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AS TO THE ADMISSIBILITY OF

Application No. 14552/89

by John McSHANE

against the United Kingdom

The European Commission of Human Rights (Second Chamber)

sitting in private on 5 March 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

MM. J.-C. GEUS

M.P. PELLONPÄÄ

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 16 December

1988 by John McSHANE against the United Kingdom and registered on

30 January 1989 under file No. 14552/89;

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, John McShane, is a citizen of the United

Kingdom, born in 1966 and resident in Belfast, Northern Ireland. He

is represented before the Commission by Messrs. J. Christopher Napier

& Co., Solicitors, Belfast.

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

may be summarised as follows.

On 2 August 1988 gunmen murdered Lance Corporal Butler, a

member of the Ulster Defence Regiment, whilst he was off duty and

present at a shopping centre in West Belfast with his wife and two

children.

On the basis of information which had been received, the

applicant was reasonably suspected to have been concerned in the

murder of Lance Corporal Butler. He is also believed to have close

connections with the Provisional IRA, a proscribed terrorist

organisation. At 06.00 hrs. on 14 September 1988 he was arrested at

his home under section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984. He was told in the presence of his parents that

he was being arrested under this section as he was suspected of being

involved in terrorism.

He was taken to Castlereagh Police Office where he was given,

on his arrival, a copy of the notice to persons in police custody.

His detention was extended by the Secretary of State for two days

until 06.00 hrs. on 18 September 1988. He was released without charge

at 17.05 hrs. on 17 September 1988.

At first during the course of his detention the applicant

indicated that he did not wish to see a solicitor. On the afternoon

of 16 September he asked to consult a solicitor and later that

afternoon he saw a solicitor.

At the outset of the first interview, which began at 11.00

hrs. on 14 September 1988, the applicant was made aware that the

police were enquiring into the murder of Lance Corporal Butler and

that he was believed to have been involved in the murder. During the

various interviews with him he was asked about the murder of Lance

Corporal Butler and to account for his movements on 2 August 1988.

During the interviews he was also asked if he knew certain persons

connected with the IRA or was himself a member of the IRA. He denied

involvement in the murder, whether as a lookout or as a gunman, and of

knowing anything about the murder. He also denied membership of the

IRA. He gave differing accounts of his movements on the day of the

murder. He declined to sign the notes made of the interviews.

COMPLAINTS

The applicant alleges that he was detained in breach of

Article 5 para. 3 of the Convention, in that he was not brought

promptly before a judge in order to be charged, or released promptly

without charge. He complains that he had no right to compensation for

this alleged breach of Article 5 para. 3, pursuant to Article 5

para. 5 of the Convention.

The applicant originally complained of a violation of Article

5 para. 2 of the Convention. After the European Court of Human Rights

had given its judgment in the Fox, Campbell and Hartley case, he

conceded that in that case the Court had made a finding of no

violation in circumstances very similar to his own in relation to

Article 5 para. 2 (cf. Eur. Court H.R., Fox, Campbell and Hartley

judgment of 30 August 1990, Series A no. 182, paras. 37-43).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 December 1988 and

registered on 30 January 1989. After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application on 6 May 1989. The Commission decided to request the

parties' written observations on the admissibility and merits of the

application, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure

(former version). It was joined with 15 other applications of a

similar kind.

The Government lodged their observations on 21 September 1989

after an extension of the time-limit fixed for their submission. The

applicant's representatives submitted observations in reply on

18 October 1989.

On 6 February 1990 the Commission decided to adjourn its

examination of the application pending the judgment of the Court in

the case of Fox, Campbell and Hartley v. the United Kingdom, in view

of an original complaint made by the applicant under Article 5

para. 2 of the Convention. The Court delivered its judgment in this

case on 30 August 1990.

On 7 September 1990 the Commission decided to invite the

parties to submit any comments they might have on the significance of

this judgment for the admissibility of the application. The

applicant's representatives submitted comments on 5 October 1990. The

Government lodged their comments on 23 November 1990 after an

extension of the time limit fixed for their submission.

In his various observations the applicant withdrew certain

original complaints he had made under Article 5 paras. 1 (c) and 4

and Article 13 of the Convention. As regards Article 5 para. 2, the

applicant conceded that the European Court's finding in the Fox,

Campbell and Hartley case was made in circumstances very similar to

his own (see above under COMPLAINTS).

On 26 February 1991 the Commission decided to refer the case

to the Second Chamber.

THE LAW

1. The applicant complains that his arrest and detention under

section 12 of the Prevention of Terrorism (Temporary Provisions) Act

1984 from 14 to 17 September 1988 failed to observe the requirement of

promptness laid down in Article 5 para. 3 (Art. 5-3) of the

Convention, for which failure he had no enforceable right to

compensation, contrary to Article 5 para. 5 (Art. 5-5) of the

Convention.

Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention

provides as follows:

"3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article (Art. 5-1-c)

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. Release may be conditioned by guarantees to

appear for trial."

"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."

The Government contend that the precise basis of the

applicant's complaint under Article 5 para. 3 (Art. 5-3) of the

Convention is unclear. As the applicant was released after 3 days 11

hours and 5 minutes detention the requirement to bring him before a

judge did not arise. Referring to the judgment of the Court in the

case of Brogan and Others (Eur. Court H.R., judgment of 29 November

1988, Series A no. 145-B) and the Commission's established case-law

cited at para. 57 of that judgment, they submit that the applicant's

release within 4 days of his arrest was compatible with the

requirements of Article 5 para. 3 (Art. 5-3) of the Convention. As

the facts of the case disclose no breach of this provision, the

provisions of Article 5 para. 5 (Art. 5-5) have no application. In

reply, the applicant submits that the Government have made no attempt

to justify the length of his detention or show how long it might

reasonably have taken to dispel the suspicions they held against him

when he was arrested. He considers that his case is indistinguishable

from the Brogan and Others judgment as regards the breaches found by

the Court in that case of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of

the Convention.

According to the constant case-law of the Commission, the

requirement of promptness in Article 5 para. 3 (Art. 5-3) of the

Convention means that arrested persons must be brought before a judge,

or other officer authorised by law to exercise judicial power, without

undue delay, the guarantees of Article 5 para. 3 (Art. 5-3), together

with Article 5 para. 1 (c) (Art. 5-1-c), providing essential

safeguards against arbitrary deprivation of liberty and prolonged

police or administrative detention (No. 2894/66, Dec. 6.10.66,

Yearbook 9 p. 564, Nos. 11209/84, 11234/84, 11266/84 and 11386/85,

Brogan, Coyle, McFadden and Tracey v. the United Kingdom, Comm.

Report 14.5.87, paras. 101-108).

The question whether or not the requirement of promptness in

Article 5 para. 3 (Art. 5-3) has been satisfied must be assessed in

each case according to its special features, the maximum time limit

for such detention, even in the most exceptional circumstances, being

no more than four days. The Commission has taken into account certain

special features in the present case. It has borne in mind the case's

background, involving the legitimate struggle against terrorism in

Northern Ireland which may require a particular measure of sacrifice

by each citizen in order to protect the community as a whole against

terrorist crimes (cf. aforementioned Commission Report in the Brogan

and Others case para. 106). The Commission has also taken account of

the factual context in which the applicant was arrested and the

Government's statement, uncontested by the applicant's

representatives, that he gave differing accounts of his movements on

the day of the terrorist crime which was being investigated. This may

reasonably have required the prolongation of the applicant's detention

to clarify matters. In the light of these considerations and the

particular facts of the present case, the Commission concludes that

the period of detention experienced by the applicant does not disclose

any appearance of a breach of Article 5 para. 3 (Art. 5-3) of the

Convention. Accordingly this part of the application is manifestly

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

the Convention.

Regarding the applicant's complaint under the Convention that

he had no enforceable right to compensation in domestic law for the

alleged breach of Article 5 para. 3 (Art. 5-3) of the Convention, as

the Commission has concluded that this latter allegation is manifestly

ill-founded, the applicant is not entitled to such compensation.

Accordingly his complaint under Article 5 para. 5 (Art. 5-5) of the

Convention must also be rejected as being manifestly ill-founded

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

Convention.

2. After having first complained of a violation of Article 5

para. 2 (Art. 5-2) of the Convention, the applicant subsequently

conceded that in the Fox, Campbell and Hartley case the European Court

of Human Rights had made a finding of no violation of that provision

in circumstances very similar to his own (cf. Eur. Court H.R., Fox,

Campbell and Hartley judgment of 30 August 1990, Series A no. 182,

paras. 37-43). The Commission interprets this statement as a

withdrawal of his complaint in this regard and therefore makes no

finding in respect of Article 5 para. 2 (Art. 27-2).

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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McSHANE v. THE UNITED KINGDOM

McSHANE v. THE UNITED KINGDOM

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