II Council of Europe
| Published date | 01 December 1990 |
| Date | 01 December 1990 |
| DOI | 10.1177/016934419000800407 |
| Subject Matter | Part B: Human Rights News |
Human
Rights News
II COUNCIL OF EUROPE'
A Council of Europe
On 6 November 1990 Hungary became the 24th member State of the
Council of Europe and signed the EuropeanConvention for the Protection
of Human Rights and Fundamental Freedoms and all its additional
Protocols.
On 6 November 1990 the 9th Protocol to the European Convention for
the Protection of Human Rights and Fundamental Freedoms has been
opened for signature. This Protocol entails the right of individuals, non-
governmental organizations or groups of individuals having lodged a
complaint with the European Commission of Human Rights to refer under
certain circumstances a case to the European Court of Human Rights. The
Protocol has
been
signed by the following States: Austria, Belgium, Cyprus,
Denmark, Finland, France, Hungary, Iceland, Italy, Luxembourg, Malta,
San Marino, Sweden, Switzerland and Turkey. (See for text and its
explanatory report, see Appendix III of this NQHR).
B The European Court of Human Rights
During
the
period July 1990 - November 1990 the Court delivered the
followingjudgments:
- 30 August 1990, Fox, Campbell and Hanley (United Kingdom), A.182.
The applicants were arrested in Northern Ireland under suspicion of
being terrorists under section 11 of the Northern Ireland (Emergency
Provisions) Act 1978. After being detained in a police station for
approximately 44 hours (Mr Fox and Ms Campbell) or approximately
30 hours (Mr Hartley), they were released without any charges being
brought against them. Whilst detained, Mr Fox and Ms campbell
instituted habeas corpus proceedings, but they were released before
their applications could be heard bya judge. The applicants alleged that
they had
been
victims of Article 5 (right to liberty of person) and
Article 13 (right to a remedy before a national authority in respect of
• Leo Zwaak
409
NQHR 4
/1990
alleged
breaches
of the Convention). As it did in the
Brogan
case
(judgmentof29
November 1988,
A,
145), the
Court
recognised the need
for a
proper
balance between
the
defence
of
the institutions of
democracy in common interest and the protection
of
individual rights
and
took
into account the special nature
of
terrorist crime and the
exigencies dealing with it. As regards Article 5(1)(c)
of
the Convention
(reasonable
suspicion of having committed an offence), the Court
considered
that
under
section 11 of the
Northern
Ireland (Emergency
Provisions) Act 1978 the suspicion
needed
only to be honestly held.
The
Act contains no requirement
that
it be a "reasonable suspicion" which
presupposes the existence of facts or information which would satisfy an
objective observer
that
the
person
concerned may have committed the
offence.
The
Court
held
that
what is "reasonable" depends upon all the
circumstances but, notwithstanding the difficulties inherent in dealing
with terrorist crime, the
Court
must be furnished with at least some
facts
or
informationcapable
of
satisfying it
that
the arrested person was
reasonably suspected of having committed the alleged offence.
The
Government
has
not
provided any further material on which the
suspicion against the applicants was based. Its explanations therefore do
not
meet
the minimum standard
set
by Article 5(1)(c) for judging the
reasonableness
of
asuspicion for the arrest
of
an individual. The Court
held by four votes to three
that
there
has
been
aviolation of Article
5(1) of the Convention. This being so, the Court did
not
consider it
necessary to go into the question
of
the
purpose
of
the applicant's
arrests.
The
Court
was further of the opinion
that
the sufficiency
of
the
content
and
promptness
of
the
information conveyed to arrested
persons had to
be
assessed according to the special features of each
case.
On
being taken into custody, the applicants were simply told by
the arresting officer that they were being arrested
under
section 11 of
the
Northern
Ireland (Emergency Provisions) Act 1978 on suspicion of
being terrorists. This
bare
indication of the legal basis for the arrest,
~aken
on
its own, is insufficient for the purposes
of
Article 5(2) of the
Convention. However, following their
arrest
all of the applicants were
interrogated by the police
about
their suspected involvement in specific
criminal acts
and
their suspected membership of proscribed or-
ganizations.
There
was no ground to suppose that these interrogations
were
not
such as to enable
the
applicants to understand why they had
been
arrested.
The
reasons why they were suspected of being terrorists
410
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