JOINT DISSENTING OPINION OF JUDGES LOIZOU, MORENILLA AND MAKARCZYK

1. Although we agree with the majority of the Court that, when interpreting and applying the Convention, due account should be taken of the special nature of terrorist crime, of the exigencies of investigating terrorist activities and of the necessity of not jeopardising the confidentiality of reliable sources of information, we cannot concur with its conclusion of no violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5), and Article 8 (art. 8) of the Convention in the present case.

On the contrary, a violation of the applicants ’ fundamental rights to liberty and security and to respect for private life is disclosed by the circumstances of the case, namely the Army ’ s entry into and search of the applicants ’ home at 7 a.m. without warrant; the assembling of Mrs Murray ’ s husband and four children in a room of the house during half an hour; her arrest and detention during two hours for questioning in a military screening centre on suspicion of her involvement in terrorist activities because her brothers had been convicted in the United States of America of offences connected with the purchase of arms for the Provisional IRA; and the failure to inform her of the reasons for her arrest (paragraphs 9 to 34 of the judgment).

2. Regarding the arrest and detention of Mrs Murray, we regret that we are not convinced by the majority ’ s arguments, particularly in paragraphs 62 and 63, as to the reasonableness of the suspicion that she had committed the above-mentioned offence; nor do we find that the facts of this case are materially different from those in the Fox , Campbell and Hartley judgment [4] , where the Court found a violation of Article 5 para. 1 (art. 5-1) because it considered the elements furnished by the Government to be insufficient to support the conclusion that there had been a "reasonable suspicion" that the arrested persons had committed an offence.

3. The conviction in the United States of Mrs Murray ’ s two brothers of offences connected with the purchase of weapons for the Provisional IRA, her visit to her brothers there and the reference to the collaboration with "trustworthy" persons residing in Northern Ireland implied by such offences are not, in our opinion, sufficient grounds for reasonably suspecting the first applicant of involvement in the offence of collecting funds in Northern Ireland to buy arms in the United States for terrorist purposes. Family ties cannot imply a criminal relationship between the author of the offence and his or her relatives; nor can the "co-operative" nature of the crime be considered a valid basis for a reasonable suspicion of complicity on the part of members of the family or friends of the criminal. These circumstances may give rise only to a bona fide suspicion of such complicity. They do not give rise to a "reasonable" suspicion such as to justify the serious measures taken against the applicants unless they are connected with other facts in direct relation to the offence. No facts of this kind have however been furnished by the respondent Government, although, in our opinion, they could have been supplied without jeopardising the confidentiality of the source of information which is necessary to protect the life and personal safety of that source (paragraph 52 of the judgment).

4. The Court ’ s task, as stated by the majority (paragraph 66 of the judgment), is to determine whether the conditions laid down by sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) have been fulfilled in the circumstances of the particular case. With due respect to the review that the national courts have conducted of the facts of the case (paragraph 60 of the judgment) and to their findings and conclusions in the proceedings brought by Mrs Murray, it falls to our Court, pursuant to Article 19 (art. 19) of the Convention, to ensure the observance of the engagement undertaken by the States Parties under Article 1 (art. 1) to secure everyone within their jurisdiction, inter alia, the right to liberty and the right to respect for private life. In the exercise of this power of review the Court must ascertain whether the essence of the safeguard afforded by this provision of the Convention has been secured. "Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence" (Fox, Campbell and Hartley judgment, p. 18, para. 34).

5. In the instant case the specific circumstances of the entry into and search of the applicants ’ home by the Army, the limited role of the Army in the investigation of terrorist crimes under United Kingdom law (paragraphs 36 to 38 of the judgment) and, moreover, the personal circumstances of Mrs Murray, a mother of four children with health problems and no criminal record (paragraph 9 of the judgment and document Cour (93) 290, Annexes A-B, pp.100 B-C, 116 B-C), required a higher level of suspicion and the application to the respondent Government of a stricter standard when justifying before this Court the "reasonableness" of the suspicion. Needless to say that the domestic courts examined the issue from the standpoint of section 14 of the 1978 Act, which required an honest and genuine, rather than a reasonable, suspicion. The scope of their examination was confined to that.

6. Regarding the alleged violation of Article 5 para. 2 (art. 5-2) of the Convention, in our view the evidence as to Mrs Murray ’ s questioning at the military screening centre (paragraphs 16 to 27 of the judgment), the vague indications and the questions put to her lack the necessary precision to justify a conclusion that she was informed of the reasons for her arrest. From the recorded questions about her brothers or "about money and about America ", it is not possible for us to conclude that it was apparent to her "that she was questioned about her possible involvement in the collection of funds for the purchase of arms for the Provisional IRA by her brothers in the USA ".

7. In the Fox, Campbell and Hartley judgment (paragraph 40) the Court declared that "[p]aragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4)".

In our opinion, bearing in mind the totality of the circumstances, including the nature of the questions put to Mrs Murray in the course of her interrogation (paragraphs 14 and 21 of the judgment), the information given to Mrs Murray did not meet this basic standard.

8. As to Article 5 para. 5 (art. 5-5) of the Convention, since Mrs Murray ’ s arrest and detention were in breach of paragraphs 1 and 2 of this Article (art. 5-1, art. 5-2), she was entitled to an enforceable right to compensation in accordance with this provision. We would recall, as did the Commission (report, paragraph 75), that in the similar case of Fox, Campbell and Hartley (paragraph 46) the Court found a violation of Article 5 para. 5 (art. 5-5).

9. The alleged violation of Article 8 (art. 8) of the Convention is directly linked with the issues under Article 5 para. 1 (art. 5-1) of the Convention. Consequently, our conclusion is that, a breach of this provision having been found to have occurred in the circumstances of the case, the above-mentioned measures taken by the Army interfering in Mrs Murray ’ s private life cannot, in the absence of an objective justification of the suspicions of Mrs Murray ’ s terrorist activity, be regarded as necessary in a democratic society for the prevention of crime in accordance with paragraph 2 of Article 8 (art. 8-2). We therefore also find a violation of this provision of the Convention.