CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1985

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }          The European Commission of Human Rights sitting in private on 7 March 1985 the following members being present:                     MM. C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       G. JÖRUNDSSON                       G. TENEKIDES                       S. TRECHSEL                       B. KIERNAN                       J.A. CARRILLO                       A.S. GÖZÜBÜYÜK                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                       J. CAMPINOS                       H. VANDENBERGHE                   Mrs G.H. THUNE                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission           Having regard to Art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 3 December 1981 by M.G. against the United Kingdom and Ireland and registered on 29 April 1982 under file N° 9837/82;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated on 13 December 1984 and 6 and 7 March 1985;           Decides as follows:   THE FACTS                                 I.             The applicant is a United Kingdom citizen born in 1939 and residing at Armagh in Northern Ireland.   She is represented by Messrs Cleaver, Fulton and Rankin, Solicitors in Belfast.           The applicant complains on behalf of herself and her then dependent children John, Hugh, Peter and Helen of violations of the Convention in respect of the murder of her husband Hugh McGinn on 28 December 1980 at Armagh.                                    II.             The facts stated by the applicant with regard to the death of her husband are as follows:   1.       Hugh Gerald McGinn was a service engineer and part-time member of the TAVR.   He was born in 1940 and married the applicant in 1960. They had three daughters, Caroline, born in 1961, Geraldine, born in 1962 and Helen, born in 1972, and three sons, John, born in 1964, Hugh, born in 1965 and Peter, born in 1970.   2.       Mr McGinn was shot dead in the doorway of his home by six men, after answering a knock at his door.   The gunmen had held a local family hostage and used their car to do the shooting before returning the car and making their escape.   3.       The Irish National Liberation Army claimed responsibility but no one was apprehended.   Mr McGinn was not armed.   He had asked for a firearm for protection because of the other attacks and intimidations he and his family had suffered (see below) but this had been refused, apparently because the Territorial Army and Volunteer Reserve believed it would make him more of a target.   4.       Mr McGinn and his family lived in a strongly republican area and had suffered the following intimidations:   The house was attacked with a petrol bomb (while Mr McGinn was away);   however the family managed to put the flames out.   The house was stoned.   The children were attacked and abused in the street.   Threats were made to burn down the house, especially when the applicant refused to allow a gang to cut down the tree in the front garden for a barricade.   The worst of these incidents occurred over eight years ago.   However, during the "H" block protests, slogans were written on the gable of the house.   5.       As a result the family have become isolated in the local community.   The children have become bitter especially because of their father's death and no longer wish to go to Mass and do not shop in the area but go to other shops about a mile away.     COMPLAINTS AND SUBMISSIONS   I.       The applicant alleges violations of Arts 1, 2, 8 and 13 of the Convention and of Art 1 of Protocol N° 1.           She refers to the extensive submissions made by Mrs Elliott in her Applications N°s 9348/81 (against the United Kingdom) and 9360/81 (against Ireland) and makes further submissions concerning the six months' rule (Art. 26) and the respondent States' obligations under Arts 1 and 2 of the Convention.     II.      The applicant notes that the Commission, in its decision of 28 February 1983 on the admissibility of Application N° 9360/81, held that Mrs Elliott's complaint concerning the murder of her husband in the Republic of Ireland on 28 June 1980 was inadmissible, under Arts 26 and 27 (3) of the Convention, for non-observance of the six months' rule, Mrs Elliott having introduced that application more than six months later, on 24 April 1981.   In that decision the Commission referred to its earlier decision on the admissibility of Application N° 7379/76, where it had held that, "where no domestic remedy is available, the act or decision complained of must itself normally be taken as the 'final decision' for the purposes of Art 26" (X v the United Kingdom, Decisions and Reports 8, 211, at pp 212 - 213).           The applicant accepts that the question of the application of the six months' rule arises also in the present case, her application having been introduced on 3 December 1981, that is more than six months after the murder of her husband on 28 December 1980.           In her submission, however, this rule is inapplicable for the following reasons:   1.       There are few precedents in international law for the time limit of six months imposed by Art 26.   2.       The six months time limit rule specified in Art 26 is to be restrictively interpreted because it goes beyond the general rule of international law that proceedings should be brought within a reasonable time after the commission of the act complained of.   3.       The present case may be distinguished from Application N° 7379/76, relied on by the Commission in the Elliott case.   Application N° 7379/76 concerned a specific decision or act of a public authority, where the period runs from the moment that decision or act takes effect.   In addition, the act complained of, being a deprivation of a right to property, was held not to give rise to a continuing situation of lack of property which prevented the running of the six months period.   The present complaint, grounded in the deprivation of life or family rights, raises entirely different questions.   4.       The principles stated by the Commission in the De Becker case should also be applied in the present case, which likewise concerns a continuing situation in respect of which there is no domestic remedy (1).   5.       In Application N° 6181/73, Yearbook 17, 430 at p 446, a prisoner complained of lack of medical treatment of his eye;   the Commission held that he alleged a continuous violation of Art 3, which did not result from any particular act of the moment but from the authorities' persistent refusal to suspend the execution of his sentence.   Reference is also made to the McFeeley case, Decisions and Reports 20, 44, and to the Greek case.   6.       The applicant's complaints do not relate to any act occurring at a given point in time, nor even to the enduring effects of such an act, but are of continuing violations by the respondent States in respect of their legislation, administrative practices and procedures, and failures to take adequate and effective measures to counter terrorism and protect the applicant and others like her.   It is true that the application was in a sense "triggered" by the murder of the applicant's spouse, but such complaint does not itself ground a claim because no Government can be expected to guarantee absolutely the life of any citizen.   Rather, the claim is grounded in the totality of the circumstances in which the applicant lives and in the legislative measures and practices of the respondent States, which have contributed to such situation, and their failures to deal effectively with such situation. ____________   (1)      At point 5 of her application form - under the heading:         "Statement as to the exhaustion of domestic remedies (Art 26         of the Convention).   List of remedies pursued before the         competent judicial or administrative authorities.   In         particular, the date and instance of the last decision taken         in regard to your case" - the applicant stated:   "Not         applicable as the applicant complains of continuing         violations of her rights under the Convention."   7.       There have been previous campaigns of violence in Northern Ireland in 1939 to 1941 and again from 1956 to 1962.   A complaint related to one of those past events might infringe any reasonable time limit.   But the Commission may be properly seized of complaints in regard to the situation of terrorism and constitutional upheaval in Northern Ireland which has been continuing and developing since 1971.   8.       The term "final decision" in Art 26 is to be interpreted exclusively within the framework of exhausting domestic remedies (De Becker case, Greek case and Application N° 3893/68, Yearbook 13, 620 at p 624), so that the six months rule is operative only in this context.   9.       Art 26 refers to a final decision by a State and not to an act such as murder, committed by a third party.   10.      The six months time limit does not run until the applicant's position has been finally determined on the domestic level, ie until all proceedings connected with the murder, such as the inquest, compensation claim, and any criminal proceedings in which the applicant is a witness, have been finally disposed of.   It is the State's duty to pursue those guilty of the murder.   Reference is made to the McFeeley case (loc cit p 76) and to Application N° 8440/78, Christians against Racism and Fascism, Decisions and Reports 21, 147.   11.      Special circumstances interrupted or suspended the running of the six months period in the applicant's case.   She has provided particulars concerning her state of health and morale after the murder of her husband.     III.     The applicant also refers to the Commission's interpretation of Art 2 of the Convention, as stated in its decision of 28 February 1983 on the admissibility of Mrs Elliott's applications (N°s 9348/81 and 9360/81), and in this connection elaborates Mrs Elliott's submissions under Art 1 of the Convention in the light of the judgment of the European Court of Human Rights in the case of Ireland v the United Kingdom.           The applicant states that she does not seek any individual privileges for herself (like the applicant in Application N° 6040/73, quoted by the Commission in the Elliott decisions) but a proper level of general security in each locality where persons are under attack or living under the threat or fear of terrorism or paramilitary influence.   The Commission should hear the respondent Governments on this issue.   There have been recent failures of security policy in both jurisdictions.           In recent security operations in the Republic of Ireland criticism was expressed of the degree of training offered to the police force to deal with the large scale manhunts which are required to track down and apprehend gangs of armed men.   A major deficiency in planning and tactics was admitted to have occurred in the case of kidnappers of a Dublin business man.   The Irish Government also failed to provide the resources for a radio network for the entire police force within its jurisdiction.           Equally serious breaches of a proper level of security have occurred in Northern Ireland.   Reference is made to the breakout from the Maze Prison on 25 September 1983.           An example of security problems involving both States is the recent unsuccessful attempt of United Kingdom security forces to block certain "unapproved" frontier crossings.   It illustrates in stark form the lack of co-ordination between the two Governments.   The Commission should require them to explain this apparent failure, albeit that it may not be its role to examine in detail the adequacy of any particular security strategy or policy.           The Commission as an independent tribunal presents the only ground for a frank consideration of the Convention issues in a setting respected by both Governments.   This is all the more important because of the attack on and loss of confidence in many of the legal and political institutions within Northern Ireland by one side or other of the community.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 3 December 1981 and registered on 29 April 1982.   It referred to submissions of 5 February and 27 April 1982 in Applications Nos 9360/81 (Elliott v Ireland) and 9348/81 (Elliott v United Kingdom).           Applications Nos 9360/81 and 9348/81 were declared inadmissible by the Commission on 28 February 1983.           In a telex communication of 30 March 1983 the applicant stated that she wished to make further submissions.   These were filed under cover of her solicitors' letters of 24 June 1983 and 24 February 1984.           On 7 December 1983 Mr.   Edgar Graham, Member of the Northern Ireland Assembly, Barrister at Law and principal counsel in the present case, was assassinated at University Square, Belfast, on his way to attend his students.           In a letter of 23 February 1984 the applicant's solicitors stated inter alia:   "It is generally accepted that Edgar Graham's open commitment to the even-handed application of the law to the defeat of terrorism prompted this terrible response and this fact is confirmed by the Provisional IRA in a statement claiming responsibility for his murder.   Edgar Graham's commitment to the rule of law was expressed in many ways not least we believe in the character of the submissions which he drafted and the belief he held of the relevance of the Convention to protect human rights.   We therefore believe that the attack on him was an attack on the very principles of the Convention and indeed on all who bring their Petitions to you."           Under cover of their letter of 23 August 1984 the applicant's solicitors submitted a chronology of terrorist murders in border areas of Armagh, Fermanagh, Londonderry, South Down and Tyrone, Northern Ireland (Vol 1: 1.1.1968 - 31.12.1975, Vol 2: 1.1.1976 - 31.12.1981).   THE LAW   I.       General   1.       The applicant complains on behalf of herself and her dependent children of violations of the Convention in respect of the murder of her husband.   She states that this murder does not itself ground a claim, because no Government can be expected to guarantee absolutely the life of any citizen, but that, rather, the claim is grounded in the totality of the circumstances in which she lives and in the legislative measures and practices of the respondent States, which have failed to take adequate and effective measures to counter terrorism and to protect the applicant and others like her.   The applicant does not seek "any individual privileges" for herself but "a proper level of general security in each locality where persons are under attack or living under the threat or fear of terrorism or paramilitary influence".   2.       However, under   Art. 25 (Art. 25) of the Convention, an individual applicant can only seize the Commission of alleged violations of his or her own Convention rights but not, by an actio popularis, of complaints concerning rights of third persons (Applications N° 867/60, Collection of Decisions 6, 34 = Yearbook 4, 270; N° 6481/74, Decisions and Reports 1, 79; N° 6742/74, Decisions and Reports 3, 98; N° 7045/75, Decisions and Reports 7, 87; N° 8727/79,   Decisions and Reports 20, 230).   3.       It follows that the Commission, in its examination of the present application, must limit its consideration to the situation of the applicant and her children and to the murder of her husband.   II.      As to the complaint concerning the murder of the applicant's         husband on 28 December 1980     4.       The Commission holds that the applicant, as the wife who was affected by the death of her husband, may in this respect claim to be a "victim", in the sense of Art 25 (Art. 25).   The Commission here refers to its decisions on the admissibility of Application N° 2758/66 (Collection of Decisions 30, 11 = Yearbook 12, 175), as confirmed in Application N° 8416/79 (Decisions and Reports 19, 244, 248) and of Applications N° 9348/81 - Elliott v United Kingdom - and N° 9360/81 - Elliott v Ireland - (European Human Rights Reports 5, 504 and 506).   5.       The applicant submits that the murder of her husband by terrorists was made possible by the respondent States' failure to prevent terrorism; that no domestic remedy was available in respect of this failure;   that the six months' rule does not apply to this complaint; and that, if it applied, the running of the period was suspended or interrupted.   6.       Art 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken".   7.       The Commission does not find that there was a domestic remedy which the applicant was required to exhaust.   She complains that the respondent States failed to prevent that a criminal act - the murder of her husband - was committed by private individuals.   The applicant states that no domestic remedy was available in respect of this failure of the respondent States (complaints and submissions, II, 4). The Commission has already held in Application N° 9360/81 (Elliott v Ireland), in respect of an analogous complaint against Ireland, that there was no domestic remedy in the Republic of Ireland, in respect of the alleged failure of the Republic to prevent the murder of Mr Elliott, which Mrs Elliott was required to exhaust.   Confirming that finding the Commission holds that, in the present case, there was neither in Ireland nor in the United Kingdom a domestic remedy which the applicant was required to exhaust in respect of the alleged failure of those States to prevent the murder of Mr McGinn.   8.       The Commission in particular does not find that proceedings concerning the criminal prosecution of those individuals who committed the murder, or relating to a compensation claim which the applicant could bring under the domestic legislation, could be considered as remedies in respect of the respondent States' alleged failure to prevent the murder.   It notes that such proceedings are not referred to by the applicant as domestic remedies, but only as relevant for the determination of the six months' period (complaints and submissions, II, 10).   9.       The applicant submits that the six months' rule is inapplicable in respect of her complaint concerning the murder of her husband because her case is based upon continuing violations of the Convention.   The Commission has previously stated that, where there is a "permanent state of affairs which is still continuing", the question of the six months' rule "could only arise after the state of affairs has ceased to exist" (De Becker case, Yearbook 2, 214, 244; First Greek Case, second decision on admissibility, Collection 26, 80, 110 = Yearbook 11, 730, 778).   The Commission does not find, however, that the respondent Governments' alleged failure to prevent the murder of the applicant's husband can be regarded as a violation of the Convention which continued after the murder.   It follows that the application of the six months' rule cannot in respect of the applicant's complaint concerning the murder of her husband be excluded on the ground that this complaint relates to a violation which continued after her husband's death.   10.      The applicant further submits that the six months rule is inapplicable because Art 26 (Art. 26) refers to a final decision by a State and not to an act such as murder, committed by a third party;   moreover, Application N° 7379/76, relied on by the Commission in the Elliott case and concerning a right to property, may be distinguished from the present complaint, which is grounded in a deprivation of life or family rights (complaints and submissions II, 9 and 3).   The Commission observes, however, that the application does not, according to the applicant's own statements, relate to an act of private individuals - the murder of her husband - but to the authorities' alleged failure to prevent this act.   Moreover, the considerations announced by the Commission in Application N° 7379/76 are not limited to property rights but state a general principle concerning the six months' rule which is valid also for complaints concerning other Convention rights and freedoms.   11.      The Commission held in Application N° 7379/76 that "where no domestic remedy is available, the act or decision complained of must itself normally be taken as the 'final decision' for the purposes of Art 26 (Art. 26)" (X v the United Kingdom, Decisions and Reports 8, 211, at pp 212 - 213).   In the present case the Commission has already found that there was no domestic remedy to be exhausted with regard to the alleged failure of the respondent States to prevent the murder of the applicant's husband.   It has also observed that this failure cannot be regarded as a violation of the Convention which continued after the death of the applicant's husband.   It follows that, in the present case, the six months limitation period ran from 28 December 1980, the date of the death of the applicant's husband, unless the running of this period was interrupted or suspended.   12.      The applicant submits that her state of health prevented her from filing her application in time.   However, the Commission finds no evidence that, during a prolonged period, she was in fact unable to address herself to the Commission.   13.      The Commission recalls that the six months' rule, in reflecting the wish of the High Contracting Parties to prevent the examination of past events after an indefinite lapse of time, serves the interests of legal certainty.   It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (Application N° 9587/81, X v France, Decisions and Reports 29, 228 at paras 13 - 16;   Application N° 10416/83, Kelly v Ireland).   14.      The Commission notes that the present application was introduced on 3 December 1981, that is more than eleven months after the murder of the applicant's husband on 28 December 1980.   It concludes that the applicant's complaint concerning the death of her husband must be rejected under Arts 26 and 27 (3) (Art. 26, 27-3) of the Convention for non-observance of the six months' rule.     III.     As to the complaint concerning the applicant's own         situation in Northern Ireland           1.   United Kingdom   15.      The Commission observes that the applicant's complaint, concerning her and her children's present situation in Northern Ireland, raises the question of State responsibility for the protection of the right to life in accordance with Art 2 (Art. 2) of the Convention.   It follows that this complaint cannot be declared inadmissible, under Art 27 (2), (Art. 27-2) as being incompatible with the Convention ratione personae, on the ground that it is directed against acts of private persons.   16.      Art 2 (ARt. 2), first sentence, of the Convention states that everyone's right to life "shall be protected by law".   The applicant does not suggest that there are no laws in Northern Ireland protecting the right to life, or that they are not applied.   17.      It is the applicant's case that Art 2 (Art. 2), first sentence, interpreted in the light of the phrase "The High Contracting Parties shall secure .... the rights and freedoms defined in Section I" in Art 1 (Art. 1) of the Convention, requires the United Kingdom, in the emergency situation prevailing in Northern Ireland, to protect the right to life not only by criminal prosecution of offenders but also by such preventive control, through deployment of its armed forces, as appears necessary to protect persons who are considered to be exposed to the threat of terrorist attacks.   18.      The Commission has already found (Application N° 9348/81 - Elliott v United Kingdom - loc cit) that Art 2 (Art. 2), which states that "the right of life shall be protected by law", may, as other Convention Articles (cf Eur Court HR, Marckx case, judgment of 13 June 1979, Series A, N° 31, para 31), indeed give rise to positive obligations on the part of the State.   That, however, does not mean that a positive obligation to exclude any possible violence could be deduced from this Article.   19.      The Commission does not find that it can be its task, in its examination of the present applicant's complaint under Art 2 (Art. 2), to consider in detail, as she appears to suggest, the appropriateness and efficiency of the measures taken by the United Kingdom to combat terrorism in Northern Ireland.   20.      The Commission notes from the applicant's submissions that the army strength in Northern Ireland was raised from 4,000 to about 10,500 men and that, between August 1969 and December 1981, several hundred members of the armed and security forces lost their lives there combatting terrorism.   21.      The Commission cannot find that the United Kingdom was required under the Convention to protect the applicant and her children by measures going beyond those actually taken by the authorities in order to shield life and limb of the inhabitants of Northern Ireland against attacks from terrorists.   The applicant's submissions concerning the breakout from Maze Prison and the attempt to block frontier crossings cannot in the Commission's view lead to the conclusion that the United Kingdom is in respect of the applicant in breach of Art 2 (Art. 2) of the Convention.   22.      The Commission concludes that the applicant's complaint under Art 2 (Art. 2) against the United Kingdom concerning her and her children's situation in Northern Ireland is manifestly ill-founded within the meaning of Art 27 (2) (Art. 27-2) of the Convention.   23.      In the light of its above considerations under Art 2 (Art. 2) the Commission finds no issues under the other Convention Articles invoked by the applicant in support of her complaint against the United Kingdom.             2.   Ireland   24.      The applicant's complaint against the Republic of Ireland, concerning her and her children's security in Northern Ireland, relates to an alleged violation of the Convention outside the territory of the Republic.   In its examination of this complaint the Commission has had regard to the applicant's extensive submissions under Art 1 (Art. 1) of the Convention.   25.      The Commission recalls that, in this provision, the High Contracting Parties undertake to secure the rights and freedoms defined in Section 1 to everyone "within their jurisdiction" (in the French text:   "relevant de leur juridiction").   This term is not equivalent to or limited to the national territory of the High Contracting Party concerned.   It emerges from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, not only when the authority is exercised within their own territory but also when it is exercised abroad (Application N° 9360/81, Elliott v Ireland, loc cit with further references). As stated   by the Commission in Applications N°s 6780/74 and 6950/75 - Cyprus v Turkey - the authorised agents of the State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property "within the jurisdiction" of that State, to the extent that they exercise authority over such persons or property.   In so far as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged   (Decisions and Reports 2, 125 at page 136).   26.      In the light of its above case-law the Commission has examined whether it is competent ratione personae, in relation to the jurisdiction of the Republic of Ireland, to deal with the applicant's complaint concerning her and her children's security in Northern Ireland.   This condition would be fulfilled if the applicant and her children, although resident in Northern Ireland, could be said to be "within (the) jurisdiction" of the Republic of Ireland, in the sense of Art 1 (Art. 1).   The Commission cannot find that this was, or is, the case.   27.      As regards, firstly, the question whether Northern   Ireland, or parts thereof, can be considered as national territory of the Republic of Ireland, for the purposes of Art 1 (Art. 1), the applicant herself states that the constitutional claim to the territory of Northern Ireland, contained in Arts 2 and 3 (Art. 2, 3) of the Constitution of Ireland, is not accepted by the international community as constituting a basis for jurisdiction over Northern Ireland.   28.      Secondly, in the Commission's view it cannot be said that "authorised agents" of the Republic of Ireland are exercising authority over the applicant and her children, in the sense of the Commission's decision in Applications N°s 6780/74 and 6950/75.   29.      Thirdly, the Commission, having noted the applicant's submissions concerning Ireland's alleged failure to contribute to the prevention of terrorism in Northern Ireland, does not find that, as regards her and her children's security in Northern Ireland, she has shown that, in the concrete circumstances of her case, the right to life is affected by any specific act or omission of the respondent State.   30.      It follows that the applicant's complaint, against the Republic of Ireland and concerning her and her children's situation in Northern Ireland, is ratione personae incompatible with the provisions of the Convention within the meaning of Art 27 (2) (Art. 27-2).             For these reasons, the Commission             DECLARES THIS APPLICATION INADMISSIBLE.     Secretary to the Commission           President of the Commission                (H.C. KRUGER)                        (C.A. NØRGAARD)