AS TO THE ADMISSIBILITY OF
Application no. 41571/98
by Gary MARSHALL
against the United Kingdom
The European Court of Human Rights, sitting on 10 July 2001 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Sir Nicolas Bratza,
Mr V. Butkevych,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 March 1998 and registered on 9 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Gary Marshall, is an Irish national, born in 1968 and living in Lurgan, Northern Ireland. He is represented before the Court by Mr Paul Mageean, a lawyer working with the Committee on the Administration of Justice, a non-governmental organisation based in Belfast, Northern Ireland. The Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 February 1998 around 3.15 p.m. the applicant was arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) by a military patrol accompanied by an officer of the Royal Ulster Constabulary (“RUC”). The applicant was brought to Castlereagh Holding Centre in Belfast where he was questioned about his involvement in serious paramilitary activity including the abduction and murder of an individual.
On the morning of 23 February 1998 an application was made to the Secretary of State for an extension order under section 14(5) of the 1989 Act, extending the applicant’s detention for a further three days. Notice of the application was given to the applicant, who consulted his lawyer on the terms of the application. No representations were made by the applicant to the Secretary of State. The application was granted by the Secretary of State.
At 11.40 a.m. on 26 February 1998 the applicant was given notice that a further application had been made to the Secretary of State for an extension order for a further period of forty-eight hours in order to check an alibi statement which the applicant had advanced during interview and to await the results of forensic tests. No representations were made by the applicant to the Secretary of State, who granted the extension requested.
On 27 February 1998 at around 5.05 p.m. the applicant was released without charge. His period of detention from arrest was six days, one hour and fifty minutes.
While in detention the applicant was never brought before any judicial authority. Throughout the period of detention the applicant was able to have access to a solicitor including before the start of each interview. The applicant saw his solicitor on ten occasions during his detention. His detention during the first forty-eight hours was regularly reviewed by senior police officers not directly involved in the case as required by the 1989 Act and the Code of Practice issued under section 52 of the Northern Ireland (Emergency Provisions) Act 1996.
The applicant has drawn attention in his observations in reply to those of the Government to his claim that police officers made intimidating and abusive remarks about his solicitor during his detention and to the fact that she was subsequently murdered on 15 March 1999. The applicant also criticises the austerity of the holding conditions in the Castlereagh Centre where he was detained.
B. Relevant domestic and international law and practice
In its Brogan and Others v. the United Kingdom judgment (29 November 1988, Series A no. 145), the Court held that there had been a violation of Article 5 § 3 of the Convention in the case of all four applicants, who had been detained under section 12 of the Prevention of Terrorism Act 1984, which was the predecessor provision of section 14 of the 1989 Act. The applicants had been held for periods ranging between six days and sixteen-and-a-half hours and four days and six hours without being brought before a judicial authority. The Court found that even the shortest of the periods of detention, namely four days and six hours, fell outside the strict constraints as to time permitted by the first part of Article 5 § 3. In the Court’s view, 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 on its own sufficient to ensure compliance with the specific requirements of Article 5 § 3.
Following that judgment, the United Kingdom informed the Secretary General of the Council of Europe on 23 December 1988 that the Government had availed themselves of the right of derogation conferred by Article 15 § 1 to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 § 3 of the Convention. Part of that declaration reads as follows:
“... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government’s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice...”
In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require.
The 1989 Act has been renewed annually ever since.
Section 14 of the 1989 Act provides as follows:
“14. (1) Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be–
(a) a person guilty of an offence under section 2, 8, 9, 10 or 11 above;
(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this section applies; or
(c) a person subject to an exclusion order.
(2) The acts of terrorism to which this section applies are–
(a) acts of terrorism connected with the affairs of Northern Ireland; and
(b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.
(3) The power of arrest conferred by subsection (1)(c) above is exercisable only–
(a) in Great Britain if the exclusion order was made under section 5 above; and
(b) in Northern Ireland if it was made under section 6 above.
(4) Subject to subsection (5) below, a person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest.
(5) The Secretary of State may, in any particular case, extend the period of forty-eight hours mentioned in subsection (4) above by a period or periods specified by him, but any such further period or periods shall not exceed five days in all and if an application for such an extension is made the person detained shall as soon as practicable be given written notice of that fact and of the time when the application was made.
(6) The exercise of the detention powers conferred by this section shall be subject to supervision in accordance with Schedule 3 to this Act.
(7) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.”
The notification made by the United Kingdom Government under Article 15 § 3 of the Convention was withdrawn on 19 February 2001, with effect from 26 February 2001.
C. The political and security situation in Northern Ireland
The political and security situation covering the years 1974-1987 is described in the Court’s Brannigan and McBride v. the United Kingdom judgment of 26 May 1993 (Series A no. 258, pp. 38-39, §§ 12-15).
Official statistics indicate that between 1969 and 1999 (3 June) a total number of 3,295 persons (military and civilian) have died due to the security situation. The number of deaths (military and civilian) due to the security situation between 1989 and 1999 (3 June) is as follows:
1989: 62; 1990: 76; 1991: 94; 1992: 85; 1993: 84; 1994: 62; 1995: 9; 1996: 15; 1997: 22; 1998: 55; 1999: 6.
Official statistics indicate that between 1968 and 1999 (3 June) a total of 42,766 persons (military and civilian) have been injured as a result of the security situation. The number of persons injured (military and civilian) over the period 1989 to 1999 (3 June) is as follows:
1989: 959; 1990: 906; 1991: 162; 1992: 1066; 1993: 824; 1994: 825; 1995: 937; 1996: 1419; 1997: 1237; 1998: 1564; 1999: 550.
The reviews undertaken by the authorities of the Prevention of Terrorism (Temporary Provisions) Act 1974 and of the amending Act passed in 1976 are summarised at paragraphs 13 to 15 of the Brannigan and McBride judgment.
Reviews of the operation of 1989 Act were undertaken by JJ Rowe QC for each of the years 1993 to 1998.
In his 1996 Report, which was completed on 4 February 1997, the reviewer noted that there had been a marked increase in the level of terrorist activity in the wake of the IRA’s decision to end the cease-fire which it called in August 1994.
In his 1997 Report, which was completed on 16 February 1998, the reviewer noted that the threat of terrorism continued to be real and observed that, while in principle, there should be judicial participation in the extension of detention, “this was not yet possible ... because the judges in [Northern Ireland] cannot yet be asked to do this work.”
In his 1998 Report, which was completed on 11 February 1999, the reviewer observed that, despite the cease fire declared by the major paramilitary groups in 1994 “there are dissident elements who are intent upon causing injury and damage, and they have the capacity to do so. All in all there is a real threat that some terrorist activity will continue in Northern Ireland ... My conclusion is this, criminals with a terrorist or paramilitary disposition have the means to carry out attacks with explosives and firearms at any time; furthermore, some of them have maintained an organisation which has structure and influence.”
As to the continuing use of the power of extended detention, the reviewer reiterated his view expressed in earlier reports, that he favoured judicial involvement in the decision-making process. He noted that the appropriate place to examine this issue thoroughly was in the Consultation Paper which the Government of the day had presented to Parliament in December 1998.
The Consultation Paper proposed judicial participation in applications for extension. In their submissions in the instant case, the Government indicated that they envisage the introduction of legislation to include provisions for a form of judicial involvement in extensions of detention.
D. Remedies in respect of arrest and detention under the prevention of terrorism legislation
An analysis of court remedies relevant to arrest and detention under the prevention of terrorism legislation including section 14 of the 1989 Act is contained in the above-mentioned Brannigan and McBride judgment (pp. 1645, §§ 16-29).
The applicant complains that his detention for seven days violated his right under Article 5 § 3 of the Convention to be brought promptly before a judicial authority. Furthermore, he contended that he had no effective remedy to challenge his detention before a domestic court. He invokes Article 13 in this respect.
At a more general level the applicant also maintains that the respondent State is in breach of Article 1 of the Convention since by enacting and continuing to apply the 1989 Act they have failed to secure his Convention rights to liberty and security of the person and to a remedy to challenge the legality of his detention. It is also his submission that the maintenance in force of the 1989 Act can no longer be justified with reference to Article 15 of the Convention. In this respect he maintains that there is at present no public emergency in Northern Ireland. He contends in the alternative that even if there is a public emergency, the derogation made by the respondent State is not strictly required by the exigencies of the current situation and is inconsistent with that State’s other international obligations. On that account also the applicant avers that the respondent State is in breach of Article 15 of the Convention.
The applicant maintains that he was detained for a period of seven days without being brought before a judge, in breach of the promptness requirement of Article 5 § 3 of the Convention, which states:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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.”
A. The parties’ submissions
In the applicant’s submission, the respondent Government cannot rely on the derogation to this safeguard which they introduced on 23 December 1988 following the Court’s judgment in the Brogan and Others v. the United Kingdom case (29 November 1988, Series A no. 145), since the derogation must be considered incompatible with Article 15 of the Convention, having regard to the radical transformation in the security situation in Northern Ireland at the material time. Article 15 stipulates:
“1. 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 to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (§ 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”
The Government aver that Article 5 § 3 of the Convention was not violated in the applicant’s case, having regard to their derogation of 23 December 1988. In their view, the derogation impugned by the applicant was fully compatible with the requirements of Article 15 and thus valid.
In the first place, at the material time the security situation in Northern Ireland could still be described with justification as a public emergency threatening the life of the nation. The Government stress in this respect that in the seven-week period leading up to the applicant’s arrest in February 1998 thirteen murders had taken place in the province. There had also been numerous bombing incidents. They further draw attention to the fact that the Annual Review for 1998 of the 1989 Act concluded that the security threat was sufficiently serious to require the continuation of that legislation.
Secondly, the applicant’s prolonged detention in the context of the investigation of serious terrorist offences had to be viewed from the standpoint of the fair balance which had to be struck between the defence of the community against the threat of an organised and sustained campaign of terrorism and the rights of the individual suspect.
As to the first point, the Government underline in this respect the particular problems which beset the authorities in mounting a case against terrorist suspects trained in remaining silent during interrogation with the aim of impeding the search for evidence and the preferment of charges against them. Faced with the lack of co-operation on the part of suspects, the authorities are obliged to devote considerable time and resources to the gathering of other (non-confession) evidence which is capable of being used in court. The Government further stress that the question whether at the relevant time the decision to extend a suspect’s detention should have been taken by a judge and not by the Secretary of State had to be seen against the background of the concerns to maintain the independence of the judiciary. In their submission, the involvement of judges in the approval of extended detentions in terrorists cases could give rise to the risk that they would be perceived to be part of the process of investigation and prosecution, the more so since such decisions would require to be taken on the basis of materials which could not be disclosed, for security reasons, to the suspect or his lawyer. In any event, this issue of judicial intervention has been kept under regular review. The Government acknowledge that opinion is divided on the issue of judicial intervention and draw attention to the planned introduction of legislation providing for a form of judicial involvement in extensions of detention. However, they contend that, even if desirable in principle, judicial involvement in the decision to extend the applicant’s detention in February 1998 was not a feasible proposition and the system in force at the material time was properly applied within the respondent State’s margin of appreciation.
As to the second point, the Government observe that the applicant was not held incommunicado, had access to legal advice during his detention including before the start of each interview, his detention was regularly reviewed during the first forty-eight hours and he was informed of the applications for extension of his detention and of his right to make representations to the Secretary of State on such extensions. It has not been suggested that the applicant was ever ill-treated during detention.
The applicant disputes the Government’s claim that the derogation continued to be valid in 1998. He maintains that at the time of his detention the security situation had changed beyond recognition. Ever since the decision of the main paramilitary groups in 1994 to call a cease-fire the Government have taken and continue to take measures which reflect the much reduced security threat in Northern Ireland, including a marked decline in the use of emergency powers of arrest, search and detention, less frequent recourse to extended periods of detention, the closure of army bases and the running down of the number of army personnel involved in operational duties in the province. In addition, in April 1998 the British and Irish Governments concluded the Belfast Agreement providing for an institutional framework for the resolution of the conflict and there is no indication of a return to violence on the part of the main paramilitary groups.
The applicant asserts against this background that any public emergency which might have existed in Northern Ireland was effectively over by the time of his unlawful detention and that the respondent Government cannot legitimate the retention of their derogation with reference to possible future outbreaks of terrorist violence. In his submission, it is for the Government to act appropriately in response to future such outbreaks if and when they occur. However, the Government should not be permitted under the Convention to impose a permanent state of emergency on the province with the pernicious consequences which that would entail for respect for the rule of law. In this connection, the applicant stresses that, save for a few brief periods, Northern Ireland had experienced emergency rule and derogation from basic liberties since 1971. According to the applicant, this factor had to weigh heavily in the balance in the Court’s assessment of the continuing validity of the derogation and must narrow considerably the scope of any appeal which they make to the margin of appreciation doctrine. In this connection, the applicant urged the Court to apply a strict scrutiny test in regard to the Government’s claim as to the existence of a public emergency and to the legality, in Convention terms, of the measures taken by the respondent State which encroach on Convention freedoms such as guaranteed by Article 5 § 3.
The applicant also maintains that the power of extended detention is not strictly required by the exigencies of the situation since statistics show that at the material time most individuals detained under section 14 of the 1989 Act were released without charge. Furthermore, he states that magistrates commonly remand accused persons in custody without questioning whether there is substantial evidence against them to justify the preferment of charges. In the applicant’s submission, this conclusion belies the Government’s argument that an extended period of detention is necessary in order to mount a case against a suspect. The applicant contends that the fact that most persons detained under section 14 are subsequently released without charge means either that the police are using the power to gather information, or to arrest individuals against whom there is very little or no evidence.
As to the Government’s reliance on the annual reviews carried out on both the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996, the applicant asserts that none of these reviews gave prominence to the compatibility of the extended detention power with Article 5 § 3 of the Convention and to the continuing need for the derogation; nor do they address issues such as the capacity of the ordinary criminal law process to deal with the security situation. In sum, the reviews must be considered an inadequate basis for any decision on the continued need for the derogation.
The applicant challenges the Government’s view of the adequacy of the safeguards in place to protect the rights of individuals held for extended periods in the absence of judicial approval. He states in this connection that it is questionable whether the detention review procedure highlighted by the Government has led to the release of any detainee. Furthermore, representations to the Secretary of State rarely, if ever, have an impact on the decision-making process in relation to applications for extensions. In fact, in the period 1995 to 1999, all applications were successful. According to the applicant, there are no reported cases in which a judicial review application of an extension decision met with a successful outcome. The inadequacy of the safeguards is only exemplified by the fact that access to legal advice, as with the right to contact a relative or friend, can be deferred for up to forty-eight hours pursuant to the provisions of the Northern Ireland (Emergency Provisions) Act 1996 and a detainee’s solicitor is not permitted to be present during interview.
While an application for a writ of habeas corpus is the only available mechanism which can operate to ensure a detainee’s release, it cannot, in the applicant’s view, provide an adequate safeguard against the arbitrary use or abuse of the extended period of detention since recent domestic court decisions (Cullen v. the Chief Constable  Northern Ireland Law Reports) indicate that conditions of detention or denial of fundamental rights while in detention cannot invalidate detention and lead to a successful application for habeas corpus. An action in damages for false imprisonment is an equally limited remedy for securing redress in respect of a breach of Article 5 § 3.
In his final submission, the applicant refers to the observations of the UN Human Rights Committee (CCPR/C/79/Add.5.5,27 July 1995) to the effect that the emergency provisions in force in Northern Ireland, such as authorising extended powers of detention, “are excessive” and that the early withdrawal of the derogation made pursuant to Article 4 of the International Covenant on Civil and Political Rights 1996 should be envisaged. However, no measures have been taken by the respondent Government to follow up this recommendation. In addition, the applicant claims that there is an emerging consensus in international law that due process rights, such as Article 5 guarantees, must be given a heightened status akin to that of non-derogable rights. He refers in this connection to, inter alia, the evolving view of the Inter-American Court in this area and to the adoption of the Paris Minimum Standards of Human Rights Norms in a State of Emergency, which have received the approval of the International Law Association. In the applicant’s view, these considerations argue in favour of the conclusion that the continued use of the derogation by the respondent State places it in breach of its other obligations under international law.
B. The Court’s assessment
The Court observes that the applicant was arrested on 21 February 1998 at around 3.15 p.m. and detained in Castlereagh Holding Centre until his release without charge on 27 February 1998 at around 5.05 p.m. At no stage of his detention was he ever brought before a judge.
Having regard to its finding in the above-mentioned case of Brogan and Others v. the United Kingdom, this period of extended detention in the absence of judicial involvement must be considered too long for the purposes of Article 5 § 3 of the Convention and therefore not compatible with that provision. The Government submit, as in the above-mentioned Brannigan and McBride judgment (§ 38), that the failure to observe the requirements of Article 5 § 3 in the applicant’s case has been met by the validity of the derogation made on 23 December 1983 under Article 15 of the Convention. The continuing validity of that derogation is contested by the applicant.
The Court recalls that the principles applicable to the determination of the validity of an Article 15 derogation were first considered in its Lawless v. Ireland judgment of 1 July 1961 (Series A no. 3, pp. 54-62, §§ 20-47). These principles were later applied in the context of the political and security situation in Northern Ireland in the Ireland v. the United Kingdom judgment of 18 January 1978 (Series A no. 25, pp. 78-85, §§ 204-224) and then given further concrete expression in the same context in the above-mentioned Brannigan and McBride judgment (pp. 49-57, §§ 41-74).
In the latter judgment, the Court applied those principles in order to ascertain whether the requirements of Article 15 had been satisfied by the derogation impugned in the instant case. In so doing, the Court inquired, firstly, as to the existence of a public emergency threatening the life of the nation and, in a subsequent stage, as to whether the power to detain suspected terrorists for up to seven days without judicial intervention was a measure strictly required by the exigencies of the situation at the relevant time. As to the latter issue, the Court examined, inter alia, whether the derogation was a genuine response to an emergency situation and whether the absence of judicial control of extended detention was justified, having regard to the authorities’ margin of appreciation on this matter and the nature of the safeguards which existed to prevent abuse.
The Court sees no reason to depart from this approach in the consideration of the admissibility of Mr Marshall’s application. However, it must at the same time address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of the applicant in the case before it.
The Court does not agree with the applicant’s submission that the security situation in Northern Ireland at the time of his detention had improved to the point where it was no longer justified to refer to it as a public emergency “threatening the life of the nation”. It notes that the authorities continued to be confronted with the threat of terrorist violence notwithstanding a reduction in its incidence. It cannot but note that the weeks preceding the applicant’s detention were characterised by an outbreak of deadly violence. This of itself confirms that there had been no return to normality since the date of the Brannigan and McBride judgment such as to lead the Court to controvert the authorities’ assessment of the situation in the province in terms of the threats which organised violence posed for the life of the community and the search for a peaceful settlement. It recalls in this connection that by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogation necessary to avoid it (see the above-mentioned Brannigan and McBride judgment, pp. 49-50, § 43; and the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2280, § 68).
As to the decision to prolong the applicant’s detention in the absence of judicial intervention, the Court observes that the Government rely on the same justifications for this measure which they advanced in the Brannigan and McBride case. Those justifications were accepted by the Court in that case on the basis that it was not its role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other. The Court considered that in the context of Northern Ireland, where the judiciary was small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary was understandably a matter to which the Government attached great importance (loc. cit., p. 54, §§ 55-60).
In the Court’s opinion, at the time of the applicant’s arrest the continued reliance on the system of administrative detention of suspected terrorists for periods of up to seven days did not result in the overstepping of the margin of appreciation which is accorded to the authorities in determining their response to the threat to the community. The reasons which the Government gave in the Brannigan and McBride case against judicial control continue to be relevant and sufficient. It notes in this respect that the threat of terrorist outrage was still real and that the paramilitary groups in Northern Ireland retained the organisational capacity to kill and maim on a wide scale. The applicant contends that it would have been open to the authorities to contain the level of violence prevailing at the relevant time by means of the ordinary criminal law. He observes in this connection that violence on a similar scale in other parts of the United Kingdom have been addressed without recourse to the displacement of due process guarantees. The Court has examined this argument. However, it considers that the applicant’s reasoning does not take sufficient account of the specific nature of the violence which has beset Northern Ireland, less so the political and historical considerations which form the backdrop to the emergency situation, considerations which the Court described at length in its Ireland v. the United Kingdom judgment (loc. cit., pp. 9-14, §§ 11-28).
Although the applicant contests the effectiveness of the safeguards against abuse of the administrative power of extended detention, as relied on by the Government, the Court, eight years after the adoption of its Brannigan and McBride judgment, continues to remain satisfied that these safeguards provide an important measure of protection against arbitrary behaviour and incommunicado detention (see the Brannigan and McBride judgment, p. 55, § 62). It has not been disputed that the remedy of habeas corpus was available to the applicant had he chosen to use it to challenge the lawfulness of his initial arrest or detention. It is to be observed that although the applicant disputes the effectiveness of the remedy, he has not alleged a violation of Article 5 § 4 of the Convention.
It for this reason that the Court considers that there is no appearance of a breach of Article 13 of the Convention, given that the requirements of that Article are less strict than those of Article 5 § 4, which must be regarded as lex specialis in respects of complaints under Article 5 § 4 of the Convention (see the Brannigan and McBride judgment, p. 57, § 76).
The Court further notes that persons whose detention has been extended under section 14 of the 1989 Act have an enforceable right to consult a solicitor after forty-eight hours from the time of their arrest. Mr Marshall did in fact have frequent access to a solicitor throughout his detention. Moreover, he has not denied that it would have been open to him to make representations to the Secretary of State urging the latter to reject the request to have his detention extended and to challenge by way of judicial review the Secretary of State’s decision to grant the request.
The Court would also observe that the applicant does not dispute that detainees are entitled to inform a relative or a friend about their detention and to have access to a doctor.
The Court does not accept either his submission that the authorities have failed to conduct a meaningful review of the continuing necessity for the derogation to Article 5 § 3. It is satisfied on the basis of the materials before it that the authorities have addressed themselves to this issue with sufficient frequency. An annual review has been carried out of the practical operation of section 14 and other provisions of the 1989 Act, Parliament has debated annually any proposal to renew the legislation and the authorities have approached the operation of the 1989 Act with an eye to developments in the political and security situation in Northern Ireland. It notes in this connection that in February 2001 the Government finally withdrew their derogation.
The Court would add that it finds nothing in the applicant’s reference to the observations of the United Nations Human Rights Committee to suggest that the Government must be considered to be in breach of their obligations under the International Covenant on Civil and Political Rights by maintaining their derogation after 1995. On that account the applicant cannot maintain that the continuance in force of the derogation was incompatible with the authorities’ obligations under international law.
Having regard to the above considerations, the Court concludes that the impugned derogation satisfies the requirements of Article 15 and that the applicant cannot therefore validly complain of a violation of Article 5 § 3. It further concludes that there is no appearance of a violation of Article 13.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Georg Ress
MARSHALL v. THE UNITED KINGDOM DECISION
MARSHALL v. THE UNITED KINGDOM DECISION