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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
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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";
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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;
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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
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(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).
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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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