[align=left]
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";
[/align]