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الموضوع: LAWLESS v. IRELAND (No. 3)- 332/57 [1961] ECHR 2

  1. #11

    افتراضي

    [align=left]
    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
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #12

    افتراضي

    [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]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #13

    افتراضي

    [align=left]
    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;
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #14

    افتراضي

    [align=left]
    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
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  5. #15

    افتراضي

    [align=left]
    (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).
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  6. #16

    افتراضي

    [align=left]
    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
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

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المواضيع المتشابهه

  1. LAWLESS v. IRELAND (No. 2) - 332/57 [1961] ECHR 1
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-14-2009, 12:29 AM
  2. LAWLESS v. IRELAND (No. 1) - 332/57 [1960] ECHR 1 (14 November 1960)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 6
    آخر مشاركة: 07-14-2009, 12:27 AM

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