SHANAGHAN v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37715/97
by Mary Theresa SHANAGHAN
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 3 October 1996 and registered on 10 September 1997,

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 19 October 1998 to communicate the application,

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

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

Having deliberated, decides as follows:

THE FACTS

The applicant, an Irish citizen born in 1924, is the mother of Paul Shanaghan who was killed on 12 August 1991 in Castlederg, Northern Ireland.

The applicant is represented before the Court by Mr P. Mageean, a solicitor practising in Belfast and working for the Committee for the Administration of Justice.

A.Particular circumstances of the case

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

Patrick Shanaghan was a thirty year old Catholic and active member of Sinn Fein when he was killed.

The Royal Ulster Constabulary (RUC) suspected him of being an IRA member and that he was involved in terrorism. Between 15 April 1985 and 19 May 1991 he was arrested and detained pursuant to investigations into acts of terrorism in Northern Ireland. Six of the ten arrests resulted in detention for four or more days. He was never charged with any crime.

Patrick Shanaghan gave several written statements to his solicitors alleging physical assaults by RUC officers while in custody, including being punched in the back, punched under the chin with a clenched fist, stabbed in the throat with extended fingers, slapped in the face, having his arms wrenched back and forth repeatedly, being forced to keep a crouched position for hours, having his head struck against a wall, and being hit and kicked in the testicles. On several occasions the applicant alleges that RUC detectives threatened to kill her son during interrogations, for example, by telling him that “Loyalists in Castlederg know you now and they’ll get you”.

During his detention in Castlereagh from 9 to 15 April 1986, it is recorded that Patrick Shanaghan complained to a doctor that he had been ill-treated - this referred only to the pulling of his hair and the forcing back of his fingers. The doctor reported this to the custody sergeant, who invited Mr Shanaghan to make a written statement. Mr Shanaghan declined to reply. He also declined to reply when the custody sergeant asked him if he would be willing to attend a police disciplinary hearing.

On 4 April 1989, Patrick Shanaghan instituted proceedings against the Chief Constable of the RUC for alleged assault, battery, trespass to the person, unlawful arrest and unlawful imprisonment in respect of his detention from 9 to 15 April 1986. These were discontinued by him on 3 September 1990.

The applicant also claims that there was an attempt on Patrick Shanaghan’s life, on 17 February 1989, but that he managed to escape. The RUC were called but no charges have been brought against a suspect for the murder attempt. When he was arrested a year later, in February 1990, he publicly stated that RUC officers repeatedly mentioned this murder attempt during interrogation and one officer claimed, “We won’t miss next time”.

According to the applicant, the RUC warned Patrick Shanaghan twice that he was under threat from loyalist paramilitary groups. In December 1990, RUC detectives informed him that, on 10 December 1990, security force documentation containing his personal information, including a photographic montage, had accidentally fallen out of the back of an army vehicle into the hands of loyalist paramilitaries. A letter dated 11 January 1991 was sent to the RUC by Mr Shanaghan’s solicitors who requested, as a matter of urgency in order to assess the risk to his life, information relating to the documentation, including the type of information lost, dates when the information was first recorded, the exact date and under what circumstances it went missing, copies of photographs and addresses included in the files, and information in relation to the social movement and employment of persons involved in handling the files. On 29 July 1994, nearly three years later, the RUC responded to this letter by stating that the police investigation was concluded and that the document had been accidentally lost by the Army. On 27 April 1991, Sergeant Norden of the RUC called at Mr Shanaghan’s home and informed him that he had received information to suggest that he was being targeted by loyalists.

The Government have given further details about the loss of the photographs. They state that on 10 December 1990 during the journey of an army patrol vehicle from Rockwood Base to Hump Vehicle Checkpoint near Strabane in County Tyrone, the rear doors of the vehicle fell open and a helmet, armoured vest and combat suit belonging to one of the drivers fell from the vehicle. The jacket of the combat suit contained three terrorist recognition photographic montages comprising a total of 38 photographs, including some of Patrick Shanaghan. Upon arrival, it was discovered that the said equipment was missing and a search carried out of the route, which resulted in the recovery of the helmet. The officer responsible for the missing equipment was cautioned and interviewed by the Special Investigation Branch about the loss of the photographic montages. He was subsequently reported and disciplinary proceedings instigated against him. The officer attended a disciplinary interview with his Brigade Commander. No formal disciplinary sanction was recorded as imposed, although the Government state that it is possible that he received a formal rebuke which would not have been recorded. The RUC informed Mr Shanaghan promptly of the loss of the photographs but did not, the applicant alleges, inform him that they had fallen into the hands of loyalist paramilitaries. There is no evidence who, if anyone, recovered the photographs or that they played any later role in events.

Patrick Shanaghan was stopped and questioned by RUC and UDR officers on a daily basis. The Shanaghan family home which the applicant shared with her son, was searched sixteen times between 1985 and 1991. No illegal material was ever found. According to the applicant, sometimes the RUC would not even enter certain rooms indicating that the search was not a concerted effort to locate and seize illegal material but was carried out solely to harass the family.

At about 8.30 a.m. on 12 August 1991, the applicant’s son was driving his van (a yellow Bedford van) to his job when he was shot dead by a masked gunman.

The UFF (Ulster Freedom Fighters - a loyalist organisation) later claimed responsibility for the murder in the local press.

The RUC investigation

RUC officers arrived at the scene shortly after the shooting was reported. A scene of crimes officer attended the scene and recovered bullet casings and glass samples. The scene was photographed, including the tyre impressions. These items were analysed by a member of the Northern Ireland Forensic Science Laboratory.

At 2.30 p.m. on the same day, a post mortem examination disclosed that Patrick Shanaghan had died from a bullet wound to the chest.

Shortly after the shooting, the RUC discovered a car which they believed had been used by the people involved in the shooting. However, a forensic and fingerprint examination disclosed no evidence to connect it with any person suspected of the murder. Enquiries showed that the car had been recently bought for cash by unknown persons from a private vendor.

As later revealed in the Inquest, the investigating police officer believed that he knew the identity of the persons involved in the killing but had no evidence to prove it. Several suspects had been arrested and interviewed but no evidence of admission had been obtained from them.

The Inquest

An inquest into the killing was opened on 26 March 1996, over four and a half years after the murder. The RUC file had been transmitted to the Coroner on 14 January 1994. The delay in their inquiries resulted, according to the Government, from the extent of other criminal activities requiring police attention in the Castlederg area at that time. The inquest was further delayed to February 1996 pending the completion of further inquiries required by the Coroner.

No explanation was given to the Shanaghan family to account for this delay. During this period, the family had not known whether any murder investigation had been conducted by the police and were not provided with any indication as to the nature of the RUC’s findings, if any, as to how the applicant’s son had died.

The inquest was heard on six days, between 26 March and 20 June 1996. It was presided over by the Coroner who sat with a jury and was assisted by a lawyer. The RUC were represented by counsel and a solicitor.

During the inquest, the solicitor acting for the family of Patrick Shanaghan sought to introduce evidence in support of allegations that the RUC had prior knowledge that he was to be murdered, that the RUC had made threats against him and that the police investigation had been inadequate. This consisted of evidence from a forensic science consultant who criticised the RUC for not taking a plaster-cast of car tyre impressions found at the scene of the crime, and the oral testimony of D.C. who claimed to have been told by Patrick Shanaghan of threats to his life made by RUC officers and who have heard such threats made by officers when he himself was in custody. When the Coroner accepted that the evidence should be admitted, the RUC Chief Constable applied for judicial review of those decisions. On 18 June 1996, the High Court quashed the Coroner’s decision, holding that:

“… it is now well-settled in the jurisprudence on this topic that a Coroner’s function is not, and one may say emphatically not, to conduct a wide-ranging inquiry into the broad circumstances in which a deceased has met his death. It is now clearly established by the decisions to which I have referred that the word “how” should receive the connotation “by what means” and it seems to me ... that it cannot be the case that the evidence in relation to the calibre of the police investigation - the quality of the police investigation - touches upon the means by which Mr. Shanaghan was killed. Rather it is directly relevant to the possible criticism of the standard of the police investigation and that … goes well beyond the scope of the inquiry of the Coroner. By the same token I consider that the evidence ... from Mr ... is not germane to the question which the Coroner and the jury must decide and that is by what means the deceased met his death. Evidence has already been given without apparent challenge that the deceased was the target of loyalist terrorists before he was murdered. That evidence has not been disputed and is no way controversial and in those circumstances it appears to me that the only issue which Mr ‘s evidence could shed light upon is whether these threats were uttered by police officers. That, for the reasons I have already referred to, is not a matter for the Coroner’s inquest to enquire into ...”

The Coroner refused to admit in evidence statements made by Patrick Shanaghan to his solicitors. The applicant states that her original statement was edited by the RUC to exclude references to police collusion when it appeared in a Coroner’s deposition.

On 20 June 1996, the Coroner’s Inquest issued the verdict that Patrick Shanaghan had died on 12 August 1991 on Learmore Road in Castlederg from a bullet wound to the chest.

On 14 July 1996, the applicant made a complaint about the conduct of the RUC at the scene of the shooting in denying Dr Stewart access to the body and in failing to call an ambulance. This complaint was investigated by an assistant chief constable, under the supervision of the Independent Commission for Police Complaints, as a result of which the Inspector concerned was given advice which was recorded in the Divisional Discipline Book.

A Superintendent of the RUC Complaints and Discipline Section of the RUC made attempts to investigate the allegations made by D.C. By letter of 2 October 1996, D.C.’s solicitors replied that their client would not make a statement concerning Patrick Shanaghan as none had been sought at the time of the incident. Attempts were made to take statements from other three other witnesses mentioned at the inquest, only one of whom agreed.

Unofficial inquiry

A community inquiry into the circumstances surrounding the murder was organised by family and friends after the conclusion of the inquest in the hope that the whole truth about the murder could be revealed. The inquiry, conducted by the Castlederg-Aghyaran Justice Group and chaired by a retired United States Judge, Andrew Somers, heard thirteen witnesses over the period 17-19 September 1996. The witnesses included family, local residents and friends of the deceased. The Judge concluded that the applicant had been murdered by the British Government and, more specifically, with the collusion of the RUC.

Civil proceedings

On 22 July 1994, the applicant issued a writ against the Chief Constable of the RUC and, by amendment of 15 September 1994, against the Ministry of Defence also. The writ was served on 17 July 1995. In the proceedings, the applicant claimed damages for loss and damage sustained by her and the estate of her son by reason, inter alia, of negligence, breach of confidence and misfeasance in public office relating to the storing, handling and use of information.

On 19 July 1995, the defendants gave notice of intention to defend the proceedings. No further steps have been taken.

B.Relevant domestic law and practice

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 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

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

Article 2 of the Convention

The applicant complains that the authorities violated her son’s right to life under Article 2 of the Convention in that members of the police colluded in his death. The applicant believes that the refusal to allow her the opportunity of presenting evidence pointing to such collusion at the inquest is also a violation of Article 2. The applicant further complains that the inquest did not represent an effective ex post facto inquiry, as necessitated by Article 2 of the Convention.

The applicant submits that the inquest brought to light evidence to support the belief that police collusion was involved in her son’s murder. The applicant also submits that the inquest raised some serious concerns regarding the RUC’S conduct at the scene of the crime and the standard of police investigation into her son’s murder, thereby demonstrating the inadequacies of the inquest system.

Article 13 of the Convention

The applicant also complains that the respondent State violated Article 13 in that she had no effective remedy before a national authority.

Article 14 of the Convention

Finally, the applicant complains that the authorities violated Article 14 in conjunction with Article 2, in that the vast majority of the victims of collusion come from the nationalist community.

THE LAW

The applicant complains of the death of her son Patrick Shanaghan, invoking Articles 2, 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 of the Convention: exhaustion of domestic remedies

The Government submit that the applicant’s complaints concerning the death of her son 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 collusion in an unlawful killing. They point out that the determination of the applicant’s central complaints - whether or not her son was killed in circumstances falling within the responsibility of the Government to protect the right to life under Article 2 - will depend on an assessment of all the facts of the case and these circumstances, in particular the existence of a link between the members of the security forces and the loyalist gunmen who shot Patrick Shanaghan, are also at the heart of the civil proceedings launched by the applicant. If the allegations in those proceedings are well-founded, domestic law will provide the applicant 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 applicant argues that civil proceedings taken at the initiative of relatives are plainly inadequate to remedy her complaints under the procedural aspect of Article 2, which, she submits, places the responsibility on the State to furnish an effective investigation into the killing. They are also inadequate and ineffective in respect of her substantive complaints under Article 2. She submits 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 death of her son was also not an isolated occurrence but one of many cases of collusion where members of the security forces passed on information to loyalist paramilitary groups who used it to target alleged IRA members or sympathisers. No case about collusion however has ever resulted in a hearing in the High Court, the State for example resisting all attempts by the widow of Patrick Finucane to obtain the disclosure of documents which might disclose State awareness of the plan to kill him. She also submits that the pending civil proceedings concern only the loss of the information and not the many other problems and inconsistencies in the case.

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 some of the facts surrounding the killing of the applicant’s son are pending examination in the civil action and that consequently there have been no findings of fact in relation to the allegations raised in those proceedings. It recalls that the inquest, which examined the circumstances of the killings, did not concern the allegations of collusion and the inadequacy of the RUC investigation raised by the applicant. 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 alleged collusion by the State in unlawful killing overlap with issues under Article 2 as to the extent to which an effective criminal investigation capable of leading to a prosecution must 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 applicant’s claim under Article 2 that her son was killed as a result of any collusion between the security forces and loyalist terrorists 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 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 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.

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.

Although in this case the Government have not expressly addressed the Article 14 complaint, in the other cases heard with the application, (nos. 24746/94 Jordan v. the United Kingdom, 28883/95 McKerr v. the United Kingdom and 30054/96 Kelly and others v. the United Kingdom), they have denied that any of the deaths which have occurred in Northern Ireland form part of a pattern or are capable of disclosing a difference of treatment under Article 14. Bald statistics (the accuracy of which is not accepted) are not enough to establish broad allegations of discrimination against Catholics or nationalists.

The applicant submits that her son was killed as a result of collusion between members of the security forces and loyalist paramilitaries and that he was the victim of a widespread pattern of killings in which the authorities were aware of, and involved in, the targeting of persons perceived as IRA members or sympathisers. She submits that there has been no effective official investigation carried out into the killing, relying on the international standards set out in the Minnesota Protocol. She argues 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 in any case. 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.

Under Article 13, the applicant refers to her arguments concerning the procedural aspect of Article 2 and, under Article 14, to the fact that the vast majority of victims of collusion come from the nationalist community.

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