McSHANE v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43290/98
by Treasa McSHANE
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 12 December 2000 as a Chamber composed of

MrJ.-P. Costa, President,
MrL. Loucaides,
MrP. Kūris,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 3 October 1996 and registered on 4 September 1998,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a citizen of the United States of America, born in 1947 and living in Northern Ireland. She is represented before the Court by Mr P. Mageean, a solicitor with the Committee for the Administration of Justice, Northern Ireland. The respondent Government are represented by Mr C. Whomersley, Agent, from the Foreign and Commonwealth Office, London.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In July 1996, there were disturbances throughout Northern Ireland. On 7 July, the Royal Ulster Constabulary (RUC) had announced that they would not allow a march by the loyalist Orange Order from Drumcree Church to the Orange Lodge in Portadown to pass through the mainly Catholic residential area of the Garvaghy Road. Members of the Orange Order gathered in the area, and demonstrations occurred in Londonderry (Derry) and Belfast. On Thursday 11 July, the RUC reversed its decision and at 11 a.m. the march proceeded through the Garvaghy Road.

The following day, 12 July 1996, another controversial march was allowed through the mainly nationalist area of the Lower Ormagh Road in Belfast. That evening, there was a major disturbance in Derry, characterised by the use of petrol bombs and the substantial use of “baton rounds”, or plastic bullets, by the RUC and the British Army.

Dermot McShane, the husband of the applicant, had been with friends in a bar close to Derry city centre during that night. According to a friend who was with him, they left the bar at about 1.30 a.m. Close to the junction of Little James Street and Great James Street, a large crowd of people had gathered and were throwing missiles at the police. Military reinforcements were called. Police were firing large numbers of plastic baton rounds at the crowd. A commercial skip and a large piece of hoarding were being used by persons in the crowd to shield them from plastic baton rounds as they moved towards the police. An RUC inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed. According to his statement, he instructed the driver of a Saxon armoured personnel carrier (“the APC”), Private P., to advance towards the obstruction.

Dermot McShane fell underneath the hoarding over which the APC advanced. The circumstances in which the APC struck the hoarding, its speed, and the length of time which it remained on the hoarding are subject to dispute.

RUC officers reached Dermot McShane and arranged for his transfer by ambulance to hospital where he died a short time later. According to the pathologist who carried out the post mortem examination, his injuries were consistent with having been run over by the wheels of a vehicle while lying underneath a sheet of hoarding. He also had injuries on the thigh, consistent with being struck by a plastic baton round. No traces of petrol, paraffin or any type of fire accelerant were found which might suggest that Dermot McShane had been in contact with petrol bombs.

The police investigation and decision of the Director of Public prosecutions

At 6.17 a.m., Detective Constable Cooper attended the scene at which Dermot McShane had been hit. He removed the hoarding and a bloodstained bandage for inspection. Shortly afterwards, the scene was secured. The Government submit that the delay in crime scene procedures was due to crowd violence.

At 8 a.m., Detective Superintendent Houston was directed to undertake the investigation into the death. He appointed Detective Chief Inspector Cooke as Deputy Senior Investigating Officer.

At 10.05 a.m., photographs were taken of the scene. DS Houston attended, making arrangements inter alia for the mapping of the scene.

In the afternoon of 13 July 1996, statements were collected by the police from 13 members of the army, regarding the events. This included a statement from the driver of the APC which hit Dermot McShane. DS Houston informed the driver that he would interview him once he had undertaken other inquiries. The applicant states that this interview lasted six minutes after 7.10 p.m. After being cautioned, the driver replied that he had nothing to say at that stage. The driver had provided a pre-prepared written statement and was accompanied by his legal adviser. The statement said inter alia;

“I charged a sheet of corrugated iron in the centre of the street which was my target. While approaching the barricade I saw around 5/6 persons round it, most ran away on sighting me approaching but was unsure that I did or did not cause injury to any person.”

On 14 July 1996, the RUC began interviewing other witnesses. On 17 July 1996, the RUC issued a press release appealing for witnesses to the events to come forward. They collected statements from 115 persons, including 39 who had witnessed the relevant events. Of these, four persons were civilian witnesses and the remainder were RUC and army personnel. Of the 115 statements, 33 were taken in the first week following the incident and a further 28 in the following two weeks.

On 6 December 1996, the driver of the APC was interviewed again. In his statement, he stated that he had been instructed by an RUC inspector to remove the barricade, which was being used by rioters for cover. As he neared the barricade, he had revved the engine to give the rioters time to get away from the barricade. The vehicle hit the barricade which fell backwards. The vehicle mounted it and drove over. At that time, the driver was alone in the APC, without a person looking out and giving directions. His vision was through a slit about letter box size, 7-8 feet above the road. He could see only the top of the barricade, not behind or under it. He had not been aware that anyone was injured. When he stopped and people had climbed on the vehicle, saying that someone was injured, he had thought that this was a “come on”. When shown a video of the incident, he stated that he could see the vehicle brake lights illuminated, indicating that the vehicle stopped prior to striking the hoarding.

Expert evidence was gathered, including post mortem examinations of the deceased and various forensic analyses, inter alia of Dermot McShane’s blood, hair and clothing, the hoarding which he had used as a shield and the APC which had hit him. According to the applicant, the APC was not examined until two weeks after the incident - the report on the examination has not been provided to her. Other evidence collected included a transcript of the army and RUC communications at the time and a video of the incident recorded by Sky News.

On 9 June 1997, the RUC sent the file of relevant material to the DPP. Further inquiries were made by the police, leading to a final report to the DPP on 2 March 1998.

On 1 April 1998, the DPP directed that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder, manslaughter or dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. The applicant was formally notified of the decision not to bring criminal proceedings by letter dated 6 April 1998.

On 19 June 1998, the applicant lodged an application for judicial review of the decision not to prosecute in relation to the death of her husband. At a leave hearing on 30 June 1998, it transpired that the applicant had never formally requested the reasons for the decision. The hearing was adjourned pending that request.

By letter dated 11 September 1998, the DPP stated:

“As you are aware, the death of Dermot Patrick McShane occurred at approximately 1.30 a.m. on 13 July 1996 at Little James Street, Londonderry in circumstances of very serious and sustained rioting. Disorder was concentrated in the Strand Road, Great James Street, Little James Street, Waterloo Place and William Street areas of the city. The ferocity of the rioting was such that the police required military assistance.

A skip and hoarding were used by the rioters at the time in question in Little James Street as a shield/barricade from behind which missiles, including petrol bombs, were launched at police and military positioned at the junction of Great James Street and Little James Street. A decision was taken that baton rounds, which had been discharged to contain an advancing group of rioters shielded by the skip and hoarding, were ineffective the barricade should be removed. A military vehicle driven by a Private was deployed for this purpose, advanced and struck the hoarding knocking it to the ground. The deceased was behind and in very close proximity to the barricade as it was being removed. The Private stated, inter alia, during interview under caution that he could not see anyone behind it. The deceased sustained multiple injuries consistent with a crushing mechanism, which proved fatal.

The police investigation contains, inter alia, some 39 witness statements from persons who provided differing accounts of the removal of the hoarding, four of whom were civilians. The remainder were by police and military personnel. In addition, the incident was captured on film by a Sky News TV crew. The Private in question was interviewed by the police. He provided a witness statement on 13 July 1996. He was interviewed after caution on 6 December 1996. On that date, he provided oral answers and made a written statement after caution in regard to his conduct. The Private stated, inter alia, that as he approached the ‘barricade’ he ‘began to brake and revved up the engine to scare the rioters and clear the barricade’ and was ‘crawling forward’ when he hit the barricade.

On 19 December a further interim Direction was issued to the Chief Constable. The Director wished to obtain evidence from the Forensic Science Agency of Northern Ireland, inter alia, in respect of the speed the vehicle in question was travelling at or prior to the moment of impact, and the speed which the vehicle in question was capable of reaching in the time available. A forensic report was received in this office on 2 March 1998. This indicated, inter alia, that the vehicle in question could reach a theoretical maximum speed of 16 mph from a standing start at the junction of Little and Great James Street to the position of the barrier. It was noted that the vehicle was shown on the video to be braking over an unknown distance prior to impact with the barrier and that it was ‘axiomatic’ that the speed of the vehicle at the point of impact was substantially less than 16 mph.

All available evidence was then the subject of further careful consideration. The conclusion reached was that there was insufficient evidence to provide a reasonable prospect of conviction for the offence of murder. Further, there was insufficient evidence to provide a reasonable prospect of establishing the requisite degree of negligence for the offence of manslaughter. In addition, consideration was given to whether the evidence was sufficient to provide a reasonable prospect of conviction of causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. It was concluded that there was no reasonable prospect of establishing that the Private’s driving fell far below what would be expected of a competent and careful driver having regard to all the circumstances. …”

On 18 September 1998, the applicant withdrew her application for judicial review.

Anonymous witnesses

In October 1996, the Committee for the Administration of Justice (CAJ) published a booket entitled “The Misrule of Law” criticising the handling of events during the summer of 1996. Appendix III included extracts from certain anonymous statements from witnesses.

On 12 March 1997, the police wrote to the CAJ requesting that information relating to the names and addresses of witnesses be made available to the police enquiry. The applicant states that the CAJ contacted the witnesses to confirm whether they wished their names to be made available to the police. As they did not, the CAJ informed the police accordingly.

In the application submitted to the Commission on 18 November 1996, the applicant included a number of extracts from twelve statements taken from anonymous witnesses by the applicant’s solicitor.

They described the events of the evening in the following terms.

i.  Witness No. 80 described how he was in the area at about 1 a.m. He stated that there was a skip in Little James Street, behind which approximately 50 people were hiding. Next to the skip were 6 or 7 people hiding behind a large wooden board, approximately 2 metres by 1 metre, throwing petrol bombs, about 30 in an hour. At the other end of the street were approximately 60 police officers of the RUC in riot equipment firing plastic bullets.

ii.  Witness No. 86 was in the area taking photographs, behind the RUC and British Army lines. He stated that in Little James Street there was a barricade of a burning car and a skip, which had been there from the night before. A number of army vehicles, including Saxon APCs, formed a cordon across the road, and there were about 20-30 soldiers and approximately the same number of RUC officers behind them. There was an intensive barrage of missiles being thrown towards the cordon, and plastic bullets were being fired back continuously. He stated that there was considerable confusion. The cordon of vehicles then moved forward at walking speed with continuous firing of plastic bullets and some missiles incoming from the crowd.

iii.  Witness No. 101 was one of the people behind the hoarding, which he stated they were pushing towards the police, who were firing plastic bullets. The police made an advance towards the hoarding in their vehicles, and the witness dropped the hoarding. He saw it fall on Dermot McShane. He stated that he tried to indicate that there was someone under the hoarding, but one of the vehicles drove over it. At this point a group of police and soldiers came towards him with batons. He made a statement to the police.

iv.  Witness No. 100 was observing the events from his apartment. He saw the vehicle ram into the hoarding at a speed of 35-40 km per hour. The RUC moved in with batons.

v.  Witness No. 99 observed the vehicle come forwards onto the hoarding, and in his opinion it must have been obvious that someone was holding the board up. He stated that he shouted that there was someone under the board, but that the vehicle remained on top of it for some 10-15 minutes.

vi.  Witness No. 91 stated that when the vehicle was on top of the board, he shouted to the driver that there was a man underneath, but it stayed on top for 4-5 minutes. He attempted to pull Dermot McShane out.

vii.  Witness No. 86 stated that he observed RUC officers recover the body of Dermot McShane and attempt to administer first aid. There were four other photographers and a TV crew present, who were taking pictures until stopped from doing so by the RUC. This witness states that in a 4½ hour period he observed the RUC use 30 ammunition boxes, containing a total of 750 rounds of plastic bullets, and that the Army were firing a similar amount.

The Government obtained the Court’s permission to submit copies of these extracts to the DPP, which occurred on 14 February 2000, and an adjournment in the Court’s proceedings was granted to enable the DPP to consider whether any action was appropriate. The DPP enquired whether he was able to furnish copies of the statements to the police and whether the makers of the statements could be identified.

The applicant informed the Court on 27 March 2000 that the witnesses had given their statements on condition that their identity would not be disclosed to the police. They feared that they would become victims of harassment if their identities became known.

In the light of these constraints, the DPP concluded that there were no further steps which he could properly take under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order to obtain further relevant information. Accordingly, his direction of 1 April 1998 still stood.

The inquest proceedings

The investigation file was forwarded to Sergeant McFetridge on 22 May 1998 to prepare an inquest file. He briefed the Coroner as to the progress of the file on 26 November 1998. The inquest file was forwarded to the Crime Branch RUC Headquarters for examination on 7 January 1999. After examination, it was delivered to the Coroner’s office on 18 February 1999.

The Coroner listed the inquest for 13 and 14 December 1999 as the first suitable dates. The applicant requested an adjournment while she sought disclosure of documents from the RUC and Ministry of Defence. The Coroner acceded to her request. The applicant was not provided with full disclosure of documents.

Civil proceedings

By writ issued on 19 August 1999, the applicant commenced proceedings against the Ministry of Defence, the Chief Constable of the RUC and the Secretary of State for Northern Ireland, claiming damages in her own right and for the estate of Dermot McShane, arising out of the alleged negligence of the defendants and alleged breach of statutory duty. The grounds of negligence included the speed and manner in which the Saxon APC was driven, the failure to listen to the warnings given that a body was trapped under the hoarding, the failure to instruct the driver of the APC in appropriate tactics, the employment of a method of riot control which they should have known or ought to have known would cause death or serious injury and the failure to carry out a proper strategic assessment of the security situation before ordering the APC to charge civilians.

The defendants served a defence dated 20 June 2000, in which they claimed, inter alia, that the action was statute-barred as the claim had not been lodged within three years of the death.

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 prevention of crime (see e.g. Smith and Hogan on Criminal Law).

Inquests

a.  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 indirectly 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 (e.g. 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 liability or criminal charges.

The coroner enjoys the power to summon witnesses who he thinks should attend the inquest (section 17 of the 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.

b.  the scope of inquests

Rules 15 and 16 (see above) follow from the recommendation of the Broderick 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.

... < Previous judgments > make it clear that when the Broderick 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, R.v. South London Coroner ex parte Thompson (1982) 126 SJ 625)

COMPLAINTS

1.  The applicant complains that the killing of her husband, Dermot McShane, violated his right to life contrary to Article 2 of the Convention in that the force used was more than was absolutely necessary. She claims a further violation in that there has been no effective enquiry by the authorities. She argues that an inquest will not be an adequate remedy, due to the inadequacies of the system. Referring to a detailed report “Inquests and Disputed Killings in Northern Ireland”, published by the Committee on the Administration of Justice in January 1992, the applicant refers inter alia to the lengthy delays before an inquest occurs, the discretion of the Coroner as to whether there is an inquest at all, the specific rules with regard to witness statements and the calling of witnesses.

She submits that the inquest system in Northern Ireland is fundamentally flawed, providing no opportunity for investigating properly the causes of death, and failing to follow the basic rules for a fair hearing. The applicant further submits that civil proceedings would not be an effective remedy, due to the fact that the State does not hold its agents accountable, as evidenced by only four successful criminal convictions arising out of approximately 360 deaths caused by the security forces in the last 25 years.

2.  The applicant states that she has no effective remedy for the violation of Article 2, in breach of Article 13 of the Convention.

3.  She further states that there is a breach of Article 14 of the Convention in conjunction with Articles 2, 6 and 13, in that of approximately 360 killings of civilians by the security forces in the last 25 years, an overwhelming proportion of the victims have come from the nationalist community.

THE LAW

The applicant complains of the death of her husband, Dermot McShane, 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 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: Exhaustion of domestic remedies

The Government submit that the applicant’s complaints concerning the death of her husband are inadmissible for failure to exhaust domestic remedies, since she has not pursued to a conclusion the civil action which she commenced against the relevant authorities alleging unlawful killing. The trial would provide a detailed investigation into the facts and matters surrounding the death of Dermot McShane, and of all her allegations concerning the fault of the authorities regarding his death. If she was successful, this would result in a finding that the State was responsible for Dermot McShane’s death and an award of damages for the benefit of the applicant or the deceased’s estate. There were no exceptional circumstances for exempting the applicant from the requirement of exhaustion. Furthermore, if the applicant’s claims are rejected as time-barred, she will have failed to comply with the applicable time-limits and thereby her complaints will fail for non-exhaustion.

Insofar as she complains of the lack of prosecution in this case, the Government point out that she could have sought judicial review of the DPP’s decision not to prosecute and in that respect she has also failed to exhaust domestic remedies. As regards the allegations of an ineffective investigation, they also refer to the fact that she has not made available to the authorities the names of the anonymous witnesses whose statements she has submitted to the Court, and is therefore hindering the DPP and RUC in the performance of their functions.

The applicant argues that civil proceedings alone can never constitute a adequate remedy for the purposes of Article 35 § 1 of the Convention in such cases. Money damages in civil proceedings represented compensation primarily for financial loss to the dependants, not for the deceased’s loss of life itself. Article 2 is one of the most fundamental, non-derogable rights, and violation of its provisions could not be remedied exclusively through an award of damages. She referred to the case-law in which the Court had stated that Contracting States were under an obligation to conduct in cases of fatal assault investigations capable of leading to the identification and punishment of those responsible. (see amongst other cases Yaşa v. Turkey, no. 22495/93, § 74, ECHR 1998-IV, p. 2431, § 74).

The applicant also argues that the failure of the respondent State to comply with the procedural aspect of Article 2 cannot be pleaded in the domestic courts. In this respect, she has alleged, inter alia, that the investigations by the police were flawed and inadequate, that the DPP’s role is lacking in independence and that the inquest is limited in scope and effectiveness. Nor would she be able to raise any arguments under Articles 13 and 14 of 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 applicant’s husband, Dermot McShane, are under examination in two ongoing procedures, a civil action instituted by the applicant and an inquest conducted by a Coroner, a judicial officer acting under statutory duties, and that consequently there have been no findings of fact made by any domestic court or tribunal. 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 may provide adequate redress for the allegedly unjustifiable use of force which killed Dermot McShane, overlap with issues under Article 2 as to 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.

Article 35 § 3: abuse of petition

The Government submit that the applicant, by refusing to identify the anonymous witnesses who provided her with statements concerning the circumstances of her husband’s death, is hindering the DPP and the RUC in the performance of their functions. She should be estopped from bringing complaints to the Court about the effectiveness of the domestic investigation which stem to a significant degree from her own failure to disclose relevant evidence and information. In any event, they submit that the anonymous statements should not be admitted by the Court, as it would be unfair to rely on such untested evidence in reaching any findings of fact.

The applicant denied that she had obstructed the police investigation because of her refusal to release witness statements to the police. The statements were given in the aftermath of a public order crisis, in which Dermot McShane, had been crushed to death and public confidence in the police had been significantly undermined. The witnesses would only give statements on the undertaking that the statements would not be passed on to the police. The applicant’s representatives had contacted all the witnesses to verify whether they would agree to the statements being released and they had refused their consent.

The Court observes that the applicant claims that she is unable to provide the names of the witnesses to the authorities on grounds of undertakings of confidentiality. As there is no indication that the applicant is acting in bad faith in making this claim, the Court does not find that there are grounds for rejecting her application as an abuse of petition. It finds force in the Government’s arguments with regard to the fairness of relying on the statements in the Court’s proceedings and will take these arguments into account when assessing the factual basis of the applicant’s complaints on the merits.

The substance of the application

The Government do not accept the applicant’s claims under Article 2 of the Convention that her husband was deprived of his life intentionally or by any excessive or unjustified use of force. Nor was there any inadequacy in the guidance governing the use of force. 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, the inquest proceedings and civil proceedings. These secure the fundamental purpose of the procedural obligation in that they provide effective accountability for 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 submit that together the available procedures provide the necessary effectiveness, independence and transparency by way of safeguards against abuse.

The Government submit that, even assuming that there is an arguable breach of any of the rights invoked under the Convention, an effective remedy is provided for any breach of Article 2 by the procedures of criminal investigation, the civil proceedings for damage and the inquest proceedings. These are capable of satisfying the requirements of Article 13 of the Convention taken together. The applicant also had the possibility of challenging by way of judicial review the DPP’s decision not to prosecute.

As concerns allegations of discrimination under Article 14 of the Convention, they submit that there has been no breach of any other Convention Article, and the enjoyment of Convention rights by the applicant and her husband have not been undermined on any grounds of relevant status.

The applicant submits that her husband was intentionally killed. The vehicle driver deliberately struck, at speed, the hoarding behind which Dermot McShane was standing in order to cause serious injury or death to those using it as a shield. Alternatively, she submits that the death of her husband was the result of an unnecessary and disproportionate use of force by the security forces. It was obvious that there must have been persons sheltering behind the hoarding and the action of using an armoured vehicle to demolish it was disproportionate. Other courses of action were open to the security forces, including the option of withdrawal or the slow advance of a line of vehicles. Further, it appears that there was a breakdown in command structure, in that it was a RUC officer who instructed the driver of the APC, who was alone, to take action, while the military commander was preparing another vehicle for action. The use of the APC without an observer, where the driver had limited vision, could not be regarded as proper practice.

The applicant further submits that there has been no effective or prompt official investigation carried out into her husband’s death. She argues that the RUC investigation was inadequate and flawed by its lack of both independence and publicity. The DPP’s own role was limited by the RUC investigation over which he had no effective control, and his independence was open to doubt. The inquest procedure in Northern Ireland was flawed by the delays, the limited scope of the enquiry, a lack of legal aid for relatives, restricted 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.

Under Article 13 of the Convention, the applicant refers to her arguments concerning the procedural aspect of Article 2. She disputes that judicial review was an effective remedy in respect of the DPP’s decision not to prosecute, as the cases showed that he has a wide discretion and the courts would only overturn aberrant, inexplicable or irrational decisions. Under Article 14 of the Convention, she points to the large numbers of killings of Catholics and members of republican paramilitary groups by the security forces and police, compared with a disproportionately low number of prosecutions and convictions, as indicating that the security forces use lethal force against civilians and members of paramilitary groups in a highly discriminatory fashion.

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 unanimously

Declares the application admissible, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

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