Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14633/89

by Mary 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 Mary McGOVERN against the United Kingdom and registered on

7 February 1989 under file No. 14633/89;

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, Mary McGovern, is a citizen of Ireland, born in

1958 and resident in Kinawley, County Fermanagh, Northern Ireland.

She 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's husband, Sean McGovern, 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.

On 27 October 1988 the applicant's husband was arrested by the

police whilst the couple's house was being searched. He was arrested

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

Act 1984 as he was suspected of being involved in terrorism and, in

particular, he was suspected of having been involved in the murder of

Constable McCrone. For the same reasons the applicant, who is known

to associate with members of the Provisional IRA, was arrested at her

place of work at 12.05 hrs. on 1 November 1988. She had travelled in

her husband's car to, and returned separately from, the Republic of

Ireland later on the evening of the murder, crossing the border in the

course of both journeys at points near to where the ambush had

occurred. At the time of her arrest she was told that she was being

arrested under section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984 as she was suspected of being involved in

terrorism and, in particular, was suspected of involvement in the

murder of Reserve Constable McCrone at Kinawley on 26 October 1988.

She was taken to Armagh Police Office. On her arrival there she was

given a copy of the notice to persons in police custody. She was

released without charge at 16.00 hrs. on 2 November 1988.

While detained she had asked to see a solicitor. Access to

the solicitor was delayed for twenty-four hours under section 15 of

the Northern Ireland (Emergency Provisions) Act 1987 (by which time

she had been released).

At the outset of the first interview with her, which began at

15.05 hrs. on 1 November 1988, she was told that the police were

investigating the murder of the policeman on 26 October at Kinawley.

During her detention she was asked about her movements at that time

and her involvement in the murder. She refused to answer questions on

1 November but, on 2 November, gave an account of her movements. She

declined to sign any of the interview notes.

COMPLAINTS

The applicant complains that she was the victim of a breach of

Article 5 para. 1 (c) of the Convention as her arrest and detention

were not for the purposes of bringing her before a competent legal

authority on reasonable suspicion of having committed an offence, but

for the purposes of ascertaining more about her movements after the

terrorist crime in question. She also complains that her detention

was in breach of the promptness requirement of Article 5 para. 3 of

the Convention and that she had no right to compensation for these

alleged breaches of Article 5 paras. 1 (c) and 3, contrary 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, she

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

violation in circumstances very similar to her 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 her various observations the applicant withdrew certain

original complaints she had made under Article 5 para. 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 her 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 first contends that her arrest and detention

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

Act 1984 was in breach of Article 5 para. 1 (Art. 5-1) of the

Convention, in particular Article 5 para. 1 (c) 5-1-c). She concedes

that there was a reasonable suspicion against her which entitled the

Government to make the arrest, but contends that from the facts,

agreed by the Government, it is clear that the purpose of her ensuing

detention was not to bring her before a competent legal authority, but

to obtain further information about her movements after the terrorist

crime in question. She claims that this rendered her detention

unlawful for the purposes of the Convention. The Government rely on

the judgment of the Court in the Brogan and Others case in support of

their contention that the applicant was lawfully detained under

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

The relevant part of Article 5 para. 1 (Art. 5-1) of the

Convention reads as follows:

"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 ..."

The Commission notes that there is no dispute that the

applicant's arrest and detention were "lawful" under Northern Ireland

law and, in particular, "in accordance with a procedure prescribed by

law". Nor does the applicant dispute that there was reason to suspect

her of a criminal offence at the time of her arrest. She only

contests the purpose of the arrest, which allegedly was not in order

to bring her before a competent legal authority.

The Commission refers to the Court's judgment in the case of

Brogan and Others in which it observed that the fact that applicants

are not charged or brought before a court does not necessarily mean

that the purpose of the detention was not in accordance with Article 5

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

"... the existence of such a purpose must be considered

independently of its achievement and sub-paragraph (c) of

Article 5 para. 1 (Art. 5-1) does not presuppose that the police

should have obtained sufficient evidence to bring charges,

either at the point of arrest or while the applicants are

in custody.

Such evidence may have been unobtainable or, in view of the

nature of the suspected offences, impossible to produce in

court without endangering the lives of others."

(Eur. Court H.R., judgment of 29 November 1988, Series A

No. 145-B pp. 29-30 para. 53)

The Commission finds that in the present case, as in the

Brogan and Others case, there is no reason to believe that the police

investigation regarding the applicant was not in good faith or that

her detention was not intended to further that investigation by way of

confirming or dispelling their concrete suspicions about her

involvement in a criminal offence, which had grounded her arrest. Had

it been possible, the police would presumably have laid charges and

the applicant would have been brought before the competent legal

authority. The Commission concludes, therefore, that her arrest and

detention were for the purpose specified in Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention. It follows that this aspect of the

case is manifestly ill-founded within the meaning of Article 27

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

2. The applicant next complains that her arrest and detention

from 1 to 2 November 1988 failed to observe the requirement of

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

Convention, for which failure she 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 her claim is without substance. Moreover, given

the fact that she was released after 1 day 3 hours and 55 minutes

detention, the requirement to bring her before a judge did not arise.

Referring to the aforementioned judgment of the Court in the case of

Brogan and Others and the Commission's established case-law cited at

para. 57 of that judgment, they submit that the applicant's release in

less than two days after her arrest was compatible with the

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

the facts of this case disclose no breach of Article 5 (Art. 5) of the

Convention, 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 her detention or shown how

long it might reasonably have taken to dispel the suspicions they held

against her when she was arrested. She considers that the facts of

her case are sufficiently distinguishable from that of Brogan and

Others to warrant the finding of a breach of Article 5 paras. 3 and 5

(Art. 5-3, 5-5) even after such a short period of detention.

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. 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 Article 5 para. 5

(Art. 5-5) of the Convention that she 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 her 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.

3. 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 her 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 her 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 INADMISSIBLE.

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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