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AS TO THE ADMISSIBILITY OF

Application No. 14632/89

by Sean McGOVERN

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 27 January

1989 by Sean McGOVERN against the United Kingdom and registered on

7 February 1989 under file No. 14632/89;

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, Sean McGovern, is a citizen of the United

Kingdom, born in 1958 and resident in Kinawley, County Fermanagh,

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.

At about 19.07 hrs. on 26 October 1988 Reserve Constable

McCrone and a colleague were ambushed shortly after the two officers

left Kinawley RUC Station. Reserve Constable McCrone was shot dead

and his colleague seriously injured. A vehicle owned by the applicant

who is known to associate with members of the Provisional IRA, a

proscribed terrorist organisation, was seen by three witnesses in the

immediate vicinity of the shooting both before and after the incident.

At 07.00 hrs. on 27 October 1988, whilst his house was being

searched under section 15 of the Northern Ireland (Emergency

Provisions) Act 1978 and after he had been questioned by police

officers about his movements the night before, the applicant was

arrested under section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984. At the time of his arrest he was told that he

was being arrested under section 12 of the 1984 Act as he was

suspected of being involved in terrorism and, in particular, was

suspected of having been involved in the murder of Constable McCrone

at Kinawley on 26 October 1988. He was taken to Armagh Police

Office. On his arrival there he was given a copy of the notice to

persons in police custody. His detention was extended by the

Secretary of State for three days until 07.00 hrs. on 1 November and

then for a further two days until 07.00 hrs. on 3 November. He was

released without charge at 16.15 hrs. on 2 November.

He saw his solicitor on 29 and 31 October 1988.

At the outset of the first interview, which began at 10.35 hrs.

on 27 October 1988, he was told that the police were making enquiries

into the murder of a police officer the night before at Kinawley and

that they believed his car to have been observed shortly after the

shooting. During his detention he was asked about his movements at

the time of the ambush, how his car came to be seen in the vicinity of

the ambush speeding away, with another car, immediately after the

incident, whether he had been forced to allow his car to be used and

whether anyone had used his car at the material time, why a CB radio

and aerial, which showed signs of having been removed from his car

hastily, had been found at his house, and whether he was a member of

the Provisional IRA. For most of the time during the interviews he

remained silent, sitting with his arms folded or with his head in his

hands, sometimes whistling to himself, sometimes looking at the floor,

ceiling or walls and sometimes making chuckling noises. At one stage

he rubbed and poked his right eye continually for about half an hour

until it had reddened (he was asked if he wanted anything for his eye

but made no reply). Sometimes he refused to sit down. On other

occasions he referred to what he had said to the police before his

arrest. On 1 and 2 November he gave the police an account of his

movements on the day of the ambush and denied any involvement in the

murder. He declined to sign any of the interview notes.

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 27 January 1989 and

registered on 7 February 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 applicant's complaint, as it

was originally formulated, does not concern Article 5 para. 3

(Art. 5-3) of the Convention but Article 5 para. 1 (c) (Art. 5-1-c),

under which provision his claim was without substance. As the facts

of the case disclose no breach of the other provisions of Article 5

(Art. 5), no issue could arise under Article 5 para. 5 (Art. 5-5) of

the Convention. The applicant, in reply, relies on 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) in support of his claims

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

from which case he submits that his application is indistinguishable.

The Commission recalls that in the Brogan and Others case the

Commission and the Court found a violation of Article 5 para. 3

(Art. 5-3) of the Convention in respect of the detention of four

applicants under section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984, for periods varying from 4 days 6 hours to 6

days 16 1/2 hours, without being brought before a judicial authority.

In the same case, the Commission and the Court also found a violation

of Article 5 para. 5 (Art. 5-5) of the Convention in that the

applicants had not had a right to compensation in respect of the

violation of Article 5 para. 3 (Art. 5-3) (Eur. Court H.R., judgment

of 29 November 1988, Series A no. 145-B, paras. 55-62 and paras.

66-67).

The Commission notes that the applicant was arrested and

detained for 6 days 9 hours and 15 minutes under the same provisions

as in the Brogan and Others case, without being brought before a judge

or other officer authorised by law to exercise judicial power. The

Commission finds, therefore, that the applicant's complaints under

Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention cannot be

declared manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other ground for declaring

the case inadmissible has been established.

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. 5-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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McGOVERN v. THE UNITED KINGDOM

McGOVERN v. THE UNITED KINGDOM

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