AS TO THE ADMISSIBILITY OF



                      Application No. 17579/90
                      by John KELLY
                      against the United Kingdom


      The European Commission of Human Rights sitting in private on
13 January 1993, the following members being present:


           MM.   C.A. NØRGAARD, President
                 J.A. FROWEIN
                 S. TRECHSEL
                 F. ERMACORA
                 E. BUSUTTIL
                 G. JÖRUNDSSON
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 J.-C. SOYER
                 H.G. SCHERMERS
                 H. DANELIUS
           Sir   Basil HALL
           Mr.   F. MARTINEZ
           Mrs.  J. LIDDY
           MM.   M.P. PELLONPÄÄ
                 B. MARXER
                 G.B. REFFI

                 Mr. H.C. KRÜGER, Secretary to the Commission


      Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 4 December 1990
by John Kelly against the United Kingdom and registered on
19 December 1990 under file No. 17579/90;

      Having regard to

-     reports provided for in Rule 47 of the Rules of Procedure of the
      Commission;

-     the written observations submitted by the respondent Government
      on 1 May 1992 and the observations in reply submitted by the
      applicant on 25 July 1992;

-     the oral submissions made by the parties at a hearing on
      13 January 1993;

      Having deliberated;

      Decides as follows:



THE FACTS

      The applicant is an Irish citizen born in 1937 and resident in
Belfast.  He is represented by Trevor Smyth and Company, Solicitors
practising in Belfast.

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

      On 18 January 1985, the applicant's son P., who was 17 years old,
and four other youths went riding in a stolen car, a Ford Granada, in
Belfast.  The car was handed over to the youths in West Belfast.  For
reasons not explained it was driven into South and East Belfast, areas
where it was more likely to be intercepted. They stopped in the
vicinity of a house belonging to a member of the Security Forces and
one of the youths in the car attempted to steal the car outside. The
description of the stolen car and the fact that it had been seen in the
vicinity of the house of a member of the Security Forces was
transmitted over the radio to units in the area.  Two detachments of
soldiers of the Ulster Defence Regiment in Land Rovers had been
patrolling in South and East Belfast and stopping vehicles at
checkpoints.  Shortly after midnight they were ordered to set up a
joint vehicle checkpoint in Stockman's Lane, a road leading towards
West Belfast.

      P. was driving the stolen car when, at about midnight, it entered
Stockman's Lane. It was noticed by one of the units, which too had just
entered Stockman's Lane at another point, and the occupants of the
stolen car were observed to duck down below the window. The unit
reported the presence of the car by radio and continued to follow it
down Stockman's Lane at a cautious distance.

      The commander of the other detachment decided to set up a snap
vehicle checkpoint on the roundabout at the west end of Stockman's Lane
from which there are exits to the M1 motorway and to Kennedy Way,
leading to West Belfast.

      At the roundabout, the UDR detachment positioned their Land Rover
in the middle of the roadway and began to set up the checkpoint. A
Cortina arrived and stopped near the Land  Rover. Members of the unit
immediately went to check the identity of the occupants who they asked
to get out of the car. Another member of the unit went to get a caltrop
from the back of the Land Rover.

      At this point, the stolen car driven by P. appeared on the
roundabout. It stopped abruptly and then began to reverse away from the
checkpoint at considerable speed. It collided with the UDR Land Rover
approaching from behind.  P. then drove the car forwards where it
collided with the Cortina waiting at the checkpoint.  During these
manoeuvres soldiers had run towards the car waving and shouting at it
to stop. One soldier had to dive out of the path of the car to avoid
being struck while another attempted to break the window at the
driver's seat with his rifle butt.

      As the car hit the Cortina in the rear, the force of the impact
shunted it into the Land Rover in front and in this collision one
soldier was knocked over and another pinned between the two vehicles,
both sustaining minor injuries.  As P. proceeded to attempt to drive
round the checkpoint, he hit the Cortina once more and scraped along
the side of the Land Rover. The car then passed the checkpoint by
mounting onto the central reservation and returning to the roadway,
heading at speed for the exit roads further round the roundabout. P.
appeared to be trying to turn into Kennedy Way, failing and then making
for M1 exit.  Before reaching it the car came off the road, knocking
down two concrete posts and being held by chain link wire.  The
soldiers opened fire as the car passed the checkpoint, firing about 14-
15 rounds.  P. died as a result  of gunshot wounds and two others were
struck by bullets, one of whom was trying to run away from the car.

      The applicant brought an action against the Ministry of Defence
for assault, battery and negligence in that the death of his son was
the result, inter alia, of excessive and unjustifiable force.  The
claim was heard in the High Court from 28 November to 2 December 1988.

      After hearing evidence from several of the youths in the car, and
from the soldiers involved in the shooting, the High Court judge found
on 13 January 1989 that the soldiers had formed the genuine belief that
the occupants of the car were terrorists making a determined attempt
to escape from the checkpoint and that use of force to prevent that
escape was justified in the prevention of crime, i.e. further terrorist
activities.

      The judge held, inter alia:

      "I had an opportunity to assess these witnesses over a
      fairly extended period as they gave their evidence, which
      was fully tested in cross-examination. I am satisfied that
      each did form a genuine belief that the occupants of the
      Ford Granada were terrorists who were making a determined
      attempt to escape from the checkpoint. I further consider
      that the belief entertained by each soldier, considered
      individually, was reasonable in the circumstances of the
      case. Each knew that the car was stolen, and each saw the
      driver resort to unusually determined and violent measures
      to get his vehicle through the checkpoint. The checkpoint
      was at a natural access point to West Belfast for vehicles
      coming from South Belfast. I think that the conclusion
      reached by the soldiers that the manner of driving of the
      car was not indicative of a drunken driver or joyriders was
      reasonable. The several factors operated in their minds to
      bring them to the conclusion that it contained determined
      terrorists, bent on making good their escape. In my opinion
      that conclusion was on the facts of this case a reasonable
      one for each to reach...

      ... the intention of the soldiers in shooting at the car
      covered both these objectives <of the prevention of crime
      and the effecting of a lawful arrest>.  Although some of
      them expressed it in terms only of arresting the occupants
      of the car, I think that consideration of the soldiers'
      evidence as a whole shows that they intended to stop the
      car, with the object of apprehending the occupants and
      preventing them from escaping and carrying out further
      terrorist missions.  The one act of stopping the car might
      readily have achieved both objectives, on the facts which
      the soldiers believed to be correct, and can be regarded as
      directed towards both....

      The method of stopping the car to which the soldiers had
      resort was to shoot at it with their rifles.  The modern
      military rifle is a high-powered and accurate weapon, and
      each of the soldiers was aiming at the car in order to hit
      the driver and so bring the vehicle to halt.  If he hit his
      target, there was a high probability that the shots would
      kill him or inflict severe injury.

      There was also a considerable risk that the passengers,
      particularly those seated behind the driver, would sustain
      serious or possibly fatal injuries from the bullets fired
      or fragments scattered on impact with the car.  The action
      of the soldiers has to be considered on the footing that it
      was designed to kill or seriously to injure the driver,
      with knowledge of the risk of death or injury to the
      passengers.  It could only be regarded as a reasonable
      action if the risks to the public involved in allowing a
      car containing terrorists to escape outbalance in the
      scales of reason the danger of inflicting death or serious
      injury to its occupants.  In weighing these considerations
      one has to take account of the fact that the only weapons
      available to the soldiers were their rifles, and they
      either used them to effect or took no action to stop the
      car.  There had not been time to get the caltrop out and
      lay it across the road, which might have formed a
      sufficient means of stopping it.  It was not suggested, nor
      would I have been attracted to the suggestion if it had
      been advanced, that it was possible to immobilise the car
      effectively by shooting at the tyres or the engine block.
      The use of a firearm must in my view be an expedient of
      last resort, but when it is brought into service that can
      only usefully be done by shooting at the driver.

           It is reasonable to take such a course only if the
      justification is shown to be sufficient...

      In the present case the mischief which the soldiers
      intended to prevent by firing at the driver of the car was
      the escape of a number of terrorists, as I have found they
      reasonably thought the occupants of the car to be. Ex
      hypothesi the driver at least out of those occupants was
      regarded by the soldiers as a person who was so intent on
      escaping capture that he was prepared to break through a
      checkpoint by knocking vehicles out of his path, reckless
      of injury to any persons who might be in the way. A person
      so determined to escape capture, and probably his
      associates, would be likely to be active and committed
      terrorists, who would very probably continue to commit
      terrorist crimes if allowed to go free. The checkpoint was
      the only place at which it was likely to be possible to
      stop them, and if they escaped it they would retain their
      liberty to engage in attacks upon the community of the
      nature perpetrated by terrorist organisations. The harm to
      which the occupants of the car were exposed when the
      soldiers aimed at the driver was predictable and grave and
      the risk of its occurrence was high. But in my opinion the
      kind of harm to be averted (as the soldiers reasonably
      thought) by preventing their escape was even graver - the
      freedom conferred on active and dangerous terrorists to
      resume their activities of dealing in death and destruction
      and, in Lord Diplock's words,

           `encouraging the continuance of the armed
           insurrection and all the misery and destruction
           of life and property that terrorist activity in
           Northern Ireland has entailed.'<Attorney General
           for Northern Ireland's Reference 1976 N.I. 169>

      In my judgment the justification for opening fire upon the
      car has been shown to be sufficient, and I accordingly hold
      that the defendant has discharged the burden of proving
      that the act of the soldiers in firing at it was the use of
      such force as was reasonable in the circumstances in the
      prevention of crime. .."

      The applicant appealed to the Court of Appeal alleging, inter
alia , that the judge had erred in holding that the act of the soldiers
in firing was the use of reasonable force or for the purpose of the
prevention of crime.

      The Court of Appeal in Northern Ireland dismissed the applicant's
appeal on 10 October 1989, finding that the judge had correctly applied
the law as to the justified use of force.

      Leave to appeal to the House of Lords was refused on
11 June 1990.

      Relevant Domestic Law and Practice

      Section 3 (1) of the Criminal Law Act 1967 provides:

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


COMPLAINTS

      The applicant complains that the death of his son constituted a
deprivation of life in contravention of Article 2 of the Convention.
He submits that the use of force was not justified under Article 2
para. 2 (a) (b) or (c).  In particular he complains that the courts
failed to afford protection to the right to life in that they held that
the use of force could be justified without the existence or suspected
existence of an actual or specific crime and that prevention of crime
could include an unspecific crime to be committed at a remote future
time.


PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 4 December 1990 and registered
on 19 December 1990.

      On 12 December 1991, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.

      The Government's observations were submitted on 1 May 1992 after
one extension in the time-limit and the applicant's observations in
reply were  submitted on 25 July 1992 also after one extension in the
time-limit.

      On 22 May 1992, the Commission decided to grant legal aid to the
applicant.

      On 10 September 1992, the Commission decided to hold an oral
hearing on the admissibility and merits of the case.

      At the hearing, which was held on 13 January 1993, the parties
were represented as follows:


For the Government:

Mrs. Audrey GLOVER               Agent
                                 Foreign and Commonwealth Office
Mr. Brian KERR, Q.C.             Counsel
Mr. Nicholas BRATZA, Q.C.        Counsel
Mr. David SEYMOUR                Adviser, Home Office
Mrs. Christine COLLINS           Adviser, Northern Ireland Office
Mr. James HARRISON               Adviser, Ministry of Defence
Mr. Iain CHRISTIE                Adviser, Foreign and Commonwealth
                                 Office



For the applicants:

Mr. Phillip MOONEY, Q.C.         Counsel
Mr. Hugh Martin RODGERS, B.L.    Counsel
Mr. Harold DAVIDSON              Solicitor


The applicant was also present.



THE LAW

      The applicant complains that his son was deprived of his life in
violation of Article 2 (Art. 2) of the Convention.

Exhaustion of domestic remedies

       The Government submit that the applicant has failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the Convention
since he did not raise before the Court of Appeal the specific argument
that the words "prevention of crime" should refer to an act being
committed or about to be committed rather than a crime to be committed
at a remoter future date or time.

      The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach  (cf. No. 9248/81, Dec. 10.10.83, D.R.34 p.78).

      It is furthermore established that the burden of proving the
existence of available and sufficient domestic remedies lies upon the
State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of
27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80,
Dec. 11.12.82, D.R. 30 p. 96, at p. 102).

       In the present case the Commission notes that the applicant's
grounds of appeal had included the argument in general terms that the
conduct in issue was not "in the prevention of crime". Further the
issue had already been considered in a previous case before the House
of Lords, referred to and relied upon by the High Court judge and there
is no indication that raising it before the Court of Appeal would have
had any prospect of success. The Commission accordingly finds that the
application cannot be declared inadmissible for non-exhaustion of
domestic remedies.

Article 2 (Art. 2) of the Convention

      Article 2 (Art. 2) of the Convention provides:

      "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."

      The applicant submits that the killing of his son by soldiers as
he attempted to drive round a vehicle checkpoint in a stolen car was
in violation of the above provision since it could not be regarded as
"absolutely necessary" for one of the purposes specified in the second
paragraph.

      The Government have submitted that the use of force pursued the
objective of effecting a lawful arrest and was not disproportionate to
that aim, given the finding of the High Court judge that the soldiers
reasonably believed that the occupants of the car were terrorists,
determined to break through the checkpoint violently, and that the only
action open to them to stop the car was to open fire.

      As a preliminary remark, the Commission would emphasise that the
situations where deprivation of life may be justified are exhaustive
and must be narrowly interpreted. The use of force which has resulted
in a deprivation of life must have been shown to have been "absolutely
necessary" for one of the purposes set out in the second paragraph. The
Commission has held that the test of necessity includes an assessment
as to whether the interference was proportionate to the legitimate aim
pursued and that the qualification of the word  "necessary" by the
adverb "absolutely" indicates that a stricter and more compelling test
of necessity must be applied than in context of other provisions of the
Convention. More specifically, the Commission considered that :

      " ...Article 2 para. 2 (Art. 2-2) permits the use of force for
      the purposes enumerated in sub-paragraphs (a), (b) and (c)
      subject to the requirement that the force used is strictly
      proportionate to the achievement of the permitted purpose.  In
      assessing whether the use of force is strictly proportionate,
      regard must be had to the nature of the aim pursued, the dangers
      to life and limb inherent in the situation and the degree of the
      risk that the force employed might result in loss of life.  The
      Commission's examination must have due regard to all the relevant
      circumstances surrounding the deprivation of life" (No. 10444/82,
      Dec. 10.7.84, D.R. 39 p.162, at p. 169-171).


      As regards the objective of the shooting in this case, the
Commission notes that the High Court judge found in his judgment of 13
January 1989 that the intention of the soldiers in shooting at the car
covered both the objectives of the prevention of crime and the
effecting of a lawful arrest.  Their evidence indicated that they
intended to stop the car with the object of apprehending the occupants
and preventing them from escaping and carrying out further terrorist
missions. The Commission recalls that the High Court judge reviewed the
evidence of the soldiers involved and deemed reasonable their view that
the manner of driving the car was not indicative of a drunken driver
or joyriders.  Their conclusion that the car contained desperate
terrorists, bent on making good their escape, was also held to be
reasonable.  The judge concluded that the action taken was lawful, in
that the force used was such as was reasonable in the circumstances in
the prevention of crime and hence justified under Section 3 of the
Criminal Law Act 1967.

       The Commission notes that the judge reached his decision in this
case after hearing the evidence of the surviving occupants of the car
and the soldiers involved, tested under cross-examination by the
applicant's counsel.  His examination of the factual and legal issues,
upheld on appeal, gives no indication of arbitrariness or other ground
which would justify the Commission reaching different conclusions.
Having regard to the foregoing, the Commission is satisfied that the
shooting in this case was for the purpose of apprehending the occupants
of the stolen car, who were reasonably believed to be terrorists, in
order to prevent them carrying out terrorist activities.  Accordingly,
the action of the soldiers in this case was taken for the purpose of
effecting a lawful arrest within the meaning of Article 2 para. 2 (b)
(Art. 2-2-b) of the Convention. It is unnecessary in view of this
finding to examine the judge's application and interpretation of the
concept "prevention of crime", being a justification for the use of
force under domestic law which does not appear in Article 2 (Art. 2).

      The Commission has therefore examined whether the force used in
pursuit of the above aim was "absolutely necessary", in particular
whether it was strictly proportionate, having regard to the situation
confronting the soldiers, the degree of force employed in response and
the risk that the use of force could result in the deprivation of life.

      In this regard, the applicant has submitted that the use of force
was disproportionate and excessive, given the possibility that a car
which goes through a checkpoint could be driven by joyriders or by
drunken, inadvertent or frightened motorists. The Commission recalls,
however, that the High Court judge expressly addressed this issue and
found that the soldiers reasonably believed the occupants to be
terrorists. This finding is supported by the suspicion already existing
with regard to the car, which was known to have been stolen and had
been seen in questionable circumstances in the vicinity of the house
and car of a member of the security forces.  It was reinforced by the
determined and even desperate efforts made by the driver of the car to
escape the checkpoint, which was not found to be indicative of
joyriders or drunken motorists.

      The Government have submitted, and the applicant has not
disputed, that the only course of action open to the soldiers was
either to open fire or to allow the car to escape.  Neither before the
domestic courts, nor before the Commission, was it contended that it
would have been possible to immobilise the car by shooting at the tyres
or the engine block.  The Commission notes that the High Court judge
commented that there was a high probability that shots fired at the
driver would kill him or inflict serious injury. The situation facing
the soldiers, however, had developed with little or no warning and
involved conduct by the driver putting them and others at considerable
risk of injury. Their conduct must also be assessed against the
background of the events in Northern Ireland, which is facing a
situation in which terrorist killings have become a feature of life.
In this context the Commission recalls the judge's comments that,
although the risk of harm to the occupants of the car was high, the
kind of harm to be averted (as the soldiers reasonably thought) by
preventing their escape was even greater, namely the freedom of
terrorists to resume their dealing in death and destruction.

      The Commission concludes therefore, having regard to all the
surrounding circumstances, that the use of force in the present case
was justified in terms of Article 2 para. 2 (Art. 2-2) of the
Convention.

It follows that the application must be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.


      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.


Secretary to the Commission                 President of the Commission


      (H.C. Krüger)                               (C.A. Nørgaard)