CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 novembre 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s2E722ED2 { margin-top:0pt; margin-bottom:0pt; font-size:16pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   843 27.11.2007   Press release issued by the Registrar   FIVE CHAMBER JUDGMENTS CONCERNING NORTHERN IRELAND   The European Court of Human Rights has today notified in writing its Chamber judgments [1] - available only in English - in the cases of:   Brecknell v. the United Kingdom (application no. 32457/04) McCartney v. the United Kingdom (no. 34575/04) McGrath v. the United Kingdom (no. 34651/04) O’Dowd v. the United Kingdom (no. 34622/04) Reavey v. the United Kingdom (no. 34640/04)   The cases all concerned investigations into new allegations – which emerged in 1999 – of police collusion in killings and/or shootings by loyalist terrorists in Northern Ireland (the United Kingdom).   The Court held unanimously that, in all five cases, there had been a violation of Article 2 (right to life) of the European Convention on Human Rights due to the lack of independence of the Royal Ulster Constabulary (RUC), which handled the initial stages of the investigation from 1999-2001.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 5,000   euros   (EUR), each, in respect of non-pecuniary damage. The applicant in the case of Brecknell was awarded EUR   51,000 in respect of costs and expenses; EUR   5,000 was awarded in each of the other four cases.   1.     Principal facts   Brecknell - The applicant, Anne Brecknell, was born in 1933 and lives in Armagh in Northern Ireland. She is Trevor Brecknell’s widow. On 19 December 1975 loyalist gunmen went into Donnelly's Bar, Silverbridge, in County Armagh, throwing a bomb and firing a machine gun. Trevor Brecknell, Patrick Donnelly and Michael Donnelly (aged 14) were killed and six others were seriously injured. The applicant was at the time in hospital following the birth of her daughter. In 1981 a decision was taken not to pursue charges against two people who had apparently driven the perpetrators (including a member of the Ulster Defence Regiment (UDR)) on the night of the incident.   McCartney - The applicant, Sean McCartney, was born in 1955 and lives in Derry (Northern Ireland). On 24 August 1975, his brother, Colm McCartney, was found shot dead in Altnamachin, South Armagh, half a mile from his burnt out car.   McGrath - The applicant, Michael McGrath, was born in 1922 and lives in Granemore (Northern Ireland). On 6   June 1976 he was shot twice in the stomach by an RUC Reserve Constable at the Rock Bar pub. A bomb was also placed at the door of the pub which failed to explode. No-one else was physically injured and the applicant was taken to hospital. A police officer was given a seven-year prison sentence for wounding the applicant and three other police officers involved were given suspended sentences.   Reavey and O’Dowd - The applicants are: Sarah Reavey, who was born in 1923 and lives in Whitecross (Northern Ireland); Bernard O’Dowd, who was born in 1923 and lives in Drumnee, County Meath (Ireland); and Michael O’Dowd (son of Joseph O’Dowd), who was born in 1951 and lives in Bleary (Northern Ireland). On the evening of 4 January 1976, three gunmen entered the home of Sarah Reavey and shot and killed two of her sons, John and Brian. Her son Anthony was also shot and later died. About twenty minutes later three masked gunmen forced their way into the home of Bernard O’Dowd and shot dead his two sons, Barry and Declan, and Joseph O’Dowd. Bernard O’Dowd was hit by nine bullets, but survived. A police officer was later convicted in relation to the Reavey murders.   In 1999 new allegations emerged of collusion between security forces and loyalist terrorists from the Portadown area in the mid-1970s. A police officer, John Weir, claimed that he had been told by a former reserve constable in the RUC that a farmhouse owned by another RUC officer was used as a base from which to carry out loyalist attacks, including the attack on Donnelly's Bar. Weir also alleged that a part-time UDR member was among those responsible for the attack and that the getaway car was provided by a former RUC reservist. He named four loyalists as having been responsible for the attack. Those allegations were published, or made known from March 1999 and received wide publicity when included in a television programme on RTE (Irish national television) in June 1999. His statement also made links between the attack on Donnelly's Bar and the other attacks in the cases McCartney , McGrath , Reavey and O’Dowd, allegedly carried out by members of the security forces and loyalist paramilitaries.   An investigation appeared to have been started by the RUC at around that time. Interviews with seven individuals central to Weir's allegations, among those who could be traced or were still alive, were conducted in 2001, without obtaining any useful new or incriminating evidence. The Police Service of Northern Ireland (PSNI) took over from the RUC in November 2001. The investigation was eventually referred to the Historical Enquiry Team (HET) of the London Metropolitan Police Force. That team managed to interview Weir, who refused either to make a statement or to agree to give evidence in a United Kingdom court. The HET has now apparently reached the conclusion that there is insufficient evidence to proceed further although it does not appear that any formal decision has yet been issued.   2.     Procedure and composition of the Court   The applications were lodged with the European Court of Human Rights on 10 September 2004 and declared admissible on 6 March 2007.   The judgments were given by a Chamber of seven judges, composed as follows: Josep Casadevall (Andorran), President , Nicolas Bratza (British), Giovanni Bonello (Maltese), Kristaq Traja (Albanian), Stanislav Pavlovschi (Moldovan), Ján Šikuta (Slovak), Pâivi Hirvelä (Finnish), judges , and also Lawrence Early , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 2 and Article 13, the applicants complained that there was no proper or effective investigation by the United Kingdom authorities into fresh evidence obtained in 1999 from a former police officer that in 1975 and 1976 their relatives were killed or seriously injured in Northern Ireland by an organised group of loyalist paramilitaries acting in collusion with the police.   Decision of the Court   Article 2   The Court recalled that, in cases involving State agents or bodies, an effective investigation into unlawful or suspicious deaths was required to ensure their accountability for deaths occurring under their responsibility. Furthermore, a prompt response by the authorities was vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.   Information purportedly casting new light on the circumstances of the deaths or shootings in the applicants’ cases came into the public domain in 1999.   The Court rejected the United Kingdom’s Government's argument that a strict six month time-limit had to be applied which would render the applicants’ cases (arriving more than six months after the end of the original investigation) out of time within the meaning of Article 35 § 1 of the Convention. The Court considered that there was little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events since the public interest in obtaining the prosecution and conviction of perpetrators was firmly recognised, particularly in the context of war crimes and crimes against humanity.   Although not every assertion or allegation could trigger a fresh investigative obligation under Article 2, State authorities had to be sensitive to any information or material which had the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further. Also, bearing in mind the difficulties involved in policing modern societies and the choices which had to be made in terms of priorities and resources, those obligations had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities.   With those considerations in mind, the Court took the view that, where there was a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities were under an obligation to take further investigative measures. The steps that it would be reasonable to take would vary considerably according to the situation. The authorities were also entitled to take into account the prospects of success of any prosecution.   However, with the passage of time, where the assertion or new evidence tended to indicate police or security force collusion in an unlawful death, the criterion of independence would, generally, remain unchanged.   The Court noted that the RUC investigation was acknowledged as failing to progress due to the need to interview Weir directly. It saw no reason to disbelieve the Government's statement that they took steps to locate him and the HET had apparently reached the conclusion that there was insufficient evidence to proceed.   The Court observed that the allegations made by Weir were serious, involving security force collusion in systematic targeting of innocent civilians and that they were apparently plausible, deriving from a source who had been involved in such incidents and giving concrete details. In the circumstances the authorities were obliged to verify the reliability of the information and whether a full investigation, with a view to bringing charges against any suspect, could usefully be launched. It was also to be noted that investigative measures had been carried out in the case.   Independence However, the Court found that the investigation was not sufficiently independent in its early stages. The initial inquiries were carried out by the RUC, which was itself implicated in Weir's allegations as their own officers had allegedly been heavily involved. It was the RUC which carried out the interviews with those named by Weir and which was entrusted with the initial assessment of the credibility of his allegations. That had to be regarded as tainting the early stage of the enquiries. The Court recalled that the PSNI took over from the RUC in November 2001. It was satisfied that the PSNI was institutionally distinct from its predecessor even if, necessarily, it inherited officers and resources. However that did not in the circumstances detract from the fact that, for a considerable period, the case was under the responsibility and control of the RUC.   Accessibility to the family and public scrutiny The Court was not persuaded in the applicants’ cases that they had been excluded from the investigative process to such a degree as would infringe the minimum standard required under Article 2. It noted that the applicants were not required to have access to police files, or copies of all documents during an ongoing inquiry, or to be consulted or informed about every step. It appeared that the police did make efforts to meet members of the family from about 2000 onwards and there was also correspondence between the police and the applicant's representatives. If only limited information had been passed on, it was not apparent that that flowed from any obstructiveness or obfuscation rather than a lack of any concrete results.   Promptness and reasonable expedition The Court considered that the RUC took up inquiries without undue delay. If the matter had dragged on from 1999 to 2007 that was largely due to the lack of any strong leads and difficulties in interviewing Weir, who remained outside their jurisdiction. It was not apparent that there had been any wilful foot-dragging or prevarication. The Court also took into account that a considerable number of other cases were being simultaneously reviewed over the period in question. While there might nonetheless be a question mark as to the slowness of progress in the early stages when the RUC were in charge, the Court reiterated its finding of lack of independence and found no separate issue arose in the circumstances.   Effectiveness The Court was not persuaded that there had been any significant oversights or omissions in the investigation. The key traceable witnesses had been interviewed, and the available evidence collected and reviewed.   Concerning the applicants’ claims that a further prosecution should have been brought against the two people who had apparently driven those responsible for Trevor Brecknell’s death, the Court recalled that the earlier prosecution was dropped and that attempts to challenge the lawfulness of that step failed, among other things, due to the delay by the applicant in raising the matter and the potential unfairness to the two involved individuals who had not been parties to the case. It would note that the two individuals were relatively minor participants in events and considered that the authorities could reasonably take the view that attempting to revive the previous charges, or upgrade them, would now be either doomed to failure and would not assist materially in bringing to account those principally responsible.   Nor was it apparent that any prosecution against any other person would have had any prospect of success given Weir's refusal to make a statement or to give evidence himself. In the circumstances, the Court did not find the authorities responsible for any culpable disregard, discernable bad faith or lack of will.   Conclusion The Court found that the investigative response to Weir's allegations was not independent in its early stages. There had therefore been, in that respect alone, a violation of Article 2.   Article 13   In view of the above findings, the Court held unanimously that it was not necessary to examine separately the complaint under Article 13 in any of the five cases.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.