PARTLY DISSENTING OPINION

MM. J. A. Frowein, S. Trechsel, H. G. Schermers, and

Mrs.  G. H. Thune

        Under Article 5 para. 3 of the Convention, persons arrested on

suspicion of having committed an offence have the right to be brought

promptly before a judge or other officer authorised by law to

exercise judicial power.  This is an essential guarantee.  History

demonstrates how easily the power of the police to arrest people can

be abused and how important judicial safeguards against arbitrary

detention are.  The purpose of Article 5 para. 3 is to provide such

safeguards.  This provision does not stand in the way of criminal

investigation.  It only requires that detention be controlled by a

judicial authority.

        In a case against the Netherlands (Dec.  No. 2894/66, Yearbook

IX p. 564 at p. 568), decided on 6 October 1966, the Commission

considered that the Contracting Parties were given a certain margin of

appreciation when interpreting and applying the requirement of

promptness in Article 5 para. 3 and it accepted a period up to a

maximum of four days.  Since this decision the word "promptly" has been

interpreted as meaning within 4 days (see De Jong, Baljet,

Van Den Brink v. the Netherlands, Comm.  Report 11.10.82, para. 88).

The acceptance of any longer period would serve as a precedent and

thus weaken the notion of promptness.  Moreover a longer period would

be incompatible with the permissible period of police detention in

most of the member States.

        The question arises in the present case whether the combat

against terrorism justifies an interpretation of the word "promptly"

in a more lenient way than in the case of ordinary criminal offences.

Under the Prevention of Terrorism (Temporary Provisions) Act 1984

persons can be detained for seven days without being brought before a

court, although the approval of the Secretary of State is needed for

any detention beyond 48 hours.  While the extension procedure offers a

degree of control, the Secretary of State does not possess the

independence of a judicial body.  For this reason, control by the

Secretary of State cannot fulfil the requirement of Article 5 para. 3.

        In the opinion of the majority, the struggle against terrorism

justifies that all citizens should accept the risk of being detained

for some time beyond four days without being brought before a judge.

We cannot accept this position.  It is precisely in situations where

wider powers of arrest are conferred on the authorities to cope with an

organised terrorist threat that the need for judicial control against

the abuse of power is greatest.  It cannot be said that the need for

judicial control is less than in respect of detention for ordinary

criminal offences.

        The Government has alluded to special problems which exist

when suspected terrorists are arrested and detained (paras. 67 and 72

of the Report).  We agree that account must be taken of these problems

but it has not been shown that they exclude judicial control of

detention.  Moreover the following elements should also be taken into

account, which indicate that shorter periods would have been

sufficient in the present cases:

a.      the applicants were not arrested during any kind of

disturbance or riot.  The hour at which they were arrested

and the fact that they were arrested at their homes suggests

that the arrests were planned in advance;

b.      on their arrest the applicants were not informed of

the details of any criminal offence that they were alleged

to have committed or given any other reason for their arrest

and detention, apart from the general information that they

were arrested under a particular Act and that they were

suspected to have been involved in acts of terrorism.  Such

a general ground for arrest involves a risk of abuse, in

particular, when the arrested persons are subsequently set

free without having been brought before a court.  Such a

risk of abuse, in our view, increases the need for judicial

control.

        In our opinion, there is no valid reason to distinguish

between the four cases and we therefore conclude that the requirement

of promptness in Article 5 para. 3 of the Convention was not respected

in any of the cases.  It follows, therefore, that we also find

breaches of Article 5 para. 5 in all of the cases.