PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1.   In my opinion, there was also a violation of Article 5 para. 1 (art. 5-1) for the following reasons.

2.   "... [T]he Court has stressed the vital role of the international jurisdiction and the necessity of interpreting restrictions on personal freedom strictly having regard to the exceptional importance of the right guaranteed, which is crucial for the freedom and dignity of the human being" (Louis-Edmond Pettiti , preface to the book by Vincent Berger, Jurisprudence de la Cour européenne des Droits de l ’ Homme ).

3.   A "person whom it is reasonably considered necessary to prevent ... committing an offence" may be arrested or detained only "for the purpose of bringing him before the competent legal authority" (see the Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-52, para. 14). The applicants, however, were detained for the purposes of the investigation so that evidence could be gathered, and not "for the purpose of bringing [them] before the competent legal authority".

4.   Detainees are required to be brought before the competent legal authority in order that the lawfulness of their detention may be monitored; an assessment has to be made of whether the suspicions of the police are reasonable.

I do not consider it compatible with the Convention that a police officer should arrest a person whom he reasonably suspects of being or having been involved in the commission, preparation or instigation of terrorist acts and that the police should not be required to answer to a judicial authority in order that it may be verified that there is a reasonable suspicion.

DISSENTING OPINION OF JUDGES WALSH AND CARRILLO SALCEDO IN RESPECT OF ARTICLE 5 PARA. 1 (c) (art. 5-1-c)

We believe that Article 5 (art. 5) of the European Convention on Human Rights does not afford to the State any margin of appreciation. If the concept of a margin of appreciation were to be read into Article 5 (art. 5), it would change the whole nature of this all-important provision which would then become subject to executive policy.

An arrest made under section 12 of the Prevention of Terrorism Act 1984 as modified or amended by the various orders mentioned in the case and the detention thereby permitted do not require the preferring of any charge against the arrested person at any time. Thus such an arrest and detention

"is not necessarily ... the first step in a criminal proceeding against a suspected per son on a charge which was intended to be judicially investigated" (see the judgment of Lord Lowry, Lord Chief Justice, in the case of ex parte Lynch, referred to at paragraph 36 of the judgment of the Court).

All that is required is a reasonable suspicion on the part of the arresting authority that the person arrested is or has been concerned in

"acts of terrorism connected with the affairs of Northern Ireland " (see paragraph 30 of the judgment of the Court).

Although in fact there is no such offence as "terrorism" (definition of which appears in paragraph 31 of the judgment of the Court), the law does not require the detained person to be informed of any specific criminal offence of which he may be suspected, nor does the law require that his interrogation should be in respect of offences of which he may be suspected. In fact his interrogation might be confined solely to matters of which other persons are suspected. The longer a person is detained in custody, the more likely he is to confess to something. In our opinion, Article 5 (art. 5) does not permit the arrest and detention of persons for interrogation in the hope that something will turn up in the course of the interrogation which would justify the bringing of a charge.

In our view the arrests in the present cases were for the purpose of interrogation at a time when there was no evidential basis for the bringing of any charge against them. No such evidence ever emerged and eventually they had to be released. That the legislation in question is used for such a purpose is amply borne out by the fact that since 1974 15,173 persons have been arrested and detained in the United Kingdom pursuant to the legislation yet less than 25% of those persons, namely 3,342, have been charged with any criminal offence arising out of the interrogation including offences totally unconnected with the original arrest and detention. Still fewer of them have been convicted of any offence of a terrorist type.

The Convention embodies the presumption of innocence and thus enshrines a most fundamental human right, namely the protection of the individual against arbitrary interference by the State with his right to liberty. The circumstances of the arrest and detention in the present cases were not compatible with this right and accordingly we are of the opinion that Article 5 para. 1 (art. 5-1) has been violated.

The undoubted fact that the arrest of the applicants was inspired by the legitimate aim of protecting the community as a whole from terrorism is in our opinion not sufficient to ensure compliance with the requirements of Article 5 para. 1 (c) (art. 5-1-c). Compliance requires that the purpose of the arrest must be to bring the person arrested before the competent legal authority on reasonable suspicion of having committed a specified offence or offences. The Convention does not permit an arrest for the purposes of interrogation in the hope of getting enough information to ground a charge.