Interim Resolution ResDH (2003)149

concerning the judgments of the European Court of Human Rights of 21 December 2000 (final on 21 March 2001) in t he cases of Quinn and Heaney and McGuinness against Ireland

(Adopted by the Committee of Ministers on 22 July 2003 at the 847th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the Quinn and Heaney and McGuinness cases delivered on 21 December 2000 and transmitted to the Committee of Ministers once they had become final under Article 44 of the Convention;

Recalling that the case originated in two applications (Nos. 36887/97 and 34720/97) against Ireland, lodged with the European Commission of Human Rights on 6 March 1997 and 17 January 1997 respectively under former Article 25 of the Co n vention by Mr Paul Quinn and Mr Anthony Heaney and Mr William McGuinness , Irish nationals, and that the Court, seised of the cases under Article 5, paragraph 2 of Protocol No. 11, declared admissible the complaint that Section 52 of the Offences Against the State Act 1939, had breached the applicants’ rights to remain silent and not to incriminate themselves as well as the presumption of their innocence;

Whereas in its judgments of 21 December 2000 the Court, unanimously:

- held that there had been a violation of Article 6, paragraphs 1 and 2, of the Convention in respect of both cases in relation to the applicants' right to silence and their right not to incriminate themselves and in relation to the presumption of their innocence;

- held that no separate issue arose under Article 10 of the Convention in the Quinn case and Articles 8 and 10 in the Heaney and McGuinness case;

- held that the government of the respondent state was to pay,  within three months, 4 000 Irish Pounds as regards non-pecuniary damage to each of the applicants and 11 341,08 Irish Pounds (inclusive any value-added tax) less 5 000 French Francs paid by the Court in legal aid (Quinn case) and 9 377,50 Irish Pounds (inclusive any value-added tax) less 5 000 French Francs paid by the Court in legal aid (Heaney and McGuinness ) for costs and expenses and that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the claims for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgments of 21 December 2000, having regard to Ireland’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas the government of the respondent state provided the Committee of Ministers with information about the general measures taken so far to this effect (this information appears in the appendix to this resolution);

Having satisfied itself that on 16 March 2001, within the time-limit set, the government of the respondent state paid the a p plicants the sum provided for in the judgments of 21 December 2000,

Declares, after having taken note of the information supplied by the Government of Ireland, that it has exe r cised its functions, as far as general measures are concerned, under Article 46, paragraph 2 of the Convention in this case,

Decides to resume consideration of this case, as far as individual measures are concerned, as soon as the judicial review proceedings brought by Mr Quinn before the Irish courts have ended or at the latest within one year from today.

Appendix to Interim Resolution ResDH (2003)149

Information provided by the Government of Ireland during the examination of the Quinn and Heaney and McGuinness cases by the Committee of Ministers

General Measures

Under the Good Friday Peace Agreement of 10 April 1998, reforms of the Offences against the State Acts 1939 – 1985 (subsequently extended to 1998) are envisaged. In this respect the Minister of Justice, Equality and Law Reform established a committee to examine all aspects of the 1939 Acts and to report to the Minister with recommendations for reform. The final report of the Review Group on the Offences against the State Acts was submitted to the Minister for Justice, Equality and Law reform in August 2002. The Report is available on the website of the Department of Justice, Equality and Law Reform. [1]

In Chapter VIII of the Report (pp 183 to 212), the problems raised under the Quinn and Heaney and McGuinness cases were extensively examined by the committee, which recommended, inter alia , that Section 52 of the 1939 Act and Section 2 of the 1972 Offences against the State Act (having amended the 1939 Act) be either modified (respecting the case-law of the European Court of Human Rights in this particular field) or repealed.

Section 52 of the 1939 Act reads as follows:

“1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Gárda Síochána may demand of such person, at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.

2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the Gárda Síochána , fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”

The Irish authorities are giving consideration to amending the existing section 52 of the 1939 Act and section 2 of the 1972 Act (having amended the 1939 Act), and have decided that the Gárda Síochána are not to avail of Section 52 of the 1939 Act until the legislative issue is resolved.

Furthermore, any uncertainty which existed concerning the admission into evidence of statements made under section 52 of the 1939 Act has been resolved by the judgment of 21 January 1999 of the Supreme Court in the case of Re. National Irish Bank Ltd (No. 1). [2] . In its judgment, the Supreme Court found that a confession of a bank official obtained by Inspectors as a result of the exercise by them of their powers under Section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary (see paragraph 28 of the judgments of the European Court in both cases). The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution.

In the Irish legal system, a judgment of the Supreme Court is part of the law of Ireland. It should be noted that the Supreme Court is the highest Court in the country. A judgment of the Supreme Court such as that given in the National Irish Bank Ltd. case must be applied by all criminal courts.

The position in Irish law now is that a statement obtained as a result of a statutory demand would be inadmissible in evidence where the trial judge decided that statement was not given voluntarily.

Furthermore, the European Convention on Human Rights Act 2003, which is now part of Irish law and will be brought into force by late 2003, will require the Irish courts to interpret and apply the law in a manner compatible with the Convention and to take due account of the case law of the Court in such interpretations and application.

Lastly, the judgments of the European Court are now accessible on the Irish Courts Service website ( www.courts.ie ) and are also available in legal libraries.

The Irish Government is of the opinion that the judgment of the Supreme Court in the National Irish Bank Ltd. case is in itself sufficient to prevent any future violation similar to those found by the Court, in its judgments of 21 December 2000, concerning Section 52 of the 1939 Act.

As far as individual measures are concerned, the Government suggests the postponement of the Committee of Ministers' examination of these cases, to the first meeting after the decision in the case of Quinn before the Irish courts has been rendered or at the latest within a period of one year.

[1] ( www.justice.ie at http://www.justice.ie/80256976002CB7A4/vWeb/fsWMAK4Q7JKY).

[2] which can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IESC/1999/18.html&query=National%20Irish%20Bank.