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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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