CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 14552/89                       by John McSHANE                       against the United Kingdom             The European Commission of Human Rights (Second Chamber) sitting in private on 5 March 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              Mr.   F. MARTINEZ RUIZ              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 16 December 1988 by John McSHANE against the United Kingdom and registered on 30 January 1989 under file No. 14552/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, John McShane, is a citizen of the United Kingdom, born in 1966 and resident in Belfast, Northern Ireland.   He is represented before the Commission by Messrs.   J. Christopher Napier & Co., Solicitors, Belfast.           The facts of the present case, as submitted by the parties, may be summarised as follows.           On 2 August 1988 gunmen murdered Lance Corporal Butler, a member of the Ulster Defence Regiment, whilst he was off duty and present at a shopping centre in West Belfast with his wife and two children.           On the basis of information which had been received, the applicant was reasonably suspected to have been concerned in the murder of Lance Corporal Butler.   He is also believed to have close connections with the Provisional IRA, a proscribed terrorist organisation.   At 06.00 hrs. on 14 September 1988 he was arrested at his home under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984.   He was told in the presence of his parents that he was being arrested under this section as he was suspected of being involved in terrorism.           He was taken to Castlereagh Police Office where he was given, on his arrival, a copy of the notice to persons in police custody. His detention was extended by the Secretary of State for two days until 06.00 hrs. on 18 September 1988.   He was released without charge at 17.05 hrs. on 17 September 1988.           At first during the course of his detention the applicant indicated that he did not wish to see a solicitor.   On the afternoon of 16 September he asked to consult a solicitor and later that afternoon he saw a solicitor.           At the outset of the first interview, which began at 11.00 hrs. on 14 September 1988, the applicant was made aware that the police were enquiring into the murder of Lance Corporal Butler and that he was believed to have been involved in the murder.   During the various interviews with him he was asked about the murder of Lance Corporal Butler and to account for his movements on 2 August 1988. During the interviews he was also asked if he knew certain persons connected with the IRA or was himself a member of the IRA.   He denied involvement in the murder, whether as a lookout or as a gunman, and of knowing anything about the murder.   He also denied membership of the IRA.   He gave differing accounts of his movements on the day of the murder.   He declined to sign the notes made of the interviews.   COMPLAINTS           The applicant alleges that he was detained in breach of Article 5 para. 3 of the Convention, in that he was not brought promptly before a judge in order to be charged, or released promptly without charge.   He complains that he had no right to compensation for this alleged breach of Article 5 para. 3, pursuant to Article 5 para. 5 of the Convention.           The applicant originally complained of a violation of Article 5 para. 2 of the Convention.   After the European Court of Human Rights had given its judgment in the Fox, Campbell and Hartley case, he conceded that in that case the Court had made a finding of no violation in circumstances very similar to his own in relation to Article 5 para. 2 (cf.   Eur.   Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, paras. 37-43).   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 16 December 1988 and registered on 30 January 1989.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 6 May 1989.   The Commission decided to request the parties' written observations on the admissibility and merits of the application, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version).   It was joined with 15 other applications of a similar kind.           The Government lodged their observations on 21 September 1989 after an extension of the time-limit fixed for their submission.   The applicant's representatives submitted observations in reply on 18 October 1989.           On 6 February 1990 the Commission decided to adjourn its examination of the application pending the judgment of the Court in the case of Fox, Campbell and Hartley v. the United Kingdom, in view of an original complaint made by the applicant under Article 5 para. 2 of the Convention.   The Court delivered its judgment in this case on 30 August 1990.           On 7 September 1990 the Commission decided to invite the parties to submit any comments they might have on the significance of this judgment for the admissibility of the application.   The applicant's representatives submitted comments on 5 October 1990.   The Government lodged their comments on 23 November 1990 after an extension of the time limit fixed for their submission.           In his various observations the applicant withdrew certain original complaints he had made under Article 5 paras. 1 (c) and 4 and Article 13 of the Convention.   As regards Article 5 para. 2, the applicant conceded that the European Court's finding in the Fox, Campbell and Hartley case was made in circumstances very similar to his own (see above under COMPLAINTS).           On 26 February 1991 the Commission decided to refer the case to the Second Chamber.   THE LAW   1.       The applicant complains that his arrest and detention under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 from 14 to 17 September 1988 failed to observe the requirement of promptness laid down in Article 5 para. 3 (Art. 5-3) of the Convention, for which failure he had no enforceable right to compensation, contrary to Article 5 para. 5 (Art. 5-5) of the Convention.           Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention provides as follows:           "3.   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 and shall be         entitled to trial within a reasonable time or to release         pending trial.   Release may be conditioned by guarantees to         appear for trial."           "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."           The Government contend that the precise basis of the applicant's complaint under Article 5 para. 3 (Art. 5-3) of the Convention is unclear.   As the applicant was released after 3 days 11 hours and 5 minutes detention the requirement to bring him before a judge did not arise.   Referring to the judgment of the Court in the case of Brogan and Others (Eur.   Court H.R., judgment of 29 November 1988, Series A no. 145-B) and the Commission's established case-law cited at para. 57 of that judgment, they submit that the applicant's release within 4 days of his arrest was compatible with the requirements of Article 5 para. 3 (Art. 5-3) of the Convention.   As the facts of the case disclose no breach of this provision, the provisions of Article 5 para. 5 (Art. 5-5) have no application.   In reply, the applicant submits that the Government have made no attempt to justify the length of his detention or show how long it might reasonably have taken to dispel the suspicions they held against him when he was arrested.   He considers that his case is indistinguishable from the Brogan and Others judgment as regards the breaches found by the Court in that case of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention.           According to the constant case-law of the Commission, the requirement of promptness in Article 5 para. 3 (Art. 5-3) of the Convention means that arrested persons must be brought before a judge, or other officer authorised by law to exercise judicial power, without undue delay, the guarantees of Article 5 para. 3 (Art. 5-3), together with Article 5 para. 1 (c) (Art. 5-1-c), providing essential safeguards against arbitrary deprivation of liberty and prolonged police or administrative detention (No. 2894/66, Dec. 6.10.66, Yearbook 9 p. 564, Nos. 11209/84, 11234/84, 11266/84 and 11386/85, Brogan, Coyle, McFadden and Tracey v. the United Kingdom, Comm. Report 14.5.87, paras. 101-108).           The question whether or not the requirement of promptness in Article 5 para. 3 (Art. 5-3) has been satisfied must be assessed in each case according to its special features, the maximum time limit for such detention, even in the most exceptional circumstances, being no more than four days.   The Commission has taken into account certain special features in the present case.   It has borne in mind the case's background, involving the legitimate struggle against terrorism in Northern Ireland which may require a particular measure of sacrifice by each citizen in order to protect the community as a whole against terrorist crimes (cf. aforementioned Commission Report in the Brogan and Others case para. 106).   The Commission has also taken account of the factual context in which the applicant was arrested and the Government's statement, uncontested by the applicant's representatives, that he gave differing accounts of his movements on the day of the terrorist crime which was being investigated.   This may reasonably have required the prolongation of the applicant's detention to clarify matters.   In the light of these considerations and the particular facts of the present case, the Commission concludes that the period of detention experienced by the applicant does not disclose any appearance of a breach of Article 5 para. 3 (Art. 5-3) of the Convention. Accordingly this part of the application is manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           Regarding the applicant's complaint under the Convention that he had no enforceable right to compensation in domestic law for the alleged breach of Article 5 para. 3 (Art. 5-3) of the Convention, as the Commission has concluded that this latter allegation is manifestly ill-founded, the applicant is not entitled to such compensation. Accordingly his complaint under Article 5 para. 5 (Art. 5-5) of the Convention must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       After having first complained of a violation of Article 5 para. 2 (Art. 5-2) of the Convention, the applicant subsequently conceded that in the Fox, Campbell and Hartley case the European Court of Human Rights had made a finding of no violation of that provision in circumstances very similar to his own (cf.   Eur.   Court H.R., Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, paras. 37-43).   The Commission interprets this statement as a withdrawal of his complaint in this regard and therefore makes no finding in respect of Article 5 para. 2 (Art. 27-2).           For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.             Secretary to the                           President of the        Second Chamber                             Second Chamber                (K. ROGGE)                               (S. TRECHSEL)