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BROGAN AND OTHERS CASE

Doc ref: 11209/84;11234/84;11266/84;11386/85 • ECHR ID: 001-55492

Document date: September 24, 1990

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BROGAN AND OTHERS CASE

Doc ref: 11209/84;11234/84;11266/84;11386/85 • ECHR ID: 001-55492

Document date: September 24, 1990

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgments of the European Court of Human

Rights in the Brogan and others case delivered on 29 November 1988 and

30 May 1989 and transmitted the same days to the Committee of

Ministers;

Recalling that the case originated in four applications against the

United Kingdom lodged with the European Commission of Human Rights

on 18 October 1984, 22 October 1984, 22 November 1984 and

8 February 1985 under Article 25 (art. 25) of the Convention by

Mr Terence Brogan, Mr Dermot Coyle, Mr William McFadden and

Mr Michael Tracey, British nationals, who complained of their arrest

and detention under Section 12 of the Prevention of Terrorism

(Temporary provisions) Act 1984;

Recalling that the case was brought before the Court by the

Commission on 15 July 1987 and by the Government of the United Kingdom

of Great Britain and Northern Ireland on 3 August 1987;

Whereas in its judgment of 29 November 1988 the Court held:

- by sixteen votes to three that there had been no violation of

Article 5, paragraph 1 (art. 5-1), of the Convention;

- by twelve votes to seven that there had been a violation of

Article 5, paragraph 3 (art. 5-3), of the Convention in respect of

all four applicants;

- unanimously that there had been no violation of Article 5,

paragraph 4 (art. 5-4), of the Convention;

- by thirteen votes to six that there had been a violation of

Article 5, paragraph 5 (art. 5-5), in respect of all four applicants;

- unanimously that it was not necessary also to consider the case

under Article 13 (art. 13) of the Convention;

Whereas in its judgment of 30 May 1989 the Court held unanimously

that the principal judgment in itself constituted sufficient just

satisfaction for the purposes of Article 50 (art. 50) of the Convention;

Having regard to the Rules adopted by the Committee of Ministers

concerning the application of Article 54 (art. 54) of the Convention;

Having invited the Government of the United Kingdom to inform it of

the measures which had been taken following the judgment of

29 November 1988, having regard to its obligation under Article 53

(art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of

Ministers, the Government of the United Kingdom gave the Committee

information about the measures taken in consequence of the judgment,

which information appears in the appendix to this resolution;

Whereas in the present case it is not for the Committee of Ministers

to pronounce on the validity of a derogation entered according to

Article 15 (art. 15) of the European Convention on Human Rights,

Decides, after having taken note of the information supplied by the

Government of the United Kingdom, to discontinue its examination of

the present case.

Appendix to Resolution DH (90) 23

Information provided by the Government of the United Kingdom

during the examination of the Brogan and others case

by the Committee of Ministers

The Government of the United Kingdom informed the Committee of

Ministers that, notwithstanding careful consideration of possible

alternatives, it had not been possible to identify a procedure which

could satisfy the requirements of Article 5, paragraph 3 (art. 5-3),

of the Convention on the issue of the review of detention of terrorist

suspects by a judge or other officer authorised by law.

In consequence, and in the context of the continued threat to the

United Kingdom posed by terrorism connected with the affairs of

Northern Ireland, the Government of the United Kingdom has concluded

that the derogation notified on 23 December 1988 and 23 March 1989

that was entered according to the possibility afforded by Article 15

(art. 15) of the Convention to any High Contracting Party in time of war

or other public emergency threatening the life of the nation must

remain in place for as long as circumstances require. The arrest and

detention powers granted to the police and the Secretary of State

under the former Section 12 of the Prevention of Terrorism (Temporary

provisions) Act 1984 (now Section 14 of the Prevention of Terrorism

(Temporary provisions) Act 1989) will therefore remain.

The Government of the United Kingdom does not consider that any

action is required as a result of the finding of a violation by the

Court of Article 5, paragraph 5 (art. 5-5), of the Convention. It is the

Government's view that, provided the national law (if necessary as

modified by a derogation) complies with the state's obligations under

Article 5, paragraphs 1 to 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4),

no question of compensation arises. Article 5, paragraph 5

(art. 5-5), does not require in itself that paragraphs 1 to 4 of

Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) be incorporated

into domestic law.

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