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McGLINCHEY AND OTHERS v. THE UNITED KINGDOM

Doc ref: 15096/89;15097/89;15098/89 • ECHR ID: 001-702

Document date: July 2, 1990

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Cited paragraphs: 0
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McGLINCHEY AND OTHERS v. THE UNITED KINGDOM

Doc ref: 15096/89;15097/89;15098/89 • ECHR ID: 001-702

Document date: July 2, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Applications Nos. 15096/89, 15097/89 and

15098/89

by Paul Gerard McGLINCHEY and Others

against the United Kingdom

The European Commission of Human Rights sitting in private

on 2 July 1990, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 29 March 1989

by Paul Gerard McGLINCHEY and Others against the United Kingdom and

registered on 8 June 1989 under file Nos. 15096/89, 15097/89 and 15098/89;

Having regard to

- the reports provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Government's written submissions of 19 January 1990 and

the applicants' observations in reply of 4 April 1990;

Having deliberated;

Decides as follows:

THE FACTS

The three applicants are of Irish and British nationality and

resident in Londonderry. The first applicant was born in 1963, the

second in 1961 and the third in 1957. They are represented before the

Commission by Mr. Ian Hawton Milligan, a solicitor practising in

Newton Stewart, Wigtownshire, Scotland.

The facts as submitted by the applicants may be summarised as

follows.

At about 22.00 h on 29 September 1988, the applicants

were stopped by police officers as they were on the point of boarding

a ferry at Stranraer which was going to Northern Ireland. They were

informed that they were being arrested under the Prevention of

Terrorism (Temporary Provisions) Act 1984 and detained at 22.10 h

under Section 12 of the Act.

On 1 October 1988, the Secretary of State for Scotland

granted an extension of 72 hours in the applicants' detention under

the relevant legislation.

On 3 October 1988, the police made an application for

Exclusion Orders in respect of the three applicants. On 4 October

1988, the Secretary of State for the Home Department granted the

Exclusion Orders, which were served on the applicants at approximately

18.00 h. These orders stated that the Secretary of State was

satisfied that the applicants were or had been concerned in the

commission, preparation or instigation of acts of terrorism designed

to influence public opinion or Government policy with respect to

affairs in Northern Ireland and prohibited the applicants from being

in or entering Great Britain. The applicants were released at 18.30 h

into the custody of the Captain of the Ferry at Stranraer and duly

returned to Northern Ireland.

The applicants' appeals against the Exclusion Orders were

dismissed on 25 November 1988 and the three year Exclusion Orders

confirmed.

COMPLAINTS

The applicants complain that their detention by the police and

by the Secretary of State was in breach of Article 5 para. 3 of the

Convention since they were not brought promptly before a judge or

other officer authorised by law to exercise judicial power. They

consider themselves entitled to compensation under Article 5 para. 5

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 March 1989 and registered

on 8 June 1989.

On 2 October 1989 the Commission decided that notice of the

application should be given to the respondent Government, pursuant to

Rule 42 para. 2 (b) of its Rules of Procedure, and that the parties

should be invited to submit their written observations on the

admissibility and merits of the applicants' complaints.

The Government sent their written observations on 19 January

1990. The applicants' representative submitted the applicants' written

observations in reply on 4 April 1990.

The Commission decided to grant legal aid to the applicants on

16 February 1990.

THE LAW

The applicants complain that their arrest and detention under

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

1984 constitutes a violation of Article 5 para. 3 (Art. 5-3) of the

Convention. They also allege a violation of Article 5 para. 5 (Art. 5-5)

of the Convention.

Article 5 para. 3 (Art. 5-3) of the Convention provides:

"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."

Article 5 para. 5 (Art. 5-5) of the Convention provides:

"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 do not contest the admissibility of the

application.

The Commission recalls that in the BROGAN and Others case

(Eur. Court H.R., Brogan and Others judgment of 29 November 1988,

Series A No. 145-B), the Commission and the Court found a violation of

Article 5 para. 3 (Art. 5-3) in respect of the detention of four

applicants for periods varying from 4 days 6 hours to 6 days and 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) in that the applicants had not had a right to

compensation in respect of the violation of Article 5 para. 3

(Art. 5-3).

In the present case, the Commission recalls that the three

applicants were arrested and detained for 4 days 20 1/2 hours under the

same provisions as in the Brogan and Others case without being brought

before a judge or an officer authorised by law to exercise judicial

power. The Commission finds that the applications cannot be declared

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

(Art. 27-2) of the Convention. As no other ground for declaring them

inadmissible has been established these applications are admissible.

For these reasons, the Commission

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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