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AS TO THE ADMISSIBILITY OF

Application No. 14707/89

by Malachy MULLIN

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 13 February

1989 by Malachy MULLIN against the United Kingdom and registered on

28 February 1989 under file No. 14707/89;

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, Malachy Mullin, is a citizen of the United

Kingdom, born in 1970 and resident in Sixmilecross, County Tyrone,

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 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 the applicant,

who lived in Tyrone close to where the explosion took place, was

involved in the atrocity. Accordingly, he was arrested under section

12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 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

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. He was released at 18.30 hrs. on 25 August 1988.

He asked to see a solicitor but access to a solicitor was

delayed under section 15 of the Northern Ireland (Emergency

Provisions) Act 1987 and he was released before the authorised periods

of delay had expired.

At the outset of the first interview, which began at

09.50 hrs. on 24 August, he was told that the police were making

inquiries into the bomb explosion on 20 August and that he was

believed to be involved in the explosion. He was asked where he was

on the evening of 19 August and about his membership of the

Provisional IRA. He remained silent. At a later interview he gave an

account of his movements for the evening of 19 August and during

20 August, which he repeated at subsequent interviews. These accounts

included accounts of the movements, at some points during the period

in question, of his brothers. He declined to sign 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 13 February 1989 and

registered on 28 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 24 to 25 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 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 1 day 14

hours and 20 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 2 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 shown 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. 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 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. 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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MULLIN v. THE UNITED KINGDOM

MULLIN v. THE UNITED KINGDOM

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