Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19748/92

by Peter O'NEILL

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 January 1992

by Peter O'NEILL against the United Kingdom and registered on 23 March

1992 under file No. 19748/92;

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 Northern Ireland in

1958. He is a labourer by profession and by November 1990 he had

settled in London. He now lives in Armagh, Northern Ireland, where he

was brought up. He is represented before the Commission by Messrs.

Bindman & Partners, Solicitors, London.

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

which may be deduced from documents lodged with the application, may

be summarised as follows:

On 11 November 1990 the applicant was arrested in London under

the Prevention of Terrorism (Temporary Provisions) Act 1989 (the PTA).

The applicant was taken to a London police station where he was

detained for nine days until 19 November 1990.

The PTA lays down procedures for, inter alia, the review of the

detention of persons who have been arrested and detained in pursuance

of the Act. It establishes that a person should not be detained for

more than 48 hours in the first instance. It also establishes that

within those first 48 hours the person's continuing detention can only

be justified if certain conditions are met. "Review officers"

ascertain at least every 12 hours whether those conditions continue to

be met. The first 41 hours of the applicant's detention were

authorised in accordance with these procedures.

The PTA lays down that a person can only be detained after

48 hours if an application has been made to the Secretary of State for

an extension of his detention. On such an application, the Secretary

of State can authorise the continued detention of the applicant for a

further 5 days. In the applicant's case, such an application was made

and granted on 12 November 1990. Thereafter, until 17 November, the

conditions for the applicant's continued detention ceased to be

reviewed.

The PTA provides that, where the Secretary of State is satisfied

that any person has been concerned in acts of terrorism, he may make

an "exclusion order" against that person prohibiting him from being in

Great Britain. On 17 November 1990 the Secretary of State made such

an order against the applicant. The Act also provides that where an

exclusion order has been made against a person, the Secretary of State

may give directions for his removal from Great Britain. That person

cannot be removed until certain procedures, prescribed by the PTA, have

been observed. The Act authorises the person's continued detention

pending the giving and execution of the removal directions. The

Secretary of State's order in respect of the applicant, dated

17 November 1990, also ordered the applicant's continued detention in

accordance with these provisions.

On 19 November 1990 the exclusion order was served on the

applicant and the removal directions were given and executed. On the

same day the applicant was taken to Northern Ireland where he was

released.

The PTA also contains procedures whereby a person subject to an

exclusion order can apply to the Secretary of State for a review of the

order. On 30 November 1990 the applicant applied for such a review.

At the same time, the applicant requested full details of the evidence

upon which the police and Secretary of State justified the applicant's

arrest, detention and exclusion. On 28 December 1990 the Secretary of

State stated that it was not the practice to give reasons for an

exclusion order. On 31 July 1991 the Secretary of State wrote to the

applicant informing him that the review had been completed and that he

had decided not to revoke the exclusion order. The applicant was

excluded from re-entering Great Britain for three years as of

19 November 1990 unless the order is revoked earlier.

On 23 July 1991 the applicant's solicitors persisted in their

request for information about the evidence upon which the exclusion

decision was based. The request was again refused on 31 July 1991,

whereupon the applicant applied for judicial review of the exclusion

order and the refusal to revoke it. One of the grounds of the

application was that the Secretary of State had refused to inform the

applicant of the grounds of the exclusion order. (The applicant was

aware, however, that the domestic courts had already established that

the Secretary of State was not obliged to provide reasons in such

national security matters : R v. the Secretary of State for Home

Affairs, ex parte Stitt .)

Leave to apply for judicial review was refused on 13 February 1992.

COMPLAINTS

Whilst accepting that at all times he was detained in accordance

with a procedure prescribed by law, the applicant complains that his

detention from his arrest until an application was first made to the

Secretary of State for an exclusion order constituted a violation of

his right to be brought promptly before a judge under Article 5 para. 3

of the Convention. He contends that his detention thereafter until he

was released in Northern Ireland constituted a violation of his right

to liberty and security of person under Article 5 para. 1. He submits

that the Secretary of State's refusal to disclose any of the evidence

purportedly justifying his arrest, detention and exclusion deprived him

of an enforceable right to compensation for the alleged violation of

Article 5 paras. 1 and 3, in breach of Article 5 para. 5 of the

Convention.

THE LAW

The applicant complains that his detention from 11 to 19 November

1990 was in breach of Article 5 paras. 1 and 3 (Art. 5-1, 5-3) of the

Convention, for which he had no enforceable right to compensation in

a civil action for false imprisonment, given the fact that he was

unable to obtain evidence of the reasons for his arrest. In this

latter respect he invokes Article 5 para. 5 (Art. 5-5) of the

Convention.

The relevant parts of Article 5 (Art. 5) of the Convention

provide 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:

...

b. the lawful arrest or detention of a person ... in

order to secure the fulfilment of any obligation 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 or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so; ...

3. Everyone arrested or detained in accordance with the

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

promptly before a judge ...

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."

However, the Commission is not required to decide whether or not

the facts described by the applicant disclose any appearance of a

violation of the above provisions as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case the final decision, within the meaning of

Article 26 (Art. 26) of the Convention, was the applicant's release

from detention on 19 November 1990. The subsequent domestic decisions

cannot be taken into account for the following reasons: The applicant

concedes that his detention was in accordance with a procedure

prescribed by law, in which case he would have had no prospects of

success in any civil proceedings for false imprisonment. This is

reflected in the fact that he never instituted such proceedings.

Instead he endeavoured to have the exclusion order against him revoked,

but these proceedings had no bearing on the question of the lawfulness

of his detention and could not provide him with compensatory damages.

They are therefore irrelevant for the purposes of the applicant's claim

under Article 5 (Art. 5) of the Convention.

The applicant did not lodge his application with the Commission

until 30 January 1992, more than six months after his release on 19

November 1990. An examination of this case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of the six months period laid down in Article 26

(Art. 26) of the Convention.

It follows that the application has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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O'NEILL v. THE UNITED KINGDOM

O'NEILL v. THE UNITED KINGDOM

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