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AS TO THE ADMISSIBILITY OF

Applications Nos. 14673/89, 14706/89, 14708/89,

14709/89, 14710/89 and 14760/89

by Michael FOX, Michael MULLIN, Kevin MULLIN,

Mark MULLIN, Arthur McNALLY and Peter HUGHES

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 first application introduced on 31 January 1989 by Michael

FOX against the United Kingdom and registered on 20 February 1989

under file No. 14673/89;

- the second, third and fourth applications introduced on

13 February 1989 by Michael MULLIN, Kevin MULLIN and Mark MULLIN

against the United Kingdom and registered on 28 February 1989 under

file Nos. 14706/89, 14708/89 and 14709/89;

- the fifth application introduced on 16 February 1989 by Arthur

McNALLY against the United Kingdom and registered on 28 February 1989

under file No. 14710/89;

- the sixth application introduced on 22 February 1989 by Peter

HUGHES against the United Kingdom and registered on 8 March 1989 under

file No. 14760/89;

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 first applicant, Michael Fox, is a citizen of the United

Kingdom, born in 1955 and resident in Mountfield, County Tyrone,

Northern Ireland.

The second applicant, Michael Mullin, is a citizen of the

United Kingdom, born in 1959 and resident in Killyclougher, County

Tyrone.

The third applicant, Kevin Mullin, is a citizen of the

United Kingdom, born in 1956 and resident in Sixmilecross, County

Tyrone.

The fourth applicant, Mark Mullin, is a citizen of the

United Kingdom, born in 1965 and resident in Sixmilecross, County

Tyrone.

The fifth applicant, Arthur McNally, is a citizen of the

United Kingdom, born in 1953 and resident in Carrickmore, County

Tyrone.

The sixth applicant, Peter Hughes, is a citizen of the

United Kingdom, born in 1955 and resident in Sixmilecross, County

Tyrone.

The applicants are represented before the Commission by

Messrs. J. Christopher Napier & Co., Solicitors, Belfast.

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

may be summarised as follows.

At about 00.30 hrs. on 20 August 1988, as unmarked civilian

buses were travelling along the main road from Ballygawley to Omagh in

County Tyrone, an explosive device of approximately 100 lbs.

(approximately 45 kilos) concealed by the side of the road was

detonated by a command wire which ran for 300 metres to a battery pack

located on a hill overlooking the road. In the explosion, eight

soldiers, travelling in one of the buses from Aldergrove airport,

Belfast, to their base in Omagh, were killed and another 27 in the bus

were injured, some seriously. The Tyrone Brigade of the Provisional

IRA subsequently admitted responsibility for the explosion.

On the basis of the information which became available to the

police after the explosion, the police believed that these six

applicants, who all live in Tyrone close to where the explosion took

place, were all involved in the atrocity. Accordingly, each of them

was arrested under section 12 of the Prevention of Terrorism

(Temporary Provisions) Act 1984.

The first applicant

Michael Fox was arrested at his home at 04.03 hrs. on

24 August 1988. He was told that he was being arrested under section

12 of the 1984 Act as he was suspected of being involved in

terrorism. 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 for three days until 04.03 hrs.

on 29 August and he was released without charge at 18.40 hrs. on

28 August 1988. He was thus detained for 4 days, 14 hours and

37 minutes.

He saw a solicitor on 26 and 28 August 1988.

At his first interview, which began at 09.30 hrs. on

24 August, he was told that the police were enquiring into the bombing

on 20 August of the bus carrying the soldiers and that the police

believed that he could help them with their enquiries. He was asked

to give an account of his movements for the later part of 19 August

and early part of 20 August. He declined to do so or to give any

information about the incident. At subsequent interviews he was asked

about his movements, about the bombing and about his membership of the

Provisional IRA. At first he declined to answer questions; then

later, on 24 August, he said that the person he was with for most of

the time on 19 August was now out of the country on his honeymoon. He

refused to name him or to give any further details other than that he

had attended the wedding on the morning of 20 August at Lifford. The

next day he offered an account of his movements. He stated, inter

alia, that from about 22.00 hrs. on 19 August until about 03.00 hrs.

on 20 August he had been drinking in a pub in Greencastle on his own,

except for a time when he had been drinking with his brother-in-law,

with whom he left the pub at about 02.00 hrs. He returned there and

stayed until 03.00 hrs. when he went home. Later he indicated that

others had been present. He refused throughout to identify any other

person to whom he had spoken, or who had seen him, at the pub. He

later denied involvement in the incident or membership of the

Provisional IRA.

The second applicant

Michael Mullin was arrested at his home at 04.05 hrs. on

24 August 1988. He was told that he was being arrested under section

12 of the 1984 Act as he was suspected of being involved in

terrorism. 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 for three days until 04.05 hrs.

on 29 August and he was released without charge at 18.30 hrs. on

28 August 1988. He was thus detained for 4 days, 14 hours and

25 minutes.

He saw a solicitor on 25 and 27 August 1988.

At his first interview, which began at 09.50 hrs. on

24 August, he was told that the police were enquiring into the bus

atrocity on 20 August. He was asked about the incident and his

membership of the Provisional IRA. At the second interview that

morning, which began at 11.30 hrs., he was told that he was suspected

of being involved in the atrocity and he was asked to account for his

movements. He made no reply but stared at a fixed point. He refused

to answer questions but stared at the floor, wall or ceilings or, on

occasions, turned his back to the police officers conducting the

interview or sat biting his fingernails. However, at an interview on

the evening of 27 August he said that he had an alibi for the time of

the bomb incident but would not give details of it. Thereafter at

subsequent interviews he reverted to being silent in answer to any

questions about his movements at that time, about the bomb or other

terrorist incidents in the area and about his membership of the

Provisional IRA. He declined to sign any interview notes.

The third applicant

Kevin Mullin was arrested at his home at approximately

04.02 hrs. on 24 August 1988. He was told that he was being arrested

under section 12 of the 1984 Act because he was suspected of

involvement in terrorism. 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 for three days until

04.02 hrs. on 29 August 1988 and he was released without charge at

18.30 hrs. on 28 August. He was thus detained for 4 days, 14 hours

and 28 minutes.

He saw a solicitor on 26 and 28 August 1988.

At the outset of his first interview, which began at 09.50

hrs. on the morning of his arrest, he was told that the police were

enquiring into the bomb explosion on 20 August and he was asked to

account for his movements on 19 August. He refused to answer any

questions. At subsequent interviews he was asked about his movements

then and about his involvement in the bomb explosion and about his

membership of the Provisional IRA. He remained silent throughout and

refused to sign the interview notes.

The fourth applicant

Mark Mullin was arrested at his home at 04.07 hrs. on

24 August 1988. On his arrest he was told that he was being arrested

under section 12 of the 1984 Act as he was suspected of involvement in

terrorism. 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 three days until 04.07 hrs. on 29 August

1988 and he was released without charge at 18.35 hrs. on 28 August.

He was thus detained for 4 days, 14 hours and 28 minutes.

He was seen by a solicitor on 26 and 28 August 1988.

At the outset of his first interview, which began at

09.45 hrs. on the morning of his arrest, he was told that the police

were making inquiries into the bombing of the bus and murder of eight

soldiers on 20 August and he was asked what his movements had been on

the evening of 19 August. He was asked about his involvement in the

bombing. He remained silent and sat with his eyes closed. At

subsequent interviews he was further asked about his movements and his

involvement in the bombing. He said nothing but sat with his eyes

closed or staring at the floor, ceiling or interview table. He

declined to sign any interview notes.

The fifth applicant

Arthur McNally (who was convicted in 1976 of conspiracy to

cause explosions, possession of explosives (2 counts) and of firearms

(2 counts)) was arrested at his home at 04.10 hrs. on 24 August 1988.

He was told that he was being arrested under section 12 of the 1984

Act as he was suspected of being involved in terrorism. 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 three days until 04.00 hrs. on 29 August and he was released

without charge at 18.40 hrs. on 28 August 1988. He was thus detained

for 4 days, 14 hours and 30 minutes.

He saw a solicitor on 26 and 28 August 1988.

At the outset of his first interview, which began at

09.44 hrs. on the morning of his arrest, he was told that the police

were making inquiries into the bomb explosion on 20 August and he was

asked to account for his movements on 19 and 20 August. He gave no

reply. This line of questioning was repeated at subsequent interviews

and he was asked about his involvement in the bombing and also about

his association with a certain Michael Harte, his membership of the

Provisional IRA and his participation in Provisional IRA activities.

He remained silent throughout for the most part, staring at the floor

or interview table or otherwise avoiding eye contact with those

interviewing him, though on occasions blushing as matters were put to

him. At one point, on the evening of 27 August, he shook his head as

if to deny involvement in the bombing of the soldiers' bus, but he

made no indication when immediately thereafter he was asked if he

wished to provide an alibi. He declined to sign the interview notes.

The sixth applicant

Peter Hughes was arrested at his home at 04.14 hrs. on

24 August 1988. He was told that he was being arrested under section

12 of the 1984 Act as he was suspected of being involved in terrorism.

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 three days until 04.14 hrs. on 29 August and

he was released without charge at 18.40 hrs. on 28 August 1988. He

was thus detained for 4 days, 14 hours and 26 minutes.

He saw a solicitor on 26 August 1988.

At the outset of his first interview, which began at

09.30 hrs. on the morning of his arrest, he was told that the police

were enquiring into his suspected involvement in the murder of the

eight soldiers in the explosion on 20 August. He was asked to account

for his movements on that day and to tell the police the part he

played in the murders. He made no reply. At later interviews he was

again asked to account for his movements, about the bomb explosion and

about his membership of the Provisional IRA, but he remained silent

and refused to answer any of the questions. On occasions he lay or

sat on the floor, sometimes for the entire duration of the interview,

and refused to sit on a chair. For most of the time during interviews

he sat with his head in his hands, sometimes staring at a radiator,

sometimes with his back to the interviewing police officers. He

declined to sign the interview notes.

COMPLAINTS

The applicants allege that they were detained in breach of

Article 5 para. 3 of the Convention, in that they were not brought

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

enough without charge. They complain that they had no right to

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

Article 5 para. 5 of the Convention.

The applicants 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, they

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

violation in circumstances very similar to their 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 first application was introduced on 31 January 1989 and

registered on 20 February 1989.

The second, third and fourth applications were introduced on

13 February 1989 and registered on 28 February 1989.

The fifth application was introduced on 16 February 1989 and

registered on 28 February 1989.

The sixth application was introduced on 22 February 1989 and

registered on 8 March 1989.

After a preliminary examination of the cases by the

Rapporteur, the Commission considered the admissibility of the

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

parties' written observations on the admissibility and merits of the

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

Procedure (former version). They were joined with 10 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

applicants' representatives submitted observations in reply on

18 October 1989.

On 6 February 1990 the Commission decided to adjourn its

examination of the applications 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 applicants 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 applications. The

applicants' representatives submitted their 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 their various observations the applicants withdrew certain

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

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

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

Campbell and Hartley case was made in circumstances very similar to

their own (see above under COMPLAINTS).

On 26 February 1991 the Commission decided to refer the cases

to the Second Chamber.

THE LAW

1. The applicants complain that their arrest and detention under

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

1984 from 24 to 28 August 1988 failed to observe the requirement of

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

Convention, for which failure they 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 submit that the precise basis for the

applicants' claim under Article 5 para. 3 (Art. 5-3) of the

Convention is unclear and that no issue arises in these cases under

Article 5 para. 5. (Art. 5-5) Accordingly their claims should be

rejected as being manifestly ill-founded. The applicants, in reply,

rely 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 their claims under Article 5 paras. 3 and 5 (Art. 5-3,

5-5) of the Convention.

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).

The Commission notes that the applicants were all detained for

4 days 14 hours and between 25 and 37 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 applicants'

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 cases inadmissible has been established.

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

para. 2 (Art. 5-2) of the Convention, the applicants 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 their 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 their 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 APPLICATIONS ADMISSIBLE

without prejudging the merits of the cases.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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FOX ; MULLIN ; MULLIN ; MULLIN ; McNally ; HUGHES v. THE UNITED KINGDOM

FOX ; MULLIN ; MULLIN ; MULLIN ; McNally ; HUGHES v. THE UNITED KINGDOM

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