Volltextveröffentlichungen (3)

• Europäischer Gerichtshof für Menschenrechte

  BRANNIGAN ET McBRIDE c. ROYAUME-UNI

  Art. 5, Art. 5 Abs. 3, Art. 5 Abs. 5, Art. 13, Art. 15, Art. 15 Abs. 1, Art. 15 Abs. 3, Art. 1 MRK
  Dérogation de l'Art. 5-3 répond aux exigences de l'Art. 15 Non-violation de l'Art. 5-5 Non-violation de l'Art. 13 (französisch)

• Europäischer Gerichtshof für Menschenrechte

  BRANNIGAN AND McBRIDE v. THE UNITED KINGDOM

  Art. 5, Art. 5 Abs. 3, Art. 5 Abs. 5, Art. 13, Art. 15, Art. 15 Abs. 1, Art. 15 Abs. 3, Art. 1 MRK
  Derogation of Art. 5-3 satisfies the requirements of Art. 15 No violation of Art. 5-5 No violation of Art. 13 (englisch)

• Österreichisches Institut für Menschenrechte

  (englisch)

Verfahrensgang

• EKMR, 28.02.1991 - 14553/89
• EGMR, 25.05.1993 - 14553/89, 14554/89

Wird zitiert von ... (0)Neu Zitiert selbst (11)

• EGMR, 05.10.1988 - 9787/82

  WEEKS c. ROYAUME-UNI (ARTICLE 50)

  Auszug aus EGMR, 25.05.1993 - 14553/89

  Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para.

  5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).

  The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government's derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court's judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B).

  The Court recalls that judicial control of interferences by the executive with the individual's right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58).

  Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).

  There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65).

  4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65).

  It was therefore competent to examine whether the derogation from the guarantees of Article 5 (art. 5), following a judgment of the European Court finding on similar facts a violation of that Article (art. 5) (Case of Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B) was indeed in conformity with Article 15 (art. 15) (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25).

  The position I have taken in the case of Brogan and Others (Series A no. 145-B) - a position which I still maintain - explains why I have voted for finding that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) of the Convention: in this respect I would compare what I have said in paragraph 12 of my dissenting opinion in the case of Brogan and Others with paragraphs 60-67 of the present judgment.

  [ï?ª]ï?ª Series A no. 145, p. 32, para.

• EGMR, 01.07.1961 - 332/57

  LAWLESS c. IRLANDE (N° 3)

  Auszug aus EGMR, 25.05.1993 - 14553/89

  Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.

  Even if it is accepted that States have a margin of appreciation in determining whether they are threatened by a "public emergency" within the meaning of the Lawless v. Ireland judgment (judgment of 1 July 1961, Series A no. 3) and, if they are, in deciding whether to resort to the solution of a derogation, the situation relied on must be examined by the European Court.

• EGMR, 28.11.1991 - 12629/87

  S. v. SWITZERLAND

  Auszug aus EGMR, 25.05.1993 - 14553/89

  In the result the arrested person is secretly detained for that period and is held incommunicado and without legal assistance, of if he receives it, he may expect to have it overheard by the police, a clear breach of the spirit of the Court's decision in S. v. Switzerland (judgment of 28 November 1991, Series A no. 220).

 
• EGMR, 22.05.1984 - 8805/79

  DE JONG, BALJET ET VAN DEN BRINK c. PAYS-BAS

  Auszug aus EGMR, 25.05.1993 - 14553/89

  4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60).
• EGMR, 29.04.1988 - 10328/83

  BELILOS v. SWITZERLAND

  Auszug aus EGMR, 25.05.1993 - 14553/89

  The difference between the two devices - reservation and derogation - lies in the fact that, in respect of the former, the Court's power of review is confined to the formal aspects of the validity - within the meaning of Article 64 (art. 64) - of the declaration relating thereto (see the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, pp. 24 et seq., paras. 50 et seq.), whereas for the latter the Court must also satisfy itself that the substantive conditions for its validity have been met (not only when the derogation is notified, but also subsequently whenever the Government relies on such a derogation).
• EGMR, 16.12.1992 - 13071/87

  EDWARDS c. ROYAUME-UNI

  Auszug aus EGMR, 25.05.1993 - 14553/89

  It is thus possible to avoid the disadvantages of the ordinary procedural rules applicable at this stage (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B).
• EGMR, 23.10.1990 - 12794/87

  HUBER c. SUISSE

  Auszug aus EGMR, 25.05.1993 - 14553/89

  30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras.
• EGMR, 30.03.1989 - 10444/83

  LAMY c. BELGIQUE

  Auszug aus EGMR, 25.05.1993 - 14553/89

  51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp.
• EGMR, 21.10.1986 - 9862/82

  SANCHEZ-REISSE c. SUISSE

  Auszug aus EGMR, 25.05.1993 - 14553/89

  78, Sanchez-Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para.
• EGMR, 06.09.1978 - 5029/71

  Klass u.a. ./. Deutschland

  Auszug aus EGMR, 25.05.1993 - 14553/89

  It is not the Court's role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49).
• EGMR, 04.12.1979 - 7710/76

  Schiesser ./. Schweiz