INDIVIDUAL OPINION OF MR. G. MARIDAKIS

The Irish Government have not violated the provisions of Article 15 (art. 15) of the Convention.

When the State is engaged in a life and death struggle, no one can demand that it refrain from taking special emergency measures: salus rei publicae suprema lex est. Article 15 (art. 15) is founded on that principle.

Postulating this right of defence, the Convention provides in this Article (art. 15) that "in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention", provided, however, that it does so only "to the extent strictly required by the exigencies of the situation" and "provided that such measures are not inconsistent with its other obligations under international law."

By "public emergency threatening the life of the nation" it is to be understood a quite exceptional situation which imperils or might imperil the normal operation of public policy established in accordance with the lawfully expressed will of the citizens, in respect alike of the situation inside the country and of relations with foreign Powers.

The Irish Government having determined that in July 1957 the activities of the IRA had assumed the character of a public emergency threatening the life of the nation, in order to meet this emergency, put into effect on 8th July 1957 the 1940 Act amending the Offences against the State Act, 1939.

In compliance with Article 15 (3) (art. 15-3), the Irish Government notified the Secretary-General of the Council of Europe of their intention to bring the 1940 Act legally into force by letter of 20th July 1957, in which it wrote:

"I have the honour also to invite your attention to section 8 of the Act, which provides for the establishment by the Government of Ireland of a Commission to inquire into the grounds of detention of any person who applies to have his detention investigated. The Commission envisaged by the section was established on the 16th July 1957 ."

The 1940 Act involves derogation from obligations under Article 5 (1) (c) and (3) (art. 5-1-c, art. 5-3) of the Convention, since, in contrast to that Article (art. 5), which imposes the obligation to bring the person concerned before a judge, the 1940 Act gives such person the right to request that the Commission established under the Act inquire into the ground of his detention.

Nevertheless, the derogation does not go beyond the "extent strictly required by the exigencies of the situation." The Government had always been engaged in a struggle with the IRA. If, then, to prevent actions by the IRA calculated to aggravate the public emergency threatening the life of the nation the Government brought in a law authorising the arrest of any person whom they had good reason to suspect of connections with that secret and unlawful organisation, they were acting within the limits imposed on the State by Article 15 (art. 15) of the Convention. The Act, moreover, does not leave an arrested person without safeguards. A special Commission inquires into the grounds for the arrest of such person, who is thus protected against arbitrary arrest.

It follows that the Offences against the State (Amendment) Act, 1940, was a measure which complied with Article 15 (art. 15) of the Convention in that it was "strictly required by the exigencies of the situation."

It remains to consider whether the conditions for arrest laid down in the 1940 Act were fulfilled in the person of the Applicant.

There is no doubt that the Applicant had been a member of the IRA. There is likewise no doubt that the IRA was an unlawful and secret organisation which the Irish Government had never ceased to combat.

The Applicant ' s arrest in July 1957 fitted into the general campaign launched by the Irish Government to suppress the activities of that unlawful and secret organisation. It is true that in July 1957 IRA activities were on the wane, but that diminution was itself a deliberate policy on the part of the organisation. To appreciate that fact at its true value, it must not be taken in isolation but must be considered in conjunction with the IRA ' s previous activities, which necessarily offered a precedent for assessing the activities the organisation might engage in later.

Furthermore, since the Applicant was a former IRA member, the Irish Government, suspecting that even if he had ceased to be a member he was always liable to engage in activities fostering the aims of that organisation, applied the 1940 Act to his person legally.

In addition, out of respect for the individual, the Irish Government merely required of the Applicant, as the condition of his release, a simple assurance that he would in future acknowledge "the Constitution of Ireland and the laws". That condition cannot be considered to have been contrary to the Convention.

There is nothing in the condition which offends against personal dignity or which could be considered a breach of the obligations of States under the Convention. It would have to be held repugnant to the Convention, for example, if the State were to assume the power to require the Applicant to repudiate the political beliefs for which he was fighting as a member of the IRA. Such a requirement would certainly be contrary to Article 10 (art. 10), whereby everyone has the right to freedom of expression and freedom to hold opinions and to receive and impart information and ideas. But the text of that Article itself shows that the undertaking required of the Applicant by the Irish Government as the condition of his release, namely an undertaking to respect thenceforth the Constitution of Ireland and the laws, was in keeping with the true spirit of the Convention. This is apparent from the enumeration of cases where, under most of the Articles, the State is authorised to restrict or even prevent the exercise of the individual rights. And these cases are in fact those involving the preservation of public safety, national security and territorial integrity and the maintenance of order (Articles 2 (2) (c), 4 (3) (c), 5, 6, 8 (2), 9 (2) and 11 (2)) (art. 2-2-c, art. 4-3-c, art. 5, art. 6, art. 8-2, art. 9-2, art. 11-2).

Hence, if each Contracting State secures to everyone within its jurisdiction the rights and freedoms defined in Section I of the Convention (Article 1) (art. 1) and moreover undertakes to enforce the said rights and freedoms (Article 13) (art. 13), the individual is bound in return, whatever his private or even his avowed beliefs, to conduct himself loyally towards the State and cannot be regarded as released from that obligation. This is the principle that underlies the aforementioned reservations to and limitations of the rights set forth in the Convention. The same spirit underlies Article 17 (art. 17) of the Convention, and the same general legal principle was stated in the Roman maxim: nemo ex suo delicto meliorem suam conditionem facere potest (Dig. 50.17.134 paragraph 4). (Nemo turpitudinem suam allegans auditur).

It follows from the foregoing that the Irish Government, in demanding of the Applicant that he give an assurance that he would conduct himself in conformity with the Constitution and the laws of Ireland, were merely reminding him of his duty of loyalty to constituted authority and in no way infringed the rights and freedoms set forth in the Convention, including the freedom of conscience guaranteed by Article 9 (art. 9).

It is true that the Applicant was arrested on 11th July 1957 under the 1940 Act and that on 16th July 1957 he was informed that he would be released provided he gave an undertaking in writing "to respect the Constitution of Ireland and the laws" and not to "be a member of, or assist, any organisation which is an unlawful organisation under the Offences against the State Act, 1939."

Between 16th July and 10th December 1957 the Applicant refused to make the said declaration, presumably because he was awaiting the outcome of the petition he submitted on 8th September 1957, whereby he applied "to have the continuation of his detention considered by a special Commission set up under section 8 of the 1940 Act," and also of the Application he made on 8th September 1957 to the Irish High Court, under Article 40 of the Irish Constitution, for a Conditional Order of habeas corpus ad subjiciendum. The High Court and, on appeal, the Supreme Court decided against the Applicant. The Supreme Court gave its reasoned judgment on 3rd December 1957 , and the Detention Commission resumed its hearings on 6th and 10th December 1957 . The Applicant then gave the Detention Commission a verbal undertaking not to engage in any illegal activities under the Offences against the State Acts, 1939 and 1940.

During the period between his arrest (11th July 1957) and 10th December 1957, the Applicant appealed to the High Court and the Supreme Court and refused, while th e matter was sub judice, to give the assurance which the Irish Government made the condition of his release. Having so acted, the Applicant has no ground for complaint of having been deprived of his liberty during that period.

It is apparent from what has been stated above that the 1940 Act amending that of 1939 cannot be criticised as conflicting with Article 15 (art. 15) of the Convention and that the measures prescribed by the Act are derogations in conformity with the reservations formulated in Article 5 (1) (c) and (3) (art. 5-1-c, art. 5-3). It follows that there is no cause to examine the merits of the allegation that the Irish Government violated their obligations under the latter provisions.

On the other hand, the Applicant ' s Application cannot be declared inadmissible by relying on Article 17 (art. 17) of the Convention, since that Article (art. 17) is designed to preclude any construction of the clauses of the Convention which would pervert the rights and freedoms guaranteed therein and make them serve tendencies or activities repugnant to the spirit of the Convention as defined in its Preamble. The Applicant, however improper his conduct may have been, cannot be held to have engaged in any activity forbidden by Article 17 (art. 17) such as would warrant the rejection of his Application as inadmissible under the terms of that text.