EUR;JCCJa) Council of Europe / b) European Court of Human Rights / c) Plenary Court / d) 29-11-1988 / e) 10/1987/133/184-187 / f) Brogan and Others v. the United Kingdom / g) Vol. 145-B., Series A of the Publications of the Court / h) CODICES (English, French).
Keywords of the systematic thesaurus:
|
|
Fundamental Rights - Civil and political rights - Individual liberty.
|
|
|
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Arrest.
|
|
|
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts - Habeas corpus.
|
Keywords of the alphabetical index:
Headnotes:
The arrest and detention of persons suspected of involvement in acts of terrorism in Northern Ireland - Section 12 of the Prevention of Terrorism (Temporary Provisions) Act - without appearance before a judge or other officer for a minimum of four days and six hours, violates the right to liberty and security of the person on the grounds that that appearance was insufficiently prompt within the meaning of the Convention on Human Rights, and gives rise to a compensation claim regardless of whether an equivalent claim in domestic law could do so.
Summary:
The applicants, Mr Terence Brogan, Mr Dermot Coyle, Mr William McFadden and Mr Michael Tracey, are British citizens resident in Northern Ireland.
In the autumn of 1984 they were arrested under Section 12 of the Protection of Terrorism (Temporary Provisions) Act 1984 on the basis of a reasonable suspicion that they had been involved in the commission of acts of terrorism connected with the affairs of Northern Ireland. Terrorism is defined in the 1984 Act as "the use of violence for the purpose of putting the public or any section of the public in fear". By a decision of the Secretary of State, the initial period of 48 hours' detention permitted by legislation was exceeded in all cases. All four were questioned about specific terrorist incidents, but none of them were charged or brought before a judicial authority before release.
In the view of the Court, there had been no violation of ["const-eng-ech-0-005"]Article 5.1 ECHR (right to liberty and security of the person) in the present case. ["const-eng-ech-0-005"]Article 5.1.c ECHR demands the existence of "reasonable suspicion of having committed an offence". Although the 1984 Act did not require this suspicion to apply to a specific offence, the Court did hold that the statutory definition of "terrorism" was in keeping with the Convention’s notion of an "offence" for the purpose of the article. In addition, each applicant had been questioned about his involvement in specific offences just hours after his arrest.
Regarding the question of whether the police in the instant case had arrested the applicants for the purpose of bringing them before a court in accordance with ["const-eng-ech-0-005"]Article 5.1.c ECHR, the Court pointed out that the existence of a purpose behind the arrests had to be considered independently of its achievement. The Court determined that there was no reason to believe either that the police investigation had not been instigated in good faith, nor that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which the Court found had governed their arrest.
As far as an alleged breach of ["const-eng-ech-0-005"]Article 5.3 ECHR (entitlement to prompt appearance before a judicial authority and prompt release pending trial) was concerned, the Court ruled that there had been a violation in this case. The Court understood the word "promptly", read in the light of the equivalent word in the French text, "aussitôt", which literally means immediately, as allowing only a limited degree of time and flexibility. Furthermore, whilst the meaning of promptness is to be determined in the specific circumstances of the case, it should never be taken to the point of effectively negating the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority. Taking account of the safeguards of ministerial control in Northern Ireland, the constant monitoring of the need for the special anti-terrorist legislation by Parliament and the regular review of its operation by independent personalities, the Court recognized that the terrorist situation in Northern Ireland could have the effect of prolonging the permissible period of police custody prior to appearance before a judge or other officer. However, the Court found in the present case that even the shortest of the four periods of detention (four days and six hours) fell outside the strict constraints permitted by the notion of "promptness". The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not sufficient in itself to ensure compliance with ["const-eng-ech-0-005"]Article 5.3 ECHR.
With regard to ["const-eng-ech-0-005"]Article 5.4 ECHR (entitlement to take legal proceedings regarding the procedural and substantive conditions which are essential for the "lawfulness" of detention, in the sense of the Convention), the Court noted that this requirement was met in the practice of the Northern Ireland courts by the remedy of habeas corpus. As the applicants in the present case had made no attempt to invoke this procedure, no violation of ["const-eng-ech-0-005"]Article 5.4 ECHR could be established.
Finally, the Court confirmed that the entitlement to compensation for breach of ["const-eng-ech-0-005"]Article 5 ECHR laid down in ["const-eng-ech-0-005"]Article 5.5 ECHR did apply in the present case, regardless of whether the breach found could give rise to an enforceable claim before domestic courts.
Cross-references:
Engel and Others v. the Netherlands, 08.06.1976, Series A, no. 22; [ECH-1976-S-001].
Klass and Others v. Germany, 06.09.1978, Series A, no. 28; [ECH-1978-S-004].
Ireland v. the United Kingdom, 18.01.1978, Series A, no. 25; [ECH-1978-S-001].
The Sunday Times v. the United Kingdom, 26.04.1979, Series A, no. 30; [ECH-1979-S-001].
De Jong, Baljet and van der Brink v. the Netherlands, 22.05.1984, Series A no. 77; [ECH-1984-S-004].
Bozano v. France, 18.12.1986, Series A, no. 111; [ECH- 1986-S-005].
Bouamar v. Belgium, 29.02.1988, Series A, no. 129; [ECH- 1988-S-001].
English, French.