PARTLY DISSENTING OPINION OF JUDGE SIR VINCENT EVANS

1.   I agree with the judgment of the Court that there was no violation of Article 5 para. 1 (art. 5-1) or of Article 5 para. 4 (art. 5-4) in this case and also that it is not necessary to consider the case under Article 13 (art. 13). I am unable to agree, however, with the majority of my colleagues that there have been violations of Article 5 para. 3 and of Article 5 para. 5 (art. 5-3, art. 5-5).

2.   The application of Article 5 para. 3 (art. 5-3) in the present case turns on the meaning which should be given to the word "promptly" in the context of the requirement that "everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power". Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 permits a person suspected on reasonable grounds of involvement in acts of terrorism to be detained for a period of up to seven days, subject to the authorisation of the Secretary of State after forty-eight hours, before he is released or brought before a court. The question is whether the detention of the applicants for periods ranging from four days and six hours to six days and sixteen and a half hours under the provisions of that section without being brought before a court was compatible with Article 5 para. 3 (art. 5-3).

3.   The Court has already recognised in several cases that the word "promptly" in the context of Article 5 para. 3 (art. 5-3) cannot mean "immediately". Thus in the case of de Jong , Baljet and van den Brink the Court said: "The issue of promptness must be assessed in each case according to its special features" (judgment of 22 May 1984 , Series A no. 77, p. 25, para. 52). In that case it found that "in the particular circumstances, even taking into account the exigencies of military life and military justice", intervals of six, seven and eleven days could not be regarded as consistent with the required "promptness" (ibid.). But the clear implication of this finding was that, in the Court ’ s opinion, it was consistent with the use of the word "promptly" (and " aussitôt " in the French text) and with the object and purpose of paragraph 3 (art. 5-3) to allow some - though certainly not unlimited - flexibility having regard to the circumstances in which the individuals concerned were detained.

The Commission for its part has for more than twenty years taken the view that in normal cases a period of up to four days before the detained person is brought before a judge is compatible with the requirement of promptitude and that a somewhat longer period is justifiable in some circumstances. The Court has not hitherto cast doubt on the Commission ’ s view in these respects. If anything, the Court ’ s judgments in the de Jong , Baljet and van den Brink and other cases have tended by implication to confirm it.

Furthermore, the Court has consistently recognised that States must, in assessing the compatibility of their laws and practices with the requirements of the Convention, be permitted a "margin of appreciation" and that inherent in the whole Convention is the search for a fair balance between the demands of the general interest of the community and the protection of the individual ’ s fundamental rights. In the Klass case, the Court agreed with the Commission that "some compromise between the requirements of defending democratic society and individual rights is inherent in the system of the Convention" (judgment of 6 September 1978 , Series A no. 28, p. 28, para. 59).

In my opinion, the jurisprudence thus far developed constitutes a reasonable interpretation of Article 5 para. 3 (art. 5-3), and in particular of the word "promptly".

4.   The need to assess the issue of promptness according to the special features of the case and to strike a fair balance between the different rights and interests involved are considerations which are surely relevant in the special circumstances of the situation in Northern Ireland where more than thirty thousand persons have been killed, maimed or injured as a direct result of terrorist activity in the last twenty years. The balance to be sought in applying the Convention in this situation is between, on the one hand, the interests of the community and of ordinary decent men, women and children who are so often the victims of terrorism and, on the other hand, the rights of persons suspected on reasonable grounds of belonging to or supporting a proscribed terrorist organisation or of otherwise being concerned in the commission, preparation or instigation of acts of terrorism.

The special factors held by the Government to justify the exceptional powers of detention in cases under section 12 of the 1984 Act are summarised in paragraph 56 of the Court ’ s judgment. They include the difficulty faced by the security forces in these cases in obtaining evidence which is admissible and usable particularly in consequence of the training received by terrorists in anti-interrogation techniques, the highly sensitive nature of information on which suspicion is based in many such cases making impossible its production in court in the presence of the detained person or his legal adviser, and the extra time needed for examining and correlating evidence and for liaison with other security forces. The need for the exceptional powers under section 12 to which such factors give rise is supported by the statistics quoted in the same paragraph of the judgment - that in 1987, for instance, of some 83 persons detained in excess of five days, 39 were charged with serious terrorist offences during the extended period.

Viscount Colville in chapter 12 of his 1987 Report on the operation of the 1984 Act accepted that there was no technical reason why the decison to grant an extension of a person ’ s detention beyond 48 hours should not be made by a High Court Judge instead of by the Secretary of State, but he concluded that such a change would be wrong. He pointed out that the decisions in question would have to be made by a judge sitting in camera without any effective representation of the detained person and that in his opinion the change would add nothing to the safeguards for civil liberties but could lead to unanswerable criticisms of the judiciary. These considerations were of course equally pertinent in 1984 when the applicants were detained (see, for instance, Lord Jellicoe ’ s Report of 1983 on the operation of the Prevention of Terrorism (Temporary Provisions) Act 1976, para. 70). I find them to be convincing and to support the view that the relevant provisions of section 12 of the 1984 Act do enable a fair balance to be struck between the interests of the community and the rights of persons detained thereunder.

The Court in paragraph 61 of its judgment takes notice of and does not dispute the factors adverted to by the Government and it acknowledges the special problems which the investigation of terrorist offences poses for the authorities of the State. It also accepts that the difficulties of judicial control over decisions to arrest and detain suspected terrorists may call for "appropriate procedural precautions". The majority of the Court have nevertheless felt constrained to interpret the word "promptly" as in effect making incompatible with Article 5 para. 3 (art. 5-3) any period of detention under section 12 of the 1984 Act exceeding the four days previously considered, at least by the Commission, to be acceptable in normal cases. In my opinion, given that the notion of promptness in the context of Article 5 para. 3 (art. 5-3) must be applied with some degree of flexibility, this is an unduly restrictive interpretation which does not take sufficiently into account the special factors underlying the provisions of section 12. My conclusion is that the provisions in question are justified by the need to strike a fair balance in the circumstances and that they are consonant with what must also be the aim under the Convention of protecting human rights against the continuing inhumanity of terrorism in Northern Ireland .

5.   For these reasons, I do not find that the power under section 12 of the 1984 Act to detain a person for up to seven days without bringing him before a court is in itself incompatible with Article 5 para. 3 (art. 5-3). As regards the exercise of that power in the four instances before the Court, there is no reason to doubt that each of the applicants was justifiably detained in accordance with section 12 and consequently in my opinion there was no violation of Article 5 para. 3 (art. 5-3) in any of these cases.

6.   It follows that in my view there was no violation of Article 5 para. 5 (art. 5-5) either.

CONCURRING OPINON OF JUDGE DE MEYER

Whilst wholly concurring in the result of the judgment, I would observe, as to the dictum in paragraph 48, that the present case does not really raise the issue of "the defence of the institutions of democracy", but rather concerns a problem of civil coexistence within a society deeply torn by national and religious antagonisms.