Margaret, Thomas, Mark, Alana, Michaela and Rossina Murray V. UK

AS TO THE ADMISSIBILITY OF

Application No. 14310/88
by Margaret MURRAY, Thomas MURRAY,
Mark MURRAY, Alana MURRAY,
Michaela MURRAY and Rossina MURRAY
against the United Kingdom

The European Commission of Human Rights sitting in private on
10 December 1991, the following members being present:

MM.C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 September 1988
by Margaret MURRAY, Thomas MURRAY, Mark MURRAY, Alana MURRAY, Michaela
MURRAY and Rossina MURRAY against the United Kingdom and registered on
24 October 1988 under file No. 14310/88;

Having regard to:

– reports provided for in Rule 47 of the Rules of Procedure of
the Commission;

– the observations submitted by the respondent Government on
5 February 1990 and 22 November 1990 and the observations
in reply submitted by the applicants on 10 April 1990 and
31 October 1990;

– the hearing of the parties on 10 December 1991;

Having deliberated;

Decides as follows:
THE FACTS

The applicants are Irish citizens, members of the same family,
and reside in Belfast, Northern Ireland. The first applicant was born
in 1938 and she is a housewife. The second applicant, born in 1935,
is her husband. The third applicant, born in 1964, is her son. The
fourth and fifth applicants are her eldest twin daughters, born in
1967. The sixth applicant is her youngest daughter, born in 1970. The
applicants are represented before the Commission by Messrs. Madden and
Finucane, Solicitors, Belfast.

The facts of the present case, as submitted by the parties, may
be summarised as follows.

A. The particular circumstances of the case

The first applicant was arrested at her home on 26 July 1982 by
a member of the armed forces under Section 14 of the Northern Ireland
(Emergency Provisions) Act 1978. She was arrested at 07.00 hours and
detained continuously until 09.40 hours when she was released without
charge. The arrest operation was carried out by Corporal D., a member
of the Women’s Royal Army Corps. Corporal D. had attended an army
briefing at 06.30 hours that day at which she was told that the first
applicant was suspected of involvement in the collection of money for
the purchase of arms for the IRA in the United States of America, an
offence under Section 21 of the 1978 Act and Section 10 of the
Prevention of Terrorism (Temporary Provisions) Act 1976. On 22 June
1982 two of the first applicant’s brothers had been convicted of arms
offences in the United States of America connected with the purchase
of weapons for the IRA. The Corporal was instructed to go to the first
applicant’s house to arrest her and to bring her back to the army
screening centre at Springfield Road in Belfast.

Corporal D., accompanied by four armed soldiers, entered the
first applicant’s house at 07.00 hours and asked her to get dressed.
Corporal D. went upstairs and told the other applicants to get up and
assemble in the living room.

The soldiers did not search the contents of the house but
recorded details concerning the interior of the home and personal
details concerning the applicants.

At 07.30 hours, when the first applicant came downstairs,
Corporal D. stated, “As a member of Her Majesty’s Forces I arrest you”.
On being asked by the first applicant under what Section, Corporal D.
replied, “Section 14”.

The first applicant was then driven in a landrover to the army
screening centre at Springfield Road. She was escorted into a building
and asked to sit for a short time in a small cubicle. At 08.05 hours
she was taken before Sergeant B. who asked her questions with a view
to completing a standard form to record, inter alia, details of the
arrest and screening procedure and personal details. The first
applicant refused to answer any questions save to give her name. The
interview ended four minutes later. She was then examined by a medical
orderly and again refused to answer any questions.

At 08.20 hours she was taken to an interview room and questioned
by a soldier in civilian clothes in the presence of Corporal D. She
was asked, inter alia, about her brothers and her contacts with them,
but she still refused to answer questions. She was photographed

without her knowledge or consent. This photograph and the personal
details about her, her family and her home were kept on record. She
was released at 09.45 hours.

The standard record form, called the screening proforma, recorded
the first applicant’s name, address, nationality, marital and tenancy
status, the chronological details about her arrest, the names of the
army officers involved, the names of the other applicants and their
relationship to her, her physique and her attitude to the interview.
Nothing was recorded under the heading “suspected offence”. It noted
that the applicant had refused to answer questions and that no
information had been gained from the interview.

The applicant subsequently brought an action for false
imprisonment against the Ministry of Defence. Her action before the
High Court was dismissed on 25 October 1985. An appeal to the Court
of Appeal was also dismissed on 20 February 1987. The applicant was
granted leave by the Court of Appeal to appeal to the House of Lords.
This appeal was rejected in a decision of 25 May 1988.

The first applicant had submitted before the courts that since
she was only lawfully arrested at 07.30 hours she had been unlawfully
detained between 07.00 and 07.30 hours. The House of Lords found that
a person is arrested from the moment he is subject to restraint and
that the first applicant was therefore under arrest from the moment
that Corporal D. identified her on entering the house at 07.00 hours.
It made no difference that the words of arrest were communicated to the
applicant at 07.30 hours. In this respect Lord Griffiths, who
delivered the judgment of the House of Lords, stated as follows:

“… Therefore, the plaintiff submits, the period of detention
before arrest was unlawful and the Ministry of Defence liable for
the tort of unlawful imprisonment during that period of half an
hour whilst she was getting dressed. If the plaintiff had been
told she was under arrest the moment she identified herself, it
would not have made the slightest difference to the sequence of
events before she left the house. It would have been wholly
unreasonable to take her off half-clad, to the army centre, and
the same half-hour would have elapsed while she gathered herself
together and completed her toilet and dressing. It would seem
a strange result that in these circumstances, whether or not she
has an action for false imprisonment should depend upon whether
the words of arrest are spoken on entering or leaving the house,
when the practical effect of the difference on the plaintiff is
non-existent.”

The first applicant had also maintained that the failure to
inform her that she was arrested until the soldiers were about to leave
the house rendered the arrest unlawful. This submission was also
rejected by the House of Lords. Lord Griffiths held as follows:

“It is a feature of the very limited power of arrest contained
in Section 14 that a member of the armed forces does not have to
tell the arrested person the offence of which he is suspected,
for it is specifically provided by Section 14(2) that it is
sufficient if he states that he is effecting the arrest as a
member of Her Majesty’s forces. Corporal D. was carrying out
this arrest in accordance with the procedures in which she had
been instructed to make a house arrest pursuant to Section 14.
This procedure appears to me to be designed to make the arrest
with the least risk of injury to those involved including both
the soldiers and the occupants of the hosue. When arrests are
made on suspicion of involvement with the IRA it would be to
close one’s eyes to the obvious not to appreciate the risk that
the arrest may be forcibly resisted.

The drill the army follow is to enter the house and search every
room for occupants. The occupants are all directed to assemble
in one room, and when the person the soldiers have come to arrest
has been identified and is ready to leave, the formal words of
arrest are spoken just before they leave the house. The army do
not carry out a search for property in the house and, in my view,
they would not be justified in doing so. The power of search is
given ‘for the purpose of arresting a person’, not for a search
for incriminating evidence. It is however a proper exercise of
the power of search for the purpose of effecting the arrest to
search every room for other occupants of the house in case there
may be those there who are disposed to resist the arrest. The
search cannot be limited solely to looking for the person to be
arrested and must also embrace a search whose object is to secure
that the arrest should be peaceable. I also regard it as an
entirely reasonable precaution that all the occupants of the
house should be asked to assemble in one room. As Corporal D.
explained in evidence, this procedure is followed because the
soldiers may be distracted by other occupants in the house
rushing from one room to another, perhaps in a state of alarm,
perhaps for the purpose of raising the alarm and to resist the
arrest. In such circumstances a tragic shooting accident might
all too easily happen with young, and often relatively
inexperienced, armed soldiers operating under conditions of
extreme tension. Your Lordships were told that the husband and
children either had commenced or were contemplating commencing,
actions for false imprisonment arising out of the fact that they
were asked to assemble in the living-room for a short period
before the plaintiff was taken from the house. That very short
period of restraint when they were asked to assemble in the
living room was a proper and necessary part of the procedure for
effecting the peaceable arrest of the plaintiff. It was a
temporary restraint of very short duration imposed not only for
the benefit of those effecting the arrest, but also for the
protection of the occupants of the house and would be wholly
insufficient to found an action for unlawful imprisonment.

It was in my opinion entirely reasonable to delay speaking the
words of arrest until the party was about to leave the house.
If words of arrest are spoken as soon as the house is entered
before any precautions have been taken to search the house and
find the other occupants, it seems to me that there is a real
risk that the alarm may be raised and an attempt made to resist
arrest, not only by those within the house but also by summoning
assistance from those in the immediate neighbourhood. When
soldiers are employed on the difficult and potentially dangerous
task of carrying out a house arrest of a person suspected of an
offence in connection with the IRA, it is I think essential that
they should have been trained in the drill they are to follow.
It would be impracticable and I think potentially dangerous to
leave it to the individual discretion of the particular soldier
making the arrest to devise his own procedures for carrying out
this unfamiliar military function. It is in everyone’s best
interest that the arrest is peaceably effected and I am satisfied
that the procedures adopted by the army are sensible, reasonable
and designed to bring about the arrest with the minimum of danger
and distress to all concerned. I would however add this rider:
that if the suspect, for any reason, refuses to accept the fact
of restraint in the house he should be informed forthwith that
he is under arrest.”

On the question of the reasons for the arrest and suspicion, the
lower courts found that Corporal D. had a genuine suspicion that the
first applicant was involved in the offence of collecting money in
Northern Ireland for arms. She was unable to recollect the questions
that had been put to the first applicant during the interview at the
army screening centre, but, at first instance, the first applicant was
recorded as having accepted that the army interviewer had been
interested in the activities of her brothers, who had been convicted
in the United States of America on arms charges connected with the
Provisional IRA. The Court of Appeal confirmed that the first
applicant was clearly suspected of having collected money and that the
interviewer had attempted to pursue that suspicion but was unable to
make any headway. Lord Justice Gibson delivering the judgment of the
Court of Appeal found as follows:

“Corporal D. who was present during the interview had very little
recollection of the course of the questions. The only other
witness as to the conduct of this interview was the plaintiff.
Her account also is sketchy, though in somewhat more detail.
What is clear from both witnesses is that the plaintiff was
deliberately unhelpful and refused to answer most of the
questions. What is certain is that she was asked about her
brothers who in the previous month had been convicted of offences
connected with the purchase of firearms in the USA for use by the
IRA and for which offences they had been sentenced to terms of
2 and 3 years imprisonment. It is clear that it was for such a
purchase that the plaintiff was suspected of having collected
money, as she stated the interviewer asked her whether she was
in contact with them. There is no doubt, therefore, that the
interviewer did attempt to pursue the subject of the suspicion
which had been the occasion for her arrest but was unable to made
any headway.”

The House of Lords upheld this conclusion of the Court of Appeal.
Lord Griffiths, delivering the judgment of the House of Lords, noted
that Corporal D. had been present at the interview:

“Corporal D. was present at the interview. She was not paying
close attention but she gave evidence that she remembered
questions about the plaintiff’s brothers and questions about
money which were obviously directed towards the offences of which
the plaintiff was suspected.”

The applicants have alleged before the Commission that these
factual conclusions cannot be sustained on the evidence in this case.
The first applicant claimed that although she realised that the army
were interested in her brothers’ activities, she had not understood
from the interview that she herself was suspected of fund raising for
the IRA.

B.The relevant domestic law and practice

The first applicant was arrested under Section 14 of the Northern
Ireland (Emergency Provisions) Act 1978 which at the relevant time
provided as follows:

“14.-(1) A member of Her Majesty’s forces on duty may arrest
without warrant, and detain for not more than four hours, a
person whom he suspects of committing, having committed or being
about to commit any offence.

(2) A person effecting an arrest under this section complies with
any rule of law requiring him to state the ground of arrest if
he states that he is effecting the arrest as a member of Her
Majesty’s forces.

(3) For the purpose of arresting a person under this section a
member of Her Majesty’s forces may enter and search any premises
or other place –

(a) where that person is, or

(b) if that person is suspected of being a terrorist
or of having committed an offence involving the
use or possession of an explosive, explosive
substance or firearm, where that person is
suspected of being.”

A similar provision had been in force since 1973 and had been
considered necessary to deal with terrorist activities in two
independent reviews (Report of the Diplock Commission 1972 which
recommended such a power and a Committee chaired by Lord Gardiner
1974/1975). Following a further independent review in 1983 by Sir
George Baker, who concluded on the suspicion question that the addition
of a requirement of reasonableness would not in fact make any
difference to the actions of the military, Section 14(1) was amended
to empower a member of the armed forces to arrest a person “who he has
reasonable grounds to suspect is committing, has committed or is about
to commit any offence”. The amendment came into force on 15 June 1987
(Section 25 and Schedule 1 of the Northern Ireland (Emergency
Provisions) Act 1987).

The scope and exercise of the Section 14 powers were considered
by the domestic courts in the proceedings in the present case. These
proceedings demonstrate that when the legality of an arrest or
detention under Section 14 is challenged (whether by way of habeas
corpus or in proceedings for damages for wrongful arrest or false
imprisonment), the burden lies on the military to justify their acts
and, in particular, to establish the following elements:

(a) compliance with the formal requirements for arrest ;

(b) the genuineness of the suspicion on which the arrest
was based ;

(c) that the powers of arrest and detention were not
used for any improper purpose such as screening or
intelligence-gathering ;

(d) that the power of search was used only to facilitate
the arrest and not for the obtaining of incriminating
evidence ;

(e) that those responsible for the arrest and detention
did not exceed the time reasonably required to reach
a decision whether to release the detainee or hand
him over to the police.

COMPLAINTS

A. The first applicant

Article 5 of the Convention

The first applicant complains that her detention on 26 July 1982
was not justified under Article 5 para. 1 of the Convention and, in
particular, did not satisfy the requirements of Article 5 para. 1 (c)
in that:

(a) it was not for the purpose of bringing her before any
competent legal authority, and

(b) it was not on reasonable suspicion of having committed an
offence.

She also complains that she was not informed promptly of the
reasons for her arrest or of any charge against her, contrary to
Article 5 para. 2. Section 14 (2) of the 1978 Act specifically
provides that a person effecting an arrest under this Section complies
with any rule of law requiring him to state the ground of arrest if he
merely states that he is effecting the arrest as a member of Her
Majesty’s armed forces.

She further complains under Article 5 para. 5 that she had no
enforceable right to compensation under the law of Northern Ireland.

Article 8

She complains that the manner in which she was treated both in
her home and at the screening centre constituted a violation of Article
8 para. 1 of the Convention. In particular she complains about the
entry into and search of her home, the recording of personal details
concerning herself and her family and the retention of those records,
including a photograph of her which was taken without her consent.

Article 13

She complains that there is no effective remedy under the law of
Northern Ireland in respect of the alleged breaches of Articles 5 and
8 of the Convention.

B. The other applicants

Article 5

These applicants complain that they were detained in their home
between 07.00 hours and 07.30 hours on 26 July 1982 in violation of
Article 5 paras. 1, 2 and 5 of the Convention.

Article 8

They complain that the manner in which they were treated at their
home amounted to a violation of Article 8 para. 1 of the Convention.
They submit that the invasion of the privacy of their home cannot be
justified under Article 8 para. 2 by reference to the arrest and
detention of the first applicant, which was unlawful under the
Convention. These complaints relate in particular to their being
required to assemble in one room of their home and the recording of
personal details about them and the retention of those records.

Article 13

They complain of a lack of an effective remedy under Northern
Irish law in respect of their grievances under Article 5 of the
Convention and their grievance under Article 8 insofar as it relates
to an invasion of the privacy of their home.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 September 1988 and
registered on 24 October 1988.

After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on 5
September 1989. It decided, pursuant to Rule 42 para. 2 (b) of its
Rules of Procedure (former version), to give notice of the application
to the respondent Government and to invite the parties to submit their
written observations on admissibility and merits. The Government’s
observations were submitted on 7 February 1990, after an extension of
the time limit fixed for that purpose. The applicants replied on
11 April 1990. The applicants withdrew complaints originally made
under Article 3 and Article 5 para. 3 of the Convention.

The Commission considered the state of proceedings in the case
on 7 September 1990 and decided to invite the parties to submit any
comments they had on the significance of the Court’s judgment in the
case of Fox, Campbell and Hartley for the admissibility of the
application (Eur. Court H.R., Fox, Campbell and Hartley judgment of 30
August 1990, Series A no. 182). The applicants submitted their
comments on 31 October 1990, which included a submission that the
Commission may deem it unnecessary to deal with the first applicant’s
complaint of a breach of Article 5 para. 1 of the Convention concerning
the purpose of her arrest if it anyway finds a breach of that
provision, the Government having failed to discharge the burden of
proving reasonableness, as required by Article 5 para. 1 (c) of the
Convention. The Government submitted their comments on 24 November
1990, after an extension of the time limit.

On 3 September 1991 the Commission decided, in accordance with
Rule 50 (b) of the Rules of Procedure, to invite the parties to submit
further observations orally at a hearing. The hearing was held on
10 December 1991, the parties being represented as follows:

For the Government:

Mr. Huw LlewellynAgent
Mr. Nicholas Bratza QCCounsel
Mr. Ronnie WeatherupCounsel

Three Government advisers also attended the hearing.

For the applicants:

Mr. Reginald Weir SCCounsel
Mr. Seamus Treacy BLCounsel
Mr. Peter MaddenSolicitor

THE LAW

1.The first applicant has complained that her detention on
26 July 1982 was in breach of Article 5 para. 1 (Art. 5-1) of the
Convention, in particular subsection (c) of that provision, as
allegedly it was not for the purpose of bringing her before a competent
legal authority or founded on any reasonable suspicion that she had
committed any criminal offence. Whilst the arresting officer may have
subjectively and honestly suspected the applicant of having committed
an offence, that suspicion has not been shown to have been objective
or reasonable, the latter degree of suspicion not having been required
by the legislation in question (cf. Eur. Court H.R., Fox, Campbell and
Hartley judgment of 30 August 1990, Series A no. 182, pp. 16-18, paras.
30-36). She also complained that she was not informed promptly of the
reasons for her arrest, contrary to Article 5 para. 2 (Art. 5-2) of the
Convention, and that she had no enforceable right to compensation in
domestic law for these matters, contrary to Article 5 para. 5
(Art. 5-5) of the Convention.

The relevant provisions of Article 5 (Art. 5) of the Convention
read as follows:

“1.Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

…

c.the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence …

…

2.Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.

…

5.Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation.”

The Government conceded that the first applicant was deprived of
her liberty, but they submitted, inter alia, that her detention was
lawful and compatible with Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention, being based on a de facto reasonable suspicion that the
applicant had committed the criminal offence of fund raising for the
IRA, connected with her brothers’ criminal convictions in the United
States of America. They also contended that the reasons for the
applicant’s arrest must have become clear to her during the course of
her interview, which would have been enough to satisfy the requirements
of Article 5 para. 2 (Art. 5-2) of the Convention (cf. aforementioned
Fox, Campbell and Hartley judgment, pp. 19-20, paras. 40-43). Finally
they submitted that as, in their view, there had been no breach of
Article 5 paras. 1 or 2 (Art. 5-1, 5-2) in this case, the applicant had
no enforceable right to compensation under Article 5 para. 5
(Art. 5-5) of the Convention.

The Commission considers that, in the light of the parties’
submissions, these aspects of the case raise complex issues of law and
fact under the Convention, the determination of which should depend on
an examination of their merits. The Commission concludes, therefore,
that these parts of the application are not manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other grounds for declaring them inadmissible have been established.

2.The other applicants also complained that the fact that they were
obliged to assemble in one room of the family home and stay there for
half an hour on 26 July 1982 amounted to an unlawful deprivation of
liberty contrary to Article 5 para. 1 (Art. 5-1) of the Convention,
without the attendant guarantees of Article 5 paras. 2 and 5
(Art. 5-2, 5-5) of the Convention. The Government contended that this
measure did not amount to a deprivation of liberty.

The Commission agrees with the Government. The Commission notes
that the purpose of the applicants’ confinement was not to arrest them,
but to ensure that the arrest of the first applicant was effected in
calm, organised conditions (cf. No. 8819/79, Dec. 19.3.81, D.R. 24
p. 158). Being confined to one room for such a short time in the
family home did not, in the circumstances of the present case, amount
to a deprivation of liberty within the meaning of Article 5 para. 1
(Art. 5-1) of the Convention (cf. also the light arrest of soldiers in
the case of Engel and Others, Eur. Court H.R., Engel and Others
judgment of 23 November 1976, pp. 25-26, para. 61). In the absence of
any deprivation of liberty there was no infringement of the applicants’
rights under Article 5 paras. 1, 2 or 5 (Art. 5-1, 5-2, 5-5) of the
Convention, and these aspects of the case must therefore be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.

3.The applicants have complained of an injustified interference
with their right to respect for private life and their home by virtue
of the arrest procedures at their home and the subsequent taking and
retention of personal details about them.

Article 8 (Art. 8) of the Convention provides as follows:

“1.Everyone has the right to respect for his private and
family life, his home and his correspondence.

2.There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”

The Government submitted, inter alia, that such measures were
necessary for the prevention of crime in the context of the fight
against terrorism in Northern Ireland (cf. Nos 8022/77, 8025/77 and
8027/77, McVeigh and Others v. the United Kingdom, Comm. Report
18.3.81, paras. 229-231).

The Commission finds it appropriate to separate the various
factual elements of this complaint:

A. Entry into and search of the applicants’ home

The Commission considers that, in the light of the parties’
submissions, this aspect of the case raises complex issues of law and
fact under the Convention, the determination of which should depend on
an examination of its merits. The Commission concludes, therefore,
that this part of the application is not manifestly ill-founded, within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.

B. Taking and retention of personal details

a) The first applicant

The Commission notes that on the screening proforma considerable
personal details were recorded and kept about the first applicant and,
in particular, that a photograph of her was taken without her knowledge
or consent (see p. 4 above). The Commission considers that this aspect
of the case also raises complex issues of law and fact requiring a
determination on the merits, no grounds for declaring it inadmissible
having been established.

b) The other applicants

The Commission observes that very little personal details were
recorded or kept about the other applicants other than their names,
address and relationship to the first applicant, this being the only
information noted about them on the screening proforma. Such
information features in several government records on most citizens in
Member States of the Council of Europe. Such data retention is an
acceptable and normal practice in modern society. In these
circumstances the Commission finds that this aspect of the case does
not disclose any appearance of an interference with the applicants’
right to respect for private life ensured by Article 8 (Art. 8) of the
Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

4.Finally the applicants have complained that they had no effective
domestic remedies for their Convention complaints, contrary to Article
13 (Art. 13) of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity.”

The Government contended that in respect of the applicants’
complaints under Article 5 (Art. 5) of the Convention, paragraph 4 of
that provision is the lex specialis on remedies and no complaint has
been made by the applicants under that provision (cf. aforementioned
Fox, Campbell and Hartley judgment, pp. 20-21, paras. 44-45 and para.
47). Moreover all the applicants’ Convention claims were unarguable
and therefore did not necessitate an Article 13 (Art. 13) remedy (cf.
Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no.
131, p. 23, para. 52).

The Commission finds it appropriate to examine the first
applicant’s complaint separately from those of the others:

A. The first applicant

The Commission considers that the first applicant’s complaint
under Article 13 (Art. 13) of the Convention is an integral part of her
other complaints, none of which can be deemed inadmissible. Certain
aspects of this complaint also raise complex issue of law and fact
under the Convention, the determination of which should depend on an
examination of its merits, no other grounds for declaring it
inadmissible having been established.

B. The other applicants

a) Their complaints under Article 5 (Art. 5) of the Convention

The Commission recalls that, according to the constant case-law
of the Convention organs, “Article 13 (Art. 13) cannot reasonably be
interpreted so as to require a remedy in domestic law in respect of any
supposed grievance under the Convention that an individual may have,
no matter how unmeritorious his complaint may be: the grievance must
be an arguable one in terms of the Convention” (Eur. Court H.R., Boyle
and Rice judgment of 27 April 1988, Series A no. 131, p. 23 para. 52).

The Commission has found the applicants’ substantive complaint
under Article 5 (Art. 5) of the Convention to be manifestly ill-founded
and, in the light of the reasons for this decision, it also finds that
the applicants have no arguable claim under Article 5 (Art. 5)
warranting an effective domestic remedy pursuant to Article 13
(Art. 13) of the Convention. It follows that this aspect of the case
is also manifestly ill-founded, within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.

b) Their complaints under Article 8 (Art. 8) of the Convention

Insofar as these applicants complained of a breach of Article 8
(Art. 8) of the Convention in relation to the entry and search of their
home, the Commission notes that domestic law provides a remedy for the
tort of unlawful trespass to property. Whilst it is true that the
applicants would probably have had little prospect of succeeding in an
action for damages against the army on this basis, this does not mean
that the necessary domestic law structures do not exist. Article 13
(Art. 13) of the Convention is not concerned with the outcome of such
procedures, but whether the remedy exists.

Insofar as the applicants complained of the recording and
retention of minor personal details about them, the Commission has
found this complaint to be manifestly ill-founded. It also finds that
in this respect the applicants have no arguable claim under Article 8
(Art. 8) of the Convention warranting an effective domestic remedy
pursuant to Article 13 (Art. 13).

It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,
all the first applicant’s complaints and the other applicants’
complaints under Article 8 (Art. 8) of the Convention concerning the entry and search of the family
home;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)