| |
|
 |
|
 |
|
 |
|
 |
|
  |
|
 |
|
  |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
Human Rights, Terrorism and Police Custody:
The Brogan Case*1
Antonio Tanca *2*
I.
Terrorism represents a creeping threat to western European societies. It aims at the very heart of democratic institutions. In most cases its immediate impact on the average individual is not considered sufficient, in Western Europe, to justify the adoption of exceptionally restrictive measures. Restrictive measures, generally called for in cases of war or full-fledged internal conflict, would be considered as imposing too heavy a limitation on individual rights and freedoms with the risk of playing the terrorists' game.3
Under the European Convention of Human Rights (the Convention) states have the choice between suspending of certain rights and freedoms outright, pursuant to Article 15,4 and placing a more elastic interpretation on some of its provisions in an attempt to keep within the Convention's boundaries. However, the reluctance of states to resort to Article 15 has sometimes led to interpretations whose compatibility with the Convention is doubtful.5
One of the main "targets" of state legislation in this field is Article 5, protecting personal freedom. The case I shall briefly consider focuses on the interpretation of this Article, which, as is well known, guarantees personal freedom in general terms and contains an exhaustive list of exceptions. It compels state authorities, when limiting personal freedom, to keep strictly within the boundaries of the listed exceptions.6
In 1974, the British parliament enacted the Prevention of Terrorism (Temporary Provisions) Act7 with the aim of countering terrorism more effectively. In September and October 1984, four individuals - suspected of being members of the Provisional IRA - were arrested under Section 12 of this Act and were taken to detention centres. There they were interrogated and then released without being charged, after 5 days and 11 hours, 6 days and 16.5 hours, 4 days and 6 hours, and 4 days and 11 hours respectively.8 Under Section 12, the police were entitled to arrest any person suspected of terrorist-related offences, detain him or her for a maximum of 48 hours, and, if desired, ask the competent Secretary of State for an extension of the 48-hour time limit; the Secretary empowered to grant a maximum of five additional days granted an extension in this case.9 The prolonged detention was therefore legal under British legislation.
The four persons who had been subjected to prolonged detention filed a complaint with the European Commission of Human Rights alleging that Britain had violated several paragraphs of Article 5 of the Convention, among these para.3, because, after their arrest, they had not been taken promptly before a judge (or released).10 The European Commission of Human Rights (the Commission), the first international body to review the case, maintained that only the two longest detentions contravened para.3. The European Court of Human Rights (the Court), however, held that all four cases involved a violation of Article 5 of the Convention.11
1
* European Court of Human Rights, case of Brogan and others
(10/1987/133/184-187), Judgment, 29 November 1988. To be published in
Publications of the Court, Series A, Vol. 145-B.
3 See in
this sense Klass v. Germany, Eur.Ct.H.R. A/28, paras. 49-50. An
excellent survey of the anti-terrorist legislation adopted in the main
Western European states can be found in: 3 Revue de Science Criminelle
et Droit Penal Comparé (1987) 499.
4 The
first paragraph of Article 15 reads as follows: "In time of war or
other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other
obligations under international law." Convention for the Protection
of Human Rights and Fundamental Freedoms, European Treaty Series No. 195.
On Article 15, and equivalent clauses included in other Human Rights
treaties, see R. Higgins, `Derogations under Human Rights Treaties',
BYIL (1976-77) 281-320.
5 See,
e.g., the Commission's position in McVeigh, O'Neill and Evans v.
U.K., Nos. 8022/77, 8025/77, 8027/77, 25 Decisions and Reports
(DR) 15, and the doubts raised by Trechsel in his dissenting opinion,
98. With respect to the Italian anti-terrorist legislation in force in the
1970s and the compatibility with the European Convention of the extended
terms of pre-trial detention, see Benvenuti, `La
"ragionevolezza" della detenzione preventiva nell'art. 5.3 della
Convenzione Europea dei Diritti dell'Uomo', 57
Riv.Dir.Int.(1974) at 508; Cassese, `The International
Community, Terrorism and Human Rights', in Studi in onore di Giuseppe
Sperduti (1984) 475; Tanca, `Costituzione italiana, diritti
inviolabili e carcerazione preventiva', 4 Riv. Trim. Dir. Pubb.
(1984) 921.
6 See,
e.g., Winterwerp case, Publ. Ct. A/33, para. 37.
7 The PTA
came into force on 29 November 1974. It outlawed the Irish Republican Army
(IRA) - already banned in Northern Ireland - in Great Britain and gave
special powers to the police. The Act was renewed every six months until
March 1976, when it was amended. The 1976 Act was renewed annually until
1984, when it was re-amended. The 1984 Act proscribed the Irish National
Liberation Army as well as the IRA and was also subject to renewal every
year until March 1989. On that date permanent legislation was introduced.
For a survey (and comment) on the evolution of the anti-terrorism
legislation in the United Kingdom, see C. Walker, The Prevention of
Terrorism in British Law (1986).
8 For more
details about the facts, see Brogan, supra note 1, paras.
11-24.
9 The
relevant part of Section 12 of the PTA (1984) reads as follows:
"12(1) a constable may arrest without warrant a person whom he
reasonably suspects to be:...
(b) a person who is or has been concerned in the commission,
preparation or instigation of acts of terrorism to which this Part of this
Act applies;...
(3) The acts of terrorism to which this part of this act applies are
- (a) acts of terrorism connected with the affairs of Northern
Ireland...
(4) A person arrested under this section shall not be detained in
right of the arrest for more than forty-eight hours after his arrest; but
the Secretary of State may, in any particular case, extend the period of
forty-eight hours by a period or periods specified by him.
(5) Any such further period or periods shall not exceed five days in
all."
The Home office processes applications relating to detentions in
England and Wales, the Scottish Home and Health Department those in
Scotland, and the Northern Ireland Office those in Northern
Ireland.
10 Article
5, para. 3, reads as follows: "Everyone arrested or detained in
accordance with the provisions of paragraph 1(c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by guarantees
to appear for trial." It goes without saying, however, that if the
arrested person is promptly released instead of being brought
before a judge para.3 is not violated, provided the arrest has been
carried out with a view to taking the arrestee before a judge, if the
suspicions prove founded. This is confirmed by the Court in this very
case, para. 53. The applicants had also alleged the violation of paras.
1(c), 4 and 5 of Article 5.
11 See
Court Judgment, paras. 55-62; Report of the European Commission (14
May 1987), Appls. 11209/84, 11234/84, 11266/84 and 11386/85: Terence
Brogan, Dermot Coyle, William McFadden and Michael Tracey v. United
Kingdom, paras. 106-108.
© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part
of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European
Law at the European University
Institute.
This file was last modified:
Thursday, November 11, 1999 12:28PM