AS TO THE ADMISSIBILITY OF

                      Application No. 17441/90

                      by Anne-Marie O'NEILL

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

4 September 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 A. WEITZEL

                 J.C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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 10 September 1990

by Anne-Marie O'NEILL against the United Kingdom and registered on

19 November 1990 under file No. 17441/90;

      Having regard to:

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

      the Commission;

-     the written observations submitted by the respondent Government

      on 15 October 1991 and the observations in reply submitted by the

      applicant on 31 January 1992;

-     the parties' oral submissions at the hearing on 4 September 1992;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a British citizen born in 1969 and resident in

Belfast.  The applicant is a single parent with custody of her two

children, twin girls, whose date of birth is 13 September 1988.

      She is represented before the Commission by Ms. M. Sheehan, a

Solicitor with Messrs. Nurse & Jones, Solicitors, Belfast.

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

be summarised as follows:

      On 18 June 1990 the applicant took up occupation of the house

where she now lives.  At 07.10 hours on 26 June 1990, two police

officers, accompanied by an army search team, undertook a search of the

applicant's house.  The statutory authority for the search was section

15(2) of the Northern Ireland (Emergency Provisions) Act 1978, and the

search was authorised by a Chief Inspector of the Royal Ulster

Constabulary (RUC).  The Government stated that the search was carried

out because it was suspected that there were munitions unlawfully on

the premises.  The reason it was believed that there were munitions on

the premises was because the RUC had received information from a

reliable source that a prisoner, who had failed to return to Magillagan

Prison after a 48 hour parole and while serving a four year prison

sentence for armed burglary and who was suspected of being involved in

acts of terrorism, was staying at the premises with his estranged wife

and using them to conceal munitions.

      The applicant stated that she was asked if she was Mrs. W (Mr.

and Mrs. W were the previous occupants of the house).  She gave her

name and explained that she was living alone in the house with her baby

daughters who were asleep in their cots upstairs.  The applicant was

asked if there were any men living in the house and she said that there

were not. The applicant was told by the police that they had a warrant

for Mr. W.  She explained that Mr. W no longer lived in the house.

However the police officer who appeared to be in charge told her to

take her children from their cots because they were going to carry out

the search anyway.  The applicant alleged that she was not shown any

warrant and was not given any further reasons for the search.  The

Government denied this, stating that the applicant was shown the

authorisation for the search signed by the Chief Inspector and was told

why the search was taking place.  A police officer accompanied the

applicant upstairs and she took her children from their cots. When she

came downstairs again about ten uniformed soldiers were in the house

and had started the search.  They had a bag of tools with them.

      The applicant stated that she was extremely distressed and

frightened by what was going on.  She asked the police officer who

remained in the house if she could telephone her mother.  The police

officer refused to let the applicant do so.  There was no telephone in

the house and so acceding to this request would have meant permitting

the applicant to leave the premises before the search had been

completed.

      The applicant was not arrested.  Although she was required to

remain on the premises during the search in the exercise of powers

conferred by section 21(2) of the Prevention of Terrorism (Temporary

Provisions) Act 1989, she was informed that she could go anywhere in

the house provided that she did not hinder the progress of the search.

In practice, this meant that she had access at any particular time to

any room in the house other than the one which was being searched.

      The applicant stated that she was refused access to the kitchen

to prepare breakfast for her children until the search of the kitchen

had been completed at approximately 09.30 hours.  According to the

Government this was because the kitchen was the first room to be

searched so as to allow breakfast to be prepared as early as possible.

The search of the kitchen was however completed at 08.40 hours at which

time the applicant was permitted access there.

      The applicant also asserted that her mother and father came to

the house and that her mother wanted to join her but was refused entry

and that a request to allow the applicant's children to leave with the

applicant's mother was refused.  According to the Government, although

a woman, who was never identified by those carrying out the search as

the applicant's mother, called at the house during the search she did

not request to enter and no request was ever made that the applicant's

children be permitted to leave the premises with her.  The Government

stated that, bearing in mind that the applicant's children were under

the age of two years at the time of the search, such a request would,

if it had been made, almost certainly have been granted.

      Each room in the house was searched systematically by the search

party and the applicant alleged that she was confined in a restricted

area within the house depending on where the search party was

operating.  In the kitchen the search party ripped the new floor

covering and drilled holes in the floor.  They also dug up the floor

in the living room.  They bored holes in the walls and in the stairs.

Furniture was damaged and carpets were pulled up.

      The applicant made no complaint during the search and

subsequently signed the police search record to the effect that she had

no complaint to make.

      The search terminated at 10.45 hours on the same day.  The search

therefore lasted a total of three hours and 35 minutes.  Nothing was

taken by the search team.  The extent of the damage caused to the

applicant's property was recorded in a Search Damage Report Form which

the applicant signed.  A civil representative visited the applicant on

27 June 1991, the day after the search, and on 28 June 1991 recommended

that a payment of £414 be made to the applicant by way of compensation

under section 28 of the Northern Ireland (Emergency Provisions) Act

1978 for the damage caused.  The applicant agreed to accept the amount

in question as a full and final settlement of her claim for

compensation for the damage caused and payment was approved by the

Northern Ireland Office on 20 July 1991.

      On 3 June 1991 the applicant instituted civil proceedings against

the Chief Constable of the Royal Ulster Constabulary and the Ministry

of Defence in the Northern Ireland High Court:

      "The plaintiff's claim is for damages including aggravated and

      exemplary damages for personal injuries, mental anxiety and

      distress, physical discomfort and inconvenience, loss and damage

      sustained by reason of the assault, battery, false imprisonment,

      breach of duty, negligence, nuisance, trespass to goods, trespass

      to the person and trespass to land by the defendants, their

      respective servants and agents and each of them in and about the

      conduct, supervision and control of security operations and in

      and about the entry onto and search of the plaintiff's premises."

      A hearing in the case is not expected for several months yet.

The applicant is in receipt of legal aid for these proceedings.

COMPLAINTS

      The applicant alleged that all the five paragraphs of Article 5

of the Convention were violated, as well as Article 8 of the

Convention.

      The applicant stated that Article 5 para. 1 of the Convention was

violated in that she was deprived of her liberty by a de facto arrest,

even though she was not formally told that she was under arrest, and

that she was thereafter detained against her will for a specified

period.  The applicant maintained that none of the justifiable

circumstances set out in Article 5 para. 1 of the Convention applied

in her case.

      The applicant invoked Article 5 para. 2 of the Convention on the

basis that she was not informed either properly, or at all, of the

reasons for her arrest or of any charge against her.

      The applicant further alleged a violation of Article 5 para. 3

of the Convention in that she was not brought promptly, or at all,

before a judge or other officer authorised by law to exercise judicial

power. She also invoked Article 5 para. 4 of the Convention on the

ground that she was denied access to a solicitor and was thereby denied

an opportunity to take proceedings by which the lawfulness of her

detention could be decided speedily by a court.

      She further complained of a breach of Article 5 para. 5 of the

Convention in that she does not have an enforceable right to

compensation because in the domestic law of Northern Ireland the

provisions of section 15 of the Northern Ireland (Emergency Provisions)

Act 1978, as amended by section 21 (2) of the Prevention of Terrorism

(Temporary Provisions) Act 1989, confer powers upon soldiers and police

officers to require persons to remain in, or in a specified part of,

a house which is being searched, or to refrain from entering a

specified part of it and to prevent any person who is not resident in

the house from entering it.

      Finally, the applicant alleged that Article 8 of the Convention

was violated in that the conduct complained of constituted an

unjustified interference with her right to respect for her private and

family life and her home.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 10 September 1990 and

registered on 19 November 1990.

      After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

2 July 1991.  It decided, pursuant to Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit their written

observations on admissibility and merits.  The Government's

observations were submitted on 15 October 1991, to which the applicant

replied on 31 January 1992 after a one month extension of the time

limit fixed for that purpose.  The President of the Commission had

granted the applicant legal aid on 29 October 1991.

      On 18 May 1992 the Commission decided to hold a hearing of the

application on the same day as a similar case of Kelly v. the United

Kingdom, application No. 17711/91.  The hearing was held on 4 September

1992.  The applicant, who attended, was represented by Mr. B.

Macdonald, BL, Counsel, and Ms. M. Sheehan, Solicitor, Messrs. Nurse

and Jones.  The Government were represented by their Agent, Mr. H.

Llewellyn, Mr. N. Bratza, QC, Counsel, Mr. R. Weatherup, Counsel, and

three advisers.

THE LAW

      The applicant complained that various aspects of her right to

liberty and security of person ensured by Article 5 (Art. 5) of the

Convention were violated, as well as her right under Article 8

(Art. 8) of the Convention to respect for private and family life and

her home, when the police and army searched her house on 26 June 1990.

She alleged, inter alia, that keeping her on the premises during the

search with her two daughters, even though there was no formal arrest,

constituted an unjustifiable deprivation of her liberty which did not

fall within any of the categories of lawful detention in Article 5

para. 1 (Art. 5-1) of the Convention.

      The Government refuted the applicant's claims.  They first

submitted that the applicant has not exhausted domestic remedies as is

required by Article 26 (Art. 26) of the Convention.  The treatment of

which the applicant now complains before the domestic courts is the

same of which complaint has been made to the Commission.  Before the

Northern Ireland High Court the applicant contends that, as a matter

of domestic law, her treatment was unlawful, arbitrary, oppressive and

unconstitutional, and she claims aggravated and exemplary damages.  If

the applicant is successful in these claims she will cease to be a

victim for the purposes of the Convention.  Her domestic court claims

cannot be wholly without reasonable prospects of success otherwise she

would not have been granted legal aid.  The substance of the wrong

alleged before the Commission could be remedied by the domestic courts,

if well-founded.  It is therefore irrelevant that the Convention does

not form part of United Kingdom law.

      The applicant contended that there is no domestic remedy capable

of providing redress for her complaints because section 21 of the

Prevention of Terrorism (Temporary Provision) Act 1989 expressly

authorises conduct in breach of the Convention.  The powers of the

domestic courts in a claim for damages are limited to deciding whether

there has been compliance with section 21, not whether there has been

a breach of the Convention, which does not form part of domestic law.

Each year there are hundreds of searches of the kind in question, most

of which prove fruitless, yet the applicant believes that there has not

been a single reported decision in a Northern Ireland court in which

such a search or detention has been found unlawful.  In any event, even

if she herself succeeds in her claim and is awarded damages, this would

still not constitute an effective remedy because the conduct of which

complaint is made is authorised by law and is an administrative

practice (Nos 5577-5583/72, Donnelly and six others v. the United

Kingdom, Dec. 15.12.75, D.R. 4 p. 4).  The applicant noted that the

Government had not raised the question of exhaustion of domestic

remedies until a week before the hearing in the case before the

Commission.  She considered that they could not do so at such a late

stage.  The Government's earlier silence was, in her view, implicit

acceptance that no effective domestic remedy was available to her.

      The Government also contended that, in any event, the applicant

had not been deprived of her liberty within the meaning of Article 5

para. 1 (Art. 5-1) of the Convention, or, if she had, the measures

taken were "in accordance with a procedure prescribed by law" and

constituted "the lawful arrest or detention of a person ... to secure

the fulfilment of an obligation prescribed by law", within the meaning

of Article 5 para. 1 (b) (Art. 5-1-b) the Convention.  That obligation

was created by section 21 of the Prevention of Terrorism (Temporary

Provisions) Act 1989, ie an obligation to assist and not obstruct the

search for munitions.  Furthermore any interference with the

applicant's rights under Article 8 (Art. 8) of the Convention was, in

their view, necessary in a democratic society in the interests of

national security, public safety and the prevention of disorder or

crime, within the meaning of the second paragraph of Article 8

(Art. 8).

      The Commission must first examine whether the applicant has

exhausted domestic remedies in compliance with Article 26 (Art. 26) of

the Convention.

      The Commission notes that while the applicant had indicated in

her application that she intended to bring domestic proceedings for

damages, she did not inform the Commission of the developments in her

case when she went ahead and instituted civil proceedings before the

Northern Ireland High Court against the Chief Constable of the Royal

Ulster Constabulary and the Ministry of Defence.  Moreover these

matters, inexplicably, did not come to the attention of the Government

until shortly before the Commission's hearing in the present case when

their objection under Article 26 (Art. 26) of the Convention was raised

for the first time.  However, Article 26 (Art. 26) of the Convention

precludes the Commission from dealing with any case where domestic

remedies have not been exhausted, and the Government cannot be estopped

from raising such a preliminary objection at any time prior to the

Commission's decision on the admissibility of the case.

      Part of the task of the Convention organs in an examination of

complaints under Articles 5 and 8 (Art. 5, 8) of the Convention is to

determine whether the measures complained of by the applicant were

lawful, or in accordance with the law.  This is a reference principally

to the domestic law.  The Commission notes that in her claim before the

domestic courts the applicant is alleging that the search of her house

on 26 June 1990 and the restrictions on her movements during the search

were unlawful under domestic law (p. 5 above statement of claim).  The

Commission cannot find it established that her claim is devoid of any

prospects of success.  If the applicant's claim were to succeed before

the domestic courts, her Convention complaints would be wholly or

partly vindicated, which would affect her status as a victim under

Article 25 (Art. 25) of the Convention.

      The Commission cannot examine the present case as if section 21

of the Prevention of Terrorism (Temporary Provisions) Act 1989

authorised the treatment while the applicant is complaining about the

same treatment before the domestic courts.  The very purpose of Article

26 (Art. 26) of the Convention is to provide the High Contracting Party

with an opportunity to remedy complaints of a breach of the Convention

in form or in substance, if well-founded.  Accordingly it would be

premature for the Commission to deal with the applicant's case before

the domestic courts have determined her civil claims.

      In the circumstances of the present case the Commission concludes

that the applicant has not yet exhausted the remedies available to her

under the law of Northern Ireland, in accordance with Article 26

(Art. 26) of the Convention.

      It follows that the application must be rejected under Article

27 para. 3 (Art. 27-3) 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)