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AS TO THE ADMISSIBILITY OF

Application No. 14671/89

by Martin Desmond McCONNELL

against the United Kingdom

The European Commission of Human Rights sitting in private on

11 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

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 application introduced on 2 February 1989

by Martin Desmond McCONNELL against the United Kingdom and registered

on 20 February 1989 under file No. 14671/89;

Having regard to:

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

of the Commission;

- the Commission's decision of 5 September 1989 to

bring the application to the notice of the respondent

Government and invite them to submit written

observations on its admissibility and merits;

- the observations submitted by the respondent

Government on 16 February 1990 and the observations

in reply submitted by the applicant on 15 May 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in

1963. He is an unemployed trainee accountant and resides, at present,

in County Tyrone, Northern Ireland.

He is represented in the proceedings before the Commission by

Mr. J. Christopher Napier, solicitor, Belfast.

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant was arrested at his home in Cookstown on

31 October 1988 at 07.06 hours. He was taken to Gough Barracks,

Armagh, where he was detained. He was interviewed six times by police

officers on 31 October 1988 about a number of specific crimes,

including involvement in the transport of a bomb in July 1988. He was

also interviewed on 1, 2, and 3 November. He was released from

custody at 19.30 hours on 3 November 1988. He was thus detained for

3 days, 12 hours and 24 minutes.

He was informed at the time of his arrest that he was being

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."

During his detention, the applicant was seen by a medical

practitioner on seven occasions. The applicant was visited by his

solicitor on two occasions: on 31 October 1988 from 14.21 hours to

14.35 hours and on 1 November from 19.38 to 20.10 hours.

On 17 January 1989, pursuant to Section 12 (1)(b) of the 1984

Act, the applicant was again arrested at his home at 07.00 hours and

brought to Gough Barracks where he was interviewed by officers who had

interviewed him during the previous period of detention. He had six

interviews about specific crimes on 17 January, followed by six

interviews on 18 January, and a further six on 19 January. At his

first interview, which commenced at 11.21 hours on 17 January, he was

informed that the police were enquiring into the attempted murder of a

woman police constable on 5 December 1988 at Cookstown, and that the

police were aware that he had an input into the bombing. He was

released on 20 January at 21.00 hours after five interviews. He was

thus detained for 3 days and 14 hours.

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

on 19 January 1989 from 13.50 hours to 14.10 hours and again on 20

January 1989 from 15.46 hours to 16.30 hours.

COMPLAINTS

The applicant complains that his arrest under Section 12 of

the Act constituted a violation of Article 5 paras. 2, 3 and 5 of the

Convention.

The applicant submits that the Notice of Derogation lodged

with the Secretary General of the Council of Europe on 23 December 1988

was unjustified since no war or public emergency threatened the life

of the nation. In addition, the derogation is in excess of what is

strictly required by the exigencies of the situation and an abuse of

the margin of appreciation allowed to States under the Convention.

Finally, he states that the Government has invoked the derogation in

order to win time and thus delay the date of reforming the domestic

legislation as required by the judgment of the European Court of Human

Rights in the case of Brogan and Others (judgment of 29 November 1988,

Series A no. 145-b).

The applicant had originally also invoked Article 5 para. 1 of

the Convention. However, he, in effect, withdrew his complaints under

this provision in his observations on admissibility and merits.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 February 1989 and

registered on 20 February 1989. After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

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

application to the respondent Government and to invite the parties to

submit their written observations on admissibility and merits,

particularly regarding the applicant's 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 applicant replied on

15 May 1990 also after an extension of the time limit. In his

observations he, in effect, withdrew his complaints under Article 5 para.

1 of the Convention.

THE LAW

1. The applicant has complained that his arrest and detention in

October-November 1988 and January 1989 were in breach of Article 5

paras. 2, 3 and 5 (Art. 5-2, 5-3, 5-5) of the Convention the relevant

parts of which provide as follows:

"2. Everyone who is arrested shall be informed promptly,

in a language which he understands, of the reasons for his

arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1(c) (Art. 5-1-c) of this Article

shall be brought promptly before a judge ...

5. Everyone who has been the victim of arrest or detention

in contravention of the provisions of this Article (Art. 5)

shall have an enforceable right to compensation."

2. The Government submitted that the applicant's complaint under

Article 5 para. 2 (Art. 5-2) of the Convention was inadmissible either for

non-exhaustion of domestic remedies, or as being unclear and

unsubstantiated and, therefore, manifestly ill-founded. The applicant

contends that his arrest was under the same conditions as in case of

Fox, Campbell and Hartley against the United Kingdom, and the

information lacking contrary to Article 5 para. 2 (Art. 5-2) of the

Convention.

However, the Commission refers to the judgment of the European

Court of Human Rights in the Fox, Campbell and Hartley case in which

it held that there was no ground to suppose that during the police

questioning of those applicants they were unable to understand why

they had been arrested. The reasons why they were suspected of being

terrorists were thereby brought to their attention during their

interrogation and, accordingly, they had not suffered a breach of

Article 5 para. 2 (Art. 5-2) of the Convention (Eur. Court H.R., Fox,

Campbell and Hartley judgment of 30 August 1990, Series A no. 182,

paras. 40-43).

The Commission finds no reason in the present application to

distinguish it from the Fox, Campbell and Hartley case. It also finds

no evidence in the case-file to suggest that during the questioning of

the applicant he was not made aware of the reasons for his arrest on

suspicion of being concerned in the commission, preparation or

instigation of specific acts of terrorism. It follows, assuming that

the applicant may be said to have complied with Article 26 (Art. 26) of

the Convention, that this aspect of the case is manifestly ill-founded,

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant's principal complaint was that his detention for

3 days, 12 hours and 24 minutes as of 31 October 1988, and again for 3

days and 14 hours as of 17 January 1989, was in breach of Article 5

para. 3 (Art. 5-3) of the Convention because, in his submission, he

was not brought promptly before a judge. The Government contended

that, according to the constant case-law of the Commission and Court,

no violation of Article 5 para. 3 (Art. 5-3) of the Convention can

arise if the arrested person is released promptly before any judicial

control of the detention would have been feasible (Eur. Court H.R.,

Brogan and Others judgment of 29 November 1988, Series A no. 145-B,

p. 32 para. 58). The applicant's release within four days on each

occasion was sufficiently prompt to satisfy the requirement of Article

5 para. 3 (Art. 5-3) of the Convention. Furthermore, as regards the

second period of detention in this case, the Government considered

that it was anyway met by their notice of derogation given to the

Secretary General of the Council of Europe on 23 December 1988 under

Article 15 (Art. 15) of the Convention. Therefore, even if the second

period of detention did not conform with the requirements of Article 5

para. 3 (Art. 5-3) of the Convention, this provision was not breached

by virtue of that derogation.

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

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,

regardless of the United Kingdom's derogation under Article 15

(Art. 15) of the Convention as of 23 December 1988, neither period of

detention experienced by the applicant discloses any appearance of a

breach of Article 5 para. 3 (Art. 5-3) of the Convention. Accordingly

this part of the application is also manifestly ill-founded, within

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

4. Finally, the applicant complained that he had no enforceable

right to compensation in domestic law for the breaches of Article 5

(Art. 5) of the Convention which he had alleged. The Government

submitted, in reply, that as no breach of Article 5 (Art. 5) of the

Convention was disclosed in this case, the applicant had no right to

compensation.

The Commission refers to its conclusions above that the

applicant's complaints under Article 5 paras. 2 and 3 (Art. 5-2, 5-3)

of the Convention did not disclose any appearance of a violation

of these provisions. In these circumstances the applicant is not

entitled to compensation pursuant to Article 5 para. 5 (Art. 5-5) of

the Convention. Accordingly this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

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

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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McCONNELL v. THE UNITED KINGDOM

McCONNELL v. THE UNITED KINGDOM

LEXI