Information Note on the Court’s case-law
September 1995
McCann and Others v. the United Kingdom - 18984/91
Judgment 27.9.1995 [GC]
Article 2
Article 2-1
Life
Article 2-2
Use of force
Killing by members of the security forces of three members of the IRA (Irish Republican Army) suspected of involvement in a bombing mission: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 2 OF THE CONVENTION
A.Interpretation of Article 2
1.General approach
Provision is one of the most fundamental in the Convention and must be strictly construed - paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes situations where it is permitted to "use force" which may result, as an unintended outcome, in the loss of life - the use of force must be no more than "absolutely necessary" for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).
In assessing the actions under examination Court must consider not only the actions themselves but also such matters as their planning and control.
2.The obligation to protect life
(a)Compatibility of national law and practice with Article 2 standards
Not the role of Convention institutions to examine in abstracto compatibility of national law with the Convention - in present case, the differences between the national and Convention standards not sufficiently great that a violation could be found on this ground alone.
(b)Adequacy of inquest proceedings as an investigative mechanism
A general legal prohibition of arbitrary killing would be ineffective if no procedure for reviewing lawfulness of the use of lethal force by State authorities existed - in present case, lawyers were able to examine and cross-examine key witnesses during the inquest proceedings - alleged shortcomings in the proceedings did not hamper a thorough, impartial and careful examination.
B.Application of Article 2 to facts of the case
1.General approach to evaluation of the evidence
Primarily for Commission to establish and verify facts - Court takes its findings in instant case to be accurate and reliable - however, Court must make its own assessment whether facts disclose violation of Article 2 - it is not assessing the criminal responsibility of those directly or indirectly concerned.
2.Applicants' allegation that killings were premeditated
Allegation rejected as unsubstantiated: not established that there was an execution plot at highest level of command in the Ministry of Defence or in Government, or that Soldiers A, B, C and D had been so encouraged or instructed by superior officers or that they had decided on their own initiative to kill the suspects - nor is there evidence of implicit encouragement by authorities or hints and innuendoes to execute suspects - the fact that the SAS (Special Air Service) was involved did not amount to evidence that the killings were intended.
3.Conduct and planning of operation
(a)Preliminary considerations
Court must have regard to dilemma confronting the authorities -on one hand, duty to protect the lives of people in Gibraltar and, on the other, to have minimum resort to use of lethal force - also to be borne in mind that (1) authorities confronted by members of IRA convicted of bombing offences and by a known explosives expert and (2) that authorities had ample opportunity to plan their reaction - nevertheless, they were obliged to formulate their policies on basis of incomplete hypotheses. Court must scrutinise not only whether force used was strictly proportionate to aim of protecting lives but whether operation was planned and controlled so as to minimise, to greatest extent possible, recourse to lethal force.
(b)Actions of the soldiers
Court accepts that soldiers honestly believed that necessary to shoot the suspects to prevent them from detonating a bomb and causing serious loss of life. Use of force under Article 2 may be justified where based on honest belief which, for good reasons, is perceived to be valid but which subsequently turns out to be mistaken. Having regard to the dilemma confronting authorities, the soldiers' actions did not, in themselves, give rise to violation of this provision.
(c)Control and organisation of the operation
Court questioned why the suspects were not arrested at the border and why decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Insufficient allowances made for possibility that intelligence assessments erroneous - for example, suspects might have been on reconnaissance mission; or were unlikely to have been prepared to explode the bomb as two of them strolled towards border area, or to have set up transmitter in advance to enable them to detonate supposed bomb - in addition, description of detonation device as a "button job" oversimplified true nature of such devices. The above and the definite reporting of the car bomb which could be detonated at press of button, meant that a series of working hypotheses were conveyed to soldiers A, B, C and D as certainties, thereby making use of lethal force almost unavoidable. In addition, soldiers trained to continue shooting until suspect dead - against this background, authorities bound by obligation to respect life to exercise the greatest of care in evaluating information before transmitting it to soldiers whose use of firearms automatically involved shooting to kill - such reflex action lacked the degree of caution in use of firearms to be expected from law enforcement personnel in democratic society, even when dealing with dangerous terrorist subjects - it suggests lack of appropriate care in the control and organisation of arrest operation. In light of above, Court not persuaded that killings constituted use of force which was no more than absolutely necessary in defence of persons from unlawful violence.
Conclusion: violation (ten votes to nine).
II.ARTICLE 50 OF THE CONVENTION
A.Pecuniary and non-pecuniary damage: not appropriate to make award since terrorist suspects had been intending to plant bomb in Gibraltar - claim dismissed.
B.Costs and expenses: partial reimbursement awarded.
Conclusion: respondent State to pay specified sums to applicants (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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