DISSENTING OPINION OF JUDGE MARTENS

I.   Preliminary remarks

1.   I find that I am unable to concur in the opinion of the majority that the United Kingdom is in violation of its obligations under Article 5 para. 3 (art. 5-3) of the Convention in this case.

I rather regret this because, being called to the Court but recently, I am reluctant to disagree with so many of my more experienced brethren.

2.   I regret this all the more because, generally speaking, it is my conviction that it enhances the Court ’ s authority if the right to express a dissenting opinion is used rather reticently. Moreover, in this particular case I share to a great extent the opinions of the majority. I to think: (1) that this case cannot be judged without taking into account that it is concerned with terrorism (paragraph 48 of the Court ’ s judgment); (2) that it is permissible to take this factor into account although Article 15 (art. 15) of the Convention does not apply (ibid.); and (3) that "judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3)" (paragraph 58 of the Court ’ s judgment).

That I have nevertheless reached a different conclusion is, I think, due to a difference of opinion with regard, firstly, to the weight to be attached to terrorism, or rather to the liberty to be left to Governments to cope with that and similar scourges of our times, especially where the individual ’ s right to liberty is concerned, and, secondly, to the weight to be attached to the wording of the Convention.

3.   As the Court rightly recalls in paragraph 48 of its judgment, terrorism is a feature of modern life, which has attained its present extent and intensity only since the Convention was drafted. Terrorism - and particularly terrorism on the scale obtaining in Northern Ireland - is the very negation of the principles the Convention stands for and should therefore be combated as vigorously as possible. It seems obvious that to suppress terrorism the executive needs extraordinary powers, just as it seems obvious that Governments should to a large extent be free to choose the ways and means which they think most efficacious for combating terrorism. Of course, in combating terrorism the States Parties to the Convention have to respect the rights and freedoms secured therein to everyone. I subscribe to that and I am aware of the danger of measures being taken which, as the Court has put it, may undermine or even destroy democracy on the ground of defending it (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). But I think that this danger must not be exaggerated - especially with regard to States which have a long and firm traditon of democracy - and should not lead to the wings of national authorities being excessively clipped, for that would unduly benefit those who do not hesitate to trample on the rights and freedoms of others.

4.   It goes without saying that a person against whom there is a reasonable suspicion of being involved in acts of terrorism should be free from torture or inhuman or degrading treatment. But it seems to me legitimate to ask whether he may not be detained, before being brought before a judge, for a somewhat longer period than is acceptable under ordinary criminal law. In this connection, I consider that the Court by saying, in the second section of paragraph 58 of its judgment, that Article 5 (art. 5) "enshrines a fundamental human right" somewhat overestimates the importance of this provision in the Convention system. Undoubtedly, the right to liberty and security of person is an important right, but it does not belong to that small nucleus of rights from which no derogation is permitted. This means that there is room for weighing the general interest in an effective combating of terrorism against the individual interests of those who are arrested on a reasonable suspicion of involvement in acts of terrorism. The search for such a fair balance between the general interest of the community and the interests of the indiviudual is, as the Court has already pointed out repeatedly and points out again in its present judgment (paragraph 48), inherent in the whole of the Convention.

5.   The Court finds it decisive, however, that the wording of Article 5 para. 3 (art. 5-3) - especially "the plain meaning of the word ‘ promptly ’ " - leaves no (or at least hardly any) room for such a weighing of interests (see paragraphs 59 to 62 of its judgment). I will explain in paragraphs 6 to 13 below why I do not share this view. Here I should like to indicate breifly two reasons for thinking that it is undesirable to attach a degree of importance to the wording of this Convention that excludes application of a principle which seems fundamental in this context and, under the Court ’ s established case-law, is inherent in the Convention as a whole.

The first reason is that the way the Convention is worded still bears obvious traces of its origin : its wording is not seldom better suited to a manifesto than to an international treaty designed to provide, for a considerable time and for a great number of different legal orders, answers to fundamental but often delicate questions of law.

The second reason for not attaching too much weight to the wording of the Convention is that, in my belief, the Court should remain free to adapt the interpretation of the Convention to changing social conditions and moral opinions. That calls for methods of interpretation that do not stop, prematurely, at the wording of a provision.

II. Is the seven-day period under section 12 of the 1984 Act compatible with the requirement of promptness?

6.   I now turn to what in my opinion is the decisive question, i.e. whether the seven-day period under section 12 of the 1984 Act is compatible with Article 5 para. 3 (art. 5-3), and especially with the requirement of "promptness" in that provision.

7.   However, as this is the first time that I am called upon to express an opinion on questions of construction of the Convention, I will permit myself a short digression, which may serve both as an explanation of my way of putting the above question and as a starting point for further reasoning.

As we are dealing with a question of interpretation of Article 5 (art. 5) of the Convention, it may be worthwhile to start by ascertaining exactly what are the engagements undertaken by the High Contracting Parties in the Convention under this Article (art. 5).

To me it seems clear that these engagements are twofold:

(1) to ensure that their national law is in accordance with the provisions of this Article; and

(2) to apply that law, and to have that law applied [1] , in accordance with these provisions.

I think that the same applies to the Convention as a whole. At first sight, it may appear from the wording of many of its provisions that they contain rules of uniform law, but, on reflection, it becomes clear that, although perhaps they may exceptionally serve that function, generally speaking their fu nction is that of directives [2] . Directives for national law-making authorities (mainly legislators) to model their laws, for national executive authorities to model their conduct and for the Court to assess whether those laws and that conduct are in conformity with the standards of the Convention.

I realise, of course, that the Court has repeatedly stressed that, in proceedings originating in an individual application, its task - as a rule [3] - is not to review in abstracto whether the law of the State Party concerned is in conformity with the Convention, but only to assess whether the application of that law to the applicant has violated a right set forth in the Convention. The ground given for this doctrine - which is reiterated in the present judgment (paragraph 53) - is the difference in wording between Articles 24 and 25 (art. 24, art. 25), but to me it would seem that the more fundamental basis for it is judicial restraint.

I think however that, in cases where the treatment the applicant is complaining about is in every respect in conformity with one or more specific and precise provisions of national law, both logic and truthfulness demand that the first step in assessing whether the application of that law constitutes a violation of the Convention should be to review whether that law is in conformity with the Convention. If the latter question is to be answered in the affirmative, the answer to the former will almost always be in the negative. But if the internal law as such is found to be incompatible with the Convention, it is still possible that its application in concreto does not violate the Convention.

The present case illustrates the point. If section 12 of the 1984 Act is compatible with Article 5 (art. 5) of the Convention, it follows that the arrests in concreto did not violate this provision; but if the 1984 Act is not in conformity with the Convention, it is still possible to hold that (one or more of) the arrests in concreto did not violate Article 5 (art. 5).

8.   Having explained why the question set out in paragraph 6 above is decisive, I will now turn to the answer to that question which, of course, depends on the meaning of the word "promptly". What then does that word mean in the context of Article 5 para. 3 (art. 5-3)?

I think that one may give two types of answer to this question, according to whether one is inclined, as the Court is, to stop at the wording of this provision, or whether one is willing to look also at other means of interpretation.

9.   But let us start with the wording. On a first reading, the wording of paragraph 3 (art. 5-3), especially that of the French version [4] , seems to suggest that a person arrested shall be brought before a judge immediately after the arrest. Already at this stage it becomes clear, however, that you simply cannot stop at a literal interpretation, for that would give a rule which obviously would be unworkable. Some room for exceptions must be presumed. The rule should accordingly be that a person arrested shall be brought before a judge immediately unless the particular circumstances of the case make this impossible: if at the time of the arrest the judge is not available or if there are other reasons which make it impossible to bring the person immediately before the judge, some postponement may be permitted, provided this is no longer than is absolutely necessary in the parti cular circumstances of the case [5] .

10. On further consideration, however, it seems most unlikely that the construction set forth in the preceding paragraph is what the draftsmen of Article 5 para. 3 (art. 5-3) intended. It follows from what I have said in paragraph 7 above that they were drafting a yardstick for testing their national laws or, to be more precise, for testing national provisions which lay down the period during which a person may be detained without being brought before a judge.

According to Fawcett, in most of the States Parties to the Convention, this peri od "seldom exceeds" two days [6] . Fawcett does not give any authority for this statement, but let us assume for argument ’ s sake that it is correct. Assuming further, as seems reasonable, that the authors of the Convention, when drafting this paragraph, tried to lay down a provision with which their aforesaid national provisions (as they were then) would comply, one cannot but conclude that it is simply impossible that "promptly" has the rather strict meaning referred to in paragraph 5 above, because under that construction of paragraph 3 almost every national law would have been incompatible with the Convention right from the outset! Again it becomes clear that one simply cannot stop at a literal interpretation of this text.

In my view, these considerations justify the conclusion that it was the intention of the Parties to the Conventon that the word "promptly" in the context of Article 5 para. 3 (art. 5-3) has "a special meaning" [7] and must be understood as: a (rather) short period, but nevertheless a period which may last some days, to be fixed in the national laws of the High Contracting States.

Under this construction, "promptly" implies that the national legislature has a certain margin of appreciation and is free to fix the period it thinks most suitable to the specific conditions of the country in question, although subject to the ultimate control of the Convention organs [8] .

The extent of this margin of appreciation depends on the exactitude of Fawcett ’ s aforementioned assertion: if there is a definite European standard of two days, three days would seem within, but four days would seem outside, that margin. I venture to think however that, at least with regard to the first decades of the Convention , that assertion was not correct. Firstly, if it were correct, the Commission would hardly have found - as it did in its decision of 6 October 1966 , application no. 2894/66, Yearbook, vol. 9, p. 564 - a period of four days "consistent with the general tendency of other member States of the Council of Europe". Secondly, Hulsman , in his report for the Congress on European Criminal Law, held at Brussels in November 1968, said: "The maximum length of provisional detention which precedes judicial control had been laid down in the law of most countries and ranges from twenty- four hours till seven days"! [9] These data confirm the Commission ’ s aforementioned decision of October 1966. Since it has not been maintained, let alone established, that meanwhile a new and more severe European standard has been developed, I cannot subscribe to the criticism of this decision implied in paragraph 60 of the Court ’ s judgment (quite apart from the question whether, from the point of view of legal certainty, such sudden criticism of a decision which has for years been the leading case on the subject is judicious).

11. The two possible constructions of Article 5 para. 3 (art. 5-3) discussed in paragraphs 9 and 10 above seem mutually exclusive, in the sense that if one is correct the other cannot be. I think, however, that it follows from what has been said in paragraph 7 that the situation is not as simple as that.

The construction set out in paragraph 10 (promptly means a period which may last some days, to be fixed in the national laws) squares with this provision ’ s function as a directive: in principle this is therefore the correct construction. But the construction set out in paragraph 9 may be of some use when, after it has been established that the national law is in conformity with the Convention, the question whether or not the application of that law in concreto constituted a violation must be addressed. Then it may become decisive whether the particular circumstances of the case justify the person being brought before a judge only after the maximum period laid down in that law has expired.

I think that this point is illustrated by the Commission ’ s decisions and accounts for the marked difference between its decision of 1972, referred to in note 5, and its decision of October 1966, referred to in paragraph 10 above: in the former the Commission was concerned only with the specific application before it, whereas in the latter its first concern was whether Dutch law was in conformity with Article 5 para. 3 (art. 5-3).

Since I am primarily concerned here with the latter type of question, it is interesting to note that the Commission, in its 1966 decision, has clearly adopted the construction set out in paragraph 10 above:

"Whereas ... the Commission considers that the Contracting Parties are given a certain margin of appreciation when interpreting and applying the requirement as to promptitude laid down in Article 5 para. 3 (art. 5-3)."

As far as I have been able to ascertain, the Court has never explicitly expressed its view as to this construction. It may, however, be interesting to note that in its de Jong , Baljet and van den Brink judgment of 22 May 1984 (Series A no. 77, p. 25, para. 52), the Court took account not only of the particular circumstances of each individual case - as would have been appropriate if the Court were of the opinion set out in paragraph 9 above - but also referred to "the exigencies of military life and justice". This seems to imply that the Court also then shared the opinion expressed in paragraph 10 above.

It follows from the present judgment that the Court now rejects that construction, but in view of the above considerations I feel that the Court, by merely stressing that as a matter of linguistics "the degree of flexibility attaching to the notion of ‘ promptness ’ is limited", has not sufficiently motivated that rejection.

12. Having reached the conclusion that, under Article 5 para. 3 (art. 5-3), the States Parties to the Convention enjoy a certain margin of appreciation, I now turn to the question whether or not the United Kingdom legislature exceeded that margin when enacting section 12 of the 1984 Act.

If this provision were an ordinary criminal law provision, there would have been no case at all: after the Court ’ s de Jong , Baljet and van den Brink judgment (Series A no. 77, p. 25, para. 53) it should be considered as settled that an ordinary criminal law provision allowing for a period of detention of seven days without bringing the person before a judge violates paragraph 3 of Article 5 (art. 5-3).

But we are not dealing with the ordinary criminal law of the United Kingdom on detention but - as I have stressed already in paragraph 3 above - with a special provision of a special law directed against terrorism. It is the United Kingdom Government ’ s position that, when answering the question whether or not they have exceeded their margin of appreciation under Article 5 (art. 5), this special feature of that law not only should be taken into account but also should carry much weight.

As already indicated in paragraphs 2 to 4 above, I think that the first of these contentions is correct: in my opinion it is quite compatible with the Convention system for a State to invoke the requirements of combating terrorism in order to justify fixing at a longer duration than would be acceptable under ordinary circumstances the period during which a person arrested on a reasonable suspicion of involvement in acts of terrorism my be detained without being brought before a judge.

This brings me, of course, to the crucial question whether, taking into account the assertion of the United Kingdom Government that the special powers under section 12 of the 1984 Act are necessary for the purposes of combating terrorism, a period of seven days, which in the context of ordinary criminal law has already been condemned as incompatible with the requirement of promptness, may be accepted.

It is my conviction that, in this regard, the principle which the Court has developed with respect to t he requirements of morality [10] should apply. Striking a fair balance between the interests of the community that suffers from terrorism and those of the individual is particularly difficult and national authorities, who from long and painful experience have acquired a far better insight into the requirements of effectively combating terrorism and of protecting their citizens than an international judge can ever hope to acquire from print, are in principle in a better position to do so than that judge!

It is in this context that three factors seem to me to be of importance:

( i ) The first factor is the particular extent, vehemence and persistence of the terrorism that has raged since 1969 in Northern Ireland , a community of 1.5 million people. In his address to the Court, the Solicitor General said that since 1969 2,646 persons have died as a direct result of terrorist activity and 30,658 have been maimed and injured. There were, he said, 43,649 bombing and shooting incidents. These data have not been disputed.

(ii) The second factor is that we are undoubtedly dealing with a society which has been a democracy for a long time and as such is fully aware both of the importance of the individual right to liberty and of the inherent dangers of giving too wide a power of detention to the executive [11] .

(iii) The third factor is that the United Kingdom legislature, apparently being aware of those dangers, has each time granted the extraordinary powers only for a limited period, i.e. one year on each occasion, and only after due inquiry into the continued need for the legislation by investigators who - as the Government have asserted and the applicants have not seriously denied - were independent and professionally quali fied for such investigation [12] . Time and again both these investigators and the British Parliament concluded that the section under discussion could not be dispensed with.

In my opinion, these three factors also make it highly desirable for an international judge to adopt an attitude of reserve.

Against this background I think that the Court can find that the United Kingdom , when enacting and maintaining section 12 of the 1984 Act, overstepped the margin of appreciation it is entitled to under Article 5 para. 3 (art. 5-3) only if it considers that the arguments for maintaining the seven-day period are wholly unconvincing and cannot be reasonably defended. In my opinion that condition has not been satisfied.

Of course, as the written comments of the Standing Advisory Commission on Human Rights show, it is possible to question whether the maximum period of detention under the anti-terrorism legislation should be seven days or five (as that Commission suggests), and to maintain that judicial control is quite feasible. Having read the arguments on both sides, I am even prepared to say that, especially on the last point, the arguments advanced for allowing judicial control are perhaps slightly str onger than those against it [13] . But, in my opinion, these remain questions on which reasonable people may hold different views. This means that the Court should respect the United Kingdom Government ’ s choice and cannot but hold that they did not overstep their margin of appreciation.

These are, however, not the only factors to be taken into account.

The United Kingdom Government have pointed out that the seven-day period is a maximum [14] , the Secretary of State ’ s office seeing to it that in every individual case the period of detention is as short as possible. This assertion has not been contested seriously and the present case indicates that, in any event, it is at least plausible.

The Government have further asserted that, as a rule, within forty-eight hours after arrest the family of the arrested person is notified [15] and that the person has access to legal advice after forty-eight hours and thereafter at f orty-eight-hourly intervals [16] . These assertions have not been contested either. Neither has it been denied that the person arrested, by seeking a writ of habeas corpus, may have the question whether his arrest is lawful, i.e. whether the conditions of section 12 of the 1984 Act have been met, scrutinised in court [17] .

These are, I think, important safeguards against potential abuse of the power to detain under section 12 of the 1984 Act [18] .

Taking all these factors into account and keeping in mind that - as follows from paragraph 10 above - for ordinary criminal cases a four-day period must still be deemed acceptable, I find that the 1984 Act cannot be said to be incompatible with Article 5 para. 3 (art. 5-3) of the Convention.

13. The conclusion I have reached in the preceding paragraph relieves me from going into the question whether the application of the 1984 Act in concreto constituted a violation of Article 5 para. 3 (art. 5-3): the detention the applicants are complaining about lasted less than seven days and therefore cannot be regarded as a violation, if my conclusion that seven days is not incompatible with the Convention is correct.

[*]  Note by the registry: The case is numbered 10/1987/133/184-187.    The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] See the Ireland v. the United Kingdom judgment of 18 January 1978 , Series A no. 25, p. 91, para. 239.

[2] See the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 35, para. 10 in fine; the Handyside judgment of 7 December 1976 , Series A no. 24, p. 22, para. 48; the Sunday Times judgment of 26 April 1979 , Series A no. 30, pp. 37-38, para. 61.

[3] There are exceptions to this rule: see the Klass and Others judgment of 6 September 1978 , Series A no. 28, pp. 17-18, para. 33. See also the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, in general and, especially, the heading on p. 13; the Lithgow and Others judgment of 8 July 1986, Series A no. 102, in general and, especially, p. 52, para. 124; the Leander judgment of 26 March 1987 , Series A no. 116, p. 30, para. 79.

[4] The French version has " aussitôt ", which however suggests " aussitôt que possible" - as soon as possible.  Thus the word "promptly" in paragraph 3 (art. 5-3) would perhaps be a shade broader than the same word in paragraph 2 (art. 5-2), where the French version reads: " dans le plus court délai ".

[5] An example of the kind of circumstances that are relevant under this construction is to be found in the Commission's decision of 19 July 1972 (application no. 4960/71) (Collection of Decisions, vol. 42, p. 49): the person arrested had to be hospitalised immediately after his arrest and could only be brought before a judge after his recovery.

[6] See J.E.S. Fawcett, The Application of the European Convention on Human Rights, p. 93.

[7] See Article 31 para. 4 of the Vienna Convention on the Law of Treaties.

[8] See for other examples of an (implied) margin of appreciation outside the field of Articles 8-11, 14 and 15 (art. 8, art. 9, art. 10, art. 11, art. 14, art. 15): the Kjeldsen , Busk Madsen and Pedersen judgment of 7 December 1976 , Series A no. 23, p. 26, para. 53; and the Colozza judgment of 12 February 1985 , Series A no. 89, pp. 15-16, para. 30.

[9] See European Criminal Law, Brussel s, 1970, p. 491; see also L.E. Teitelbaum , Revue des Droits de l'Homme, Vol. V (1972), pp. 433 et seq .

[10] See the Handyside judgment of 7 December 1976 , Series A no. 24, p. 22, para. 48.

[11] See, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, para. 59.

[12] See the Court's judgment, paragraphs 27-29.

[13] I cannot refrain from pointing out that, in my opinion, the Court has, in paragraph 61 of its judgment, made light of the Government's arguments.  These arguments were (1) that in order to protect informants - a protection which is all the more indispensable because an effective investigation depends on the preparedness to inform -, essential data on which the suspicion is based should be kept secret as long as possible; (2) that to make these data available only to the judge is quite incompatible with fundamental conceptions in England of the role of a judge; (3) that, after weighing the disadvantages of the seven-day period for those arrested on a reasonable suspicion of involvement in terrorism against the injurious effects on general esteem for the judiciary which might flow from the introduction of a system whereby justice was administered on the basis of data withheld from one of the parties, they have thought the former the lesser evil. I feel that it is too easy to reject these arguments by merely suggesting that "appropriate procedural precautions in view of the nature of the suspected offences" would have been possible, and implying that such "procedural precautions" would have been compatible with the guarantees implicit in the words "judge or other officer authorised by law to exercise judicial power" in Article 5 para. 3 (art. 5-3)!

[14] Memorial of the Government, paragraphs 1.9 and 1.12.

[15] Memorial of the Government, paragraph 1.19.

[16] Memorial of the Government, paragraphs 1.19 and 2.41.  See also paragraph 2.47, where it is stressed that the present applicants were seen by their solicitor (see also paragraphs 11-22 of the Court's judgment).

[17] See the Court's judgment, paragraphs 39 and 40. The mere fact that this remedy does not appear to be used often does not seem material; what is material is that it is available to those detained under section 12 of the 1984 Act and that, from the replies by the Government to the questions put by the Court, it appears that out of thirteen applications three resulted in release by the court, while in four other cases release by the police occurred before the hearing.

[18] In paragraph 4 of their replies to the questions put by the Court, the Government have listed further safeguards; I do not think it necessary to go into these, since I deem those discussed in the text the most important in the present context.