland Act 1972 the

respondent Government had by law enacted that such failures to comply

with orders of its security forces were now criminal offences although

they did not constitute criminal offences at the time they took place.

It was therefore argued that the Act of 1972 was a breach of Article

7 of the Convention.

Finally, it was submitted by the applicant Government that no domestic

remedies were available for any person who might be found guilty of a

criminal offence by reason of the provisions of the 1972 Act.

II. Submissions of the Parties on admissibility

A. Written observations on Administrative Court

1. Submissions of the respondent Government

The respondent Government denied that the Northern Ireland Act 1972

constituted a contravention of Article 7 of the Convention.

In their observations the Government outlined first the background to

the passing of the Act. They referred to the power conferred on the

Parliament of Northern Ireland by Section 4 of the Government of

Ireland Act 1920 to make laws for the "peace, order and good government

of Northern Ireland" subject to certain limitations; in particular,

laws in respect of the Army or in respect of military matters were

reserved for the United Kingdom Parliament. The judgment of the

Divisional Court on 23 February 1972 turned upon the interpretation of

Section 4 of the Act of 1920, which affected the extent of the powers

conferred on the Northern Ireland Parliament under the Act. The Court

was concerned in particular with the validity of Regulation 38 (1) of

the Regulations made under the Special Powers Act 1922. Accepting the

arguments put forward by the applicants in the case, the Court held

that Regulation 38 (1) was ultra vires and therefore void, since it

purported to confer powers on members of the armed forces on duty and

as such was contrary to Section 4 (1) (3) of the Act of 1920.

The respondent Government went on to state that, on the same day as the

judgment was given, the Parliament of the United Kingdom passed the

Northern Ireland Act 1972. In introducing the Bill in the House of

Commons the Attorney-General had made the following statement:

"The judgment of the High Court .... goes contrary to what was

previously thought to have been the law ... It affects solely the

exercise of powers under the Special Powers Act by the military ....

the Government decided that it would be indefensible to leave the Army

without the essential powers which enable it to discharge the duties

for which it was sent to Northern Ireland while the legal processes of

any appeal were carried through."

The Attorney-General had also given an undertaking to the House that

any prosecution then pending, which would have failed on the assumption

that the judgment of the Divisional Court was correction law, would be

abandoned and no new prosecution of that kind would be initiated in

relation to past events insofar as they were within the reasoning of

that judgment.

The respondent Government continued their observations with submissions

on the admissibility of the application. The Government submitted that

the terms of the application were such as to raise an issue under

Article 7, particularly having regard to the undertaking of the

Attorney-General. It was stated that only did the Act not hold any

person guilty of an offence, as alleged in the application, but the

undertaking ensured a withdrawal of any proceedings which might have

been pending, and precluded any person for being prosecuted, for any

relevant offence in respect of acts or omissions prior to the enactment

of the Act of 1972.

It was further submitted that the application did not raise any issue

falling for investigation by the Commission. The Commission was

requested to decline to give any further consideration to the

application and, as a consequence, to decline to admit the application.

In the alternative, it was submitted that, if the Commission were to

decide that the terms of the 1972 Act did raise an issue falling to be

considered further under Article 7 of the Convention, the terms of the

applicant Government's undertaking demonstrated that the application

of the Act by the law enforcement authorities would be such as to avoid

any action by them which could conceivably give rise to a breach of

Article 7 by reason of the enactment of the Act. The respondent

Government submitted that in the circumstances the function of the

Commission, namely to ensure the observance of the engagements

undertaken by the High Contracting Parties, was achieved. It was also

submitted that the object of the applicant Government's claim, which

was "to ensure that the respondent Government will secure to everyone

in Northern Ireland the right and freedoms defined in Section I of the

Convention ...", was achieved. The Commission was accordingly requested

to decline to proceed further with its examination of the application.

2. Submissions of the Government

in their observations in reply the applicant Government reminded the

Commission that Parliament was the supreme law-making body in the

United Kingdom and laws passed by it could not be overruled by the

courts. It was further pointed out that an undertaking given in the

United Kingdom Parliament by the Attorney-General did not become part

of the domestic law of the country and no court could give to it any

legal effect.

It was submitted by the applicant Government that, in order to prevent

the Northern Ireland Act 1972 from having the effect of making criminal

offences certain actions which were committed before the passing of the

Act, it would be necessary to have an express provision in the Act to

that effect.

The applicant Government maintained that the mere existence of the 1972

Act and the potential exercise of the powers contained in it

constituted a clear and sufficient breach of Article 7 of the

Convention.

B. Oral submissions at the hearing on admissibility

1. Submissions of the respondent Government

In their oral submissions the respondent Government maintained and

developed the arguments already put forward in their written

observations.

After explaining the circumstances in which the Northern Ireland Act

1972 came to be passed and denying the allegation of the applicant

Government that the Act was per se a breach of Article 7 of the

Convention, the Attorney-General, on behalf of the respondent

Government, made the following statement to the Commission,

"The submission, then, of the United Kingdom Government is that in fact

no one had been and no will be held guilty by reason of the 1972 Act

of a criminal offence on account of any act or omission which did not

constitute a criminal offence at the time when it was committed,

because of the undertaking which I, the Attorney-General, gave to the

House of Commons; and I tell the Commission as Attorney-General for the

United Kingdom that no one has been so held guilty and no one will be

so held guilty as a result of this Act."

At a later stage in the hearing, the Attorney-General made the

following further statement.

"I repeat formally to this Commission the undertaking which I gave in

Parliament, on behalf of the Attorney-General for Northern Ireland,

which was to the effect that any prosecution now pending which would

fail if the judgment in the Hume case stood would be arrested or

stopped and that no new prosecution of that kind would be initiated in

relation to the past.

The effect of that undertaking was and is that no prosecution which

might have failed as a result of the decision in the Hume case can now

reach the courts in relation to events which occurred prior to the

passing of that Act in 1972, and under the powers vested in me as

Attorney-General for Northern Ireland I can and shall ensure that in

the unlikely event of a private prosecution being brought for an

offence prior to this Act in 1972, that prosecution will not proceed.

I have powers to ensure that. I repeat again that no one has been held

guilty as a result of the 1972 Act for an act or omission which did not

constitute a criminal offence at the time it was committed and no one

will be so held guilty."

Submissions were made during the course of the hearing by the

respondent Government on the weight which the Commission should attach

to an undertaking publicly given on behalf of a Government of one of

the High Contracting Parties. Further arguments were also put forward

in support of the respondent Government's contention that this

application should be declared inadmissible.

It was submitted that, in view of the undertaking given by the

Attorney-General, it was clear beyond argument that the right which is

stated in Article 7 of the Convention had been secured, and that the

only reasonable course for the Commission to adopt was therefore to

devote no more time to the application. Answering the argument of the

applicant Government that this was not a ground for inadmissibility

mentioned in the Convention, the respondent Government referred to the

Commission's decision on the admissibility of application No. 214/56

(De Becker v. Belgium, Yearbook, Vol. 2, p. 214). This case was cited

as authority for the respondent Government's contention that an

application might be declared inadmissible on a ground which was not

expressly mentioned in the Convention, but which rested on a generally

recognised principle of international law. Reference was also made to

the judgment of the International Court of Justice in the Northern

Cameroons Case (I.C.J. Reports 1963, p. 15). In its judgment the Court

had stated that there were inherent limitations on the exercise of the

judicial function which the Court as a court of justice could never

ignore. The Court had gone on to add that no purpose would be served

by undertaking an examination of the merits in the case for the purpose

of reaching a decision which, for reasons already given by the Court,

ineluctably must be made.

The respondent Government submitted that the International Court of

Justice was expressing the limitation on its function as a general

principle of international law which was generally applicable to

international tribunals. The Government considered that in the present

application the ultimate decision that there had been no violation of

the Convention was one which ineluctably must be made. It was therefore

submitted that to proceed further with investigation of the case would

not be a proper discharge of the Commission's duties.

2. Submissions of the applicant Government

The applicant Government originally maintained their allegation that

the Northern Ireland Act 1972 constituted a breach of Article 7 of the

Convention and also of Article 1 read in conjunction with Article 7.

Towards the end of the hearing, however, the Attorney-General, on

behalf of the applicant Government, made the following statement to the

Commission:

"Having regard to the comprehensive undertaking which was given

yesterday by my learned friend the Attorney-General of the United

Kingdom in relation to the non-commencement of any prosecution of the

kind which we consider to be possible following the passage of the Act

of 1972, and also his undertaking that, if anyone commenced a private

prosecution, he would prevent its being continued, which power we

accept that he has, the matters that concerned my Government in

relation to this Act are satisfied. As he has given this undertaking

before this international Commission, I feel that it is proper for me

now to withdraw our supplementary application which dealt with Article

7."

THE LAW

I. Application No. 5310/71

1. The Commission observes that the applicant Government have stated

that the object and purpose of the present application is to seek a

determination of the compatibility with the Convention of certain

legislative measures and administrative practices and not to obtain

compensation or reparation in respect of any wrong done to any

individual person. In particular, the applicant Government has stated

that they are bringing their applications in respect of breaches of

treaty, that is to say, to ensure the observance of the Convention, and

not as measures of diplomatic protection and that therefore the rule

of exhaustion of domestic remedies as it is to be understood in

international law under Article 26 (Art. 26) does not apply to this

application. At the hearing on admissibility, the applicant Government

were asked to indicate which elements in the situation today within the

territory of the respondent Government they considered inconsistent

with the Convention. The Commission refers to the terms of the

applicant Government's reply (reproduced on p. 19 above) according to

which the legislative measures and administrative practices defined

therein were incompatible with the respondent Government's obligations

under Articles 1, 2, 3, 5, 6 and 14 (Art. 1, 2, 3, 5, 6, 14) of the

Convention.

2. The Commission has first examined the applicant Government's

allegation that the deaths of 22 persons referred to in the application

were caused by the security forces of the respondent Government in

breach of Article 2 (Art. 2) of the Convention and that these deaths

showed a failure by the respondent Government, as a matter of

administrative practice, to protect by law the right to life of persons

within their jurisdiction in Northern Ireland.

The respondent Government have submitted that this part of the

application should be rejected in accordance with Articles 26 and 27

(3) (Art. 26, 27-3) of the Convention on the ground of non-exhaustion

of domestic remedies. The applicant Government have submitted in reply

that Article 26 (Art. 26) does not apply in a case where an

administrative practice in violation of the Convention is alleged.

It is true that the Commission has repeatedly held, with regard to

applications introduced under Article 24 (Art. 24) of the Convention,

that the rule requiring the exhaustion of domestic remedies does not

apply where an application raises, as a general issue, the

compatibility with the Convention of "legislative measures and

administrative practices" (see the decisions on admissibility in the

First Cyprus Case (Yearbook, Vol. 2, pp. 182, 84), the First Greek Case

(Yearbook, Vol. 11, pp. 690, 726 and pp. 730, 768-770) and the Second

Greek Case (Collection of Decisions, Vol. 34, pp. 70, 73).

However, in accordance with the Commission's case-law, it is not

sufficient that the existence of such legislative measures or

administrative practices should be merely alleged; it is also

necessary, in order to exclude the application of the rule requiring

the exhaustion of domestic remedies on such grounds, that the existence

of the alleged measures or practices is shown by means of substantial

evidence (see, in this respect, the second decision on admissibility

in the First Greek Case, loc. cit at p. 770).

In the present case the Commission, having taken into account the

submissions of both Parties, does not find that the applicant

Government have offered substantial evidence to show that an

administrative practice exists as alleged by the applicant Government.

In these circumstances, the Commission could not deal with the matter

of the 22 deaths unless and until it were shown, as required by Article

26 (Art. 26), that the domestic remedies which are available under the

law of Northern Ireland have been exhausted. As the applicant

Government have not shown this to be the case, the Commission must

under Article 27 (3) (Art. 27-3), of the Convention declare this part

of the application inadmissible. The Commission observes in this

connection that the applicant Government have argued, as already

described, that where breaches of treaty are alleged, the rule of

exhaustion of remedies does not apply. Nevertheless, the Commission

finds that it is required by Article 27 (3) (Art. 27-3) of the

Convention to apply the rule as set out in Article 26 (Art. 26) to any

application whether brought under Article 24 or Article 25

(Art. 24, 25).

3. The Commission has next considered the applicant Government's

allegations that persons in custody have been subjected to treatment

which constitutes torture and inhuman and degrading treatment and

punishment within the meaning of Article 3 (Art. 3) of the Convention

and that such treatment constituted and administrative practice.

The respondent Government have submitted that the Commission should

make a distinction between different categories of alleged

ill-treatment and should decline to proceed further with allegations

in respect of the five interrogation techniques described in paragraphs

59-67 of the Compton Report, on the ground that these techniques have

been discontinued. The respondent Government have also submitted that,

in any event, there has been a failure to exhaust the domestic remedies

with regard to all allegations of a breach of Article 3 (Art. 3) of the

Convention.

The applicant Government have objected to such a distinction between

the forms of ill-treatment alleged on the following grounds: first,

the kinds of treatment of the persons in custody are closely

interrelated and show a recurring pattern, further it is admitted by

the respondent Government that interrogation in depth, of which the

five techniques previously formed part, has not been discontinued;

thirdly, other forms of ill-treatment continue. The applicant

Government therefore submit that the discontinuance of certain

interrogation techniques should not be a bar to the admissibility of

the alleged breaches of Article 3 (Art. 3). In the applicant

Government's further submission the rule requiring the exhaustion of

domestic remedies in Article 26 (Art. 26) of the Convention does not

apply to these alleged breaches as they constitute an administrative

practice; or, alternatively, no effective or adequate remedy is

available in respect of the matters complained of, even if the rule

were found to be applicable.

The Commission has first considered the submissions of the Parties with

regard to the five interrogations techniques referred to in the Compton

Court. It is not in dispute that these techniques - which consisted in

hooding, noise, wall-standing, deprivation of sleep and bread and water

diet - were employed as an aid to the interrogation of persons taken

into custody pursuant to the provisions of the Special Powers Act and

the Regulations made under it. The respondent Government have also

confirmed that the use of the techniques in question by the security

forces was authorised at the time, although the respondent Government

subsequently decided that these techniques should no longer be used.

Having regard to the respondent Government's observations and, in

particular, the relevant parts of the Compton and Parker Reports, the

Commission finds that there can be no doubt that the employment of

these interrogation techniques constituted and "administrative

practice". It follows that, in accordance with the Commission's

above-mentioned jurisprudence, the rule of exhaustion of domestic

remedies does not apply to the applicant Government's allegation under

Article 3 (Art. 3) in respect of them. The allegations relating to the

five particular techniques can therefore not be declared inadmissible

under Article 26 and 27 (3) (Art. 26, 27-3) of the Convention. The

question remains, however, whether or not the Commission, as requested

by the respondent Government, should decline to proceed further with

its examination of these techniques in view of the fact that they have

been discontinued.

Without in any was pronouncing at this stage on the question whether

or not the allegations under Article 3 (Art. 3) are well-founded, the

Commission has carried out a preliminary examination of the evidence

and other material submitted by the applicant Government in support of

their allegations of forms of ill-treatment other than the five

techniques. The Commission observes first that, while generally stating

that the facts alleged are not admitted, the respondent Government have

not offered any counter-evidence or made detailed comments on the

material presented by the applicant Government.

Secondly, the Commission finds that the allegations of ill-treatment

contrary to Article 3 (Art. 3), must be examined as a whole and the

other forms of ill-treatment alleged cannot be considered in isolation

from, or without having regard to, the five previously authorised

techniques. The Commission has already held that the five techniques

constituted an administrative practice to which the domestic remedies'

rule in Article 26 (Art. 26) does not apply. On the evidence now before

it, the Commission finds that other forms of ill-treatment are alleged

as forming part of the admitted administrative practice of

interrogation in depth and that, therefore, the domestic remedies' rule

cannot be properly applied to these allegations. The further

examination of all other questions regarding the extent of such an

administrative practice and its consistency with the provisions of the

Convention relates to the merits and cannot be considered by the

Commission at the stage of admissibility.

The Commission therefore retains for an examination of the merits of

the applicant Government's allegations that the treatment of persons

in custody, in particular the methods of interrogation of such persons,

constitutes an administrative practice in breach of Article 3 (Art. 3)

of the Convention.

4. The Commission has next considered the applicant Government's

allegation that internment without trial and detention under the

Special Powers Act and Regulations as carried out in Northern Ireland

violates Articles 5 and 6 (Art. 5, 6) of the Convention.

First, as regards Article 5 (Art. 5) the respondent Government have

referred to the right of derogation accorded to States under Article

15 (1) (Art. 15-1) of the Convention and submitted that the operation

of the powers of internment and detention in Northern Ireland did not

constitute a contravention of their obligations under the Convention

since the measures were taken in a time of public emergency threatening

the life of the nation and were strictly required by the exigencies of

the situation. The respondent Government have requested further that

the Commission should consider, as a preliminary question, the issue

whether the measures taken were measures permitted under Article 15 (1)

(Art. 15-1).

Secondly, as regards the alleged violation of Article 6 (Art. 6) of the

Convention the respondent Government have referred to the finding of

the European Court in the Lawless Case that Article 6 (Art. 6) of the

Convention was irrelevant to the proceedings in that case on the ground

that there was no "criminal charge" against Lawless. The respondent

Government have submitted that, in the light of the Court's judgment,

Article 6 (Art. 6) is equally irrelevant to the present proceedings.

Moreover, the respondent Government have rejected the applicant

Government's further argument that there has been a breach of this

Article in that interned or detained persons have been denied a civil

right to have their right to liberty considered in accordance with the

requirements of Article 6 (Art. 6) of the Convention. The respondent

Government have denied that there has, in fact, been any interference

with such a right and, in this connection, referred to proceedings

actually brought before the courts in Northern Ireland. In the

respondent Government's submission the allegation of a breach of

Article 6 (Art. 6) of the Convention should be rejected or the

Commission should decline to examine it further.

The applicant Government have stated in reply that the respondent

Government's submissions in this respect are irrelevant to the issue

of admissibility. In particular, the effects of a derogation under

Article 15 (1) (Art. 15-1) cannot be considered at the present stage.

At the same time the applicant Government add that, while admitting

that there has been at all material times in Northern Ireland a public

emergency within the meaning of the said Article, the measures taken

by the respondent Government exceeded what was and is strictly required

by the exigencies of the situation.

The Commission recalls that it has consistently held that the

provisions of Article 27 (1) and (2) (Art. 27-2) of the Convention

refer only to petitions submitted under Article 25 (Art. 25) and not

to applications made by Governments. In particular, an application

under Article 24 (Art. 24) cannot be rejected in accordance with

paragraph (2) of Article 27 (Art. 27-2) as being manifestly ill-founded

and it follows that the question whether such an application is

well-founded or not and whether or not there is a consequent breach of

the Convention are solely questions relating to the merits of the case.

Therefore, the effects of derogation made by the respondent Government

under Article 15 (Art. 15) of the Convention cannot be considered at

the present stage of admissibility. Consequently, the Commission

reserves for an examination of the merits the question whether the

measures concerned were or are justified under Article 15 (see the

decisions on the admissibility in the First Cyprus Case, Yearbook, Vol.

2, pp. 730, 768). It also follows that the Commission cannot, at the

stage of admissibility, consider the question whether or not the

provisions of Article 6 (Art. 6) are relevant to the applicant

Government's present complaint, or whether or not the allegations of

a breach of this Article are well-founded.

The Commission therefore finds that the matters relating to internment

and detention in connection with Articles 5, 6 and 15 (Art. 5, 6, 15)

of the Convention are admissible.

5. The Commission has then considered the applicant Government's

allegation that the exercise by the respondent Government of their

powers to detain and intern persons under the Special Powers Act and

Regulations has been and is carried out with discrimination on grounds

of political opinion in violation of Article 14 (Art. 14) of the

Convention.

The respondent Government have denied that these powers have been

operated in violation of Article 14 (Art. 14) of the Convention and

stated that to exercise these powers against a person merely on grounds

of that person having had certain political views would be an improper

exercise of such powers which could be challenged by the person

concerned in the courts of Northern Ireland. The respondent Government

have submitted, in the first place, that adequate domestic remedies are

available and have not been exhausted and that this part of the

application should therefore be rejected as inadmissible under Articles

26 and 27 (3) (Art. 26, 27-3) of the Convention. Secondly, the

respondent Government have referred to their right of derogation under

Article 15 (Art. 15) of the Convention and submitted that, insofar as

any measures taken in respect of the public emergency in Northern

Ireland have effect in the fields of Article 14 (Art. 14) or any other

Article of the Convention taken in conjunction with that Article, these

measures do not constitute a contravention of the Convention. Thirdly,

the respondent Government have in this context recalled their

submissions as regards the irrelevance of Article 6 (Art. 6) to the

present proceedings and have argued that Article 14 (Art. 14) cannot

therefore be considered in connection with the rights under Article 6

(Art. 6).

The applicant Government have submitted generally that the condition

of exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention does not apply to any part of their application, the object

of which is to seek a determination of the compatibility with the

Convention of certain legislative measures and administrative

practices.

As a subsidiary argument, the applicant Government have submitted that,

even if this domestic remedies' rule is held to be applicable, the

remedies indicated by the respondent Government with regard to the

present complaints do not constitute adequate and effective remedies

for the purpose of Article 26 (Art. 26).

The Commission recalls that it has already found that the matters

relating to internment and detention in connection with Articles 5, 6

and 15 (Art. 5, 6, 15) of the Convention are admissible. It finds that

the applicant Government's allegation that the powers of internment and

detention have been operated with discrimination in violation of

Article 14 (Art. 14) of the Convention are so closely related to the

above matters that they must be dealt with on the merits. Accordingly,

the Commission retains for an examination of the merits the allegations

under Article 14 (Art. 14) with respect to the rights guaranteed under

Articles 5 and 6 (Art. 5, 6) in conjunction with Article 15 (Art. 15)

of the Convention.

6. In this connection, the Commission observes that in their

original application and supplementary submission of 22 February 1972

the applicant Government alleged that the operation by the security

forces of the power to search homes had been and was carried out with

discrimination on the grounds of political opinion.

The applicant Government submitted that this constituted a failure by

the respondent Government to secure without discrimination to persons

within their jurisdiction the rights and freedoms conferred by Article

8 (Art. 8) of the Convention and was therefore a breach of Article 14

(Art. 14).

The Commission recalls that, at the hearing, the applicant Government

was asked to present final submissions indicating the elements in the

situation today within the territory of the respondent Government which

they considered incompatible with the Convention. In their reply the

applicant Government referred only to legislative measures and

practices in relation to Articles 1, 2, 3, 5, 6 and 14 (Art. 1, 2, 3,

5, 6, 14) but made no express reference to Article 8 (Art. 8). Having

regard to the terms of this reply and the oral submissions made on

behalf of the applicant Government at the hearing, the Commission is

bound to conclude that the allegation of a violation of Article 14

(Art. 14) of the Convention in conjunction with Article 8 (Art. 8) has

not been pursued by the applicant Government and that therefore the

Commission is not called upon to examine this allegation any further.

7. Finally, the Commission has had regard to the applicant

Government's allegation that the legislative measures and

administrative practices complained of in connection with the alleged

breaches of Articles 2, 3, 5, 6, and 14 (Art. 2, 3, 5, 6, 14) of the

Convention constituted a separate or additional breach of Article 1

(Art. 1) of the Convention in that the respondent Government have

failed to secure to everyone within their jurisdiction the rights and

freedoms defined in those Articles.

The Commission, having noted the arguments submitted by the Parties in

this respect, reserves to an examination of the merits the question

whether there has been a breach of Article 1 (Art. 1) with regard to

those parts of the application which it has found to be admissible.

II. Application No. 5451/72

In this application the applicant Government alleged that the Northern

Ireland Act 1972 constituted a failure by the respondent Government to

comply with the obligations imposed on it by Article 1 (Art. 1) of the

Convention, by denying the residents in Northern Ireland the rights

defined in Article 7 (Art. 7) of the Convention. The applicant

Government also submitted that the said Act in itself constituted a

breach of Article 7 (Art. 7) of the Convention in that it provided that

persons were held guilty of offences for acts and omissions which did

not constitute criminal offences under national or international law

at the time they were committed.

In view of the undertaking given at the oral hearing before the

Commission by the Attorney-General on behalf of the respondent

Government that no one would be held guilty by reason of the 1972 Act

of a criminal offence at the time it was committed, the applicant

Government have declared that the matters which concerned them in

relation to the Act are satisfied and have therefore withdrawn this

application.

Having regard, in particular, to the terms of the undertaking made by

the Attorney-General on behalf of the respondent Government, the

Commission finds that there are no reasons of a general character

affecting the observance of the Convention which would justify the

retention of this application on its list of cases.

For these reasons the Commission

Having regard to Application No. 5310/71

1. Declares inadmissible the applicant Government's allegations

under Article 2 (Art. 2) of the Convention in relation to the deaths

of certain persons in Northern Ireland.

2. Declares admissible and retains, without in any way prejudging

the merits of the case:

- the allegation that the treatment of persons in custody in particular

the methods of interrogation of such persons constitutes an

administrative practice in breach of Article 3 (Art. 3) of the

Convention;

- the allegations that internment without trial and detention under the

Civil Authorities (Special Powers) Act (Northern Ireland) 1922 or under

the said Rules, Regulations or Orders made thereunder constitute and

administrative practice in breach of Articles 5 and 6 (Art. 5, 6) of

the Convention in connection with Article 15 (Art. 15);

- the allegation that the exercise by the respondent Government of

their power to detain and intern persons is being carried out with

discrimination on the grounds of political opinion and thus constitutes

a breach of Article 14 (Art. 14) with respect to the rights and

freedoms guaranteed in Articles 5 and 6 (Art. 5, 6) in conjunction with

Article 15 (Art. 15) of the Convention;

- the allegation that the administrative practices complained of also

constitute a breach of Article 1 (Art. 1) of the Convention;

Having regard to Application No. 5451/72

Decides to strike this application off its list of cases.

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X. AND Y. v. THE UNITED KINGDOM

X. AND Y. v. THE UNITED KINGDOM

LEXI