Lexploria

The European Commission of Human Rights sitting in private on

12 July 1986, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

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 (Art. 25);

Having regard to the application introduced on 2 May 1985 by W. H.

against the United Kingdom and registered on 7 May 1985 under file

N° 11539/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, Mr. William T. Harkin, born in 1961, is a citizen of

the United Kingdom, at present residing in Belfast. He is unemployed.

He is represented, in proceedings before the Commission, by

Mr. J. C. Napier, solicitor, Belfast.

On 22 April 1985 the applicant and four others were arrested at

Cairnryan Harbour, Scotland, as he was about to board a ship to return

to Northern Ireland. He states that he was returning from a

conference which had been held at Glasgow University on

19-21 April 1985 on the use of asbestos in public authority housing.

The applicant was told he was being detained under the Prevention of

Terrorism (Temporary Provisions) Act 1984 and the Prevention of

Terrorism (Supplemental Temporary Provisions) Order 1984.

Article 4(1) of the Order provides that

"an examining officer may examine any persons who have arrived in or

are seeking to leave Great Britain by ship or aircraft for the purpose

of determining

- a. whether any such person appears to be a person who is or

has been concerned in the commission, preparation or instigation of

acts of terrorism to which this Article applies;

..."

Article 4(2) provides that

"the period of a person's examination under paragraph 1 shall not

exceed twelve hours but, if an examining officer has reasonable

grounds for suspecting that the person examined is or has been

concerned in the commission, preparation or instigation of acts of

terrorism to which this Article applies, he may require him, in

writing, to submit to further examination."

Article 5(1) states "that it shall be the duty of any person examined

under Article 4 to furnish to the person carrying out the examination

all such information in his possession as that person may require for

the purpose of his functions under that Article."

Article 9(1) concerns the detention of persons liable to examination

and states as follows:

"A person who is examined under Article 4 may be detained, under the

authority of an examining officer, pending the conclusion of his

examination or pending consideration of the question whether to make

an exclusion order against him for a period not exceeding 48 hours

beginning with the time when he is first examined."

The applicant was served with a notice in the course of 22 April 1985

informing him that he was required to submit to further examination

pursuant to Article 4(2) and that he was to be detained for this

purpose under Article 9(1) of the Order.

He was detained at Stranraer Police Station from midday on 22 April

until his release at 6.15 p.m. on 23 April. His fingerprints and

photograph were taken and he was confined to a cell. He had one

interview, lasting three quarters of an hour with a single police

officer who discussed his family and friends and the purpose of his

visit. This took place in the evening of 22 April 1985. He states

that although his subsequent detention was not subject to any further

interviews or questions, he was not released until 6.15 p.m. on the

following day.

He states that he was not informed by the police officer of any

criminal offence he was alleged to have committed or given any other

reason for his arrest and detention. He was not brought before a

judge or other officer authorised by law to exercise judicial power or

given any opportunity for release on bail.

COMPLAINTS AND SUBMISSIONS

The applicant complains that his arrest and detention constitute a

breach of Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2,

art. 5-4, art. 5-5) and Article 13 of the Convention (Art. 13). He

states that he was arrested solely for the purpose of detaining and

harassing him.

The applicant submits that there are significant differences between

his case and that of McVeigh and Others (Comm. Report 18.3.81,

D.R. 25 pp. 15-59). In the McVeigh case the applicants were resident

in Britain and were returning to a place outside the United Kingdom.

In the present case the applicant was travelling internally within the

United Kingdom and had been admitted to mainland Britain from Northern

Ireland a few days prior to his detention without any arrest or

detention under the 1984 Order for examination. He submits that in

such circumstances the obligation to "submit to further examination"

is not reasonable. It is submitted that the Commission's reasoning in

this case does not apply since the detention of the applicant was

arbitrary or effected for an improper purpose or in excess of what was

reasonable for the carrying into effect of the objects of the 1984

Act.

THE LAW

1. The applicant complains of his arrest and detention under

Articles 4 and 9 of the Prevention of Terrorism (Supplemental

Temporary Provisions) Order 1984. He was detained for approximately

31 hours between 22 and 23 April 1985. He alleges a breach of

Article 5 paras. 1, 2, 4 and 5 (Art. 5-1, art. 5-2, art. 5-4,

art. 5-5) as well as of Article 13 of the Convention (Art. 13).

As regards Article 5 para. 1 (Art. 5-1)

2. The relevant parts of the provision provide as follows:

1. 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: ...

(b) the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order

to secure the fulfilment of any obligation prescribed by

law;

3. The Commission notes that the applicant was detained for

examination as to whether he was a person concerned in the commission,

preparation or instigation of acts of terrorism. He was required to

submit to further examination pursuant to Article 4(2) and detained

under Article 9(1) of the Order.

4. The Commission recalls that it considered, in detail, the same

issue in the case of McVeigh and Others v. the United Kingdom

concerning similar legal powers contained in the Prevention of

Terrorism (Supplemental Temporary Provisions) Order 1976. It found,

in that case, that the applicants' detention for 45 hours under these

powers was justified under Article 5 para. 1 (b) (Art. 5-1-b).

The Commission refers to its detailed examination of this issue in

that case (see Comm. Report 18.3.81, D.R. 25 paras. 168-196).

5. The Commission considered whether the obligation to submit to

examination was sufficiently "concrete and specific" to be capable of

falling within the scope of Article 5 para. 1 (b) (Art. 5-1-b), and if

so whether there were circumstances sufficient to warrant the

applicants' detention in order to secure its fulfilment (ibid.,

para. 182).

The Commission found as follows:

"186. The obligation to submit to examination does not amount to a

general obligation to submit to questioning or interrogation on any

occasion, or for any purpose. In this respect it can be contrasted

with the power of arrest for interrogation under Regulation 10 of the

Special Powers Regulations considered in the Irish inter-State Case

... It is in essence an obligation to submit to a security check (if

so required) on entering or leaving Great Britain. The purpose of the

check is limited to determining the matters set out in Article 5 of

the 1976 Order. The scope of the obligation is furthermore

effectively limited by the limitation set on the duration of detention

permitted under Article 10 of the 1976 Order.

...

188. In all the circumstances, the Commission considers that the

obligation imposed on the present applicants to submit to examination

was a specific and concrete obligation and that the United Kingdom

authorities were therefore in principle entitled under Article 5 (1)

(b) (Art. 5-1-b) to resort to detention to secure its fulfilment. In

reaching this conclusion the Commission has particularly taken into

account the fact that the obligation in question arises only in

limited circumstances, namely in the context of passage over a clear

geographical or political boundary. Furthermore the purpose of the

examination is limited and directed towards an end of evident public

importance in the context of a serious and continuing threat from

organised terrorism."

6. The Commission further found that the applicant's detention

was necessary to carry out the examination. It stated:

"192. The Commission has already noted that the obligation imposed on

the applicants in the present case was, in essence, an obligation to

submit to a security check on entering Great Britain, the scope of the

check being limited (broadly speaking) to the prevention of terrorism.

The importance in present day conditions of controlling the

international movement of terrorists has been widely recognised in

Western Europe, in particular by the Parliamentary Assembly of the

Council of Europe ... In the particular context of the United Kingdom

there is also evident importance in controlling and detecting the

movement of terrorists not only between the United Kingdom and the

Republic of Ireland but also between Great Britain and Ireland as a

whole, including Northern Ireland. The necessary checks must

obviously be carried out as the person concerned enters or leaves the

territory in question and there is a legitimate need to obtain

immediate fulfilment of the obligation to submit to such checks.

193. The Commission further notes that, from the information before

it, it appears that the powers of examination are, so far as

reasonably practicable, exercised without resort to detention, the

majority of persons examined being subjected only to a relatively

short examination at the port of entry or departure. It is true that

where the authorities consider a prolonged examination to be

necessary, detention is apparently used invariably. There is no

provision for release on bail pending examination, in contrast to the

position under the normal immigration legislation in the United

Kingdom ... However, release on bail scarcely seems compatible with

the effective operation of the limited security check at issue in the

present case.

194. It takes into account furthermore the practice whereby an

examining officer does not exercise the powers of arrest and detention

unless he is left in some suspicion as to the matters specified in

Article 5 (1) (a) - (c) of the Order. In the context of such a

security check it is obvious that a person engaged in terrorist

activity is unlikely openly to refuse to reply to questions or

otherwise fail to comply with the obligations incumbent on him.

However he may well give false or incomplete information. Accordingly

in order effectively to secure the fulfilment of the obligation in

question it may therefore be necessary to resort to detention even

where it cannot be said with certainty that there has already been any

culpable failure on the part of the detainee to fulfil the obligations

incumbent on him."

7. In the present case the Commission notes that, unlike the

applicants in the McVeigh case, the present applicant was not detained

coming into Great Britain but as he was preparing to return to

Northern Ireland after a visit to Scotland. However, the Commission

does not attach any particular importance to this fact since a

security check on leaving the mainland following a visit is clearly

provided for in the legislation and fulfils an equally evident

security requirement. In itself, it does not support the applicant's

allegation that his detention was arbitrary or effected for an

improper purpose.

8. The Commission observes that, unlike the 1976 Order examined

in the McVeigh case, Article 4(2) of the 1984 Order requires

"reasonable grounds for suspecting" terrorist involvement to justify

detention for longer than twelve hours. However, it is clear from the

scheme of the 1984 Order that the purpose of detention is that of

carrying out an examination of the person entering or leaving Great

Britain with a view to determining whether or not he is involved in

terrorist activities.

9. The Commission, therefore, sees no reason why it should not

follow its previous opinion in the case of McVeigh and Others which,

in this respect, apart from the added safeguard of reasonable

suspicion referred to above, is indistinguishable from the present

case. It therefore concludes that the applicant's arrest and

detention under the 1984 Order were justified under Article 5 para. 1

(b) (Art. 5-1-b) in order to secure the fulfilment of an obligation

prescribed by law.

As regards Article 5 para. 2 (Art. 5-2)

10. The applicant complains under Article 5 para. 2 (Art. 5-2)

that he was given insufficient reasons for his detention.

11. Article 5 para. 2 of the Convention (Art. 5-2) states as

follows:

"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."

12. The Commission also examined this issue in the case of McVeigh

and Others. It rejected the applicants' complaint in the following

terms:

"209. There is no dispute in the present case that the applicants

were sufficiently informed of the legal basis for their detention. The

sole question is whether they should have been informed of the grounds

for suspicion against them. The Commission has already observed in

its decision on admissibility that such information does not appear

relevant to the lawfulness of their detention in domestic law, since

the existence of "suspicion" is not a prerequisite for a lawful arrest

under the 1976 Order. Equally the existence of "suspicion" is not a

substantive requirement of Article 5 (1)(b) of the Convention

(Art. 5-1-b). Only Article 5 (1)(c) (Art. 5-1-c) requires it and in

the Commission's opinion the applicants' detention was not covered by

that provision.

210. In the present case the applicants were informed of the nature

of the obligation incumbent on them. In the written notifications

served on them they were expressly to submit to "further examination".

Furthermore, as a matter of substance, the Commission considers that

the information given them was quite sufficient in the circumstances

to make it clear that this consisted of a form of security check to

establish whether they were involved in terrorism.

211. The applicants were, in the Commission's opinion, thus

sufficiently informed of the legal basis for the detention in domestic

law and of the substantive reasons for their detention under Article 5

(1)(b) of the Convention (Art. 5-1-b). They were given the essential

facts relevant to their detention under both domestic law and the

Convention. That is sufficient for the purposes of Article 5 (2)

(Art. 5-2)."

13. The applicant in the present case was informed in writing that

there was reasonable ground for suspecting that he was "concerned in

the commission, preparation or instigation of acts of terrorism". As

explained above (para. 8) the 1984 Order, unlike the 1976 Order,

requires reasonable suspicion for detention exceeding twelve hours.

However the Commission has found, in the particular circumstances of

the case, that the detention was justified under Article 5 para. 1 (b)

(Art. 5-1-b) as detention in order to fulfil the obligation to submit

to a security check. As in the McVeigh case, it considers that the

information provided to the applicant was sufficient to make him aware

of the purpose and reasons for his detention in satisfaction of the

obligation under Article 5 para. 2 (Art. 5-2).

As regards Article 5 para. 4 (Art. 5-4)

14. The applicant further complains that he was unable to

challenge the lawfulness of his detention before a court, contrary to

Article 5 para. 4 (Art. 5-4).

15. This provision reads as follows:

"Everyone who is deprived of his liberty by arrest or detention shall

be entitled to take proceedings by which the lawfulness of his

detention shall be decided speedily by a court and his release ordered

if the detention is not lawful."

16. The Commission notes from its opinion in the case of McVeigh

and Others that it found the remedy of habeas corpus to be open

to the applicants.

As regards the scope of review it stated as follows:

"The Commission finds no reason to suppose that the review of

lawfulness available in habeas corpus proceedings would as a matter of

principle have been insufficient in the context of the present case,

which, as the Commission has found, concerns detention falling within

the scope of Article 5 (1)(b) of the Convention (Art. 5-1-b). In

particular, it finds no reason to doubt that the courts could have

examined whether the applicants had been lawfully required to submit

to examination and, as a matter of substance, whether they were

detained for the purpose of securing fulfilment of that obligation,

that being the substantive justification for the detention under

Article 5 (1)(b) (Art. 5-1-b) ..." (loc. cit., para. 217)

17. In the present case the Commission also considers that it

would have been open to the applicant to challenge the lawfulness of

his detention by way of habeas corpus. The Commission has not been

informed of any legal developments which would have impeded the courts

from examining the lawful basis of his detention under Article 4 (1)

and (2) of the 1984 Order. Nor has it been alleged, as in the McVeigh

case, that he was prevented from seeking this remedy. Accordingly the

Commission sees no reason why it should not follow its previous

finding in this respect.

As regards Article 5 para. 5 (Art. 5-5)

18. The applicant also complains that he has been denied an

enforceable right to compensation contrary to this provision.

19. Article 5 para. 5 (Art. 5-5) states as follows:

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.

20. The Commission, however, has found no violation in respect of

the applicant's complaints under Article 5 paras. 1, 2 and 4

(Art. 5-1, art. 5-2, art. 5-4). It follows that Article 5 para. 5

(Art. 5-5) confers no right to compensation since the applicant has

not "been the victim of arrest and detention in contravention of the

provisions of this Article ..." (see also McVeigh and Others, loc.

cit., para. 220).

As regards Article 13 (Art. 13)

21. Finally, the applicant complains that he has no effective

remedy under British law in respect of the above complaints.

22. Article 13 (Art. 13) states as follows:

Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons

acting in an official capacity.

23. The Commission recalls that it has already found that it was

open to the applicant to challenge the lawfulness of his detention

before a court as required by Article 5 para. 4 (Art. 5-4). The

Commission considers that this provision constitutes the lex specialis

in this area and that no separate issue under Article 13 (Art. 13)

arises in the present case (see No. 7341/76, Dec. 11.12.76, D.R. 6

p. 180).

Conclusion

The Commission concludes that the application must be rejected as

manifestly ill-founded as a whole within the meaning of Article 27

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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HARKIN v. THE UNITED KINGDOM

HARKIN v. THE UNITED KINGDOM