JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER AND VALTICOS

(Translation)

1.   The application of Article 5 para. 3 (art. 5-3) is complex in the instant case, because it raises a question of legal construction - which has in fact already been decided in earlier cases - and brings different rights and interests into conflict. We cannot share the view of the majority of the Court as to the way in which the issue should be resolved.

As regards the question of legal construction, firstly, it is clear that in several previous cases the Court and the Commission have both taken the view that the requirement that "everyone arrested or detained ... shall be brought promptly [in French: aussitôt ] before a judge ..." does not, given the English term used and the general context, mean that this must be done immediately and instantaneously, but that it must be done as soon as possible having regard to place, time and the circumstances of each case. Some - limited - discretion is here left to governments, subject to review by the Convention institutions.

The question is how much latitude is allowable. Obviously the acceptable period of time will not be the same in every case, and it would be artificial to lay down a numerical limit valid for all situations. The Court has on more than one occasion held that it is impossible to translate the concept of reasonable time into a fixed number of days, weeks, etc. (see the Stögmüller judgment of 10 November 1969 , Series A no. 9). Thus, in each case, there arises a question of assessment, which will depend on the particular circumstances.

In earlier cases, the Commission took the view that in the case of ordinary criminal offences a period of four days ’ detention was consistent with the requirement of Article 5 para. 3 (art. 5-3), and a period of five days was found to be acceptable in an exceptional case in which the detainee had had to be hospitalised. On the other hand, both the Court and the Commission held that various cases - concerning mostly Sweden and the Netherlands - in which the periods spent in custody prior to appearance before a judge or other judicial officer ranged from seven to fifteen days were incompatible with the provision in question.

The background to the instant case is a situation which no one would deny is exceptional. Terrorism in Northern Ireland has assumed alarming proportions and has claimed more than 2,000 victims who have died following actions of this kind. The nature and organisation of terrorism, the fear it inspires and the secrecy surrounding it make it difficult, having regard also to the applicable criminal procedure (which does not provide for the swift intervention of an investigating judge), to bring detainees promptly before a court. At the same time there can be no question of accepting prolonged detention, which violates the rights of the persons detained and is in any case expressly prohibited in Article 5 para. 3 (art. 5-3), a provision fundamental to the protection of personal liberty.

It is therefore necessary to weigh carefully, on the one hand, the rights of detainees and, on the other, those of the population as a whole, which is seriously threatened by terrorist activity.

In the instant case, the four applicants were detained without being brought before a judicial authority for periods varying from four days and six hours to six days and sixteen and a half hours.

In our view, no distinction can be made between these individual cases as they all fall within the same category and the various periods do not differ very substantially.

In view of the exceptional situation in Northern Ireland, which was referred to above, it seems to us that in the final analysis, if a period of four days has been accepted in the case of normal situations, it would be reasonable to regard the foregoing periods of time, which are all less than a week, as being acceptable. Such a view fits in with the case-law and is justified by the wholly exceptional conditions obtaining in Northern Ireland .

While considering, therefore, that there was no breach of Article 5 para. 3 (art. 5-3) in the instant case, we are anxious to stress that this view can be maintained only in so far as such exceptional conditions prevail in the country, and that the authorities should monitor the situation closely in order to return to the practices of ordinary law as soon as more normal conditions are restored, and even that, until then, an effort should be made to reduce as much as possible the length of time for which a person is detained before being brought before a judge.

2.   Nor can we follow the majority of the Court in finding a breach of Article 5 para. 5 (art. 5-5). On the one hand, since we take the view that there has been no violation of Article 5 para. 3 (art. 5-3), no question of reparation arises. On the other hand, the determination of the exact scope of Article 5 para. 5 (art. 5-5) and of the conditions under which a detention considered to be wrongful can ground an entitlement to compensation raises difficult issues and it does not appear appropriate to us to discuss them on the present occasion.