Brannigan and McBride v. the United Kingdom, Nos. 14553/89, 14554/89, ECtHR (Plenary), 25 May 1993

Proportionality of measures derogating from the European Convention on Human Rights in time of emergency. Detention of alleged terrorists without a prompt judicial intervention. Notice of derogation under Article 15 ECHR. Margin of appreciation of Contracting States in derogating from the Convention.

Art. 5 ECHR
Art. 15 ECHR

1. The detention of suspected members of the IRA (Irish Republican Army) in Northern Ireland without a prompt judicial control does not breach Article 5, para. 3 ECHR. The Court found the existence of an emergency threatening the life of the nation in the circumstances of the case, which allows a derogation from the Convention ex Article 15 ECHR. 

2. The derogating measures adopted by the British authorities were not premature for the reason that the Government reported to the Secretary-General of the Council of Europe its wish to ensure greater compliance with the Convention obligations in the future. Such a process of constant reflection about the real need to exercise the right of derogation from the Convention complies with Article 15, para. 3 ECHR and it is implicit in the notion of proportionality.  

3. Contracting States have a wide margin of appreciation both as regards to the decision to call a state of emergency pursuant to Article 15 ECHR and as regards to the choice of the measures needed to face it. However, national authorities do not enjoy an unlimited power in this respect. It is for the Court to rule whether the measures adopted have gone beyond the extent strictly required by the exigencies of the situation and if adequate safeguards have been provided against potential abuses. In doing so, the Court must take into consideration the nature of the rights affected by the derogation, the circumstances leading to the emergency situation and its duration.

4. The public and formal statement of the Home Secretary to the House of Commons about the existence of an emergency situation in Northern Ireland is well in keeping with the notion of an “official proclamation” ex Article 4 of the 1966 UN International Covenant on Civil and Political Rights. Consequently, the Court found that the derogating measures adopted by the British Government were not inconsistent with United Kingdom’s other obligations under international law and did not breached Article 5, para. 3 of the Convention. 

The derogation notice invoked in this case had closely followed the Brogan and Others v. the United Kingdom judgment, where the British Government had been found to have breached Article 5, para. 3 of the Convention, as the applicants had not been brought promptly before a judge.