AS TO THE ADMISSIBILITY OF
by Hugh JORDAN
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 4 April 2000 as a Chamber composed of
Mr J.-P. Costa, President,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 13 May 1994 and registered on 14 July 1994,
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 10 October 1994 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 applicant is an Irish and British citizen born in 1941 and resident in Belfast, Northern Ireland.
The applicant is represented before the Court by Mr Kevin Winters, a solicitor practising in Belfast.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Events relating to the death of Pearse Jordan
On 25 November 1992, the applicant’s son, Pearse Jordan, aged 22, was shot and killed in Belfast by an officer of the Royal Ulster Constabulary (the RUC).
The official statement issued by the RUC to the media indicated that an RUC unit had pursued a car on the Falls Road and brought it to a halt. On stopping the car, the officers had fired several shots at the driver, fatally wounding him a short distance from where his car had been abandoned. No guns, ammunition, explosives, masks or gloves had been found in the car and the driver, Pearse Jordan, had been unarmed.
The post mortem report found two entry wounds in Pearse Jordan’s back and one in the back of the left arm, and noted a bruise on the face and shin. It concluded that he had been struck by three bullets which had come from behind and to the left. There was nothing to indicate the range.
The shooting was witnessed by four civilians, who on 26 November 1992 made statements to the Committee for the Administration of Justice (CAJ), an independent non-governmental human rights organisation based in Belfast. The four witnesses gave the following account of the shooting, which is not accepted by the Government.
The four civilians were walking together along the Falls Road and passed Andersontown RUC station at 5 p.m. hours approximately. They noticed two unmarked police cars parked with their headlights dimmed, each containing three RUC officers: one car was red and the second dark blue/green.
As they proceeded along the road, they heard a crash behind and turned to see on the opposite side of the road the red police car pulling alongside a car (Pearse Jordan’s) and ramming it up on the footpath. The red police car came to a halt in front of the car while the dark blue/green police car pulled up behind hitting it in the rear. The four civilians stopped and had an unobstructed view across the road. Pearse Jordan emerged from the immobilised car, and appeared shaken. He staggered across the road towards the four men followed by four of the police officers. As Pearse Jordan reached the white line in the centre of the road, an officer about 12 feet away fired a number of shots. The civilians heard no warning shout or challenge given by any of the officers and saw nothing in Pearse Jordan’s hands or anything threatening in his actions. Some of the shots struck Pearse Jordan. He staggered a little further then turned to face the police who, when they caught up with him, verbally abused him and pushed his face into the ground where he was kicked and searched. The police carried out a search of the car.
The four witnesses followed the ambulance which took Pearse Jordan to hospital where they stated that they were subjected to hostile and threatening remarks by members of the security forces.
According to the applicant, prior to the release of the official RUC statement (see above), there were a number of unofficial reports widely circulated in the media to the effect that gloves, masks, guns and bombs had been found in the car, and one report to the effect that Pearse Jordan was a former Republican prisoner who had been charged in 1991 with possession of explosives. This information was not correct. Pearse Jordan did however receive an IRA funeral and, in the Republican News, he was described as a Volunteer of the Belfast Brigade of the IRA and it was said that he had died on active service.
The official RUC statement stated that a deputy superintendent of the RUC from outside Belfast would investigate the shooting. In a later statement, it was announced that the Independent Commission for Police Complaints (the ICPC) would supervise the RUC investigation.
In May 1993, the RUC concluded its inquiry. Its report on the investigation was submitted to the Director of Public Prosecutions (DPP) on 25 May 1993.
On 3 June 1993, the ICPC wrote to the applicant’s family expressing the view that the RUC report of 25 May 1993 concerning the criminal investigation into the shooting was satisfactory. On 15 June 1993 the RUC wrote to the applicant advising him that the papers had been sent to the DPP. The applicant and his family were not however provided with any indication as to the nature of the RUC’s findings.
On 16 November 1993, the DPP’s department issued to the Chief Constable of the RUC a direction of “no prosecution” in respect of the fatal shooting of Pearse Jordan. It had been concluded that the evidence was insufficient to warrant the prosecution of any person.
On 22 November 1993, having considered a submission by the CAJ, the DPP notified the CAJ that the direction of no prosecution should stand.
On 11 February 1994, the RUC Complaints and Discipline Department wrote to the applicant to inform him that the report on the shooting had been sent to the ICPC.
On 31 August 1994, the ICPC wrote to the applicant to inform them that after careful scrutiny of all the details it was of the opinion that the evidence was insufficient to warrant the preferment of disciplinary charges against the police officer concerned.
Concerning the inquest procedure
On 29 November 1993, the RUC notified the Coroner that the DPP had directed no prosecution. Following that decision, the Coroner decided to hold an inquest.
On 4 November 1994, the Coroner received the case papers from the RUC.
On or about 13 November 1994, the Coroner wrote to interested parties informing them that the inquest would begin on 4 January 1995.
Prior to the commencement of the inquest, the Secretary of State for Defence issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest.
On 20 December 1994, the coroner held a preliminary hearing at which he decided to:
(a) protect certain categories of information from disclosure on the grounds of national security;
(b) protect the identity of three military witnesses, Soldiers V, W and X by withholding their names and screening them from all except the coroner, the jury and the legal representatives of the interested parties; and
(c) protect the identity of certain RUC officers, including Sergeant A (the officer who fired the shots which killed Pearse Jordan) by withholding their names.
On 2 January 1995, the Secretary of State for Northern Ireland issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest.
On 4 January 1995, the Coroner’s inquest commenced. The applicant and his family were represented by a solicitor and counsel. The Coroner sat for three and a half days, hearing evidence from 19 witnesses, including the applicant, 8 civilians, Soldiers V, W and X, 7 police officers and a pathologist. These witnesses were subject to cross-examination. Sergeant A had informed the Coroner that he would not appear.
On or about 9 January 1995, the CAJ provided the Coroner with a statement which they had received from another civilian witness.
On 10 January 1995, the Coroner rejected the applicant’s counsel’s application to withdraw the protection of the identities of the RUC witnesses.
The proceedings were adjourned on 16 January 1995, at the request of Pearse Jordan’s family, to enable the DPP, in the light of new evidence in the form of the new eye-witness, to reconsider the decision whether or not to bring a prosecution. The Coroner wrote to the DPP informing him that new evidence had come to light which should be considered.
On 10 February 1995, the DPP decided that the evidence was insufficient to warrant the prosecution of any person in relation to Pearse Jordan’s death. He requested that any further evidence adduced at the inquest relevant to his functions be reported to him.
On 14 February 1995, the applicant’s legal representatives were informed by the DPP that his decision not to bring a prosecution still stood.
On 10 March 1995, the applicant’s legal representative made an application for the Coroner to discharge himself from the Inquest on the grounds that the Coroner was not conducting the inquest fairly. The Coroner refused the application.
On 11 April 1995, the Coroner wrote to the interested parties informing them that the inquest would recommence on 12 June 1995.
On 26 May 1995, the applicant’s legal representatives commenced judicial review proceedings seeking declarations that certain rulings given by the Coroner in the course of the inquest were wrong in law. Leave was granted on 2 June 1995. The applicant sought orders of certiorari to quash the following Coroner’s decisions, inter alia (a) the Coroner’s refusal to give the next of kin access to the statements of the witnesses before they gave evidence at the inquest and (b) the decision of the Coroner to grant anonymity to RUC witnesses. The Coroner adjourned the inquest pending these proceedings.
Leave was granted to bring judicial review proceedings against the Coroner on 2 June 1995.
The judicial review application was heard on 9 and 10 November 1995. By judgment of 11 December 1995 Lord Justice Carswell refused the applicant’s claims. In doing so he had regard to the inquisitorial nature of inquest proceedings. He referred to the remarks of Griffiths J in Ex parte Peach:
“A coroner’s inquest is an inquisitorial procedure with a very limited objective indeed. The objective is set out in rule 26 of the Coroners Rules 1953. It is limited to ascertaining the following matter: who the deceased was; how, when and where the deceased came by his death. There is a further specific limitation provided by the Coroners (Amendment) Rules 1977. These provide by rule 7 that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or of civil liability.
It is quite true that the coroner may allow interested parties to examine a witness called by the coroner. But that must be for the purpose of assisting in establishing the matters which the inquest is directed to determine. It is not intended by rule 16 to widen the coroner’s inquest into adversarial fields of conflict.”
Lord Justice Carswell also referred to the statutory background governing the procedure at inquest: Section 31(1) of the Coroners Act (Northern Ireland) 1959 providing that the jury shall give their verdict in the form prescribed by rules,
“setting forth, so far as such particulars have been proved to them, who the deceased person was and how, when and where he came to his death.”
and Rule 16 of the Coroners (Practice and Procedure) Rules 1963 providing:
“neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability ...”
By notice of appeal dated 8 January 1996, the applicant appealed against the decision of Lord Justice Carswell. The Court of Appeal in Northern Ireland rejected the appeal on 28 June 1996. The applicant’s application for leave to appeal to the House of Lords was also rejected on 4 October 1996. The House of Lords rejected the application for leave to appeal on 20 March 1997.
The inquest was due to recommence on 1 December 1997. However, it was adjourned on 19 November 1997 by the Coroner, after consultation with the parties, pending the outcome of a judicial review application in the High Court concerning the availability of legal aid for legal representation at inquests.
On 16 March 1999, judgment was given in the case of Sharon Lavery v. the Secretary of State and the Legal Aid Department.
On 1 July 1999, the Coroner informed the interested parties that he intended to hold the inquest on 1 November 1999.
On 13 October 1999, the Coroner adjourned the inquest pending the applicant’s application for the disclosure of documents by the Chief Constable of the RUC in the wake of the Home Office Circular issued on 28 April 1999 on deaths in police custody after the Stephen Lawrence enquiry, which recommended, inter alia, that material supplied by the police to the Coroner should be made available to the families of deceased persons.
On 2 February 2000, the applicant was informed that the Chief Constable would provide copies of the statements of the witnesses who were to appear at the inquest and copies of any statements which the Coroner proposed to read out.
On 3 March 2000, the applicant was granted leave to bring judicial review proceedings against the Chief Constable, challenging his decision not to provide further documents to the applicant.
When the inquest resumed, the Coroner proposed to call, in addition to the witnesses who gave evidence in January 1995, 12 police officers and Soldier Y involved in the anti-terrorist operation in which Pearse Jordan died, forensic experts and three police officers involved in the RUC investigation into the shooting.
Concerning the civil proceedings
The applicant was granted legal aid to pursue a civil action for compensation in the High Court. On 7 December 1992, the applicant instituted civil proceedings, alleging death by wrongful act.
On 5 October 1995, the applicant served a Statement of Claim in the civil proceedings. On 24 October 1995 the Ministry of Defence served their Defence, together with a request for further and better particulars of the Statement of Claim. The applicant did not reply to this request until a date unspecified subsequent to 27 August 1998.
On 8 October 1999, the Crown Solicitor wrote to the applicant seeking consent to a remittal of the civil action to trial.
The applicant states that the case is currently at the discovery stage but that this cannot be concluded until the inquest is terminated.
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 eg. Smith and Hogan on Criminal Law).
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 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 (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 < 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, Rv. South London Coroner ex parte Thompson (1982) 126 SJ 625)
D. Relevant international law and practice
The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.
Other relevant provisions provide as follows:
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”
“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”
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 ...”
1. The applicant complains that his son, Pearse Jordan, was deprived of his life in violation of Article 2 of the Convention. He submits that the decision of the DPP not to prosecute discloses a failure by the State to comply with its obligation to protect “everyone’s right to life ... by law”. He further submits that the failure of the State to investigate the death of the deceased either adequately or at all discloses a violation of Article 2. The applicant also complains that the domestic legislation which permits the use of lethal force where “it is reasonable in the circumstances” falls short of the required standard of “absolute necessity” laid down in Article 2. He claims that the shooting of Pearse Jordan was not “absolutely necessary” for any of the permitted purposes set out in the second paragraph of Article 2.
2. The applicant complains under Article 6 of the Convention that Pearse Jordan was deprived of the protection of the due process of law since shooting was used as an alternative to arrest and trial.
He further claims that the decision of the DPP to issue a direction of “no prosecution” deprived the applicant of the right to have his civil rights and obligations determined by an independent and impartial tribunal within the meaning of Article 6.
3. The applicant invokes Article 14 of the Convention in conjunction with Article 2 and/or Article 6. He submits that the overwhelming majority of the 357 people acknowledged as shot by the security forces between 1969 and March 1994 were from the Catholic or Nationalist community, but that there have been only 31 prosecutions, which produced a mere four convictions. In the light of the disproportionate number of Catholic/Nationalists killed, he claims that there has been discrimination on the grounds of national origin, religion or association with a national minority in respect of the use of lethal force by the security forces, the failure of domestic law to prevent the use of lethal force unless “absolutely necessary”, the failure of the legal system to provide an effective remedy for the victims by way of effective prosecutions and the inadequacy of the inquest system.
4. The applicant contends that the failure to prosecute the killer of Pearse Jordan and the lack of an inquest into his death disclose a violation of Article 13 of the Convention. He complains that inquests are inadequate, inter alia, with regard to their remit (the jury no longer reaches a verdict but makes findings as to the factual circumstances of a death), the delay in their taking place, the lack of legal aid for victims’ families to have representation, the lack of access to documents by families, the inability of families to have witnesses called, the immunity from appearance at inquests of the members of security services, who may submit unsworn statements instead of appearing to be examined, and the practice of public interest immunity certificates issued by the Executive limiting the scope of inquests.
The applicant complains of the death of his son, 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 6 of the Convention
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”
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 his son are inadmissible for failure to exhaust domestic remedies, since he has not pursued to a conclusion the civil action which he commenced against the relevant authorities alleging unlawful killing. They point out that the determination of the applicant’s central complaint - whether or not Pearse Jordan was killed in circumstances falling outside the exceptions to the right to life in the second paragraph of Article 2 - will depend on an assessment of all the facts of the case and these circumstances, in particular the necessity and proportionality of the use of force, 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.
Furthermore, any complaints about the inquest are premature since the inquest is ongoing. To the extent that it is alleged that it is ineffective due to delays, the inquest has been adjourned at the request of the applicant, who has chosen to pursue judicial review proceedings on various occasions. Whether the inquest satisfies the procedural requirements of Article 2 cannot be properly assessed in vacuo and can only be answered once the inquest proceedings have been concluded.
The applicant argues that civil proceedings taken at the initiative of relatives are plainly inadequate to remedy his complaint under the procedural aspect of Article 2, which, he submits, places the responsibility on the State to furnish an effective investigation into the killing of his son. They are also inadequate and ineffective in respect of his substantive complaints under Article 2. He 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 his son was also not an isolated occurrence but part of an administrative practice of the use of lethal force by the security forces which is condoned and encouraged by the respondent Government. In those circumstances, the only domestic remedy which would satisfy the requirements of Article 2 would be an adequate investigation and prosecution of the person responsible for the death of his son.
The applicant also refers to the standard of domestic law which applies a test of reasonableness instead of the Convention test of “absolutely necessary”. He submits that in practice the domestic courts concentrate their examination on the state of mind of the user of lethal force without giving consideration to issues of training and the control and planning of operations, which are relevant to the proportionality of the use of force under 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 son, Pearse Jordan, 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 thy 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 in killing Pearse Jordan overlap with issues under Article 2 as to the compatibility of domestic law and 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.
The substance of the application
The Government do not accept the applicant’s claims under Article 2 that his son was killed by any excessive or unjustified use of force 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.
Regarding the applicant’s complaints under Article 6, the Government submit that the shooting cannot be regarded as a summary punishment for a crime. Nor can the alleged failure to prosecute deprive the applicant of a fair hearing as this does not relate to any civil right which the applicant has.
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, namely, that the combination of available procedures provide effective remedies.
As concerns allegations of discrimination under Article 14, they submit that there is no evidence that any of the deaths which occurred in Northern Ireland were analogous or that they disclose any difference in treatment. 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 the death of his son was the result of unnecessary and disproportionate use of force by an RUC officer and that his son was the victim of a “shoot to kill” policy operated by the United Kingdom Government in Northern Ireland. He refers, inter alia, to reports by Amnesty International and the Human Rights Watch, as well as the statements made by John Stalker, a senior policeman, who carried out an investigation into allegations of such a policy. He 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. He 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. 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.
Concerning his complaints under Article 6, the applicant submits that his son was arbitrarily killed in circumstances where an arrest could have been effected by the RUC, and that Sergeant A deliberately killed him as an alternative to arresting him. He refers to concerns expressed, for example, by Amnesty International that killings by the security forces in Northern Ireland reflect a deliberate policy to eliminate individuals rather than arrest them.
Under Article 13, the applicant refers to his arguments concerning the procedural aspect of Article 2 and, under Article 14, to the large numbers of killings of Catholics by the security forces and police compared with a disproportionately low number of prosecutions and convictions.
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. Dollé J.-P. Costa
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