The Court held, unanimously, that there had been:

 

• A violation of Article 2 (right to life) of the European Convention on Human Rights, concerning the failure to conduct a proper investigation into the circumstances of the deaths in question, in all four cases;

   

   

• No violation of Article 6 § 1 (right to a fair trial), in the cases of Hugh Jordan and Kelly & Others;

   

   

• No violation of Article 14 (freedom from discrimination) in all four cases;

   

   

• No violation of Article 13 (right to an effective remedy) in all four cases.

   

Under Article 41 (just satisfaction) of the Convention, the Court awarded 10,000 pounds sterling (GBP) to each applicant for non-pecuniary damage and, for costs and expenses, GBP 30,000 to Hugh Jordan, GBP 25,000 to Jonathan McKerr, a global sum of GBP 30,000 to the applicants in Kelly & Others and GBP 20,000 to Mary Shanaghan.

Hugh Jordan - Hugh Jordan, who has dual Irish and United Kingdom nationality and was born in 1941, lives in Belfast, Northern Ireland.

On 25 November 1992, the applicant's son, Pearse Jordan, aged 22, while unarmed, was shot three times in the back and killed in Belfast by officers of the Royal Ulster Constabulary (the RUC). On 16 November 1993, the Director of Public Prosecutions (DPP) issued a direction of no prosecution on the basis of insufficient evidence to warrant prosecution. On 4 January 1995, the Coroner’s inquest into the death commenced. It was adjourned on 26 May 1995 for the applicant to take judicial review proceedings concerning the Coroner’s refusal to give the family prior access to witness statements and his grant of anonymity to RUC witnesses. The inquest proceedings have still not been concluded. On 7 December 1992, the applicant had instituted civil proceedings, alleging death by wrongful act. These are at the discovery stage.

McKerr - Jonathan McKerr, an Irish national born in 1974, lives in Lurgan, Armagh, Northern Ireland.

On 11 November 1982, the applicant's father, Gervaise McKerr, was driving a car with two passengers, Eugen Toman and Sean Burns. They were unarmed. In an incident, during which a reported 109 rounds were fired into the car by RUC officers, all three men were killed. Three officers were prosecuted for the murder of Eugen Toman. On 5 June 1984, the judge found at the conclusion of the prosecution case that there was insufficient evidence to establish guilt and acquitted the officers. On 24 May 1984, John Stalker, then Deputy Chief Constable of Greater Manchester Police, was appointed to head an inquiry into this and two other incidents of the use of lethal force by RUC officers. He was later replaced by Colin Sampson, Chief Constable of West Yorkshire Police. The final inquiry reports were submitted to the RUC and DPP on 23 March 1987. In a statement in the House of Commons, the Attorney-General announced that no further prosecutions were warranted.

On 4 June 1984, an inquest had opened into the deaths of the three men. On 9 November 1988 and 5 May 1994, the Secretary of State for Northern Ireland issued public interest immunity certificates prohibiting the disclosure of sensitive security materials including the Stalker and Sampson reports. The inquest was finally abandoned by the Coroner on 8 September 1994, following an unsuccessful attempt by the Coroner to obtain disclosure of the Stalker and Sampson inquiry materials. On 19 August 1991, civil proceedings were issued by the applicant’s mother in respect of his father’s death. No further steps were taken.

Kelly & Others - the nine applicants are all Irish nationals - Vincent Kelly, born in 1926, lives in Dungannon, County Tyrone; Kevin McKearney, born in 1924, lives in Moy, Co. Tyrone; Amelia Arthurs, born in 1941, lives in Dungannon, Co. Tyrone; Letitia Donnelly, born in 1936, lives in Dungannon, Co. Tyrone; Mary Kelly, born in 1936, lives in Dungannon, Co. Tyrone; Annie Gormley, born in 1926, lives in Dungannon, Co. Tyrone; Patrick O'Callaghan, born in 1913, lives in Benburb, Co. Tyrone; Carmel Lynagh, born in 1934, lives in Clones; and Brigid Hughes, born in 1946, lives in Moy, Co. Tyrone.

On 8 May 1987, 24 soldiers and three RUC officers set up an ambush to surprise a terrorist attack on Loughgall RUC station. After the arrival of an armed IRA unit at the station with a quantity of explosives, eight members of the IRA (Patrick Kelly, Michael Gormley, Seamus Donnelly, Patrick McKearney, James Lynagh, Eugene Kelly, Declan Arthurs, Gerard O’Callaghan) were killed. A ninth individual, Antony Hughes, a passing civilian, was also killed by bullets fired by the security forces. On 2 December 1988, 20 March 1990 and 2 May 1990, seven families of the deceased issued civil proceedings. On 22 September 1990, the DPP concluded that the evidence did not warrant any prosecution. On 24 September 1990, the Coroner adjourned the inquest pending judicial review proceedings brought by relatives concerning the admittance in evidence of written statements. On 2 June 1995, the inquest was concluded.

Shanaghan - Mary Theresa Shanaghan, an Irish national born in 1924, lives in Castlederg, Northern Ireland.

Her son, Patrick Shanaghan, a member of Sinn Fein, was suspected by the RUC of being a member of the IRA and involved in acts of terrorism. In or about December 1990, the RUC informed Patrick Shanaghan that security force materials, containing personal information, including a photo montage, had accidentally fallen out the back of an army vehicle. He was later warned that he might be targeted by loyalist terrorists. On 12 August 1991, he was shot dead by a masked gunman. The inquest was held from 26 March to 20 June 1996. On 22 July 1994, the applicant had issued proceedings claiming damages in respect of the killing of her son.

Hugh Jordan - the applicant complained, among other things, that his son was killed by an excessive use of force contrary to Article 2 of the Convention. He also complained under Article 2 that there had been no prosecution in relation to the unjustified killing and that there had been a failure to comply with the procedural requirement under Article 2 to provide an effective investigation into the circumstances of his son’s death. He submitted in particular that the inquest proceedings were flawed due to the limited scope of the enquiry, the lack of legal aid for relatives, the lack of advance disclosure to the family of inquest statements and the lack of compellability as a witness of the police officer who fired the shots. He also complained under Article 6 that his son was deprived of a fair trial, under Article 14 that the high number of killings by the security forces of civilians in the Catholic or nationalist community taken with the low number of prosecutions and convictions disclosed discrimination and, under Article 13, that there was no effective remedy in respect of these matters.

McKerr - the applicant complained, among other things, that his father, Gervaise McKerr was killed by an excessive use of force contrary to Article 2 of the Convention. He also complained under Article 2 that the prosecution brought against the RUC officers was defective, referring, among other things, to the alleged bias disclosed by the trial judge and that there had been a failure to comply with the procedural requirement under Article 2. He submitted in particular that the inquest proceedings were flawed due to the limited scope of the enquiry, the lack of legal aid for relatives; the lack of advance disclosure to the family of inquest statements; the use of public interest immunity certificates and the lack of compellability of the police officers who fired the shots. He further complained under Articles 14 and 13.

Kelly & Others - the applicants complained, among other things, that their relatives were killed by an excessive use of force contrary to Article 2 and of a failure properly to control and conduct the operation. They also complained that there had been a failure to comply with the procedural requirement under Article 2. They submitted in particular that the inquest proceedings were flawed, due to the limited scope of the enquiry, of the lack of legal aid for relatives, the lack of advance disclosure to the family of inquest statements, the use of public interest immunity certificates and the lack of compellability of the police officers who fired the shots. They also complained under Article 6 that their relatives were deprived of a fair trial, and under Articles 14 and 13.

Shanaghan - the applicant complained, among other things, that her son Patrick Shanaghan was killed with the collusion of the RUC contrary to Article 2. She also complains that there had been a failure to comply with the procedural requirement under Article 2, submitting, in particular, that the inquest proceedings were flawed due to the limited scope of the enquiry and the excessive delay. She further complained under Articles 14 and 13.

Concerning the alleged responsibility of the United Kingdom for the deaths in question, the Court first noted that a number of key factual issues arose in the case. These matters were currently under examination in domestic procedures. It did not consider that it should engage in an exercise that would duplicate proceedings in the civil courts, which were better placed and equipped as fact-finding tribunals. The Court did not consider that there were any elements established which would deprive the civil courts of their ability to establish the facts in each case or to determine the lawfulness or otherwise of the deaths or any wrong-doing or negligence by the security forces (as alleged in the case of Shanaghan). 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 deaths. The written accounts provided had 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.

Furthermore, the Court was not prepared to conduct, on the basis largely of statistical information and selective evidence, an analysis of incidents over the past thirty years with a view to establishing whether they disclosed a practice by security forces of using disproportionate force.

However, the Court noted, under Article 2, investigations capable of leading to the identification and punishment of those responsible must be undertaken into allegations of unlawful killings. The Court therefore examined whether there had been compliance with this procedural aspect of Article 2.

In all four cases, the Court found it was not for it to specify in any detail which procedures the authorities should adopt in providing for the proper examination of the circumstances of a killing by State agents. While reference had been made for example to the Scottish model of enquiry conducted by a judge of criminal jurisdiction, there was no reason to assume that this might be the only method available. Nor could it be said that there should be one unified procedure providing for all requirements. If the aims of fact finding, criminal investigation and prosecution were carried out or shared between several authorities, as in Northern Ireland, the Court considered that the requirements of Article 2 might nonetheless be satisfied if, while seeking to take into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provided for the necessary safeguards in an accessible and effective manner. However, in all four cases, the available procedures had not struck the right balance.

In Hugh Jordan the Court found that the proceedings for investigating the use of lethal force by the police officer concerned disclosed the following shortcomings:

 

• a lack of independence of the police officers investigating the incident from the officers implicated in the incident;

   

   

• a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute any police officer;

   

   

• the police officer who shot Pearse Jordan could not be required to attend the inquest as a witness;

   

   

• the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;

   

   

• the absence of legal aid for the representation of the victim’s family and non-disclosure of witness statements prior to their appearance at the inquest prejudiced the ability of the applicant to participate in the inquest and contributed to long adjournments in the proceedings;

   

   

• the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

   

In McKerr the Court found that the proceedings for investigating the use of lethal force by the police officers had been shown to disclose the following shortcomings:

 

• a lack of independence of the police officers investigating the incident from the officers implicated in the incident;

   

   

• a lack of public scrutiny, and information to the victim’s family concerning the independent police investigation into the incident, including the lack of reasons for the decision of the DPP not to prosecute any police officer at that stage for perverting or attempting to pervert the course of justice;

   

   

• the inquest procedure did not allow for any verdict or findings which might play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;

   

   

• non-disclosure of witness statements prior to their appearance at the inquest which prejudiced the ability of the applicant’s family to participate in the inquest and contributed to long adjournments in the proceedings;

   

   

• the PII certificate had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case;

   

   

• the police officers who shot Gervaise McKerr could not be required to attend the inquest as witnesses;

   

   

• the independent police investigation did not proceed with reasonable expedition;

   

   

• the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

   

The Court observed that the lack of independence of the RUC investigation, and the lack of transparency regarding the subsequent enquiry into the alleged police obstruction in that investigation, might be regarded as lying at the heart of the problems in the procedures which followed. The domestic courts commented that the inquest was not the proper forum for dealing with the wider issues in the case. No other public, accessible procedure however was forthcoming to remedy the shortcomings.

In Kelly & Others the Court found that the proceedings for investigating the use of lethal force by the security forces had been shown to disclose the following shortcomings:

 

• a lack of independence of the investigating police officers from the security forces involved in the incident;

   

   

• a lack of public scrutiny, and information to the victims’ families of the reasons for the decision of the DPP not to prosecute any soldier;

   

   

• the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed;

   

   

• the soldiers who shot the deceased could not be required to attend the inquest as witnesses;

   

   

• the non-disclosure of witness statements prior to the witnesses’ appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings;

   

   

• the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

   

In Shanaghan the Court found that the proceedings for investigating the use of lethal force by the police officer have been shown in this case to disclose the following shortcomings:

 

• no prompt or effective investigation into the allegations of collusion in the death of Patrick Shanaghan has been shown to have been carried out;

   

   

• a lack of independence of the police officers investigating the incident from the security force personnel alleged to have been implicated in collusion with the loyalist paramilitaries who carried out the shooting;

   

   

• a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute in respect of alleged collusion;

   

   

• the scope of examination of the inquest excluded the concerns of collusion by security force personnel in the targeting and killing of Patrick Shanaghan;

   

   

• the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed;

   

   

• the non-disclosure of statements prior to the appearance of the witnesses at the inquest prejudiced the ability of the applicant to participate in the inquest;

   

   

• the inquest proceedings did not commence promptly.

   

In all four cases, the Court observed that the shortcomings in transparency and effectiveness identified ran counter to the purpose identified by the domestic courts of allaying suspicions and rumours. Proper procedures for ensuring the accountability of agents of the State were indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of lethal force. Lack of such procedures would only add fuel to fears of sinister motivations, as was illustrated, among other things, by the submissions made concerning the alleged shoot-to-kill policy.

The Court accordingly found that, in each of the four cases, there had been a failure to comply with the procedural obligation imposed by Article 2 and that there had been, in that respect, a violation of Article 2.

Article 6 § 1 – Recalling that, in Hugh Jordan, the lawfulness of the shooting of Pearse Jordan was pending consideration in the civil proceedings instituted by the applicant and, in Kelly & Others, the lawfulness of the shooting of the nine men at Loughgall was pending consideration in the civil proceedings instituted by five of the applicants’ families, that the Hughes family had settled their civil claims, while three families had not considered it worthwhile to lodge or pursue proceedings, the Court found no basis for reaching any findings as to the alleged improper motivation behind the incidents in question.

In both cases, any issues concerning the effectiveness of criminal investigation procedures fell to be considered under Articles 2 and 13 of the Convention. There had, accordingly, been no violation of Article 6 § 1.

Article 14 – In all four cases, 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 as discriminatory notwithstanding that it is 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 entitle it to conclude that any of those killings, save the four which resulted in convictions, involved the unlawful or excessive use of force by members of the security forces. The Court therefore found that there had been no violation of Article 14.

Article 13 – The Court noted that, in Hugh Jordan and McKerr, the applicants had lodged civil proceedings, which were still pending and, in Kelly & Others, seven of the applicants had lodged civil proceedings, of which five are still pending, the Hughes family having settled their claims, another family having ceased to pursue their claims and two families not having considered it worthwhile to bring such proceedings. In all three cases, the Court had found no elements which would prevent civil proceedings providing the redress identified above in respect of the alleged excessive use of force. In Shanaghan, the applicant had lodged civil proceedings, which were still pending and the Court had found no elements which would prevent civil proceedings providing the redress identified above in respect of the alleged collusion by the security forces with the loyalist paramilitaries who killed her son.

In all four cases, regarding the applicants’ complaints concerning the investigation into the death carried out by the authorities, these had been examined above under the procedural aspect of Article 2. The Court therefore found that no separate issue arose and that there had been no violation of Article 13.