Information Note on the Court’s case-law 222
October 2018
Chong and Others v. the United Kingdom (dec.) - 29753/16
Decision 11.9.2018 [Section I]
Article 35
Article 35-3-a
Ratione temporis
Lack of “genuine connection” between killings in 1948 and the date the right of individual petition had been recognised: inadmissible
Facts – In December 1948 a group of twenty-four unarmed civilians were shot and killed by British soldiers in Batang Kali in Selangor, Malaya. At the time of their deaths, Malaya, which is now Malaysia, was part of the British Empire. The country became independent in 1957. Certain investigative acts took place in the United Kingdom (in the 1940s and 1970s) and in Malaysia (1990s). The Convention was adopted on 4 November 1950 and came into force in the United Kingdom on 3 September 1953. It was extended to the Federation of Malaya on 23 October 1953. On 14 January 1966 the United Kingdom granted the right of individual petition.
The applicants, all close relatives of one or more of the victims, three of whom had been present in Batang Kali at the relevant time, complained that there had been a breach of the procedural obligation under Article 2 of the Convention to conduct an independent investigation.
Law – Article 2 (temporal jurisdiction) – It was not in dispute that no Article 2 compliant investigation into the events at Batang Kali had ever taken place. Nevertheless, as the events at Batang Kali had occurred in 1948, some two years before the adoption of the Convention, the applicants’ complaint would only fall within the Court’s jurisdiction ratione temporis if either the “genuine connection” test or the “Convention values” test was satisfied.
(a) “Genuine connection” test – In Janowiec and Others v. Russia [GC], the Court had held that, for a “genuine connection” to be established, the period between the death and the entry into force of the Convention in respect of the State concerned had to have been reasonably short (no more than ten years) and a major part of the investigation had or ought to have been carried out after the date of entry into force of the Convention.
In the instant case, in order to assess whether there existed a “genuine connection” between the deaths in 1948 (being the “triggering event”) and the “critical date”, the Court had to first determine when the “critical date” fell, in particular, whether it fell in October 1953, when the Convention was extended to the territory of Malaya, or in January 1966, when the United Kingdom recognised the right of individual citizens to petition the Court.
Relying on Šilih v. Slovenia [GC], Varnava and Others v. Turkey [GC], Janowiec and Others v. Russia; Mocanu and Others v. Romania [GC], Cakir v. Cyprus (dec.) and Jelić v. Croatia, Article 6 jurisprudence on continuing violations, as well as on the relevant jurisprudence of the Inter-American Court of Human Rights and the Human Rights Committee, the Court considered that its case-law pointed overwhelmingly towards the “critical date” being the date that the right of individual petition had been recognised.
In the applicants’ case the “critical date” was 14 January 1966, the date that the United Kingdom had granted the right of individual petition. As the lapse of time between the “triggering event” and the “critical date” had been eighteen years, following Janowiec and Others there could be no “genuine connection” between the two.
(b) “Convention values” test – In accordance with the principles established in Janowiec and Others, the “Convention values” test would be satisfied in cases where the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention.
If the applicants’ allegations were true, the killing of twenty-four unarmed civilians at Batang Kali might well have amounted to a crime under international law of sufficient severity to engage the “Convention values” test. However, the “Convention values” test could not be applied to events which had occurred prior to the adoption of the Convention on 4 November 1950, for it was only then that the Convention began its existence as an international human rights treaty.
In any case, the applicants should have been aware of the lack of any effective criminal investigation as early as the 1970s, after significant new evidence had come to light, and it could not, therefore, be said that the present application had been lodged “with due expedition”.
Conclusions: inadmissible (incompatible ratione temporis).
(See Varnava and Others v. Turkey [GC], 16064/90, 18 September 2009, Information Note 122; Šilih v. Slovenia [GC], 71463/01, 9 April 2014, Information Note 118; Janowiec and Others v. Russia [GC], 55508/07 and 29520/09, 21 October 2013, Information Note 167; Mocanu and Others v. Romania [GC], 10865/09, 17 September 2014, Information Note 177); Jelić v. Croatia,57856/11, 12 June 2014, Information Note 175; and Çakir v. Cyprus (dec.), 7864/06, 29 April 2010)
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This summary by the Registry does not bind the Court.
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