APPLICATION/REQUÈTK ~ 16734/90 Laurence DUJARDIN and others v/FRANCE Laurence DUJARDIN c/FRANCE DECISION of 2 September 1991 on the admissibility of the application DECISION du 2 septembre 1991 sur la recevabilité de la requête Article 2, paragraph 1 of the Convention : The obligation to protect the right to life is not limitedfor the High Contracting Parties to the duty to prosecute those who harm life but implies positive preventive measures, without requiring the prevention of every possibility of violence. The fact that the French amnesty law adopted m the context of the settlement of conflicts between the various communities in New Caledonia results in the prosecution of the suspected murderers of the applicants' close relatives being discontinued does not infringe the right protected by Article 2 of the Convention Examination of the balance to be struck between the protection of the individual's right to life and the legitimate interests of the State Article 6, paragraph 1 of the Convention : The right of access to court does not include a right to have criminal proceedings instituted against third persons. Article 25, paragraph 1 of the Convention Close relatives of murdered persons considered to be victims of an alleged violation of Article 2 of the Convention (TRANSLATION) THE FACTS The applicants are the ten persons listed below : Laurence Dujardin, of French nationality, born in 1959, a secretary by profession, resident in Nogent le Rotrou, is the widow of Edmond Dujardin, one of the gendarmes murdered on 22 April 1988 ; Charles Dujardin, born in 1981, is the victim's son ; Edmond Dujardin and Marie-Rose Dujardin, French nationals bom in 1926 and 1929 respectively, resident in Mainvilliers, are the victim's father and mother ; Catherine, Marianne and Edouard Dujardin, French nationals born in 1956,1959 and 1962 respectively, likewise resident in Mainvilliers, are the victim's sisters and brother ; Linda Zawadzki. of French nationality, born in 1951, a clerical worker resident in Villeneuve d'Ascq, is the widow of Jean Zawadzki, one of the gendarmes murdered on 22 April 1988 ; Jean and Marguerite Leroy, French nationals bom in 1917 and 1919 respectively, retired and resident in Linselles, are the father and mother of Daniel Leroy, one of the gendarmes murdered on 22 April 1988. The applicants are represented by Mr. François Lamboley, National President of the association "Committee of 22 April 1988 in memory of the gendarmes of Ouvéa", registered under the Law of 1 July 1901. The facts, as submitted by the applicants, may be summarised as follows. On 22 April 1988 the gendarmerie brigade of Fayaoue on the island of Ouvéa in New Caledonia was attacked by a group of about fifty assailants who massacred four disarmed gendarmes, namely Edmond Dujardin, Daniel Leroy, Georges Moulie and Jean Zawadski. Knives were used to finish off two of these men who had been wounded. Criminal proceedings were instituted against the suspected perpetrators of these crimes. Following this tragedy the French Government brought in a bill introducing "statutory provisions in preparation for the granting of self-determination to New Caledonia in 1998". This bill, adopted by referendum on 6 November 1988, established an amnesty for offences other than murder committed before 20 August 241 1988 However, less than a year after the referendum the Prime Minister, the Minister for Overseas Departments and vanous other persons responsible for the Matignon agreements of 26 June 1988 apparently acknowledged that they had already committed themselvd to a general amnesty before the referendum On 20 December 1989 the National Assembly adopted the bill establishing a general amnesty The law was published in the Official Journal on 10 January 1990 Consequently, it has not been possible to bring the cnnimal proceedings m the present case to a conclusion No reconstitution of the facts has taken place The direct witnesses have not had the opportunity to speak to the investigating judge dealing with the case COMPLAINTS The applicants allege a violation of Articles 2 and 6 of the Convention They mainLiin that French law is defective in this regard They complain, firstly, that in a decision dated 7 March 1990 the Conseil d'Etat, with which the "Committee of 22 April 1988 m memory of the gendarmes of Ouvea" had lodged an application to have the referendum held on 6 November 1988 annulled or, in the alternative, to have the case referred lo the Constitutional Court, declared their applicalion inadmissible because it lacked jurisdiction to scralinise legislation Secondly, the applicants were unable to refer the case to the Conslituiional Court directly Accordingly, they consider that the Convention for the Protection of Human Rights and Fundamental Freedoms can make good the deficiencies of French domestic law They nuintain in the first place that the right of everyone to protection of life within the meaning of Article 2 of the Convention has been infringed in this case ~ so far as the amnesty law put an end to the judicial investigation and trial France thus allegedly failed to meet its obligations under that provision of the Convention In the second place, the applicants seem to be complaining that they did not have access to a tribunal within the meaning of Article 6 of the Convention because the amnesty law led to the prosecution being abandoned and thus made it impossible to bring cnmmal charges against the suspected murderers of their close relatives 242 THE LAW The applicants, close relatives of the gendarmes murdered during the attack which took place on 22 Apnl 1988 on the island of Ouvéa in New Caledonia, complain that Law No 90-33, published in the Official Journal on 10 January 1990, establishing a general amnesty for offences committed dunng the events which occurred in New Caledonia, depnved them of the guarantees enunciated in Articles 2 and 6 of the Convention to which they considered that they could lay claim on account of their status as close relations of the victims The Commission observes from the outset that because of the nature of the complaints they raise some of the applicants at least, if not all, can claim to be ' victims" within the meaning of Article 25 of the Convention In this connection it refers to its case law (No 9348/81, Dec 28 2 83, D R 32 p 190 and No 9833/82, Dec 7 5 85, D R 42 p 53) The applicants maintain in the first place that they suffered prejudice because the French State, by adopting a law establishing a general amnesty for all offences committed dunng the events which occurred in New Caledonia, particularly the murders of their close relatives, leading to the abandonment of prosecution, failed to meet its obligations under Article 2 of the Convention, namely to protect life The Commission's approach to the Inte~~etatlon of Article 2 must be guided by a recognition that it constitutes one of the most important nghts in the Convention, from which no derogation is permissible, even in times of public emergency Article 2 requires that the nght to life "shall be protected by law" (see No 10044/82, Dec 10 7 84, DR 39 p 162) The Commission takes the view that Article 2. paragraph I of which slates that "everyone's nghi to life shall be protected by law", may, like other Articles of the Convention (see Eur Court H R , Marckx judgment of 13 June 1979, Series A no 31, p 14, para 31) impose positive obligations on the State That does not mean a positive obligation to prevent every possibility of violence can be derived from the provision concerned (see the previously cited decision No 9348/81) The Commission observes in that connection that French legislation undoubtedly secures protection of life in so far as the crime of murder is a punishable offence in French criminal law Admittedly, as with any criminal offence, the cnme of murder may be covered by an amnesty That in itself does not contravene the Convention unless It can be seen to form part of a general practice aimed at the systematic prevention of prosecution of the perpetrators of such crimes The Commission notes that as a result of the amnesty law adopted ~ this case in the light of the special circumstances, i e the political situation in New Caledonia. the prosecution of those suspected of murdering the applicants' close relatives lapsed 243 Accordingly, the question which anses is whether this infnnged the nght protected by Anicle 2 of the Convention The Commission considers in this connection that the amnesty law, which is entirely exceptional ~ character, was adopted in the context of a process designed to resolve conflicts between the vanous communities of Ihe islands It IS not for the Commission to assess the advisability of the measures taken by France to that end The State is justified in adopting, in the context of its cnmmal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is mainuined between the legitimate interests of the State and the interests of individual members of the public in having the nght to life protected by law In the present case, the Commission considers that such a balance was maintained and that there has therefore been no breach of the above mentioned provision in this respect, therefore, the application is manifestly ill founded and must be rejected, pursuant to Article 27 para 2 of the Convention As for the complaints raised under Article 6 of the Convention, the Commission notes that the application is not very precise m that the applicants seem to be complaining that they did not have access to a court m order to contest the legislation in question However, the nght of access to a court set forth in Article 6 para 1 ot the Convention does not include the right to instigate criminal prosecutions [n that connection the Commission refers to its established case law (see No 9777/82, Dec 14 7 83. DR 14 p 158) It follows that this complaint is incompatible with the provisions of Ihe Convention within the meaning of Article 27 para 2 For these reasons, unanimously, the Commission DECLARES THE APPLICATION INADMISSIBLE 244