AS to the ADMISSIBILITY of 1. Application No. 12690/87 2. Application No. 12731/87 P by James CLINTON P by Sean S

AS TO THE ADMISSIBILITY OF

1. Application No. 12690/87 2. Application No. 12731/87 P by James CLINTON P by Sean SIMPSON

3. Application No. 12823/87 4. Application No. 12900/87 P by Sean MAGUIRE P by Patrick McGEOWN

5. Application No. 13032/87 6. Application No. 13033/87 P by John MURRAY P by Philip CAMPBELL

7. Application No. 13246/87 8. Application No. 13231/87 P by Kieran SMYTH P by Guy BRESLIN

9. Application No. 13232/87 10. Application No. 13233/87 P by John CONNOLLY P by Sean McGUINNESS

11. Application No. 13310/87 12. Application No. 13553/88 NP by X. NP by Y.

13. Application No. 13555/88 NP by Z. all against the United Kingdom

The European Commission of Human Rights sitting in private on 31 May 1991, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber G. JÖRUNDSSON A. WEITZEL H.G. SCHERMERS Mrs. G.H. THUNE Sir Basil HALL M. F. MARTINEZ Mrs. J. LIDDY MM. J.C. GEUS M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to :

- the application introduced on 27 January 1987 by James CLINTON against the United Kingdom and registered on 2 February 1987 under file No. 12690/87;

- the application introduced on 6 February 1987 by Sean SIMPSON against the United Kingdom and registered on 17 February 1987 under file No. 12731/87;

- the application introduced on 13 March 1987 by Sean MAGUIRE against the United Kingdom and registered on 24 March 1987 under file No. 12823/87;

- the application introduced on 1 May 1987 by Patrick McGEOWN against the United Kingdom and registered on 5 May 1987 under file No. 12900/87;

- the application introduced on 1 June 1987 by John MURRAY against the United Kingdom and registered on 9 June 1987 under file No. 13032/87;

- the application introduced on 2 June 1987 by Philip CAMPBELL against the United Kingdom and registered on 12 June 1987 under file No. 13033/87;

- the application introduced on 18 September 1987 by Kieran SMYTH against the United Kingdom and registered on 28 September 1987 under file No. 13246/87;

- the application introduced on 14 May 1987 by Guy BRESLIN against the United Kingdom and registered on 28 September 1987 under file No. 13231/87;

- the application introduced on 14 May 1987 by John CONNOLLY against the United Kingdom and registered on 28 September 1987 under file No. 13232/87; - the application introduced on 14 May 1987 by Sean McGUINNESS against the United Kingdom and registered on 28 September 1987 under file No. 13233/87;

- the application introduced on 10 August 1987 by X. against the United Kingdom and registered on 19 October 1987 under file No. 13310/87;

- the application introduced on 1 October 1987 by Y. against the United Kingdom and registered on 26 January 1987 under file No. 13533/88;

- the application introduced on 25 June 1987 by Z. against the United Kingdom and registered on 26 January 1988 under file No. 13555/88;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the Commission's decision of 7 October 1987 to bring Applications Nos. 12690/87, 12731/87 and 12900/87 to the notice of the respondent Government without inviting the parties to submit written observations on admissibility and merits at that stage pending the outcome of the case of Fox, Campbell and Hartley v. the United Kingdom and, in the meantime, to adjourn its examination of these three applications ;

- a similar decision of the Commission on 6 May 1989 in the other 10 applications ;

- the Court's judgment in the above-mentioned case on 30 August 1990 (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182) ;

- the Commission's decision of 7 September 1990 to invite the parties to submit written observations on the applications in the light of that judgment ;

- the observations of the applicants' representatives in the last six applications submitted on 7 November 1990 ;

- the Government's observations submitted on 4 January 1991 ;

- the observations of the applicants' representatives in the first seven applications submitted on 12 February 1991 ;

- the Commission's decision of 9 April 1991 to refer the applications to the Second Chamber ; Having deliberated;

Decides as follows: THE FACTS

A. The first seven applicants

The first applicant, James Clinton, is an Irish citizen, born in 1960 and resident in Belfast.

The second applicant, Sean Simpson, is an Irish citizen, born in 1959 and resident in Belfast.

The third applicant, Sean Maguire, is an Irish citizen, born in 1957 and resident in Belfast.

The fourth applicant, Patrick McGeown, is an Irish citizen, born in 1956 and resident in Belfast.

The fifth applicant, John Murray, is an Irish citizen, born in 1950 and resident in Belfast.

The sixth applicant, Philip Campbell, is an Irish citizen, born in 1957 and resident in Belfast.

The seventh applicant, Kieran Smyth, is an Irish citizen, born in 1960 and resident in Belfast.

The seven applicants are represented before the Commission by Messrs. Madden and Finucane, Solicitors, Belfast.

B. The other six applicants

The eighth applicant, Guy Breslin, is a British citizen, born in 1968 and resident in Strabane, County Tyrone.

The ninth applicant, John Connolly, is an Irish citizen, born in 1968 and resident in Strabane, County Tyrone.

The tenth applicant, Sean McGuinness, is a British citizen, born in 1966 and resident in Strabane, County Tyrone.

The eleventh applicant is a British citizen, born in 1969 and resident in Strabane, County Tyrone.

The twelfth applicant is an Irish citizen, born in 1964 and resident in Strabane, County Tyrone.

The thirteenth applicant is an Irish citizen, born in 1962 and resident in Strabane, County Tyrone.

These six applicants are represented before the Commission by Messrs. John Fahy & Co., Solicitors, Strabane, County Tyrone.

The facts of the present cases, as submitted by the parties, may be summarised as follows : C. The particular circumstances of the cases

1. Application No. 12690/87 : James Clinton

At 06.00 hours on 21 October 1986 the first applicant was arrested under section 11 of the Northern Ireland (Emergency Provisions) Act 1978 (the 1978 Act) and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested as a result of information received by the Royal Ulster Constabulary (the RUC) from a usually reliable source which indicated that he was involved in a terrorist incident, an attempted murder in Ormeau Road on 3 October 1986. Interviewing began five hours later at 11.00 hours on the day of his arrest and at that interview the first applicant was informed that he was being questioned in connection with the aforementioned attempted murder and possession of firearms. During his interviews the first applicant was questioned in connection with the circumstances of the Ormeau Road incident and it was put to him that on the night in question he was in possession of the firearm which caused the terrorist incident. The first applicant declined to answer any questions put to him during his interviews and refused to speak at all. At 16.20 hours on 22 October 1986 he was released without charge, within 35 hours of his arrest.

2. Application No. 12731/87 : Sean Simpson

The second applicant was arrested at 05.45 hours on 13 January 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested as a result of information received by the RUC from a usually reliable source which indicated that he was a member of the Provisional Irish Republican Army (PIRA). Interviewing began five and a quarter hours later at 11.00 hours on the day of his arrest and he was told that he was being questioned in connection with his suspected membership of PIRA. During subsequent interviews the second applicant was questioned about his membership of PIRA and, in particular, the group within PIRA which, through violence and the threat of violence, enforces discipline within that organisation. He was further questioned about his involvement in the movement of weapons and in terrorist activities in the Belfast area. The second applicant declined to answer any questions or to speak at all. At 17.30 hours on 14 January 1987 he was released without charge, within 36 hours of his arrest.

3. Application No. 12823/87 : Sean Maguire

The third applicant was arrested at 06.35 hours on 11 November 1986 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was a member of the Ardoyne PIRA and involved in certain specific terrorist crimes in the North Belfast area. Interviewing began four hours later at 10.40 hours during which he was told he was being questioned in connection with the aforementioned matters. He was subsequently questioned about certain specific serious terrorist crimes in the North Belfast area. The third applicant declined to answer any questions during his interviews or to speak at all. At 14.00 hours on 13 November 1986 he was released without charge, within 56 hours of his arrest. (At the time of his arrest, the third applicant had previous convictions for conspiracy to murder and possession of firearms and ammunition.)

4. Application No. 12900/87 : Patrick McGeown

At 04.40 hours on 1 April 1987 the fourth applicant was arrested under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because of information received by the RUC from a usually reliable source which indicated that he was a member of PIRA and had had possession of weapons and explosives in the Greater Belfast area. Interviewing began nearly six hours later at 10.35 hours on the morning of his arrest when he was informed that he was being questioned regarding his membership of PIRA and the possession of both weapons and explosives in the Greater Belfast area since he rejoined PIRA after his release from prison early in 1986. The fourth applicant stated that he refused to answer any questions unless his solicitor was present and thereafter declined to answer any questions. At his first and subsequent interviews he was questioned at length regarding his membership of and activities within PIRA and about his knowledge of PIRA arms and explosives dumps. He was asked how long he was out of prison before he rejoined active service with PIRA, what position he held when he rejoined and who processed his application to rejoin. He was asked what position he presently held within PIRA and what he had done for PIRA since he rejoined. He was also asked what future operations of PIRA he had knowledge of and about the identities of present active PIRA members and their positions and ranks. At his third interview he was asked whether he had been involved in any way in a recent bombing in the Divis flats complex in which a soldier had been killed. He was released from custody at 14.15 hours on 2 April 1987, within 34 hours of his arrest. (At the time of his arrest, the fourth applicant had previous convictions for possessing explosives with intent to endanger life or property, causing an explosion likely to endanger life or property and belonging to a proscribed organisation for which he was sentenced to a term of 15 years' imprisonment.)

5. Application No. 13032/87 : John Murray

The fifth applicant was arrested at 04.50 hours on 1 April 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he had been involved in a recent gun and rocket attack at New Barnsley RUC station at 12.15 hours on 31 March 1987. Interviewing began nearly six hours later at 10.45 hours on the morning of his arrest when he was informed that he was being questioned in connection with his alleged membership of PIRA and possession of weapons on behalf of that organisation. At that interview he was also questioned about the aforementioned gun and rocket attack at New Barnsley RUC Station. In subsequent interviews he was further questioned about his association with known members of PIRA and was asked if he had ever been involved in PIRA operations in West Belfast. He was also questioned about a bomb attack at the Divis flats on 30 March 1987 in which a soldier was murdered. During the course of his interviews, the fifth applicant refused to answer any questions which were put to him either in respect of the matters for which he had been arrested or anything else. He was released from custody at 12.45 hours on 3 April 1987 without being charged, within 56 hours of his arrest.

6. Application No. 13033/87 : Philip Campbell

The sixth applicant was arrested at 19.35 hours on 12 May 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was a member of a PIRA bombing team. Interviewing began an hour and a half later at 21.00 hours when he was told that he was being questioned in connection with terrorist incidents in the Belfast area as a member of a PIRA bombing team. He declined to answer any questions during his interviews. He was released without charge at 20.05 hours on 13 May 1987, within 25 hours of his arrest. (On 10 December 1980 the sixth applicant was convicted of being in possession of firearms and ammunition with intent, of possession of firearms under suspicious circumstances and of undertaking instruction in the use of firearms for which he was sentenced to 7 years' imprisonment in respect of each offence to run concurrently.)

7. Application No. 13246/87 : Kieran Smyth

The seventh applicant was arrested at 19.50 hours on 14 May 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was involved in the hijacking of a van on 6 April 1987 at Laganbank Road. Interviewing did not begin until the next day, at 10.40 hours on 15 May 1987. The reason for the delay in interviewing the seventh applicant was that a routine medical examination of the applicant could not take place until 21.20 hours on 14 May and thereafter it was not possible to assemble a team of officers to interview the seventh applicant until the following morning. At his first interview the applicant was told that he was being questioned in connection with the aforementioned hijacking of a van. In subsequent interviews he was questioned about his involvement in the movement of firearms in the Short Strand area and his suspected membership of PIRA. Throughout his interviews he declined to answer any questions or to speak at all. He was released without charge at 21.00 hours on 15 May 1987, within 26 hours of his arrest. (At the time of his arrest, the seventh applicant had previous convictions for riotous behaviour, intimidation, public nuisance, making use of prohibited articles, malicious damage and belonging to a proscribed organisation.)

8. Application No. 13231/87 : Guy Breslin

The eighth applicant was arrested at 12.25 hours on 15 April 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was involved in the hijacking and arson of an Ulster bus on 24 March 1987 at 16.30 hours at the junction of Townsend Street / Fountain Street, Strabane. Interviewing began three and a quarter hours later at 15.40 hours on the day of his arrest when he was told that he was being questioned because of his suspected involvement in the aforementioned hijacking and arson of an Ulster bus. He was asked what he was doing on that date and whether he was acquainted with certain individuals. He was asked if he was a member of PIRA and whether he had attended the funeral of a certain Gerald Logue at Londonderry on that date. In subsequent interviews he was further questioned along the same lines. In none of his interviews did he answer any of the questions which were put to him or speak at all. He was released without charge at 18.50 hours on 16 April 1987, within 31 hours of his arrest.

9. Application No. 13232/87 : John Connolly

The ninth applicant was arrested at 07.05 hours on 15 April 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act. He declined to name any person who should be informed of his arrest. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he had been involved in the same hijacking and arson incident as in the eighth applicant's case. Interviewing began over three and a half hours later at 10.45 hours on the morning of his arrest and he was told that the reason he was being questioned was that he was suspected of being involved in the hijacking of the Ulster bus. He was asked if he had attended the funeral of Gerald Logue in Londonderry on that date and whether this was the reason for his becoming involved in the incident in question. In subsequent interviews he was told that he was suspected with two others of having masked and armed himself, boarded the bus and ordered the driver off before driving the bus across the road, breaking windows, pouring petrol inside it and setting fire to it. He was also questioned about his involvement with PIRA in Strabane and his association with other persons from that organisation. Throughout the interviews the ninth applicant remained silent, refusing to answer any questions which were put to him or speak at all. He was released without charge on 16 April 1987 at 19.45 hours, within 37 hours of his arrest.

10. Application No. 13233/87 : Sean McGuinness

The tenth applicant was arrested at 08.35 hours on 11 May 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was involved in the throwing of petrol bombs at the police in a series of petrol bombing incidents in the Strabane area that year, and that he was a member of PIRA. Interviewing began over five and a half hours later at 14.15 hours on the day of his arrest. He was told at that interview that the reason he was being questioned was his suspected involvement in the petrol bombing incidents and his involvement with PIRA. After denying his involvement in any petrol bombing or riots, he declined to answer any further questions in that interview. In subsequent interviews he was asked if he was a member of PIRA and whether he had ever thrown petrol bombs at the police. During his third interview the applicant was asked whether he had been part of a crowd of youths who had thrown petrol bombs at the police in Townsend Street on 23 February 1987. The tenth applicant denied any involvement. He was further asked whether he had been involved in throwing petrol bombs at the police in Fountain Street on 6 February 1987. He denied any involvement, although he said he had seen them being thrown in Fountain Street. During a subsequent interview he was asked if he had ever been asked to join PIRA, but he denied that he had. In further interviews he agreed that he had seen petrol bombs at close quarters and described them accurately. He admitted having thrown stones at police vehicles when he was at school. He also said that he had read leaflets distributed by Sinn Fein which advised those arrested for terrorist offences not to speak to the police during interviews at Castlereagh Police Office. He was questioned about his involvement in a riot on 23 February 1987 and a hijacking that night in Strabane when a makeshift barricade was set on fire by a number of youths. He was questioned in detail about many specific cases of fire bombing in respect of which he was given the date and time of the incidents about which he was being questioned. He denied any involvement. He was released without charge at 11.20 hours on 13 May 1987, within 51 hours of his arrest.

11. Application No. 13310/87

The eleventh applicant was arrested at 07.40 hours on 28 April 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he was involved in the same hijacking incident as in the eighth applicant's case. Interviewing began over three and a quarter hours later at 11.00 hours on the morning of his arrest when he was told that he was being questioned because he was suspected of being involved in the aforementioned bus hijacking, the day of Gerald Logue's funeral, and of arson at Townsend Street, Strabane. At subsequent interviews the applicant was asked about his membership of the Irish National Liberation Army (INLA), a proscribed organisation. He was also questioned in further detail about the bus incident. Apart from denying, in the fifth interview, that he was involved in the incident in question in any way, the eleventh applicant declined to answer any questions. He was released without charge at 15.10 hours on 30 April 1987, within 56 hours of his arrest.

12. Application No. 13553/88

The twelfth applicant was arrested at 07.20 hours on 7 May 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. Interviewing began over three and a quarter hours later at 10.40 hours on the morning of his arrest at which he was informed that he was being questioned because he was suspected of being a member of PIRA in Strabane. In addition, he was questioned about his movements on and around 5 and 6 March 1987 and about his involvement in causing an explosion at the primary school in Barrack Street which occurred there at 12.25 hours on 6 March 1987. In subsequent interviews he was questioned about possession of a rifle with a certain J.B. in Strabane at the end of February 1987, as well as his membership of PIRA. The twelfth applicant was asked whether he knew J.B. or had ever spoken to him. He was also questioned about whether he supported the aims and objectives of PIRA. Throughout his interviews, he declined to answer any questions. He was released without charge on 8 May 1987 at 19.00 hours, within 36 hours of his arrest.

13. Application No. 13555/88

The thirteenth applicant was arrested at 08.40 hours on 11 May 1987 under section 11 of the 1978 Act and was taken to Castlereagh Police Office. At the time of his arrest he was told that he was being arrested under section 11 of the 1978 Act as he was suspected of being involved in terrorism. According to the Government, he was arrested because information was received by the RUC from a usually reliable source which indicated that he had been in a series of petrol bomb attacks in the Strabane area in the previous 12 months, and was involved with PIRA. Interviewing began over five and a half hours later at 14.15 hours on the day of his arrest. At that interview he was informed that he was being questioned because he was suspected of being involved in the series of petrol bombings. In subsequent interviews he was further questioned about specific petrol bombing incidents in Strabane during February and March 1987. He was asked why the police would receive information to the effect that he had been involved in these petrol bombings if it were not true. He denied any involvement. He was released without being charged at 11.20 hours on 13 May 1987, within 51 hours of his arrest.

D. The relevant domestic law and practice

Section 11 of the Northern Ireland (Emergency Provisions) Act 1978 conferred, inter alia, a power of arrest which is now repealed. The relevant parts of section 11 provided as follows:

"1. Any constable may arrest without warrant any person whom he suspects of being a terrorist ...

3. A person arrested under this section shall not be detained in right of the arrest for more than 72 hours after his arrest, and Article 131 of the Magistrates' Courts (Northern Ireland) Order 1981 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates' court not later than 48 hours after his arrest) shall not apply to any such person."

The legislative history and domestic law relating to section 11 is summarised by the Court in paragraphs 18 to 22 of its Fox, Campbell and Hartley judgment of 30 August 1990. As the Court observed in paragraph 22 of its judgment, section 11(1) was replaced by section 6 of the Northern Ireland (Emergency Provisions) Act 1987, which came into effect on 15 June 1987, subsequent to the facts of all the present applications. This new provision is confined to conferring a power of entry and search of premises for the purpose of arresting persons under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. This latter provision expressly limits powers of arrest without a warrant to cases in which there are "reasonable grounds" for suspicion.

COMPLAINTS

The first seven applicants complain that their arrests were in breach of Article 5 para. 1 of the Convention. In particular, they state that their arrests were solely for the purpose of interrogating them, rather than for the purpose of bringing them before a competent legal authority, and that their detention was not justified under Article 5 para. 1 (a), (b), (c) or (d) of the Convention. They further complain that section 11 permitted arrest and detention solely on grounds of suspicion, as opposed to the requirement of reasonable suspicion under Article 5 para. 1 (c) of the Convention. Reliance is placed on the finding of the Court in the aforementioned Fox, Campbell and Hartley judgment. The applicants also complain that they were not informed promptly of the reasons for their arrest as required by Article 5 para. 2 of the Convention. They allege that since the provisions of the Convention are not part of the domestic law they were not able to bring any proceedings to determine the lawfulness of their arrest and detention and that they were therefore denied an enforceable right to compensation in breach of Article 5 para. 5. The applicants claim that the lack of an enforceable right to compensation constituted a breach of Article 13. As regards domestic remedies, the applicants accept that the arresting officers had a suspicion that the applicants were terrorists and that the arrests were executed lawfully under Northern Ireland law. They point out that there was no derogation under Article 15 of the Convention in existence at the material time. The last six applicants effectively limit their complaint to a breach of Article 5 para. 1 of the Convention, in particular Article 5 para. 1 (c). They claim that their arrests were not based on any reasonable suspicion of them having committed offences, the domestic law only providing for a subjective evaluation by the arresting officers acting on an honest and genuine suspicion. They also allege that their arrests were not for the purpose of bringing them before a competent court but merely for the purpose of interrogating them.

PROCEEDINGS BEFORE THE COMMISSION

The first application was introduced on 27 January 1987 and registered on 2 February 1987.

The second application was introduced on 6 February 1987 and registered on 17 February 1987.

The third application was introduced on 13 March 1987 and registered on 24 March 1987. The fourth application was introduced on 1 May 1987 and registered on 5 May 1987.

The fifth application was introduced on 1 June 1987 and registered on 9 June 1987.

The sixth application was introduced on 2 June 1987 and registered on 12 June 1987.

The seventh application was introduced on 18 September 1987 and registered on 28 September 1987.

The eighth, ninth and tenth applications were introduced on 14 May 1987 and registered on 28 September 1987.

The eleventh application was introduced on 10 August 1987 and registered on 19 October 1987.

The twelfth application was introduced on 1 October 1987 and registered on 26 January 1988.

The thirteenth application was introduced on 25 June 1987 and registered on 26 January 1988.

After a preliminary examination of the cases by the Rapporteur, the Commission considered the admissibility of the first, second and fourth applications on 7 October 1987. The Commission decided, pursuant to Rule 42 of its Rules of Procedure (former version), to give notice of the applications to the respondent Government, but without inviting the parties to submit written observations at that stage pending the outcome of the case of Fox, Campbell and Hartley v. the United Kingdom, at that time pending before the Commission and, subsequently, the Court. In the meantime the examination of the three applications was adjourned. The Commission took a similar decision in the other 10 cases on 6 May 1989.

The Court gave its judgment in the above-mentioned case on 30 August 1990 (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182). On 7 September 1990 the Commission decided to invite the parties to submit written observations on the cases in the light of that judgment within similar time limits.

Messrs. John Fahy & Co., on behalf of the last six applicants, submitted their observations on 7 November 1990. The Government submitted their observations on 4 January 1991 after an extension of the time limit. Messrs. Madden & Finucane, on behalf of the first seven applicants, submitted their observations on 12 February 1991, after the expiry of the time limit, followed by an extension.

On 10 April 1991 the Commission decided to refer the applications to the Second Chamber.

THE LAW

1. As regards the applicants' complaints under Article 5 para. 1 (Art. 5-1) of the Convention

The applicants complain that their arrests and detention under section 11 of the Northern Ireland (Emergency Provisions) Act 1978 were in breach of Article 5 para. 1 (Art. 5-1) of the Convention, in particular Article 5 para. 1 (c) (Art. 5-1-c).

The applicants' first contention is that they were not arrested for the purpose of bringing them before a competent legal authority, but merely for the purpose of interrogating them. Their second contention concerns the absence of any standard of reasonable suspicion in the legislation which authorised their detention. Section 11 of the Northern Ireland (Emergency Provision) Act 1978 did not require the arresting officer to hold a reasonable suspicion that the applicants had committed any criminal offences. The absence of the requirement of reasonableness was, in their submission, given the Court's judgment in the Fox, Campbell and Hartley case, in breach of Article 5 para. 1 (Art. 5-1) of the Convention. The Government contend, inter alia, that, although the legislation did not require reasonable suspicion on arrest, in each of the present cases the arresting officers had held reasonable suspicions that the applicants had committed terrorist offences, even if the Government were unable to disclose the sources of information upon which part of those suspicions were based without jeopardising such sources.

The relevant part of Article 5 para. 1 (Art. 5-1) of the Convention provides as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ..."

The Commission notes that there is no dispute that the applicants' arrests and detention were "lawful" under Northern Ireland law and finds no reason to doubt that the arresting officers had a suspicion that the applicants had committed, or were involved in, terrorist offences.

The Commission recalls that it is essential that the arrest and detention under Article 5 para. 1 (c) (Art. 5-1-c) be based on a reasonable suspicion that the person concerned has committed or has been involved in the commission of a criminal offence. This standard of reasonableness and its absence from section 11 of the 1978 Act was examined by the Court in the Fox, Campbell and Hartley case:

"32. The 'reasonableness' of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 para. 1 (c) (Art. 5-1-c). The Court agrees with the Commission and the Government that having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as 'reasonable' will however depend upon all the circumstances. In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge. As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the 'reasonableness' of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of 'reasonableness' to the point where the essence of the safeguard secured by Article 5 para. 1 (c) (Art. 5-1-c) is impaired (see, mutatis mutandis, the Brogan and Others judgment previously cited, Series A no. 145-B, pp. 32-33, para. 59).

...

34. Certainly Article 5 para. 1 (c) (Art. 5-1-c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 27 and 30-31, paras. 58 and 68). It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity. Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 para. 1 (c) (Art. 5-1-c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion.

35. The Court accepts that the arrest and detention of each of the present applicants was based on a bona fide suspicion that he or she was a terrorist, and that each of them, including Mr. Hartley, was questioned during his or her detention about specific terrorist acts of which he or she was suspected. The fact that Mr. Fox and Ms. Campbell both have previous convictions for acts of terrorism connected with the IRA, although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later. The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts. The aforementioned elements on their own are insufficient to support the conclusion that there was 'reasonable suspicion'. The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Article 5 para. 1 (c) (Art. 5-1-c) for judging the reasonableness of a suspicion for the arrest of an individual.

36. The Court accordingly holds that there has been a breach of Article 5 para. 1. ..."(Art. 5-1) (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, pp. 16-18 paras. 32, 34-36).

In the light of this judgment, the Commission finds that the present applicants' complaint about the alleged lack of reasonable suspicion preceding their arrests and detention cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

The Commission also finds that the applicants' other complaint under Article 5 para. 1 (Art. 5-1) about the purpose of their arrests, allegedly for mere questioning, rather than for the purpose of bringing them before a competent legal authority, cannot be separated at this stage from their complaint concerning the reasonableness of the suspicion against them. There are, therefore, no grounds for declaring this part of the applications inadmissible.

2. The other complaints of the first seven applicants

a) As regards Article 5 para. 2 (Art. 5-2) of the Convention

The first seven applicants have next complained that they were not informed promptly of the reasons for their arrests, as required by Article 5 para. 2 (Art. 5-2) of the Convention. The Government rely on the findings of the Court in the Fox, Campbell and Hartley case: Whilst the applicants were told on arrest that they were being arrested under section 11 of the 1978 Act, thereafter, during their interviews with the police, it must have become clear to the applicants why they had been arrested and the reasons why they were suspected of being terrorists. Article 5 para. 2 (Art. 5-2) of the Convention does not necessarily require this information to be related in its entirety by the arresting officer at the very moment of the arrest. The fact that a few hours elapsed before they were interviewed could not be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 para. 2 (Art. 5-2) (ibid pp. 19-20, paras. 40-43).

Article 5 para. 2 (Art. 5-2) of the Convention provides as follows:

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."

The Commission notes that the first seven applicants were only initially informed that they were being arrested under section 11 of the 1978 Act. Within a few hours of their arrest, however, they were intensively interviewed about specific terrorist incidents or their involvement in terrorist groups. There is no reason to doubt that from these interviews they could have understood why they were being arrested. The only issue distinguishing some of the present cases from that of Fox, Campbell and Hartley is whether the requirement of promptness was satisfied, given the delays between the initial arrests and the commencement of the applicants' interviews. Questioning began in the Fox, Campbell and Hartley case, at the latest, 4 hours and 35 minutes after arrest. In the present cases, apart from the third and sixth applicants, who were interviewed within less than 4 hours and 35 minutes of arrest, the other five applicants were interviewed later than this: The first applicant was interviewed 5 hours after arrest, the second 5 hours and 15 minutes later, the fourth and fifth 5 hours 55 minutes later, and the seventh the day after his arrest, 14 hours 50 minutes later.

However, the Commission finds that where the applicants were interviewed within six hours of their arrest it cannot be said that the requirement of promptness in Article 5 para. 2 (Art. 5-2) of the Convention was not respected. It follows that the complaint of the first six applicants under Article 5 para. 2 (Art. 5-2) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

The complaint of the seventh applicant, who was not interviewed until the following day, cannot be so rejected. Moreover, no other ground for declaring his complaint under Article 5 para. 2 (Art. 5-2) of the Convention inadmissible has been established.

b) As regards Articles 5 para. 5 and 13 (Art. 5-5, 13) of the Convention

The first seven applicants also complain that they had no enforceable right to compensation under domestic law for the alleged breach of Article 5 para. 1 (Art. 5-1) of the Convention. They invoke Articles 5 para. 5 and 13 (Art. 5-5, 13) of the Convention which provide as follows:

Article 5 para. 5 (Art. 5-5-) :

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

Article 13 (Art. 13) :

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Commission recalls that in the Fox, Campbell and Hartley case the Court found a violation of Article 5 para. 5 (Art. 5-5) of the Convention in that the applicants had not had a right to compensation under domestic law in respect of the violation of Article 5 para. 1 (Art. 5-1) of the Convention (ibid. p. 21 para. 46). In the light of this finding and the similar allegations made by the present applicants, the Commission finds that the applicants' complaint under Article 5 para. 5 (Art. 5-5) of the Convention cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring this aspect of the cases inadmissible has been established.

The Commission also finds that the applicants' complaint regarding Article 13 (Art. 13) of the Convention raises no separate issue, Article 5 para. 5 (Art. 5-5) being the lex specialis under the Convention regarding the right to compensation for alleged breaches of the other provisions of Article 5 (Art. 5).

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits of the cases,

- by a majority, the applicants' complaints under Article 5 para. 1 (Art. 5-1) of the Convention ;

- by a majority, the first seven applicants' complaints under Article 5 para. 5 (Art. 5-5) of the Convention ;

- unanimously, the seventh applicant's complaint under Article 5 para. 2 (Art. 5-2) of the Convention (regarding promptness of information) ;

DECLARES INADMISSIBLE, unanimously, the remainder of the applications.

Secretary to the President of the Second Chamber Second Chamber (K. ROGGE) (S. TRECHSEL)