CONCURRING OPINION OF JUDGE RUSSO

(Translation)

I share the view of the majority of my colleagues that the derogation notified by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that the applicants cannot therefore validly complain of a violation of Article 5 para. 3 (art. 5-3).

As is noted at paragraph 51 of the judgment the derogation of 23 December 1988 is clearly linked to the persistence of the emergency situation. This, in my opinion, means that its validity must be strictly limited to the time necessary for the Government to find a means of ensuring greater conformity with Convention obligations (see paragraph 54, third sub-paragraph, of the judgment).

The finding of a non-violation thus refers to the case in issue and to the situation which existed when the applicants were arrested. If the derogation were to be extended and to become almost permanent, I would consider it to be incompatible with the guarantees which the Convention affords in respect of liberty of the person and which are of fundamental importance in a democratic society. It is therefore "in principle" only that "the decision to withdraw a derogation is ... a matter within the discretion of the State (see paragraph 47, second sub-paragraph, of the judgment); they do not enjoy complete freedom in this area.

DISSENTING OPINION OF JUDGE DE MEYER

Certainly the situation in relation to terrorism connected with the affairs of Northern Ireland has for a long time been very serious and it still remains so at the present time. One can thus understand that for this reason the Government of the United Kingdom have, since 1957, repeatedly felt it appropriate to avail themselves of their right of derogation under Article 15 (art. 15) of the Convention.

In 1984 they had come to the conclusion that this was no longer necessary.

We have been told that one of their reasons for doing so was their belief that detaining for up to seven days a person suspected of terrorism without bringing that person before a judge or other judicial officer was not inconsistent with their obligations under the Convention [*] .

In our Brogan and Others v. the United Kingdom judgment of 29 November 1988 we held that this assumption was wrong, and we strongly emphasised the importance of the fundamental human right to liberty and the need for judicial cont rol of interferences therewith [*]  .

The Government of the United Kingdom have tried to escape the consequences of that judgment by lodging once again a notice of derogation under Article 15 (art. 15) in order to co ntinue the practice concerned [*]   .

In my view, this is not permissible: they failed to convince me that such a far-reaching departure from the rule of respect for individual liberty could, either after or before the end of 1988, be "strictly required by the exigencies of the situation".

Even in circumstances as difficult as those which have existed in respect of Northern Ireland for many years it is not acceptable that a person suspected of terrorism can be detained for up to seven days without any form of judicial control.

This was, in fact, what we had already decided i n the Brogan and Others case [*]    and there was no valid reason for deciding otherwise in the present one.