Caso Lawless contra Irlanda, de 01/07/1961
Questions of procedure
EUROPEAN COURT OF HUMAN RIGHTS
In the "Lawless" Case,
The European Court of Human Rights, sitting, in accordance with the provisions
of Article 43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention") and of Rules
21 and 22 of Rules of the Court, as a Chamber composed of:
Mr. R. CASSIN, President
and MM. G. MARIDAKIS
E. RODENBOURG
R. McGONIGAL, ex officio member
G. BALLADORE PALLIERI
E. ARNALDS
K.F. ARIK, Judges
P. MODINOS, Registrar,
delivers the following judgment:
AS TO PROCEDURE
1. The present case was referred to the Court on 13th April 1960 by the European
Commission of Human Rights (hereinafter called "the Commission") dated 12th
April 1960. Attached to the request was the Report drawn up by the Commission in
accordance with Article 31 (art. 31) of the Convention. The case relates to the
Application submitted to the Commission under Article 25 (art. 25) of the
Convention by G. R. Lawless, a national of the Republic of Ireland, against the
Government of that State.
2. Preliminary objections and questions of procedure were raised in the present
case by both the Commission and the Irish Government, Party to the case. The
Court ruled on these questions in its Judgment of 14th November 1960.
The procedure followed up to that date is set forth in the Judgment.
3. Following that Judgment, the President of the Chamber, by an Order of 14th
November 1960, set 16th December 1960 as the latest date by which the delegates
of the Commission were to submit their Memorial and 5th February 1961 as the
latest date for submission of the Irish Government's Counter-Memorial.
Pursuant to that Order, the Commission on 16th December 1960 submitted a "Statement
with respect to the Counter-Memorial (merits of the case)", which was
communicated to the Irish Government, Party to the case, on 19th December 1960.
On 3rd February 1961, i.e. before the expiry of the allotted period, the Irish
Government submitted a document entitled "Observations by the Government of
Ireland on the Statement of the European Commission of Human Rights filed on
16th December 1960." That document was communicated to the delegates of the
Commission on 7th February 1961, whereupon the case was ready for examination of
the merits.
Before the opening of the oral proceedings, the Principal Delegate of the
Commission notified the Court, by letter to the Registrar dated 14th March 1961,
of the views of the Delegates of the Commission on some of the questions raised
by the Irish Government in their document of 3rd February 1961. The letter of
14th March 1961, a copy of which was sent to the Irish Government, was likewise
added to the file on the case.
4. Public hearings were held at Strasbourg on 7th, 8th, 10th and 11th April
1961, at which there appeared:
for the Commission:
Sir Humphrey Waldock, President of the Commission, Principal Delegate,
Mr. C. Th. Eustathiades, Vice-President,
and
Mr. S. Petren, Member of the Commission, Assistant Delegates,
for the Irish Government, Party to the case :
Mr. A. O'Keeffe, Attorney-General of Ireland, acting as Agent,
assisted by:
Mr. S. Morrissey, Barrister-at-law, Legal Adviser, Department of External
Affairs,
Mr. A. J. Hederman, Barrister-at-law, Counsel,
and by:
MM. D. O'Donovan, Chief State Solicitor,
P. Berry, Assistant Secretary-General, Department of Justice.
5. Before entering upon the merits of the case, Sir Humphrey Waldock, Principal
Delegate of the Commission, brought up certain questions of procedure made the
following submission:
"May it please the Court to rule that the Delegates of the Commission are
entitled:
(a) to consider as part of the proceedings in the case those written
observations of the Applicant on the Commission's Report contained in paragraphs
31 to 49 of the Commission's statement of 16th December 1960, as indicated on
page 15 of the Court's judgment of 14th November 1960;
(b) to make known to the Court the Applicant's point of view on any specific
points arising in the course of the debates, as indicated on page 15 of the
Court's judgment of 14th November 1960;
(c) to consider the person nominated by the Applicant to be a person available
to give such assistance to the Delegates as they may think fit to request in
order to make known to the Court the Applicant's point of view on any specific
points arising in the course of the debates."
Mr. A. O'Keeffe, acting as Agent of the Irish Government, said he would leave
the matter to the discretion of the Court.
6. On this point of procedure the Court gave the following judgment on 7th April
1961:
"The Court,
Having regard to the conclusions presented by the Delegates of the European
Commission of Human Rights at the hearing on 7th April 1961;
Taking note of the fact that the Agent of the Irish Government does not intend
to submit conclusions on the matter in question;
Whereas in its judgment of 14th November 1960 the Court declared that there was
no reason at this stage to authorise the Commission to transmit to it the
written observations of the Applicant on the Commission's Report;
Whereas in the said judgment, of which the French text only is authentic, the
Court has recognised the Commission's right to take into account ("de faire état")
the Applicant's views on its own authority, as a proper way of enlightening the
Court;
Whereas this latitude enjoyed by the Commission extends to any other views the
Commission may have obtained from the Applicant in the course of the proceedings
before the Court;
Whereas, on the other hand, the Commission is entirely free to decide by what
means it wishes to establish contact with the Applicant and give him an
opportunity to make known his views to the Commission; whereas in particular it
is free to ask the Applicant to nominate a person to be available to the
Commission's delegates; whereas it does not follow that the person in question
has any locus standi in judicio;
For these reasons,
Decides unanimously:
With regard to the conclusions under (a), that at the present stage the written
observations of the Applicant, as reproduced in paragraphs 31 to 49 of the
Commission's statement of 16th December 1960, are not to be considered as part
of the proceedings in the case;
With regard to (b) that the Commission has all latitude, in the course of
debates and in so far as it believes they may be useful to enlighten the Court,
to take into account the views of the Applicant concerning either the Report or
any other specific point which may have arisen since the lodging of the Report;
With regard to (c), that it was for the Commission, when it considered it
desirable to do so, to invite the Applicant to place some person at its disposal,
subject to the reservations indicated above."
7. The Court then heard statements, replies and submissions on matters of fact
and of law relating to the merits of the case, for the Commission: from Sir
Humphrey Waldock, Principal Delegate; for the Irish Government: from Mr. A.
O'Keeffe, Attorney-General, acting as Agent.
AS TO THE FACTS
I
1. The purpose of the Commission's request - to which is appended the Report
drawn up by the Commission in accordance with the provisions of Article 31 (art.
31) of the Convention - is to submit the case of G.R. Lawless to the Court so
that it may decide whether or not the facts of the case disclose that the Irish
Government has failed in its obligations under the Convention.
As appears from the Commission's request and from its Memorial, G.R. Lawless
alleges in his Application that, in his case, the Convention has been violated
by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an
Order made by the Minister of Justice under section 4 of Act No. 2 of 1940
amending the Offences against the State Act, 1939, he was detained without trial,
between 13th July and 11th December 1957, in a military detention camp situated
in the territory of the Republic of Ireland.
2. The facts of the case, as they appear from the Report of the Commission, the
memorials, evidence and documents laid before the Court and the statements made
by the Commission and by the Irish Government during the oral hearings before
the Court, are in substance as follows:
3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident
in Dublin (Ireland).
4. G.R. Lawless admitted before the Commission that he had become a member of
the IRA ("Irish Republican Army") in January 1956. According to his own
statements, he left the IRA in June 1956 and a splinter group of the IRA in
December 1956.
II
5. Under the Treaty establishing the Irish Free State, signed on 6th December
1921 between the United Kingdom and the Irish Free State, six counties situated
in the North of the Island of Ireland remained under British sovereignty.
6. On several occasions since the foundation of the Irish Free State, armed
groups, calling themselves the "Irish Republican Army" (IRA), have been formed,
for the avowed purpose of carrying out acts of violence to put an end to British
sovereignty in Northern Ireland. At times the activities of these groups have
been such that effective repression by the ordinary process of law was not
possible. From time to time, the legislature has, therefore, conferred upon the
Government special powers deal with the situation created by these unlawful
activities; and such powers have sometimes included the power of detention
without trial.
On 29th December 1937 the Constitution at present in force in the Irish Republic
was promulgated. In May 1938 all persons detained for political offences were
released.
When the political situation in Europe foreshadowed war, the IRA resumed its
activities and committed fresh acts of violence.
At the beginning of 1939 the IRA published documents described by it as a "declaration
of war on Great Britain". Following that declaration, the IRA, operating from
territory of the Republic of Ireland, intensified its acts of violence on
British territory.
7. In order to meet the situation created by the activities of the IRA, the
Parliament of the Republic of Ireland passed the Offences against the State Act,
1939, which came into force on 14th June 1939.
III
8. Part II of the 1939 Act defines the "activities prejudicial to the
preservation of public peace and order or to the security of the State". Part
III contains provisions relating to organisations whose activities come under
the Act and any which may therefore be declared an "unlawful organisation" by
order of the Government. Section 21 of the 1939 Act provides as follows:
"(1) It shall not be lawful for any person to be a member of an unlawful
organisation;
(2) Every person who is a member of an unlawful organisation in contravention of
this section shall be guilty of an offence under this section and shall:
(a) on summary conviction thereof, be liable to a fine not exceeding fifty
pounds, or at the discretion of the court, to imprisonment for a term not
exceeding three months or to both such fine and such imprisonment; or
(b) on conviction thereof on indictment, be liable to imprisonment for a term
not exceeding two years."
Part IV of the 1939 Act contains various provisions relating to the repression
of unlawful activities, including, in section 30, the following provision
relating to the arrest and detention of persons suspected of being concerned in
unlawful activities:
Section 30:
"(1) A member of the Gárda Síochána (if he is not in uniform on production of
his identity card if demanded) may without warrant stop, search, interrogate,
and arrest any person, or do any one or more of those things in respect of any
person, whom he suspects of having committed or being about to commit or being
or having been concerned in the commission of an offence under any section or
sub-section of this Act, or an offence which is for the time being a scheduled
offence for the purposes of Part V of this Act or whom he suspects of carrying a
document relating to the commission or intended commission of any such offence
as aforesaid.
(2) Any member of the Gárda Síochána (if he is not in uniform on production of
his identity card if demanded) may, for the purpose of the exercise of any of
the powers conferred by the next preceding sub-section of this section, stop and
search (if necessary by force) any vehicle or any ship, boat, or other vessel
which he suspects to contain a person whom he is empowered by the said sub-section
to arrest without warrant.
(3) Whenever a person is arrested under this section, he may be removed to and
detained in custody in a Gárda Síochána station, a prison, or some other
convenient place for a period of twenty-four, hours from the time of his arrest
and may, if an officer of the Gárda Síochána not below the rank of Chief
Superintendent so directs, be so detained for a further period of twenty-four
hours.
(4) A person detained under the next preceding sub-section of this section may,
at any time during such detention, be charged before the District Court or a
Special Criminal Court with an offence, or be released by direction of an
officer of the Gárda Síochána, and shall, if not so charged or released, be
released at the expiration of the detention authorised by the said sub-section.
(5) A member of the Gárda Síochána may do all or any of the following things in
respect of a person detained under this section, that is to say:
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by
a member of the Gárda Síochána of any of the powers conferred by the next
preceding sub-section of this section or shall fail or refuse to give his name
and address or shall give, in response to any such demand, a name or an address
which is false or misleading shall be guilty of an offence under this section
and shall be liable on summary conviction thereof to imprisonment for a term not
exceeding six months."
Part V of the 1939 Act is concerned with the establishment of "Special Criminal
Courts" to try persons charged with offences under the Act.
Lastly, Part VI of the 1939 Act contained provisions authorising any Minister of
State - once the Government had brought that Part of the Act into force - to
order, in certain circumstances, the arrest and detention of any person whom he
was satisfied was engaged in activities declared unlawful by the Act.
9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences
Against the State Act, the Government made an order under section 19 of the Act
that the IRA, declared an "unlawful organisation", be dissolved.
10. About 70 persons were subsequently arrested and detained under Part VI of
the Act. One of those persons brought an action in the High Court of Ireland,
challenging the validity of his detention. The High Court declared the detention
illegal and ordered the release of the person concerned by writ of habeas
corpus.
The Government had all the persons detained under the same clauses released
forthwith.
11. Taking note of the High Court's judgment, the Government tabled in
Parliament a Bill to amend Part VI of the Offences against the State Act, 1939.
The Bill, after being declared constitutional by the Supreme Court, was passed
by Parliament on 9th February 1940, becoming the Offences against the State (Amendment)
Act, 1940 (No. 2 of 1940).
This Act No. 2 of 1940 confers on Ministers of State special powers of detention
without trial, "if and whenever and so often as the Government makes and
publishes a proclamation declaring that the powers conferred by this Part of
this Act are necessary to secure the preservation of public peace and order and
that it is expedient that this Part of this Act should come into force
immediately" (section 3, sub-section (2) of the Act).
Under section 3, sub-section (4) of the Act, however, a Government proclamation
bringing into force the special powers of detention may be annulled at any time
by a simple resolution of the Lower House of the Irish Parliament.
Moreover, under section 9 of the Act both Houses of Parliament must be kept
fully informed, at regular intervals, of the manner in which the powers of
detention have been exercised.
12. The powers of detention referred to in the Act are vested in Ministers of
State. Section 4 of the Act provides as follows:
"(1) Whenever a Minister of State is of opinion that any particular person is
engaged in activities which, in his opinion, are prejudicial to the preservation
of public peace and order or to the security of the State, such Minister may by
warrant under his hand and sealed with his official seal order the arrest and
detention of such person under this section.
(2) Any member of the Gárda Síochána may arrest without warrant any person in
respect of whom a warrant has been issued by a Minister of State under the
foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section
shall be detained in a prison or other place prescribed in that behalf by
regulations made under this Part of this Act until this Part of this Act ceases
to be in force or until he is released under the subsequent provisions of this
Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished
to such person, as soon as may be after he arrives at a prison or other place of
detention prescribed in that behalf by regulations made under this Part of this
Act, a copy of the warrant issued under this section in relation to such person
and of the provisions of section 8 of this Act".
13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the
Government is required to set up, as soon as conveniently may be after the entry
into force of the powers of detention without trial, a Commission (hereinafter
referred to as "Detention Commission") to which any person arrested or detained
under the Act may apply, through the Government, to have his case considered.
The Commission is to consist of three persons, appointed by the Government, one
to be a commissioned officer of the Defence Forces with not less than seven
years' service and each of the others to be a barrister or solicitor of not less
than seven years' standing or a judge or former judge of one of the ordinary
courts. Lastly, section 8 of the Act provides that, if the Commission reports
that no reasonable grounds exist for the continued detention of the person
concerned, such person shall, with all convenient speed, be released.
IV
14. After several years during which there was very little IRA activity, there
was a renewed outbreak in 1954 and again in the second half of 1956.
In the second half of December 1956 armed attacks were made on a number of
Northern Ireland police barracks and at the end of the month a policeman was
killed. In the same month a police patrol on border roads was fired on, trees
were felled across roads and telephone wires cut, etc. In January 1957 there
were more incidents of the same kind. At the beginning of the month there was an
armed attack on Brookeborough Police Barracks during which two of the assailants
were killed; both of them came from the 26-county area. Twelve others, of whom
four were wounded, fled across the border and were arrested by the police of the
Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland,
in a public broadcast address on 6th January 1957, made a pressing appeal to the
public to put an end to these attacks.
Six days after this broadcast, namely, on 12th January 1957, the IRA carried out
an armed raid on an explosives store in the territory of the Republic of Ireland,
situated at Moortown, County Dublin, for the purpose of stealing explosives. On
6th May 1957, armed groups entered an explosives store at Swan Laois, held up
the watchman and stole a quantity of explosives.
On 18th April 1957, the main railway line from Dublin to Belfast was closed by
an explosion which caused extensive damage to the railway bridge at Ayallogue in
County Armagh, about 5 miles on the northern side of the border.
During the night of 25th-26th April, three explosions between Lurgan and
Portadown, in Northern Ireland, also damaged the same railway line.
On the night of 3rd/4th July a Northern Ireland police patrol on duty a short
distance from the border was ambushed. One policeman was shot dead and another
injured. At the scene of the ambush 87 sticks of gelignite were found to have
been placed on the road and covered with stones, with wires leading to a
detonator.
This incident occurred only eight days before the annual Orange Processions
which are widespread throughout Northern Ireland on 12th July. In the past, this
date has been particularly critical for the maintenance of peace and public
order.
V
15. The special powers of arrest and detention conferred upon the Ministers of
State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a
Proclamation of the Irish Government published in the Official Gazette on 5th
July 1957.
On 16th July 1957, the Government set up the Detention Commission provided for
in section 8 of that Act and appointed as members of that Commission an officer
of Defence Forces, a judge and a district Justice.
16. The Proclamation by which the Irish Government brought into force on 8th
July 1957 the special powers of detention provided for in Part II of the 1940
Act (No. 2) read as follows:
"The Government, in exercise of the powers conferred on them by sub-section (2)
of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of
1940), hereby declare that the powers conferred by Part II of the said Act are
necessary to secure the preservation of public peace and order and that it is
expedient that the said part of the said Act should come into force immediately."
17. By letter of 20th July 1957 the Irish Minister for External Affairs informed
the Secretary-General of the Council of Europe that Part II of the Offences
against the State Act, 1940 (No. 2) had come into force on 8th July 1957.
Paragraph 2 of that letter read as follows:
"... Insofar as the bringing into operation of Part II of the Act, which confers
special powers of arrest and detention, may involve any derogation from the
obligations imposed by the Convention for the Protection of Human Rights and
Fundamental Freedoms, I have the honour to request you to be good enough to
regard this letter as informing you accordingly, in compliance with Article 15
(3) (art. 15-3) of the Convention."
The letter pointed out that the detention of persons under the Act was
considered necessary "to prevent the commission of offences against public peace
and order and to prevent the maintaining of military or armed forces other than
those authorised by the Constitution."
The Secretary-General's attention was called to section 8 of the Act which
provides for the establishment of a Commission to which any detained person can
appeal. This Commission was set up on 16th July 1957.
18. Soon after the publication of the Proclamation of 5th July 1957 bringing
into force the powers of detention provided for under the 1940 Act, the Prime
Minister of the Government of the Republic of Ireland announced that the
Government would release any person held under that Act who undertook "to
respect the Constitution and the laws of Ireland" and "to refrain from being a
member of or assisting any organisation declared unlawful under the Offences
against the State Act, 1939".
VI
19. G.R. Lawless was first arrested with three other men on 21st September 1956
in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the
barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an
automatic pistol and 400 magazines. Lawless admitted that he was a member of the
IRA and that he had taken part in an armed raid when guns and revolvers had been
stolen. He was subsequently charged on 18th October with unlawful possession of
firearms under the Firearms Act, 1935 and under Section 21 of the Offences
against the State Act, 1939.
G.R. Lawless, together with the other accused, was sent forward for trial to the
Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the
charge of unlawful possession of arms. The trial judge had directed the jury
that the requirements for proving the accussed's guilt had not been satisfied in
that it not been conclusively shown that no competent authority had issued a
firearm certificate authorising him to be in possession of the arms concerned.
At the hearing before this Court on 26th October, the District Justice asked one
of the accused, Sean Geraghty, whether he wished to put any questions to any of
the policemen present. Sean Geraghty replied as follows:
"As a soldier of the Irish Republican Army and as leader of these men, I do not
wish to have any part in proceedings in this Court."
When asked by the Justice whether he pleaded guilty or not guilty to the charge,
he again said:
"On behalf of my comrades and myself I wish to state that any arms and
ammunition found on us were to be used against the British Forces of occupation
to bring about the re-unification of our country and no Irishman or woman of any
political persuasion had anything to fear from us. We hold that it is legal to
possess arms and also believe it is the duty of every Irishman to bear arms in
defence of his country."
Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean
Geraghty spoke for me."
Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the
1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an
attack of certain frontier posts between the Irish Republic and Northern Ireland
was found on him bearing the inscription "Infiltrate, annihilate and destroy."
On the same day his house was searched by the police who found a manuscript
document on guerilla warfare containing, inter alia, the following statements:
"The resistance movement is the armed vanguard of the Irish people fighting for
the freedom of Ireland. The strength of the movement consists in the popular
patriotic character of the movement. The basic mission of local resistance units
are the destruction of enemy installations and establishments, that is TA halls,
special huts, BA recruiting offices, border huts, depots, etc.
Attacks against enemy aerodromes and the destruction of aircraft hangars, depots
of bombs and fuel, the killing of key flying personnel and mechanics, the
killing or capture of high-ranking enemy officers and high officials of the
enemy's colonial Government and traitors to our country in their pay, that is,
British officers, police agents, touts, judges, high members of the Quisling
party, etc."
After being arrested, G.R. Lawless was charged:
(a) with possession of incriminating documents contrary to section 12 of the
1939 Act;
(b) with membership of an unlawful organisation, the IRA, contrary to section 21
of the 1939 Act.
On 16th May 1957, G.R. Lawless was brought before the Dublin District Court
together with three other men who were also charged with similar offences under
the 1939 Act. The Court convicted Lawless on the first charge and sentenced him
to one month's imprisonment; it acquitted him on the second charge. The Court
record showed that the second charge was dismissed "on the merits" of the case
but no official report of the proceedings appears to be available. The reasons
for this acquittal were not clearly established. G.R. Lawless was released on
about 16th June 1957, after having served his sentence in Mountjoy Prison,
Dublin.
20. G.R. Lawless was re-arrested on 11th July 1957 at Dun Laoghaire by Security
Officer Connor when about to embark on a ship for England. He was detained for
24 hours at Bridewell Police Station in Dublin under section 30 of the 1939 Act,
as being a suspected member of an unlawful organisation, namely the IRA.
Detective-Inspector McMahon told the Applicant on the same day that he would be
released provided that he signed an undertaking in regard to his future conduct.
No written form of the undertaking proposed was put to G.R. Lawless and its
exact terms are in dispute.
On 12th July 1957, the Chief Superintendent of Police, acting under section 30,
sub-section 3 of the 1939 Act, made an order that G.R. Lawless be detained for a
further period of 24 hours expiring at 7.45 p.m. on 13th July 1957.
At 6 a.m. on 13th July 1957, however, before Lawless' detention under section 30
of the 1939 Act had expired, he was removed from the Bridewell Police Station
and transferred to the military prison in the Curragh, Co. Kildare (known as the
"Glass House"). He arrived there at 8 a.m. on the same day and was detained from
that time under an order made on 12th July 1957 by the Minister for Justice
under section 4 of the 1940 Act. Upon his arrival at the "Glass House", he was
handed a copy of the above-mentioned detention order in which the Minister for
Justice declared that G.R. Lawless was, in his opinion, engaged in activities
prejudicial to the security of the State and he ordered his arrest and detention
under section 40 of the 1940 Act.
From the "Glass House", G.R. Lawless was transferred on 17th July 1957 to a camp
known as the "Curragh Internment Camp", which forms part of the Curragh Military
Camp and Barracks in County Kildare, and together with some 120 other persons,
was detained there without charge or trial until 11th December 1957 when he was
released.
21. On 16th August 1957 G.R. Lawless was informed that he would be released
provided he gave an undertaking in writing "to respect the Constitution and laws
of Ireland" and not to "be a member of or assist any organisation which is an
unlawful organisation under the Offences against the State Act, 1939." G.R.
Lawless declined to give this undertaking.
22. On 8th September 1957 G.R. Lawless exercised the right, conferred upon him
by section 8 of the 1940 Act, to apply to have the continuation of his detention
considered by the Detention Commission set up under the same section of that
Act. He appeared before that Commission on 17th September 1957 and was
represented by counsel and solicitors. The Detention Commission, sitting for the
first time, adopted certain rules of procedure and adjourned until 20th
September.
23. On 18th September 1957, however, G.R. Lawless' counsel also made an
application to the Irish High Court, under Article 40 of the Irish Constitution,
for a Conditional Order of habeas corpus ad subjiciendum. The object of the
application was that the Court should order the Commandant of the detention camp
to bring G.R. Lawless before the Court in order that it might examine and decide
upon the validity of detention. A Conditional Order of habeas corpus would have
the effect of requiring the Commandant to "show cause" to the High Court why he
should not comply with that Order.
The Conditional Order was granted on the same date and was served on the
Commandant giving him a period of four days to "show cause". It was also served
upon the Detention Commission. The Detention Commission sat on 20th September
1957, and decided to adjourn the hearing sine die pending the outcome of the
habeas corpus application.
24. G.R. Lawless then applied, by a motion to the High Court, to have the
Conditional Order made "absolute", notwithstanding the fact that the Commandant
of the Detention Camp had in the meantime "shown cause" opposing this
application. The Commandant had, in this connection, relied upon the order for
the Applicant's detention which had been made by the Minister for Justice.
The High Court sat from 8th to 11th October 1957 and heard full legal
submissions by counsel for both parties. On 11th October it gave judgment
allowing the "cause shown" by the camp Commandant to justify detention. The
habeas corpus application was therefore dismissed.
25. On 14th October 1957 G.R. Lawless appealed to the Supreme Court, invoking
not only the Constitution and laws of Ireland but also the European Convention
of Human Rights. On 6th November the Supreme Court dismissed G.R. Lawless'
appeal. It gave its reasoned judgment on 3rd December 1957.
The main grounds of the Supreme Court's judgment were as follows:
(a) The 1940 Act, when in draft form as a Bill, had been referred to the Supreme
Court for decision as to whether it was repugnant to the Irish Constitution. The
Supreme Court had decided that it was not repugnant and Article 34 (3) 3 of the
Constitution declared that no court had competence to question the
constitutional validity of a law which had been approved as a Bill by the
Supreme Court.
(b) The Oireachtas (i.e. the Parliament) which was the sole legislative
authority had not introduced legislation to make the Convention of Human Rights
part of the municipal law of Ireland. The Supreme Court could not, therefore,
give effect to the Convention if it should appear to grant rights other than, or
supplementary to, those provided under Irish municipal law.
(c) The appellant's period of detention under section 30 of the 1939 Act was due
to expire at 7.45 p.m. on 13th July 1957. At that time he was already being
detained under another warrant issued by the Minister for Justice and his
detention without release was quite properly continued under the second warrant.
(d) The appellant had not established a prima facie case in regard to his
allegation that he had not been told the reason for his arrest under the
Minister's warrant. An invalidity in the arrest, even if established, would not,
however, have rendered his subsequent detention unlawful whatever rights it
might otherwise have given the appellant under Irish law.
(e) The Court had already decided, when considering the 1940 Act as a Bill, that
it had no power to question the opinion of a Minister who issued a warrant for
detention under section 4 of that Act.
(f) The appellant in the habeas corpus proceedings before the High Court had
challenged the legality of the constitution of the Detention Commission. Even if
it was shown that the Commission's rulings on various procedural matters were
wrong, that would not make the appellant's detention unlawful nor would it
provide a basis for an application for habeas corpus. Section 8 of the 1940 Act
showed that the Commission was not a court and an application before it was not
a form of proceedings but no more than an enquiry of an administrative
character.
26. Meanwhile, on 8th November 1957 - that is two days after the announcement of
the Supreme Court's rejection of his appeal - G.R. Lawless had introduced his
Application before the European Commission of Human Rights, alleging that his
arrest and detention under the 1940 Act, without charge or trial, violated the
Convention and he claimed:
(a) immediate release from detention;
(b) payment of compensation and damages for his detention; and
(c) payment of all the costs and expenses of, and incidental to the proceedings
instituted by him in the Irish courts and before the Commission to secure his
release.
27. Shortly afterwards the Detention Commission resumed its consideration of the
case of G.R. Lawless under section 8 of the 1940 Act and held hearings for that
purpose on 6th and 10th December 1957. On the latter date, at the invitation of
the Attorney-General, G.R. Lawless in person before the Detention Commission
gave a verbal undertaking that he would not "engage in any illegal activities
under the Offences against the State Acts, 1939 and 1940", and on the following
day an order was made by the Minister for Justice, under section 6 of the 1940
Act, releasing the Applicant from detention.
28. The release of G.R. Lawless from detention was notified to the European
Commission of Human Rights by his solicitor in a letter dated 16th December
1957. The letter at the same time stated that G.R. Lawless intended to continue
the proceedings before the Commission with regard to (a) the claim for
compensation and damages for his detention and (b) the claim for reimbursement
of all costs and expenses in connection with the proceedings undertaken to
obtain his release.
VII
29. At the written and oral proceedings before the Court, the European
Commission of Human Rights and the Irish Government made the following
submissions:
The Commission, in its Memorial of 27th June 1960:
"May it please the Court to take into consideration the findings of the
Commission in its Report on the case of Gerard Richard Lawless and
(1) to decide:
(a) whether or not the detention of the Applicant without trial from 13th July
to 11th December 1957 under section 4 of the Offences against the State
(Amendment) Act, 1940, was in conflict with the obligations of the Respondent
Government under Articles 5 and 6 (art. 5, art. 6) of the Convention;
(b) whether or not such detention was in conflict with the obligations of the
Respondent Government under Article 7 (art. 7) of the Convention;
(2) if such detention was in conflict with the obligations of the Respondent
Government under Articles 5 and 6 (art. 5, art. 6) of the Convention, to decide:
(a) whether or not the Government's letter to the Secretary-General of 20th July
1957 was a sufficient communication for the purposes of Article 15, paragraph
(3) (art. 15-3) of the Convention;
(b) whether or not, from 13th July to 11th December 1957, there existed a public
emergency threatening the life of the nation, whithin the meaning of Article 15,
paragraph (1) (art. 15-1) of the Convention;
(c) if such an emergency did exist during that period, whether or not the
measure of detaining persons without trial under section 4 of the 1940 Act, as
it was applied by the Government, was a measure strictly required by the
exigencies of the situation;
(3) to decide whether or not the Applicant is, in any event, precluded by
Article 17 (art. 17) of the Convention from invoking the provisions of Articles
5, 6 and 7 (art. 5, art. 6, art. 7);
(4) in the light of its decisions on the questions in paragraphs 1-3 of these
submissions, to adjudge and declare:
(a) whether or not the facts disclose any breach by the Respondent Government of
its obligations under the Convention;
(b) if so, what compensation, if any, is due to the Applicant in respect of the
breach."
30. The Agent of the Irish Government, at the public hearing on 10th April 1961:
"May it please the Court to decide and declare that the answers to the questions
contained in paragraph 58 of the Commission's Memorial of 27th June 1960 are as
follows:
1. (a) That the detention of the Applicant was not in conflict with the
obligations of the Government under Articles 5 and 6 (art. 5, art. 6) of the
Convention.
(b) That such detention was not in conflict with the obligations of the
Government under Article 7 (art. 7) of the Convention.
2. (a) That the Government's letter of 20th July 1957 was a sufficient
communication for the purposes of paragraph (3) of Article 15 (art. 15-3) of the
Convention or, alternatively, that in the present case, the Government are not
by any of the provisions of the said paragraph (3) (art. 15-3) deprived from
relying on paragraph (1) of Article 15 (art. 15-1).
(b) That from 13th July 1957 to 11th December 1957 there did exist a public
emergency threatening the life of the nation, whithin the meaning of Article 15,
paragraph (1) (art. 15-1), of the Convention.
(c) That the measure of detaining persons without trial, as it was applied by
the Government, was a measure strictly required by the exigencies of the
situation.
3. That the Applicant is in any event precluded by Article 17 (art. 17) of the
Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6,
art. 7) of the Convention.
4. (a) That the facts do not disclose any breach by the Government of their
obligations under the Convention.
(b) That, by reason of the foregoing, no question of compensation arises."
THE LAW
1. Whereas it has been established that G.R. Lawless was arrested by the Irish
authorities on 11th July 1957 under sections 21 and 30 of the Offences against
the State Act (1939) No. 13; that on 13th July 1957, before the expiry for the
order for arrest made under Act No. 13 of 1939, G.R. Lawless was handed a copy
of a detention order made on 12th July 1957 by the Minister of Justice under
section 4 of the Offences against the State (Amendment) Act 1940; and that he
was subsequently detained, first in the military prison in the Curragh and then
in the Curragh Internment Camp, until his release on 11th December 1957 without
having been brought before a judge during that period;
2. Whereas the Court is not called upon to decide on the arrest of G.R. Lawless
on 11th July 1957, but only, in the light of the submissions put forward both by
the Commission and by the Irish Government, whether or not the detention of G.R.
Lawless from 13th July to 11th December 1957 under section 4 of the Offences
against the State (Amendment) Act, 1940, complied with the stipulations of the
Convention;
3. Whereas, in this connection the Irish Government has put in against the
Application of G.R. Lawless a plea in bar as to the merits derived from Article
17 (art. 17) of the Convention; whereas this plea in bar should be examined
first;
As to the plea in bar derived from Article 17 (art. 17) of the Convention.
4. Whereas Article 17 (art. 17) of the Convention provides as follows:
"Nothing in this Convention may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms set forth herein or at their
limitation to a greater extent than is provided for in the Convention".
5. Whereas the Irish Government submitted to the Commission and reaffirmed
before the Court (i) that G.R. Lawless, at the time of his arrest in July 1957,
was engaged in IRA activities; (ii) that the Commission, in paragraph 138 of its
Report, had already observed that his conduct was "such as to draw upon the
Applicant the gravest suspicion that, whether or not he was any longer a member,
he was still concerned with the activities of the IRA at the time of his arrest
in July 1957"; (iii) that the IRA was banned on account of its activity aimed at
the destruction of the rights and freedoms set forth in the Convention; that, in
July 1957, G.R. Lawless was thus concerned in activities falling within the
terms of Article 17 (art. 17) of the Convention; that he therefore no longer had
a right to rely on Articles 5, 6, 7 (art. 5, art. 6, art. 7) or any other
Article of the Convention; that no State, group or person engaged in activities
falling within the terms of Article 17 (art. 17) of the Convention may rely on
any of the provisions of the Convention; that this construction was supported by
the Commission's decision on the admissibility of the Application submitted to
it in 1957 by the German Communist Party; that, however, where Article 17 (art.
17) is applied, a Government is not released from its obligation towards other
Contracting Parties to ensure that its conduct continues to comply with the
provisions of the Convention;
6. Whereas the Commission, in the Report and in the course of the written
pleadings and oral hearings before the Court, expressed the view that Article 17
(art. 17) is not applicable in the present case; whereas the submissions of the
Commission on this point may be summarised as follows: that the general purpose
of Article 17 (art. 17) is to prevent totalitarian groups from exploiting in
their own interest the principles enunciated by the Convention; but that to
achieve that purpose it is not necessary to take away every one of the rights
and freedoms guaranteed in the Convention from persons found to be engaged in
activities aimed at the destruction of any of those rights and freedoms; that
Article 17 (art. 17) covers essentially those rights which, if invoked, would
facilitate the attempt to derive therefrom a right to engage personally in
activities aimed at the destruction of "any of the rights and freedoms set forth
in the Convention"; that the decision on the admissibility of the Application
submitted by the German Communist Party (Application No. 250/57) was perfectly
consistent with this construction of Article 17 (art. 17); that there could be
no question, in connection with that Application, of the rights set forth in
Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, since those
rights, if extended to the Communist Party, would have enabled it to engage in
the very activities referred to in Article 17 (art. 17);
Whereas, in the present case, the Commission was of the opinion that, even if G.
R. Lawless was personally engaged in IRA activities at the time of his arrest,
Article 17 (art. 17) did not preclude him from claiming the protection of
Articles 5 and 6 (art. 5, art. 6) of the Convention nor absolve the Irish
Government from observing the provisions of those Articles, which protect every
person against arbitrary arrest and detention without trial;
7. Whereas in the opinion of the Court the purpose of Article 17 (art. 17),
insofar as it refers to groups or to individuals, is to make it impossible for
them to derive from the Convention a right to engage in any activity or perform
any act aimed at destroying any of the rights and freedoms set forth in the
Convention; whereas, therefore, no person may be able to take advantage of the
provisions of the Convention to perform acts aimed at destroying the aforesaid
rights and freedoms; whereas this provision which is negative in scope cannot be
construed a contrario as depriving a physical person of the fundamental
individual rights guaranteed by Articles 5 and 6 (art. 5, art. 6) of the
Convention; whereas, in the present instance G.R. Lawless has not relied on the
Convention in order to justify or perform acts contrary to the rights and
freedoms recognised therein but has complained of having been deprived of the
guarantees granted in Articles 5 and 6 (art. 5, art. 6) of the Convention;
whereas, accordingly, the Court cannot, on this ground, accept the submissions
of the Irish Government.
As to whether the detention of G.R. Lawless without trial from 13th July to 11th
December 1957 under Section 4 of the Offences against the State (Amendment) Act
1940, conflicted with the Irish Government's obligations under Articles 5 and 6
(art. 5, art. 6) of the Convention.
8. Whereas Article 5 (art. 5) of the Convention reads as follows:
"(1) Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision of his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.
(2) Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance with the provisions of paragraph
1 (c) of this Article (art. 5-1-c) 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.
(4) Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful.
(5) Everyone who has been the victim of arrest or detention in contravention of
the provisions of this Article (art. 5) shall have an enforceable right to
compensation."
9. Whereas the Commission, in its Report, expressed the opinion that the
detention of G.R. Lawless did not fall within any of the categories of cases
listed in Article 5, paragraph 1 (art. 5-1) of the Convention and hence was not
a measure deprivative of liberty which was authorised by the said clause;
whereas it is stated in that opinion that under Article 5, paragraph 1 (art.
5-1), deprivation of liberty is authorised in six separate categories of cases
of which only those referred to in sub-paragraphs (b) (art. 5-1-b) in fine ("in
order to secure the fulfilment of any obligation prescribed by law") and (c)
(art. 5-1-c) of the said paragraph come into consideration in the present
instance, the Irish Government having invoked each of those sub-paragraphs
before the Commission as justifying the detention of G.R. Lawless; that, with
regard to Article 5, paragraph 1 (b) (art. 5-1-b) in fine, the detention of
Lawless by order of a Minister of State on suspicion of being engaged in
activities prejudicial to the preservation of public peace and order or to the
security of the State cannot be deemed to be a measure taken "in order to secure
the fulfilment of any obligation prescribed by law", since that clause does not
contemplate arrest or detention for the prevention of offences against public
peace and public order or against the security of the State but for securing the
execution of specific obligations imposed by law;
That, moreover, according to the Commission, the detention of G. R. Lawless is
not covered by Article 5, paragraph 1 (c) (art. 5-1-c), since he was not brought
before the competent judicial authority during the period under review; that
paragraph 1 (c) (art. 5-1-c) authorises the arrest or detention of a person on
suspicion of being engaged in criminal activities only when it is effected for
the purpose of bringing him before the competent judicial authority; that the
Commission has particularly pointed out in this connexion that both the English
and French versions of the said clause make it clear that the words "effected
for the purpose of bringing him before the competent judicial authority" apply
not only to the case of a person arrested or detained on "reasonable suspicion
of having committed an offence" but also to the case of a person arrested or
detained "when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so"; that, furthermore, the presence of
a comma in the French version after the words "s'il a été arrêté et détenu en
vue d'être conduit devant l'autorité judiciaire compétente" means that this
passage qualifies all the categories of arrest and detention mentioned after the
comma; that in addition, paragraph 1 (c) of Article 5 (art. 5-1-c) has to be
read in conjunction with paragraph 3 of the same Article (art. 5-3) whereby
everyone arrested or detained in accordance with the provisions of paragraph 1
(c) of the said Article (art. 5-1-c) shall be brought promptly before a judge;
that it is hereby confirmed that Article 5, paragraph 1 (c) (art. 5-1-c), allows
the arrest or detention of a person effected solely for the purpose of bringing
him before a judge;
Whereas the Commission has expressed no opinion on whether or not the detention
of G.R. Lawless was consistent with the provisions of Article 6 (art. 6) of the
Convention;
10. Whereas the Irish Government have contended before the Court:
- that the detention from 13th July to 11th December 1957 of G.R. Lawless -
whose general conduct together with a number of specific circumstances drew upon
him, in the opinion of the Commission itself (paragraph 138 of its Report), "the
gravest suspicion that he was concerned with the activities of the IRA" at the
time of his arrest in July 1957 - was not a violation of Article 5 or 6 (art. 5,
art. 6) of the Convention; whereas the Irish Government have contended that the
Convention does not require that a person arrested or detained on preventive
grounds shall be brought before a judicial authority; and that, consequently,
the detention of G.R. Lawless did not conflict with the stipulations of the
Convention; whereas on this point the Irish Government, not relying before the
Court, as they had done before the Commission, on paragraph 1 (b) of Article 5
(art. 5-1-b), have made submissions which include the following: that Article 5
paragraph 1 (c) (art. 5-1-c) refers to two entirely separate categories of cases
of deprivation of liberty - those where a person is arrested or detained "on
reasonable suspicion of having committed an offence" and those where a person is
arrested or detained "when it is reasonably considered necessary to prevent his
committing an offence, etc."; that it is clear from the wording of the said
clause that the obligation to bring the arrested or detained person before the
competent judicial authority applies only to the former category of case; that
this is the meaning of the clause, particularly in the English version;
- that the preliminary work on Article 5 (art. 5) supports this construction of
the said clause; that account must be taken of the fact that the said Article
(art. 5) is derived from a proposal submitted to the Committee of Experts by the
United Kingdom delegation in March 1950 and that the French version is
consequently only a translation of the original English text; that, as regards
paragraph 1 (c) on the Article (art. 5-1-c), the words "or when it is reasonably
considered necessary" appeared in the first draft as "or which is reasonably
considered to be necessary" and, in the English version, clearly refer to the
words "arrest or detention" and not to the phrase "effected for the purpose of
bringing him before the competent legal authority"; that this clause
subsequently underwent only drafting alterations;
- that Article 5, paragraph 3 (art. 5-3) does not conflict with this
construction of paragraph 1 (c) of the same Article (art. 5-1-c); that paragraph
3 (art. 5-3) applies only to the first category of cases mentioned in paragraph
1 (c) (art. 5-1-c) and not to cases of the arrest or detention of a person "when
it is reasonably considered necessary to prevent his committing an offence";
that this interpretation is supported by the fact that in Common Law countries a
person cannot be put on trial for having intended to commit an offence;
- that Article 5, paragraph 3 (art. 5-3), is also derived from a proposal
submitted in March 1950 by the United Kingdom delegation to the "Committee of
Experts" convened to prepare the first draft of a Convention; that the British
proposal was embodied in the draft produced by the Committee of Experts; that
this draft was then examined by a "Conference of Senior Officials" who deleted
from paragraph 3 (art. 5-3) the words "or to prevent his committing a crime";
that paragraph 3 (art. 5-3), after amendment by the Senior Officials,
accordingly read as follows:
"Anyone arrested or detained on the charge of having committed a crime, in
accordance with the provisions of paragraph 1 (c) (art. 5-1-c), shall be brought
promptly before a judge or other officer authorised by law.";
- that it follows from the foregoing that the Senior Officials intended to
exclude from Article 5, paragraph 3 (art. 5-3), the case of a person arrested to
prevent his committing a crime; that this intention on the part of the Senior
Officials is further confirmed by the following passage in their Report to the
Committee of Ministers (Doc. CM/WP 4 (50) 19, p. 14):
"The Conference considered it useful to point out that where authorised arrest
or detention is effected on reasonable suspicion of preventing the commission of
a crime, it should not lead to the introduction of a regime of a Police State.
It may, however, be necessary in certain circumstances to arrest an individual
in order to prevent his committing a crime, even if the facts which show his
intention to commit the crime do not of themselves constitute a penal offence.
In order to avoid any possible abuses of the right thus conferred on public
authorities, Article 13, para. 2 (art. 13-2), will have to be applied
strictly.";
- that it is clear from the report of the Senior Officials that they - being
aware of the danger of abuse in applying a clause which, as in the case of
Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a
person when it is reasonably considered necessary to prevent his committing an
offence - wished to obviate that danger not by means of a judicial decision but
through the strict enforcement of the rule in Article 13, paragraph 2, of the
draft, which later became Article 18 (art. 18) of Convention; and that Article 5
(art. 5) subsequently underwent only drafting alterations which, however, did
not make the meaning of the text absolutely clear or render it proof against
misinterpretation;
- whereas the Irish Government have contended that Article 6 (art. 6) of the
Convention is irrelevant to the present case, since there was no criminal charge
against Lawless;
11. Whereas the Commission in its Report and its Principal Delegate at the oral
hearing rebutted the construction placed by the Irish Government on Article 5
(art. 5) and based in part on the preparatory work; whereas the Commission
contends in the first place that, in accordance with a well-established rule
concerning the interpretation of international treaties, it is not permissible
to resort to preparatory work when the meaning of the clauses to be construed is
clear and unequivocal; and that even reference to the preparatory work can
reveal no ground for questioning the Commission's interpretation of Article 5
(art. 5); whereas, in support of its interpretation it has put forward
submissions which may be summarised as follows: that it is true that, in the
Council of Europe, Article 5 (art. 5) is derived from a proposal made to the
Committee of Experts by the United Kingdom delegation in March 1950, but that
that proposal was based on a text introduced in the United Nations by a group of
States which included not only the United Kingdom but also France; that the
United Nations text was prepared in a number of languages, including English and
French; that the British delegation, when introducing their proposal in the
Committee of Experts of the Council of Europe, put in both the French and the
English versions of the text in question; that the English version cannot
therefore be regarded as the dominant text; that on the contrary, all the
evidence goes to show that the changes made in the English version, particularly
in that of Article 5, paragraph 1 (c) (art. 5-1-c), during the preparatory work
at the Council of Europe were intended to bring it into line with the French
text, which, apart from a few drafting alterations of no importance to the
present case, was essentially the same as that finally adopted for Article 5
(art. 5) of the Convention; that this is true even of the comma after the words
"autorité judiciaire compétente", which strictly bears out the construction
placed by the Commission on Article 5, paragraph 1 (c) (art. 5-1-c); that the
preparatory work on Article 5, paragraph 3 (art. 5-3), leaves no room for doubt
about the intention of the authors of the Convention to require that everyone
arrested or detained in one or other of the circumstances mentioned in paragraph
1 (c) of the same Article (art. 5-1-c) should be brought promptly before a
judge; that this text, too, had its origin in the United Nations draft Covenant
in both languages; that the words "on the charge of having committed a crime"
were in fact deleted on 7th August 1950 by the Committee of Ministers
themselves, but only in order to bring the English text into line with the
French, which had already been given the following wording by the Conference of
Senior Officials: "Toute personne arrêtée ou détenue, dans les conditions
prévues au paragraphe 1 (c) (art. 5-1-c) etc. ..."; and that the submissions of
the Irish Government therefore receive no support from the preparatory work;
12. Whereas in the first place, the Court must point out that the rules set
forth in Article 5, paragraph 1 (b), and Article 6 (art. 5-1-b, art. 6)
respectively are irrelevant to the present proceedings, the former because G.R.
Lawless was not detained "for non-compliance with the ... order of a court" and
the latter because there was no criminal charge against him; whereas, on this
point, the Court is required to consider whether or not the detention of G.R.
Lawless from 13th July to 11th December 1957 under the 1940 Amendment Act
conflicted with the provisions of Article 5, paragraphs 1 (c) and 3 (art. 5-1-c,
art. 5-3);
13. Whereas, in this connection, the question referred to the judgment of the
Court is whether or not the provisions of Article 5, paragraphs 1 (c) and 3
(art. 5-1-c, art. 5-3), prescribe that a person arrested or detained "when it is
reasonably considered necessary to prevent his committing an offence" shall be
brought before a judge, in other words whether, in Article 5, paragraph 1 (c)
(art. 5-1-c), the expression "effected for the purpose of bringing him before
the competent judicial authority" qualifies only the words "on reasonable
suspicion of having committed an offence" or also the words "when it is
reasonably considered necessary to prevent his committing an offence";
14. Whereas the wording of Article 5, paragraph 1 (c) (art. 5-1-c), is
sufficiently clear to give an answer to this question; whereas it is evident
that the expression "effected for purpose of bringing him before the competent
legal authority" qualifies every category of cases of arrest or detention
referred to in that sub-paragraph (art. 5-1-c); whereas it follows that the said
clause permits deprivation of liberty only when such deprivation is effected for
the purpose of bringing the person arrested or detained before the competent
judicial authority, irrespective of whether such person is a person who is
reasonably suspected of having committed an offence, or a person whom it is
reasonably considered necessary to restrain from committing an offence, or a
person whom it reasonably considered necessary to restrain from absconding after
having committed an offence;
Whereas, further, paragraph 1 (c) of Article 5 (art. 5-1-c) can be construed
only if read in conjunction with paragraph 3 of the same Article (art. 5-3),
with which it forms a whole; whereas paragraph 3 (art. 5-3) stipulates
categorically that "everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought
promptly before a judge ..." and "shall be entitled to trial within a reasonable
time"; whereas it plainly entails the obligation to bring everyone arrested or
detained in any of the circumstances comtemplated by the provisions of paragraph
1 (c) (art. 5-1-c) before a judge for the purpose of examining the question of
deprivation of liberty or for the purpose of deciding on the merits; whereas
such is the plain and natural meaning of the wording of both paragraph 1 (c) and
paragraph 3 of Article 5 (art. 5-1-c, art. 5-3);
Whereas the meaning thus arrived at by grammatical analysis is fully in harmony
with the purpose of the Convention which is to protect the freedom and security
of the individual against arbitrary detention or arrest; whereas it must be
pointed out in this connexion that, if the construction placed by the Court on
the aforementioned provisions were not correct, anyone suspected of harbouring
an intent to commit an offence could be arrested and detained for an unlimited
period on the strength merely of an executive decision without its being
possible to regard his arrest or detention as a breach of the Convention;
whereas such an assumption, with all its implications of arbitrary power, would
lead to conclusions repugnant to the fundamental principles of the Convention;
whereas therefore, the Court cannot deny Article 5, paragraphs 1 (c) and 3 (art.
5-1-c, art. 5-3), the plain and natural meaning which follows both from the
precise words used and from the impression created by their context; whereas,
therefore, there is no reason to concur with the Irish Government in their
analysis of paragraph 3 (art. 5-3) seeking to show that that clause is
applicable only to the first category of cases referred to in Article 5,
paragraph 1 (c) (art. 5-1-c), to the exclusion of cases of arrest or detention
of a person "when it is reasonably considered necessary to prevent his
committing an offence";
Whereas, having ascertained that the text of Article 5, paragraphs 1 (c) and 3,
(art. 5-1-c, art. 5-3) is sufficiently clear in itself and means, on the one
hand, that every person whom "it is reasonably considered necessary to prevent
... committing an offence" may be arrested or detained only "for the purpose of
bringing him before the competent legal authority" and, on the other hand, that
once a person is arrested or detained he shall be brought before a judge and
"shall be entitled to trial within a reasonable time", and that, having also
found that the meaning of this text is in keeping with the purpose of the
Convention, the Court cannot, having regard to a generally recognised principle
regarding th interpretation of international treaties, resort to the preparatory
work;
15. Whereas it has been shown that the detention of G.R. Lawless from 13th July
to 11th December 1957 was not "effected for the purpose of bringing him before
the competent legal authority" and that during his detention he was not in fact
brought before a judge for trial "within a reasonable time"; whereas it follows
that his detention under Section 4 of the Irish 1940 Act was contrary to the
provisions of Article 5, paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the
Convention; whereas it will therefore be necessary to examine whether, in the
particular circumstances of the case, the detention was justified on other legal
grounds;
As to whether the detention of G.R. Lawless from 13th July to 11th December 1957
under Section 4 of the Offences against the State (Amendment) Act, 1940,
conflicted with the Irish Government's obligations under Article 7 (art. 7) of
the Convention.
16. Whereas the Commission referred before the Court to the renewed allegation
of G.R. Lawless that his detention constituted a violation of Article 7 (art. 7)
of the Convention; whereas the said Article (art. 7) reads as follows:
"(1) No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence was
committed.
(2) This Article (art. 7) shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was committed, was
criminal according to the general principles of law recognised by civilised
nations."
Whereas the submissions made by G.R. Lawless before the Commission were
substantially as follows: that the 1940 Act was brought into force on 8th July
1957 and that he was arrested on 11th July 1957; that is was evident from the
proceedings before the Detention Commission - which had to examine cases of
detention effected under the 1940 Act - that the Minister of State, in signing
the warrant of detention, had taken into consideration matters alleged to have
occurred before 8th July 1957; that, if the substance rather than the form of
the 1940 Act were considered, detention under that Act would constitute a
penalty for having committed an offence; that the offences to which the 1940 Act
relates were not punishable before 8th July 1957, when the Act came into force;
that, furthermore, if he had been convicted of the alleged offences by an
ordinary court, he would in all probability have been sentenced to less severe
penalties which would have been subject to review on appeal in due course of
law;
17. Whereas the Commission, in its Report, expressed the opinion that Article 7
(art. 7) was not applicable in the present case; that in particular, G.R.
Lawless was not detained as a result of a conviction on a criminal charge and
that his detention was not a "heavier penalty" within the meaning of Article 7
(art. 7); that, moreover, there was no question of section 4 of the 1940 Act
being applied retroactively, since a person was liable to be detained under that
clause only if a Minister of State was of the opinion that that person was,
after the power of detention conferred by section 4 had come into force, engaged
in activities prejudicial to the preservation of public peace and order or the
security of the State;
18. Whereas the Irish Government share the Commission's opinion on this point;
19. Whereas the proceedings show that the Irish Government detained G.R. Lawles
under the Offences against the State (Amendment) Act, 1940, for the sole purpose
of restraining him from engaging in activities prejudicial to the preservation
of public peace and order or the security of the State; whereas his detention,
being a preventive measure, cannot be deemed to be due to his having been held
guilty of a criminal offence within the meaning of Article 7 (art. 7) of the
Convention; whereas it follows that Article 7 (art. 7) has no bearing on the
case of G.R. Lawless; whereas, therefore, the Irish Government in detaining G.R.
Lawless under the 1940 Act, did not violate their obligation under Article 7
(art. 7) of the Convention.
As to whether, despite Articles 5 and 6 (art. 5, art. 6) of the Convention, the
detention of G.R. Lawless was justified by the right of derogation allowed to
the High Contracting Parties in certain exceptional circumstances under Article
15 (art. 15) of the Convention.
20. Whereas the Court is called upon to decide whether the detention of G.R.
Lawless from 13th July to 11th December 1957 under the Offences against the
State (Amendment) Act, 1940, was justified, despite Articles 5 and 6 (art. 5,
art. 6) of the Convention, by the right of derogation allowed to the High
Contracting Parties in certain exceptional circumstances under Article 15 (art.
15) of the Convention;
21. Whereas Article 15 (art. 15) reads as follows:
"(1) In time of war or other public emergency threatening the life of the nation
any High Contracting Party may take measures derogating from its obligations
under this Convention to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other
obligations under international law.
(2) No derogation from Article 2 (art. 2), except in respect of deaths resulting
from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art.
4-1, art. 7) shall be made under this provision.
(3) Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary-General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform the
Secretary-General of the Council of Europe when such measures have ceased to
operate and the provisions of the Convention are again being fully executed.";
22. Whereas it follows from these provisions that, without being released from
all its undertakings assumed in the Convention, the Government of any High
Contracting Party has the right, in case of war or public emergency threatening
the life of the nation, to take measures derogating from its obligations under
the Convention other than those named in Article 15, paragraph 2 (art. 15-2),
provided that such measures are strictly limited to what is required by the
exigencies of the situation and also that they do not conflict with other
obligations under international law; whereas it is for the Court to determine
whether the conditions laid down in Article 15 (art. 15) for the exercise of the
exceptional right of derogation have been fulfilled in the present case;
(a) As to the existence of a public emergency threatening the life of the
nation.
23. Whereas the Irish Government, by a Proclamation dated 5th July 1957 and
published in the Official Gazette on 8th July 1957, brought into force the
extraordinary powers conferred upon it by Part II of the Offences against the
State (Amendment) Act, 1940, "to secure the preservation of public peace and
order";
24. Whereas, by letter dated 20th July 1957 addressed to the Secretary-General
of the Council of Europe, the Irish Government expressly stated that "the
detention of persons under the Act is considered necessary to prevent the
commission of offences against public peace and order and to prevent the
maintaining of military or armed forces other than those authorised by the
Constitution";
25. Whereas, in reply to the Application introduced by G.R. Lawless before the
Commission, the Irish Government adduced a series of facts from which they
inferred the existence, during the period mentioned, of "a public emergency
threatening the life of the nation" within the meaning of Article 15 (art. 15);
26. Whereas, before the Commission, G.R. Lawless submitted in support of his
application that the aforesaid facts, even if proved to exist, would not have
constituted a "public emergency threatening the life of the nation" within the
meaning of Article 15 (art. 15); whereas, moreover, he disputed some of the
facts adduced by the Irish Government;
27. Whereas the Commission, following the investigation carried out by it in
accordance with Article 28 (art. 28) of the Convention, expressed a majority
opinion in its Report that in "July 1957 there existed in Ireland a public
emergency threatening the life of the nation within the meaning of Article 15,
paragraph 1 (art. 15-1), of the Convention";
28. Whereas, in the general context of Article 15 (art. 15) of the Convention,
the natural and customary meaning of the words "other public emergency
threatening the life of the nation" is sufficiently clear; whereas they refer to
an exceptional situation of crisis or emergency which affects the whole
population and constitutes a threat to the organised life of the community of
which the State is composed; whereas, having thus established the natural and
customary meaning of this conception, the Court must determine whether the facts
and circumstances which led the Irish Government to make their Proclamation of
5th July 1957 come within this conception; whereas the Court, after an
examination, find this to be the case; whereas the existence at the time of a
"public emergency threatening the life of the nation", was reasonably deduced by
the Irish Government from a combination of several factors, namely: in the first
place, the existence in the territory of the Republic of Ireland of a secret
army engaged in unconstitutional activities and using violence to attain its
purposes; secondly, the fact that this army was also operating outside the
territory of the State, thus seriously jeopardising the relations of the
Republic of Ireland with its neighbour; thirdly, the steady and alarming
increase in terrorist activities from the autumn of 1956 and throughout the
first half of 1957;
29. Whereas, despite the gravity of the situation, the Government had succeeded,
by using means available under ordinary legislation, in keeping public
institutions functioning more or less normally, but whereas the homicidal ambush
on the night 3rd to 4th July 1957 in the territory of Northern Ireland near the
border had brought to light, just before 12th July - a date, which, for
historical reasons is particularly critical for the preservation of public peace
and order - the imminent danger to the nation caused by the continuance of
unlawful activities in Northern Ireland by the IRA and various associated
groups, operating from the territory of the Republic of Ireland;
30. Whereas, in conclusion, the Irish Government were justified in declaring
that there was a public emergency in the Republic of Ireland threatening the
life of the nation and were hence entitled, applying the provisions of Article
15, paragraph 1 (art. 15-1), of Convention for the purposes for which those
provisions were made, to take measures derogating from their obligations under
the Convention;
(b) As to whether the measures taken in derogation from obligations under the
Convention were "strictly required by the exigencies of the situation".
31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High
Contracting Party may derogate from its obligations under the Convention only
"to the extent strictly required by the exigencies of the situation"; whereas it
is therefore necessary, in the present case, to examine whether the bringing
into force of Part II of the 1940 Act was a measure strictly required by the
emergency existing in 1957;
32. Whereas G.R. Lawless contended before the Commission that even if the
situation in 1957 was such as to justify derogation from obligations under the
Convention, the bringing into operation and the enforcement of Part II of the
Offences against the State (Amendment) Act 1940 were disproportionate to the
strict requirements of the situation;
33. Whereas the Irish Government, before both the Commission and the Court,
contended that the measures taken under Part II of the 1940 Act were, in the
circumstances, strictly required by the exigencies of the situation in
accordance with Article 15, paragraph 1 (art. 15-1), of the Convention;
34. Whereas while the majority of the Commission concurred with the Irish
Government's submissions on this point, some members of the Commission drew from
the facts established different legal conclusions;
35. Whereas it was submitted that in view of the means available to the Irish
Government in 1957 for controlling the activities of the IRA and its splinter
groups the Irish Government could have taken measures which would have rendered
superfluous so grave a measure as detention without trial; whereas, in this
connection, mention was made of the application of the ordinary criminal law,
the institution of special criminal courts of the type provided for by the
Offences against the State Act, 1939, or of military courts; whereas it would
have been possible to consider other measures such as the sealing of the border
between the Republic of Ireland and Northern Ireland;
36. Whereas, however, considering, in the judgment of the Court, that in 1957 th
application of the ordinary law had proved unable to check the growing danger
which threatened the Republic of Ireland; whereas the ordinary criminal courts,
or even the special criminal courts or military courts, could not suffice to
restore peace and order; whereas, in particular, the amassing of the necessary
evidence to convict persons involved in activities of the IRA and its splinter
groups was meeting with great difficulties caused by the military, secret and
terrorist character of those groups and the fear they created among the
population; whereas the fact that these groups operated mainly in Northern
Ireland, their activities in the Republic of Ireland being virtually limited to
the preparation of armed raids across the border was an additional impediment to
the gathering of sufficient evidence; whereas the sealing of the border would
have had extremely serious repercussions on the population as a whole, beyond
the extent required by the exigencies of the emergency;
Whereas it follows from the foregoing that none of the above-mentioned means
would have made it possible to deal with the situation existing in Ireland in
1957; whereas, therefore, the administrative detention - as instituted under the
Act (Amendment) of 1940 - of individuals suspected of intending to take part in
terrorist activities, appeared, despite its gravity, to be a measure required by
the circumstances;
37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940,
was subject to a number of safeguards designed to prevent abuses in the
operation of the system of administrative detention; whereas the application of
the Act was thus subject to constant supervision by Parliament, which not only
received precise details of its enforcement at regular intervals but could also
at any time, by a Resolution, annul the Government's Proclamation which had
brought the Act into force; whereas the Offences against the State (Amendment)
Act 1940, provided for the establishment of a "Detention Commission" made up of
three members, which the Government did in fact set up, the members being an
officer of the Defence Forces and two judges; whereas any person detained under
this Act could refer his case to that Commission whose opinion, if favourable to
the release of the person concerned, was binding upon the Government; whereas,
moreover, the ordinary courts could themselves compel the Detention Commission
to carry out its functions;
Whereas, in conclusion, immediately after the Proclamation which brought the
power of detention into force, the Government publicly announced that it would
release any person detained who gave an undertaking to respect the Constitution
and the Law and not to engage in any illegal activity, and that the wording of
this undertaking was later altered to one which merely required that the person
detained would undertake to observe the law and refrain from activities contrary
to the 1940 Act; whereas the persons arrested were informed immediately after
their arrest that they would be released following the undertaking in question;
whereas in a democratic country such as Ireland the existence of this guarantee
of release given publicly by the Government constituted a legal obligation on
the Government to release all persons who gave the undertaking;
Whereas, therefore, it follows from the foregoing that the detention without
trial provided for by the 1940 Act, subject to the above-mentioned safeguards,
appears to be a measure strictly required by the exigencies of the situation
within the meaning of Article 15 (art. 15) of the Convention;
38. Whereas, in the particular case of G.R. Lawless, there is nothing to show
that the powers of detention conferred upon the Irish Government by the Offences
against the State (Amendment) Act 1940, were employed against him, either within
the meaning of Article 18 (art. 18) of the Convention, for a purpose other than
that for which they were granted, or within the meaning of Article 15 (art. 15)
of the Convention, by virtue of a measure going beyond what was strictly
required by the situation at that time; whereas on the contrary, the Commission,
after finding in its Decision of 30th August 1958 on the admissibility of the
Application that the Applicant had in fact submitted his Application to it after
having exhausted the domestic remedies, observed in its Report that the general
conduct of G.R. Lawless, "his association with persons known to be active
members of the IRA, his conviction for carrying incriminating documents and
other circumstances were such as to draw upon the Applicant the gravest
suspicion that, whether or not he was any longer a member, he still was
concerned with the activities of the IRA at the time of his arrest in July 1957;
whereas the file also shows that, at the beginning of G.R. Lawless's detention
under Act No. 2 of 1940, the Irish Government informed him that he would be
released if he gave a written undertaking "to respect the Constitution of
Ireland and the Laws" and not to "be a member of or assist any organisation that
is an unlawful organisation under the Offences against the State Act, 1939";
whereas in December 1957 the Government renewed its offer in a different form,
which was accepted by G.R. Lawless, who gave a verbal undertaking before the
Detention Commission not to "take part in any activities that are illegal under
the Offences against the State Acts 1939 and 1940" and was accordingly
immediately released;
(c) As to whether the measures derogating from obligations under the Convention
were "inconsistent with ... other obligations under international law".
39. Whereas Article 15, paragraph 1 (art. 15-1), of the Convention authorises a
High Contracting Party to take measures derogating from the Convention only
provided that they "are not inconsistent with ... other obligations under
international law";
40. Whereas, although neither the Commission nor the Irish Government have
referred to this provision in the proceedings, the function of the Court, which
is to ensure the observance of the engagements undertaken by the Contracting
Parties in the Convention (Article 19 of the Convention) (art. 19), requires it
to determine proprio motu whether this condition has been fulfilled in the
present case;
41. Whereas no facts have come to the knowledge of the Court which give it cause
hold that the measure taken by the Irish Government derogating from the
Convention may have conflicted with the said Government's other obligations
under international law;
As to whether the letter of 20th July 1957 from the Irish Government to the
Secretary-General of the Council of Europe was a sufficient notification for the
purposes of Article 15, paragraph 3 (art. 15-3), of the Convention.
42. Whereas Article 15, paragraph 3 (art. 15-3), of the Convention provides that
a Contracting Party availing itself of the right of derogation under paragraph 1
of the same Article (art. 15-1) shall keep the Secretary-General of the Council
of Europe fully informed of the measures which it has taken and the reasons
therefor and shall also inform him when such measures have ceased to operate;
43. Whereas, in the present case, the Irish Government, on 20th July 1957, sent
the Secretary-General of the Council of Europe a letter informing him - as is
stated therein: "in compliance with Article 15 (3) (art. 15-3) of the
Convention" - that Part II of the Offences against the State (Amendment) Act,
1940, had been brought into force on 8th July 1957; whereas copies of the Irish
Government's Proclamation on the subject and of the 1940 Act itself were
attached to the said letter; whereas the Irish Government explained in the said
letter that the measure in question was "considered necessary to prevent the
commission of offences against public peace and order and to prevent the
maintaining of military or armed forces other than those authorised by the
Constitution";
44. Whereas G.R. Lawless contested before the Commission the Irish Government's
right to rely on the letter of 20th July 1957 as a valid notice of derogation un
Article 15, paragraph 3 (art. 15-3), of the Convention; whereas, in substance,
he contended before the Commission: that the letter had not the character of a
notice of derogation, as the Government had not sent it for the purpose of
registering a formal notice of derogation; that even if the letter were to be
regarded as constituting such a notice, it did not comply with the strict
requirements of Article 15, paragraph 3 (art. 15-3), in that it neither adduced,
as a ground for detention without trial, the existence of a time of war or other
public emergency threatening the life of the nation nor properly defined the
nature of the measure taken by the Government; whereas the Principal Delegate of
the Commission, in the proceedings before the Court, made known a third
contention of G.R. Lawless to the effect that the derogation, even if it had
been duly notified to the Secretary-General on 20th July 1957, could not be
enforced against persons within the jurisdiction of the Republic of Ireland in
respect of the period before 23rd October 1957, when it was first made public in
Ireland;
45. Whereas the Commission expressed the opinion that the Irish Government had
not delayed in bringing the enforcement of the special measures to the attention
of the Secretary-General with explicit reference to Article 15, paragraph 3
(art. 15-3), of the Convention; whereas the terms of the letter of 20th July
1957, to which were attached copies of the 1940 Act and of the Proclamation
bringing it into force, were sufficient to indicate to the Secretary-General the
nature of the measures taken and that consequently, while noting that the letter
of 20th July did not contain a detailed account of the reasons which had led the
Irish Government to take the measures of derogation, it could not say that in
the present case there had not been a sufficient compliance with the provisions
of Article 15, paragraph 3 (art. 15-3); whereas, with regard to G.R. Lawless'
third contention the Delegates of the Commission added, in the proceedings
before the Court, that Article 15, paragraph 3 (art. 15-3), of the Convention
required only that the Secretary-General of the Council of Europe be informed of
the measures of derogation taken, without obliging the State concerned to
promulgate the notice of derogation within the framework of its municipal laws;
46. Whereas the Irish Government, in their final submissions, asked the Court to
state, in accordance with the Commission's opinion, that the letter of 20th July
1957 constituted a sufficient notification for the purposes of Article 15,
paragraph 3 (art. 15-3), of the Convention or, alternatively, to declare that
there is nothing in the said paragraph 3 (art. 15-3) which, in the present case,
detracts from the Irish Government's right to rely on paragraph 1 of the said
Article 15 (art. 15-1);
47. Whereas the Court is called upon in the first instance, to examine whether,
in pursuance of paragraph 3 of Article 15 (art. 15-3) of the Convention, the
Secretary-General of the Council of Europe was duly informed both of the
measures taken and of the reason therefor; whereas the Court notes that a copy
of the Offences against the State (Amendment) Act, 1940, and a copy of the
Proclamation of 5th July, published on 8th July 1957, bringing into force Part
II of the aforesaid Act were attached to the letter of 20th July; that it was
explained in the letter of 20th July that the measures had been taken in order
"to prevent the commission of offences against public peace and order and to
prevent the maintaining of military or armed forces other than those authorised
by the Constitution"; that the Irish Government thereby gave the
Secretary-General sufficient information of the measures taken and the reasons
therefor; that, in the second place, the Irish Government brought this
information to the Secretary-General's attention only twelve days after the
entry into force of the measures derogating from their obligations under the
Convention; and that the notification was therefore made without delay; whereas,
in conclusion, the Convention does not contain any special provision to the
effect that the Contracting State concerned must promulgate in its territory the
notice of derogation addressed to the Secretary-General of the Council of
Europe;
Whereas the Court accordingly finds that, in the present case, the Irish
Government fulfilled their obligations as Party to the Convention under Article
15, paragraph 3 (art. 15-3), of the Convention;
48. For these reasons,
THE COURT
Unanimously,
(i) Dismisses the plea in bar derived by the Irish Government from Article 17
(art. 17) of the Convention;
(ii) States that Articles 5 and 6 (art. 5, art. 6) of the Convention provided no
legal foundation for the detention without trial of G.R. Lawless from 13th July
to 11th December 1957, by virtue of Article 4 of the Offences against the State
(Amendment) Act, 1940;
(iii) States that there was no breach of Article 7 (art. 7) of the Convention;
(iv) States that the detention of G.R. Lawless from 13th July to 11th Decenber
1957 was founded on the right of derogation duly exercised by the Irish
Government in pursuance of Article 15 (art. 15) of the Convention in July 1957;
(v) States that the communication addressed by the Irish Government to the
Secretary-General of the Council of Europe on 20th July 1957 constituted
sufficient notification within the meaning of Article 15, paragraph 3 (art.
15-3), of the Convention;
Decides, accordingly, that in the present case the facts found do not disclose a
breach by the Irish Government of their obligations under the European
Convention for the Protection of Human Rights and Fundamental Freedoms;
Decides, therefore, that the question of entitlement by G.R. Lawless to
compensation in respect of such a breach does not arise.
Done in French and in English, the French text being authentic, at the Council
of Europe, Strasbourg, this first day of July one thousand nine hundred and
sixty-one.
Signed: R. CASSIN President
Signed: P. MODINOS Registrar
Mr. G. MARIDAKIS, Judge, while concurring with the operative part of the
judgment, annexed thereto an individual opinion, in accordance with Rule 50,
paragraph 2 of the Rules of Court.
Initialled: R. C.
Initialled: P. M.
INDIVIDUAL OPINION OF MR. G. MARIDAKIS
The Irish Government have not violated the provisions of Article 15 (art. 15) of
the Convention.
When the State is engaged in a life and death struggle, no one can demand that
it refrain from taking special emergency measures: salus rei publicae suprema
lex est. Article 15 (art. 15) is founded on that principle.
Postulating this right of defence, the Convention provides in this Article (art.
15) that "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", provided, however, that it does so only "to
the extent strictly required by the exigencies of the situation" and "provided
that such measures are not inconsistent with its other obligations under
international law."
By "public emergency threatening the life of the nation" it is to be understood
a quite exceptional situation which imperils or might imperil the normal
operation of public policy established in accordance with the lawfully expressed
will of the citizens, in respect alike of the situation inside the country and
of relations with foreign Powers.
The Irish Government having determined that in July 1957 the activities of the
IRA had assumed the character of a public emergency threatening the life of the
nation, in order to meet this emergency, put into effect on 8th July 1957 the
1940 Act amending the Offences against the State Act, 1939.
In compliance with Article 15 (3) (art. 15-3), the Irish Government notified the
Secretary-General of the Council of Europe of their intention to bring the 1940
Act legally into force by letter of 20th July 1957, in which it wrote:
"I have the honour also to invite your attention to section 8 of the Act, which
provides for the establishment by the Government of Ireland of a Commission to
inquire into the grounds of detention of any person who applies to have his
detention investigated. The Commission envisaged by the section was established
on the 16th July 1957."
The 1940 Act involves derogation from obligations under Article 5 (1) (c) and
(3) (art. 5-1-c, art. 5-3) of the Convention, since, in contrast to that Article
(art. 5), which imposes the obligation to bring the person concerned before a
judge, the 1940 Act gives such person the right to request that the Commission
established under the Act inquire into the ground of his detention.
Nevertheless, the derogation does not go beyond the "extent strictly required by
the exigencies of the situation." The Government had always been engaged in a
struggle with the IRA. If, then, to prevent actions by the IRA calculated to
aggravate the public emergency threatening the life of the nation the Government
brought in a law authorising the arrest of any person whom they had good reason
to suspect of connections with that secret and unlawful organisation, they were
acting within the limits imposed on the State by Article 15 (art. 15) of the
Convention. The Act, moreover, does not leave an arrested person without
safeguards. A special Commission inquires into the grounds for the arrest of
such person, who is thus protected against arbitrary arrest.
It follows that the Offences against the State (Amendment) Act, 1940, was a
measure which complied with Article 15 (art. 15) of the Convention in that it
was "strictly required by the exigencies of the situation."
It remains to consider whether the conditions for arrest laid down in the 1940
Act were fulfilled in the person of the Applicant.
There is no doubt that the Applicant had been a member of the IRA. There is
likewise no doubt that the IRA was an unlawful and secret organisation which the
Irish Government had never ceased to combat.
The Applicant's arrest in July 1957 fitted into the general campaign launched by
the Irish Government to suppress the activities of that unlawful and secret
organisation. It is true that in July 1957 IRA activities were on the wane, but
that diminution was itself a deliberate policy on the part of the organisation.
To appreciate that fact at its true value, it must not be taken in isolation but
must be considered in conjunction with the IRA's previous activities, which
necessarily offered a precedent for assessing the activities the organisation
might engage in later.
Furthermore, since the Applicant was a former IRA member, the Irish Government,
suspecting that even if he had ceased to be a member he was always liable to
engage in activities fostering the aims of that organisation, applied the 1940
Act to his person legally.
In addition, out of respect for the individual, the Irish Government merely
required of the Applicant, as the condition of his release, a simple assurance
that he would in future acknowledge "the Constitution of Ireland and the laws".
That condition cannot be considered to have been contrary to the Convention.
There is nothing in the condition which offends against personal dignity or
which could be considered a breach of the obligations of States under the
Convention. It would have to be held repugnant to the Convention, for example,
if the State were to assume the power to require the Applicant to repudiate the
political beliefs for which he was fighting as a member of the IRA. Such a
requirement would certainly be contrary to Article 10 (art. 10), whereby
everyone has the right to freedom of expression and freedom to hold opinions and
to receive and impart information and ideas. But the text of that Article itself
shows that the undertaking required of the Applicant by the Irish Government as
the condition of his release, namely an undertaking to respect thenceforth the
Constitution of Ireland and the laws, was in keeping with the true spirit of the
Convention. This is apparent from the enumeration of cases where, under most of
the Articles, the State is authorised to restrict or even prevent the exercise
of the individual rights. And these cases are in fact those involving the
preservation of public safety, national security and territorial integrity and
the maintenance of order (Articles 2 (2) (c), 4 (3) (c), 5, 6, 8 (2), 9 (2) and
11 (2)) (art. 2-2-c, art. 4-3-c, art. 5, art. 6, art. 8-2, art. 9-2, art. 11-2).
Hence, if each Contracting State secures to everyone within its jurisdiction the
rights and freedoms defined in Section I of the Convention (Article 1) (art. 1)
and moreover undertakes to enforce the said rights and freedoms (Article 13)
(art. 13), the individual is bound in return, whatever his private or even his
avowed beliefs, to conduct himself loyally towards the State and cannot be
regarded as released from that obligation. This is the principle that underlies
the aforementioned reservations to and limitations of the rights set forth in
the Convention. The same spirit underlies Article 17 (art. 17) of the
Convention, and the same general legal principle was stated in the Roman maxim:
nemo ex suo delicto meliorem suam conditionem facere potest (Dig. 50.17.134
paragraph 4). (Nemo turpitudinem suam allegans auditur).
It follows from the foregoing that the Irish Government, in demanding of the
Applicant that he give an assurance that he would conduct himself in comformity
with the Constitution and the laws of Ireland, were merely reminding him of his
duty of loyalty to constituted authority and in no way infringed the rights and
freedoms set forth in the Convention, including the freedom of conscience
guaranteed by Article 9 (art. 9).
It is true that the Applicant was arrested on 11th July 1957 under the 1940 Act
and that on 16th July 1957 he was informed that he would be released provided he
gave an undertaking in writing "to respect the Constitution of Ireland and the
laws" and not to "be a member of, or assist, any organisation which is an
unlawful organisation under the Offences against the State Act, 1939."
Between 16th July and 10th December 1957 the Applicant refused to make the said
declaration, presumably because he was awaiting the outcome of the petition he
submitted on 8th September 1957, whereby he applied "to have the continuation of
his detention considered by a special Commission set up under section 8 of the
1940 Act," and also of the Application he made on 8th September 1957 to the
Irish High Court, under Article 40 of the Irish Constitution, for a Conditional
Order of habeas corpus ad subjiciendum. The High Court and, on appeal, the
Supreme Court decided against the Applicant. The Supreme Court gave its reasoned
judgment on 3rd December 1957, and the Detention Commission resumed its hearings
on 6th and 10th December 1957. The Applicant then gave the Detention Commission
a verbal undertaking not to engage in any illegal activities under the Offences
against the State Acts, 1939 and 1940.
During the period between his arrest (11th July 1957) and 10th December 1957,
the Applicant appealed to the High Court and the Supreme Court and refused,
while th matter was sub judice, to give the assurance which the Irish Government
made the condition of his release. Having so acted, the Applicant has no ground
for complaint of having been deprived of his liberty during that period.
It is apparent from what has been stated above that the 1940 Act amending that
of 1939 cannot be criticised as conflicting with Article 15 (art. 15) of the
Convention and that the measures prescribed by the Act are derogations in
conformity with the reservations formulated in Article 5 (1) (c) and (3) (art.
5-1-c, art. 5-3). It follows that there is no cause to examine the merits of the
allegation that the Irish Government violated their obligations under the latter
provisions.
On the other hand, the Applicant's Application cannot be declared inadmissible
by relying on Article 17 (art. 17) of the Convention, since that Article (art.
17) is designed to preclude any construction of the clauses of the Convention
which would pervert the rights and freedoms guaranteed therein and make them
serve tendencies or activities repugnant to the spirit of the Convention as
defined in its Preamble. The Applicant, however improper his conduct may have
been, cannot be held to have engaged in any activity forbidden by Article 17
(art. 17) such as would warrant the rejection of his Application as inadmissible
under the terms of that text.
Signed: G. MARIDAKIS
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