Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21624/93

by Patrick O'REILLY

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 September 1992

by Patrick O'Reilly against Ireland and registered on 6 April 1993

under file No. 21624/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen born in 1957 and is currently

serving a sentence of imprisonment at Cork Prison. He is represented

before the Commission by Mr. Noel Forde, a solicitor practising in

East Cork. The facts as submitted by the applicant may be summarised

as follows.

The applicant was arrested and detained by the police for 48

hours under section 30 of the Offences Against the State Act 1939 (the

1939 Act).

The applicant was charged with offences of murder and burglary.

At the beginning of his trial on 2 December 1985 in the Central

Criminal Court, the prosecution elected to proceed on the count of

murder alone and the count of burglary was adjourned.

The only evidence against the applicant was a statement allegedly

made by him while in police custody under section 30. The applicant

challenged the admissibility of the statement and the judge ruled the

statement inadmissible on the basis that the section 30 power applied

only to offences with a subversive element which was not present in the

circumstances of this offence. Since the prosecution agreed that they

had no other evidence, the judge directed the jury to find the

applicant not guilty of murder and he was discharged.

The prosecution appealed to the Supreme Court against the trial

judge's ruling. On 25 February 1986 the Supreme Court reversed the

trial judge's ruling on section 30 statements. The Court found that

section 30 applied to any scheduled offence whether or not motivated

by political or subversive intent. The prosecution's application for

a retrial of the applicant was refused on 29 July 1988 by the Supreme

Court.

The prosecution sought to re-activate the original burglary

charge. This charge came to trial on 31 October 1989. The applicant's

objection to the proceedings was overruled by the trial judge. The

applicant's objection to the admissibility of the section 30 statement

as having been obtained by oppression was also overruled and the

statement admitted in evidence. The applicant was convicted on

16 November 1989 and on 17 November 1989 he was sentenced to 8 years'

imprisonment.

The applicant appealed against conviction and sentence. The

appeal against conviction was heard in the Supreme Court on

11 February 1992. The appeal was dismissed on 14 July 1992.

The Supreme Court held, inter alia, that section 30 of the 1939

Act was not in violation of the Constitution. The Court considered that

protections were available against abuse of power since a person could

obtain release from the High Court under article 40 of the

Constitution. The Court saw no substance in the allegation that the

right to silence, assuming such was included in the rights guaranteed

in the Constitution, was infringed by the section 30 power.

As regarded the applicant's submission that he should not have

been tried due to the effluxion of time, the Chief Justice found that

the reason given ie change of personal circumstances (he had married

and had a child) were not relevant and did not affect his ability to

defend himself. He found no fault on the part of the Director of Public

Prosecutions. As regarded the severance of the two charges in 1985, he

noted that the applicant had not objected at the time. The plea of

autrefois acquit had no bearing since different charges were in issue

in the two sets of proceedings. As regarded the admissibility of the

section 30 statement, he noted that the judge had rejected the

applicant's allegations that it had been made under threat and coercion

and accepted the evidence of the police: this the judge was entitled

to do on his assessment of the credibility of the witnesses. He

considered that there was no requirement to give the jury a warning of

the danger of convicting on a statement alone, though in some cases it

might be desirable to do so. Here the statement relied on was not oral

but was written and signed by the applicant. The jury was not bound in

its assessment by the judge's finding that the statements by the Gardai

were true.

The appeal against sentence was heard by the Supreme Court on

30 July 1992 and rejected on the same date.

COMPLAINTS

The applicant complains of the power of arrest under section 30

of the 1939 Act. He complains of the provision in the Constitution of

Ireland which allows a state of emergency to be declared (which has

been in force from 1939 to 1976 and from 1976 to date) and in

consequence for legislation to be enacted which abrogates human rights

and has the effect of weakening the entire system of criminal justice.

In this context he invokes Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and

15 of the Convention.

The applicant complains of being tried on the count of burglary

notwithstanding his acquittal on the previous murder charge. He

complains of the role of the trial judge in ruling his statement

admissible as regarded voluntariness and the fact that the jury then

only has the role of assessing the truth or otherwise of the contents

of the statement. He complains of the absence of any requirement that

the judge give a warning to the jury of the dangers of convicting a

person on the sole basis of a statement made by an accused who has been

detained under section 30 and subject to periods of prolonged

interrogation.

The applicant complains about the prosecution appeal against his

acquittal on a charge of murder which he submits is in violation of

Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the Convention.

THE LAW

1. The applicant complains of the power under section 30 of the

Offences Against the State Act 1939 to hold a person for 48 hours

before being brought before a court. He complains also of the provision

in the Constitution which has allowed a state of emergency to be

imposed and that this is in abrogation of human rights and weakens the

system of criminal justice. He has invoked Articles 3, 5, 6, 7, 8, 9,

10, 13, 14 and 15 (Art. 3, 5, 6, 7, 8, 9, 10, 13, 14, 15) of the

Convention in this respect.

The Commission recalls that Article 5 para. 3 (Art. 5-3) of the

Convention provides as relevant:

"Everyone arrested or detained in accordance with the provisions

of paragraph 1 (c) (Art. 5-1-c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial..."

The requirement of promptness is an essential procedural

guarantee against arbitrary interferences by the State with the right

to liberty. It is to be assessed in each case according to its special

features (eg. Eur. Court H.R. de Jong, Baljet and van den Brink

judgment of 22 May 1984, Series A no. 77, p. 25, para. 52).

The Court has held in the context of prevention of terrorist

measures that a period of more than 4 days exceeds the requirement of

promptness (Eur. Court H.R., Brogan judgment of 29 November 1988,

Series A no. 145B). The Commission has found in general that in normal

criminal proceedings a delay of up to 4 days is acceptable (see Brogan

case, loc. cit. Comm. Rep. 14.5.87).

In the present case, it appears that the applicant was held for

a maximum of 48 hours before being brought before a court. The

Commission finds that this is reconcilable with the requirement of

"promptly" in Article 5 para. 3 (Art. 5-3).

As regards the complaint about the provision of the Constitution

permitting the state of emergency, the Commission cannot examine

domestic legislative or constitutional provisions in abstracto. The

applicant has not indicated in what way he has thereby been rendered

a victim of any violation of the provisions of the Convention

Consequently, the Commission finds no appearance of a violation

of any other provisions of the Convention in respect of these

complaints. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains of the prosecution appeal against his

acquittal for murder. He also complains about his trial on the burglary

charge, in particular, that the judge ruled the statement made while

the applicant was detained under section 30 admissible which left only

the issue of credibility to the jury and that he failed to warn the

jury about convicting solely on a contested confession.

He invokes Articles 3, 5, 6, 7, 8, 9, 10, 13, 14 and 15

(Art. 3, 5, 6, 7, 8, 9, 10, 13, 14, 15) of the Convention.

Insofar as the applicant complains of the prosecution appeal, the

Commission notes that the possibility of appeal by the prosecution from

a first instance decision is a common feature of the criminal justice

systems of the Contracting Parties. The Commission finds that this

possibility is not in general incompatible with the requirements of the

Convention. Even assuming that issues might arise in a particular case,

the Commission notes that in the event the prosecution did not in fact

succeed in obtaining a retrial of the charge on which the applicant had

been acquitted.

As regards the complaints about the proceedings for the burglary

charge, the Commission recalls that in accordance with Article 19

(Art. 19) of the Convention its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of fact or law have been committed by domestic courts,

except where such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (see eg. No.

7987/77, Dec. 13.12.79, D.R. 18 p. 31).

The Commission recalls that in the present case the applicant's

complaints were considered before the Supreme Court which rejected

them. The Commission finds no indication on the facts of the case that

the proceedings at first instance or appeal failed to comply with the

standards of fairness of Article 6 para. 1 (Art. 6-1) of the Convention

or that the matters raised by him disclose any appearance of a

violation of the other provisions of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant has also complained that the charge of burglary was

proceeded with despite his earlier acquittal on the murder charge. In

this regard, the Commission notes that the applicant was charged with

both murder and burglary in 1985 and that the proceedings concerning

the burglary charge, re-activated in or about 1989, did not conclude

until 14 July 1992.

The Commission finds that this raises issues of fact and law

under the Convention with regard to the length of the proceedings. It

considers however that it cannot, on the basis of the file, determine

the admissibility of this aspect and considers that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Commission's

Rules of Procedure, to give notice of it to the respondent Government.

For these reasons, the Commission, unanimously

DECIDES TO ADJOURN the examination of the issue as to the length

of the proceedings brought against the applicant;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M. F. BUQUICCHIO) (A. WEITZEL)

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O'REILLY v. IRELAND

O'REILLY v. IRELAND

LEXI