BROGAN v. UNITED KINGDOM: Extract from ECHR Judgment




56.     The Government have argued that in view of the nature and
extent of the terrorist threat and the resulting problems in obtaining
evidence sufficient to bring charges, the maximum statutory period of
detention of seven days was an indispensable part of the effort to
combat that threat, as successive parliamentary debates and reviews of
the legislation had confirmed (see paragraphs 26-29 above).  In
particular, they drew attention to the difficulty faced by the
security forces in obtaining evidence which is both admissible and
usable in consequence of training in anti-interrogation techniques
adopted by those involved in terrorism.  Time was also needed to
undertake necessary scientific examinations, to correlate information
from other detainees and to liaise with other security forces.  The
Government claimed that the need for a power of extension of the
period of detention was borne out by statistics.  For instance, in
1987 extensions were granted in Northern Ireland in respect of
365 persons.  Some 83 were detained in excess of five days and of this
number 39 were charged with serious terrorist offences during the
extended period.

As regards the suggestion that extensions of detention beyond the
initial forty-eight-hour period should be controlled or even
authorised by a judge, the Government pointed out the difficulty, in
view of the acute sensitivity of some of the information on which the
suspicion was based, of producing it in court.  Not only would the
court have to sit in camera but neither the detained person nor his
legal advisers could be present or told any of the details.  This
would require a fundamental and undesirable change in the law and
procedure of the United Kingdom under which an individual who is
deprived of his liberty is entitled to be represented by his legal
advisers at any proceedings before a court relating to his detention.
If entrusted with the power to grant extensions of detention, the
judges would be seen to be exercising an executive rather than a
judicial function.  It would add nothing to the safeguards against
abuse which the present arrangements are designed to achieve and could
lead to unanswerable criticism of the judiciary.  In all the
circumstances, the Secretary of State was better placed to take such
decisions and to ensure a consistent approach.  Moreover, the merits
of each request to extend detention were personally scrutinised by the
Secretary of State or, if he was unavailable, by another Minister
(see paragraph 37 above).

57.     The Commission, in its report, cited its established case-law
to the effect that a period of four days in cases concerning ordinary
criminal offences and of five days in exceptional cases could be
considered compatible with the requirement of promptness in
Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in
application no. 2894/66, X v. the Netherlands, Yearbook of the
Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X
v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)).  In
the Commission's opinion, given the context in which the applicants
were arrested and the special problems associated with the
investigation of terrorist offences, a somewhat longer period of
detention than in normal cases was justified.  The Commission
concluded that the periods of four days and six hours (Mr McFadden)
and four days and eleven hours (Mr Tracey) did satisfy the requirement
of promptness, whereas the periods of five days and eleven hours
(Mr Brogan) and six days and sixteen and a half hours (Mr Coyle) did
not.

58.     The fact that a detained person is not charged or brought
before a court does not in itself amount to a violation of the first
part of Article 5 para. 3 (art. 5-3).  No violation of Article 5 para. 3
(art. 5-3) can arise if the arrested person is released "promptly"
before any judicial control of his detention would have been feasible
(see the de Jong, Baljet and van den Brink judgment of 22 May 1984,
Series A no. 77, p. 25, para. 52).  If the arrested person is not released
promptly, he is entitled to a prompt appearance before a judge or
judicial officer.

The assessment of "promptness" has to be made in the light of the
object and purpose of Article 5 (art. 5) (see paragraph 48 above).
The Court has regard to the importance of this Article (art. 5)
in the Convention system: it enshrines a fundamental human right,
namely the protection of the individual against arbitrary
interferences by the State with his right to liberty (see the Bozano
judgment of 18 December 1986, Series A no. 111, p. 23, para. 54).
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), which is intended to minimise
the risk of arbitrariness.  Judicial control is implied by the rule of
law, "one of the fundamental principles of a democratic society ...,
which is expressly referred to in the Preamble to the Convention"
(see, mutatis mutandis, the above-mentioned Klass and Others judgment,
Series A no. 28, pp. 25-26, para. 55) and "from which the whole Convention
draws its inspiration" (see, mutatis mutandis, the Engel and Others
judgment of 8 June 1976, Series A no. 22, p. 28, para. 69).

59.     The obligation expressed in English by the word "promptly" and
in French by the word "aussito^t" is clearly distinguishable from the
less strict requirement in the second part of paragraph 3 (art. 5-3)
("reasonable time"/"deŽlai raisonnable") and even from that in
paragraph 4 of Article 5 (art. 5-4) ("speedily"/"a` bref deŽlai").  The
term "promptly" also occurs in the English text of paragraph 2
(art. 5-2), where the French text uses the words "dans le plus court
deŽlai".  As indicated in the Ireland v. the United Kingdom judgment
(18 January 1978, Series A no. 25, p. 76, para. 199), "promptly" in
paragraph 3 (art. 5-3) may be understood as having a broader
significance than "aussito^t", which literally means immediately.  Thus
confronted with versions of a law-making treaty which are equally
authentic but not exactly the same, the Court must interpret them in a
way that reconciles them as far as possible and is most appropriate in
order to realise the aim and achieve the object of the treaty (see,
inter alia, the Sunday Times judgment of 26 April 1979, Series A
no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention
of 23 May 1969 on the Law of Treaties).

The use in the French text of the word "aussito^t", with its
constraining connotation of immediacy, confirms that the degree of
flexibility attaching to the notion of "promptness" is limited, even
if the attendant circumstances can never be ignored for the purposes
of the assessment under paragraph 3 (art. 5-3).  Whereas promptness
is to be assessed in each case according to its special features (see
the above-mentioned de Jong, Baljet and van den Brink judgment,
Series A no. 77, p. 25, para. 52), the significance to be attached to
those features can never be taken to the point of impairing the very
essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that
is to the point of effectively negativing the State's obligation to
ensure a prompt release or a prompt appearance before a judicial
authority.

60.     The instant case is exclusively concerned with the arrest and
detention, by virtue of powers granted under special legislation, of
persons suspected of involvement in terrorism in Northern Ireland.
The requirements under the ordinary law in Northern Ireland as to
bringing an accused before a court were expressly made inapplicable to
such arrest and detention by section 12(6) of the 1984 Act (see
paragraphs 30 and 32 above).  There is no call to determine in the
present judgment whether in an ordinary criminal case any given
period, such as four days, in police or administrative custody would
as a general rule be capable of being compatible with the first part
of Article 5 para. 3 (art. 5-3).

None of the applicants was in fact brought before a judge or judicial
officer during his time in custody.  The issue to be decided is
therefore whether, having regard to the special features relied on by
the Government, each applicant's release can be considered as "prompt"
for the purposes of Article 5 para. 3 (art. 5-3).

61.     The investigation of terrorist offences undoubtedly presents
the authorities with special problems, partial reference to which has
already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53
above).  The Court takes full judicial notice of the factors adverted
to by the Government in this connection.  It is also true that in
Northern Ireland the referral of police requests for extended
detention to the Secretary of State and the individual scrutiny of
each police request by a Minister do provide a form of executive
control (see paragraph 37 above).   In addition, the need for the
continuation of the special powers has been constantly monitored by
Parliament and their operation regularly reviewed by independent
personalities (see paragraphs 26-29 above).  The Court accepts that,
subject to the existence of adequate safeguards, the context of
terrorism in Northern Ireland has the effect of prolonging the period
during which the authorities may, without violating Article 5 para. 3
(art. 5-3), keep a person suspected of serious terrorist offences in
custody before bringing him before a judge or other judicial officer.

The difficulties, alluded to by the Government, of judicial control
over decisions to arrest and detain suspected terrorists may affect
the manner of implementation of Article 5 para. 3 (art. 5-3), for
example in calling for appropriate procedural precautions in view of
the nature of the suspected offences.  However, they cannot justify,
under Article 5 para. 3 (art. 5-3), dispensing altogether with "prompt"
judicial control.

62.     As indicated above (paragraph 59), the scope for flexibility
in interpreting and applying the notion of "promptness" is very
limited.  In the Court's view, even the shortest of the four periods
of detention, namely the four days and six hours spent in police
custody by Mr McFadden (see paragraph 18 above), falls outside the
strict constraints as to time permitted by the first part of
Article 5 para. 3 (art. 5-3).  To attach such importance to the special
features of this case as to justify so lengthy a period of detention
without appearance before a judge or other judicial officer would be
an unacceptably wide interpretation of the plain meaning of the word
"promptly".  An interpretation to this effect would import into
Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee
to the detriment of the individual and would entail consequences
impairing the very essence of the right protected by this provision.
The Court thus has to conclude that none of the applicants was either
brought "promptly" before a judicial authority or released "promptly"
following his arrest.  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 is not on its own sufficient
to ensure compliance with the specific requirements of Article 5 para. 3
(art. 5-3).

There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of
all four applicants.