AS TO THE ADMISSIBILITY OF Application No. 18984/91 by Margaret McCANN, Daniel FARRELL and John SAVAGE against the United Kingdom The European Commission of Human Rights sitting in private on 3 September 1993, the following members being present: MM. C.A. NØRGAARD, President S. TRECHSEL F. ERMACORA E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS Mrs. G.H. THUNE Sir Basil HALL Mr. F. MARTINEZ Mrs. J. LIDDY MM. L. LOUCAIDES M.P. PELLONPÄÄ G.B. REFFI M.A. NOWICKI I. CABRAL BARRETO 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 14 August 1991 by Margaret McCANN, Daniel FARRELL and John SAVAGE against the United Kingdom and registered on 24 October 1991 under file No. 18984/91; Having regard to: - reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 11 August 1992 and the observations in reply submitted by the applicants on 14 January 1993; - the parties' submissions at the oral hearing before the Commission on 3 September 1993; Having deliberated; Decides as follows: THE FACTS The applicants are representatives of the respective estates of Daniel McCann, Mairead Farrell and Sean Savage. They are all citizens of both the United Kingdom and the Republic of Ireland. They are represented before the Commission by Messrs. P.J. McGrory & Co., solicitors practising in Belfast. The facts, as submitted by the parties, may be summarised as follows. On 6 March 1988, Daniel McCann, Mairead Farrell and Sean Savage were shot and killed in Gibraltar by members of the Special Air Service Seite 1
(the "S.A.S.") which is a regiment of the British Army. All three of the victims were members of the Provisional I.R.A. which acknowledged them to have been on "active service" at the time of their deaths. Mairead Farrell had previously been convicted and sentenced to 14 years' imprisonment for causing explosions and Daniel McCann had been previously convicted and sentenced to 2 years' imprisonment for possession of explosives. At the time that they were killed, the three deceased were unarmed and carried no explosive detonation device. There was also no car bomb present on Gibraltar. An Inquest by the Gibraltar Coroner into the killings was opened on 6 September 1988. The families of the deceased (the applicants) were represented, as were the S.A.S soldiers and the United Kingdom Government. Prior to the Inquest, three certificates to the effect that certain information should not, in the public interest, be disclosed, were issued by the Secretary of State for the Home Department, the Secretary of State for Defence and the Deputy Governor of Gibraltar, dated respectively 26 August, 30 August and 2 September 1988. These stated that the public interest required that the following categories of information be protected from disclosure: 1. In the case of the seven military witnesses, the objection was to the disclosure of any information or documents which would reveal: (i) their identity; (ii) the identity, location, chains of command, method of operation and the capabilities of the units with which the soldiers were serving on 6 March 1988; (iii) the nature of their specialist training or equipment; (iv) the nature of any previous operational activities of the soldiers, or of any units with which any of them might at any time have served; (v) in the case of Soldier "G" (the Ammunition Technical Officer), any defence intelligence information, activities or operations (and the sources of intelligence), including those on the basis of which his assessments were made and details of security forces counter-measures capabilities, including methods of operation, specialist training and equipment. 2. In the case of Security Service witnesses, the objection was to the disclosure of information which would reveal: (a) the identities of members of the Security Service, and details of their deployment, training and equipment; (b) all sources of intelligence information; (c) all details of the activities and operations of the Security Services. As was, however, expressly made clear in the certificates, no objection was taken to the giving of evidence by either military or Security Service witnesses as to: (i) the nature of the information relating to the feared IRA plot, which was transmitted to the Commissioner of Police and others concerned (including general evidence as to the nature of a Provisional IRA Active Service Unit); Seite 2
(ii) the assessments made by Soldier "G" as to the likelihood of, and the risks associated with, an explosive device and as to the protective measures which might have to be taken; (iii) the events leading up to the shootings on 6 March 1988 and the circumstances surrounding them, including evidence relating to the transfer of control to the military power. At the Inquest, the applicants argued, inter alia, that the decision to shoot to kill the suspects had been made by the United Kingdom Government prior to the incident and, in any event, the force used was excessive and not justified. United Kingdom security officers gave evidence to the effect that they had received information that a car, driven by suspects over the border from Spain, would be carrying a bomb intended to be detonated at the assembly of the band and other troops for the Changing of the Guard ceremony at Gibraltar on 8 March 1988. They had formed the view that it was likely that the bomb would be set off by a remote control device. It was expected that the suspects would be armed. The Commissioner of Gibraltar Police gave evidence to the effect that, after the presence of the three suspects on Gibraltar was confirmed, and he had been informed by soldier G. that the aerial on a parked car did not appear to be an original aerial and might be indicative that there was a bomb in the car, he had decided that the three suspects should be arrested on suspicion of conspiracy to murder. He signed an order requesting the military to intercept and apprehend the three suspects. This form provided by the military read as follows: "I, Joseph Luis Canepa, Commissioner of Police, having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military option which may include the use of lethal force for the preservation of life." The four S.A.S. soldiers involved in the shooting also gave evidence. They stated, inter alia, that they had been following the three suspects with a view to effecting an arrest, that the suspects had appeared to become aware of their presence, that each of the suspects had made a suspicious and/or sudden gesture and that they had shot them to prevent activation of the suspected bomb by remote control. At the conclusion of the Inquest, the Coroner referred the jury to Article 2 of the Gibraltar Constitution: "2.(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. (2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable: a. for the defence of any person from violence or for the defence of property; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained... d. in order to prevent the commission by that person of a criminal offence." The jury returned verdicts of lawful killing by a majority. Seite 3
The applicants were dissatisfied with these verdicts and commenced actions in the High Court of Justice in Northern Ireland against the Ministry of Defence for the loss and damage suffered by the estate of each deceased as a result of their death. The statements of claim were served on 1 March 1990. On 15 March 1990 the Secretary of State for Foreign and Commonwealth Affairs issued certificates under Section 40(3)a of the Crown Proceedings Act 1947, as amended by the Crown Proceedings (Northern Ireland) Order 1981. Section 40(2)b of the same Act excludes proceedings in Northern Ireland against the Crown in respect of liability arising otherwise than "in respect of Her Majesty's Government in the United Kingdom". A similar exemption applies to the Crown in Northern Ireland pursuant to the 1981 Order. A certificate by the Secretary of State to that effect is conclusive. The certificates stated in this case that any alleged liability of the Crown arose neither in respect of Her Majesty's Government in the United Kingdom, nor in respect of Her Majesty's Government in Northern Ireland. The Ministry of Defence then moved to have the actions struck out. The applicants challenged the legality of the certificates in judicial review proceedings. Leave to apply for judicial review was granted ex parte on 6 July 1990, but withdrawn on 31 May 1991 following a full hearing, on the basis that the application had no reasonable prospects of success. Senior advised that an appeal against this decision would be futile. The applicants' High Court actions were struck off on 4 October 1991. COMPLAINTS The applicants, representing the estates of the deceased, claim a violation of Article 2 of the Convention as a result of the killings of 6 March 1988. They complain that the three deceased were intentionally deprived of their right to life by the use of unnecessary, unlawful force, without any attempt to effect a lawful arrest. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 14 August 1991 and registered on 24 October 1991. On 20 February 1992, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application. The Government's observations were submitted on 11 August 1992 after one extension in the time-limit and the applicants' observations in reply were submitted on 13 January 1993 after two extensions in the time-limit. On 23 October 1992, the Commission decided to grant legal aid to the applicants. On 2 April 1993, the Commission decided to invite the parties to make further submissions at an oral hearing. At the hearing, which was held on 3 September 1993, the Government were represented as follows: Mrs. Audrey Glover Mr. Stephen Richards Mr. James Eadie Mr. Nicholas Lavender Agent Seite 4
Mr. David Pickup Adviser, Ministry of Defence Mr. Michael Venables Adviser, Ministry of Defence Mr. David Seymour Adviser, Home Office The applicants were represented as follows: Mr. Douwe Korff Mr. P.J.B. McGrory Mr. Niall Farrell Solicitor Son of the applicant, Mr. Daniel Farrell THE LAW The applicants complain of the killing of the three deceased by the S.A.S on Gibraltar. They invoke Article 2 (Art. 2) of the Convention which provides as follows: "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 Government submit that the applicants have not exhausted domestic remedies in respect of their complaints, as required by Article 26 (Art. 26) of the Convention, since they failed to institute proceedings for unlawful killings before the Gibraltar courts which had exclusive jurisdiction. They submit that it is incorrect to state that the certificates issued in the proceedings in Northern Ireland barred the applicants' action: they were merely evidential in character. They submit that the courts in Northern Ireland by operation of law did not have jurisdiction to consider the applicants' claims. Proceedings in Gibraltar would however have provided an effective remedy. The applicants cannot be absolved from exhausting this domestic remedy merely on the basis of their ineligibility for legal aid. They have to establish that their financial constraints and other circumstances rendered such a course impossible. The applicants submit that they have complied with the requirement as to the exhaustion of domestic remedies imposed by Article 26 (Art. 26) of the Convention. They were unable to pursue proceedings in the High Court in Northern Ireland since the certificates excluded the jurisdiction of the courts. They contest that their claims necessarily raised matters outside the jurisdiction of the courts in Northern Ireland. Further, they were unable to take proceedings in Gibraltar since they were not eligible for legal aid and had no other means of pursuing such proceedings. 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 Seite 5
the alleged breach. The Commission has held that where, for example, there is a choice of remedies open to an applicant, Article 26 (Art. 26) of the Convention must be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78, and No. 9118/80, Dec. 9.3.83, D.R. 32 p. 159). 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 applicants, as conceded by the Government, would not have been eligible for legal aid in Gibraltar. The Commission finds that they have insufficient means to pay for legal representation themselves. In this context the Commission recalls that they were found eligible under the financial criteria for legal aid in Northern Ireland and before the Commission itself. Having regard, in addition, to the difficulties imposed by the distance and the difficulty and complexity of the factual and legal issues which would have been raised in proceedings in Gibraltar, the applicants could not have proceeded without legal representation. Consequently, the Commission finds that the remedy cannot realistically have been available to the applicants in this case. Further, the Commission finds that the applicants' choice of pursuing proceedings in the courts of Northern Ireland was not unreasonable or without basis in domestic law. The applicants in those proceedings (in respect of which they were granted legal aid by the relevant domestic authorities) intended, inter alia, to argue that liability arose out of the actions of Crown agents based in the United Kingdom and Northern Ireland. The certificates issued by the Secretary of State were however conclusive of the fact that the alleged liability did not arise in respect of the Government in the United Kingdom or in Northern Ireland and effectively put an end to the proceedings. In these circumstances, the Commission finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies. As regards the substance of the case, the applicants submit that there has been a violation of Article 2 (Art. 2) of the Convention in respect of the shooting of the three deceased persons. They consider that Article 2 (Art. 2) imposes a duty on States to adopt clear and detailed legal rules on the use of lethal force, which strictly control and limit that use. They consider that United Kingdom law is vague and general and therefore is in itself in violation of this provision. They submit that Article 2 (Art. 2) requires, in addition, that States exercise strict operational control over the use of lethal force, including the giving of appropriate training, briefings and instructions. They contend that soldiers are trained to shoot to kill without warning and that the operation in Gibraltar was neither planned nor executed in such a way as to minimise the need for the use of lethal force. They point to the fact that the soldiers were apparently made to believe (wrongly) firstly, that the suspects were armed; secondly, that there was a car bomb in place; and thirdly, that the bomb could be detonated by the suspects by means of a remote control device. The applicants further submit that Article 2 (Art. 2) should be interpreted as including a procedural element, namely, the provision of an effective procedure after a lethal shooting for establishing the facts. They complain that the Inquest was inadequate, inter alia, as public interest certificates were used to block crucial evidence. They allege that there had been a lack of diligence in seeking out witnesses Seite 6
and attempts made to intimidate and discredit those who did come forward. The Government submit that specific protection of life is provided by the Gibraltar Constitution and that this is in conformity with the standards imposed by Article 2 (Art. 2). They point out that the jury on consideration of the evidence found that the killings were lawful. They contend that it is implicit from that finding that the jury considered that there had been no plot to kill the deceased terrorists, that the soldiers had honestly and reasonably believed that there was a car bomb which could be detonated by remote control and that the degree of force used by the soldiers was proportionate to the aim of protecting the lives of the people of Gibraltar. As regards the Inquest proceedings, the Government submit that it provided an exhaustive fact-finding investigation by an independent body. In particular, they highlight the fact that 78 witnesses (including the S.A.S soldiers and Security Service personnel involved in the incident) were extensively examined and cross-examined by the legal representatives of the applicants, that the Inquest was held within six months of the incident, that the applicants' representatives made no challenge to the public immunity certificates, and that the Coroner exercised his discretion to allow certain questions, despite objection by the Crown on the basis of the certificates. The Commission considers that the applicants' complaints under Article 2 (Art. 2) of the Convention raise complex issues of fact and law, the determination of which should depend on the merits. The application must therefore be declared admissible, no other ground for declaring it inadmissible having been established. For these reasons, the Commission by a majority DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Commission (H.C. KRUGER) President of the Commission (C.A. NØRGAARD) Seite 7