PARTLY DISSENTING OPINION OF JUDGE JAMBREK

I subscribe to the joint dissenting opinion of Judges Loizou, Morenilla and Makarczyk as regards the violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5).

I also wish to make some additional points, which reflect my own reasoning related to the case.

1. In the examination of the matter of "reasonable suspicion", the key issue seems to me to be whether "at least some facts or information" were furnished by the Government, which would satisfy an objective observer that the person concerned may have committed the offence. In my opinion this condition of reasonableness was not fulfilled. It was suggested by the representative of the Government that "primary facts", obtained from a reliable confidential source, which cannot be disclosed must be differentiated from "something other than the primary facts or information". Elements of the latter kind, he claimed, had been provided which should be capable of so satisfying an objective observer. He cited:

(a) the honest belief of the arresting officer,

(b) the briefing by a superior officer, and

(c) circumstances preventing disclosure of information.

In my view all three are capable of satisfying the condition of an honest or genuine suspicion, but do not constitute "at least some facts or information" on which a reasonable suspicion could be based. Neither honesty of an arresting officer, nor honesty of superior officer, nor the circumstances of a suspected terrorist crime fall into this category.

At the hearing the Government ’ s representative also identified three other kinds of more specific "objective evidence", namely the conviction of the first applicant ’ s brothers, her contacts with them and her visits to America . The problem with these facts, as I see it, is that none of them per se may be held against the first applicant to incriminate her. They rather resemble the incrimination of a person ’ s status, in this case the first applicant ’ s kinship relationship.

I am therefore led to conclude that there has been a violation of Article 5 para. 1 (art. 5-1) in respect of the first applicant, following the reasoning in the Fox, Campbell and Hartley v. the United Kingdom judgment (judgment of 30 August 1990, Series A no. 182).

2. Was it possible for the Court to set some modified standards for "reasonable suspicion" in the context of emergency laws enacted to combat terrorist crime?

At this point I wish to explain some of my "philosophic prejudices" related to this issue. Much was made in the Government ’ s memorial of the specific features of terrorist crime and the relevant emergency provisions, allowing for the tipping of the balance between State and individual interests in the direction of the raison d ’ Etat. However, the existence of an emergency may be used to argue in favour of both interests involved, namely that of the Government and that of the arrested person. For example, under emergency laws, individual rights may be abused even more easily and on a larger scale than in normal times. They should therefore be given an even more careful protection in view of the intensity of national interests in taking repressive measures against crime. Suspects should thus not be denied being provided with at least some evidence and grounds for their arrest, in order to be able to challenge the allegations against them. Neither should the competent domestic court be left without persuasive evidence supporting the required reasonableness of the arrest.

I also do not dispute that by and large intelligence-gathering organisations do indeed obtain "reliable" items of information which have to be kept confidential, and which should be trusted without closer examination.

But are the items obtained all and always relevant? We may assume that at least some of them are irrelevant or already notorious. Information on persons ’ travel abroad or on their kinship relationships, for example, may be very reliable and also happen to be classified as secret, but it may be irrelevant or already notorious. Therefore I would hesitate to make life for the intelligence-gathering services too easy, at the expense of detainees and especially at the expense of the domestic courts.

3. My underlying philosophic approach having been identified, some more "technical" points about the case may be made.

The search for a balance between the State ’ s interest in fighting crime and the protection of the individual ’ s fundamental rights is the obvious task of the Strasbourg Court . To this end I would propose clarifying the following preliminary issues:

First, what is the relationship between the Article 5 para. 1 (c) (art. 5-1-c) requirement of "reasonable suspicion" and the Article 5 para. 2 (art. 5-2) right to be "informed promptly of the reasons for his arrest and of any charge against him"?

Are grounds for reasonable suspicion identical to reasons for arrest?

A usual consequence of the implementation of Article 5 para. 1 (c) (art. 5-1-c) is that the national courts will, if need be, be called on to decide whether the arresting officer entertained reasonable suspicion of an offence committed by the detainee, while the purpose of Article 5 para. 2 (art. 5-2) is to enable the arrested person to assess the lawfulness of the arrest and take steps to challenge it, if need be. This difference may justify differential treatment of evidence supporting such reasons in terms of their confidentiality.

A further point is that the Court referred in the Fox, Campbell and Hartley case to "information which ... cannot ... be revealed to the suspect or produced in court to support the charge".

Two questions seem to me relevant in this respect. First, is there a difference between revealing information to the suspect and then producing it in court? Probably not. And secondly, is there a difference between information made available to the court and information produced in a court, that is revealed to the suspect?

In this connection I see some scope for compromise between the wish to preserve the Fox, Campbell and Hartley standard and, at the same time, the need to expand and elaborate its reasoning in order to adapt it better to the Murray case and other similar cases.

The "technical" question could also be posed whether otherwise confidential information could not be rephrased, reshaped or tailored in order to protect its source and then be revealed. In this respect the domestic court could seek an alternative, independent expert opinion, without relying solely on the assertions of the arresting authority.

4. I voted for non-violation of Article 8 (art. 8) because I do not see a necessary link between the breach of the requirements of Article 5 para. 1 (art. 5-1) and the interference in the private and family life of Mrs Murray (and her family). I am satisfied with the approach of the Court in regard to Article 8 (art. 8), and, in particular, with its conclusion that the interference was in accordance with the law and that the contested measures pursued a legitimate aim and were necessary in a democratic society (paragraphs 88 to 94 of the judgment).

However, in the light of my views as to the violation of various provisions of Article 5 (art. 5), I cannot subscribe to the Court ’ s reasoning in paragraph 92 of the judgment, namely that Mrs Murray was reasonably suspected of the commission of a terrorist-linked crime and that this fact justified the need to enter and search her home. The finding of non-violation of Article 8 (art. 8) can be sufficiently well grounded regardless of the reasoning in paragraph 92 of the Court ’ s judgment.

[1] . The case is numbered 13/1993/408/487.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 300-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[4] . Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182.

[5] . English translation by W. and E. Muir from the German original Der Prozess – Penguin reprint 1953, p. 18.