KELLY AND OTHERS v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30054/96
by Vincent KELLY and others
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 4 April 2000 as a Chamber composed of

MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, judges,
andMrsS. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 5 October 1995 and registered on 5 February 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s decision of 8 September 1997 to communicate the application,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the parties’ oral submissions at the hearing on 4 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Irish citizens, are

1.Vincent Kelly, born in 1926, resident in Dungannon, Co. Tyrone;

2.Kevin McKearney, born in 1924, resident in Moy, Co. Tyrone;

3.Amelia Arthurs, born in 1941, resident in Dungannon, Co. Tyrone;

4.Letitia Donnelly, born in 1936, resident in Dungannon, Co. Tyrone;

5.Mary Kelly, born in 1936, resident in Dungannon, Co. Tyrone;

6.Annie Gormley, born in 1926, resident in Dungannon, Co. Tyrone;

7.Patrick O’Callaghan, born in 1913, resident in Benburb, Co. Tyrone;

8.Carmel Lynagh, born in 1934, resident in Clones;

9.Brigid Hughes, born in 1946, resident in Moy, Co. Tyrone.

The applicants are represented before the Court by Mr Paul Mageean, a solicitor working for the Committee for the Administration of Justice in Belfast. The applicants are the next-of-kin of nine men - Patrick Kelly, Patrick Oliver McKearney, Declan John Arthurs, Seamus Anthony Donnelly, Eugene Kelly, Michael Antony Gormley, Gerard Majella O’Callaghan, James McCartan Lynagh and Antony Hughes - shot and killed by the security forces in an operation at Loughgall, Northern Ireland.

A.Particular circumstances of the case

The facts of the case, as submitted by the parties and which may be deduced from the documents, may be summarised as follows. The applicants accept that the summaries below are an accurate reflection of the written statements made by the personnel involved, without making any admission as to credibility, consistency and accuracy of these statements.

Background to the operation at Loughgall

Following a briefing that there was likely to be a terrorist attack on Loughgall RUC station in Co. Armagh on 8 May 1987, twenty four soldiers and three RUC officers arrived at the station in the early hours of that day. Under the command of Soldier A, the soldiers positioned themselves in six locations surrounding the RUC station. Soldiers A, B, C, D, E and F were dressed in plain clothes and remained inside the RUC station (Position 1). All the other soldiers wore military uniform. Soldiers G, H, I and J were positioned in a wooded area to the south of the Loughgall Road, near the junction with a road which is the first on the right from the police station going towards Armagh (Position 2). Soldiers K, L, M and N were positioned in a wooded area to the south of the Loughgall road, generally opposite No. 202 Loughgall Road (Position 3). Soldiers O, P, Q and R were instructed to position themselves in a wooded area to the south of the Loughgall Road, near what is known as Ballygasey Cottage (Position 4). Soldiers S, T and U were positioned in a wooded area to the rear of St Luke’s Church, on the south side of the Loughgall Road and to the east of the RUC station (Position 5). Soldiers V, W and X occupied a position in a wooded area to the north of the Loughgall Road, about 300 to 400 yards to the rear of the RUC station (Position 6).

Three members of the RUC, Constables A, B and C were positioned inside the RUC station.  The RUC station, which operates on a part-time basis only, was opened as normal at 9 a.m. on 8 May 1987. Police Constable A was in charge of the station, with B and C assisting him in the running of the station. The station was closed at 11 a.m., re-opened at 5 p.m. and closed again at 7 p.m.

At about 2.30 p.m. two hooded men hijacked a blue Toyota Hiace van from a Mr Corr, who was carrying out some work at the Snooker Club, Mountjoy Road, Dungannon, Co Tyrone. He was warned not to report the incident to the police for four hours. When the men left, Mr Corr phoned his employer, the van’s owner, and told him about the incident. The owner, Mr McGrath, waited four hours and reported the incident to Coalisland RUC at approximately 6.50 p.m.

At about 6 p.m., three armed men who said they were from the IRA entered the house of the Mackle family in Aghinlig Upper, Dungannon. The men said they wanted to borrow the digger and one of the sons was brought outside to fill it with diesel. At about 6.30 p.m., a vehicle pulled up outside and a fourth man arrived. It appears that a bomb containing 300 to 400 pounds of explosives was prepared in the yard of the house and placed in the bucket of the digger. At about 6.50 p.m. the digger was driven out of the yard and the other vehicle left shortly afterwards. At about 7.10 p.m. the remaining two gunmen left the house. Attempts by the family to phone the police failed as their phone and that of their neighbour were out of order. However, two of the sons eventually alerted a police patrol.

The incident at Loughgall

The soldiers reported a number of sightings of the blue Hiace van passing in front of the RUC station in both directions. Reports that the van had been hijacked, and that a digger was acting suspiciously in the area, were also received. Given this information and the knowledge that diggers had been used in previous terrorist attacks, the soldiers were on full alert when between 7.15 and 7.30 p.m. the blue van came from the Loughgall direction and parked outside the station on the far side of the road facing Armagh.

A man, dressed in blue overalls and wearing a balaclava, emerged from the rear of the van and began to walk into the roadway. He raised his rifle and began to shoot at the RUC station. Soldiers A to E, who had positioned themselves at windows on the first floor of the station began to return fire without warning. Soldier F had set up the radio equipment in the rear ground floor room, and he remained there during the shooting. The driver then got out of the van and began to fire at the station. At least four more men emerged from the rear of the van and commenced firing at the station. Following continuous fire from the direction of the RUC station and from other soldiers, some of the IRA men began to take cover behind the van and others went to get into the back of the van. Soldiers A to E fired into the side of the van. Soldier B received a facial injury from flying glass after a window by which he was standing was broken by gunfire.

During this time, one of the IRA men drove the digger through the front gate of the station and Soldier B, having spotted this, fired a short burst at the driver. The digger stopped and shortly afterwards there was an explosion which caused masonry and dust to fly everywhere. Soldiers A to F and Constable A were unhurt by the blast, which damaged a large part of the station. Constable C was later treated for a fractured skull, damage to his left sinus, broken facial bone, a broken finger, a broken toe and bruising. Constable B also received some injuries. Constables B and C were led outside by Constable A and Soldier C, who administered first aid to them. Soldier F also left the station by the rear and did not take any part in the shooting.

Soldiers A, B, D and E moved towards the front of the RUC station and continued to fire at the men near the van, firing through the sides of the van when the men took cover inside, until there was no further movement from the gunmen. In his statement to the police, Soldier B stated that he approached the van to clear it of further danger to his life and those of his colleagues. As he looked into the back of the van, he saw two men and a number of weapons. One of the men made a sudden movement and Soldier B fired one round into him as it was his belief that it was the man’s intention to get one of the weapons. Soldier V stated that he approached the van with Soldier B, carrying out a visual check of the bodies. As he moved alongside the van, there was a movement in the area of a body that caught his eye. He took this as an immediate threat and fired one burst into the body.

Soldiers positioned in other areas also fired at the various gunmen once they had begun to fire at the RUC station. Some of them also stated that they came under fire. Shortly after the bomb exploded, Soldiers K and R observed what they thought was a gunman lying in the grass behind the police station. He failed to stand up when challenged to do so, and both soldiers fired several rounds at what turned out to be a large lump of wood. Moving down along the back of the houses towards the police station, Soldier K saw a man whom he apprehended, tied his hands and feet and handed him over to the RUC who arrested him. This man was a Mr Tennyson who was not involved in the attack. He happened on the shooting, and had left his car to seek cover when he was detained.

Soldier V fired at a man in a blue boiler suit crossing the road in a crouched manner. The man fell. He saw another man behind a wall and shouted to him to stand up. The man moved away quickly, then turned fully towards Soldier V who saw something in his hand which he regarded as an immediate threat and fired two bursts from his rifle until the man fell. Soldier S passing the body saw no weapon near it.

When the blue van and the digger arrived at the RUC station, there had been a white Citroen car right behind them. After shooting started but before the bomb went off, this car began to reverse towards the soldiers in position 5. Soldiers S, T and U opened automatic fire on the car and when they stopped firing the vehicle was about 20 metres away. The front seat passenger got out of the car despite a warning from Soldier U not to move. He was wearing blue coveralls. Almost immediately, he was hit by gunfire from Soldier U and he fell to the ground. Later realising that he was still alive, Soldiers S and U moved him onto the pavement and put two field dressings on his wounds. The driver of the car was dead at the wheel of the car.

Soldier W approaching the police station noticed ten feet away in the driveway a person lying on his back still moving. He saw that the man’s right hand was clenched and that something metallic was protruding. Believing the man to be a threat to himself and Soldier V, he fired two shots at him. Soldier X checking the body found that the man was holding a cigarette lighter.

Other vehicles near the scene of the attack included a red Sierra 15 metres from position 6, occupied by a woman and her daughter, a blue Escort about 70 metres from the scene which was empty and a white Sierra, with three female occupants. These cars, or their occupants, were directed to positions of safety by soldiers as soon as the opportunity arose.

When the shooting ceased the soldiers and members of the RUC were airlifted back to their barracks.

Police investigation of  the incident

From 7.35 p.m., officers from the RUC Criminal Investigation Department, the Scenes of Crime Department and the Northern Ireland Forensic Laboratory began arriving to survey the crime scene and identify items of forensic interest. Photographs were taken of the scene and of the bodies. The scene can be described as follows:

There were two significantly bullet damaged vehicles, a blue Toyota Hiace van (with approximately 125 bullet holes in the body work) and a white Citroen car (with approximately 34 bullet holes in the front, rear and side of the car). In the vicinity of the junction of Clovenden Road/Ballygasey Road there were bullet damaged Vauxhall Cavalier and Ford estate cars.

The bodies were wearing blue boiler suits except where specified otherwise.

The first body (Patrick Kelly) was found lying at the front of the van with a radio lying on the ground beside the body and a rifle lying on the body. There was debris on the rifle suggesting that this person was lying on the ground before the explosion. The pathologist noted that his right upper canine tooth had recently been torn out.

The second body (Michael Gormley) was lying on the pavement at the north side of the van near the open side door with a rifle nearby. The body was lying on top of the right leg of body 3, strongly suggesting that body 3 was lying on the ground before body 2 fell.

The third body (Seamus Donnelly) was lying on the pavement towards the north side of the Toyota van. There was ammunition and a cigarette lighter near the body. The pathologist observed at least twenty separate missile wounds (ie. bullet and fragment) and found that discharge abrasion on an entry wound on the front of the neck indicated that when the gun was discharged the muzzle was within several feet of the body, probably while it was lying on the ground.

The fourth body (Patrick McKearney) was lying face down along the outside panel inside the rear of the van with the head towards the rear door. There was ammunition in the pocket of the boiler suit (he was also wearing a flak jacket) and in the jeans pocket. The post mortem examination revealed at least a dozen wounds to the torso and head.

The fifth body (James Lynagh) was lying diagonally across the interior of the van with the feet towards the rear door. There was ammunition in the pocket of the boiler suit and in the anorak and jeans pockets. Material on the body suggested that it was on the floor before the explosion occurred. He had received multiple bullet and fragment injuries.

There were four loaded rifles and one shotgun found in the van. Three of the stocks were folded.

The sixth body (Eugene Kelly), which had massive head damage and multiple injuries elsewhere, was seated in the driver seat of the van. There was a revolver lying between the driver’s seat and his door.

The seventh body (Declan Arthurs) was lying in a lane-way opposite the premises of the Loughgall Football Club. This body was not wearing a boiler suit and there was a cigarette lighter close to the right hand.

The eighth body (Gerald O’Callaghan) was lying on its right side on the pavement at the Loughgall side of the lane-way. Twelve wounds were noted by the pathologist.

The ninth body (Antony Hughes) was seated with the seat belt on in the driver’s seat of the white Citroen car. The body was not wearing a boiler suit. The post mortem examination showed twenty nine wounds (bullet and shrapnel).

At 10.35 p.m. on 8 May 1987, the police took possession of the firearms used by Soldiers A to X which were delivered the following day to the Northern Ireland Forensic Science Laboratory for examination.

On the morning of 9 May 1987, a scene of crimes officer and forensic experts from the Northern Ireland Forensic Science Laboratory conducted an examination of the scene and took possession of a large number of exhibits. The cars were removed for expert examination.

Spent cartridge cases were recovered from all over the crime scene which stretched from the junction of Cloveneden Road/Ballygasey Road to the Church/Church Hall in the vicinity of the start of Main Street, Loughgall. In total, 678 spent cartridge cases were recovered, 78 of which were from IRA weapons.

On 9 and 10 May 1987, two forensic doctors carried out post mortem examinations of the bodies.

Between 9 and 12 May 1987, police officers conducted lengthy interviews with soldiers A to X, each of whom made a written statement. On 16 March 1988, soldier L was asked by the police to clarify his statement.

On 21 July 1988, the RUC forwarded a report to the Director of Public Prosecutions for Northern Ireland (“the DPP”) on the outcome of their RUC investigation. On 22 September 1988, he concluded that the evidence did not warrant the prosecution of any person involved in the shootings. The Government state that this decision was notified to the next-of-kin of the deceased. The applicants stated that only the family of Antony Hughes was informed.

The Inquests

On 9 May 1990, the statements taken during the RUC investigation were forwarded to the Coroner.

On 6 September 1990, the Coroner held a preliminary meeting attended by the lawyers representing the relatives of the deceased.  At their request, he adjourned the inquest which he had intended to hold on 24 September 1990, pending the determination of the Devine case, before the Court of Appeal (and subsequently the House of Lords), which concerned the powers of Coroners and the procedure at inquests. Judgments were given by the Court of Appeal on 6 December 1990 and by the House of Lords on 6 February 1992, pursuant to which it was established that rule 17 of the Coroners’ Rules did not prevent coroners admitting written statements in evidence.

The inquests were further adjourned pending the outcome of proceedings relating to the inquests into the deaths of Gervaise McKerr, Eugene Toman and Sean Burns (see Application No. 28883/95 brought by Jonathan McKerr). These proceedings involved decisions by the High Court on 2 June 1992 and 21 December 1992, by the Court of Appeal on 28 May 1993 and by the High Court again on 20 April 1994. The McKerr, Toman and Burns inquests terminated on 8 September 1994.

An inquest into the deaths of the men was opened on 30 May 1995 in public before a Coroner and a jury of 10 members. It lasted four days. On the first day of the inquest, counsel representing the families of six out of the nine deceased (Patrick Kelly, Declan Arthurs, Eugene Kelly, Michael Gormley, Seamus Donnell and Gerard O’Callaghan) sought all the statements of prospective witnesses to be made available to them at the commencement of the proceedings together with the maps and photographs. The Coroner made available the maps and photographs but did not permit counsel (other than those instructed on the Coroner’s behalf) to see witness statements until the witness was giving evidence. On the same day of the inquest, counsel for the six families asked for the proceedings to be adjourned to allow them to seek judicial review of the decision to refuse access to the witness statements. This adjournment was refused and, following the rejection of a second application, counsel was instructed by the six families to withdraw from the hearing to seek a remedy by way of judicial review. This step was taken on 31 May 1995 following consultation with the families and because it was felt “utterly impossible for the applicants’ interests to be fairly or adequately represented given the rulings of the Coroner”.

The hearing of the inquest proceeded without representation for any of the nine families. The Coroner heard 45 witnesses, including the brother of Antony Hughes who had been shot and injured, civilian and police eye-witnesses, including Constables A and B and the police officers involved in the investigation. None of the soldiers appeared but their statements were lodged.  It was concluded on 2 June 1995 that all nine men had died from serious and multiple gun shot wounds.  

The family of Declan Arthurs sought judicial review of the Coroner’s decisions not to allow the legal representatives to see witness statements before they gave evidence, not to allow additional time to their advisers to consider expert and controversial evidence, and refusing the application for an adjournment. Leave was granted on 1 June 1995. In his judgment of 24 May 1996, Mr Justice McCollum in the High Court refused to quash the Coroner’s decisions or the jury verdict. In doing so, the judge placed considerable emphasis on the character of an inquest as a fact finding exercise and not a method of apportioning guilt.

Civil proceedings

Seven of the families (the relatives of Antony Hughes, Kevin Antony McKearney, Michael Gormley, Seamus Donnelly, Declan Arthurs, Gerard O’Callaghan and Eugene Kelly) issued civil proceedings against the Ministry of Defence on 2 December 1988, 20 March 1990 and 4 May 1990 respectively.

On 25 April 1991, the Hughes family settled proceedings for £100 000 in respect of Antony Hughes, who was a civilian unconnected with the IRA gunmen.

No further steps were taken to pursue the proceedings by the family of Kevin Antony McKearney. Regarding the remaining five families, who are represented by the same lawyer, statements of claim were issued in October 1993, alleging that the shooting of the deceased represented excessive force and was unnecessary and unlawful or, alternatively, that there was negligence, inter alia, in failing to give warnings or an opportunity to submit to lawful arrest and using excessive force.

On 13 January 1994, the five families issued notice of their intention to proceed with their claims.

On 3 March 1994, the Ministry of Defence served their defence, stating inter alia that the force used was necessary to prevent the deceased committing unlawful acts and to protect lives and personal safety. They also served a notice requesting further and better particulars of the statement of claim.

B.Relevant domestic law and practice

Use of lethal force

Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia:

“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.”

Self-defence or the defence of others is contained within the concept of the prevention of crime (see eg. Smith and Hogan on Criminal Law).

Inquests

i.Statutory provisions and rules

The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died.

Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or directly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8).

Rules 12 and 13 of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.

Where the Coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.

The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:

“15.  The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely:-

(a)  who the deceased was;

(b)  how, when and where the deceased came by his death;

(c)  the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.

16.  Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing rule.”

The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (eg. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act but no finding is made that any identified person was criminally liable.

However, in Northern Ireland, the Coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.

Legal aid is not available for inquests as they do not involve the determination of civil liabilities or criminal charges.

The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination.  In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.

In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.

ii.The scope of inquests

Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:

“... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”

Domestic courts have made, inter alia, the following comments:

“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death.

... I further consider that < previous judgments> make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported)

“The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357)

“... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial...

It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, Rv. South London Coroner ex parte Thompson (1982) 126 SJ 625)

C.Relevant international law and practice

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.

Other relevant provisions provide as follows:

Paragraph 10

“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”

Paragraph 22

“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”

Paragraph 23

“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”

Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (“UN Principles on Extra-Legal Executions”) provides, inter alia, that:

“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...”

Paragraphs 9 to 17 contain a series of detailed requirements that should be observed by investigative procedures into such deaths.

Paragraph 10 states inter alia:

“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons  conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...”

Paragraph 11 specifies:

“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.”

Paragraph 16 provides inter alia:

“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...”

Paragraph 17 provides inter alia:

“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...”

The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides inter alia in section B on the “Purposes of an inquiry”:

“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:

(a)  to identify the victim;

(b)  to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;

(c)  to identify possible witnesses and obtain statements from them concerning the death;

(d)  to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;

(e)  to distinguish between natural death, accidental death, suicide and homicide;

(f)  to identify and apprehend the person(s) involved in the death;

(g)  to bring the suspected perpetrator(s) before a competent court established by law.”

In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established ...”

COMPLAINTS

1.The applicants complain that the deaths of the nine men amount to a violation of the right to life under Article 2 of the Convention. It is submitted that the authorities planned and executed an ambush deliberately designed to result in the deaths of those engaged in the attack on the police station. Alternatively, notwithstanding their advanced knowledge of the attack, they failed to take the appropriate care in the control and organisation of the operation, in particular to avoid injury to innocent civilians such as Antony Hughes. Further, the actions of the soldiers violated Article 2 in that they used more force than was absolutely necessary and that, as soon as the ambush was laid, their intention was to kill all those who entered the field of fire. Even if it is not accepted that the soldiers’ sole intention was to kill, they were negligent in the use of force such that they used more force than was absolutely necessary.

2.The applicants also complain that the men who were killed were denied a right to a fair and public hearing within the meaning of Article 6 § 1 of the Convention in the determination of any criminal charge against them.

3.The applicants also complain that there is no effective domestic remedy within the meaning of Article 13 of the Convention with respect to violations of Article 2 when the deaths result from the actions of the security forces. In particular, there was no proper criminal investigation into the actions of the soldiers or those who planned the operation, and there were no criminal charges instituted against those responsible for the deaths. Furthermore, the applicants submit that in the absence of criminal prosecutions, which they regard as the only effective remedy available in Northern Ireland, there are only two domestic legal remedies - a civil action and representation at the inquest. The applicants do not consider either of these remedies to be effective for the purposes of Article 13.

4.The applicants also complain of discrimination contrary to Article 14 of the Convention in the securement of their rights under Articles 2, 6 and 13.

THE LAW

The applicants complains of the death of their relatives, invoking Articles 2, 6, 13 and 14 of the Convention, which provide as follows:

Article 2 of the Convention

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 6 of the Convention

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in the 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.”

Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 35 § 1 of the Convention: exhaustion of domestic remedies

The Government submit that the applicants’ complaints concerning the death of their relatives are inadmissible for failure to exhaust domestic remedies, or in the case of the Hughes family, the applicant has ceased to be a victim since she settled her civil action and accepted an award of compensation. As regards the other eight applicants, two (Patrick Kelly and James Lynagh) had not issued civil proceedings whereas the claims of the other six applicants were still pending before the High Court concerning their allegations of unlawful killing. They point out that the determination of the applicants’ central complaints - whether or not their relatives were killed in circumstances falling outside the exceptions to the right to life in the second paragraph of Article 2 - will depend on an assessment of all the facts of the case and these circumstances, in particular the necessity and proportionality of the use of force, are also at the heart of the civil proceedings launched by some of the applicants. If the allegations in those proceedings are well-founded, domestic law will provide the applicants with an effective and adequate remedy - a judgment dealing with the facts of the case and the liability of the authorities and damages, if appropriate.

The applicants argue that civil proceedings taken at the initiative of relatives are plainly inadequate to remedy their complaints under the procedural aspect of Article 2, which, they submit, places the responsibility on the State to furnish an effective investigation into the killings. They are also inadequate and ineffective in respect of their substantive complaints under Article 2. They submit that the purpose of civil proceedings is to obtain damages for the family of the deceased and that this is not an adequate remedy for a violation of the right to life. The settlement in the Hughes case is on that basis irrelevant. The deaths of their relatives were also not an isolated occurrence but part of an administrative practice of the use of lethal force by the security forces which is condoned and encouraged by the respondent Government. In those circumstances, the only domestic remedy which would satisfy the requirements of Article 2 would be an adequate investigation and prosecution of the persons responsible for the deaths.

The applicants also refer to the standard of domestic law which applies a test of reasonableness instead of the Convention test of “absolutely necessary”. They submit that in practice the domestic courts concentrate their examination on the state of mind of the user of lethal force without giving consideration to issues of training and the control and planning of operations, which are relevant to the proportionality of the use of force under the Convention.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV).

The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment § 69, and the Aksoy judgment §§ 53 and 54).

In the present case, the Court observes that the facts surrounding the killing of the applicants’ relatives are pending examination in the civil actions instituted by six of the applicants and that consequently there have been no findings of fact in relation to the allegations raised in those proceedings. It further recalls that the inquest, which examined the circumstances of the killings, did not however reach any conclusions as to the lawfulness or otherwise of the soldiers’ actions or as to the way in which the operation was planned or conducted. The Court is aware of the subsidiary nature of its role and that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Indeed, the object and purpose underlying the Convention, as set out in Article 1 - that rights and freedoms should be secured by the Contracting State within its jurisdiction - would be undermined if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress.

Nonetheless, the issues raised in the present case not only raise matters of grave concern but involve important questions of the interpretation and application of the fundamental guarantee of the right to life, in both its substantive and procedural aspects. As regards the procedural requirement that the State carry out an effective investigation into deaths caused by its agents (see McCann and Others v. the United Kingdom, no. 18984/91, § 161, ECHR 1995-III), the parties differ as to the scope of the obligation and, in particular, as to whether civil proceedings are of any relevance, depending as they do on the initiative of the deceased’s relatives who have to establish their claims to a certain standard of proof. It is also in issue whether the inquest procedures in Northern Ireland are capable of satisfying the requirements of the procedural obligation, having regard, inter alia, to the limited scope of the enquiry into the facts immediately surrounding the death and the allegedly endemic delays. These are matters which are closely related to the merits of the complaints.

Similarly, the parties’ arguments as to whether civil proceedings, or the payment of compensation, may provide adequate redress for the allegedly unjustifiable use of force in killing the nine men at Loughgall overlap with issues under Article 2 as to the compatibility of domestic law and the extent to which a criminal prosecution may be regarded as a requirement for compliance with a State’s obligation to protect the right to life.

Accordingly, the Court does not consider it appropriate to examine these issues in the context of the exhaustion of domestic remedies, but joins them to the merits.

The substance of the application

The Government do not accept the applicants’ claims under Article 2 that their relatives were killed by any excessive or unjustified use of force or that domestic law in any way fails to comply with the requirements of this provision. They argue that the procedural aspect of Article 2 is satisfied by the combination of procedures available in Northern Ireland, namely, the police investigation, which is supervised by the Independent Commission for Police Complaints and by the Director of Public Prosecutions, inquest proceedings and civil proceedings. These secure the fundamental purpose of the procedural obligation in that they provide effective accountability of the use of lethal force by State agents. This does not require that a criminal prosecution be brought but that the investigation is capable of leading to a prosecution, which is the case in this application. They also point out that each case must be judged on its facts since the effectiveness of any procedural ingredient may vary with the circumstances. In the present case, they submit that together the available procedures provide the necessary effectiveness, independence and transparency by way of safeguards against abuse.

Regarding the applicants’ complaints under Article 6, the Government submit that the shooting cannot be regarded as a summary punishment for a crime. Nor can the alleged failure to prosecute deprive the applicants of a fair hearing as this does not relate to any civil right which the applicant have.

The Government submit that the complaints raised under Article 13 are premature for the same reasons that they argue that the application should be rejected for non-exhaustion or lack of victim status, namely, that the combination of available procedures provide effective remedies and, in the case of the Hughes family, compensation was paid by way of settlement of their civil claims.

As concerns allegations of discrimination under Article 14, they submit that there is no evidence that any of the deaths which occurred in Northern Ireland were analogous or that they disclose any difference in treatment. Bald statistics (the accuracy of which is not accepted) are not enough to establish broad allegations of discrimination against Catholics or nationalists.

The applicants submit that the deaths of their relatives were the result of unnecessary and disproportionate use of force by soldiers and that their relatives were victims of a “shoot to kill” policy operated by the United Kingdom Government in Northern Ireland. They refer, inter alia, to reports by Amnesty International and the Human Rights Watch, as well as the statements made by John Stalker, a senior policeman, who carried out an investigation into allegations of such a policy. They submit that there has been no effective official investigation carried out into the killing, relying on the international standards set out in the Minnesota Protocol. They argue that the RUC investigation was inadequate and flawed by its lack of independence and lack of publicity. The DPP’s own role is limited by the RUC investigation and he does not make public his reasons for not prosecuting. The inquest is flawed by the delays, the limited scope of the enquiry, a lack of legal aid for relatives, a lack of access to documents and witness statements, the non-compellability of security force or police witnesses and the use of public interest immunity certificates. The Government cannot rely on civil proceedings either, as this depends on the initiative of the deceased’s family.

Concerning their complaints under Article 6, the applicants submit that their relatives were arbitrarily killed by the soldiers as an alternative to carrying out arrests in respect of their unlawful acts in attacking the police station. This denied their relatives their right to a fair trial at which the criminal charges appropriate to their conduct could have been determined.

Under Article 13, the applicants refer to their arguments concerning the procedural aspect of Article 2 and, under Article 14, to the large numbers of killings of Catholics by the security forces and police compared with a disproportionately low number of prosecutions and convictions.

The Northern Ireland Human Rights Commission, acting as intervenor, made submissions outlining the relevant international standards concerning the right to life (eg. the Inter-American Court’s case-law and findings of the UN Human Rights Committee). They submit that the State must carry out an effective official investigation when an agent of the State is involved or implicated in the use of lethal force. Internal accountability procedures must satisfy the standards of effectiveness, independence, transparency and promptness, and facilitate punitive sanction. It is however, in their view, not sufficient for a State to declare that while certain mechanisms are inadequate, a number of such mechanisms regarded cumulatively can provide the necessary protection. They submit that the investigative mechanisms relied on this case, singly or combined, fail to do so. They refer, inter alia, to the problematic role of the RUC in Northern Ireland, the serious deficiencies in mechanisms of police accountability, the limited scope of and delays in inquests, and the lack of compellability of the members of the security forces who have used lethal force to appear at inquests. They urge the Court to take the opportunity to give precise guidance as to the form which investigations into the use of lethal force by State agents should take.

The Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

Full & Egal Universal Law Academy