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AS TO THE ADMISSIBILITY OF

Application No. 14705/89

by William McFADDEN

against the United Kingdom

The European Commission of Human Rights sitting in private on

11 October 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 February 1989

by William McFADDEN against the United Kingdom and registered on

28 February 1989 under file No. 14705/89 ;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the Commission's decision of 4 September 1989 to adjourn the

case pending the outcome of Applications Nos. 14553/89 and

14554/89, Brannigan and McBride v. the United Kingdom;

- the judgment of the European Court of Human Rights in those

applications on 26 May 1993;

- information provided by the applicant's representatives on

4 August 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1959.

He is an unemployed fitter and, at the time of lodging his application,

resided in Londonderry, Northern Ireland. He is represented in the

proceedings before the Commission by Messrs. J. C. Napier and Co.,

solicitors, now incorporated in the firm of Ms. P. Drinan, solicitor,

Belfast.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The applicant has previously brought an application to the

Commission concerning his arrest and detention under Section 12 of the

Prevention of Terrorism (Temporary Provisions) Act 1984, which resulted

in a judgment of the European Court of Human Rights finding, inter

alia, that he was not brought promptly before a court as required by

Article 5 para. 3 of the Convention (Eur. Court H.R., Brogan and Others

judgment of 29 November 1985, Series A no. 145-B).

The applicant states that while his case was pending he was

regularly stopped by the police and questioned for brief periods under

Section 12 of the 1984 Act.

He claims that, since the judgment of the Court in his case, he

has been in genuine fear of further arrest and detention without any

prospect of being brought promptly before a court or other judicial

authority. He states that he can be lawfully arrested any time in the

future under Section 12, either on the basis of the original suspicion

which existed in his previous case, or on some other new suspicion,

without having committed any criminal offence in the United Kingdom.

On 23 December 1988 the United Kingdom informed the Secretary

General of the Council of Europe that they derogated from the

requirements of Article 5 of the Convention in respect of Section 12

of the 1984 Act.

COMPLAINTS

The applicant makes the following complaints:

(1) that the United Kingdom has failed to secure his right to

be brought promptly before a court as required by Article

5 para. 3 of the Convention;

(2) that he may again be deprived of his liberty without being

brought promptly before a judge;

(3) that if he is arrested and detained he will be prevented

from bringing proceedings to determine the lawfulness of

his detention in breach of Article 5 para. 4 of the

Convention;

(4) that if arrested and detained he will be denied an

enforceable right to compensation in breach of Article 5

para. 5 and Article 13 of the Convention;

(5) that he is denied the quiet enjoyment of his liberty and

security of person by the existence of the above

legislation and the United Kingdom's derogation.

The applicant states that he is a victim within the meaning of

Article 25 para. 1 of the Convention notwithstanding the fact that he

has not been arrested and detained, since his liberty and security of

person are infringed by the failure of the United Kingdom to implement

the judgment of the European Court of Human Rights in his first case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 February 1989 and registered

on 28 February 1989. The Commission decided on 4 September 1989 to

adjourn its examination of the case pending the outcome of two similar

applications challenging the United Kingdom's derogation of 23 December

1988: Applications Nos. 14553/89 and 14554/89, Brannigan and McBride

v. the United Kingdom (Comm. Report 3.12.91), which were subsequently

referred to the European Court of Human Rights.

The Court gave its judgment in the Brannigan and McBride cases

on 26 May 1993 (to be published in Series A no. 258-B). The applicant

was asked whether he wished to maintain his case before the Commission

and, if so, to submit comments on how his case could be distinguished

from those of Brannigan and McBride. On 4 August 1993 the applicant's

representatives replied that the application was maintained for the

time being while they tried to find facts which might distinguish their

client's case from those of Brannigan and McBride. Nothing further has

been heard from the applicant or his representatives.

THE LAW

1. The applicant complains that, following the judgment of the

European Court of Human Rights in his case (Eur. Court H.R., Brogan and

Others judgment of 29 November 1988, Series A no. 145-B), the United

Kingdom has lodged a derogation under Article 15 (Art. 15) of the

Convention and has failed to repeal Section 12 of the Prevention of

Terrorism (Temporary Provisions) Act 1984. He claims that, in

consequence, he may be arrested and detained at any time in breach of

his right to liberty and security of person, guaranteed by Article 5

para. 1 (Art. 5-1) of the Convention. He further complains of a breach

of Article 5 paras. 3, 4 and 5 and Article 13 (Art. 5-3, 5-4, 5-5, 13)

of the Convention.

The relevant parts of Article 5 (Art. 5) read as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law: ...

(c) the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent

legal authority on reasonable suspicion of having

committed an offence...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1(c) of this Article shall be

brought promptly before a judge...

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful.

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have

an enforceable right to compensation."

Article 13 (Art. 13) of the Convention guarantees a right to an

effective domestic remedy for breaches of Convention rights and

freedoms.

2. The Commission recalls that in the applicant's first case the

European Court of Human Rights held that the applicant's arrest and

detention on a previous occasion under Section 12 of the Prevention of

Terrorism (Temporary Provisions) Act 1984 had complied with Article 5

para. 1 (Art. 5-1) of the Convention. The Court considered that his

arrest and detention had been based on reasonable suspicion of him

having committed an offence and had been effected for the purpose of

bringing him before a judge should that suspicion have been confirmed

and criminal charges brought (aforementioned Brogan and Others

judgment, pp. 28-30, paras. 49-54). The Commission finds no reason to

speculate whether any future detention of the applicant under Section

12 of the 1984 Act (now Section 14 of the Prevention of Terrorism

(Temporary Provisions) Act 1989) would infringe the applicant's rights

under Article 5 para. 1 (Art. 5-1) of the Convention. Suffice it to

say that there is no appearance, at the present time, of the

applicant's rights under that provision having been infringed.

3. The Commission notes that, in respect of detention since December

1988 under Section 12 of the 1984 Act, the European Court of Human

Rights has held that the derogation lodged by the United Kingdom

satisfies the requirements of Article 15 (Art. 15) of the Convention

and that, therefore, an individual detained under Section 12 cannot

validly complain of a violation of Article 5 para. 3 (Art. 5-3). The

Court considered that it follows from this conclusion that there is no

obligation under Article 5 para. 5 (Art. 5-5) of the Convention to

provide the detainee with an enforceable right to compensation. The

Court also held that such persons have an adequate remedy at their

disposal to test the lawfulness of their detention, for the purposes

of both Article 5 para. 4 and Article 13 (Art. 5-4, 13) of the

Convention, in the form of an application for habeas corpus (Eur. Court

H.R., Brannigan and McBride judgment of 26 May 1993, paras. 74 and 76,

to be published in Series A no. 258-B).

The Commission finds no elements in the present case which could

distinguish it from the aforementioned Brannigan and McBride

applications. The Commission concludes, therefore, that, in view of

the valid derogation made by the United Kingdom Government on 23

December 1988, the applicant cannot complain of a violation of Article

5 para. 3 (Art. 5-3) of the Convention. Consequently, there was no

obligation under Article 5 para. 5 (Art. 5-5) to provide the applicant

in this respect with an enforceable right to compensation. Moreover,

the applicant had a remedy in the form of a habeas corpus application

to secure his rights under either Article 5 para. 4 (Art. 5-4) of the

Convention in particular, or Article 13 (Art. 13) in general.

4. It follows that the application discloses no appearance of a

violation of either Articles 5 or 13 (Art. 5, 13) of the Convention and

that it must be rejected as being manifestly ill-founded within the

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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McFADDEN v. THE UNITED KINGDOM

McFADDEN v. THE UNITED KINGDOM