THE PROCEEDINGS

On 16 December 1971 the Permanent Representative of Ireland to the
Council of Europe filed with the Secretary General of the Council of
Europe in Paris the original application which was dated 15 December
1971 and in which the applicant Government made various allegations
under Articles 1, 2, 3, 5, 6 and 14 of the Convention in respect of
matters concerning Northern Ireland. Copies of the application were
received by the Commission's Secretary in Strasbourg on 17 December and
it was registered on the same day under file No. 5310/71.

The Commission considered the application on 18 December 1971 and
decided:

1.   to give precedence to the application in accordance with Rule 38,
1 of the Rules of Procedure;

2.   to request the Secretary General of the Council of Europe to give
notice of the application to the respondent Government in accordance
with Rule 44 of the Rules of Procedure;

3.   to invite the respondent Government to submit, before 29 February
1972, its observations in writing on the admissibility of the
application.

On 25 February 1972 the applicant Government filed a supplementary
memorial, dated 22 February, together with a covering letter requesting
that the new memorial which contained allegations as to further and
continuing breaches of Articles 1, 2, 3, 5, 6, and 14 of the Convention
should be brought before the Commission as part of the original
application.

The President decided that the supplementary material should be
communicated at once to the respondent Government as part of the
existing case-file and he extended provisionally until 21 March the
time-limit for the submission of the respondent Government's written
observations on admissibility. The Parties were informed accordingly
and told that the Commission would consider during its next session the
future procedure to be followed in regard to the new material.

Under cover of a letter dated 29 February 1972 the applicant Government
submitted two affidavits which had inadvertently been omitted from the
submissions of 23 February. These affidavits were also included in the
case-file and copies went to the respondent Government.

Under cover of a letter, dated 3 March 1972, the applicant Government
submitted a further memorial, with enclosures for inclusion in the
case-file, in which the applicant Government alleged violations of
Articles 1 and 7 of the Convention in relation to the Northern Ireland
Act 1972. The Parties were informed that the Commission would decide
the future procedure to be followed also in this regard during its next
session.

The Commission considered the case on 20 March 1972 and decided that
the Government's submissions of 3 March 1972 should be registered as
a separate application (No. 5451/72). The respondent Government was
invited to submit observations on the admissibility of this application
before 1 May 1972.

With regard to the applicant Government's supplementary memorial of 22
February 1972 the Commission decided that it should be dealt with as
part of the original application (No. 53110/71). The time-limit for the
submission of the respondent Government's observations on the
admissibility of this application was extended until 15 April 1972.

On 20 March 1972 the Commission also took note of a letter, received
on the same day and dated 16 March, from the Agent of the applicant
Government. It was submitted that the applicant Government had up to
that date been receiving evidence from person in custody under the
Special Powers Act indicating that they continued to be ill-treated in
the manner complained of by the applicant Government as involving
breach of Article 3 of the Convention. Reference was also made to a
report, published on 13 March, of an inquiry by Amnesty International.
The Commission was asked to request the respondent Government to take
interim measures to ensure that such ill-treatment was discontinued
pending a decision on the application in order to prevent irreparable
damage. While recognising that the Commission was not expressly
empowered to order or direct a Government to adopt such measures, the
applicant Government submitted that the Commission did possess the
power to undertake interim measures as this was the necessary attribute
of its judicial function and therefore covered by the doctrine of
implied powers. Reference was also made to previous cases in which the
Commission had requested Governments to take interim measures.
The applicant Government requested the Commission in particular to seek
from the respondent Government:  first, an undertaking that all such
treatment of persons in custody as had been complained of in the
application as constituting a breach of Article 3 of the Convention
should be discontinued; secondly, permission for attendance by
observers nominated by the Commission at centres of custody to
ascertain whether these persons were subjected to such treatment; and,
thirdly, an undertaking that all such persons in custody should be
taken to the centres where these observers would be located and that
the observers should at all times be given access to such persons.

The applicant Government stated their view that the object of interim
measures is generally the preservation of the rights of the parties,
pending adjudication, insofar as the damage threatened to these rights
would be irreparable. It was submitted that the measures suggested
would not in any way prejudice the rights of the respondent Government,
but that they would on the other hand protect from irreparable damage
the right to physical integrity of those persons in custody who had
been and were still being subjected to ill-treatment. Reference was
made to the findings of the Compton Report and of the Parker Report as
evidence of the ill-treatment of these persons.

The Commission decided to communicate this letter to the respondent
Government for observations.

In a letter from the Agent of the respondent Government dated 23 March
1972, received by the Commission on 24 March, the respondent Government
submitted their observations on the applicant Government's letter.

The Commission took note of these observations on 24 March 1972. The
respondent Government observed first that the applicant Government were
requesting the Commission to seek certain undertakings and were
proposing in effect that the Commission should appoint observers to
investigate certain allegations of violations of the Convention
regardless of any considerations of admissibility. The respondent
Government noted further that the proposal was made not in respect of
material which the Government had already supplied to the Commission,
but in respect of new and unspecified allegations. It was submitted
that there was no provision in the Convention conferring on the
Commission competence to order interim measures of the kind that were
being sought and reference was made to the Commission's decision in
application No. 297/57, Yearbook, Vol. 2, p. 204, at p. 212, that "the
Convention does not contain any provision giving the Commission
competence to order provisional measures".

It was submitted also that it would not be compatible with the
Commission's functions under the Convention for it to seek from the
respondent Government the undertakings or permission requested, or to
appoint observers to supervise the activities of a State Party to the
Convention. The respondent Government considered that the first
undertaking which the applicant Government were requesting the
Commission to seek went to the substance of certain allegations of
violations of Article 3 of the Convention, and these violations were
denied by the respondent Government. It was the view of the respondent
Government that to seek an undertaking of the sort requested would not
only amount to prejudging the question of admissibility, but in
addition would prejudice any consideration of the substance of any
allegations which might arise. The respondent Government made a clear
distinction between this situation and those cases where in the course
of proceedings before the Commission a Government have deferred a
particular action. It was submitted that to request a Government to
defer action which it admittedly intends to take is quite different
from asking a Government to desist from acts which it denies.
Objections were also made to the request that the Commission should
nominate observers, the respondent Government considering that such
action by the Commission would be incompatible with the Convention.
While not accepting that the function of such observers would be the
same as the function of determining the facts for which provision is
made in Article 28 (a) of the Convention, the respondent Government
observed that in any event the latter function falls to be exercised
by the Commission only if a particular complaint is declared
admissible.

It was the view of the respondent Government that the requests of the
applicant Government constituted an attempt to circumvent the normal
procedures laid down in the Convention for considering complaints and
would, if acceded to, prejudge the question of admissibility of
complaints which the respondent Government had not yet had the
opportunity of rebutting. The respondent Government submitted that the
applicant Government's requests and proposals should be rejected,
emphasising that this submission was based solely on what the
respondent Government regarded as the proper function of the Commission
at this stage of the proceedings.

After considering the applicant Government's letter of 16 March 1972
and the observations of the respondent Government of 23 March, the
Commission decided on 24 March 1972 that it did not have the power,
consistent with its functions under the Convention, to meet the request
made in the applicant Government's letter.

On 13 April 1972 the respondent Government requested an extension of
the time-limit of 15 April for the submission of their observations on
the admissibility of application No. 5310/71. In their request the
Government referred to the supplementary material submitted on 25
February by the applicant Government. The respondent Government
observed that a substantial part of this material related to the deaths
which occurred in Londonderry on 30 January and stated that a Tribunal
of Enquiry into the circumstances of these deaths had been instituted.
The Tribunal had prepared its Report, which was currently under
consideration by the Government. The respondent Government submitted
that the Report of the Tribunal was a significant factor and that they
should have time to consider its contents before commenting on the
allegations of the applicant Government. They maintained that they
should not, by reason of the submission of supplementary material which
had been joined to the application, be asked to submit their
observations otherwise than on the allegations made by the applicant
Government as a whole.

On 17 April 1972 the President decided, after taking into consideration
the statements made by the respondent Government in their letter of
request of 13 April, to extend the time-limit until 3 May.

In a letter dated 17 April 1972 the respondent Government requested
that the time-limit for the submission of their observations on the
admissibility of application No. 5451/72 should be extended until 22
May.

The President granted this extension on 3 May 1972.

Under cover of a letter dated 2 May 1972, received by the Commission
on 3 May, the respondent Government submitted their observations on the
admissibility of application No. 5310/71. On 4 May copies of the
observations were sent to the applicant Government, who were invited
to submit their observations in reply before 29 June 1972.

The respondent Government's observations on the admissibility of
application No. 5451/72, dated 22 May 1972, were received by the
Commission on 25 May. On the same day copies of the observations were
sent to the applicant Government, who were invited to submit their
observations in reply before 20 July 1972.

On 30 May 1972 the Commission received the applicant Government's
observations, dated 29 May, in reply to the observations of the
respondent Government on the admissibility of application No. 5310/71.

The Commission decided on 30 May 1972 to invite the Parties to appear
before the Commission at a hearing, opening on 17 July 1972, to make
oral submissions on the admissibility of application No. 5310/71, and,
if possible, also of application No. 5451/72.

By letter dated 2 June 1972 the respondent Government requested an
adjournment of the hearing. On the same day the Commission decided to
communicate this letter to the applicant Government for observations.
In a letter of 8 June the applicant Government submitted their
observations on the respondent Government's request for an adjournment.
In this letter the applicant Government, while noting the difficulties
which the proposed date for the opening of the hearing posed for the
respondent Government, pointed out that they themselves faced similar
difficulties, but were prepared to meet them. Mention was also made of
the gravity of the case. The applicant Government recognised, however,
that the fixing of the date of the hearing was a matter for the
Commission and stated that they would understand if the Commission
should decide to postpone the hearing.

On 12 June 1972 the Acting President decided to adjourn the hearing and
to fix 25 September 1972 as the new opening date.

On 19 July 1972 the Commission received the observations of the
applicant Government, dated 17 July 1972, in reply the respondent
Government's observations on the admissibility of application No.
5451/72.

Under cover of a letter dated 29 August 1972 the respondent Government
submitted copies of exhibits which they proposed to refer to in the
course of the hearing on admissibility.

On 25 September 1972 the Commission decided to join applications No.
5310/71 and 5451/72 in accordance with Rule 39 of its Rules of
Procedure.

The hearing on the admissibility of the two applications was held in
Strasbourg on 25, 26, 27, 28 and 29 September 1972. During the course
of the hearing oral and written submissions were made to the Commission
by the Parties.

The applicant Government were represented at the hearing by:

MM. F.M. Hayes, Legal Adviser, Department of Foreign Affairs, Agent of
the Irish Government Colm Condon, S.C., Attorney-General
Miss Mary Tinney, Permanent Representative of Ireland to the Council
of Europe
MM. T.A. Finlay, S.C.
A.J. Hederman, S.C.
Aidan Browne, Barrister-at-Law
John Murray, Barrister-at-Law
Liam Lysaght, Chief State Solicitor
P.D. Quigley, Senior Legal Assistant, Attorney-General's Office
E. Gallagher, Counsellor at the Department of Foreign Affairs
S. Donlon, Counsellor at the Department of Foreign Affairs
Charles E. Lysaght, Assistant Legal Adviser at the Department  of
Foreign Affairs
Dermot Walshe, Chief State Solicitor's Office

The represenatives of the respondent Government were:
Mr. Paul Fifoot, Barrister-at-Law, Legal Counsellor, Foreign and
Commonwealth Office, Agent of the United Kingdom Government
The Rt. Hon. Sir Peter Rawlinson, Q.C., M.P., Attorney-General
MM. D.J.B. Robey, C.M.G., Permanent Representative of the United
Kingdom to the Council of Europe
J.G. Le Quesne, Q.C.
J.B.E. Hutton, Q.C.
Gordon Slynn, Barrister-at-Law, Juniour Counsel to the Treasury
Nicholas Bratza, Barrister-at-Law
M.G. de Winton, C.B.E., M.C., Solicitor of the Supreme Court, Assistant
Legal Secretary to the Attorney-General
MM. A.H. Hammond, Solicitor of the Supreme Court, Senior Legal
Assistant, Home Office
A.C. Thorpe, First Secretary, Foreign and Commonwealth Office
R.C. Cox, First Secretary, Northern Ireland Office
D. Fisher, Assistant Principal, Ministry of Defence
Anthony Parry, Assistant Legal Adviser, Foreign and Commonwealth Office

THE FACTS

APPLICATION NO. 5310/71

The facts of the case, as they have been presented by the Parties, may
be summarised as follows:

I.   The applicant Government's application

1.   The original submissions of 15 December 1971

On 15 December 1971 the applicant Government submitted to the
Commission the application in the following terms: (1)
-----------------------------
(1)  The footnotes appearing on pages 12 to 14 do not form part of the
text of the original application, but have been added for editorial
purposes.
-----------------------------
"A.  The Objects of the Claim

The objects of the claim are:

1.   To ensure that the respondent Government will secure to everyone
in Northern Ireland the rights and freedoms defined in Section 1 of the
Convention and in particular the rights and freedoms defined in
Articles 2, 3, 5, 6, and 14 of the Convention;

2.   To bring to the attention of the Commission breaches of Articles
1, 2, 3, 5, 6, and 14 of the Convention by the respondent Government
in Northern Ireland;

3.   To determine the compatibility with the Convention of certain
legislative measures and administrative practices of the respondent
Government in Northern Ireland;

4.   To ensure the observance of the legal engagements and obligations
undertaken by the respondent Government in the Convention.

Statements of the Facts and Arguments

B.   Breach of Article 1 of the Convention

1.   The applicant Government refers the Commission to the provisions
of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922
and the Statutory Rules, Regulations and Orders made thereunder. The
said Act, Rules, Regulations and Orders and two commentaries upon them
and three law reports (1) in which they are considered are contained
in Appendix 1 of the attached documents.
-----------------------------
(1)  McEldowney v. Forde [1971] AC 632 H.L. (N.I.); judgment of 12
October 1971 (so far unpublished) of McGonigal J. on a habeas corpus
application by J. McElduff; and R. (O'Hanlon) v. Governor of Belfast
Prison 56 Fr.L.T.R.170.
-----------------------------
2.   The applicant Government submits that the provisions of the said
Act, Rules, Regulations and Orders herinbefore mentioned are of
themselves a failure by the respondent Government to comply with the
obligation imposed on it by Article 1.

3.   It further submits that the methods employed or permitted by the
respondent Government in the implementation of the said Act, Rules,
Regulations and Orders constitute an administrative practice by the
respondent Government, as is evidenced by the facts submitted in
support of the references concerning breaches of Articles 2, 3,  5, 6
and 14 of the Convention, (which said facts are relied on in support
of this submission as well as in support of the submissions in respect
of the breaches of the individual Articles), and constitute a breach
by the respondent Government of its said obligations under Article 1.

4.   The matter herein being referred to the Commission, being a
breach by the respondent Government of the obligations imposed on it
by Article 1 of the Convention, there is no domestic remedy available
to the applicant Government, or to any person in respect of the matter
referred.

C.   Breach of Article 2 of the Convention

1.   The applicant Government refers the Commission to the deaths of
Eamon McDevitt, Francis McGuiness, Father Hugh Mullan, William
Kavanagh, Robert Anderson, James McLaughlin and Sean Ruddy, which said
deaths were caused by security forces of the respondent Government.

2.   The facts relating to the said deaths are set out in Appendix 2
of the attached documents (2)
-----------------------------
(2)  The deaths of the four first mentioned persons occurred in August
1971 and the other three died in October 1971.
-----------------------------
3.   The applicant Government submits that the said deaths are a
breach by the respondent Government of Article 2 of the Convention.

4.   It further submits that the said deaths did not occur within the
circumstances laid down in Article 2 (2) (a), 2 (2) (b), or 2 (2) (c)
of the Convention.

5.   It refers the Commission to three communications of the
respondent Government dated 27 June 1957 (1), 25 September 1969 (2) and
25 August 1971 (3), informing the Secretary General of the Council of
Europe of measures taken by the respondent Government purporting to
derogate from its obligations under the Convention and contained in
Appendix 3. The said measures do not and could not constitute a
derogation by the respondent Government from its obligations under
Article 2 having regard to the provisions of Article 15 (2) of the
Convention.

6.   It submits that the breaches of Article 2 of the Convention
referred to the Commission are not only the deprivation of life of a
number of individuals, but are also, and predominantly an
administrative practice, and a series of operations endangering the
right to life. The provisions of Article 26 of the Convention do not
apply in such circumstances.

7.   It submits this constitutes a failure by the respondent
Government as a matter of administrative practice to protect by law the
right to life of persons within their jurisdiction in Northern Ireland;
as such, there is no domestic remedy available to the applicant
Government or to any individual or group of individuals in respect of
the matter referred.

8.   It further submits that none of the persons killed in breach of
Article 2 of the Convention, has got in himself any right to a remedy
in accordance with the domestic law of the respondent Government, and
the applicant Government will submit that such rights, if any, as exist
in members of the family or dependents of individuals so killed, are
irrelevant to the provisions of Article 26 of the Convention.

D.   Breaches of Article 3 of the Convention

1.   On the 9th day of August 1971 some 342 persons were taken into
custody by security forces of the respondent Government. This was done
pursuant to the provisions of the said Civil Authorities (Special
Powers) Act (Northern Ireland) 1922 and the said Rules, Regulations and
Orders made thereunder. Since that date more than 1,000 persons have
been similarly taken into custody.
----------------------------------
(1)  Yearbook, Vol. 1, p. 50

(2)  Yearbook, Vol. 12, ppl 72-74

(3)  Annexed to this decision
----------------------------------

2.   Persons taken into custody in the early stages were detained in
varying numbers of different centres, namely Palace Barracks, Girdwood
Park and Ballykinlar and to a lesser extent in Magilligan and
elsewhere. Of that 342 persons, about 105 persons were released within
48 hours without any charge having been preferred against them.
Subsequently further persons were taken into custody and detained in
Palace Barracks and elsewhere.

3.   The applicant Government refers the Commission to the affidavits
and statements of persons so detained in the said Palace Barracks,
Girdwood Park and Ballykinlar which are contained in Appendices 4, 5
and 6 respectively of the attached documents and to the affidavits and
statements of persons who were detained elsewhere which are contained
in Appendix 7 of the attached documents.

4.   It further refers the Commission to the statements of medical
doctors and other medical specialists who subsequently saw or examined
some of the persons who had been or were so detained, or who are in a
position to comment on their treatment, which are contained in Appendix
8 of the attached documents.

5.   It further refers the Commission to a report and supplemental
report of a Committee of Inquiry appointed by the Secretary of State
for the Home Department of the respondent Government (known as the
Compton Report) which are contained in Appendix 9 of the attached
documents (1).

6.   The applicant Government submits that the persons referred to in
the said Appendices were subjected to treatment which constitutes
torture and inhuman and degrading treatment and punishment and which
was carried out by the security forces of the respondent Government and
is a breach of Article 3 of the Convention.

7.   The facts of torture and of inhuman and degrading treatment and
punishment referred to in paragraph 6 and the failure to prosecute and
punish those responsible constitute a denial of justice on the part of
the respondent Government. The rule of international law according to
which domestic remedies must be exhausted before the Commission can
deal with an application does not apply where there is such a denial
of justice as aforesaid.

8.   The forms of treatment to which the persons referred to were
subjected and the power of re-arrest, detention and internment would
constitute an impediment and deterrent to the pursuit of any remedy
within the domestic law and of the respondent Government.
-----------------------------------------------------------------------
--------
(1)  Report of the Enquiry into Allegations against the Security
Forces of physical Brutality in Northern Ireland (Cmnd. 4823).
-----------------------------------------------------------------------
--------

9.   It further submits that the matter here referred to the
Commission is not only a number of breaches by the respondent
Government of Article 3 of the Convention in respect of the treatment
of individuals, but also constitutes an administrative practice, and
a continued series of executive acts, exposing a section or sections
of the entire population within its jurisdiction in Northern Ireland
to torture or inhuman or degrading treatment or punishment.

10.  The applicant Government submits by reason of the foregoing that
the matter being referred to the Commission is not one in respect of
which the applicant Government or any person or group of individuals
can obtain a remedy in accordance with the domestic law of the
respondent Government.

11.  It further submits that the only purported remedy available to
a person subjected to the aforesaid treatment constituting a breach of
Article 3 of the Convention, within the domestic law of the respondent
Government, is, in the case where the tort of assault has occurred, the
right to claim monetary damages. Such a remedy is not an effective
remedy, nor is it an sufficient or adequate remedy for the acts
referred in this submission to the Commission, and constituting
breaches of Article 3 of the Convention. Further, in cases where no
such tort of assault has occurred not even this purported remedy
exists.

12.  The applicant Government further submits that the said breaches
of Article 3 of the Convention in addition constitute a breach by the
respondent Government of Article 1 of the Convention, and submits that
this is a matter in respect of which there is no domestic remedy within
the law of the respondent Government.

E.   Breaches of Articles 5 and 6 of the Convention

1.   Subsequent to the events related in paragraphs D.1. and D.2. of
this application a considerable number of persons were interned without
trial by the respondent Government. The exact number of persons at
present interned without trial is not known to the applicant Government
but it is estimated to be in the region of some 400 persons. The
applicant Government submits that the internment of persons as has been
and is being carried out in Northern Ireland is a breach of Article 5
and 6 of the Convention.

2.   The applicant Government refers the Commission to the Civil
Authorities (Special Powers) Act, (Northern Ireland) 1922 and the
Statutory Rules, Regulations and Orders made thereunder, contained in
Appendix 1 of the attached documents.

3.   The applicant Government submits that the powers contained in the
said Act, Rules, Regulations and Orders and the operation by the
respondent Government of the said powers in Northern Ireland are in
breach of Articles 5 and 6 of the Convention.

4.   The applicant Government refers to the communications of the
respondent Government referred to in paragraph C.5. and contained in
Appendix 3 of the attached documents.

5.   The applicant Government submits that the scope and form of the
measures taken by the respondent Government in purported derogation
from its obligations under the Convention are far greater and more
extensive than the measures which would be strictly required by the
exigencies of the situation and are inconsistent with the obligations
of the respondent Government under international law.

6.   The acts herein referred as breaches of Articles 5 and 6 of the
Convention are lawful within the domestic law of the respondent
Government, being in accordance with the Civil Authorities (Special
Powers) Act (Northern Ireland) 1922 and the Statutory Rules,
Regulations and Orders made thereunder, and as such are acts in respect
of which neither the individuals affected by them, nor the applicant
Government, has any remedy within the domestic law of the respondent
Government.

7.   The applicant Government further submits that the said breaches
of Articles 5 and 6 of the Convention in addition constitute a breach
by the respondent Government of Article 1 of the Convention and submit
that this is a matter in respect of which there is no domestic remedy
within the law of the respondent Government.

8.   The only possible purported remedy available to a person so
interned in breach of Articles 5 and 6 of the Convention is a right to
make representations to an advisory Committee to consider
representations from internees (known as the Brown Committee). The
applicant Government refers the Commission to a memorandum concerning
the terms of reference of the said Committee which is attached in
Appendix 10 of the attached documents.
9.   A person either arrested or detained pursuant to the provisions
of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922
or under the said Rules, Regulations or Orders made thereunder has no
legal remedy.

10.  The said Committee is an advisory body only and has no power to
release any person subjected to internment and its procedures are not
in accordance with natural justice. No other body of a quasi-judicial
or purported judicial nature has been provided by the domestic law of
the respondent Government for the examination of or adjudication on the
rights of persons so interned pursuant to the Act, Rules, Regulations
and Orders hereinbefore mentioned.

11.  Persons not interned, but who are either held in custody or
detained, have neither the right to make representations to the said
Brown Committee or to any other Committee of a quasi-judicial or other
purported judicial nature.

F.   Breaches of Article 14 of the Convention

1.   The applicant Government refers the Commission to its aforesaid
submissions in relation to breaches of Article 5 and 6 of the
Convention. It further refers the Commission to the matters set out in
Appendix 11 of the attached documents.

 2.  The applicant Government submits that the exercise by the
respondent Government and by the security forces under its control of
its powers to detain and intern persons has been and is being carried
out with discrimination on the grounds of political opinion.

3.   It further submits that the acts of the respondent Government set
out in paragraph 2 hereof is a failure to secure without discrimination
to persons within its jurisdiction the rights and freedoms conferred
by Articles 5 and 6 and is therefore a breach of Article 14 of the
Convention.

4.   The applicant Government again refers the Commission to its
aforesaid submissions in relation to Articles 5 and 6 of the Convention
and to the matters set out in Appendix 11 of the attached documents.
5.   The applicant Government submits that the exercise by the
respondent Government and by the security forces under its control of
its powers to search homes has been and is being carried out with
discrimination on the grounds of political opinion.

6.   It further submits that the acts of the respondent Government set
out in paragraph 4 hereof is a failure to secure without discrimination
to persons within its jurisdiction the rights and freedoms conferred
by Article 8 of the Convention and is therefore a breach of Article 14
of the Convention.

7.   The applicant Government further submits that the said breaches
of Article 14 of the Convention in addition constitute a breach by the
respondent Government of Article 1 of the Convention and submits that
this is a matter in respect of which there is no domestic remedy within
the law of the respondent Government.

G.   General

1.   Where possible, the applicant Government has referred the
Commission to sworn affidavits relating to the breaches of the
Convention complained of. Photo-copies of these affidavits have been
furnished to the Commission. The original affidavits are in the
possession of the applicant Government and can be produced before the
Commission if required.

2.   Where it has not been possible, for reasons outside the control
of the applicant Government, to obtain sworn affidavits, statements
relating to such breaches have been furnished to the Commission. The
original statements are in the possession of the applicant Government
and can be produced before the Commission if required.

3.   The Government further refers the Commission to newspaper
articles, statements and other reports contained in Appendix 12 of the
attached documents, which should assist the Commission both in giving
it background information and corroborative evidence of the matters
complained of in this application.

H.

1.   The applicant Government reserves the right to bring before the
Commission on this application any further evidence or statements
relating to any breach or to any future breach of any of the Articles
mentioned in this application by the respondent Government in Northern
Ireland where any such further evidence or statements becomes available
to it and to submit further or other arguments as may appear to be
necessary."

2.   The supplementary memorial of 22 February 1972

The applicant Government stated that the object of this supplementary
memorial was to draw to the attention of the Commission further and
continuing breaches of Articles 1, 2, 3, 5, 6 and 14 of the Convention.

In particular, reference was made to the deaths of two further persons
on 8 July 1971 (1) and to the deaths of thirteen persons (2) and the
wounding of sixteen others in Londonderry on 30 January 1972. It was
alleged that these deaths had been caused by the security forces of the
respondent Government in breach of Article 2 of the Convention.

As regards the alleged breaches of Article 3 of the Convention, the
applicant Government referred to a number of further affidavits and
other statements made by, or relating to, persons who had been held in
custody by the security forces and to statements made by doctors who
subsequently examined such persons. Further material and evidence were
also submitted with regard to the alleged violations of Articles 5, 6
and 14 of the Convention.
--------------------------------------
(1)  George Beattie and Seamus Cusack

(2)  Jackie Duddy, Patrick Doherty, Bernard McGuigan, Hugh Gilmore,
Kevin McIlhinney, William Nash, John Young, Michael McDaid, Michael
Kelly, James Joseph Wray, Gerald Donoghy, Gerald McKinney and William
McKinney.
--------------------------------------

3.   The final submissions of 29 September 1972

At the hearing on admissibility the Commission asked the applicant
Government to indicate the elements in the situation today which, in
their submission, were incompatible with the Convention. The applicant
Government replied as follows:

"The elements in the situation today within the territory of the
respondent Government which the applicant Government submits are
incompatible with the Convention are the following legislative measures
and administrative practices.

(1)  The persons responsible for the killing of the 22 people referred
to in the Application have not been punished nor disciplined. This
situation remaining today is incompatible with the respondent
Government's obligations under Articles 1 and 2 to secure that the
right to life is protected by law.

(2)  Beating and assault by security forces of persons arrested,
detained and interned continues and remains unpunished and this
situation today is incompatible with the respondent Government's
obligations under Articles 1 and 3.

(3)  The provisions of the Special Powers Act (Northern Ireland) 1922
and the Rules, Regulations or Orders made under it and the method of
implementing these measures remain today unchanged from the position
outlined in the application and this situation today is incompatible
with the respondent Government's obligations under Articles 1, 5, 6 and
14."

II.  Submissions of the Parties

In their written observations on admissibility and at the hearing of
25 to 29 September 1972 the Parties made further submissions as
follows:

A.   As to the background

1.   Submissions of the respondent Government

(a)  In their written and oral observations on admissibility the
respondent Government outlined the constitutional position of Northern
Ireland and made certain other submissions which were described in the
written observations as background material of a legal and factual
nature.

The respondent Government stated that Northern Ireland was an integral
part of the United Kingdom. The Government of Ireland Act 1920
established as separate Parliament and Executive for Northern Ireland.
The Northern Ireland Parliament was given extensive legislative powers
in respect of all domestic matters concerning the government of
Northern Ireland except in certain specific matters excluded under the
Act. Under Sec. 75 of the Act, the United Kingdom Parliament remained,
however, the supreme authority over Northern Ireland but it was rare
for the United Kingdom Parliament to legislate for Northern Ireland in
matters within the competence of the Northern Ireland Parliament.

On 30 March 1972 the United Kingdom Parliament passed the Northern
Ireland (Temporary Provisions) Act 1972 which made temporary provision
for the exercise of the executive and legislative powers of the
Government and Parliament of Northern Ireland by authorities of the
United Kingdom. This Act was passed because of the public emergency in
Northern Ireland and the reasons for its enactment were explained in
a statement made by the Prime Minister in the House of Commons at
Westminster on 24 March 1972.

(b)  The respondent Government also referred to the Civil Authorities
(Special Powers) Act (Northern Ireland) 1922 which, dealing with
matters affecting law and order and the security of Northern Ireland,
was an Act passed by the Northern Ireland Parliament. Under Sec. 1 (1)
of the Act the Civil Authority had power, in respect of persons,
matters and things within the jurisdiction of the Government of
Northern Ireland, to take all such steps and issue all such orders as
may be necessary for preserving peace and maintaining order in
accordance with the Act and the Regulations ("the Special Powers
Regulations") contained in the Schedule thereto, or any other
Regulations made in accordance with the Act. This sub-section also
required that the ordinary course of law and avocations of life and the
enjoyment of property should be interfered with as little as might be
permitted by the exigencies of the steps required to be taken under the
Act. Section 1 (2) provided that the Civil Authority was the Minister
of Home Affairs for Northern Ireland. Under the Act of 1972 the
functions of this Minister were exercisable temporarily by the
Secretary of State for Northern Ireland.

Under Section 1 (3) of the Act the Minister of Home Affairs had power
to make further Regulations to the preservation of peace and
maintenance of order and to vary or revoke any provision of the
Regulations. Such Regulations were required to be laid before the
Northern Ireland Parliament and were subject to amendment on an address
by either House of that Parliament. Under the 1972 Act the power to
make Regulations was vested in the Secretary of State for Northern
Ireland who could not make Regulations unless a draft was approved by
the United Kingdom Parliament, except where by reason of urgency this
procedure could not be followed, in which case the Regulations had to
be laid before the United Kingdom Parliament after being made and would
expire if within 40 days they were not approved by each House.

Under Regulation 24 of the Special Powers Regulations certain
associations were declared to be unlawful including the Irish
Republican Army (hereinafter referred to as "the IRA").

(c)  The respondent Government further stated that there was, and had
been at all times material to the application, a public emergency
threatening the life of the nation. This emergency had been caused by
the IRA which was a clandestine organisation with quasi-military
dispositions, which accepted neither the structure of government in the
Republic of Ireland nor the existence of Northern Ireland as part of
the United Kingdom, and was dedicated to changing both by force. From
time to time the IRA mounted campaigns of violence. Such, for example,
were the campaigns of 1939-41 and 1956-62 which were referred to by the
applicant Government in the Lawless Case (application No. 332/57). At
present the IRA was divided into "Official" and "Provisional" wings.
This division occurred in 1969 and led to a revival of organised
violence and intimidation. During 1971 the incidence of violence,
terrorism and intimidation intensified. The respondent Government made
detailed written and oral submissions with regard to such acts of
violence and stated, inter alia, in this connection that, between 1
August 1969 and 12 September 1972, indiscriminate bombings and other
terrorist activity resulted in the death of at least 259 civilians and
the injury of over 5,000 persons. 170 members of the British Army and
the police were killed and 1,251 injured. In the same period there were
more than 2,300 bomb explosions which caused extensive damage to
property. During this period the security forces seized 1,715 firearms,
including 75 machine guns and 690 rifles; 348,000 rounds of ammunition;
6 3/4 tons of explosives plus a further 7 tons of explosives retrieved
from bombs dismantled by the security forces; 7,000 detonators; over
5 miles of fuse wire; 3,200 grenades and nail bombs and 250 gallons of
acid for the making of bombs.
The respondent Government submitted that the IRA had deliberately
killed people on account of their political views or to prevent them
from giving evidence. One effect of IRA terrorism was to deter people
from coming forward as witnesses and this had stultified the ordinary
methods of enforcing the law.

(d)  The respondent Government further stated that the applicant
Government were well aware of the dangers to them from the IRA and had
condemned its activities. During previous periods of violence the
applicant Government had resorted to internment and the introduction
of special criminal courts. However, despite the fact that the IRA has
been declared an illegal organisation in the Republic of Ireland since
1936, both wings of the IRA operated from known addresses in Dublin,
leading members of both wings were known to the public, and both wings
openly claimed responsibility for specific acts of terrorism.

Little attempt appeared to have been made by the applicant Government
to take effective action against the IRA and the ability of those
responsible for acts of violence in the North to seek sanctuary south
of the border had undoubtedly had an adverse effect on the security
situation in the North, and contributed to the existence of a state of
emergency in Northern Ireland. The ineffectiveness of the applicant
Government in controlling the activities within their own territory was
shown by a number of cross-border shootings by terrorists and other
incidents of violence in the border area where terrorists had been seen
to cross the border before or after an attack or had reasonably been
believed to have done so.

The respondent Government also referred to representations made by them
to authorities of the applicant Government on various occasions in
connection with cross-border incidents and to the respondent
Government's unsuccessful attempts to obtain the extradition of persons
wanted by the Northern Ireland police.

2.   Submissions of the applicant Government

the applicant Government submitted in reply that the observations of
the respondent Government, which have been summarised in paragraphs (a)
and (b) above, called for no comment on the issue of the admissibility
of the application. As regards the submissions summarised in paragraphs
(c) and (d) above, these were relevant to the application (if at all)
only to the extent to which they related to the question whether the
notifications sent by the respondent Government pursuant to Article 15
(3) of the Convention were warranted under Article 5 (1). They were not
relevant to the question of admissibility.

The applicant Government strongly objected to the respondent
Government's allegations that they had in any way failed to take
effective action against members of illegal organisations or to secure
proper control of the border. The applicant Government maintained that
such allegations of action or inaction on their part were wholly
irrelevant to the present application. In the applicant Government's
submission they had behaved with utmost responsibility in matters of
security and in regard to the border. They had proposed that a United
Nations observer group should operate in the border area on both sides
to assist in preventing breaches of the peace but the respondent
Government had not agreed to this proposal.

The applicant Government also emphasised that they had taken positive
steps to deal with the security situation. The criminal law relating
to firearms and explosives in Ireland was similar to the law in the
United Kingdom. In 1971, legislation had been passed which made it
clear that to possess arms with the intention of endangering life
outside the jurisdiction of the applicant Government was a very serious
offence. All firearms, except sporting shotguns, had been called in and
there was rigorous control of explosive substances. In addition certain
chemicals which could be used to make explosives had been banned.
Moreover, the police force had been steadily increased and a high
proportion of the force were stationed in the border area where they
were assisted in policing the border by a substantial portion of the
Irish Army. In view of the fact that certain persons, who appeared on
the evidence to be guilty of offences against the legislation relating
to illegal organisations, firearms, explosive substances or certain
other matters, had been acquitted in the courts, a special court was
set up in May 1972 to deal with cases of this type. Many cases had been
dealt with by the court and there had been a high proportion of
convictions. Every individual who could be proved to belong to a
subversive organisation was brought to trial.

B.   General submissions
Both Parties made certain general submissions, which relate to more
than one Article of the Convention. These submissions were mainly under
Article 15 (right of derogation in public emergency) and Article 25 of
the Convention (question of exhaustion of domestic remedies).

1.   Submissions of the respondent Government

(a)  In their written and oral submissions the respondent Government
denied that they were in breach of their obligations as alleged by the
applicant Government; in particular they denied that they were in
breach of their obligations under Articles 1, 2, 3, 5, 6 or 14 (or
Articles cited in conjunction with 14) of the Convention.

(b)  Without prejudice to that submission the respondent Government
reiterated that there was in Northern Ireland, and had been at all
times relevant to this application, a public emergency threatening the
lifes of the nation. This emergency existed because of the activities
of the IRA in the pursuance of its aims to destroy the existence of
Northern Ireland as a part of the United Kingdom and to subvert the
structure of government in the Republic of Ireland. It had accordingly
been necessary for the respondent Government to undertake certain
measures to counter the activities of the IRA. The respondent
Government referred to the right accorded to States by Article 15 (1)
of the Convention to derogate from their obligations in time of public
emergency treatening the life of the nation. The measures taken were
strictly required by the exigencies of the situation and were not
inconsistent with the respondent Government's obligations under
international law and, furthermore, they were taken within the margin
of appreciation accorded to States both as to the existence of an
emergency and as to the measures required by it. Accordingly, insofar
as the measures had effect in the field of Articles 5, 6 or 14 or any
other Article of the Convention taken in conjunction with Article 14,
these did not constitute a contravention of the Convention. The
respondent Government referred to their communication to the Secretary
General of the Council of Europe, pursuant to Article 15 (3), of
certain measures taken in connection with the exercise of the right of
derogation.

(c)  The respondent Government stated that they were mindful of
decisions of the Commission that certain issues were, as such or in
certain conditions, not issues for determination at the admissibility
stage of applications made under Article 24. Reference was made to the
Commission's second decision on the admissibility of the First Greek
Case (Yearbook, Vol. 11, pp. 730, 768) where it was held that
allegations could not be rejected on the ground that no prima facie
proof had been produced. The respondent Government argued that this
decision did not apply to allegations which were not supported by any
assertion of law or fact. Moreover, allegations in an application under
Article 24 must at least contain a sufficient statement of fact or
argument as was required by Rule 41 of the Commission's Rules of
Procedure, to support them. In the absence of such supporting material
an allegation should be rejected, or the Commission should decline to
examine it further.

(d)  The respondent Government also referred to the Commission's
further findings in the First Greek Case (ibidem p. 726) that the
provisions of Article 26 of the Convention concerning the exhaustion
of domestic remedies did not apply to applications whose object was to
determine the compatibility with the Convention of legislative measures
and administrative practices. The respondent Government submitted in
this connection that this decision did not, at the admissibility stage,
exclude from consideration bare allegations of an administrative
practice, i.e. an allegation of a practice unsupported by any assertion
of law or fact from which such practice was to be deduced. Moreover,
the onus of establishing the existence of an administrative practice
was on the applicant Government. Such onus was not satisfied without
supporting evidence of fact or submissions of law. In the absence of
such supporting material the issue of exhaustion of domestic remedies
was not to be excluded at this stage. In support of this submission
reference was again made to the second decision on the admissibility
of the First Greek Case (ibidem p. 770).

2.   Submissions of the applicant Government

(a)  The main arguments submitted by the applicant Government in their
written and oral submissions with regard to the relevance of Article
15 of the Convention at the stage of admissibility can be briefly
summarised as follows:

-    the question whether an application under Article 24 of the
Convention was well-founded or not was solely a question relating to
the merits and, therefore, the effects of derogations made by the
respondent Government under Article 15 could not be considered by the
Commission at the stage of admissibility;

-    accordingly, no questions relating to the extent of measures
taken in pursuance of a derogation or as to the validity of such a
derogation could arise at that stage;

-    were the Commission nonetheless to consider the question of
derogation at that stage, the applicant Government would not contest
that there existed in Northern Ireland at all material times a public
emergency within the meaning of Article 15 (1) of the Convention but
they maintained that the measures concerned exceeded what was strictly
required by the exigencies of the situation.

The applicant Government developed these arguments in connection with
their submissions under Articles 5 and 6 of the Convention and their
case is therefore set out in greater detail below in the context of the
other submissions with regard to those Articles.

(b)  In their written and oral submissions the applicant Government
maintained generally that the provisions of Article 26 of the
Convention concerning the exhaustion of domestic remedies did not apply
to any part of their application whose object and purpose was to seek
a determination of the compatibility of certain legislative measures
and administrative practices with the respondent Government's
obligations under the Convention. Moreover, the applicant Government
emphasised that, while the application was by necessity supported in
part by evidence of violations of the rights of individual persons, it
was neither in form nor in reality concerned with compensation for, or
reparation of, wrongs committed in respect of individual persons. There
was no domestic remedy available in respect of such a claim by a High
Contracting Party and no question of exhausting any domestic remedies
could arise.

In support of this submission the applicant Government referred, in the
first place, to the Commission's decisions on the admissibility in the
First Greek Case with regard to the interpretation of Articles 26 and
27. The applicant Government considered that no distinction could be
made between their claim in the present case and the claim of the
applicant Governments in the Greek case.

In the applicant Government's further submission a consideration de
novo of the relevant provisions of the Convention would for the
following reasons inevitably lead to the same result:

-    Article 27 (2), of the Convention by its express terms applied
only to a petition under Article 25;

-    the only issue which could arise at the admissibility stage of
an application under Article 24 of the Convention was the issue under
Article 26;

-    the rule concerning domestic remedies in Article 26 was expressly
qualified by the reference to the generally recognised rules of
international law;

-    such rules provided that, where a claim was made bona fide on the
ground of a breach of treaty only, no domestic remedy was available and
the domestic remedies' rules did not apply;

-    in the present application the claim was only concerned with
ensuring the observance by the respondent Government of the obligations
undertaken by them in the Convention and the applicant Government
sought to obtain a determination of the compatibility with those
obligations of certain legislative measures and administrative
practices. The claim therefore constituted a breach of treaty claim.

In the applicant Government's view this submission constituted a
complete answer to the respondent Government's objections on
admissibility and would, if accepted by the Commission, lead to the
whole application being declared admissible.

In the course of the hearing before the Commission the representatives
of the applicant Government made detailed submissions in support of
their argument that a claim of the present nature, being a breach of
treaty claim, was not, according to the generally recognised rules of
international law, subject to the rule requiring the exhaustion of
domestic remedies. In particular, it was submitted that these generally
recognised rules made a distinction between a breach of treaty claim
and claims of diplomatic protection. The domestic remedies' rule only
applied to the latter category of cases. In this connection reference
was made to Meron, "The incidence of the rule of exhaustion of domestic
remedies" (British Yearbook of International Law 35 (1959), pp. 83,
86). The same distinction should be made with regard to claims brought
under Article 24 of the Convention. As an example of the equivalent to
a diplomatic protection claim under the Convention, the applicant
Government referred to the Commission's decision on the admissibility
of application No. 788/60 (Austria v. Italy).

The applicant Government also submitted that, having regard to the
object of the present application, namely to determine the
compatibility with the Convention of certain administrative practices,
it would be inconsistent with the Convention and the principles
underlying it to require substantial proof of the existence of such
practices at the admissibility stage. In such an application the
applicant Government would have to prove, first the existence of an
administrative practice and, secondly, the inconsistency with the
Convention of that practice. There could be no grounds for seeking
substantial proof of the practice, which was an integral part of the
case, at the admissibility stage, while leaving to the merits stage the
whole question of the incompatibility of the practice. If the
Commission rejected any part of the application on the ground that
substantial evidence of a practice had not been given, this would in
effect mean that the Commission was rejecting an application under
Article 24 for want of prima facie proof and this the Commission had
consistently refused to do.

C.   As to the allegations relating to particular Articles of the
Convention

1.   Under Article 1

(a)  Submissions of the respondent Government

The respondent Government submitted in their written observations that
Article 1 of the Convention did not constitute a head of liability
otherwise than in respect of a right or freedom defined in Section I
of the Convention. Accordingly, no question on the merits could arise
in respect of a separate violation of Article 1. Since the applicant
Government's allegations under that Article did not give rise to any
issue which fell to be considered separately at any stage of the
proceedings before the Commission, this allegation did not come within
the terms of Article 24 of the Convention. The Commission should
therefore reject or, in the alternative decline to give further
consideration to, allegations of a contravention of Article 1 which
constituted in any sense substantive allegations separate from those
of an allegation of a right or freedom defined in Section I of the
Convention.

At the hearing the representatives of the respondent Government
developed their arguments in this respect. They submitted that the
interpretation of Article 1 suggested by the applicant Government,
namely that one act could constitute both a breach of one of the
Articles in Section I and at the same time a separate and additional
breach of Article 1 of the Convention, was wrong and contrary to the
Commission's case-law. Article 1 provided that the "High Contracting
Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention". Article 1 was
not in itself part of this Section which comprised Articles 2 - 18.
Section I was essentially a series of statements which are made binding
on the Parties by Article 1, whereas Article 1, on the other hand, was
meaningless if read in isolation. There could be no breach of Article
1 unless there was a denial of the rights stated in Section I but a
breach of one of those rights was a breach of the Convention solely by
virtue of Article 1. Strictly speaking, a breach of one of these
Articles was a breach of that Article read with Article 1. However, an
act such as, for example, depriving a man of his liberty in a manner
inconsistent with Article 5 constituted only a single breach of the
Convention, and that breach had a single and not a dual character.

It had been suggested in the past, and this was apparently repeated in
the present proceedings, that such an act was both a breach of the
provisions of the Convention and also of a treaty obligation accepted
by the Parties to the Convention inter se. This interpretation had,
however, previously been categorically rejected by the Commission (see
decisions on the admissibility of application No. 788/60, Austria v.
Italy, Yearbook, Vol. 4, p. 116 at pp. 138 and 140 and of the First
Greek Case, Yearbook, Vol. 11, p. 730 at p. 762).

The object of the applicant Government's interpretation of Article 1
was an attempt to evade the requirements of Article 26. Moreover, the
applicant Government was seeking to bring before the Commission matters
which did not amount to a breach of any provisions of Section I,
although the Commission had repeatedly decided that such matters could
not be the subject of a complaint. Further, the applicant Government
were asking the Commission to hold not that the respondent Government
had committed wrongs against specific individuals but that they had
been in breach of alleged "treaty obligations" in respect of certain
individuals. However, the Commission had repeatedly decided that it was
not the purpose of the Convention to create reciprocal rights between
the High Contracting Parties themselves. The applicant Government were
trying to extend the operation of the Convention to matters which lay
quite outside its ambit.

It was true that this was not stated in the Convention to be a ground
of inadmissibility. However, it would be objectionable for the
Commission to spend time investigating complaints of matters to which
the Convention did not apply. The Commission had previously recognised
that a complaint might be declared inadmissible on this ground. In
support of this proposition the respondent Government referred to the
Commission's decision on the admissibility of application No. 214/56
(de Becker v. Belgium, Yearbook, Vol. 2, p. 214, at p. 230) concerning
inadmissibility ratione temporis.

(b)  Submissions of the applicant Government

In their written observations the applicant Government maintained that
there was a breach of Article 1 of the Convention by a High Contracting
Party through that Party's failure to secure the rights and freedoms
defined in Section I of the Convention where:

- the laws in force did not guarantee those rights and freedoms; or
- the laws in force permitted the infringement of those rights or
  freedoms; or
- the Government failed to take effective remedial action to prevent
  repeated violations of such rights and freedoms by those persons for
  whose acts they were responsible.

In the applicant Government's submission, the respondent Government
were in breach of Article 1 of the Convention by the mere existence
(even if non-implemented) of the Special Powers Act and the Rules,
Regulations and Orders under it as part of the permanent legislation.
The implementation and exercise of these powers were also in
themselves:

- a further breach of Article 1 as being a positive failure by the
respondent Government to secure to persons within their jurisdiction
the rights and freedoms defined in Section I of the Convention; and

- a breach of Articles 2, 3, 5, 6 and 14, each taken in conjunction
with Article 1, as being breaches of the rights and freedoms set forth
in Section I of the Convention.

Accordingly, where a positive breach of any Article contained in
Section I occurred, there occurred in addition and by necessity a
breach of Article 1 of the Convention. Where no positive breach of any
other Article had occurred, there might still be a breach of Article
1 where legislation was enacted which could potentially deprive a
person of his rights and freedoms of Section I of the Convention.

The respondent Government had failed to take any effective remedial
action to prevent violations. Ordinary claims for compensation by way
of civil action were inadequate in this respect and the damage was not
reparable by monetary compensation. By failing to punish or discipline
those who assaulted detainees the respondent Government had failed in
their duty under Article 1. This breach was separate from the breach
constituted by the assault itself. It was not a matter for which any
domestic remedy existed so that the rule requiring the exhaustion of
domestic remedies could have no application.

The applicant Government further submitted that the repeated breaches
of rights and freedoms under the Convention with official tolerance
constituted a breach of treaty obligations additional to the rights and
freedoms of the individual victims. It created a situation where the
community generally was no longer secure in the enjoyment of the rights
and freedoms. A deliberate course of conduct in breach of the
Convention was properly categorised as a breach of a treaty obligation
rather than a wrong against a specific individual so the domestic
remedies' rule had no application.

At the hearing the representatives of the applicant Government made
further submissions in this respect. They argued that the issue as to
whether Article 1 was a separate head of obligation was not an
admissibility issue, and the respondent Government's contention that
it should be decided at the stage of admissibility in this application
was an attempt to apply to an application under Article 24 the
provisions of Article 27 (2), of the Convention which were expressly
confined to applications made under Article 25 of the Convention. In
the applicant Government's opinion it was inconceivable that the
Commission would at a preliminary stage decide such a fundamental
question as the interpretation and application of Article 1.

For the event that this issue was nevertheless to be considered at the
admissibility stage the applicant Government summarised, at one point,
their submissions in this respect as follows:

-    The Convention was a treaty, being an international agreement
between the High Contracting Parties in which reciprocal agreement had
been reached. Reference was made to the Preamble and, in particular,
its ending with the words "have agreed as follows";

-    The purpose of the treaty was to maintain and realise the
fundamental human rights and fundamental freedoms declared by the
Universal Declaration of Human Rights proclaimed by the United Nations
on 10 December 1948 as stated in the Preamble;

-    The method of carrying out this purpose was that each High
Contracting Party agreed with each other such Party to secure to
everyone within their jurisdiction those rights and fundamental
freedoms;

-    This differed from the nature and effect of the Universal
Declaration which consisted of a joint declaration by the Consenting
Parties through the General Assembly (of which they were members) of
the intention of each to promote respect for and recognition of these
rights. In the Preamble of the Declaration the effective word was
"proclaim" whereas in the Convention the effective words were "have
agreed".

- It should be noted that Articles 2-18 of the Convention were similar
in content and form to Articles 1-30 of the Universal Declaration;

- The difference between the two documents was therefore primarily to
be found in Article 1 of the Convention which expressed a complete
obligation to secure the rights and freedoms subsequently defined.

- This was a concrete obligation as was emphasised by the wording of
Article 19 of the Convention:  "To ensure the observance of the
engagements undertaken by the High Contracting Parties";

- The Convention being by its express terms an agreement between the
High Contracting Parties, the engagements were obligations owed by
every such Party to each of the others. If such an obligation existed,
there should also be a possibility of it being broken. Therefore a
breach of Article 1 whose provisions created the specific obligation
to secure the rights and freedoms subsequently defined must be possible
and this was consistent with the jurisprudence of the Commission and
the Court;

- It was a principle of international law as well as of domestic law
that in the interpretation of any written agreement effect must be
given to every clause and every provision. To construe the Convention
in such a way that breaches could only occur of individual Articles
which defined specific rights and freedoms, e.g. Articles 2-14, would
be to give no effect at all to Article 1 of the Convention would have
that meaning if the words "have agreed as follows" were immediately
followed in the text by Article 2 and the succeeding Articles.

- If Article 1 did create an obligation capable of being breached then
it necessarily followed that, at the reference of a High Contracting
Party, such a breach was justiciable only by a court of international
law and specifically by the organs set up under Article 19 of the
Convention and could not be the subject of proceedings in any municipal
or domestic court.

In the course of the hearing the representatives of the applicant
Government developed in greater detail and with reference to the
Commission's case-law their submission that Article 1 constituted a
separate head of obligation. The applicant Government again emphasised
that this obligation was a positive duty to secure the rights and
freedoms concerned.

The applicant Government also made further arguments in support of the
contention that a legislative measure in itself could be a breach of
the Convention even without having been implemented. In this context
the applicant Government submitted as an example, that a High
Contracting Party which passed a statute providing for a degrading from
punishment, for instance the public whipping of adults, in clear
violation of Article 3, would be in breach of Article 1 even before
anybody had been punished. Before the law became operative in any
particular case, there could, on the other hand, be no violation of
Article 3 itself. To construe Article 1 of the Convention in such a way
generally that another High Contracting Party could not come to the
Commission until someone had been actually whipped could not
conceivably be in accordance with the declared intentions of the
Parties entering into the Convention.

2.   Under Article 2

(a)  Submissions of the respondent Government

In their written observations the respondent Government denied that the
incidents referred to by the applicant Government under this Article
(even on the facts adduced, which were not admitted) constituted a
breach of Article 2 of the Convention. Such incidents either fell
within the provisions of Article 2 (2) or did not constitute an
international deprivation of life within the meaning of Article 2 (1).
The main submissions on the admissibility of the allegation of a breach
of this Article were as follows:

- nothing in the relevant parts of this application constituted a basis
for the allegation that the loss of life of the individual concerned,
even if it had been caused by the security forces (and it was not
admitted that this was the case in all the incidents quoted),
constituted "predominantly an administrative practice ... endangering
the right to life" or a "series of operations endangering the right to
life";

-    consequently the provisions of Article 26 of the Convention were
required to be satisfied; and

-    these provisions had not been satisfied.

As regards the alleged administrative practice the respondent
Government submitted that administrative measures had always existed
to safeguard life in circumstances in which troops had to open fire.

In this connection, the respondent Government referred to the rules of
the common law and statutory provisions regarding the use of force in
the event of a civil disturbance. Under the law military forces, when
called upon to assist the civil authority in the maintenance of law and
order, were under the same obligation as the ordinary citizen, namely
to use only such force as was reasonably necessary to restore order.
Instructions on opening fire in circumstances where military forces
were so assisting the civil authorities were issued to every soldier
engaged in such duties. The instructions (known as the "Yellow Card")
were issued by the Director of Operations in Northern Ireland and were
subject to revision from time to time.

The respondent Government referred the Commission to the two revisions
of the Instructions in force at all times relevant to the application.
The Yellow Card was intended to give guidance to the soldiers on the
powers available to them under the law. In particular, the card gave
guidance to soldiers on the circumstances in which they might open fire
and in the manner in which they might fire if it was necessary to do
so. According to these instructions a soldier should on no occasion use
more force than the minimum necessary to enable him to carry out his
duties and should not open fire if the situation could be otherwise
handled; it was required that a warning should be given before opening
fire except in certain exceptional circumstances.

The respondent Government submitted that these instructions
demonstrated the clear intention of the authorities that soldiers
should only open fire as a last resort and that, if they did so, there
was to be no more shooting than the immediate circumstances demanded.
The instructions also demonstrated clearly that the guidance laid down
as to the circumstances when soldiers may open fire whilst quelling a
civil disturbance were consistent with the provisions of Article 2.
Moreover, the instructions should be considered against the background
of the common law and statutory provisions concerning the use of force.
In this connection the respondent Government also referred to the
findings in the Report of the Tribunal of Inquiry conducted by Lord
Widgery, the Lord Chief Justice of England, into the events in
Londonderry on 30 January 1972. Those findings were that "the standing
orders contained in the Yellow Card are satisfactory. Any further
restrictions on opening fire would inhibit the soldiers from taking
proper steps for his own safety and that of his colleagues and would
unduly hamper the engagement of gunmen."

The respondent Government then set out the relevant provisions of
United Kingdom law regarding the use of troops in a civil emergency and
any deaths resulting therefrom. An act committed by a person resulting
in the death of another person might give rise both to liability under
criminal law and to a civil action for damages. If the deaths, alleged
to have been caused in violation of Article 2, were caused in
circumstances which under the relevant provisions of United Kingdom law
were unlawful, it would have been the duty of the law enforcement
authorities to consider whether criminal proceedings should be taken.
Indeed, such action had been taken against service personnel (in
certain cases other than the cases of death referred to in the
application) in respect of incidents in which they used firearms.

If death was caused by a negligent act or by an intentional and
unjustified act, it was a wrong against the deceased for which his
personal representatives could, by virtue of the Law Reform
(Miscellaneous Provisions) Act (Northern Ireland) 1937, bring an action
in tort (i.e. civil wrong) against the person whose act caused the
death, or against the latter's employer if the act had been carried out
in the course of that person's employment. If the deceased would have
had an action against any person in respect of the act causing his
death (if death had not ensued), any dependants of the deceased had a
right of action for any pecuniary loss which they had suffered by
virtue of the Fatal Accidents Acts (Northern Ireland) 1946-1959.

Moreover, the Crown vas vicariously liable in respect of tortious acts
of its servants committed in the course of their duties by virtue of
the Crown Proceedings Act 1947. If a person suffered injury as a result
of a wrongful act of shooting by a Crown servant (including a soldier),
he (or his personal representative or, if the Fatal Accidents Acts were
applicable, his dependants) had a right of action either against the
soldier allegedly responsible, or against the Crown. A right of action
would lie against the Crown even if it was not possible to identify the
soldier concerned.

Finally, another remedy available to the dependants was to bring an
action in a County Court for the payment of compensation under the
Criminal Injuries to Persons (Compensation) Act (Northern Ireland)
1968, where the deceased's death was directly attributable to a
criminal offence (with certain exceptions) and where those dependants
could show that they suffered pecuniary loss as a result. Excessive use
of force would be an offence; and it was not necessary to identify the
wrong-doer, providing it appeared on the balance of probabilities that
the injury resulted from a criminal act; nor was it necessary for the
person responsible for the injury to have been prosecuted for a
criminal offence in respect of the death concerned.

It was apparent that domestic remedies within the meaning of Article
26 of the Convention had been and still were available, to the estate
or dependants of the deceased persons in respect of the deaths which
were the subject of the complaints under Article 2. These remedies had
not yet been exhausted although proceedings had been instituted in some
cases (cf. below p. 37).

The respondent Government referred to the applicant Government's
argument that the rights, if any, of dependants, or members of the
family, of individuals who were killed contrary to Article 2 were
irrelevant to the question of domestic remedies under Article 26. This
argument was, in the respondent Government's submission, tantamount to
saying that Article 26 had no application at all in relation to
allegations of a breach of Article 2. There was nothing in the
Convention to support such a suggestion. The remedies described above
constituted remedies according to the generally recognised rules of
international law. Contrary to what was stated in the original
application, monetary damages were recognised in international law as
an effective remedy in cases of death. As an illustration of the
recognition of damages as a remedy the respondent Government referred
to the Lusitania Case ((1923) 7 RIAA 32). Accordingly, the allegations
of the applicant Government under Article 2 should be rejected as
inadmissible under Article 27 (3) since domestic remedies had not been
exhausted as required by Article 26 of the Convention.

At the hearing the representatives of the respondent Government
developed their submissions in this respect; the allegation that the
22 deaths referred to in the application showed an administrative
practice of endangering life had to be seen in the right perspective.
At present there were about 20,000 troops stationed in Northern
Ireland. These troops had been involved in almost daily incidents. The
respondent Government stated that the 22 deaths concerned arose in
different ways and in greatly varying circumstances. The incidents
showed no distinctive pattern of conduct by the troops and had no
common factor save that in each case troops had opened fire which
resulted, or may have resulted, in deaths. In this connection the
respondent Government summarised briefly their view of the essential
facts relating to the nine deaths which occurred in 1971 and made the
following observations in this respect:

-    George Beattie was killed by one bullet in the course of a riot
in Londonderry on 8 July 1971 where troops had been heavily stoned by
rioters. During four days the soldiers had been attacked by petrol and
nail bombs and fired at. In reply to those attacks, the troops fired
three rounds, of which two were fired at Beattie.

-    Father Hugh Mullan was shot in Belfast on 9 August 1971 during
a heavy exchange of cross fire between British soldiers and gunmen and
there was no evidence that he had been killed by a shot fired by the
Army;

-    Francis McGuiness - Whilst clearing a barricade in Belfast on 9
August 1971, the soldiers came under attack from a crowd of youths
hurling stones, bricks and bottles. Rubber bullets were fired to
disperse the crowd but with little effect. McGuiness was shot after
five petrol bombs had been thrown at the troops;

-    Eamon McDevitt was killed by a single shot, which was the only
shot fired during a series of riots in the town of Strabane;

-    Seamus Cusack was shot during the course of a riot in Londonderry
on 7 July 1971 when a crowd of over 100 men and boys had attacked the
troops with stones and other missiles. Cusack was not taken to hospital
in Londonderry but brought across the border to the Republic of Ireland
with a wound in his thigh and died there shortly after his arrival. The
Coroner subsequently found that Cusack would probably have survived if
he had received medical attention sooner.

- Villiam McKavanagh - on 11 August 1971, following prolonged riots in
Belfast, troops came across four youths acting suspiciously. They were
challenged to halt but failed to stop whereupon one of them,
McKavanagh, was shot;

- Robert Anderson, James McLaughlin and Sean Ruddy were shot in Newry
after having attacked two men engaged in depositing money in a night
safe of a bank. Soldiers on guard believed that the deceased were
attacking the bank by a bomb and twice called on them to halt but they
did not obey and were then fired upon.

As regards the 13 deaths in Londonderry, the respondent Government
referred to the Report of Lord Widgery. In view of the security
situation in Londonderry, the security forces decided to block a
protest march organised in the city by the Northern Ireland Civil
Rights Association on 30 January 1972 despite the prohibition by law
of parades and processions in Northern Ireland. A crowd of rioters
attacked the Army which was stationed behind three barricades and,
during the Army's attempts to arrest the rioters, the firing took
place. At the time it was suggested that the soldiers had blatantly
disregarded the instructions in the Yellow Card by firing
indiscriminately when the only threat to their safety came from a small
group of stone throwers. After his extensive inquiry Lord Widgery
concluded that the soldiers did, while trying to contain the
disturbance, come under fire from unknown snipers who, endangering the
lives of the soldiers, inflamed a situation
which might otherwise have passed without bloodshed. Lord Widgery found
(at paragraph 54 of the Report) that the first firing was directed
against the soldiers. He also found that there was no general breakdown
of discipline among the soldiers. In the respondent Government's
opinion the Report gave a picture of soldiers conscientiously doing
their best under very difficult circumstances and in many cases under
fire. The one or two cases where soldiers were found to have fired
without justification were exceptional and it would, in the
circumstances, have been remarkable if there had not been one or two
such incidents. However, no administrative practice contrary to Article
2 of the Convention could possibly be inferred from the two examples
where soldiers may conceivably have over-reacted.

In the respondent Government's submission the applicant Government
would, if they were to succeed in establishing an administrative
practice under Article 2, have to provide substantial evidence of a
pattern of killing or of acts endangering life. On the evidence before
the Commission, they had not even begun to discharge their burden.
Neither had the applicant Government established official tolerance of
acts contrary to Article 2. Whenever a death or serious injury
occurred, investigation was always carried out by the Army in addition
to the normal civil inquest. If evidence was disclosed of a criminal
offence the papers were passed to the civil authorities for criminal
proceedings. However, such proceedings would only be introduced where
there was sufficient evidence to merit the commencement of proceedings.
The question of criminal or disciplinary proceedings against the
soldiers involved in the Widgery Inquiry had been carefully considered
by the relevant authorities but these authorities were not satisfied
that such proceedings were justified. Moreover, there had been no
indifference shown on the part of the authorities by any refusal of
adequate investigation. In addition to the normal inquests held in case
of sudden death and inquiries where the security forces are involved,
the Home Secretary had set up the Widgery Inquiry. The urgency with
which the Inquiry was set up and the merits of this careful and
exhaustive inquiry showed that there was no attitude of indifference
on the part of the United Kingdom authorities. Neither was there any
official tolerance by denying a fair hearing in judicial proceedings.

The respondent Government stated at the hearing that, so far, claims
under the Criminal Injuries to Persons (Compensation) Act 1968 had been
commenced in respect of five of the first group of nine deaths. In
addition, an action had been commenced in the High Court in respect of
the death or Eamon McDevitt for the loss of expectation of life on
behalf of the estate and for financial loss on behalf of the
dependants. As regards the 13 deaths in Londonderry, claims under the
1968 Act had been commenced in respect of all cases and actions had
been brought in the High Court in respect of seven deaths. These
remedies had not yet been exhausted.

(b)  Submissions of the applicant Government

In their written observations the applicant Government submitted that
the facts relating to the incidents concerned showed repeated and
successive breaches of the United Kingdom law, disobedience of the
instructions in the Yellow Card and breaches of Article 2 of the
Convention. The applicant Government pointed out that the respondent
Government had not, at that stage, submitted any facts to substantiate
their contention that there had been no such breaches. As regards the
Widgery Report, reference was made, by way of example, to the findings
of the Report that the firing of some soldiers had "bordered on the
reckless" and that "shots were fired without justification" (paragraph
85 and summary 8 of the Report). Moreover, Lord Widgery had found that
the firing of 12 rounds by one soldier was "unjustifiably dangerous for
people round about" (paragraph 101). Reference was also made to a
newspaper article in which the Report was criticised on a number of
points.

The applicant Government claimed that, in any event, no consideration
of the Widgery Report should be made at the stage of admissibility. At
that stage it had to be assumed that every allegation of fact and
contention of law by the applicant Government was meritorious. The
respondent Government's argument that the incidents referred to did not
constitute deprivation of life within the meaning of Article 2 (1) or,
alternatively, fell within the provisions of Article 2 (2) should also
only be considered on the merits.

It was further submitted that, although the facts set out in the
application showed a series of repeated operations of practices by the
security forces in breach of domestic criminal law and the Yellow Card,
no member of the security forces had been prosecuted or disciplined in
respect of any act arising out of the incidents concerned. By failing
to enforce the criminal law, or otherwise to punish or discipline such
members of the security forces, the respondent Government had shown
official tolerance and acceptance of military operations and practices
in which citizens had been killed contrary to Article 2, and such
toleration constituted an administrative practice. There was no
domestic remedy for this continuing practice.

Moreover, the respondent Government's contention that an award of
damages to dependants of a deceased person was a sufficient remedy was
in total disregard of the rights of such persons who had been killed
as a result of a criminal act on the part of the security forces. In
particular, it was a disregard for the rights of the community as a
whole to have the right to life protected by the enforcement of the law
designed to protect their rights under Article 2 of the Convention.
Once the respondent Government had failed to enforce such laws, no
remedy was available to the community or to persons in Northern Ireland
to have them enforced.

Monetary damages were not a sufficient remedy for the purposes of
Article 26 of the Convention since, as far as such a remedy was
available in Northern Ireland, such damages could only be obtained in
respect of actual financial loss sustained by the dependants by reason
of the loss of life, and such a remedy according to the generally
recognised rules of international law, it was only recognised as such
on the basis of the civil liability of a wrongdoer vis-à-vis the
dependants of the deceased concerned. Monetary damages were not an
adequate remedy in the context of a Convention designed to protect
human rights, including the right to life, even if they were such in
the case of claims of a different nature under international law. In
the applicant Government's submission the Lusitania Case ((1923) 7 RIAA
32), to which the respondent Government referred did not consider or
decide whether damages were or were not a sufficient remedy in cases
where death had been caused by wrongful acts of a Government or its
agents, having regard to the particular treaty obligations concerned
in that case which provided for the determination of claims by a Mixed
Claims Commission.

The applicant Government further maintained that no domestic remedy in
Northern Ireland gave a right to the relatives or dependants of
deceased persons to claim damages for mental distress and suffering or
"préjudice moral" arising from an unlawful killing. Insofar as damages
were a remedy (which was not admitted), the damages available under the
Acts referred to by the respondent Government were neither effective
nor adequate. In support of this submission reference was made, inter
alia, to the decision in the Lusitania Case as illustrative of the
recognition of the right to damages for mental distress as an essential
ingredient in awards of damages in death cases. The applicant
Government also argued that any monetary damages payable in the
circumstances alleged must allow for damages of any exemplary or
punitive character in order to be adequate or effective. The domestic
law of the respondent Government did not permit relatives or dependants
of a deceased person to recover such damages in any circumstances.

At the hearing, the representatives of the applicant Government
submitted that a consideration of each of the nine killings in the
first group showed that unprotected persons were killed by members of
security forces in contravention of the domestic criminal law, the
Yellow Card instructions, and Article 2 of the Convention. As regards
the thirteen deaths in Londonderry on 30 January 1972, the conclusions
of the Widgery Report were not accepted and were sometimes in total
conflict with the material presented by the applicant Government. This
material suggested that fire was first opened by soldiers before they
were fired on, and that this firing, which caused the killing of a
number of identifiable victims, was clearly in breach of Article 2.
However, even within the Widgery Report there were instances of firing
which were "reckless" or "bordering on the reckless or dangerous". In
the view of the applicant Government it should not be necessary,
particularly with regard to Article 2, to show a great number of cases
in order to establish an administrative practice. Moreover, it should
be noted that the respondent Government had again confirmed at the
hearing that no criminal or disciplinary action would be taken against
the soldiers concerned.

The applicant Government claimed that the summary of facts given by the
respondent Government, concerning the first group of deaths, was too
short to be of value and referred the Commission to the evidence filed
with the application. As regards the death of Eamon McDevitt, it
appeared that he was a deaf mute and mentally below normal. He had at
one time been holding a rubber bullet in his hand but he was shot after
he had thrown it away. He was wearing a red shirt and it seemed that
he had been picked out by the soldiers as a person to be shot. It was
plain that he had been a wholly innocent person and, in the
circumstances, it seemed impossible that no disciplinary action had
been taken in relation to this killing. The evidence presented by the
applicant Government indicated that Father Mullan was shot by British
troops while administering the last rites to a wounded person and while
he was carrying a make-shift truce flag. As regards Francis McGuiness,
the evidence emphasised that, at the time he was shot by the troops,
he was not armed or carrying anything that might be mistaken for a
weapon. Robert Anderson, James McLaughlin and Sean Ruddy were equally
unarmed. George Beattie and Seamus Cusack were also shot in situations
involving only stone throwing.

As regards the question of domestic remedies, the applicant Government
emphasised that the complaint under Article 2 of the Convention was not
made on behalf of any person although, in some respects, it was
supported by individual cases. The applicant Government was not seeking
reparation for the dependants of a deceased person but a determination
of the compatibility with the Convention of certain practices. The
situation was therefore different from an application made by an
individual being a dependant of a deceased person in relation to a
breach of Article 2. In that situation there would be a domestic remedy
and the Commission would have to consider its adequacy.

In the applicant Government's submission, the admitted absence in the
law of Northern Ireland of damages for grief or "préjudice moral"
rendered the remedies under the Fatal Injuries Acts and Criminal
Injuries to Persons (Compensation) Act insufficient. For example, if
a young person were killed in breach of Article 2, and if, his death
being immediate, there was no significant or real expense connected
with his recovery and if he left no financial dependant, nobody would
be entitled to compensation in Northern Ireland for that death. In this
situation it was impossible to say that an effective remedy within the
meaning of Article 26 of the Convention was available and should have
been exhausted.

3.   Under Article 3

(a)  Submissions of the respondent Government

In their written observations the respondent Government first stated
that the treatment alleged in the appendices to the application to be
contrary to Article 3 of the Convention should be regarded as falling
into three categories:

(a)  treatment which in paragraphs 59 - 67 of the Compton Report was
associated with interrogation, namely hooding, noise, wall-standing,
deprivation of sleep and limited diet;

(b)  other incidents referred to in the Report, namely the "obstacle
course" at Girdwood Park and "special exercises" at Ballykinlar;

(c)  other individual allegations of ill-treatment or injury not
referred to under a) and b) above.

The main submissions on the admissibility of the allegations of a
breach of Article 3 of the Convention were summarised as follows:

-    having regard to the discontinuance of the treatment described
in category a), it was appropriate that the Commission should decline
to proceed further in respect of that treatment; and, without prejudice
to that submission;

-    no treatment or incident of a kind described in the Compton
Report and referred to in category a) or b) was capable of constituting
inhuman or degrading treatment or punishment within the meaning of
Article 3 of the Convention; nor, in the circumstances, did it
constitute such treatment contrary to Article 3;

and, without prejudice to that submission or in any way pronouncing on
the merits of any allegation of treatment as described in any of the
categories;

-    any treatment of the nature alleged, if capable of constituting
a breach of Article 3, would, in the present context, be a wrong in
domestic law for which remedies existed in the law of Northern Ireland.

The respondent Government then developed these submissions. First, as
regards category a) the respondent Government referred to the statement
made by the Prime Minister of the United Kingdom in the House of
Commons on 2 March 1972 concerning the Report of a Committee of Privy
Councellors of which Lord Parker of Waddington was Chairman (the
"Parker Report") (1). That Committee investigated all the five
techniques used as an aid to interrogation described under a). The
Prime Minister then stated that:  "The Government, having reviewed the
matter with great care and with particular reference to future
operations, have decided that the techniques which the Committee
examined will not be used in future as an aid to interrogation". The
Prime Minister added that "... if any Government did come to the
decision, after the most careful thought, that it was necessary to use
some or all of these techniques, it would be necessary to come to the
House first before doing so ...".
------------------------------
(1)  "Report of the Committee of Privy Counsellors appointed to
consider authorised procedures for the interrogation of persons
suspected of terrorism", (Cmnd. 4901).
------------------------------
In this connection the respondent Government first recalled that the
stated object of the application was not to obtain compensation for the
alleged victims of the practices complained of but to achieve, through
the procedures laid down in the Convention, the abandonment of these
practices.

The respondent Government then submitted that, insofar as the
application complained of the treatment under a), and irrespective of
whether or not that treatment gave rise to an issue of Article 3 (which
was not admitted), the Prime Minister's announcement that such
techniques would not be used in the future removed the ground of this
complaint. In the respondent Government's submission it was not the
function of the Commission to determine, as a "judicial tribunal called
upon to decide a legal controversy between the Parties" the
compatibility with the Convention of measures which had been abandoned.
In the present circumstances the function of the Commission was
achieved by the measures taken. In support of this argument reference
was made to the provisions of Articles 19, 28, 30 and 31 of the
Convention and to the Report of the Commission in the First Cyprus Case
(No. 176/56, Vol I, pp. 106-114, not published). In that case the
Commission decided not to express an opinion on the compatibility of
certain legislative and administrative measures which were the subject
of the application and which had been revoked in the course of the
proceedings, even though no settlement had been reached on other
aspects of the case. The Commission considered that, while the
Convention gave no explicit guidance on this point in circumstances
where the revocation took place during the proceedings, the question
must be decided in the light of the general functions attributed to the
Commission by the Convention.
In the respondent Government's view there was, in principle, no
distinction between the situation where, as in the Cyprus case, the
administrative and legislative practices in question were revoked in
the course of the proceedings before the Commission and the present
situation where the measures in question had been abandoned before the
Commission had pronounced on the admissibility of the application. If
it would not be appropriate for the Commission to pronounce on the
compatibility of such measures with the Convention, where it had
already begun an examination on the merits of the complaint, there were
even more compelling reasons why it should decline to proceed to an
examination of the merits of a complaint relating to such measures. It
remained, of course, open to any person who was allegedly a victim of
such measures to pursue any remedy open to him under United Kingdom
law.

As regards the question of domestic remedies, the respondent Government
submitted that a person who claimed that he had been ill-treated whilst
in custody might, under the common law, bring an action in tort for
damages which, as a general rule, would be an action for assault (this
expression being used here to include battery).

In certain circumstances an action for negligence might be available
in a case where an action for assault would not lie. The Crown was
vicariously liable for torts of members of the armed forces even if it
was not known which individual service-man was responsible for the
alleged wrong. If the alleged treatment was caused by a police officer
(i.e. in Northern Ireland a member of the Royal Ulster Constabulary,
hereinafter referred to as the RUC) the Chief Constable of the RUC
could be sued under Section 14 of the Police Act (Northern Ireland)
1970, which provided that proceedings might be brought against him in
respect of torts committed by members of the police force under his
direction and control in the exercise or purported exercise of their
function.

Assault might also constitute a criminal offence, for which an alleged
wrongdoer might be prosecuted or, as mentioned under Article 2 of the
Convention above a person who sustained an injury, which was directly
attributable to a criminal offence, could apply for compensation under
the Criminal Injury to Persons (Compensation) Act (Northern Ireland)
1968.

Furthermore, the Chief Constable of the RUC was required, by Sec. 13
of the Police Act, forthwith to record the complaint of a member of the
public against a member of the police force and to cause it to be
investigated. In certain cases such investigation was to be carried out
by a barrister or solicitor. Some 19 persons referred to in the
application had made formal complaints under this section.

In the respondent Government's submission these remedies constituted
remedies according to the generally recognised rules of international
law. Monetary damages were a sufficient and adequate remedy in domestic
law of both the applicant and the respondent Governments; in cases of
assault or personal injury monetary damages were recognised as
effective damages in international law. Contrary to what was alleged
in the application, domestic remedies were available to persons in
Northern Ireland who alleged acts capable of constituting a breach of
Article 3. Moreover, by April 1972, at least 22 persons named in the
application (at least 17 of them whilst detained or interned) had, in
regard to treatment allegedly received, instituted proceedings against
the Crown through various public authorities. The claims alleged, inter
alia, assault, battery and negligence. A list of these persons and the
substance of their claims was set out in annex to the respondent
Government's observations. In one case judgment had been recovered for
£300. In another case 16 persons who had taken proceedings against
various authorities received agreed damages of £250 or £150.

The respondent Government submitted that, insofar as any issue might
have fallen to be considered by the Commission in respect of treatment
alleged in the proceedings for which damages had been awarded, such
issues had been resolved and no further question remained for
determination in the present proceedings. Insofar as other allegations
were made of a violation of Article 3, it was submitted that, having
regard to the availability of remedies, there had been a failure to
exhaust domestic remedies by the persons specified in this part of the
application and, accordingly, the circumstances in which the Commission
might deal with this allegation as prescribed in Article 26 of the
Convention had not been satisfied. In this connection, reference was
made to the Commission's decision on admissibility in the Second Cyprus
Case (application No. 299/57, Yearbook, Vol. 2, p. 187) where the
Commission held inadmissible 20 complaints relating to certain
identified persons on the grounds that a remedy was available which had
not been exhausted. On the other hand, in respect of certain alleged
wrongdoers who had not been identified, no remedy had been available
against the Crown, except by petition which was not a remedy within the
meaning of Article 26 of the Convention. However, the situation in the
present case was different as, under the law in Northern Ireland, an
action always lay against the Crown. The respondent Government also
referred to the findings of the Commission in the Second Cyprus Case
as regards the bringing of actions by persons in custody (ibid. at p.
194).

The respondent Government then referred to the assertion made, in the
context of the alleged breach of Article 3, by the applicant Government
in the original application (paragraph D7, p. 14 above), that there had
been a denial of justice on the part of the respondent Government and
that the rule of exhaustion of domestic remedies therefore did not
apply. The respondent Government submitted that it was not clear
whether by the assertion it was simply claimed that there was no
effective remedy, or whether it had some wider context. As regards the
former alternative, the respondent Government repeated that remedies
were available and that proceedings had been taken in some cases. If
the assertion was made in a wider context, it was submitted that it was
misconceived; the concept of denial ofjustice in any other sense than
that in which this expression was used in international law had no
relevance and certainly not in relation to the admissibility of an
application under the Convention; nor had the applicant Government
alleged any matter which would confer jurisdiction on the Commission
or give rise to any claim to a locus standi for the applicant
Government in that regard.

In their observations the respondent Government then dealt with the
contention that the alleged breaches of Article 3 of the Convention
also constituted an administrative practice. The Government stated
that, to the extent that there might be evidence of a practice in
relation to the treatment described in category a) above, the treatment
had been discontinued. So far as concerned the allegations of treatment
described under b) and c), no allegation of fact had been cited in
support of the existence of a practice in relation to that treatment.
The respondent Government repeated their submission that a bare
allegation of a practice does not fall within decisions of the
Commission such as that in the First Greek Case, nor discharge the onus
on the applicant Government to establish such a practice, so as to
exclude from consideration at the admissibility stage the issue of
whether or not domestic remedies have been exhausted.
The respondent Government submitted that the allegations of a practice
relating to treatment described in categories a), b) and c) should
therefore be rejected under Articles 26 and 27 (3) of the Convention.
This submission was without prejudice to the earlier submissions that
the Commission should decline to proceed further with the examination
of those aspects of the application relating to treatment described in
category a) and that no treatment in categories a) and b) was capable
of constituting a breach of Article 3.

At the hearing the representatives of the respondent Government made
further arguments in support of their above submissions.

The respondent Government maintained that a distinction should be made
between the authorised aids to interrogation considered in the Compton
and Parker Reports (i.e. the above-mentioned category a)) and the other
forms of ill-treatment alleged.

As regards the previously authorised techniques, it was denied that
they had been used since 2 March 1972 when the Prime Minister announced
that they would be discontinued. Moreover, it was open to persons, who
complained of having been subjected to any of these techniques, to
bring civil proceedings against the Crown or the Chief Constable of the
RUC even if they could not identify an individual defendant. In fact,
out of the 12 persons mentioned in the Compton Report and in Sir Edmund
Compton's second report as having been subjected to these techniques,
six had already instituted civil proceedings. It was therefore clear
that, whether or not the techniques constituted a violation of Article
3, they had now ceased and domestic remedies were available. In this
situation it would be appropriate for the Commission to follow its
decision in the First Cyprus Case and decline to proceed further on
this aspect of the case. Moreover, whether or not the techniques had
constituted a practice, no such practice existed any longer. Even if
an administrative practice might obviate the need for an applicant to
exhaust domestic remedies, that situation no longer applied.
The respondent Government then referred to the Commission's finding in
the First Greek Case (Report II, 1, pp. 12 - 13) that there was a close
link between the notion of an administrative practice and the principle
of the exhaustion of domestic remedies and that, when there was a
practice of non-observance of certain Convention provisions, the
remedies would of necessity be side-stepped or rendered inadequate. In
the respondent Government's opinion the facts of the present case
disclosed no such position. As soon as allegations of fact were first
made, the Compton Committee was established to investigate them. When
the existence of certain facts, namely the five techniques, were
reported by that Committee, the Government set up the Parker Committee
to consider these techniques and, when this Committee submitted its
report, the techniques were abandoned. At all times it had been open
to persons to take proceedings arising from experiences of the
interrogation techniques. Such proceedings were in some cases commenced
before the Prime Minister's statement on 2 March.

As regards the allegations of other forms of ill-treatment the
respondent Government emphasised that these allegations were not
admitted. If such treatment took place, it was entirely unauthorised
and domestic remedies were available. The fact that the majority of the
persons complaining of ill-treatment were in custody under the Special
Powers Act did not affect their right under the common law to bring a
civil action for physical assault or ill-treatment. The allegations of
ill-treatment concerned fell into two groups, namely allegations of
force used against some of the detainees, such as kicking and beating,
and allegations of threats of force and violence. There was, however,
a domestic remedy available for all such allegations. Thus, a detainee
who was struck or threatened with violence could recover damages.. If
a physical assault had involved humiliation or degradation of the
injured party, this element could be taken into account by the court
in assessing the appropriate damages. In addition to the remedies for
a civil wrong, the Criminal Injuries to Persons (Compensation) Act
(Northern Ireland) 1968, provided a detainee who had suffered
maltreatment with a further effective remedy. Civil proceedings and a
claim for compensation under the 1968 Act could be pursued
simultaneously, but compensation awarded in such civil proceedings
would be taken into account when making the award under the Act.

The respondent Government further submitted that there was no evidence
to support the applicant Government's allegation that, for various
reasons, these remedies were ineffective or illusory.

In particular the facts showed that former detainees and internees had
not (as suggested by the applicant Government) been deterred from
bringing proceedings after their release by fear of re-arrest or
maltreatment. By 11 September 1972, 35 such former detainees or
internees named in the allegations of ill-treatment brought before the
Commission had commenced civil claims in the Northern Ireland courts;
16 of these were actions in the High Court, 14 were actions in the
county court and there were 5 claims under the 1968 Act. Moreover, 11
of these former detainees and internees had been granted legal aid to
enable them to bring their claims against the Crown. In this connection
the applicant Government had referred to the case of Moore v.
Shillington in which the judge had commented on the silence of the RUC
in face of allegations of maltreatment (1). However, the plaintiff was
in no way prejudiced in pursuing his domestic remedies but was awarded
the damages he asked for.

The applicant Government had been equally wrong in suggesting that
persons in custody might fact difficulties in bringing claims and that
this would render their right to institute proceedings illusory.
Detainees and internees might, and did, take legal advice if they
wished to intimate proceedings against the Crown and special
arrangements were made for solicitors to visit them and they might also
correspond with their solicitors. No permission was needed to institute
proceedings. In fact, while in custody, 48 persons had already
instituted proceedings against the Crown for maltreatment or wrongful
arrest.
--------------------------
(1)  Judgments given on 3 January and 18 February 1972 by Judge
Conaghan in the Armagh County Court.
--------------------------
Furthermore, it was clear from the mass of statements and medical
reports (in some cases with photographs) submitted to the Commission
by the applicant Government that detainees and internees, who wished
to bring proceedings for alleged maltreatment, had no difficulty in
obtaining evidence.

In this context the respondent Government emphasised that there was in
Northern Ireland a strong and independent judiciary and legal
profession who were in no way subservient to the executive. This was
clearly shown, inter alia, by the cases to which the applicant
Government had referred in particular, the case of Moore v. Shillington
and the McElduff case. In this connection, the respondent Government
provided further information as to the number of claims brought for
maltreatment in Northern Ireland and the damages received for such
claims in cases which had been settled.

The respondent Government then turned to the allegation that (apart
from the authorised techniques of interrogation) there had been in
Northern Ireland an administrative practice of ill-treatment of persons
in custody contrary to Article 3 of the Convention. The respondent
Government again denied that, even assuming that specified acts of
ill-treatment occurred, they amounted to an administrative practice.
In view of the Commission's findings the First Greek Case the applicant
Government were obliged to produce substantial evidence, already at the
stage of admissibility, to show that there had been a steady and
systematic process of ill-treatment and that there had been official
tolerance of that process.

As regards the first element, the respondent Government emphasised that
the applicant Government only relied on complaints made in 127 cases,
although a total of about 3,500 persons had been arrested at some stage
during the serious emergency in Northern Ireland. Moreover, some of the
complaints made were trivial. In the respondent Government's submission
this did not reveal a systematic process of ill-treatment.

With regard to the second element, the respondent Government submitted
that there was nothing in the Special Powers Act or in any
administrative instruction authorising unlawful conduct. On the
contrary, the Parker Report set out a directive which specifically
outlawed violence to life and persons, ill-treatment, torture and
outrages on personal property, including humiliating and degrading
treatment. All soldiers in Northern Ireland were under strict
instructions to use no more force than was necessary to make arrests
and supervise persons in custody. Those instructions made it abundantly
clear that no form of physical ill-treatment as to be used against
individuals.

However, even if these rules and directives had been broken, the
respondent Government had not condoned such breaches. The Compton
Committee was established to investigate the truth of such allegations.
In addition, the Army and the RUC had carried out detailed
investigations into complaints concerning conduct of their members and
a number of cases had been submitted to the prosecution authorities for
decision whether criminal proceedings should be brought. However, as
was illustrated in the Compton Report, the authorities had encountered
difficulties in their investigation as a result of the failure of
detainees and internees to give evidence.

At the hearing the Attorney-General stated, on behalf of the respondent
Government, that since 30 March 1972 he had been ultimately responsible
for prosecutions in Northern Ireland. He submitted that it had been his
firm policy that criminal acts of physical ill-treatment by the
security forces should not be tolerated. In order to strengthen the
administration of criminal law, a Department of Public Prosecutions was
established in April 1972. The Attorney-General explained that he had
also warned and advised the competent authorities of the Army and the
police that, whenever there was sufficient evidence of conduct
amounting to the crime of assault or intimidation of a person in
custody, the person responsible would be prosecuted. Moreover, the
police and the Army had been informed that interrogation, whether under
ordinary police powers or under the Special Powers Act, must only be
conducted in accordance with the law; this meant that such
interrogation under proper and reasonable conditions, with reasonable
and proper opportunities for movement and with intervals for normal
refreshment and rest. The Attorney-General stated that he had no reason
to believe that such directions or warnings had been ignored.

In reply to a question from the Commission as to what interrogation in
depth meant at the present time, the Attorney-General stated, inter
alia, as follows:

"First, interrogation in depth means asking extensive and searching
questions on subjects specially selected as likely to be able to
provide useful information and its object is to obtain reliable
information concerning the disposition of the enemy and of his
intentions rather than to obtain evidence to achieve a conviction in
the courts. The statement of the Prime Minister on 2 March ... meant
that, while the use of the five techniques would be discontinued, the
process of asking extensive and searching questions would continue as
and when it was considered necessary. Obviously, when combatting
terrorist campaigns of the kind the IRA is currently waging, it is
necessary to obtain information which can be of use to the security
forces in preventing and combatting such terrorist attacks and thereby
in saving life. But while such interrogation continues in specially
selected cases, where the subject is considered to have information
likely to be of use to the security forces, clear instructions have
been issued to the Chief Constable of the Royal Ulster Constabulary
(and all interrogation is the responsibility of the police, not of the
Army) that the use of the five techniques set out in the Compton and
Parker Reports is no longer authorised and that any form of physical
ill-treatment is strictly forbidden."

(b)  Submissions of the applicant Government

In their written observations the applicant Government rejected the
segregation made by the respondent Government between the authorised
aids of interrogation and other forms of alleged ill-treatment on the
grounds that such segregation was neither logically justifiable nor
appropriate. The applicant Government asked the Commission to define
the rights under Article 3 of the Convention and to reach more
acceptable standards as to what constituted torture or inhuman or
degrading treatment than those apparently accepted by the respondent
Government.

The applicant Government then made the following submissions:

-    The Government would rely, inter alia, on the travaux
préparatoires of the Convention, the jurisprudence of the Commission
and on medical evidence in support of their contention that the forms
of ill-treatment complained of, whether taken individually or
collectively or in conjunction with other forms of ill-treatment,
constituted a breach of Article 3;

-    The general physical brutality and ill-treatment complained of
had not been discontinued;

-    In any event it was not accepted that discontinuance could, in
any circumstances, constitute a barrier to admissibility. At the
admissibility stage the sole function of the Commission was to decide
whether the conditions of Article 26 were fulfilled and no
consideration could be given to any conciliatory function;

-    The Commission's decision in the First Cyprus Case was not a
binding precedent; in that application it was accepted that the
measures whose examination was not pursued, namely corporal punishment
and collective punishment, had been discontinued. Moreover, they were
not part of a larger practice or scheme of conduct. In the present case
neither of these conditions obtained.

The applicant Government referred to further affidavits, statements,
medical reports and photographs in support of their contention that,
despite the assurances of the Prime Minister of the United Kingdom,
continuing breaches of Article 3 of the Convention were still
occurring. In support of the contention that the treatment referred to
in the material submitted to the Commission in this respect, or in the
Compton Report was capable of constituting a breach of Article 3, the
applicant Government referred in particular to two reports by
psychiatrists. In the opinion of the applicant Government, the
observations made by the respondent Government in this regard were
irrelevant to the admissibility of the application as was evident from
the fact that such observations had not been considered at the
admissibility stage of previous applications by States relating to
Article 3. The only issue in such an application made under Article 24
was the question whether domestic remedies had been exhausted. In
considering this question it had to be assumed that every allegation
of fact and contention of law was meritorious.

The applicant Government further replied to the respondent Government's
objection that no allegation of fact was cited to support the assertion
that the treatment complained of constituted an administrative
practice. The applicant Government here referred to the evidence
contained in the appendices to their application and observations. The
applicant Government also noted that, although the treatment complained
of was clearly illegal, it was not suggested by the respondent
Government that those responsible for the acts concerned had been
punished; neither had the respondent Government taken any adequate or
effective action to prevent their repetition.


If, contrary to the applicant Government's above argument, it was
permissible to segregate certain forms of ill-treatment, it was
incumbent on the respondent Government to show what remedies were
available for each form of ill-treatment alleged in the application,
if they sought to contest the admissibility of the complaint in respect
of such ill-treatment. It was submitted that the respondent Government
had failed to discharge this burden. It was not sufficient for this
purpose to state in general terms, as had been done in the respondent
Government's observations, that any treatment of the nature alleged,
if capable of constituting a breach of Article 3, would, in the present
context, be a wrong in domestic law for which remedies existed. Further
specification in relation to each form of ill-treatment was necessary
because if the abridgement of the general principles of tort in common
law wrought by the Special Powers Act. The applicant Government also
observed that the respondent Government had made no reference to the
initiation or conclusion of any prosecutions or even investigations
under the Police Act 1970, despite the lapse of up to nine months since
the actions referred to in the appendices to the original application.

The applicant Government claimed that for the following reasons a civil
action for damages was by itself an inadequate remedy in the present
circumstances:

- First, an award of damages did nothing to prevent the recurrence of
such acts either by or against the same persons, or otherwise;

- Secondly, persons who had suffered from such ill-treatment from the
security forces were at a very serious disadvantage in seeking a
domestic remedy because:

a) they would find it difficult if not impossible to procure the
evidence of independent witnesses who could substantiate claims;

b) the security forces carrying out breaches as a planned system would
inevitably make concealment of these breaches a part of that planned
system;

c) the disadvantages were greatly increased when the person suffering
from the breaches was incarcerated immediately thereafter, thereby
being deprived of the freedom necessary for the normal collection of
evidence, e.g. prompt medical examination and instruction of a legal
adviser.

The applicant Government pointed out that it was a settled principle
in international law that the exhaustion of domestic remedies was not
required if, in the circumstances, such remedy would prove ineffectual
or inadequate. This rule was not a technical or rigid rule but one
which international tribunals had applied with a considerable degree
of elasticity. In the present case where there had been widespread,
repeated and flagrant breaches of Article 3, one of the most
fundamental of the Convention, involving irreparable damage to the
victims, a remedy must, if it was to be deemed adequate, be more
immediate and effective than the eventual prospect of monetary damages.
Nothing less than the vigorous enforcement of the law by the Executive,
through criminal prosecution and disciplinary action, could afford an
adequate remedy. In this context reference was made to the Commission's
Report in the First Greek Case (Vol. II, 1, p. 12, paragraph 25).

In the applicant Government's submission the Executive had, in the
present case, not only failed to secure by positive action the rights
guaranteed in Article 3 of the Convention but had also attempted to
obstruct the course of civil claims by maintaining a threat of
internment against the claimant. In support of this contention the
Commission was referred to two judgments given in the case of Moore v.
Shillington delivered on 3 January and 18 February 1972.

Moreover, the applicant Government claimed that the evidence submitted
by them disclosed a repetition of acts sufficient to constitute an
administrative practice especially when considered in conjunction with
the official tolerance evinced by the respondent Government's failure
to punish such acts or to prevent their repetition. In this context
reference was again made to the Commission's Report in the First Greek
Case (ibid. pp. -15 and pp. 412-420 and in particular to p. 13,
paragraph 27).

The applicant Government stated in conclusion that the remedies sought
by them could not be granted by a domestic court in the United Kingdom.
Such a Court had no jurisdiction to consider whether there had been a
breach of the Convention. Moreover, it was submitted that, where the
wrong sought to be remedied was a breach of a treaty and the remedy
sought was a declaration of that this had occurred, the domestic
remedies rule had no application.

At the hearing the representatives of the applicant Government
maintained that evidence of the existence of an alleged administrative
practice in breach of Article 3 of the Convention was not relevant to
the issue of admissibility in an inter-State application such as the
present, whose object was to determine the compatibility of an
administrative practice with the obligations of the respondent
Government and not to seek redress on behalf of individuals. The
applicant Government also claimed that, even if such evidence was
nevertheless considered to be relevant at the admissibility stage, this
evidence had clearly been provided in the application and the documents
supporting it.

According to the applicant Government, the factual information supplied
with the application related to a total of 103 persons and the
complaints of ill-treatment ran from 9 August 1971 to the end of
January 1972. The treatment complained of occurred in three
identifiable places. Eight persons complained of this type of
ill-treatment in Palace Barracks, which was one of the identified
places and nineteen persons had given statements with regard to such
treatment in the same place between 20 September 1971 and 7 January
1972. With regard to the Girwood Detention Centre there were thirty-one
statements relating to the period 9 August - 2 November 1971 and four
statements concerning the period 2 November 1971 - 25 January 1972. In
Ballykinlar eighteen persons made depositions concerning such treatment
alleged to have taken place on the same day, namely 9 August 1971. In
the areas which could not be identified, mostly due to the treatment
of the people concerned, there were nineteen persons involved and these
incidents had occurred from August to November 1971 in seven places and
from November 1971 to January 1972 in five places.

In the applicant Government's view the treatment to which these 103
persons were subjected had an extraordinary air of repetition. The
statements showed that precisely the same methods recurred repeatedly
with variations only in the order of application. Not only the
techniques referred to in the Parker Report, such as hooding,
wall-standing and noise, occurred as a total pattern but also the other
forms of ill-treatment, some of them more savage, recurred with the
same pattern. It would be illogical to separate the techniques referred
to in the Parker Report from the other forms of ill-treatment as the
statements showed that the same person was subjected to both kinds of
treatment in the same place and at the hands of the same security
personnel. The entire treatment of these 103 persons was closely
interrelated and showed a recurring pattern.

In the applicant Government's submission the failure to punish the
security personnel responsible for the alleged acts of ill-treatment
had three consequences. First, it constituted evidence of an official
tolerance which was an accepted ingredient in an administrative
practice. Secondly, it established in itself a failure to secure to
persons the rights and freedoms in Article 3. Thirdly, because the
executive could not be forced to punish the responsible persons, its
failure to do so rendered other apparent remedies for injuries to
individuals ineffective and insufficient in a situation where such
injury consisted of a failure by a Government to secure and protect the
individual's rights and freedoms.

When concluding their submissions under Article 3 of the Convention the
applicant Government referred to the account given by the
Attorney-General of the respondent Government as to the instructions
and steps he had taken to prevent ill-treatment when he became
responsible for prosecutions in Northern Ireland. The applicant
Government fully accepted that such instructions had been given.
However, there was substantial evidence of brutality apart from the
interrogation in depth techniques. The applicant Government was
regularly receiving information to the effect that physical brutality
continued. Moreover, constant charges of this kind were still being
made in the newspapers in Northern Ireland. In these circumstances,
there still remained a situation which should be investigated by the
Commission.

The applicant Government also asked the Commission to proceed with an
investigation of the interrogation in depth and pointed out that, while
certain techniques had been discontinued some form of such
interrogation was still in operation. In this connection, the applicant
Government described the forms and effects of the previously authorised
techniques. As regards wall-standing, the persons who were being
interrogated were kept in an uncomfortable posture with the tips of
their fingers against the wall for long periods. Their heads were
hooded and they were deprived of sleep and food. They were also
subjected to what the psychiatrists described as a "white noise" which
was a continuing noise with the object of producing a sense of
isolation in the victim as well as hallucinations. The hooding also
produced a sense of isolation and disorientation and, it was claimed,
in some cases a sense of panic or suffocation. It was clear from the
evidence submitted, in particular a report by Professor J. Bastiaans
of Leyden University that the intention was to isolate a person, not
only from communication with other persons, but also from himself. In
the applicant Government's submission anything more patently and
grossly in violation of Article 3 of the Convention than such
techniques could not be conceived.

At the present time the respondent Government had ceased these
particular practices but it appeared clearly that the possibility of
some of these measures being re-introduced was contemplated and the
respondent Government had expressly reserved to itself the right to
re-introduce them. The Parker Report showed that these interrogation
procedures had been used in Malaya, Palestine, Kenya and Cyprus where
they had similarly been discontinued until they were required again.
Thus, they had been used again in the British Cameroons (1960-61),
Brunei (1963), British Guiana (1964), Aden (1964-67), Borneo/Malaysia
(1965-66), the Persian Gulf (1970-71) and in Northern Ireland. It would
be appropriate and timely for the Commission to set standards and
limits as to what forms of interrogation in depth were permissible.

4.   Under Article 5

(a)  Submissions of the respondent Government

In their written observations the respondent Government referred to the
text of the original application in which it was alleged that the
internment of persons in Northern Ireland was a breach of Articles 5
and 6 of the Convention and that the powers contained in the Special
Powers Act and Regulations, as well as their operation, were in breach
of the said Articles. It was observed that, apart from a reference
(Part E, paragraph 11, see p. 16 above) to persons held in custody or
detained, no indication was given to the context in which such a breach
was alleged to exist, and no allegation of fact was made except with
regard to internment. The respondent Government therefore assumed that
the reference to the Special Powers Act and Regulations, and the
operation of the powers therein contained, was a reference to those
powers and their operation in regard to internment and to the holding
of persons in custody or detention in relation to the making of an
order of internment.

So far as concerned an alleged breach of Article 5 by reason of the
existence of the powers contained in the Special Powers Act and
Regulations, the respondent Government repeated that the application
failed to state how the existence, as distinct from the application,
of enabling legislation was capable of contravening the Convention. So
far as concerned the alleged breach of Article 5 by reason of the
operation of such powers, the respondent Government repeated their
observation that there was, and had been at all times material to the
application, a public emergency threatening the life of the nation and
that this fact was not disputed by the applicant Government. The
latter's submission on the present issue went not to the existence of
the emergency, but to the extent of the measures taken by the
respondent Government or the Government of Northern Ireland and their
consistency with the respondent Government's other obligations under
international law. With regard to the latter allegation, no indication
had been given of any specific obligation under international law with
which the measures taken were alleged to be inconsistent. The
respondent Government submitted therefore that this allegation should
be rejected, or that the Commission should decline to give further
consideration to it, on the ground that, in this respect, the applicant
Government had failed to comply with the Rules of Procedure.

The respondent Government then observed that, between January and the
end of July 1971, 2 police officers, 10 soldiers and 8 civilians, not
themselves the instigators of violence, were killed as a result of
terrorist activity. In January there were 16 explosions, in May 37
explosions, and in July 68 explosions. On 9 August 1971, the Northern
Ireland Government faced with this increasing violence and the
difficulty of bringing those responsible to justice, (due to
intimidation and the ease with which terrorists were able to cross the
border with the Republic of Ireland after carrying out their attacks),
decided, with the agreement of the respondent Government, that it was
necessary to use their powers of detention and internment in order to
protect the population as a whole from terrorism. Whenever possible the
normal processes of criminal law continued to be followed:  between 9
August 1971 and 31 March 1972 over 888 people had been charged in the
ordinary way with offenses arising out of civil disturbances.
Internment had been ordered only in cases where, after careful
examination of a recommendation of a senior police officer, the
Minister of Home Affairs for Northern Ireland was satisfied that the
person concerned was at the time an active member of the IRA or had
been actively implicated in the IRA campaign. Between 9 August 1971 and
31 March 1972 796 persons had, from time to time, been interned for
varying periods without trial in exercise of the powers conferred by
the Special Powers Regulations.

Orders for internment made under the Special Powers Regulation
expressly provided that due consideration should be given by an
Advisory Committee to any representations which the person subject to
the Order might make. The current Advisory Committee comprised a Deputy
Judge of Oxfordshire Crown Court (who was a Roman Catholic) and 2 lay
members. Regulation 12 (3) required that the chairman held or had held
certain judicial appointments, or was a practising barrister of at
least ten years standing. Any internee might put such representations
as he wished to make against the internment order to the Committee,
either orally or in writing. He might be represented by an agent in the
preparation of his case and certain legal aid was available. The
function of the Committee was to consider whether or not the internee
could safely be released, whereupon they put their recommendation to
the Minister of Home Affairs whose functions were not exercised by the
Secretary of State for Northern Ireland. In addition the Committee had
conducted a systematic review of the position of persons interned under
the Regulations. By 30 March 1972, 588 cases had been heard by the
Committee (notwithstanding the refusal of 451 to appear or otherwise
make representations to the Committee), of whom 69 were recommended for
release. All of these were released except for 6 persons who refused
to give an undertaking not to engage in violence on their release and
this was in accordance with the policy stated by Mr. Faulkner, the then
Minister of Home Affairs, to the effect that the Committee's
recommendations would be followed whenever possible.

Following the enactment of the Northern Ireland (Temporary Provisions)
Act 1972 the functions of the Minister of Home Affairs of Northern
Ireland became exercisable by the Secretary of State for Northern
Ireland. In his statement, explaining the reasons for the introduction
of that Act, the Prime Minister of the United Kingdom referred to the
question of internment and said that, within the next few weeks, those
internees whose release was no longer thought likely to involve an
unacceptable risk would be set free. The Secretary of State for
Northern Ireland would establish a procedure to review each case
personally. In a subsequent statement in the House of Commons, the
Secretary of State explained the policy which he would adopt. In
particular, he said that cases which could be brought to trial would
be. He also stressed that the sooner violence ended the sooner could
internment be ended.

On 7 April 1972, the Secretary of State announced the immediate release
of a total of 47 internees and also of 26 detainees. Subsequent
releases of internees had brought the total of internees released from
7 April to 28 April to 118.

The respondent Government maintained that, faced with the prevailing
situation, they and the Government of Northern Ireland had, at all
times relevant to this application, been clearly entitled, within the
margin of appreciation accorded to Governments in such cases, to take
the view that internment measures in general had been and were required
by the exigencies of the situation within the meaning of Article 15
(1). They also maintained that the application of these measures in
practice had been within the margin of appreciation and had gone no
further than was strictly required by the exigencies of the situation
and, if that question remained in issue, were not inconsistent with
their obligations under international law. They therefore repeated
their submission that the matters of complaint in Part E of the
application did not constitute a contravention of their obligations
under the Convention.

The respondent Government stated that they were mindful of decisions
of the Commission reserving to its examination of the merits issues in
relation to Article 15. They submitted, however, that the question
whether measures taken by a State were measures in respect of which,
or taken in circumstances in which, a State was entitled to exercise
its right of derogation were matters which might properly be taken as
a preliminary issue. A determination that the measures fell within that
description rendered unnecessary any further examination of issues
under Articles other than those specified in Article 15 (2); before
there was a determination of the issue under Article 15 (1), the
examination of any such other issue would be premature. Accordingly
(and since the question was, as a matter of fact, capable of separate
consideration from issues as to which Article 15 did not permit
derogation) they submitted that it was appropriate that the issue
whether the measures taken were considered which were permitted under
Article 15 (1) should be considered as preliminary question. They
requested the Commission to consider it as such and to hold that the
matters referred to in this part of the application did not constitute
a contravention of the Convention.

In their oral observations at the hearing the representatives of the
respondent Government maintained these submissions. In this connection
reference was again made first to the reasons for introducing
internment and detention on 9 August 1972. Further reference was made
to the letters addressed on 25 August 1971 to the Secretary General of
the Council of Europe for the purpose of Article 15 (3) of the
Convention (see the annex below).

The respondent Government also recalled the statements made before the
European Court by the applicant Government in the Lawless Case as to
the activities of the IRA and the measures introduced by the applicant
Government, including detention without trial, to deal effectively with
the threats from the IRA. The respondent Government submitted that it
was clear that the previous campaigns referred to in the Lawless Case
did not approach in violence and extent the threat to security of the
present campaign in Northern Ireland.

The respondent Government emphasised that the power of internment under
the Special Powers Act was accompanied by important safeguards. In
particular, according to Regulation 12 (1), an internment order could
be made only if an officer of the RUC not below the rank of county
inspector, or an advisory committee, recommended that "for securing the
preservation of the peace and the maintenance of order in Northern
Ireland it is expedient that a person who is suspected of acting or
having acted or being about to act in a manner prejudicial to the
preservation of the peace and the maintenance of order in Northern
Ireland" shall be interned. Regulation 12 (1) also required any
internment order to contain express provision for consideration by an
advisory committee of any representations made against the order by the
person concerned. Moreover, it was recalled that Regulation 12 (3) laid
down that this committee should be presided over by a person holding,
or having held high judicial office, by a county court judge or a
practising barrister of at least ten years' standing.

The respondent Government gave further information to show that
internment was being phased out as quickly as possible and stated that,
between 30 March and 12 September 1972 a total of 557 internees and 166
detainees had been released. At the latter date there were still 171
internees and 67 detainees. However, on 21 September 1972, the
Secretary of State for Northern Ireland had announced new important
changes in the procedure. First, the Government would set up a
commission of experienced lawyers and laymen to advise them on the
measures required to deal with terrorist activity and to bring to book
individuals involved in terrorist activity without resorting to
internment. Pending this report and the subsequent legislation on it,
the Government proposed to change the existing law to facilitate the
prosecution of persons for membership of unlawful organisations. In
addition, provisions would be introduced under the Special Powers Act
to set up a tribunal to deal with persons suspected of participation
in terrorist activities. The relevant procedure would provide maximum
safeguards for the protection of the individual and, while eliminating
objectionable features of internment, notably judgment by executive
decisions alone, would be matched by the special conditions in Northern
Ireland. This tribunal would be asked to consider cases referred to it
(including cases of those presently interned or detained) and to
determine the nature of their involvement in terrorist activities with
a view to their release or committal to a period of detention.

The respondent Government further developed their submission that the
Commission should, in the present case, determine at the admissibility
stage the question whether the derogation from Article 5 was justified
under Article 15. In this connection the respondent Government referred
to the Commission's decision in the Lawless Case to join to the merits
of the case the respondent Government's preliminary objection under
Article 15 (Yearbook, Vol. 2, pp. 308, 334). In the respondent
Government's opinion that decision did not exclude the possibility
that, in an appropriate case, the Commission would decide at the
admissibility stage, on the question of a derogation under Article  15.
In the present application the two grounds indicated in the Lawless
Case for joining this issue to the merits did not apply. First, in the
present case, it was not disputed that there was, and had been when the
emergency measures were first taken, a public emergency in Northern
Ireland threatening the life of the province. Secondly, the Commission
had in the present case a full and detailed account of the threat posed
by the IRA to peace and security; of the powers contained in the
Special Powers Act and Regulations and the existing safeguards against
abuse of such powers, of the manner in which these powers had been
exercised in practice; of the functions of the Advisory Committee and
of the steps which had been taken since 30 March 1972 to bring
internment to an end. There could be no substantial dispute about these
facts nor about the situation confronting the respondent Government at
the time of the derogation and the steps taken to meet this situation.
What might be in dispute was whether these measures went beyond the
margin of appreciation allowed to a State in judging the extent that
was strictly required by the exigencies of the situation. In the
respondent Government's submission this question should be decided at
the present stage, the material needed for such decision being
available in the form of undisputed facts. The claims under Article 5
should therefore be declared inadmissible.

The respondent Government then turned to the particular submissions
made by the applicant Government in support of their contention that
the measures taken exceeded what was strictly required by the
exigencies of the situation. The first criticism was that the decision
to intern was taken previously by the Minister of Home Affairs but,
after 30 March 1972, it was taken by the Secretary of State for
Northern Ireland alone. Neither of these was bound by the views of the
Advisory Committee. This position would be changed by the setting up
shortly of the new tribunal announced on 21 September 1972. Moreover,
internment could only be ordered on the recommendation of a senior
police officer. As regards the Advisory Committee, their advice had not
been binding on the Minister but there were only six cases in which the
Minister had not released an interned person when this had been advised
by the Committee. These six persons were released by the Secretary of
State on 7 April 1972.

The applicant Government's second ground of criticism was that the
right of representation before the Advisory Committee did not include
a right to know the evidence on which that person was interned or the
right to enquire into, cross-examine, or refute that evidence. However,
the reasons for this restriction was self-evident. The IRA was prepared
to murder without scruple anyone who endangered or interfered with its
members or activities. To inform an interned person suspected of being
a member of the IRA of the names of the witnesses on whose evidence he
was interned would, in some cases, constitute a death warrant of these
witnesses or would ensure some lesser form of retribution on the part
of the IRA.

The third criticism was that there was no right given to an interned
person to appear or to be represented or give evidence before the
person who made the decision as to his internment. However, an interned
person had the right to appear or be represented before the Advisory
Committee whose advice had almost invariably been accepted.

The fourth criticism, finally, was that a person, who was detained
under the Special Powers Act and Regulations, had no remedy and not
even a remedy before the Advisory Committee to procure release as long
as the detention was a valid detention in accordance with the
requirements of the Act. In considering this criticism, the purpose and
the background of the Act and the Regulations had to be kept in mind.
They were made and passed in a situation of emergency and danger to the
community as a whole which would have to be dealt with, if it arose,
swiftly and quickly. Moreover, Sec. 1 of the Act provided that there
should be as little interference as possible with the ordinary course
of law, avocations of life and the enjoyment of property. In the
respondent Government's submission the existence of the Special Powers
Act and the Regulations had been, and was, necessary in the particular
situation prevailing in Northern Ireland and there was nothing to
suggest that the powers concerned had been abused or used contrary to
the provisions of Sec. 1.

Moreover, the courts had been astute to ensure that the powers
conferred were exercised in accordance with the strict requirements of
law. In this connection reference was made to the McElduff Case which
had been referred to by the applicant Government. In that case the
judge had to interpret Regulations 10 and 11 under which McElduff had
been arrested and he held that there was no valid arrest and ordered
that McElduff should be released. Furthermore, the civil authority
retained power to grant bail to all persons detained by virtue of
Regulation 11 (4). The respondent Government did not regard these
powers to detain and to intern as attractive powers, but they were
powers to be used when required for the security and safety of the
inhabitants of Northern Ireland. In this context the respondent
Government again referred to the McElduff Case where the power of
arrest was described "as part of legislation to meet unusual conditions
where more normal and conservative powers may be ineffective for
preserving peace and maintaining order in a troubled community". In the
applicant Government's submission the mere creation of the powers of
detention concerned, which were pursuant to an Act passed by a
democratically elected Parliament, could not and should not be accepted
as grounds of a viable application under the Convention. The need for
such powers were plain and it was necessary that detention should be
immediate. The fact that there was no express provision in the Act or
Regulations for a remedy by application to a court or some other
tribunal did not violate the Convention. It was also true that there
was no express provision limiting the period during which a person
might be detained but, if the existence of the powers was justified,
this was not surprising. The judge in the McElduff Case considered that
there was no such limitation enabling the courts to act as a court of
appeal on the issue of the time which the arrested man could be held
under Regulation 11. However, without suggesting that there was any
limitation as to the period a man could be detained, the respondent
Government stated that they were not aware of any court decision
specifically deciding whether or not there was any implied restriction
to the effect that a man could only be detained for a reasonable
period. If the courts found that it was right that there was no such
limitation on the basis that these powers were created to deal with
situations of emergency, it would be wrong to hold that there was, on
this basis an admissible application under the Convention. Nor did the
fact that people were detained under those powers ipso facto give
substance to such an application.

In this connection, the respondent Government referred to the applicant
Government's argument that the fact that the Special Powers Act and the
Regulations under it remained in force and did not have to be brought
into operation by a Government Proclamation or Resolution by
Parliament, constituted a breach of Article 1. Leaving aside the
question whether there could be a separate breach of Article 1, the
respondent Government submitted that there was no effective
interference with anyone's rights until the powers conferred by the
Regulations were exercised. in the respondent Government's submission,
the powers under the Act and the Regulations had never been used save
in circumstances when Article 15 of the Convention applied and the
respondent Government had then given due notification of the fact that
such powers had been exercised. The reason for these powers always
being in force was simply that, if a public announcement was required
before the powers of internment and detention could be exercised, the
period of time which would inevitably elapse between such a public
announcement and the attempt to detain individual persons, would enable
those persons to escape over the border.

The respondent Government stated that they did not accept the applicant
Government's submission that there was no remedy or only an illusory
remedy available under domestic law for this misuse of the Regulations.
The lack of justification for this submission was shown by the McElduff
Case. In that case, the judge accepted that the powers conferred under
the Regulations were wide, but he laid down that there were three
grounds on which it was open to the applicant to attack the order which
had been made against him. These were, first, whether the arresting
officer did indeed suspect that McElduff had acted in one of the ways
specified in the Regulation; secondly, whether he held that suspicion
bona fide and honestly; and thirdly, whether he carried out the
essential prerequisites to the arrest and, in particular - this being
the point in issue - whether he told the person being arrested the
things he was entitled to be told. The judge then held that, on the
third ground, the particular exercise of power in that case could
successfully be attacked.

In reply to a question from the Commission at the hearing, the
respondent Government gave detailed information as to the procedure
before the Advisory Committee and the way in which a case reached the
Committee. In particular, the respondent Government explained that an
interned person was informed in the internment order served on him of
his right to make representations. The interned person himself was
entitled to make representations and have his case considered by the
Committee under Regulation 12. In addition, the Advisory Committee
could consider internment cases on its own initiative even if the
interned person had not himself made representations to the Committee.
When internment was introduced in August 1971 the Advisory Committee
was established under the chairmanship of His Honour Judge Brown and
it commenced a review of all cases irrespective of whether the
individual interned persons had made representations to the Committee.
Between 4 October 1971 and 30 March 1972 the cases of 588 persons were
considered. In 451 cases the internee concerned chose not to appear
before the Committee. Of the cases considered the Committee recommended
in favour of the release of 69 persons, of whom 63 were in fact
released. On 15 April 1972, His Honour Judge Leonard became chairman
of the Committee which was still carrying out its statutory duty of
considering representations made to it by interned persons. However,
the general review of all internment cases was now being carried out
by the Secretary of State for Northern Ireland personally.

The Committee under the chairmanship of Judge Leonard, had considered
representations from nine interned persons and recommended the release
of four of these persons, and these recommendations had been followed.

An interned person might appear before the Committee either alone or
accompanied by a lawyer who could state his case. He was also entitled
to legal assistance in the preparation of his written representation
to the Committee. At the hearing the interned person or his lawyer was
given the opportunity to question the grounds for his internment as set
out in the internment order. The Committee also considered written and
oral representations of police officers but, in order to protect the
lives of witnesses against reprisals, the actual evidence against the
interned person was not notified to him or his lawyer.

(b)  Submissions of the applicant Government

In their written observations the applicant Government first replied
to the respondent Government's observations concerning the alleged
contravention of the Convention by reason of the existence of the
Special Powers Act and the Regulations and the applicant Government
referred to their submissions in this respect under Article 1 (see pp.
29-32 above)

With regard to the respondent Government's observations on the alleged
breaches of Articles 5 and 6, the applicant Government made the
following comments which applied to both Articles:

(i)  The observations of the respondent Government were not relevant
to the question of admissibility of the application;

(ii) The applicant Government noted the comments made by the
Commission in the first decision on the admissibility of the First
Greek Case (Yearbook, Vol. 11, pp. 690, 726-728) where the Commission
held that the provisions of Article 27 (1) and (2) did not apply to
applications submitted under Article 24 of the Convention and,
accordingly, that the question whether such an application was
well-founded or not was solely a question relating to the merits and,
therefore, the effects of derogations made by the respondent Government
under Article 15 could not be considered at the stage of admissibility;

(iii)  The measures taken by the respondent Government exceeded what
was strictly required by the exigencies of the situation both by reason
of the continuing existence of the Special Powers Act as part of their
domestic legislation and in the operation by the respondent Government,
and by the security forces under their control, of the said Act and
Regulations and, in particular, in that:

- not with standing the observations made by the respondent Government
concerning the Advisory Committee, the internment (as distinct from
detention) of persons without trial was solely at the decision of the
Minister of Home Affairs for Northern Ireland, making such use as he,
in his sole discretion, might think fit of the views of and Advisory
Committee which, irrespective of the religious persuasion of its
Chairman, was merely advisory and not an independent judicial tribunal;
there were still 447 persons interned without trial in Northern
Ireland;

- the rights of representation before the Advisory Committee recently
conceded to an interned person did not include a right to know the
evidence on which that person was interned or the right to enquire
into, cross-examine as to, or refute that evidence;

- no right whatsoever was given to an interned person to appear before,
to be represented before or to give evidence before the person who made
the decision as to his internment.

- no remedy whatsoever, not even that of consideration of his case by
the Advisory Committee, was allowed to a person who was detained
without trial as distinct from being interned without trial; neither
was there any enforceable legal limit to the length of time for which
a person might be detained. There were still some 141 persons detained
without trial in Northern Ireland.

With reference to the respondent Government's submission that they were
entitled, within the margin of appreciation accorded to Governments,
to take the view that emergency measures were required by the
exigencies of the situation within the meaning of Article 15 (1), the
applicant Government pointed out that the margin of appreciation
referred to related to the assessment of the facts justifying measures
in derogation. It could not be invoked in defence of measures which
restricted the rights and freedoms secured and defined by the
Convention but which did not contribute in any way to safeguarding the
nation against the public emergency threatening its life. In this
connection reference was made to the detailed criticisms of the Special
Powers Act and the Regulations made thereunder as were contained in
appendix to the application. Reference was also made to the judgment
of the European Court in the Lawless Case (332/57) where, in deciding
that the derogation from the Convention came within the terms of
Article 15, stress was laid on the fact that the legislation permitting
internment without trial was "subject to a number of safeguards
designed to prevent abuses in the operation of the system of
administrative detention".

With regard to the respondent Government's statement that the Minister
of Home Affairs for Northern Ireland was satisfied that each person
interned "was at the time an active member of the IRA or had been
actively implicated in the IRA campaign" the applicant Government
submitted that:

- since neither the person interned nor the applicant Government was
aware of the evidence which so satisfied the Minister of Home Affairs
for Northern Ireland, and

- since the statements of many of the persons whose names were set out
in Appendices 4-7 and the Addenda thereto, denied the allegations made,
and

- since no independent judicial tribunal existed to examine the bases
on which the Minister of Home Affairs for Northern Ireland became so
satisfied,

the respondent Government's statement in this respect was unsupported
in fact, and, in any event, was irrelevant to the issue of
admissibility.

The applicant Government noted that it was not suggested by the
respondent Government that there was any domestic or legal remedy
available to any person arrested or detained (as distinct from
interned) pursuant to the provisions of the Special Powers Act.

It was noted that, although the respondent Government claimed that
detention and internment were measures strictly required by the
exigencies of the situation and 796 persons were interned without trial
between 9 August 1971 and 31 March 1972, yet in the same period of time
it was possible to have over 888 persons charged in the normal process
of criminal law.

The respondent Government had requested that the question whether the
measures taken were permissible under Article 15 (1) should be
considered as a preliminary question. The applicant Government referred
the Commission again to the objects of their claim set out in Section
A of the application and commented that, in such a case and where also
it was alleged that the existence of the Special Powers Act and
Regulations made thereunder were in themselves a breach of Article 1
of the Convention, it was unappropriated that the request of the
respondent Government should be acceded to.

With reference to the respondent Government's observations that the
application failed to state how "the existence, as distinct from the
application, of the Special Powers Act and Regulations was capable of
contravening the Convention", the applicant Government referred to the
obligation of Parties to secure the rights and freedoms defined in
Section I of the Convention. They also referred to the statement in the
Commission's decision on admissibility in the de Becker Case
(application No. 214/56) to the effect that the Convention was binding
on all the authorities of the Contracting Parties including the
legislative authority (Yearbook, Vol. 2, pp. 214, 234).

At the hearing, the representatives of the applicant Government
maintained that their allegations under Articles 5 and 6 should be
declared admissible and that no question as to the derogation under
Article 15, the extent of the measures taken in pursuance of such
derogation or its validity could arise at the admissibility stage.

In the event that the Commission would nevertheless consider the
question of derogation at that stage, the applicant Government also
maintained that the measures taken exceeded what was strictly required
by the exigencies of the situation.

In this connection the applicant Government explained that the Act and
Regulations gave to the executive three different powers of detention,
namely:

- a power to detain a person for up to 48 hours which did not, under
the Regulations, require suspicion either of a criminal offence having
been committed or that there had been an intention to commit an offence
(Regulation 10);

- a power of detention which was unlimited in time (Regulation 11).

- a power of internment in respect of which there was no effective
tribunal which could inquire into the validity or soundness of the
internment (Regulation 12);

The applicant Government then asked the Commission to consider what
measures might be strictly necessary in a situation of emergency.
First, whether any authority which had the power of internment, from
which there was no judicial escape, should have, for any purpose, the
concurrent power to order unlimited detention?  Secondly, even if a
power of internment were a necessary measure in any given emergency,
what conceivable administrative or practical ground could there be for
denying an interned person the right to have his case considered by a
judicial tribunal which had effective power to release him or to
confirm his internment?

The applicant Government also recalled that the Special Powers Act and
Regulations had remained in force for 50 years and that it did not
require any legislative act, even a proclamation or order-in-council,
to make these powers effective. In particular, the respondent
Government had justified this absence of parliamentary control over the
times at which, or the circumstances under which, the power of
internment could be introduced on the ground that the time required to
proclaim or announce the introduction of the power of internment would
enable those persons, against whom it was intended to be operated, to
escape. In the applicant Government's opinion this explanation ignored,
however, the fact that, even if it were announced that there were now
or at any given time between 2,000 and 3,000 terrorists in Northern
Ireland, the whole population of 11/2 million people lived permanently
under the shadow of the possibility of being interned immediately and
without prior notice.

The applicant Government then commented on the provisions of
Regulations 10, 11 and 12. Regulation 10 provides that:

"Any officer of the Royal Ulster Constabulary, for the preservation of
the peace and maintenance of order, may authorise the arrest without
warrant and detention for a period of not more than 48 hours of any
person for the purpose of interrogation."

As regards this Regulation the applicant Government noted that it was
not necessary that the officer authorising the arrest of a person
should in any way suspect the person arrested or about to be arrested
of doing any wrongful act, or of intending or of being involved in the
doing of any such act. Moreover, under this Regulation a person might
be arrested for interrogation in connection with another person but
without any connection with his own activities.

Even more drastic powers were to be found in Regulation 11 (1) which
permitted any person so authorised by the civil authority, or any
police constable or any soldier, to arrest without warrant any person
whom he suspected of acting in a manner prejudicial to the maintenance
of peace and order, or to arrest any person found with a book or
document which gave ground for such suspicion. This was simply a power
of arrest. However, under Regulation 11 (2) a person so arrested might,
on the order of the civil authority, be detained in prison or elsewhere
as directed until he was discharged by the Attorney-General or brought
before a court of summary jurisdiction. This Regulation gave an
unlimited power of detention. Once the arrest had been achieved by any
of the officers referred to in Regulation 11 (1), the civil authority
could detain a person without any reference to any court or without any
form of adjudication until he was discharged. The applicant Government
stated that the judgment in the McElduff Case showed that there was no
time-limit within which a detention order under Regulation 11 (2) had
to be made, nor was there any limitation of the period an arrested
person could be held in custody under Regulation 11 (1). The same
judgment showed that the courts could not be asked to determine whether
the grounds of suspicion on which a person was arrested and
subsequently detained were reasonable or not.

The applicant Government then referred to the power of internment in
Regulation 12 which provided that, on the recommendation of an officer
of the RUC or of an Advisory Committee, the Minister of Home Affairs
might, for the purpose of securing peace and order and where it
appeared to him that it was expedient to do so, order that a person who
was suspected of acting in a manner prejudicial to the preservation of
peace and order should reside in a certain place and report to the
police at regular intervals or be interned.

The applicant Government recalled that a person so interned had a right
to have his case reviewed by an Advisory Committee which could
recommend that the internment should continue or be ended. In this
connection, the applicant Government repeated their submissions with
regard to the procedure before the Committee and the advisory character
of that Committee.

By way of comparison the applicant Government then referred to the
relevant parts of the legislation in the Republic of Ireland which had
been considered in the Lawless Case, namely Part VI of the Offenses
Against the State (Amendment) Act 1940. The applicant Government
pointed out that there were important differences between the Special
Powers Act and that legislation. In particular, the 1940 Act could only
be brought into operation by a Government proclamation which itself was
liable to annulment by Parliament. The 1940 Act also provided that an
interned person had a right of appeal to a Detention Commission whose
decision, where it ordered that an internee should be released, was
binding on the executive and the courts. Moreover, the Detention
Commission could require the Minister for Justice to furnish all
relevant information or documents. These safeguards were considered and
given much significance by the Commission in its Report in the Lawless
Case (European Court of Human Rights series B, 1960-61, pp. 123, 133
and 134). However, none of these safeguards was provided for, or at
least not provided for in an effective form, under the Special Powers
Act.

The applicant Government also referred to the statements recently made
by the Secretary of State for Northern Ireland as to the respondent
Government's future intentions about internment and the setting up of
a new tribunal. It was submitted that, even assuming that these matters
could be considered by the Commission at the admissibility stage, there
was no suggestion that this new tribunal was a tribunal to which a
person had access as of right and which was capable of releasing him
from internment.

At the hearing the representatives of the applicant Government also
developed their submission that no effective remedies were available
to a person deprived of his liberty under the Special Powers Act in
breach or Article 5 of the Convention. It was true that, if there had
been a failure by the security forces or the executive to comply with
the precise procedural requirements of the Special Powers Act and
Regulations, the courts could release a person from what would then be
an invalid detention. In this context, the applicant Government
stressed that the judiciary in Northern Ireland had been scrupulous in
its observance of these technicalities. On the other hand, if these
procedural requirements were complied with, there was no effective
recourse to any ordinary court in relation to the deprivation of
liberty.

In support of this submission the applicant Government referred to the
judgment in the McElduff Case where the position of the courts in
relation to the exercise of the powers under the Special Powers Act was
described. In that case the judge considered, inter alia, the question
whether the power of arrest under Regulation 11 (1) could be exercised
on any suspicion regardless of whether it was reasonable or not. The
judge held that it was sufficient if the suspicion in the mind of the
arrestor was an honest and genuine suspicion and that, in an
application of the sort concerned, the court could only enquire into
the existence of the suspicion in the mind of the constable and whether
the suspicion was an honest one.

The applicant Government argued that this judgment showed that relief
was only possible if mala fides could be established. In view of the
serious practical difficulties involved in proving such mala fides this
remedy was purely illusory. In support of this argument reference was
made to de Smith "The Judicial Review of Administrative Action" (second
ed. p. 315). The applicant Government added that the right of a
detained person to obtain access to a solicitor was irrelevant in view
of the very limited competence left to the courts in this respect.

5.   Under Article 6 of the Convention

(a)  Submissions of the respondent Government

With regard to the alleged breach of Article 6 of the Convention in
relation to persons interned without trial, the respondent Government
first referred in their written observations to the European Court's
decision in the Lawless Case that "the rules set forth in Article 5,
paragraph 1 (b) and Article 6 respectively are irrelevant to the
present proceedings ... the latter because there was no criminal charge
against him" (judgment of 1 July 1961, p. 51). The respondent
Government stated that no allegation of fact was made in the present
instance in relation to Article 6 other than that certain persons were
interned without trial; in particular, there was no assertion of a
criminal charge in respect of the persons interned without trial.
Indeed such an assertion would be at variance with the allegation of
a breach of Article 5. The respondent Government submitted that,
according to the above decision of the Court, Article 6 was equally
irrelevant to the present proceedings.

The respondent Government then referred to the Commission's decision
on the admissibility of application No. 788/60 (Austria v. Italy,
Yearbook, Vol. 4, pp. 116, 180-182) with regard to the argument put
forward by the respondent Government in that case that the complaints
did not come within the competence of the Commission ratione materiae.
In reply to this argument the Commission had held that the provisions
of Article 27 (2), of the Convention were not applicable to an
application under Article 24 and it had found that the complaints set
forth in the application were not outside the general scope of the
Convention.

The respondent Government stated that their submission in the present
case as regards Article 6 was to be distinguished from the argument
ratione materiae in the previous case in that their present argument
was directly based on a decision of the European Court in a case which
was directly relevant and in which the issue was determined as a matter
of law. The legal issue was the same in the present case. So far as
concerned Article 27 (2), of the Convention that Article required the
Commission to consider inadmissible a petition under Article 25 which
it considered, inter alia, incompatible with the provisions of the
Convention. It was submitted that such a provision did not preclude the
Commission from rejecting a particular allegation or declining to
examine it further, whether on the merits or otherwise, in a case where
it was apparent that, as a matter of law, the examination could only
concern an issue which in the light of the decision of the Court, was
irrelevant. The Commission, it was submitted, had the power, by virtue
of its function and irrespective of specific provisions, to refuse to
give further consideration to issues which had been raised in disregard
of the jurisprudence of the Convention. In connection with this
submission the respondent Government referred the Commission to the
decision of the International Court of Justice not to adjudicate upon
the merits of the claim in the Norther Cameroons Case (I.C.J. Reports
1963, pp. 15, 38).

Such a course, it was submitted, was equally appropriate in proceedings
before the Commission where it would be meaningless to pursue a
particular claim.

Accordingly the respondent Government submitted that Article 6 was
irrelevant to the present proceedings and that the allegation of a
breach of that Article should be rejected or that the Commission should
decline to examine that allegation further.

At the hearing the representatives of the respondent Government
repeated this submission. In particular, it was argued that under the
general rules of international law, as exemplified in the Northern
Cameroons Case, the Commission had the power to decline to allow its
judicial function to be engaged where no purpose would be served by
undertaking an examination on the merits which, in the light of the
Court's decision in the Lawless Case, must inevitably lead to the
dismissal of the complaint.

The respondent Government also replied to the applicant Government's
further argument that there had been a breach of Article 6 on the
ground that an interned or detained person should have a civil right
to have his position considered in accordance with the provisions of
that Article. The respondent Government submitted that an interned or
detained person did in fact have such a right and that there was
nothing in the application to suggest that there was any interference
with that right. The respondent Government argued that the question
under Article 6 was not whether a person was wrongly detained but
whether he had been wrongly deprived of the right to test the legality
of his detention. The final answer to any suggestion that there was any
denial of this right was provided by the McElduff Case, where a
detained person successfully availed himself of the right to have his
position determined.

(b)  Submissions of the applicant Government

In the applicant Government's written observations the allegations
under Articles 5 and 6 were dealt with jointly and these submissions
have been set out under Article 5 above (p. 64-67)

At the hearing the representatives of the applicant Government
maintained that this part of the application should be declared
admissible and made further submissions under Article 6. They pointed
out that the arguments originally put forward by the respondent
Government related only to the determination of a criminal charge.
However, Article 6 (1) applied equally to the determination of civil
rights and obligations. In the applicant Government's submission a
person who was detained or interned under the Special Powers Act and
Regulations was deprived of his right to liberty. He therefore had a
civil right to have his position considered and was entitled to a fair
and impartial hearing in accordance with Article 6 (1). However, the
Act gave a detained person, whether he was detained for short or
unlimited periods, no right of access to any form of tribunal for the
determination of this civil right. This was not only contrary to a
particular facet of Article 6 (1) but violated the whole concept of the
Article.

A person who was interned (as distinct from detained) had the
possibility to go before the Advisory Committee but that Committee did
not, in the applicant Government's submission, have the effective
powers or characteristics laid down in Article 6 (1) of the Convention.

The applicant Government argued that the finding of the European Court
in the Lawless Case, as regards the application of Article 6 to an
interned person, was not decisive as it dealt only with the question
of a criminal charge. The arguments put forward by the applicant
Government in the present case in regard to Article 6 (1) were never
before the Commission nor considered ex officio by it in the Lawless
Case. The applicant Government did not accept the respondent
Government's submission that the requirement of Article 6 (1) of the
Convention were satisfied because a person, who was detained or
interned, could go to a court either on the ground that the order of
detention or internment was not made in accordance with the strict
requirements of the Act or in order to try to establish bad faith on
the part of the arrestor. In the applicant Government's view the right
concerned was the right of liberty and, a person seeking a
determination of that right should, at the minimum, be entitled to a
determination as to whether total deprivation of his liberty was in
accordance with natural justice. No principle of international law
could set a lesser standard, nor could Article 6 (1) of the Convention
be given less meaning than that. As long as the law of Northern Ireland
did not give any public court the power to consider and make an
effective decision as to the reasonableness of the suspicion on which
a person had been deprived of his liberty, that person did not have the
right to a determination of his civil rights as provided for in Article
6 (1) of the Convention.

6.   Under Article 14 of the Convention

(a)  Submissions of the respondent Government

In their written observations the respondent Government referred to
part F of the application (p. 17 above) and first recalled their
submissions with regard to the substantive allegations of a breach of
Article 6. Having regard to these submissions the respondent Government
took the view that there was no issue which fell to be considered under
this head in relation to Article 6 of the Convention.

As regards the alleged discrimination with regard to rights conferred
by Articles 5 and 8, the respondent Government observed that it
appeared to be the basis of the applicant Government's complaint that
the powers to search homes and to arrest, detain and intern persons had
been exercised on the ground that those against whom the powers were
exercised merely held certain unspecified political opinions and not
on grounds connected with the activities of the persons concerned. The
respondent Government denied that the exercise of the powers to detain
or intern persons or to search homes had been or was being carried out
with discrimination on grounds of political opinion in contravention
of Article 14 of the Convention.

The relevant powers (Regulations 4, 10, 11 and 12 of the Special Powers
Regulations) were exercisable only for the preservation of the peace
and the maintenance of order or, in some cases, where it was suspected
that an offence against the Regulations had been, or was being, or was
about to be, committed. It would be an improper exercise of these
powers to exercise them merely on the ground that a person had
particular views or views which differed from those of the Government
and it was open to any person, against whom any of these powers had
been exercised, to challenge the legality of their exercise in the
courts of Northern Ireland by an action for habeas corpus, for damages
for trespass (including false imprisonment), or for a declaration that
the powers were unlawfully exercised, as appropriate.

It was submitted that the above-mentioned remedies constituted an
effective remedy for the purposes of Article 26 of the Convention and
that the applicant Government had neither adduced any reason why these
remedies should not be exhausted by the persons to whom the allegations
in Part F of their application related nor had the applicant Government
demonstrated that such remedies had been exhausted as required by
Article 26 of the Convention. Accordingly, it was further submitted
that, insofar as the application alleged a breach of Article 14 of the
Convention in relation to Articles 5, 6, or 8 in respect of the
exercise of powers to search homes and to arrest, detain and intern
under the Special Powers Regulations, the application should be
rejected as inadmissible under Articles 26 and 27 (3).

At the hearing the representatives of the respondent Government first
pointed out that, although the application itself only alleged
discrimination in the exercise of the power to detain, intern and
search homes, the material referred to in this part of the application
included much wider allegations of discrimination which, in the
respondent Government's view, were wholly unsubstantiated by evidence.
The respondent Government's observations were, however, only concerned
with the three specific grounds.

The respondent Government emphasised that the purpose of the emergency
measures was not to prevent or inhibit the free expression of political
views opposed to those of the Government of Northern Ireland, nor to
suppress those who were dedicated to changing the form of government
by constitutional and democratic means. However, it could not be
tolerated in any democratic society that deliberate attempts were made
to change the form or method of government by undemocratic,
unconstitutional and unlawful means. This had always been the avowed
aim of the IRA, namely to destroy the democratic constitution of
Northern Ireland by resorting to flagrant acts of terrorism and
intimidation. The respondent Government were aware that there were
other organisations in Northern Ireland which were also prepared to use
unlawful means to bring to an end the existing form of democratic
government in the province. The organisations outlawed under Regulation
24A of the Special Powers Act included the Ulster Volunteer Force which
was associated with a different faction of extremists. However, the
most serious threat to peace and order in the province in August 1971
did not come from these organisations but from the two wings of the
IRA. Even if certain acts of violence were carried out at the time by
other illegal organisations, the threat posed by such organisations
could not remotely be compared with the acts of terrorism which were
being carried out daily by the IRA.

Since the emergency measures were intended to contain this serious
threat to the province, it was inevitable that those most directly
affected by the implementation of the Act were supporters of the IRA,
but it was not because they held and expressed views which were opposed
to the Government that they were detained, interned or had their houses
searched; it was because they were known or thought to be actively
engaged with the IRA in achieving their political aims by violent
means. Moreover, in considering the alleged discrimination the reasons
why the powers had been invoked and the circumstances in which they
were being used had to be kept in mind. There was no discrimination
within the meaning of Article 14 of the Convention if these powers were
being exercised only against those who had rendered themselves liable
to them and not against those who had not.

The respondent Government repeated that, if the powers concerned were
exercised against certain people because of their political opinions
or religious belief and not on proper security grounds, the exercise
of the powers would be in bad faith. The case-law of the British courts
clearly established that, where it was alleged that a power had been
exercised in bad faith and bad faith was proven, the courts would give
relief in respect of that power. In the respondent Government's
submission there was no reason, either in principle or on the decided
cases, to indicate that an exercise in bad faith of a power under the
Special Powers Act would not be remedied by the courts in the same way
as any other power. There were therefore adequate domestic remedies
available and these remedies had not been exhausted.

(b)  Submissions of the applicant Government

In their written observations the applicant Government commented on the
written observations made by the respondent Government with regard to
the alleged breaches of Article 14.

The applicant Government asked the Commission to note that while they
had submitted affidavits and statements contained in appendices to the
application from responsible Members of Parliament, solicitors,
journalists and businessmen in support of their contention that the
exercise by the respondent Government and by the security forces under
their control of their powers to detain and intern persons had been and
was being carried out with discrimination on the grounds of political
opinion, the only observation of the respondent Government in this
respect was a denial simpliciter of the matters alleged without any
contradiction of the detailed allegations contained in the said
appendices.

As regards the remedies indicated by the respondent Government with
regard to this part of the application the applicant Government stated
that it was not open to anyone to challenge the legality of the
exercise of the powers of detention, internment or search in the courts
by way of habeas corpus, an action for trespass or false imprisonment
or by way of declaration that the powers were unlawfully exercised.
Provided the detention, internment or search was made pursuant to the
provisions of the Special Powers Act and Regulations there was no such
or any other domestic remedy available to any person provided that such
detention or internment was made strictly in accordance with the legal
requirements of the Special Powers Act. In this context reference was
again made to the decision in R. (O'Hanlon) v Governor of Belfast
Prison ([1922] 56 I.L.T.R. 170).

It was further submitted that, where the strict legal requirements of
the Special Powers Act were complied with, the law of the respondent
Government afforded no relief to a person detained or interned without
trial even if his detention or internment was decreed on a basis of
discrimination as to his political opinion.

It was further to be noted that, in their observations on the
substantive allegations of breaches of Articles 5 and 6, it was not
suggested by the respondent Government that any domestic remedies could
apply.

At the hearing the representatives of the applicant Government shortly
summarised the material which they had submitted to the Commission in
support of their complaint under Article 14. They pointed out that this
material consisted of a series of statements asserting that, with
particular reference to powers of detention, internment and search,
these powers had been operated with discrimination in the sense that
they had frequently, if not oppressively, been operated against a
section of the population holding one political opinion, but not
against another section of the population which held a different
political opinion and which was apparently prepared to achieve their
political ends by the same violent means.

In the applicant Government's submission the essence of discrimination
within the meaning of Article 14 of the Convention was not that
something was done against one person, but that it was not done against
all people equally. The respondent Government had suggested that there
had been a failure to exhaust the domestic remedies because a person
could technically seek a remedy in relation to the exercise of one of
the special powers against him if he could plead that it had been done
male fide. In this connection the applicant Government recalled their
submissions with regard to the possibility and practicability of such
an action, which had been described as an "illusory remedy". However,
even assuming that such a remedy existed, it was not, in the applicant
Government's view, an appropriate or sufficient remedy for a breach of
Article 14 of the Convention. Such a breach consisted essentially of
the failure of the executive to apply equally the powers against all
persons in the community to whom such powers were applicable. The only
effective domestic remedy in relation to Article 14 would be if an
order of mandamus could be obtained from some judicial authority
directing the executive to use its powers without discrimination. In
this context the applicant Government referred, by way of example, to
the position of an innocent person who was living in a particular area
surrounded by people of a particular political opinion whose opinion
he might share without nevertheless agreeing with the use of violent
means. This person might be constantly searched and his house invaded
in pursuance of a search and it might well be that in that particular
street or area constant searching was justifiable. However, there would
be discrimination if a person holding a different political opinion,
whether approving or condemning violence, found himself totally
unmolested.

At the hearing the Commission asked the applicant Government to
indicate the elements in the situation today within the territory of
the respondent Government which they considered incompatible with the
Convention. The applicant Government answered that the provisions of
the Special Powers Act and the Regulations made under it, and the
methods implementing these measures, remained today unchanged from the
position outlined in the application and this present situation was
incompatible with the respondent Government's obligations under
Articles 1, 5, 6 and 14.

APPLICATION NO. 5451/72

I.   The applicant Government's application

In their submissions of 3 March 1972 the applicant Government referred
the Commission to the Northern Ireland Act 1972, an Act passed by the
Parliament of the United Kingdom on 24 February 1972. The applicant
Government alleged that the Act was of itself a failure by the
respondent Government to comply with the observations imposed on them
by Article 1 of the Convention, in that it constituted a positive
denial to persons resident in Northern Ireland of the rights defined
in Article 7 of the Convention.

The full text of the Northern Ireland Act 1972 was attached to the
submissions. Section 1, which is the operative part of the Act,
provides as follows:

"The limitations imposed by paragraph 3 of Section 4 (1) of the
Government of Ireland Act 1920 on the powers of the Parliament of
Northern Ireland to make laws shall not have effect, and shall be
deemed never to have had effect, to preclude the inclusion in laws made
by the Parliament for the peace, order and good government of Northern
Ireland of all provision relating to members of Her Majesty's Forces
as such or to things done by them when on duty, and in particular shall
not preclude, and shall be deemed never to have precluded, the
conferment on them by, under or in pursuance of any such law of powers,
authorities, privileges or immunities in relation to the preservation
of the peace or maintenance of order in Northern Ireland."

It was further alleged that the Act was per se a breach of Article 7
of the Convention in that it provided that persons were held guilty of
offences for acts and omissions which did not constitute criminal
offences under national or international law at the time they were
committed.

The applicant Government referred the Commission to a judgment of the
Divisional Court of the High Court of Northern Ireland on 23 February
1972 (1). In this case five persons had been convicted by a
Magistrates' Court for having remained in an "assembly of three or more
persons" after having been ordered to disperse by a commissioned
officer of Her Majesty's Forces, contrary to Regulation 38 (1) of the
Regulations made under the Civil Authorities (Special Powers) Act
(Northern Ireland) 1922. The five persons concerned applied to the
Divisional Court of the High Court of Northern Ireland to have their
convictions quashed. In their application
----------------------------------
(1)  The Queen (at the prosecution of John Hume and others) v. The
Justices of the Peace for the County and City of Londonderry.
----------------------------------

they alleged that, having regard to Section 4 (1) (3) of the Government
of Ireland Act 1920, Regulation 38 (1) was outside the competence of
the Northern Ireland Parliament and of the Minister who purported to
make the Regulations. This argument was accepted by the Court and the
convictions were quashed.

The applicant Government submitted that the effect of the judgment of
the Divisional Court was that failure to comply with an order of a
member of the security forces given under the Regulations to the Act
of 1922 was not an offence under that Act.

It was further submitted that by the Northern Ireland Act 1972 the
respondent Government had by law enacted that such failures to comply
with orders of its security forces were now criminal offences although
they did not constitute criminal offences at the time they took place.
It was therefore argued that the Act of 1972 was a breach of Article
7 of the Convention.

Finally, it was submitted by the applicant Government that no domestic
remedies were available for any person who might be found guilty of a
criminal offence by reason of the provisions of the 1972 Act.

II.  Submissions of the Parties on admissibility

A.   Written observations on Administrative Court

1.   Submissions of the respondent Government

The respondent Government denied that the Northern Ireland Act 1972
constituted a contravention of Article 7 of the Convention.

In their observations the Government outlined first the background to
the passing of the Act. They referred to the power conferred on the
Parliament of Northern Ireland by Section 4 of the Government of
Ireland Act 1920 to make laws for the "peace, order and good government
of Northern Ireland" subject to certain limitations; in particular,
laws in respect of the Army or in respect of military matters were
reserved for the United Kingdom Parliament. The judgment of the
Divisional Court on 23 February 1972 turned upon the interpretation of
Section 4 of the Act of 1920, which affected the extent of the powers
conferred on the Northern Ireland Parliament under the Act. The Court
was concerned in particular with the validity of Regulation 38 (1) of
the Regulations made under the Special Powers Act 1922. Accepting the
arguments put forward by the applicants in the case, the Court held
that Regulation 38 (1) was ultra vires and therefore void, since it
purported to confer powers on members of the armed forces on duty and
as such was contrary to Section 4 (1) (3) of the Act of 1920.

The respondent Government went on to state that, on the same day as the
judgment was given, the Parliament of the United Kingdom passed the
Northern Ireland Act 1972. In introducing the Bill in the House of
Commons the Attorney-General had made the following statement:

"The judgment of the High Court .... goes contrary to what was
previously thought to have been the law ... It affects solely the
exercise of powers under the Special Powers Act by the military ....
the Government decided that it would be indefensible to leave the Army
without the essential powers which enable it to discharge the duties
for which it was sent to Northern Ireland while the legal processes of
any appeal were carried through."

The Attorney-General had also given an undertaking to the House that
any prosecution then pending, which would have failed on the assumption
that the judgment of the Divisional Court was correction law, would be
abandoned and no new prosecution of that kind would be initiated in
relation to past events insofar as they were within the reasoning of
that judgment.

The respondent Government continued their observations with submissions
on the admissibility  of the application. The Government submitted that
the terms of the application were such as to raise an issue under
Article 7, particularly having regard to the undertaking of the
Attorney-General. It was stated that only did the Act not hold any
person guilty of an offence, as alleged in the application, but the
undertaking ensured a withdrawal of any proceedings which might have
been pending, and precluded any person for being prosecuted, for any
relevant offence in respect of acts or omissions prior to the enactment
of the Act of 1972.

It was further submitted that the application did not raise any issue
falling for investigation by the Commission. The Commission was
requested to decline to give any further consideration to the
application and, as a consequence, to decline to admit the application.

In the alternative, it was submitted that, if the Commission were to
decide that the terms of the 1972 Act did raise an issue falling to be
considered further under Article 7 of the Convention, the terms of the
applicant Government's undertaking demonstrated that the application
of the Act by the law enforcement authorities would be such as to avoid
any action by them which could conceivably give rise to a breach of
Article 7 by reason of the enactment of the Act. The respondent
Government submitted that in the circumstances the function of the
Commission, namely to ensure the observance of the engagements
undertaken by the High Contracting Parties, was achieved. It was also
submitted that the object of the applicant Government's claim, which
was "to ensure that the respondent Government will secure to everyone
in Northern Ireland the right and freedoms defined in Section I of the
Convention ...", was achieved. The Commission was accordingly requested
to decline to proceed further with its examination of the application.

2.   Submissions of the Government

in their observations in reply the applicant Government reminded the
Commission that Parliament was the supreme law-making body in the
United Kingdom and laws passed by it could not be overruled by the
courts. It was further pointed out that an undertaking given in the
United Kingdom Parliament by the Attorney-General did not become part
of the domestic law of the country and no court could give to it any
legal effect.

It was submitted by the applicant Government that, in order to prevent
the Northern Ireland Act 1972 from having the effect of making criminal
offences certain actions which were committed before the passing of the
Act, it would be necessary to have an express provision in the Act to
that effect.

The applicant Government maintained that the mere existence of the 1972
Act and the potential exercise of the powers contained in it
constituted a clear and sufficient breach of Article 7 of the
Convention.

B.   Oral submissions at the hearing on admissibility

1.   Submissions of the respondent Government

In their oral submissions the respondent Government maintained and
developed the arguments already put forward in their written
observations.

After explaining the circumstances in which the Northern Ireland Act
1972 came to be passed and denying the allegation of the applicant
Government that the Act was per se a breach of Article 7 of the
Convention, the Attorney-General, on behalf of the respondent
Government, made the following statement to the Commission,

"The submission, then, of the United Kingdom Government is that in fact
no one had been and no will be held guilty by reason of the 1972 Act
of a criminal offence on account of any act or omission which did not
constitute a criminal offence at the time when it was committed,
because of the undertaking which I, the Attorney-General, gave to the
House of Commons; and I tell the Commission as Attorney-General for the
United Kingdom that no one has been so held guilty and no one will be
so held guilty as a result of this Act."

At a later stage in the hearing, the Attorney-General made the
following further statement.

"I repeat formally to this Commission the undertaking which I gave in
Parliament, on behalf of the Attorney-General for Northern Ireland,
which was to the effect that any prosecution now pending which would
fail if the judgment in the Hume case stood would be arrested or
stopped and that no new prosecution of that kind would be initiated in
relation to the past.

The effect of that undertaking was and is that no prosecution which
might have failed as a result of the decision in the Hume case can now
reach the courts in relation to events which occurred prior to the
passing of that Act in 1972, and under the powers vested in me as
Attorney-General for Northern Ireland I can and shall ensure that in
the unlikely event of a private prosecution being brought for an
offence prior to this Act in 1972, that prosecution will not proceed.
I have powers to ensure that. I repeat again that no one has been held
guilty as a result of the 1972 Act for an act or omission which did not
constitute a criminal offence at the time it was committed and no one
will be so held guilty."

Submissions were made during the course of the hearing by the
respondent Government on the weight which the Commission should attach
to an undertaking publicly given on behalf of a Government of one of
the High Contracting Parties. Further arguments were also put forward
in support of the respondent Government's contention that this
application should be declared inadmissible.

It was submitted that, in view of the undertaking given by the
Attorney-General, it was clear beyond argument that the right which is
stated in Article 7 of the Convention had been secured, and that the
only reasonable course for the Commission to adopt was therefore to
devote no more time to the application. Answering the argument of the
applicant Government that this was not a ground for inadmissibility
mentioned in the Convention, the respondent Government referred to the
Commission's decision on the admissibility of application No. 214/56
(De Becker v. Belgium, Yearbook, Vol. 2, p. 214). This case was cited
as authority for the respondent Government's contention that an
application might be declared inadmissible on a ground which was not
expressly mentioned in the Convention, but which rested on a generally
recognised principle of international law. Reference was also made to
the judgment of the International Court of Justice in the Northern
Cameroons Case (I.C.J. Reports 1963, p. 15). In its judgment the Court
had stated that there were inherent limitations on the exercise of the
judicial function which the Court as a court of justice could never
ignore. The Court had gone on to add that no purpose would be served
by undertaking an examination of the merits in the case for the purpose
of reaching a decision which, for reasons already given by the Court,
ineluctably must be made.

The respondent Government submitted that the International Court of
Justice was expressing the limitation on its function as a general
principle of international law which was generally applicable to
international tribunals. The Government considered that in the present
application the ultimate decision that there had been no violation of
the Convention was one which ineluctably must be made. It was therefore
submitted that to proceed further with investigation of the case would
not be a proper discharge of the Commission's duties.
2.   Submissions of the applicant Government

The applicant Government originally maintained their allegation that
the Northern Ireland Act 1972 constituted a breach of Article 7 of the
Convention and also of Article 1 read in conjunction with Article 7.

Towards the end of the hearing, however, the Attorney-General, on
behalf of the applicant Government, made the following statement to the
Commission:

"Having regard to the comprehensive undertaking which was given
yesterday by my learned friend the Attorney-General of the United
Kingdom in relation to the non-commencement of any prosecution of the
kind which we consider to be possible following the passage of the Act
of 1972, and also his undertaking that, if anyone commenced a private
prosecution, he would prevent its being continued, which power we
accept that he has, the matters that concerned my Government in
relation to this Act are satisfied. As he has given this undertaking
before this international Commission, I feel that it is proper for me
now to withdraw our supplementary application which dealt with Article
7."

THE LAW

I.   Application No. 5310/71

1.   The Commission observes that the applicant Government have stated
that the object and purpose of the present application is to seek a
determination of the compatibility with the Convention of certain
legislative measures and administrative practices and not to obtain
compensation or reparation in respect of any wrong done to any
individual person. In particular, the applicant Government has stated
that they are bringing their applications in respect of breaches of
treaty, that is to say, to ensure the observance of the Convention, and
not as measures of diplomatic protection and that therefore the rule
of exhaustion of domestic remedies as it is to be understood in
international law under Article 26 (Art. 26) does not apply to this
application. At the hearing on admissibility, the applicant Government
were asked to indicate which elements in the situation today within the
territory of the respondent Government they considered inconsistent
with the Convention. The Commission refers to the terms of the
applicant Government's reply (reproduced on p. 19 above) according to
which the legislative measures and administrative practices defined
therein were incompatible with the respondent Government's obligations
under Articles 1, 2, 3, 5, 6 and 14 (Art. 1, 2, 3, 5, 6, 14) of the
Convention.

2.   The Commission has first examined the applicant Government's
allegation that the deaths of 22 persons referred to in the application
were caused by the security forces of the respondent Government in
breach of Article 2 (Art. 2) of the Convention and that these deaths
showed a failure by the respondent Government, as a matter of
administrative practice, to protect by law the right to life of persons
within their jurisdiction in Northern Ireland.

The respondent Government have submitted that this part of the
application should be rejected in accordance with Articles 26 and 27
(3) (Art. 26, 27-3) of the Convention on the ground of non-exhaustion
of domestic remedies. The applicant Government have submitted in reply
that Article 26 (Art. 26) does not apply in a case where an
administrative practice in violation of the Convention is alleged.

It is true that the Commission has repeatedly held, with regard to
applications introduced under Article 24 (Art. 24) of the Convention,
that the rule requiring the exhaustion of domestic remedies does not
apply where an application raises, as a general issue, the
compatibility with the Convention of "legislative measures and
administrative practices" (see the decisions on admissibility in the
First Cyprus Case (Yearbook, Vol. 2, pp. 182, 84), the First Greek Case
(Yearbook, Vol. 11, pp. 690, 726 and pp. 730, 768-770) and the Second
Greek Case (Collection of Decisions, Vol. 34, pp. 70, 73).

However, in accordance with the Commission's case-law, it is not
sufficient that the existence of such legislative measures or
administrative practices should be merely alleged; it is also
necessary, in order to exclude the application of the rule requiring
the exhaustion of domestic remedies on such grounds, that the existence
of the alleged measures or practices is shown by means of substantial
evidence (see, in this respect, the second decision on admissibility
in the First Greek Case, loc. cit at p. 770).

In the present case the Commission, having taken into account the
submissions of both Parties, does not find that the applicant
Government have offered substantial evidence to show that an
administrative practice exists as alleged by the applicant Government.

In these circumstances, the Commission could not deal with the matter
of the 22 deaths unless and until it were shown, as required by Article
26 (Art. 26), that the domestic remedies which are available under the
law of Northern Ireland have been exhausted. As the applicant
Government have not shown this to be the case, the Commission must
under Article 27 (3) (Art. 27-3), of the Convention declare this part
of the application inadmissible. The Commission observes in this
connection that the applicant Government have argued, as already
described, that where breaches of treaty are alleged, the rule of
exhaustion of remedies does not apply. Nevertheless, the Commission
finds that it is required by Article 27 (3) (Art. 27-3) of the
Convention to apply the rule as set out in Article 26 (Art. 26) to any
application whether brought under Article 24 or Article 25
(Art. 24, 25).

3.   The Commission has next considered the applicant Government's
allegations that persons in custody have been subjected to treatment
which constitutes torture and inhuman and degrading treatment and
punishment within the meaning of Article 3 (Art. 3) of the Convention
and that such treatment constituted and administrative practice.

The respondent Government have submitted that the Commission should
make a distinction between different categories of alleged
ill-treatment and should decline to proceed further with allegations
in respect of the five interrogation techniques described in paragraphs
59-67 of the Compton Report, on the ground that these techniques have
been discontinued. The respondent Government have also submitted that,
in any event, there has been a failure to exhaust the domestic remedies
with regard to all allegations of a breach of Article 3 (Art. 3) of the
Convention.

The applicant Government have objected to such a distinction between
the forms of ill-treatment alleged on the following grounds:  first,
the kinds of treatment of the persons in custody  are closely
interrelated and show a recurring pattern, further it is admitted by
the respondent Government that interrogation in depth, of which the
five techniques previously formed part, has not been discontinued;
thirdly, other forms of ill-treatment continue. The applicant
Government therefore submit that the discontinuance of certain
interrogation techniques should not be a bar to the admissibility of
the alleged breaches of Article 3 (Art. 3). In the applicant
Government's further submission the rule requiring the exhaustion of
domestic remedies in Article 26 (Art. 26) of the Convention does not
apply to these alleged breaches as they constitute an administrative
practice; or, alternatively, no effective or adequate remedy is
available in respect of the matters complained of, even if the rule
were found to be applicable.

The Commission has first considered the submissions of the Parties with
regard to the five interrogations techniques referred to in the Compton
Court. It is not in dispute that these techniques - which consisted in
hooding, noise, wall-standing, deprivation of sleep and bread and water
diet - were employed as an aid to the interrogation of persons taken
into custody pursuant to the provisions of the Special Powers Act and
the Regulations made under it. The respondent Government have also
confirmed that the use of the techniques in question by the security
forces was authorised at the time, although the respondent Government
subsequently decided that these techniques should no longer be used.

Having regard to the respondent Government's observations and, in
particular, the relevant parts of the Compton and Parker Reports, the
Commission finds that there can be no doubt that the employment of
these interrogation techniques constituted and "administrative
practice". It follows that, in accordance with the Commission's
above-mentioned jurisprudence, the rule of exhaustion of domestic
remedies does not apply to the applicant Government's allegation under
Article 3 (Art. 3) in respect of them. The allegations relating to the
five particular techniques can therefore not be declared inadmissible
under Article 26 and 27 (3) (Art. 26, 27-3) of the Convention. The
question remains, however, whether or not the Commission, as requested
by the respondent Government, should decline to proceed further with
its examination of these techniques in view of the fact that they have
been discontinued.

Without in any was pronouncing at this stage on the question whether
or not the allegations under Article 3 (Art. 3) are well-founded, the
Commission has carried out a preliminary examination of the evidence
and other material submitted by the applicant Government in support of
their allegations of forms of ill-treatment other than the five
techniques. The Commission observes first that, while generally stating
that the facts alleged are not admitted, the respondent Government have
not offered any counter-evidence or made detailed comments on the
material presented by the applicant Government.

Secondly, the Commission finds that the allegations of ill-treatment
contrary to Article 3 (Art. 3), must be examined as a whole and the
other forms of ill-treatment alleged cannot be considered in isolation
from, or without having regard to, the five previously authorised
techniques. The Commission has already held that the five techniques
constituted an administrative practice to which the domestic remedies'
rule in Article 26 (Art. 26) does not apply. On the evidence now before
it, the Commission finds that other forms of ill-treatment are alleged
as forming part of the admitted administrative practice of
interrogation in depth and that, therefore, the domestic remedies' rule
cannot be properly applied to these allegations. The further
examination of all other questions regarding the extent of such an
administrative practice and its consistency with the provisions of the
Convention relates to the merits and cannot be considered by the
Commission at the stage of admissibility.

The Commission therefore retains for an examination of the merits of
the applicant Government's allegations that the treatment of persons
in custody, in particular the methods of interrogation of such persons,
constitutes an administrative practice in breach of Article 3 (Art. 3)
of the Convention.

4.   The Commission has next considered the applicant Government's
allegation that internment without trial and detention under the
Special Powers Act and Regulations as carried out in Northern Ireland
violates Articles 5 and 6 (Art. 5, 6) of the Convention.

First, as regards Article 5 (Art. 5) the respondent Government have
referred to the right of derogation accorded to States under Article
15 (1) (Art. 15-1) of the Convention and submitted that the operation
of the powers of internment and detention in Northern Ireland did not
constitute a contravention of their obligations under the Convention
since the measures were taken in a time of public emergency threatening
the life of the nation and were strictly required by the exigencies of
the situation. The respondent Government have requested further that
the Commission should consider, as a preliminary question, the issue
whether the measures taken were measures permitted under Article 15 (1)
(Art. 15-1).

Secondly, as regards the alleged violation of Article 6 (Art. 6) of the
Convention the respondent Government have referred to the finding of
the European Court in the Lawless Case that Article 6 (Art. 6) of the
Convention was irrelevant to the proceedings in that case on the ground
that there was no "criminal charge" against Lawless. The respondent
Government have submitted that, in the light of the Court's judgment,
Article 6 (Art. 6) is equally irrelevant to the present proceedings.
Moreover, the respondent Government have rejected the applicant
Government's further argument that there has been a breach of this
Article in that interned or detained persons have been denied a civil
right to have their right to liberty considered in accordance with the
requirements of Article 6 (Art. 6) of the Convention. The respondent
Government have denied that there has, in fact, been any interference
with such a right and, in this connection, referred to proceedings
actually brought before the courts in Northern Ireland. In the
respondent Government's submission the allegation of a breach of
Article 6 (Art. 6) of the Convention should be rejected or the
Commission should decline to examine it further.

The applicant Government have stated in reply that the respondent
Government's submissions in this respect are irrelevant to the issue
of admissibility. In particular, the effects of a derogation under
Article 15 (1) (Art. 15-1) cannot be considered at the present stage.
At the same time the applicant Government add that, while admitting
that there has been at all material times in Northern Ireland a public
emergency within the meaning of the said Article, the measures taken
by the respondent Government exceeded what was and is strictly required
by the exigencies of the situation.

The Commission recalls that it has consistently held that the
provisions of Article 27 (1) and (2) (Art. 27-2) of the Convention
refer only to petitions submitted under Article 25 (Art. 25) and not
to applications made by Governments. In particular, an application
under Article 24 (Art. 24) cannot be rejected in accordance with
paragraph (2) of Article 27 (Art. 27-2) as being manifestly ill-founded
and it follows that the question whether such an application is
well-founded or not and whether or not there is a consequent breach of
the Convention are solely questions relating to the merits of the case.
Therefore, the effects of derogation made by the respondent Government
under Article 15 (Art. 15) of the Convention cannot be considered at
the present stage of admissibility. Consequently, the Commission
reserves for an examination of the merits the question whether the
measures concerned were or are justified under Article 15 (see the
decisions on the admissibility in the First Cyprus Case, Yearbook, Vol.
2, pp. 730, 768). It also follows that the Commission cannot, at the
stage of admissibility, consider the question whether or not the
provisions of Article 6 (Art. 6) are relevant to the applicant
Government's present complaint, or whether or not the allegations of
a breach of this Article are well-founded.

The Commission therefore finds that the matters relating to internment
and detention in connection with Articles 5, 6 and 15 (Art. 5, 6, 15)
of the Convention are admissible.

5.   The Commission has then considered the applicant Government's
allegation that the exercise by the respondent Government of their
powers to detain and intern persons under the Special Powers Act and
Regulations has been and is carried out with discrimination on grounds
of political opinion in violation of Article 14 (Art. 14) of the
Convention.

The respondent Government have denied that these powers have been
operated in violation of Article 14 (Art. 14) of the Convention and
stated that to exercise these powers against a person merely on grounds
of that person having had certain political views would be an improper
exercise of such powers which could be challenged by the person
concerned in the courts of Northern Ireland. The respondent Government
have submitted, in the first place, that adequate domestic remedies are
available and have not been exhausted and that this part of the
application should therefore be rejected as inadmissible under Articles
26 and 27 (3) (Art. 26, 27-3) of the Convention. Secondly, the
respondent Government have referred to their right of derogation under
Article 15 (Art. 15) of the Convention and submitted that, insofar as
any measures taken in respect of the public emergency in Northern
Ireland have effect in the fields of Article 14 (Art. 14) or any other
Article of the Convention taken in conjunction with that Article, these
measures do not constitute a contravention of the Convention. Thirdly,
the respondent Government have in this context recalled their
submissions as regards the irrelevance of Article 6 (Art. 6) to the
present proceedings and have argued that Article 14 (Art. 14) cannot
therefore be considered in connection with the rights under Article 6
(Art. 6).

The applicant Government have submitted generally that the condition
of exhaustion of domestic remedies under Article 26 (Art. 26) of the
Convention does not apply to any part of their application, the object
of which is to seek a determination of the compatibility with the
Convention of certain legislative measures and administrative
practices.

As a subsidiary argument, the applicant Government have submitted that,
even if this domestic remedies' rule is held to be applicable, the
remedies indicated by the respondent Government with regard to the
present complaints do not constitute adequate and effective remedies
for the purpose of Article 26 (Art. 26).

The Commission recalls that it has already found that the matters
relating to internment and detention in connection with Articles 5, 6
and 15 (Art. 5, 6, 15) of the Convention are admissible. It finds that
the applicant Government's allegation that the powers of internment and
detention have been operated with discrimination in violation of
Article 14 (Art. 14) of the Convention are so closely related to the
above matters that they must be dealt with on the merits. Accordingly,
the Commission retains for an examination of the merits the allegations
under Article 14 (Art. 14) with respect to the rights guaranteed under
Articles 5 and 6 (Art. 5, 6) in conjunction with Article 15 (Art. 15)
of the Convention.

6.   In this connection, the Commission observes that in their
original application and supplementary submission of 22 February 1972
the applicant Government alleged that the operation by the security
forces of the power to search homes had been and was carried out with
discrimination on the grounds of political opinion.

The applicant Government submitted that this constituted a failure by
the respondent Government to secure without discrimination to persons
within their jurisdiction the rights and freedoms conferred by Article
8 (Art. 8) of the Convention and was therefore a breach of Article 14
(Art. 14).

The Commission recalls that, at the hearing, the applicant Government
was asked to present final submissions indicating the elements in the
situation today within the territory of the respondent Government which
they considered incompatible with the Convention. In their reply the
applicant Government referred only to legislative measures and
practices in relation to Articles 1, 2, 3, 5, 6 and 14 (Art. 1, 2, 3,
5, 6, 14) but made no express reference to Article 8 (Art. 8). Having
regard to the terms of this reply and the oral submissions made on
behalf of the applicant Government at the hearing, the Commission is
bound to conclude that the allegation of a violation of Article 14
(Art. 14) of the Convention in conjunction with Article 8 (Art. 8) has
not been pursued by the applicant Government and that therefore the
Commission is not called upon to examine this allegation any further.

7.   Finally, the Commission has had regard to the applicant
Government's allegation that the legislative measures and
administrative practices complained of in connection with the alleged
breaches of Articles 2, 3, 5, 6, and 14 (Art. 2, 3, 5, 6, 14) of the
Convention constituted a separate or additional breach of Article 1
(Art. 1) of the Convention in that the respondent Government have
failed to secure to everyone within their jurisdiction the rights and
freedoms defined in those Articles.

The Commission, having noted the arguments submitted by the Parties in
this respect, reserves to an examination of the merits the question
whether there has been a breach of Article 1 (Art. 1) with regard to
those parts of the application which it has found to be admissible.

II.  Application No. 5451/72

In this application the applicant Government alleged that the Northern
Ireland Act 1972 constituted a failure by the respondent Government to
comply with the obligations imposed on it by Article 1 (Art. 1) of the
Convention, by denying the residents in Northern Ireland the rights
defined in Article 7 (Art. 7) of the Convention. The applicant
Government also submitted that the said Act in itself constituted a
breach of Article 7 (Art. 7) of the Convention in that it provided that
persons were held guilty of offences for acts and omissions which did
not constitute criminal offences under national or international law
at the time they were committed.

In view of the undertaking given at the oral hearing before the
Commission by the Attorney-General on behalf of the respondent
Government that no one would be held guilty by reason of the 1972 Act
of a criminal offence at the time it was committed, the applicant
Government have declared that the matters which concerned them in
relation to the Act are satisfied and have therefore withdrawn this
application.

Having regard, in particular, to the terms of the undertaking made by
the Attorney-General on behalf of the respondent Government, the
Commission finds that there are no reasons of a general character
affecting the observance of the Convention which would justify the
retention of this application on its list of cases.

For these reasons the Commission

Having regard to Application No. 5310/71

1.   Declares inadmissible the applicant Government's allegations
under Article 2 (Art. 2) of the Convention in relation to the deaths
of certain persons in Northern Ireland.

2.   Declares admissible and retains, without in any way prejudging
the merits of the case:

- the allegation that the treatment of persons in custody in particular
the methods of interrogation of such persons constitutes an
administrative practice in breach of Article 3 (Art. 3) of the
Convention;

- the allegations that internment without trial and detention under the
Civil Authorities (Special Powers) Act (Northern Ireland) 1922 or under
the said Rules, Regulations or Orders made thereunder constitute and
administrative practice in breach of Articles 5 and 6 (Art. 5, 6) of
the Convention in connection with Article 15 (Art. 15);

- the allegation that the exercise by the respondent Government of
their power to detain and intern persons is being carried out with
discrimination on the grounds of political opinion and thus constitutes
a breach of Article 14 (Art. 14) with respect to the rights and
freedoms guaranteed in Articles 5 and 6 (Art. 5, 6) in conjunction with
Article 15 (Art. 15) of the Convention;

- the allegation that the administrative practices complained of also
constitute a breach of Article 1 (Art. 1) of the Convention;

Having regard to Application No. 5451/72
Decides to strike this application off its list of cases.