THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24520/94 by Margaret CARAHER against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 11 January 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 June 1994 by Margaret Caraher against the United Kingdom and registered on 4 July 1994 under file no. 24520/94;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 13 February 1995 and 22 December 1995 the observations in reply submitted by the applicant on 15 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen resident in Crossmaglen, Northern Ireland. She is represented before the Court by Mr Thomas Tiernan, a solicitor practising in Crossmaglen and Mr Douwe Korff, a lawyer practising in Cambridge.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On the afternoon of Sunday 30 December 1990, Liam Murphy and two brothers, Miceal Caraher and the applicant's husband, Fergal Caraher (aged 20), were in McGeeney's Public House, Cullyhanna in County Armagh, Northern Ireland. The three men left the Public House.

Liam Murphy and Miceal Caraher left in Liam's red Ford Granada car, driven by Liam. They drove down Freeduff Road on to Slatequarry Road, turning right on to Tullinavall Road. As they came around the corner into Tullinavall Road, a grey Toyota Corolla with a Republic of Ireland registration had broken down. Liam Murphy and Miceal Caraher stopped to help the driver. They managed to get the car going and the Toyota car then drove off in a southerly direction. Just as the Toyota car drove off, Fergal Caraher came along in his white Rover car and stopped.

Liam Murphy and the brothers had a conversation for a few minutes and decided to go to Dundalk. A patrol of four British soldiers came along and checked the three men out and allowed them to go on. Fergal Caraher drove off first and approached an army vehicle checkpoint (VCP) opposite the entrance to St Patrick's Church on the Tullinaval Road, which was a short distance from where they had been first questioned by soldiers. A number of civilians saw Fergal Caraher drive past but none of them saw any attempts by soldiers to stop his car. Soldiers later gave evidence that an attempt was made to stop the car. Having passed the checkpoint Fergal Caraher drove his car into the car park of the Lite 'N' Easy Public House very near to where the soldiers were stopping cars at the checkpoint, and parked his car directly facing on to the road. Fergal Caraher got out of the car.

Liam Murphy then drove his car from the same direction and no attempt was made by the soldiers to stop his car either.

Two soldiers left the VCP and went over to where Fergal Caraher was standing in the car park. According to the applicant's version of events, Liam Murphy drove down the road and stopped at the edge of the car park. Miceal Caraher got out of Liam Murphy's car and went over to where Fergal Caraher was standing. Liam Murphy drove off in the direction of the local Spar Shop. Miceal Caraher decided to drive Fergal Caraher's car which they were taking to Dundalk. Miceal Caraher got into the driver's seat, and Fergal Caraher into the front passenger seat. They began to move off onto the road, turning left in a southern direction. Just as the car was on the roadway, three soldiers knelt on the ground with their guns at their shoulders in a firing position. None of the soldiers were hit by the car and none of them were lying on the ground. As the car moved up the road, two soldiers fired their guns with what they described as "Twenty well aimed shots" at the car. None of the civilian witnesses saw any attempt to stop the vehicle from leaving the car park. As a result of the shooting, Fergal Caraher was killed and his brother Miceal seriously injured. The soldiers' versions of events, as given at the trial, was materially different (see below).

Two soldiers, Marine E and Marine A, were charged with the murder of Fergal Caraher, attempted murder of Miceal Caraher and wounding Miceal Caraher with intent to do him grievous bodily harm.

The case was heard at Belfast Crown Court before Lord Chief Justice Brian Hutton who acquitted both on all charges.

Lord Chief Justice Hutton in his judgment of 23 December 1993 identified two main conflicts of evidence between the civilian and military witnesses, firstly, whether a soldier had attempted to stop Fergal Caraher as he drove past the checkpoint in his car and, secondly, what happened after Fergal Caraher drove into the car park where Marine B came across to talk to him. In particular, the civilian witnesses refuted the version of the soldiers, in that they had denied seeing any attempt by soldiers to flag him down, and in the car park saw no altercation between the two Carahers and the soldiers; none saw the smashing of the car window by a soldier or any soldier being hit or carried along by a car.

The judge summarised the evidence of the soldiers as follows:

Evidence of Marine E

“After he () had seen the white Rover pass behind him as he was checking one of the cars at the rear of the line of cars travelling toward Cullyhanna, and thinking that the white Rover had driven through the VCP disobeying Marine B's signal to stop, and seeing the white Rover turn into the car park at the Lite and Easy and stop there, he () sent Marine B down to the car park to investigate.

He () then noticed that the driver of the white car had got out of the car and was standing in the car park and was acting "anti" towards Marine B. He () heard raised voices, and he () then went down to the car park. He approached the driver of the white car and Marine B and asked the driver what the problem was. The driver replied that there was no problem. The driver told him that he was not scared of them (ie. the soldiers) and asked and soldier B what they were going to do.

could smell that the driver had been drinking and noticed that his speech was slurred. The driver told that he had been drinking and that he was drunk. asked him for his identification but the driver did not give it...

A red Granada car then came from the same direction as the white Rover. It stopped a short distance past the entrance to the car park on the Dundalk side of the car park.

The passenger got out of his red car when it stopped and walked in the direction of , Marine B and the driver of the white car. This person appeared to be hunched over and appeared to be shouting at and Marine B. The man also appeared to be shouting at the driver of the white car. did not know who this man was. could not make out what he was shouting, he could not understand him.

The man from the red Granada shouted one thing which understood which was "Fuck this, I'll do it". This man then carried on to the white car and got into the driver's seat. The other man, who had driven the white Rover into the car park, initially did nothing, and then he turned and ran and got into the front passenger seat of the white car.

At this stage was standing in front of the Rover car approximately 5 or 6 metres back from the front of it and to the driver's side of the front. Marine B was standing somewhere over his ('s) right shoulder.

When the man from the red Granada got into the driver's seat of the white Rover he was revving the car intending to drive away. was not agreeable to that because he had not identified the person, (ie. the man who had driven the white Rover into the car park, to whom he had been talking). wanted to know who he was and why initially he had driven through the VCP.

moved to the front of the white Rover and placed his left hand on the bonnet and shouted to the driver to stop and to get out of the car. He was holding his rifle with his right hand.

When he was standing with his hand on the bonnet, he was at the front of the car on the driver's side.

The driver did not respond to 's wish and he kangarooed the car forward as if he were a learner driver trying to pull away. This movement of the car pushed backwards and his feet were slipping in the shingle of the car park. was pushed back approximately 3 or 4 metres.

At this stage was not aware where Marine B was other than that he was over his right shoulder somewhere in the car park. The driver appeared to slip the clutch and the car moved forward in continual motion.

As the car surged forward it lifted up. His hand was still on the bonnet and he twisted himself on the driver's wing of the vehicle as it pulled out onto the road.

As cleared the wing he was falling backwards in the opposite direction to the vehicle and he smashed the driver's window of the car by striking down at the window with the butt of his rifle whilst he was falling backwards. He did not fall on the ground as he broke his fall with his left arm by putting his left arm down behind him...

At this point noticed Marine B. Marine B was in front of the car which was moving at this stage. The car reached Marine B and Marine B was trapped on the front of the car. The car had struck Marine B and he was trapped by the speed and motion of the car pulling away from the car park. It was the front passenger side on the front of the bonnet which appeared to strike Marine B. He () noticed this as he was smashing the window.

The car was accelerating away toward Dundalk. He () formed the view that Marine B was trapped. Marine B was on the front of the car as it turned or went in the direction of Dundalk.

He () then cocked his rifle, and he looked at his rifle to cock it. He was trained to look at his rifle when he cocked it. Once he cocked the rifle he brought it up on aim. This involved moving the cheek plate up to his cheek and aligning his eye with the sight. He brought the sight straight up to his eye and closed his left eye.

had never before fired his rifle outside the circumstances of training. As he brought the sight up to his eye he was kneeling on the road.

He looked through the sight at the car. His intention in cocking the weapon and putting the sight to his eye was to stop the car moving away down the road.

He tried to stop the vehicle by firing his rifle.

He was aware that somebody joined them from the direction of the village, and he took it to be another member of his team. This person appeared to be to his right. He told him to "make ready, fire". He could not remember if he said this before or after he () started to shoot.

As he saw the car through the sight it appeared to move down the road towards Dundalk. He thought Marine B was on the front of the car. At no stage did he see him fall from the car. He did not see Marine B or anything that might be him on the front bonnet through the windscreens of the car.

He () fired at the driver. At no stage did he fire at the passenger.

It was put to that there were bullet holes at the rear of the car which were not in the position where the driver would be. said that he was not conscious or aware of firing at any of those positions.

He fired at the driver to stop the car. He wanted to stop the car because Marine B was on the bonnet of the car.

When asked why did he think it necessary to stop the car or to fire at the driver because Marine B was on the bonnet replied: 'Because he (Marine B) could have been seriously hurt or killed'...

It was not feasible to shoot at other portions of the car, such as the tyres, because the driver was the person in control of the car. His training did not involve being trained to shoot at the tyres of a car...

The car travelled down the road and it seemed to lose power at some distance. He noticed that the driver's head made a slumping movement and he concluded that the driver of the vehicle had been hit. When he saw that he stopped firing.

When he stopped firing he took the sight away from his eye and viewed the scene with both eyes. When he did that he saw Marine B. Marine B was at the Dundalk end of the car park on the mixture of shingle on the car park and the hard surface of the road. Marine B was sitting up from having been laid down. He () then moved back onto the car park. He turned round and noticed that it was Marine who had joined him to his right...”

Evidence of Marine A

"He () continued to check cars going in the direction of Cullyhanna. He then heard a car coming from Cullyhanna. It was a red Granada. He saw the driver and passenger in this red car. As it went past his location it beeped on the horn and the driver's passenger gave the V sign. The red car drove on in the direction of the south...

He () then looked at the car park. He saw Marine B signalling to him to come down. He was aware that a white Rover was there... at the southern end of the car park. It was about 4 or 5 metres back from the road and was at an angle slightly facing the south. Marine B signalled with his arm to come to him. Marine B was at the front of the white Rover and was talking to a civilian. He () did not see at that stage.

When he received the signal from Marine B he looked to the north and saw other soldiers coming down, and he shouted to one of them to take over, and he () proceeded to the car park. He walked down towards the Lite and Easy car park and when he got into the vicinity of the car park he noticed at the white car as well. At this stage he reached the north end of the car park. Marine B was at the front of the white Rover... He was just aware of a civilian in the same vicinity as and Marine B.

As he was walking towards the car he noticed another civilian walking from the south towards the white car. The first civilian seemed to be uncooperative with and Marine B. This was apparent from raised voices and the body language. There were raised voices and arms were up while speaking.

As the second civilian got closer to the car he said something which he () could not make out. It was just a raised voice as though shouting something.

The second civilian just walked past the soldiers and the first civilian. was to the driver's side of the car with the first civilian and Marine B was more to the passenger's side. The second civilian got into the driver's seat and started the engine. The first civilian was at the front of the car at first and then he ran and got into the passenger seat.

When the first man got into the car ran to the front of the car and put his hand on the bonnet and told him to stop the car. was on the driver's side of the car. At this time he () was walking down towards the car park. Marine B was to the front of the car facing south. Marine B would have been in the car park.

The car revved loudly, a big rev, and then went forward. had a hand on the bonnet shouting to stop the car. The car was pushing back. As the car surged forward came off on the driver's side, and as he came off he managed to smash the driver's window.

Once smashed the window he () ran forward. He was not aware at the time that had stayed on his feet. He () saw the smashed window. As smashed the window the car was just coming onto the road.

As he () ran forward he could not see Marine B, he lost sight of Marine B.

When he had last seen Marine B he was at the front of the car. Marine B would have been in the line of the car as it set off.

When smashed the window he () ran forward and tried to make a grab for the driver. He () realised the car was going too fast.

He () had lost sight of Marine B. He thought he had been hit or had gone under the car.

As the car came out of the car park he () tried to grab for the driver. He () followed the driver out and he () set out to the right-hand side of the road.

He () thought that Marine B was on the bonnet or had gone under the car. He could not see Marine B. He went down in a kneeling position just to the right of and slightly to his front. He received the order from "Ready, Fire". He () had already taken the decision to fire at the driver. He thought Marine B's life was in danger...

The time between the breaking of the window and the firing of the first shot was a split second. It was one motion, it was so fast.

He () was in the kneeling position. fired the first two shots.

He () went down instantly, he made ready and came up on sight. He would have looked down to cock his weapon. At the stage he brought up the sight onto the target he could not see Marine B... As he brought up the weapon his left eye closed and stayed closed. When he brought the sight up to his eye he aimed at the back windscreen and at the driver. He did not know if he was able to see through the windscreen or not. He was not able to see to the left or right of the driver.

He was concentrating on the tip of the sight which was on the driver.

At no time when he was looking through the sight did he see Marine B.

When he () fired the shots he believed Marine B was still on the bonnet or under the car.

He () was firing at the driver to stop the car. He saw the vehicle slow down, he never saw it stop. He heard order "Stop Firing"...

When he came off sight he noticed Marine B on the left to his front.

At no time did he see Marine B on the sight picture. The first time he saw Marine B was when he came off aim and opened both eyes.”

Evidence of Marine B

"After Corporal nodded in the direction of the car he (Marine B) walked down towards the car park. He thought there was no particular danger at all in relation to the car... His intention was to find out why the driver had driven through the VCP. As he got closer to the driver he (the driver) started hurling abuse. He was swearing. He did not understand what the driver was saying, he had trouble understanding the south Armagh accent. The driver was unsteady on his feet and he (Marine B) formed the impression that he was drunk. He asked him why he had driven through the VCP. He did not understand what the driver replied.

He was aware of Corporal arriving. He (Corporal ) appeared over his left shoulder...

At the time that Corporal appeared at his left shoulder he noticed a red car coming along from the direction of Cullyhanna. The red car continued to move past the car park and as soon as it cleared the car park it stopped. There was a passenger in the front passenger seat. Before the car stopped the passenger window was opened and the passenger was shouting abuse towards them.

The passenger got out and he walked up to the car park. He was shouting when he started to walk up towards them. He (Marine B) did not understand what he was saying. The passenger was unsteady on his feet as well. He (Marine B) formed the view that he had been drinking as well. His shouting was abusive. To begin with the passenger directed his abuse at them in general in the car park.

When the red car originally appeared he left Corporal 's side and walked down towards the red car. When the passenger passed him he (Marine B) understood what he was saying. He said "Get the fuck in, and fuck them". This was directed to the driver of the white car.

Thereafter his (Marine B's) attention was focused on the red car. The red car drove off in the Silverbridge direction... He watched the red car until the Spar shop. He (Marine B) would have been facing south... As he watched the red car drive towards Silverbridge he could not see the white car behind him and slightly to his left.

He (Marine B) could hear revving from behind when the red car had gone out of his sight or just before it had gone out of his sight. He did not do anything immediately because the red car had still a little way to go. Then he turned round to his left. He saw the white car. The white car was just in front of him and it was moving towards him. He was not aware of the vehicle moving towards him. He did not expect to see the vehicle moving towards him. The front of the car was closest to him. If he could have stepped out of the way he would have done so. The car was almost on top of him and was moving towards him. He thought he was going to be hit by the car and he put himself down onto the bonnet. The top half of his body was on the bonnet and his feet were still on the ground. His feet did not stay on the ground, he lifted them up. He thought that if his feet stayed on the ground he would be pulled under the car. He put himself onto the bonnet to avoid the car hitting him. He noticed Corporal on the driver's side wing of the car. He was holding the car in the corner, he (Marine B) was not sure how. Corporal 's whole body was in contact with the wing. About the same time as he (Marine B) turned round Corporal came off the wing. After that he saw Corporal smash the window of the car.

When he (Marine B) turned and saw the car it was accelerating. As he went on to the bonnet the car continued to accelerate. He thought he was in the centre of the bonnet. The car accelerated onto the road and his (Marine B's) helmet came off and then he came off. He came off on the passenger's side of the car. The car set off in the Silverbridge direction.

He (Marine B) landed on his back. He hurt his back on landing and his right elbow... He could not say for sure what portion of the road he landed on. He had not travelled that far on the bonnet when he came off.

After he had fallen off he heard shots. He did not know what was being fired at. He sat up after a time... then started looking for his helmet. He got his helmet. His memory was not clear from the moment he came off the vehicle. He was dazed and shocked...

He thought that if he had not lifted his legs up he could be dragged under the car. Before turning to see the car and ending on the bonnet a long time did not elapse. It wasn't seconds, it was about a split second.

Marine B was rigorously cross-examined by Mr Weir as were the and the accused . In the course of his cross-examination Marine B was asked (inter alia) why he had not heard the series of sounds and actions described by Corporal in his evidence, which were the passenger from the red car getting into the driver's seat of the white car, the other man (Mr Fergal Caraher) running and getting into the passenger seat of the white car, the driver revving the white car, moving to the front of the white car and shouting to the driver to stop and to get out of the car, the kangarooing of the white car and the sound of 's feet slipping back three or four metres in the shingle of the car park..."

The judge found the forensic evidence from Marine E's rifle butt and clothing supported his story as to smashing the car window.

In assessing the credibility of the civilian witnesses, he reviewed the manner in which they had given their evidence to the police.

"It may well be that the civilian witnesses did not trust the police to investigate in a completely impartial way the shooting incident involving members of the security forces and two young men from Cullyhanna. It also appears that some time later the civilian witness gave written answers to written questions sent to them by the police. But, notwithstanding this, I am satisfied, from hearing their answers in cross-examination and from watching their demeanour in the witness box, and having regard to the precise and detailed evidence given by police officers as to what happened in Newry police station on 7 January 1991 when the witnesses and Mr Tiernan gave the police the prepared statements and refused to answer questions from the police, that the civilian witnesses gave untruthful answers on oath in the witness box when they said that there was not a pre-arranged plan to give written statements to Mr Tiernan, and that some of them gave untruthful answers when they said that they did not refuse to answer questions to the police. It is quite contrary to common sense to accept that the civilian witnesses all went and gave statements to Mr Tiernan, and that he accompanied them to the police station and told the police that they would answer no questions, without some sort of plan or arrangement between them and, possibly, some other third party or third parties. Therefore, when assessing the truthfulness of the evidence of the civilian witnesses as to what they saw happen in the car park between and Marine B and Mr Fergal Caraher and Mr Miceal Caraher and when the car drove out of the car park, I have to bear in mind that they were prepared to lie in the witness box and did lie in the witness box about the way in which they gave their statements to the police. I also think it is probable that the civilian witnesses gave their statements to the police in this way because they did not want to let slip any piece of information which would help the soldiers or would harm Mr Fergal Caraher or Mr Miceal Caraher. This consideration therefore raises a question mark about their impartiality when they described in the witness box what they saw happen in the car park..."

As regards the significance of the evidence, the Lord Chief Justice found:

"There is no doubt that Mr Fergal Caraher and Mr Miceal Caraher were unarmed. It is also clear that they were not terrorists, and no suggestion was made by the two accused that they believed them to be terrorists. However the evidence given by the two accused clearly raised the defence (although the onus is not on the accused to establish this defence, but the onus is on the crown to disprove it beyond a reasonable doubt) that they fired because they believed that Marine B would be killed or seriously injured if they did not fire..."

He stated the applicable law, inter alia, as follows:

"A number of decisions of the highest courts, the House of Lords, the Privy Council and the Court of Appeal in England, have made it clear that where an accused raises the defence that he killed or injured a person in self-defence or in defence of a third person, the Crown must prove beyond a reasonable doubt that he was not acting in defence of himself or another person or that the force which he used was unreasonable. And these decisions also make it clear that in deciding whether the Crown has proved that the force used was unreasonable beyond doubt the tribunal of fact must have regard not to what actually happened, but to what the accused at the relevant time honestly believed was happening. Moreover the courts have made it clear that the tribunal of fact must assess this, not retrospectively in the calm of the courtroom, but by putting itself in the position of the accused and deciding the question taking account of the situation which the accused was in and of the pressures to which he was subjected and of the time in which he had to act...

In the Attorney-General for Northern Ireland's Reference at 137 E Lord Diplock stated:

'... The form in which the jury would have to ask themselves the question in a trial for an offence against the person in which this defence was raised by the accused would be: Are we satisfied that no reasonable man (a) with knowledge of such facts as were known to the accused or reasonably believed by him to exist (b) in the circumstances and time available to him for reflection (c) could be of opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using?...' ”

The Lord Chief Justice concluded:

"The two accused having raised the defence of acting in defence of Marine B, the issue which I have to determine in order to decide the guilt or innocence of each accused is whether I am satisfied beyond a reasonable doubt that the Crown has proved that the firing by the accused was not the use of reasonable force to protect Marine B from death or serious injury by being thrown off the bonnet of the car when it was driving away towards Silverbridge. In the context of this case the issue is whether there is a reasonable possibility that the white Rover car drove off from the car park with Marine B on the bonnet so that the two accused honestly believed that he was being carried away on the bonnet and that they had to fire at the driver of the car to stop the car in order to protect Marine B from death or serious injury by being thrown off the bonnet of the car...

However in a case such as this where there is a complete conflict of evidence as to what happened at the vital time, and where there are grounds for doubting the truthfulness of the evidence of both the prosecution witnesses and the accused and their principal witness, it is important for the court to remind itself of the fundamental principle of the criminal law, which is that an accused person can only be convicted if the court is satisfied of his guilt beyond a reasonable doubt, and, of course, this principle applies to the trial of a soldier just as much as it applies to the trial of any other person.

Therefore, at the end of this case, when I came to look back at, and to weigh and consider, all the evidence, bearing in mind the points made by both Mr Weir and Mr Smith in their closing speeches, I found that I had a reasonable doubt whether the accused were guilty. Stating the same thing in a different way, I considered that there was a reasonable possibility that Marine B was carried away on the bonnet of the white Rover car and that, in the emergency of the moment, there was a reasonable possibility that the two accused fired at the driver because they honestly believed it was necessary to do so to save Marine B from death or serious injury and that in the circumstances as the accused honestly believed them to be there was a reasonable possibility that this constituted reasonable force..."

In reaching that conclusion, the Lord Chief Justice based himself on four factors:

"1. ... that the civilian witnesses were deliberately untruthful...

2. The clear scientific evidence of fibres on the nearside bonnet of the white Rover car which supported the proposition that the camouflage uniform of a soldier had been in contact with the nearside bonnet of the car and there were a number of scrapes and smears on the nearside front wing and bonnet of the car. These appeared to be recent and could have originated from clothing or another object moving across the surface of the bonnet and wing...

3. ... that Marine B did sustain some injuries in or about the area of the Lite and Easy car park. And if he sustained injuries in that location it appears to be probable that this was due to contact with the car...

4. ... if Marine B did signal to Fergal Caraher to stop as he approached the VCP at the church and Mr Fergal Caraher failed to do so, it is clear that the soldiers did not fire at the white car at that stage just because it ignored a signal to stop at the VCP. If this is so, it seems unlikely that a few minutes later the soldiers would have fired at the car just because Mr Miceal Caraher ignored an order in the car park not to drive off, and without something having happened in the car park quite contrary to the account given by the civilian witnesses. As I have said, it seems unlikely that the soldiers would suddenly have abandoned the restraint which they had previously shown a few minutes before when the car ignored a signal to stop at the VCP.

Accordingly, because I have a reasonable doubt as to the guilt of each accused, I find each of them not guilty on the three counts of the indictment."

High Court proceedings in Northern Ireland for aggravated damages were issued by the applicant against the Ministry of Defence, alleging that her husband Fergal Caraher had been unlawfully killed and claiming, inter alia , negligence in the failure to give any or an adequate warning, a failure to give any or any adequate instruction or training, and causing or permitting the soldiers to act in a violent, dangerous and reckless manner. While the case was provisionally listed for hearing in the June 1997, due to difficulties with the attendance of witnesses it was listed for the first week of October 1997. The date was moved subsequently to 10 November 1997. On 29 and 30 October 1997, however, the applicant's solicitors contacted the Crown Solicitor (acting for the Ministry of Defence) informing him that they wished to amend their statement of claim, require additional discovery of documents and, in the related action brought by the brother of the deceased, served five medical reports. The High Court adjourned the case to enable the Crown Solicitor to have the brother medically examined and to deal with the other matters raised. The case was relisted for hearing on 8 June 1998.

On 5 June 1998, counsel for the personal representatives of the deceased applied to the High Court for an adjournment on the grounds that the solicitors had failed to instruct senior counsel on behalf of the personal representatives. The judge agreed to the adjournment, ordering the solicitors to pay the costs of the application. The case was relisted for 28 September 1998.

On 28 September 1998, the case was settled. The terms of the settlement between the applicant as administratix to the estate of Fergal Caraher and Ministry of Defence were, inter alia :

- that the Ministry of Defence pay the applicant the sum of £50,000 in full and final settlement of all claims on her own behalf and on behalf of the estate and dependants of Fergal Caraher, as well as the applicant's legal costs;

- that the Ministry of Defence made no admission as to any legal liability in respect of the said payment or in respect of the death of the deceased;

- that the applicant and her solicitors should not disclose the terms of the agreement.

B. Relevant domestic law and practice

Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia :

“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large."

Self-defence or the defence of others is contained within the concept of prevention of crime (see eg. Smith and Hogan on Criminal Law).

The "Yellow Card" issued to soldiers in relation to use of fire-arms provides, inter alia, as follow:

"Instructions for opening fire in Northern Ireland. ...

You may only open fire against a person if he is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger...

The following are some examples of acts where life could be endangered, dependent always upon the circumstances:...

(3) Deliberately driving a vehicle at a person and there is no other way of stopping him...

If you have to open fire you should:

Fire only aimed shots..."

COMPLAINT

1. The applicant invokes Article 2 of the Convention in respect of the killing of her husband, both on his behalf and as an indirect victim herself. She submits, inter alia , that there is an obligation on the United Kingdom to adopt clear and detailed rules on the use of lethal force, which strictly control or limit the use of such force in accordance with Article 2 of the Convention. She submits that the relevant law in the United Kingdom is vague, generally worded and entirely subjectively applied. She claims that Article 2 requires the United Kingdom to exercise strict operational control over the use of lethal force, including appropriate training, briefings and instructions, with clear lines of command and responsibility. She contends that soldiers are trained and instructed to shoot to kill and submits that courts will find killings justified if they are in accordance with the training given, without inquiring into whether an operation has been planned or carried out in such a way as to minimise the need for or risk of lethal force. Finally, she submits that the killing of her husband was not, on the facts of the case, justified under the provisions of Article 2 of the Convention.

2. The applicant further complains that there is no effective remedy in respect of her complaints as required by Article 13 of the Convention. She argues that civil proceedings for damages do not in the circumstances constitute an effective remedy and claims that prosecution of the perpetrators pursuant to domestic law, which should in itself be in conformity with the Convention, is required.

PROCEDURE

The application was introduced on 10 October 1994 and registered on 4 July 1994.

On 10 October 1994, the Commission decided to communicate the application.

On 13 February 1995, the respondent Government submitted its observations after one extension of time for the purpose.

On 20 May 1995, the Commission decided to adjourn further consideration of the application pending the judgment of the European Court of Human Rights in McCann, Farrell and Savage v. United Kingdom (Application No. 18984/91).

On 3 October 1995, the Commission requested the parties to submit further observations on the admissibility and merits of the application in the light of the judgment of the European Court of Human Rights on 27 September 1995 in McCann, Farrell and Savage v. United Kingdom (Series A No. 324).

On 22 December 1995, the respondent Government submitted further observations after one extension in the time limit. The observations in reply were submitted by the applicant by letter of 15 March 1996, also after an extension in the time limit.

By letter dated 27 September 1996, the parties were requested by the Secretariat to clarify the status of the pending civil proceedings. By letter dated 11 October 1996, the applicant replied that a four day hearing was anticipated in January 1997. By letter dated 11 October 1996, the Government stated that the case had been removed from the lists pending the provision of a transcript of evidence from the criminal proceedings and that a hearing was not anticipated until March 1997. By letter dated 15 April 1997, the applicant indicated that the case was listed for the end of May 1997.

By letter dated 26 June 1997, the applicant indicated that the case had been relisted in the High Court for the first week of October.

On 8 September 1997, the Commission decided to adjourn the case until the civil proceedings were terminated or until any other circumstance rendered the adjournment inappropriate. The parties were requested to inform the Commission at three monthly intervals of the state of the civil proceedings.

Information concerning the state of proceedings was received from applicant on 21 October 1997 and from the Government on 25 November 1997, 24 February 1998, 3 June 1998, 9 June 1998 and on 27 August 1998.

On 23 October 1998, the Government informed the Commission that the action in the High Court had been settled on payment to the applicant of the sum of £50,000, and submitted that the applicant was no longer a victim for the purposes of former Article 25 of the Convention, and that the application should be struck off.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 2 December 1998, the applicant requested further time to respond to the Government's submissions. On 3 February 1999, the applicant submitted his comments on the Government's submissions.

THE LAW

The applicant invokes Articles 2 and 13 in respect of the shooting of her husband, Fergal Caraher, by two soldiers.

Article 2 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.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government, referring to the settlement by which the applicant accepted £50,000 in respect of her claims made in civil proceedings against the Ministry of Defence, submit that the applicant may no longer claim to be a victim of any violation of the rights invoked in respect of the death of her husband.

The applicant submits that the settlement is not relevant in this context, arguing that it cannot be regarded as providing adequate or effective redress. She submits, firstly, that the terms of the settlement involved a limited amount of compensation, without involving any official acknowledgement of the breach (see eg. Inze v. Austria judgment of 28 October 1987, Series A no. 126, §§ 30-34, Ludi v. Switzerland judgment of 15 June 1992, Series A no. 238, §§ 31-34). She was also effectively forced to accept the settlement as, otherwise, she risked paying the full costs of litigation if she lost the civil action. Secondly, the applicant argues that the payment of money can never provide adequate redress for the loss of life which is authorised or tolerated by domestic law, or where the use of lethal force is part of an administrative practice (eg. Nos. 5577-5583/72, Donnelly and others v. the United Kingdom, dec. 15.12.75, DR 4 p. 4 at pp. 78-79).

Concerning the adequacy and context of the settlement

The Court observes, first of all, that the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy for a substantive complaint of an unjustified use of lethal force by a State agent in violation of Article 2 of the Convention (see, mutatis mutandis , Donnelly, op. cit. at p. 66). Separate procedural obligations may also arise under Article 2 concerning the provision of effective investigations into the use of lethal force, but these are not in issue in the present case (see eg. Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, §§ 86-87, 105). Where a relative accepts a sum of compensation in settlement of civil claims and renounces further use of local remedies therefore, he or she will generally no longer be able to claim to be a victim in respect of those matters (see Donnelly, op. cit. at pp. 86-87).

The Court is not persuaded that an applicant can still claim to be a victim on the basis that the amount of compensation is inadequate. It is true that the Commission held that the applicants in Donnelly “might be said” to have received reasonable compensation and referred to a punitive element being present in three of the four cases, noting that the sums were “reasonably related” to the severity of the injuries suffered. Nonetheless, the Court observes that the Commission's comments in this respect were linked to its findings that the Government had fulfilled its duty to the applicants to prevent the occurrence or repetition of acts and that there was no administrative practice disclosed in authorities' handling of the applicants' claims.

Where a case is settled, the parties are influenced, inevitably, by a number of considerations which affect the amount of compensation, in particular, the saving of time and further expense and the uncertainty of the final result. The Court considers that in the present case the settlement - fifty thousand pounds sterling - may be regarded as a substantial sum. Insofar as the applicant alleges that she would have received far more if she had pursued her claims to a successful conclusion, the Court would note that it was her choice not to do so. It rejects her argument that she was effectively forced to accept the settlement due to the risk of being held liable to pay the costs of the proceedings. The requirement for a losing party to pay costs is a normal feature of civil proceedings and does not dispense applicants from the obligation to exhaust available domestic remedies.

To the extent that the applicant also alleges that civil proceedings are per se an ineffective way of challenging the adequacy of the training of and instructions given to soldiers, the Court would note that civil proceedings are a standard method of challenging negligent conduct and practices of official bodies. The Court finds that the applicant has not substantiated her argument that such proceedings would provide no possibility of effective redress (see eg. Farrell v. the United Kingdom, No. 9013/80,dec. 11.12.82, DR 30 p. 96, at p. 102, where the Commission rejected part of the complaints for non-exhaustion due to the applicant's failure to pursue in civil proceedings claims concerning the alleged negligence in the setting up and planning of a security force operation, including claims of inadequate instructions given to the soldiers prior to the use of lethal force).

Concerning the payment of compensation for breach of the right to life

Regarding the applicant's submissions that compensation does not provide effective redress where the breach is authorised by law or part of an administrative practice, the Court recalls that, according to the case-law of the Convention organs, special circumstances may arise in which the mere payment of compensation could not be considered an adequate remedy in respect of conduct contravening Article 3. This is where the conduct is authorised by domestic law or where the higher authorities of a State pursue a policy whereby such conduct is authorised or tolerated. Further, compensation can only be regarded as an adequate remedy where the higher authorities have taken reasonable steps to comply with their obligations by preventing, as far as possible, the occurrence or repetition of the acts in question (Donnelly, op. cit. , at p. 78-79). The Court examines the applicant's submissions on this aspect below.

i. Domestic standard of lawfulness

The applicant argues that the domestic legal standard (lethal force must be shown to reasonable in the circumstances) is significantly weaker than the Convention standard of “absolute necessity”, and operates to authorise the use of lethal force by soldiers in breach of the latter. The applicant submits that this is demonstrated by the acquittal of the soldiers in this case.

The Court recalls that a similar argument based on the difference in standards was rejected in the McCann case (see McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, §§ 154-156) where it was found that, though the Convention standard appeared on its face to be stricter, the manner in which the national standard was interpreted and applied by domestic courts showed no substantial divergence.

The Court further recalls that in the McCann case it held in assessing the conduct of the individual soldiers that:

“the use of force by the agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty...” (§ 200)

In this case, the judge concluded that “there was a reasonable possibility that the two accused fired at the driver because they honestly believed it was necessary to do so to save Marine from death or serious injury and that in the circumstances as the accused honestly believed them to be there was a reasonable possibility that this constituted reasonable force.”

The Court considers that approach taken by the domestic judge in the trial, in having regard to the honest and reasonable belief of the two soldiers that one of their colleagues was at risk from the car driven by the Caraher brothers, and that they had to open fire to save his life, is compatible with the principles established in McCann. Insofar as the applicant argues that facts of the case show that the trial judge wrongly applied that standard, the Court would observe that the trial judge, who heard the witnesses, must be regarded as being in the best position to assess their credibility and reliability and to weigh the evidence against the criminal standard requiring proof beyond reasonable doubt.

The applicant has also submitted that domestic proceedings are fundamentally flawed since national judges consider only the reasonableness of soldiers' actions in opening fire in accordance with their instructions, which do not, for example, involve firing at tyres or aiming to wound for example. The Court recalls that, in summarising the evidence in the case, the judge expressly referred to the soldiers not being trained to fire at car tyres. On examination of the summing-up, however, it finds no indication that conduct which would otherwise be regarded as an excessive use of force is regarded as justified on the basis that such conduct is in accordance with orders or instructions The Court accordingly finds no element in the judge's summing-up which would lead it to conclude that there was any arbitrariness or disregard for the applicable standard which could disclose condonation of unlawful conduct in practice.

ii. Administrative practice

The applicant has claimed also that the settlement of her civil claims is not relevant to the admissibility of her complaints, as the shooting of her husband was part of a systematic practice which permitted, condoned and encouraged such conduct. She refers to the alleged defects in the training and instruction of soldiers who deliberately use lethal force rather than firing warning shots, firing to wound or firing at the tyres of cars.

In the First Greek case (Yearbook 11 p.770), the Commission identified two elements necessary to the existence of an administrative practice: a repetition of acts and official tolerance. Repetition of acts was stated as referring to a substantial number of acts which were linked or connected in some way by the circumstances surrounding them (eg. time and place, or the attitude of persons involved) and which were not simply a number of isolated acts. The Court has stated that a practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system (Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, §159). By official tolerance is meant that, though acts are plainly unlawful, they are tolerated in the sense that the superiors of those responsible, though aware of the acts, take no action to punish them or prevent their repetition; or that a higher authority, in the face of numerous allegations, manifests indifference by refusing any inadequate investigation of their truth or falsity; or that in judicial proceedings a fair hearing of such complaints is denied ( mutatis mutandis , Application Nos. 9940-9944/82, France, Norway, Denmark, Sweden and the Netherlands v. Turkey, dec. 6.12.83, DR 35 p. 143 at p. 163, § 19). However, it may be noted that a practice may be found even where no official tolerance is established at the higher official levels and even where some acts have been prosecuted, since the higher authorities are under a responsibility to take effective steps to bring to an end the repetition of acts (see eg. Ireland v. the United Kingdom judgment, op. cit., § 159).

Furthermore, it is not sufficient that the existence of an administrative practice be merely alleged; its existence must be shown by substantial evidence, namely, evidence prima facie substantiating its existence (eg. Ireland v. the United Kingdom, dec. 1.10.72, Collection 41 p. 3 at p. 85, France, Norway, Denmark, Sweden and the Netherlands v. Turkey case, op. cit., pp. 164-165, §§ 21-23).             

In the present case, the Court notes that the applicant relies on the facts of this case and also refers to the judgment in the McCann case, where the Court criticised the lack of restraint and standard of care disclosed by the soldiers' reflex action, and commented that it was not clear whether they had been trained or instructed to assess whether the use of firearms to wound might be warranted in specific circumstances of arrest (see § 212). The Court does not however find this to be a sufficient basis to justify of a practice in breach of Article 2 of the Convention. While it is true that there are other cases pending before the Court in which allegations are made of excessive use of force by security forces in Northern Ireland (eg. Nos. 24786/94 Jordan v. the United Kingdom, 28883/95 McKerr v. the United Kingdom and 30054/96 Kelly and others v. the United Kingdom), it is also to be noted that in a previous case the Commission found that use of lethal force by soldiers firing at a car going through a road block had been justified in terms of Article 2 § 2 and did not disclose any disproportionate use of force (No. 17579/90, Kelly v. the United Kingdom, dec. 13.1.93, DR 74 p. 139). Having regard to the facts of the other pending cases, the Court is not satisfied that, even assuming that these cases were to result in findings of substantive breaches of Article 2, they disclose a series of similar acts which are linked or connected such as to constitute a pattern or system.

Nor does the Court find any substantial evidence of official tolerance of any alleged unlawful acts. In this case, as well as the McKerr case referred to above, the authorities prosecuted the members of the security forces involved in the shooting. While the proceedings did not result in convictions, the Court has found no indication in this case of disregard for the law or lack of effective examination of the case on the part of the court.

Consequently, the Court finds that the applicant has failed to substantiate her claims of an administrative practice applicable to the circumstances of this case.

Conclusion

Having regard to the considerations above, the Court finds that in bringing civil proceedings for aggravated damages in respect of the death of her husband the applicant has used the local remedies available and that in settling her claims in civil proceedings concerning the death of her husband, and in accepting and receiving compensation, the applicant has effectively renounced further use of these remedies. She may no longer, in these circumstances, claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the Convention.

This application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President