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FOURTH
SECTION
CASE
OF MCCARTNEY v. THE UNITED KINGDOM
(Application
no. 34575/04)
JUDGMENT
STRASBOURG
27
November 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of McCartney v. the
United Kingdom,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Mr J.
Casadevall,
President,
Sir Nicolas Bratza,
Mr G.
Bonello,
Mr K.
Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P.
Hirvelä,
judges,
and Mr T.L. Early,
Section
Registrar,
Having deliberated in private on 6
November 2007,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
1. The case originated in
an application (no. 34575/04) against the United Kingdom of
Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
by an Irish national, Mr Sean McCartney (“the
applicant”), on 10 September 2004.
2. The applicant was
represented by Madden & Finucane, solicitors practising
in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J.
Grainger of the Foreign and Commonwealth Office, London.
3. The applicant alleged
that there had been no adequate investigation into
allegations of collusion and/or involvement by security
forces in the killing of his brother, nor any effective
remedy for the same. He invoked Articles 2 and 13 of the
Convention.
4. By a decision of 6
March 2007, the Court declared the application admissible.
5. The applicant and the
Government each filed further written observations (Rule 59
§ 1), to which they each responded with further written
comments (Rule 59 § 1). The Chamber decided, after
consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in
fine).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
6. The applicant was born
in 1955 and lives in Derry. He was the brother of Colm
McCartney.
A The attack at
Altnamachkin and the initial investigation
7. On the night of 24
August 1975, Colm McCartney, the applicant's brother and
Sean Farmer were driving home from the All-Ireland Gaelic
football semi-finals in Croke Park, Dublin. Both men were
found shot dead on the Cortamlet Road, Altnamachin, in South
Armagh. Colm McCartney had been shot four times, Sean Farmer
six times. According to the later inquest, the time of death
was about 11.35 pm. The car was found burnt out half a mile
from the murder scene.
8. Prior to their deaths,
at about 10.45 pm a police patrol in an unmarked car had
been stopped at what was believed to be a bogus checkpoint
(“VCP”) manned by armed men in military style uniforms
on the A25 several hundred yards from where the bodies were
found. A short conversation took place between the three RUC
officers and a person holding a torch dressed in full
military combat uniform. The officers noticed a second
person also dressed in military uniform lying in a ditch
apparently giving cover with a rifle. The scene at the
checkpoint roused suspicions, inter
alia, due to the lack of other vehicles, the accent
of the person who stopped them and the length of hair of the
man in the ditch. After being allowed through the
checkpoint, the officers requested clarification by radio as
to the presence of any army checkpoints in the vicinity.
They were informed that none were operating. The police
patrol drove to a police station, where, requesting army
support, they decided to investigate further.
9. At about 11.30 pm a
local resident who had been walking his dog noticed a
vehicle stopped on Cortamlet Road. He saw the interior light
of the car come on and a door on the passenger side open.
Three or four gunshots were heard. The witness saw a light
from a lamp lying on the road. He then heard the sound of
someone running along the road and a man's voice shouting
"Stop, stop," several times. This was followed by
a flash and a bang. He heard a wild scream and everything
went quiet. Fearing for his safety, the witness hid behind a
tree. He heard further shooting, five to ten shots. After
some minutes, he heard a car engine being started and the
car, brownish with a black vinyl roof, drove past him
without its lights on. He went to a neighbour who returned
with him to the scene where they found two bodies. They
contacted the police.
10. At first light, a
Detective Constable visited the scene and inspected the
bodies which were some 50 metres apart. He arranged for the
scene to be examined, photographed and mapped. The bodies
were identified.
11. The police visited the
McCartney and Farmer families that day. On the same day,
Colm McCartney's car was found gutted by fire half a mile
from the scene. It was subsequently established by
ballistics examinations that three firearms had been used
and that the weapons had been used in other incidents.
12. The police believed
that the murders had been carried out by an extreme loyalist
paramilitary organisation, reacting to a murder of a local
Protestant. They had little doubt that the men who stopped
the police patrol had been directly connected with the
murders if not in fact the actual murderers.
13. A report was submitted
by the police to the Director of Public Prosecutions on 17
February 1976.
14. An inquest occurred on
23 July 1976. It appears that the local resident who
witnessed the shooting did not appear at the inquest, nor
was his statement made available due to the decision of a
police officer to protect his identity.
15. The applicant claimed
that there were concerns about the thoroughness of the
original investigation. He stated that the occupants of the
two cars who had come upon the two bodies were not asked to
give a statement to the police or at the inquest. Because of
the method used (a VCP manned by persons in uniform), there
were allegations of security force collusion made at the
time of the shooting.
B. The investigations
concerning McCaughey and Weir
16. The investigation did
not close and became active again in 1978, when a Catholic
priest Father Hugh Murphy was abducted by loyalist
paramilitaries intending to use him as a hostage vis-ŕ-vis
the IRA. The police arrested a reserve police constable,
William McCaughey, who, in the course of questioning,
revealed his part in the abduction of the priest and in a
variety of other loyalist paramilitary incidents. McCaughey
also named a police officer as being involved in a range of
incidents. He specifically referred to a well-known
paramilitary as being involved in the Altnamachin murders.
While this paramilitary had been arrested and interviewed by
the police on a number of occasions, the Government stated
that there was no record that he had been specifically
interviewed about the Altnamachin murders. The police
officer was arrested and questioned, inter
alia, about his role in the murders of McCartney and
Farmer. He made no admissions. He was charged with other
serious offences, resigned from the police and was
subsequently convicted and sentenced.
17. McCaughey's
revelations gave rise to investigations in eleven specific
cases, some of which were linked in terms of the identities
of those involved, the modus operandi or by virtue of the
ballistics examinations of weapons used. Nine suspects were
arrested in total, including five police officers and all
were eventually charged with offences.
18. One of those
implicated was a police officer John Weir who was named as
having been involved in the murder of a shopkeeper called
Strathearn in Ahoghill in April 1977: he was convicted for
that murder in June 1980 and sentenced to life imprisonment.
The Government stated that both McCaughey and Weir refused
to name the two loyalist paramilitaries also involved with
them in the murder unless they received immunity from
prosecution. The police and prosecuting authority took the
decision prior to the trial not to enter into any process of
bargaining with Weir and McCaughey. While both were
approached by the police after their convictions to see if
at that stage they would give evidence against the loyalist
paramilitaries, each again refused to do so unless there was
something in it for themselves. The Government stated that
during the period in which Weir was detained he was
interviewed on a large number of occasions. At no time did
he implicate himself or others in any offence other than the
Strathearn murder.
C. The Weir allegations
and the response of the authorities
19. On 1 February 1993,
John Weir was released from prison on licence. In January
1999, he made a statement to a journalist alleging RUC and
Ulster Defence Regiment (“UDR”) collusion with loyalist
paramilitaries from the Portadown area in the mid-1970s.
This statement was published in the Sunday Times newspaper
in March 1999. It was obtained by the Patrick Finucane
Centre, a human rights non-governmental organisation in
Derry (“the Centre”).
20. John Weir's statement
made detailed allegations about security force collusion
with loyalist paramilitaries in a series of incidents. He
alleged inter alia that RUC Reserve Constable Laurence
McClure had told him that McClure and Robert McConnell, a
member of the UDR, along with members of the Ulster
Volunteer Force (“UVF”), a proscribed loyalist
paramilitary organisation, had been involved in the murder
of Colm McCartney and Sean Farmer.
21. The statement also
made links between the attack on Donnelly's Bar and other
attacks allegedly carried out by members of the security
forces, both RUC and UDR, and loyalist paramilitaries. This
group used the farmhouse in Glennane owned by James
Mitchell, a RUC reservist, as a base from which to carry out
attacks on Catholics and nationalists. Other attacks
allegedly included the murder of John and Brian Reavey and
wounding of Anthony Reavey in their home on 4 January 1976
(see application no. 34640/04); the attack on Donnelly's Bar
in which Trevor Brecknell, Michael Donnelly and Patrick
Donnelly were killed (see application no. 32457/04); the
murder of Joseph, Barry and Declan O'Dowd and wounding of
Barney O'Dowd (see application no. 34622/04); and the attack
on the Rock Bar in which Michael McGrath was seriously
injured (see application no. 34651/04). Weir also linked
these attacks to the Dublin and Monaghan bombings in which
33 people were killed in the Republic of Ireland.
22. On or about 10 June
1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security
force involvement in a number of deaths, including that of
Trevor Brecknell. Weir made allegations on that programme
that members of the RUC and UDR were directly involved in
the attack on Donnelly's Bar. A BBC Spotlight programme
produced a similar documentary.
23. These allegations
attracted considerable attention on both sides of the Irish
border and became the subject of police investigation in
both jurisdictions. The Government stated that the police
investigation in Northern Ireland was focussed on
determining whether Weir's allegations should be assessed as
sufficiently credible to require a full investigation. They
obtained from the journalist an edited transcript of the
interview with Weir. While his whereabouts were unknown to
the RUC, Weir met with senior Irish police officers at the
Irish Embassy on 15 April 1999. A copy of his statement was
provided by the Garda to the RUC, along with a further
statement made by Weir to another journalist dated 3
February 1999. The police analysed the available materials
and sought to identify the personalities to be interviewed.
It became apparent that some had died and that others,
living abroad, could not be traced. A series of seven
interviews were conducted, under cautions, between July and
December 2001, of those individuals central to Weir's
account who could be traced. No charges were preferred. The
interviews followed the format of Weir's allegations being
put to the interviewee for his or her response. The
predominant response was denial of any involvement and
claims that Weir had been untruthful. No admissions were
made by any interviewee. Interviews were also conducted with
less central personalities and with police officers involved
in interviewing Weir in 1978. The latter stated that Weir
had not mentioned the matters now being alleged. Amongst
those interviewed by the police in the course of the
preliminary investigation of Weir's allegations, was one
person questioned about the Altnamachin murders. He denied
any involvement and made no admissions.
24. Meetings were held
regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry
established in the Republic of Ireland into the Dublin and
Monaghan bombings (see the description of the inquiry in the
Brecknell
case referred to above). Amongst matters about which the RUC
team provided information to the inquiry was ballistics
information which linked some of the weapons used to more
than one incident. In February 2000 a substantial report was
compiled by the RUC for the Garda dealing with Weir's
allegations. It profiled Weir and dealt inter
alia with a description of the 1978 investigation
into McCaughey, Weir and others. It concluded that the
investigation would continue but that his credibility was in
doubt. According to the Government, despite inquiries being
conducted, Weir's whereabouts could not be traced. This
report was not disclosed as the investigation was
continuing. An internal RUC report dated 27 February 2001
concluded that it would be necessary to interview Weir
before any view could be finalised in respect of the
credibility of his allegations: such interview was not
possible as his whereabouts were not known. The report noted
the absence of any previous mention of the allegations
before 1999 and that much of what he said was hearsay and
speculation. Inquiries made of the British Embassy in
Nigeria (where he had a known address) and the criminal
intelligence service and others failed to locate Weir.
Contact was made with the Garda and the secretariat of the
Inquiry into the Dublin and Monaghan bombings without
positive result.
25. The Serious Crime
Review Team (“SCRT”) was established in March 2004, with
responsibilities including the review of all historical
murders by way of case assessment for evidential and
investigative opportunities. A preliminary case assessment
was carried out by a detective chief inspector, who audited
all known information and documentation. It was noted that
the dossier provided by the Centre included statements from
civilian witnesses who had allegedly come across the bodies
following the murders. The SCRT attempted without success to
obtain access to these materials. In light of the
preliminary assessment, the case was referred to the
Historical Enquiry Team (“HET”). On 28 April 2006, a
senior investigating officer reported on the further review;
a number of potential lines of inquiry were identified and
recommendations made, including that the HET should
extensively interview Weir. This recommendation has been
approved. The HET director of Investigations, Detective
Chief Superintendent James of the London Metropolitan Police
Force, took over personal supervision of the investigation
which has progressed through the first three of five stages
of the HET process (collection of all relevant material;
assessment of the investigations to date; review of
evidence, with intelligence and open and non-police sources,
together with a meeting with the families of the victims of
the attack). As a number of investigative opportunities were
identified and to be followed up, the case was to continue
to be processed by HET, which had been put in touch with
Weir by the Centre. The Government submitted that if any
evidence of police involvement in the murders was found, the
Office of the Police Ombudsman for Northern Ireland would
then become involved. The Government have provided recent
information that Weir finally agreed to meet with the HET in
Dublin; he refused, however, to make a written statement or
to give evidence in court.
26. There has been contact
between the police and family members, their solicitors or
the Centre. In particular, there were meetings on 21 January
2000 with Chief Superintendent McCann; on 19 December 2001
with Detective Inspector Aiken and in November 2002 with
Detective Inspector Williamson and in June and August 2004
with the Chief Constable; members of HET met with families
or their representatives on 30 March and 25 May 2006,
and there has also been extensive correspondence with the
families or their representatives.
D. Application for
judicial review concerning the inadequacy of the
investigation
See Brecknell,
cited above (§§ 39-41).
E. Reports of the
Independent Commissions of Inquiry (Republic of Ireland)
See Brecknell,
cited above (§§ 42-49).
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
27. The applicant
complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of
her sons' death after allegations were made in 1999 by John
Weir as to RUC involvement, invoking Article 2 of the
Convention which provides:
“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.”.
A. The parties'
submissions
28. The parties'
submissions essentially repeat those made in the Brecknell
case (cited above, §§ 54-59, 60-64).
B. The Court's assessment
29. The Court refers to
its statement of principles and analysis as set out in Brecknell
(cited above, §§ 65-81). For the same reasons it concludes
that the investigative response to Weir's allegations lacked
the requisite independence in its early stages when under
the control of the RUC. There has been, in that respect
alone, a violation of Article 2 of the Convention.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
30. In view of its
findings above, the Court finds that it is not necessary to
examine separately the complaint under this Article.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
31. Article 41 of the
Convention provides:
“If the Court finds that there has
been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the
injured party.”
A. Damage
32. The applicant claimed
non-pecuniary damage for the suffering and distress caused
by the State's failure to conduct an effective official
investigation into the circumstances of his brother's death.
33. The Government
submitted that even if there was a breach of the procedural
obligation it would not be appropriate to apply the same
scale as in cases of procedural breaches in the immediate
aftermath of death. They considered a finding of a violation
should be held in itself to constitute just satisfaction.
Alternatively, any award should be modest.
34. The Court has found
that the national authorities failed in their obligation to
provide a properly independent investigative response in the
initial stages following the allegations made by John Weir
concerning the death of the applicant's brother. In the
circumstances, it considers that the applicant sustained
some non-pecuniary damage which is not sufficiently
compensated by the finding of a violation of the Convention.
Making an assessment on an equitable basis, the Court awards
the sum of EUR 5,000.
B. Costs and expenses
35. The applicant claimed
GBP 10,550.97 for solicitors' costs, inclusive of value
added tax (VAT) for this application.
36. The Government
submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and
half the amount was appropriate. The overall hours claimed
were also excessive given that similar issues arose in the
four other cases considered at the same time. They proposed
no more than GBP 20,000 for solicitors' costs in total for
all four cases together.
37. The Court recalls that
only legal costs and expenses found to have been actually
and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention
(see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79,
and Smith
and Grady v. the United Kingdom (just satisfaction),
nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).
38. The Court has already
awarded EUR 29,000 for solicitors' costs in the Brecknell
case (§ 92). Having regard to the fact that only the
initial presentation of facts in this case required separate
treatment from the lead application, it awards the applicant
EUR 5,000, which figure is inclusive of VAT.
C. Default interest
39. The Court considers it
appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Holds
that there has been a violation of Article 2 of the
Convention due to the lack of independence of the RUC during
the initial stages of the investigation begun on 1999;
2. Holds
that it is not necessary to examine separately the
applicant's complaint under Article 13 of the
Convention;
3. Holds
(a) that the
respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the
Convention, the following amounts to be converted into
pounds sterling at the rate applicable at the date of
settlement;
(i)
in respect of non-pecuniary damage, EUR 5,000 (five thousand
euros);
(ii)
in respect of costs and expenses, EUR 5,000 (five thousand
euros);
(b) that from the
expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage
points;
4. Dismisses
the remainder of the applicant's claim for just
satisfaction.
Done in English, and
notified in writing on 27 November 2007, pursuant to Rule 77
§§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
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