(2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation
THE LAW 1. Whereas it has been established that G.R. Lawless was arrested by the Irish authorities on 11th July 1957 under sections 21 and 30 of the Offences against the State Act (1939) No. 13; that on 13th July 1957, before the expiry for the order for arrest made under Act No. 13 of 1939, G.R. Lawless was handed a copy of a detention order made on 12th July 1957 by the Minister of Justice under section 4 of the Offences against the State (Amendment) Act 1940; and that he was subsequently detained, first in the military prison in the Curragh and then in the Curragh Internment Camp, until his release on 11th December 1957 without having been brought before a judge during that period; 2. Whereas the Court is not called upon to decide on the arrest of G.R. Lawless on 11th July 1957, but only, in the light of the submissions put forward both by the Commission and by the Irish Government, whether or not 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, complied with the stipulations of the Convention; 3. Whereas, in this connection the Irish Government has put in against the Application of G.R. Lawless a plea in bar as to the merits derived from Article 17 (art. 17) of the Convention; whereas this plea in bar should be examined first; As to the plea in bar derived from Article 17 (art. 17) of the Convention. 4. Whereas Article 17 (art. 17) of the Convention provides as follows: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". 5. Whereas the Irish Government submitted to the Commission and reaffirmed before the Court (i) that G.R. Lawless, at the time of his arrest in July 1957, was engaged in IRA activities; (ii) that the Commission, in paragraph 138 of its Report, had already observed that his conduct was "such as to draw upon the Applicant the gravest suspicion that, whether or not he was any longer a member, he was still concerned with the activities of the IRA at the time of his arrest in July 1957"; (iii) that the IRA was banned on account of its activity aimed at the destruction of the rights and freedoms set forth in the Convention; that, in July 1957, G.R. Lawless was thus concerned in activities falling within the terms of Article 17 (art. 17) of the Convention; that he therefore no longer had a right to rely on Articles 5, 6, 7 (art. 5, art. 6, art. 7) or any other Article of the Convention; that no State, group or person engaged in activities falling within the terms of Article 17 (art. 17) of the Convention may rely on any of the provisions of the Convention; that this construction was supported by the Commission's decision on the admissibility of the Application submitted to it in 1957 by the German Communist Party; that, however, where Article 17 (art. 17) is applied, a Government is not released from its obligation towards other Contracting Parties to ensure that its conduct continues to comply with the provisions of the Convention; 6. Whereas the Commission, in the Report and in the course of the written pleadings and oral hearings before the Court, expressed the view that Article 17 (art. 17) is not applicable in the present case; whereas the submissions of the Commission on this point may be summarised as follows: that the general purpose of Article 17 (art. 17) is to prevent totalitarian groups from exploiting in their own interest the principles enunciated by the Convention; but that to achieve that purpose it is not necessary to take away every one of the rights and freedoms guaranteed in the Convention from persons found to be engaged in activities aimed at the destruction of any of those rights and freedoms; that Article 17 (art. 17) covers essentially those rights which, if invoked, would facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of "any of the rights and freedoms set forth in the Convention"; that the decision on the admissibility of the Application submitted by the German Communist Party (Application No. 250/57) was perfectly consistent with this construction of Article 17 (art. 17); that there could be no question, in connection with that Application, of the rights set forth in Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, since those rights, if extended to the Communist Party, would have enabled it to engage in the very activities referred to in Article 17 (art. 17); Whereas, in the present case, the Commission was of the opinion that, even if G. R. Lawless was personally engaged in IRA activities at the time of his arrest, Article 17 (art. 17) did not preclude him from claiming the protection of Articles 5 and 6 (art. 5, art. 6) of the Convention nor absolve the Irish Government from observing the provisions of those Articles, which protect every person against arbitrary arrest and detention without trial; 7. Whereas in the opinion of the Court the purpose of Article 17 (art. 17), insofar as it refers to groups or to individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; whereas, therefore, no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms; whereas this provision which is negative in scope cannot be construed a contrario as depriving a physical person of the fundamental individual rights guaranteed by Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, in the present instance G.R. Lawless has not relied on the Convention in order to justify or perform acts contrary to the rights and freedoms recognised therein but has complained of having been deprived of the guarantees granted in Articles 5 and 6 (art. 5, art. 6) of the Convention; whereas, accordingly, the Court cannot, on this ground, accept the submissions of the Irish Government. As to whether the detention of G.R. Lawless without trial 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 Articles 5 and 6 (art. 5, art. 6) of the Convention. 8. Whereas Article 5 (art. 5) of the Convention reads 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: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (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. (3) 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 or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." 9. Whereas the Commission, in its Report, expressed the opinion that the detention of G.R. Lawless did not fall within any of the categories of cases listed in Article 5, paragraph 1 (art. 5-1) of the Convention and hence was not a measure deprivative of liberty which was authorised by the said clause; whereas it is stated in that opinion that under Article 5, paragraph 1 (art. 5-1), deprivation of liberty is authorised in six separate categories of cases of which only those referred to in sub- paragraphs (b) (art. 5-1-b) in fine ("in order to secure the fulfilment of any obligation prescribed by law ") and (c) (art. 5-1-c) of the said paragraph come into consideration in the present instance, the Irish Government having invoked each of those sub- paragraphs before the Commission as justifying the detention of G.R. Lawless; that, with regard to Article 5, paragraph 1 (b) (art. 5-1-b) in fine, the detention of Lawless by order of a Minister of State on suspicion of being engaged in activities prejudicial to the preservation of public peace and order or to the security of the State cannot be deemed to be a measure taken "in order to secure the fulfilment of any obligation prescribed by law ", since that clause does not contemplate arrest or detention for the prevention of offences against public peace and public order or against the security of the State but for securing the execution of specific obligations imposed by law; That, moreover, according to the Commission, the detention of G. R. Lawless is not covered by Article 5, paragraph 1 (c) (art. 5-1-c), since he was not brought before the competent judicial authority during the period under review; that paragraph 1 (c) (art. 5-1-c) authorises the arrest or detention of a person on suspicion of being engaged in criminal activities only when it is effected for the purpose of bringing him before the competent judicial authority; that the Commission has particularly pointed out in this connexion that both the English and French versions of the said clause make it clear that the words "effected for the purpose of bringing him before the competent judicial authority" apply not only to the case of a person arrested or detained on "reasonable suspicion of having committed an offence" but also to the case of a person arrested or detained "when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so"; that, furthermore, the presence of a comma in the French version after the words" s'il a été arrêté et détenu en vue d'être conduit devant l'autorité judiciaire compétente" means that this passage qualifies all the categories of arrest and detention mentioned after the comma; that in addition, paragraph 1 (c) of Article 5 (art. 5-1-c) has to be read in conjunction with paragraph 3 of the same Article (art. 5-3) whereby everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of the said Article (art. 5-1-c) shall be brought promptly before a judge; that it is hereby confirmed that Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person effected solely for the purpose of bringing him before a judge; Whereas the Commission has expressed no opinion on whether or not the detention of G.R. Lawless was consistent with the provisions of Article 6 (art. 6) of the Convention; 10. Whereas the Irish Government have contended before the Court: - that the detention from 13th July to 11th December 1957 of G.R. Lawless whose general conduct together with a number of specific circumstances drew upon him, in the opinion of the Commission itself (paragraph 138 of its Report), "the gravest suspicion that he was concerned with the activities of the IRA" at the time of his arrest in July 1957 - was not a violation of Article 5 or 6 (art. 5, art. 6) of the Convention; whereas the Irish Government have contended that the Convention does not require that a person arrested or detained on preventive grounds shall be brought before a judicial authority; and that, consequently, the detention of G.R. Lawless did not conflict with the stipulations of the Convention; whereas on this point the Irish Government, not relying before the Court, as they had done before the Commission, on paragraph 1 (b) of Article 5 (art. 5-1-b), have made submissions which include the following: that Article 5 paragraph 1 (c) (art. 5-1-c) refers to two entirely separate categories of cases of deprivation of liberty - those where a person is arrested or detained "on reasonable suspicion of having committed an offence" and those where a person is arrested or detained "when it is reasonably considered necessary to prevent his committing an offence, etc."; that it is clear from the wording of the said clause that the obligation to bring the arrested or detained person before the competent judicial authority applies only to the former category of case; that this is the meaning of the clause, particularly in the English version; - that the preliminary work on Article 5 (art. 5) supports this construction of the said clause; that account must be taken of the fact that the said Article (art. 5) is derived from a proposal submitted to the Committee of Experts by the United Kingdom delegation in March 1950 and that the French version is consequently only a translation of the original English text; that, as regards paragraph 1 (c) on the Article (art. 5-1-c), the words "or when it is reasonably considered necessary" appeared in the first draft as "or which is reasonably considered to be necessary" and, in the English version, clearly refer to the words "arrest or detention" and not to the phrase "effected for the purpose of bringing him before the competent legal authority"; that this clause subsequently underwent only drafting alterations; - that Article 5, paragraph 3 (art. 5-3) does not conflict with this construction of paragraph 1 (c) of the same Article (art. 5-1-c); that paragraph 3 (art. 5-3) applies only to the first category of cases mentioned in paragraph 1 (c) (art. 5-1-c) and not to cases of the arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence"; that this interpretation is supported by the fact that in Common Law countries a person cannot be put on trial for having intended to commit an offence; - that Article 5, paragraph 3 (art. 5-3), is also derived from a proposal submitted in March 1950 by the United Kingdom delegation to the "Committee of Experts" convened to prepare the first draft of a Convention; that the British proposal was embodied in the draft produced by the Committee of Experts; that this draft was then examined by a "Conference of Senior Officials" who deleted from paragraph 3 (art. 5-3) the words "or to prevent his committing a crime"; that paragraph 3 (art. 5-3), after amendment by the Senior Officials, accordingly read as follows: "Anyone arrested or detained on the charge of having committed a crime, in accordance with the provisions of paragraph 1 (c) (art. 5-1-c), shall be brought promptly before a judge or other officer authorised by law."; - that it follows from the foregoing that the Senior Officials intended to exclude from Article 5, paragraph 3 (art. 5-3), the case of a person arrested to prevent his committing a crime; that this intention on the part of the Senior Officials is further confirmed by the following passage in their Report to the Committee of Ministers (Doc. CM/WP 4 (50) 19, p. 14): "The Conference considered it useful to point out that where authorised arrest or detention is effected on reasonable suspicion of preventing the commission of a crime, it should not lead to the introduction of a regime of a Police State. It may, however, be necessary in certain circumstances to arrest an individual in order to prevent his committing a crime, even if the facts which show his intention to commit the crime do not of themselves constitute a penal offence. In order to avoid any possible abuses of the right thus conferred on public authorities, Article 13, para. 2 (art. 13-2), will have to be applied strictly."; - that it is clear from the report of the Senior Officials that they - being aware of the danger of abuse in applying a clause which, as in the case of Article 5, paragraph 1 (c) (art. 5-1-c), allows the arrest or detention of a person when it is reasonably considered necessary to prevent his committing an offence - wished to obviate that danger not by means of a judicial decision but through the strict enforcement of the rule in Article 13, paragraph 2, of the draft, which later became Article 18 (art. 18) of Convention; and that Article 5 (art. 5) subsequently underwent only drafting alterations which, however, did not make the meaning of the text absolutely clear or render it proof against misinterpretation; - whereas the Irish Government have contended that Article 6 (art. 6) of the Convention is irrelevant to the present case, since there was no criminal charge against Lawless; 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 Englishand 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 contemplated 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 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. Lawless 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 therefore. 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"; 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 measure 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 the 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; 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 therefore 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 (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 therefore; 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 therefore; 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;
The Court observed that neither of the means available to the Irish Government to deal with the activities of the IRA and its splinter groups – namely, the application of the ordinary law or even the institution of special criminal courts – would have made it possible to deal with the situation existing in Ireland in 1957 and to restore peace and order. In those circumstances it took the view that detention without bringing terrorist suspects before a judge, as provided for by the 1940 Act, subject to a number of safeguards designed to prevent abuses in the operation of this system of administrative detention (e.g. constant supervision by Parliament, a "Detention Commission" and a promise to release any person detained who gave an undertaking not to engage in any illegal activity), could be regarded as a measure strictly confined to the exigencies of the situation within the meaning of Article 15 of the Convention; in other words a measure required by the circumstances.  As to the applicant’s particular case,