CONCURRING OPINION OF JUDGE MATSCHER, JOINED BY JUDGE MORENILLA

(Translation)

In the final analysis I subscribe to the conclusion reached by the majority of the Court, namely that the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3) and that there had been no violation of Articles 5 para. 5 and 13 (art. 5-5, art. 13) of the Convention.

Nevertheless - and particularly from the point of view of method - I should like to stress the following:

Correctly - and for reasons with which I entirely agree - the Court found that the derogation - in substance from the first sentence of Article 5 para. 3 (art. 5-3) - notified by the United Kingdom by virtue of Article 15 (art. 15) satisfied the requirements of that provision. Accordingly, during the period of validity of that derogation, Article 5 para. 3 (art. 5-3) is quite simply inapplicable in the United Kingdom . It follows that any discussion of whether it has been complied with is redundant (see paragraph 37 of the judgment). I would add that the inapplicability of Article 5 para. 3 (art. 5-3) necessarily entails that of Article 5 para. 5 (art. 5-5), as well as that of Article 13 (art. 13) in respect of the first-mentioned provision.

In my view, a derogation pursuant to Article 15 (art. 15) may be classified as a temporary "reservation" (within the meaning of Article 64) (art. 64) as regards its "substantive" effects. The difference between the two devices - reservation and derogation - lies in the fact that, in respect of the former, the Court ’ s power of review is confined to the formal aspects of the validity - within the meaning of Article 64 (art. 64) - of the declaration relating thereto (see the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, pp. 24 et seq., paras . 50 et seq.), whereas for the latter the Court must also satisfy itself that the substantive conditions for its validity have been met (not only when the derogation is notified, but also subsequently whenever the Government relies on such a derogation). However, as I have just said, the "substantive" effects of a reservation and a declaration of derogation, provided that they are validly made, are exactly the same, in other words quite simply the inapplicability of a specific provision of the Convention.

A different line of reasoning applies with regard to the applicability of Article 14 (art. 14) in conjunction with a provision of the Convention which is the subject of a derogation or a reservation; whereas Article 14 (art. 14) cannot be invoked in relation to a provision which is the subject of a reservation, it remains applicable in respect of a substantive provision of the Convention, notwithstanding the fact that the latter is subject to a derogation. It is, however, unnecessary to go into this question more thoroughly. It is moreover an aspect which I discussed at the Fifth International Colloquy on the Convention (Frankfurt-on-Main 1980, p. 136 of the relevant publication); reference may also be made to my separate opinion on the subject in the Ireland v. United Kingdom judgment of 18 January 1978 , Series A no. 25, pp. 140 et seq.

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I parted company with the majority which voted for the non-violation of Article 5 paras . 3 and 5 and Article 13 (art. 5-3, art. 5-5, art. 13) in so far as it took the view that the derogation invoked by the Government of the United Kingdom fulfilled the requirements of Article 15 (art. 15) of the Convention. I consider that those requirements were not satisfied and that there was, on the merits, a violation of Articles 5 and 13 (art. 5, art. 13).

The European Court has jurisdiction to carry out a review of the derogations from the guarantees recognised as essential for the protection of the rights set out in the Convention, certain of which are not even susceptible to derogation (Articles 2, 3 and 7) (art. 2, art. 3, art. 7). It was therefore competent to examine whether the derogation from the guarantees of Article 5 (art. 5), following a judgment of the European Court finding on similar facts a violation of that Article (art. 5) (Case of Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B) was indeed in conformity with Article 15 (art. 15) (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25).

Even if it is accepted that States have a margin of appreciation in determining whether they are threatened by a "public emergency" within the meaning of the Lawless v. Ireland judgment (judgment of 1 July 1961, Series A no. 3) and, if they are, in deciding whether to resort to the solution of a derogation, the situation relied on must be examined by the European Court.

The fact of terrorism and its gravity in Northern Ireland is incontestable. It led to the acceptance of an extension of police custody by the 1974 Act and by the 1976 and 1984 Acts.

Following the Brogan and Others judgment of 29 November 1988 , the United Kingdom availed itself on 23 December 1988 of its right of derogation under the Convention.

It does not appear from the evidence that the terrorist phenomenon became more serious in Northern Ireland between the period of the arrest of Mr Brogan and the other three applicants and 29 November 1988 and 23 December 1988, which led Mr Brannigan and Mr McBride to maintain that the request for a derogation was a means of circumventing the consequences of the Brogan and Others judgment.

In any event, the derogation cannot constitute a carte blanche accorded to the State for an unlimited duration, without its having to adopt the measures necessary to satisfy its obligations under the Convention.

The Government contended that it was only when the European Court ruled in the Brogan and Others case that it became apparent that the powers conferred on the police by the 1974 Act were incompatible with Article 5 para. 3 (art. 5-3) (excessive duration of police custody).

The Government accepted the Commission ’ s reasoning according to which the derogation remains:

"... consistent with the nature and spirit of Article 15 (art. 15), and in particular paragraph 3 (art. 15-3). Implicit in Article 15 (art. 15) is the requirement that derogation measures should be kept under constant review and, if necessary, modified if they are to meet the strict exigencies of an emergency situation which can recede or otherwise develop. As the Court held in the case of Ireland v. the United Kingdom , the interpretation of Article 15 (art. 15) must leave a place for progressive adaptations (Series A no. 25, p. 83, para. 220)". (Commission ’ s report, paragraph 56)

However, the need for the above-mentioned powers - for the derogation - remains constantly open to scrutiny.

The State was under a duty to implement mechanisms complying with the Brogan and Others judgment and making it possible to conform thereto without resorting to derogation.

The Commission in the Ireland v. the United Kingdom case added, correctly,

"There must be a link between the facts of the emergency on the one hand and the measures chosen to deal with it on the other. Moreover, the obligations under the Convention do not entirely disappear. They can only be suspended or modified ‘ to the extent that is strictly required ’ as provided in Article 15 (art. 15). (This limitation, in the circumstances, may require safeguards against the possible abuse, or excessive use, of emergency measures.) In the present case, it must be shown that the emergency affected the normal functioning of the community and the administration of law" (Series B no. 23-I, p. 119).

The Government argued on the one hand that the introduction of a judicial element into the procedure for authorising the extension of detention could not render it compatible with Article 5 para. 3 (art. 5-3); on the other hand, that such a reform, even if the State had accepted its principle, would have required a long period of reflection and the elaboration of new legislation.

On the first point, the Government stated that it had ordered

"a full re-examination of the question whether it would be feasible to introduce a judicial element into the procedure for authorising extensions, which would be compatible with the provisions of Article 5 para. 3 (art. 5-3) but which would not weaken the effectiveness of the response to the serious terrorist threat. For the reasons given in the Written Answer of the Home Secretary of 14 November 1989 (see paragraph 2.58 of the Government ’ s observations) the Government reluctantly concluded that no satisfactory alternative procedures could be identified. In particular the view was taken that to involve the judiciary in the process of granting or approving extensions of detention in terrorist cases would create a very real risk of undermining their independence. In the continuing fight against organised terrorism, the judiciary perform a central and vital role. It is on the judiciary that the responsibility rests for upholding the rule of law and for ensuring that those charged with acts of terrorism receive a fair trial. The judiciary - and particularly the judiciary in Northern Ireland - have for very many years been required to perform this role in acutely difficult circumstances. The Northern Ireland judiciary is small in size (there are at present ten High Court judges, thirteen County Court judges and seventeen Resident Magistrates in the whole Province) and on them falls the heavy burden of trying suspected terrorists and doing so without the benefit of a jury. In addition to terrorist attacks (including murders) made on members of the judiciary and on court buildings since 1973, there have been concerted attacks made on the authority of the judiciary by terrorist organisations dedicated to the destruction of the rule of law.

If the judiciary is to continue to play its central role under the common law system in upholding the rule of law, it is crucial that it should not only be rigorously independent of the Executive, including the police, and the prosecuting authority, but that it should be seen to be independent. If the judiciary were to be involved in the process of granting or approving extended detentions on terrorist cases, it could not avoid being perceived as part of the investigation and prosecution process. This perception would only be enhanced if, as would almost invariably be the case, the judicial officer was required to act on the basis of material which could not be disclosed to the person detained or his legal advisers. As the Home Secretary ’ s Written Answer made clear, it is the Government ’ s judgment that this is a risk, which in the circumstances of the present terrorist threat simply cannot be taken.

It is recognised that some might disagree with this judgment and would consider that the risk of damaging public trust in the judicial system was a risk worth running. While this is doubtless a legitimate point of view" (paragraph 2.34 of the Government ’ s memorial),

It is somewhat surprising considering the British tradition which legitimately places the judge at the summit of the system of guarantees in all the spheres of freedoms.

It is difficult to believe that the independence of a judge would be undermined because he took part in proceedings making it possible to grant or approve an extension of detention.

This system operates in England and in Wales , despite the fact that terrorist acts are perpetrated there. The argument that the appeal to a judge would mean that "the application would have to be made ex parte : the judge would be determining the issue in the absence of the detained person or his representatives on the basis of material which could not be disclosed to either" is not persuasive.

The member States of the Council of Europe which went through serious periods of terrorism (for example Italy ) confronted such terrorism while retaining judicial involvement in extended police custody. It would be possible to find in comparative law and in criminal procedure examples of judicial mechanisms protecting the use by the police of "informers" who have to remain anonymous. In camera hearings can be envisaged. The British system too has recourse to the principle of immunity which makes it possible for the public prosecutor not to disclose certain prosecution evidence. It is thus possible to avoid the disadvantages of the ordinary procedural rules applicable at this stage (see the Edwards v. the United Kingdom judgment of 16 December 1992 , Series A no. 247-B). Is there not, on the part of the police, a desire to conceal from the courts some of their practices?

The two dissenting members of the Commission, Mr Frowein and Mr Loucaides , who was joined by Mrs Thune and Mr Rozakis , noted that the Government had neither provided any evidence nor put forward any convincing arguments as to the reasons for which they had not chosen to proceed otherwise than by using the derogation, namely by the introduction of judicial review of the extension of detention from four to seven days.

The means of protecting information concerning State security exist even in proceedings subject to judicial review, if necessary by a mechanism imposing a temporary restriction on communication. It is difficult to see the difference of approach which would in these circumstances render powerless or less independent the judge responsible for reviewing extension, or responsible for reviewing the Minister ’ s decision, in relation to a judge called upon to rule on a habeas corpus application.

If, on the other hand, other means might be adopted, as has been suggested by some legal writers, they could surely have been adopted between 29 November 1988 and 23 December 1988; this would mean that even if the Court were to take as its basis for the decision the date on which the derogation came into force or the date on which Mr Brannigan ’ s application was lodged, i.e. 19 January 1989 rather than the date of the judgment in 1993, it could have found a violation, because such a reform could have been adopted, in view of the urgency, within a relatively short period.

The quid pro quo for a derogation based on a public emergency threatening a State must be the implementation by the State of means enabling it to overcome the obstacles, in particular when a decision of the European Court has found a violation of Article 5 (art. 5), and therefore to re-examine in an appropriately short time the reality of the emergency and the persistence of the threat.

The argument based on recourse to habeas corpus does not appear convincing. The experience of the years 1974 to 1993 establishes that habeas corpus in respect of the extension of detention is not an effective remedy for the purposes of the Court ’ s case-law. Even if Article 13 (art. 13) does not require the incorporation of the Convention into domestic law, it does require an effective remedy to ensure that that instrument is complied with.

From that point of view the conditions of the incommunicado detention were contrary to Article 5 (art. 5).

At paragraph 20 of its comments of 21 August 1992 Amnesty observed as follows:

"Experience has shown that incommunicado detention of any period can put detainees at risk. This is not only Amnesty International ’ s experience as noted above, but also that of the United Nations. The Special Rapporteur on torture of the United Nations Commission on Human Rights, Mr Peter Kooijmans , Professor of International Law at the University of Leiden , has drawn attention to the connection between incommunicado detention and torture in every annual report he has submitted to the Commission. Since 1988 he has routinely called on States to declare such detention illegal. Amnesty International would be deeply concerned if States were to be allowed to impose periods of incommunicado detention, or deny access to judicial redress and/or medical attention, especially during states of emergency. In the context of its ruling in this case, Amnesty International urges the Court to declare that certain minimum guarantees are inherent in the non- derogable rights and as such can never be the subject of derogation. It also urges that any restriction to judicial redress should be carefully scrutinised. A wide margin of appreciation is inappropriate in such cases."

In my view, the standards and rules of international law prohibit extended "incommunicado detention" (Principle 37 of the Body of Principles cited by Amnesty); this is particularly the case where "the person detained is not brought before a judicial or other authority provided by law promptly after his arrest".

In the Brannigan and McBride case, in my opinion, the Government ’ s action fell outside the margin of appreciation which the Court is able to recognise. The fundamental principle which must prevail and which is consistent with British and European tradition is that detention cannot be extended from four days to seven days without the involvement of a judge, who is the guarantor of individual freedoms and fundamental rights.