Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14765/89

by Patrick O'HAGAN

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 February

1989 by Patrick O'HAGAN against the United Kingdom and registered on

10 March 1989 under file No. 14765/89;

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, Patrick O'Hagan, is a citizen of the United

Kingdom, born in 1952 and resident in Omagh, 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 06.14 hrs. on 29 September 1988 the applicant, who is a

suspected member of the Provisional IRA and who has convictions for

possession of firearms and explosives, was arrested under section 12

of the Prevention of Terrorism (Temporary Provisions) Act 1984 at his

home. The police had received information that there was a suspected

munitions hide on his property. 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. 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 06.14 hrs. on 4 October and he was released without charge

at 12.55 hrs. on 3 October.

A search of the applicant's house, outbuildings and land was

carried out from 29 September until 1 October 1988 pursuant to section

15 of the Northern Ireland (Emergency Provisions) Act 1978. Nothing

was found, with the exception of a quantity of republican literature.

The applicant saw a solicitor on 1 October 1988.

At the outset of his first interview, which began at 09.45 hrs.

on 29 September, he was told that the police were enquiring into

terrorist activity and involvement in the Mountfield and Carrickmore

areas of County Tyrone, where he lives. He was questioned about his

association with certain known Provisional IRA terrorists from these

areas, the murder of John Kyle in Greencastle in July 1986 and the

applicant's membership of the Provisional IRA. The applicant said

that since his release from a 12 year prison sentence he had married

and settled down and had no ties with Provisional IRA members, no

involvement with the organisation or membership of it and no knowledge

of the murder of John Kyle. At subsequent interviews he was further

questioned about these matters and about the suspected storage of

bombs, bomb-making equipment and weapons on his land and at his home.

He denied involvement in the matters put to him and further denied

that bombs or weapons were present on his land or at his home. He

declined to sign the interview notes.

COMPLAINTS

The applicant complains that his detention was unlawful,

contrary to Article 5 para. 1 of the Convention, in particular Article

5 para. 1 (c), because it was not effected for the purpose of bringing

him before a competent legal authority, but in order to ascertain more

about terrorist activity and involvement in the Mountfield and

Carrickmore areas of County Tyrone where he lives, and the involvement

of other people in terrorist activity.

He also 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 February 1989 and

registered on 10 March 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 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 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 first contends that his arrest and detention

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

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

Convention, in particular Article 5 para. 1 (c) (Art. 5-1-c). He

concedes that there was a reasonable suspicion against him which

entitled the Govenment to make the arrest, but from the facts, agreed

by the Government, it is clear that the purpose of his ensuing

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

to obtain further information about terrorist activity in his locality

and others' involvement in such activity. He claims that this

rendered his 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

him of a criminal offence at the time of his arrest. He only contests

the purpose of the arrest, which allegedly was not in order to bring

him 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-c) 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

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

confirming or dispelling their concrete suspicions about his

involvement in a criminal offence, which had grounded his 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 his 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 his arrest and detention

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

Act 1984 from 29 September to 3 October 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 basis of the applicant's

complaint under Article 5 para. 3 (Art. 5-3) of the Convention is

unclear and manifestly ill-founded. 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 4 days 6 hours and 41 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 this

aspect of the case inadmissible has been established.

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 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 ADMISSIBLE, without prejudging the merits of

the case, the applicant's complaints under Article 5

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

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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O'HAGAN v. the UNITED KINGDOM

O'HAGAN v. the UNITED KINGDOM

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