Lexploria

AS TO THE ADMISSIBILITY OF

Application Nos. 14553/89 and 14554/89

by Peter BRANNIGAN and Patrick McBRIDE

against the United Kingdom

The European Commission of Human Rights sitting in private on

28 February 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

M. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms ;

Having regard to the applications introduced on 19 January

1989 by Peter BRANNIGAN and Patrick McBRIDE against the United Kingdom

and registered on 30 January 1989 under files Nos. 14553/89 and

14554/89 ;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure

of the Commission ;

- the written observations submitted by the Government on

16 February 1990, to which the applicants replied on

20 April 1990 ;

- the oral submissions of the parties at the hearing on

28 February 1991 ;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is an Irish citizen, born in 1964. He is

a labourer by trade and resides, at present, in Downpatrick, Northern

Ireland.

The second applicant is an Irish citizen born in 1951. He is

unemployed and resides, at present, in Belfast.

They are represented in the proceedings before the Commission

by Messrs. Madden and Finucane, Solicitors, Belfast.

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

may be summarised as follows:

As regards the first applicant

The first applicant was arrested at his home in Downpatrick by

members of the Royal Ulster Constabulary on 9 January 1989 at

06.30 hours. He was then removed to the Interrogation Centre at Gough

Barracks, Armagh, where he was detained until 21.00 hours on

15 January 1989. He was therefore detained for a total period of

6 days, 14 hours and 30 minutes.

The first applicant was arrested under Section 12(1)(b) of

the Prevention of Terrorism (Temporary Provisions) Act 1984. Section

12 of the 1984 Act provides, inter alia, as follows:

"12 (1) [A] constable may arrest without warrant a person

whom he has reasonable grounds for suspecting to be

...

(b) a person who is or has been concerned in the

commission, preparation or instigation of acts of

terrorism to which this Part of this Act applies;

...

(3) The acts of terrorism to which this Part of this

Act applies are

(a) acts of terrorism connected with the affairs

of Northern Ireland;

...

(4) A person arrested under this section shall not be

detained in right of the arrest for more than

forty-eight hours after his arrest; but the

Secretary of State may, in any particular case,

extend the period of forty-eight hours by a period

or periods specified by him.

(5) Any such further period or periods shall not exceed

five days in all.

(6) The following provisions (requirement to bring

accused person before the court after his arrest)

shall not apply to a person detained in right of

the arrest."

The first applicant states that he was interrogated

relentlessly throughout his detention. Visits or communication with

family or friends were not permitted. He was denied access to books,

newspapers and writing materials. He states that no provision was

made for radio or television and he was not allowed to associate with

other prisoners.

The Government state that the first applicant was seen by a

medical practitioner on 17 occasions. He declined to wait for a final

medical examination when being released from police custody. His

complaints of ill-treatment were investigated but found to be

unsubstantiated. Although initial access to a solicitor was delayed

because it was believed that such a visit would lead to interference

with the investigation, the applicant was subsequently visited by his

solicitor at 21.12 hours on 11 January 1989. Family visits are not

generally allowed, but a detainee is entitled to make a telephone call

on arrest and will generally be permitted to use the telephone to

speak to his friends, provided no hindrance is reasonably likely to be

caused to the processes of investigation or to the administration of

justice. No request for a family visit or a telephone call was made

by the applicant. Writing materials are available on request and

letters can be posted or delivered. No such request was made by the

applicant. No reading material is provided except a Bible and

detainees are not generally allowed to listen to radio or watch

television. This is not to deny them stimulation but because news

broadcasts may cause hindrance to the investigation. Association with

other detainees is not generally permitted for the same reason. The

custody record shows that requests for these facilities were not made

by the first applicant.

As regards the second applicant

The second applicant was arrested at his home by members of

the Royal Ulster Constabulary on 5 January 1989 at 05.05 hours. He

was then removed to Castlereagh Interrogation Centre where he was

detained until 11.30 hours on Monday 9 January 1989. He was therefore

detained for a total period of 4 days, 6 hours and 25 minutes.

Like the first applicant, the second applicant was arrested

under Section 12(1)(b) of the Prevention of Terrorism (Temporary

Provisions) Act 1984.

The second applicant states that he was interrogated

relentlessly all day, every day. Visits or communications with family

or friends were not permitted. He was denied access to books,

newspapers and writing materials. He states that no provision was

made for radio or television and he was not allowed to associate with

other prisoners. In addition, during interrogation sessions he was

required to stand and to remove his glasses.

The Government state that the second applicant was seen by a

medical practitioner eight times. He declined the offer of a medical

examination on four occasions and accepted on four other occasions.

His complaints of ill-treatment were investigated but found

unsubstantiated. At his request, his solicitors' office was informed

of his detention on 5 January 1989 at 09.40 hours. He received two

legal visits : from 20.57 hours until 22.00 hours on 5 January 1989

and from 20.35 hours to 21.30 hours on 7 January 1989. As regards

family or other outside contacts through telephone calls or writing

materials or other facilities, the custody record shows no request by

this applicant for such facilities.

COMPLAINTS

Articles 5 and 13 of the Convention

The applicants complain that their detention was in breach of

Article 5 para. 3 in that they were not brought promptly before a

judge. They claim that they had no domestic remedy against this

breach, in particular no right to compensation. In this regard they

also complain of a breach of Article 5 para. 5 and Article 13 of the

Convention.

Article 15 of the Convention

The applicants submit that the derogation lodged by the

respondent Government with the Secretary General of the Council of

Europe on 23 December 1988 does not comply with Article 15. In

particular they claim that the measures taken by the United Kingdom

were not strictly required by the exigencies of the situation and were

inconsistent with the United Kingdom's other obligations under

international law.

The applicants had also originally complained of breaches of

Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention. However,

in effect they withdrew their complaints under these provisions in

their observations on admissibility and merits.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 19 January 1989 and

registered on 30 January 1989. After a preliminary examination of the

cases by the Rapporteur, the Commission considered the admissibility of

the applications on 5 September 1989. It decided to give notice of

the applications to the respondent Government and to invite the

parties to submit their written observations on admissibility and

merits, particularly regarding the applicants' challenge to the

validity of the derogation under Article 15 of the Convention.

The Government submitted their observations on 16 February 1990

after an extension of the time limit. The applicants replied on

20 April 1990 and, at the same time, withdrew their complaints under

Articles 3, 5 paras. 1 and 4, 8, 9 and 10 of the Convention.

On 5 October 1990 the Commission decided, in accordance with

Rule 50(b) of the Rules of Procedure, to obtain the parties' oral

submissions on the cases. The hearing was held in Strasbourg on

28 February 1991. The Government were represented by Mrs. A. Glover,

Agent, Foreign and Commonwealth Office, and Mr. N. Bratza, QC, and

Mr. R. Weatherup, both of Counsel. The Government's representatives

were accompanied by 5 advisers. The applicants were represented by

Mr. R. Weir, QC, Mr. S. Treacy, BL, and Mr. I. Tannahill, BL, all of

Counsel, and Mr. K. Winters, Solicitor with Messrs. Madden & Finucane.

THE LAW

The applicants have complained that their detention for

periods in excess of four days, without charge and without being

brought before a judge, pursuant to Section 12(1)(b) of the Prevention

of Terrorism (Temporary Provisions) Act 1984, was in breach of Article

5 paras. 3 and 5 and Article 13 (Art. 5-3, 5-5, 13) of the Convention.

They relied on the judgment of the European Court of Human Rights in

the case of Brogan and Others in which the Court held that similar

detention for periods of over four days violated these provisions of

Article 5 (Art. 5) of the Convention (Eur. Court H.R., Brogan and

Others judgment of 29 November 1988, Series A No. 145, pp. 30-34 and

35, paras. 55-62 and 66-67). They contended, inter alia, that the

derogation lodged by the United Kingdom with the Secretary General of

the Council of Europe on 23 December 1988, a derogation from the

requirements of Article 5 (Art. 5) to enable the continued use of the

Prevention of Terrorism legislation, did not comply with Article 15

(Art. 15) of the Convention. In particular they claimed that the

measures taken by the United Kingdom were not strictly required by the

exigencies of the situation and were inconsistent with the United

Kingdom's other obligations under international law.

The Government drew attention to the problems, recognised by

the Court in the case of Brogan and Others, of dealing with the

continuing terrorist threat in connection with the affairs of Northern

Ireland and the particular difficulties of bringing those responsible

for horrifying and indiscriminate acts of terrorism to justice. They

submitted, inter alia, that a fair and proper balance had been struck

by the Prevention of Terrorism legislation in question, after thorough

and continued parliamentary and independent scrutiny, between the

protection of individual rights and the need to defend a democracy

against the threats posed by organised terrorism. It was contended

that the Government's derogation from their obligations under Article

5 (Art. 5) of the Convention was strictly required by the exigencies of the

situation and was in accordance with Article 15 (Art. 15) of the Convention.

Article 5 (Art. 5) of the Convention ensures the right to

liberty. All deprivations of liberty must be in accordance with a

procedure prescribed by law and for a lawful purpose, such as the

lawful arrest or detention of a person in order to bring him before

the competent legal authority on reasonable suspicion of having

committed a criminal offence (Article 5 para. 1 (c)) (Art. 5-1-c).

Persons arrested for this purpose must be brought promptly before a

judge (Article 5 para. 3) (Art. 5-3). Anyone arrested contrary to the

provisions of Article 5 (Art. 5) is entitled to compensation (Article

5 para. 5) (Art. 5-5). Article 13 (Art. 13) of the Convention

guarantees the right to an effective domestic remedy for Convention

breaches.

The Commission notes that the key issue in the present cases

involves Article 15 (Art. 15) of the Convention, the relevant part of

which provides as follows :

"1. In time of war or other public emergency threatening

the life of the nation any High Contracting Party may

take measures derogating from its obligations under this

Convention to the extent strictly required by the

exigencies of the situation, provided that such measures

are not inconsistent with its other obligations under

international law.

...

3. Any High Contracting Party availing itself of this

right of derogation shall keep the Secretary General of

the Council of Europe fully informed of the measures

which it has taken and the reasons therefor. It shall

also inform the Secretary General of the Council of Europe

when such measures have ceased to operate and the provisions

of the Convention are again being fully executed."

The Commission considers, in the light of the parties'

submissions, that the present cases raise complex issues of law and

fact under the Convention, the determination of which should depend on

an examination of the merits of the applications as a whole. The

Commission concludes, therefore, that the applications are not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATIONS ADMISSIBLE

without prejudging the merits of the cases.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BRANNIGAN ; McBRIDE v. THE UNITED KINGDOM

BRANNIGAN ; McBRIDE v. THE UNITED KINGDOM