CEDH · PRESS;GENERAL;ENG — 28 mai 2002

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THE UNITED KINGDOM   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of McShane v. United Kingdom (application no. 43290/98). The Court held, unanimously, that there had been:       a violation of Article 2 of the European Convention on Human Rights (right to life) given the lack of an effective investigation into the death of the applicant’s husband,     no violation of Article 6 § 1 (right to a fair hearing),     no violation of Article 14 (prohibition of discrimination),     no violation of Article 13 (right to an effective remedy,     a violation of Article 34 (individual applications).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 8,000 pounds sterling (GBP) for non-pecuniary damage and GBP 8,000 for legal costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Treasa McShane is a citizen of the United States of America.   During the night of 12 July 1996, the applicant’s husband, Dermot McShane, had been with friends in a bar in Londonderry (Northern Ireland), close to where a major disturbance was taking place, featuring the use of petrol bombs by demonstrators and   “baton rounds” (plastic bullets) by the Royal Ulster Constabulary (RUC) and the British Army. According to a friend who was with him, they left the bar at about 1.30 a.m. Close to the junction of Little James Street and Great James Street, a large crowd of people had gathered and were throwing missiles at the police. Military reinforcements were called. Police were firing large numbers of baton rounds at the crowd. A commercial skip and a large piece of hoarding were being used by people in the crowd to shield them from baton rounds as they moved towards the police. An RUC inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed. According to his statement, he instructed the driver of a Saxon armoured personnel carrier (“the APC”), Private P., to advance towards the obstruction. Mr McShane fell under the hoarding over which the APC advanced. Mr McShane was taken to hospital where he died shortly afterwards. The RUC conducted an investigation into Mr McShane’s death, and, on 1 April 1998, the Director of Public Prosecutions found that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder, manslaughter or dangerous driving. An inquest was due to begin on 13-14 December 1999 and is still pending.   The applicant has, in addition, brought civil proceedings (which are still pending) against the Ministry of Defence, the Chief Constable of the RUC and Secretary of State for Northern Ireland for alleged negligence and breach of statutory duty.   The RUC also lodged a formal complaint with the Law Society of Northern Ireland concerning alleged breach of an undertaking of confidentiality by Mrs C. who was the applicant’s solicitor in the inquest, relating to materials which the applicant’s representatives before the European Court of Human Rights had included in their written observations. The Law Society dismissed the complaint as unfounded.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 3 October 1996 and transmitted to the European Court of Human Rights on 1 November 1998. It was declared admissible on 12 December 2000. Judgment was given by a Chamber of seven judges, composed as follows: Matti Pellonpää (Finnish), President , Nicolas Bratza (British), Antonio Pastor Ridruejo (Spanish), Jerzy Makarczyk (Polish), Viera Strážnická (Slovakian), Rait Maruste (Estonian), Stanislav Pavlovschi (Modovan), judges ,   and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaints The applicant claimed her husband was killed by security forces intentionally or, at the very least, as a result of unnecessary and disproportionate use of force, that she had no access to court or an effective remedy in respect of his death, that the investigations into his death were ineffective, inadequate and lacked independence. She pointed to the large numbers of killings of Catholics and members of republican paramilitary groups by the security forces and police, compared with a disproportionately low number of prosecutions and convictions, as indicating that the security forces used lethal force against civilians and members of paramilitary groups in a highly discriminatory fashion. She also complained that her ability to exercise her right to bring a application before the   European Court of Human Rights was hindered by the fact that the RUC took steps to have disciplinary proceedings brought against her solicitor in the domestic proceedings, alleging that her solicitor had disclosed witness statements to the applicant’s representatives before the Court. She relied on Articles 2, 6, 13, 14 and 34 of the Convention. Decision of the Court   Article 2 The Court considered that it would be inappropriate and contrary to its subsidiary role under the Convention to attempt to establish the facts of the case. Such an exercise would duplicate the proceedings before the civil courts, which were better placed and equipped to act as fact-finding tribunals. It had not been shown that there were any elements which would deprive the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of Mr McShane’s death.   Nor was the Court persuaded that it was appropriate to rely on the documentary material provided by the parties to reach any conclusions as to responsibility for the death of the applicant’s husband, in particular with relation to the statements provided by anonymous witnesses. The written accounts provided have not been tested in examination or cross-examination and would provide an incomplete and potentially misleading basis for any such attempt. The situation could not be equated to a death in custody where the burden might be regarded as resting on the State to provide a satisfactory and plausible explanation.   The Court therefore made no findings with regard to the alleged responsibility of the State for Mr McShane’s death.   However, the Court found that there had been a number of shortcomings in the investigation into his death: the police officers investigating the incident were not independent of the officers implicated in the incident, the police investigation lacked expedition, the soldier who drove the APC which fatally injured Mr McShane could not be required to attend the inquest as a witness, the inquest procedure did not allow any verdict or findings which could have played an effective role in securing a prosecution should a criminal offence have been disclosed, the non-disclosure of witness statements and other relevant documents contributed to long adjournments in the proceedings, the inquest proceedings were not started promptly.   The Court therefore held that there had been a violation of Article 2 concerning the lack of an effective investigation into Mr McShane’s death.   Article 6 Recalling that the lawfulness of Mr McShane’s death was pending consideration in the civil proceedings instituted by the applicant, the Court found no basis for reaching any findings as to the alleged improper motivation behind the incident. Any issues concerning the effectiveness of criminal investigation procedures had to be considered under Articles 2 and 13 of the Convention.     There had, therefore, been no violation of Article 6 § 1.   Article 14 The Court observed that, where a general policy or measure had disproportionately prejudicial effects on a particular group, it was not excluded that this might be considered   discriminatory, notwithstanding that it was not specifically aimed or directed at that group. However, even though statistically it appeared that the majority of people shot by the security forces were from the Catholic or nationalist community, the Court did not consider that statistics could, in themselves, disclose a practice which could be classified as discriminatory within the meaning of Article 14. There was no evidence before the Court which would have entitled it to conclude that any of those killings, save those cases which resulted in convictions, involved the unlawful or excessive use of force by members of the security forces. The Court therefore held that there had been no violation of Article 14.   Article 13 The Court noted that the applicant had lodged civil proceedings, which were pending, and that it had found no elements which would prevent those proceedings providing the necessary redress in respect of the alleged excessive use of force.     The applicant’s complaints concerning the investigation into the death carried out by the authorities had already been examined under the procedural aspect of Article 2. Finding that no separate issue arose, the Court found no violation of Article 13.   Article 34 The Court noted that although the RUC’s complaint concerning the applicant’s solicitor was not directed against her representatives before the European Court of Human Rights, it related to materials which those representatives had included in their written observations. A sanction was therefore invoked by a public authority against a solicitor in respect of her purported disclosure of information to an applicant for use in proceedings before the Court.   The Court found that such an action had a chilling effect on the exercise of the right of individual petition by applicants and their representatives. It is not relevant that the Law Society dismissed the complaint. The Court, therefore, concluded that there had been a failure by the State to comply with its obligations under Article 34.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, 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.