Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25681/94

by Kevin MCDAID and Others

against the United Kingdom

The European Commission of Human Rights sitting in private on

9 April 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 August 1994 by

Kevin MCDAID and Others against the United Kingdom and registered on

16 November 1994 under file No. 25681/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are (1) Kevin McDaid, born in 1955

(2) Ita McKinney, born in 1938.

(3) Eileen Green, born in 1942.

(4) Anthony Doherty, born in 1963

(5) Bernard Gilmour, born in 1946.

(6) Margaret Montgomery, born in 1958.

(7) Mary Doherty, born in 1946.

(8) Gerald Duddy, born in 1957.

(9) John Kelly, born in 1948.

(10) Margaret McGilloway, born in 1954.

(11) Lawrence McElhinney, born in 1924

(12) Maura Duffy, born in 1951.

(13) William Wray, born in 1953

(14) Michael McKinney, born in 1951.

The applicants are all resident in Derry (also known as

Londonderry), Northern Ireland. They are represented before the

Commission by Messrs Madden & Finucane solicitors practising at

Belfast. The facts as submitted by the applicants may be summarised as

follows.

The applicants are the relatives of thirteen individuals, Michael

McDaid, Gerald McKinney, Patrick Doherty, Hugh Gilmore, Bernard

McGuigan, Gerald Donaghy, John Duddy, Michael Kelly, Kevin McElhinney,

William Nash, John Young, James Wray and William McKinney who were shot

dead by the British army in Derry on 30 January 1972, subsequently

known as "Bloody Sunday". They had been participating in a

demonstration against internment without trial which had been organised

by the Northern Ireland Civil Rights Association. Estimates of the

number of participants vary between 3000 and 30,000.

The march began in the Creggan area at approximately 2 pm and

progressed down to the William Street area with the intention of

terminating at the Guildhall Square for a rally involving speeches by

civil rights activists and MPs. The march progressed without incident

until it reached the junction of William Street and Rossville Street.

The British army had erected a barrier in William Street. As a result,

the lorry at the head of the march turned into Rossville Street,

leading the marchers away from confrontation with the soldiers at the

William Street barrier. The march proceeded to Free Derry Corner where

the rally began.

Approximately 200 marchers, mainly young men, broke away from the

march and began throwing stones at the soldiers manning the barricade.

As a result of this low-level rioting, the soldiers responded by firing

a number of rubber bullets. They also turned water cannons on the

youths and threw CS gas canisters into their midst. These measures were

effective in repelling the rioters and succeeded in containing the

marchers within the Rossville Street, Little James Street, Chamberlain

Street, Glenfada Park and Abbey Park areas of Derry known as the

Bogside.

At 4.07 pm members of the First Battalion Parachute Regiment (the

Paras) were ordered into the Bogside area to commence a pre-planned

arrest or "scoop up" operation. At 4.10 pm the Paras opened fire on the

civilian demonstrators and by 4.37 pm thirteen people had been shot

dead and thirteen others had been wounded.

Fifty-four arrests were made during the operation and some of

those arrested were charged with riotous behaviour. On 1 August 1972

the Attorney General announced that all of those charges were to be

withdrawn.

On 31 January 1972 the British Prime Minister, Edward Heath,

announced an immediate public inquiry under the Tribunals of Inquiries

(Evidence) Act 1921. The Lord Chief Justice, Lord Widgery, was selected

by the Government to undertake the inquiry alone, despite calls from

several Members of Parliament for any tribunal or inquiry to be

undertaken by more than one judicial member. On 1 February 1972

Parliament, in setting up the tribunal, adopted a resolution that,

"..It is expedient that a Tribunal be established for inquiring into

a definite matter of urgent public importance namely the events on

Sunday 30 January which led to the loss of life in connection with the

procession in Londonderry on that day".

The Widgery Tribunal sat from 21 February 1972 until 14 March

1972. Lord Widgery restricted his terms of reference to the streets of

Londonderry in which the disturbances and the shooting took place and

to the period beginning with the moment when the march first became

involved in violence and ending with the deaths of the deceased. He

also considered the orders given to the army before the march.

Lord Widgery had discretion to decide what information would be

of help to the Tribunal. He heard evidence from military personnel and

civilian eyewitnesses, including international journalists, cameramen,

photographers, civilian demonstrators and local priests. Evidence was

given by only seven out of the thirteen people who were wounded by the

soldiers.

The evidence given by military witnesses claimed that the members

of the First Parachute Regiment were fired upon first by gunmen and

that they fired aimed shots at identified targets. The Tribunal also

heard evidence that the soldiers were stoned, abused and attacked with

nail/petrol/acid bombs.

The evidence given by civilian witnesses claimed that the

soldiers had fired indiscriminately at innocent people fleeing or

attempting to hide from the gunfire and that the dead and wounded were

unarmed when they were shot.

The Widgery Report was published on 18 April 1972. The Report in

effect exonerated the members of the Parachute Regiment and their

commanding officers in relation to the thirteen killings and thirteen

woundings. It concluded, inter alia, that the intention had been to

carry out an arrest operation, that the soldiers had come under fire

and returned fire in accordance with the standing orders set out in the

Yellow Card, which were satisfactory:

"8. Soldiers who identified armed gunmen fired upon them in

accordance with the standing orders in the Yellow Card. Each

soldier was his own judge of whether he had identified a gunman.

Their training made them aggressive and quick in decision and

some showed more restraint in opening fire than others. At one

end of the scale some soldiers showed a high degree of

responsibility; at the other, notably in Glenfada Park, firing

bordered on the reckless. These distinctions reflect differences

in the character and temperament of the soldiers concerned.

...

11. There was no general breakdown in discipline. For the most

part the soldiers acted as they did because they thought their

orders required it. No order and no training can ensure that a

soldier will always act wisely, as well as bravely and with

initiative. The individual soldier ought not to have to bear the

burden of deciding whether to open fire in confusion such as

prevailed on 30 January. In the conditions prevailing in

Northern Ireland, however, this is often inescapable."

The Royal Ulster Constabulary (RUC) conducted their own

investigation into the deaths and woundings that occurred on 30 January

1972. On 4 July 1972 the RUC passed their file to the Director of

Public Prosecutions (DPP) for Northern Ireland. On 1 August 1972, the

Attorney-General, in a written answer to a parliamentary question,

stated that, after considering the evidence, together with the DPP for

Northern Ireland, there was insufficient evidence to warrant the

prosecution of any member of the Security Forces who took part in the

events of 30 January 1972.

An Inquest into the deaths was held on 21 August 1973 by Mr

Hubert O'Neill, Coroner.The jury returned open verdicts in respect of

the 13 deceased. However, the Coroner was quoted in The Irish Times the

following day as saying, "It strikes me that the Army ran amok that day

without thinking what they were doing. They were shooting innocent

people. The people may have been taking part in a march that was banned

but that does not justify the troops coming in and firing live rounds

indiscriminately. I would say without hesitation that it was sheer,

unadulterated murder. It was murder."

The applicants issued civil actions in the High Court in Northern

Ireland. The Government then issued a statement acknowledging that none

of the deceased had been proved to have been shot whilst handling a

firearm or bomb and that they should be regarded as having been found

not guilty of such an allegation. The Government made small ex gratia

payments to the applicants and the civil claims were withdrawn.

Since 1975 the applicants have called on the Government to set

up a new, independent inquiry to re-examine the events of "Bloody

Sunday". The Government has consistently refused to do so.

On 24 January 1994, the applicants' legal representatives wrote

to Prime Minister John Major formally requesting re-opening of the

cases and a new public inquiry. By letter dated 17 February 1994 the

Prime Minister's Undersecretary stated that it would not be right,

after a Tribunal of Inquiry had reported, to set up a further inquiry

into events that took place 22 years previously.

COMPLAINTS

The applicants claim that the rights of the deceased under

Article 2 of the Convention have been violated. They submit that the

deceased were intentionally and wrongfully deprived of their right to

life. They submit that the State has a positive duty to protect the

right to life and that the United Kingdom Government failed to do so

in this case. The applicants also claim that the failure to examine

thoroughly and impartially the circumstances of the deaths of the

deceased and to take criminal or other proceedings against those

involved in the killings is a continuing breach of that duty.

An alternative submission is that the only domestic remedy open

to the applicants was to persuade the United Kingdom Government to re-

open the inquiry. They claim that fresh material came to light prior

to their letter to Mr Major, which constituted cogent new evidence as

to the lack of independence of the Widgery enquiry and that the

application was timeously submitted after the Government's refusal to

hold a fresh inquiry.

THE LAW

The applicants complain that the deceased were intentionally and

wrongfully deprived of their right to life contrary to Article 2

(Art. 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."

The Commission recalls that the deaths caused during "Bloody

Sunday" were raised previously in the context of the Inter-State

application Ireland v. the United Kingdom where the applicant

Government alleged that the deaths of 22 persons in Northern Ireland

were caused by the security forces in breach of Article 2 (Art. 2) of

the Convention. The Commission declared these complaints inadmissible,

having found no substantial evidence of administrative practice of a

failure to protect life and that the domestic remedies available in

Northern Ireland in respect of these deaths had not been shown to be

exhausted (Ireland v. the United Kingdom, No. 5310/71, Dec. 1.10.72,

Yearbook 15, p. 76 at pp. 240-242).

In the present application, the applicants complain that, inter

alia, the United Kingdom Government sanctioned the military operation

in order to regain control of the Bogside area knowing that civilian

casualties were inevitable. The applicants also complain that they have

no effective remedy in domestic law.

However, the Commission recalls that Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the

matter... within a period of six months from the date on which the

final decision was taken". It is established case-law that "the final

decision" refers only to domestic remedies which can be considered

"effective and sufficient" for the purpose of rectifying the complaint

(eg. No. 9599/81, Dec. 11.3.85, D.R. 42 p. 33). Where there is no

remedy available, the six month period runs from the date of the act

or decision complained of (eg. No. 9360/81, Dec. 28.2.83, D.R. 32 p.

21).

In the present case, a Public Inquiry into the events of 30

January 1972 was held from 21 February 1972 to 14 March 1972. The

Report was published on 18 April 1972 and it was clear to the

applicants at that stage that the Parachute Regiment and their

commanding officers had been exonerated in relation to the thirteen

killings. In addition to the Public Inquiry, the RUC conducted their

own investigation into the deaths and woundings. This resulted in the

decision not to prosecute which was made public on 1 August 1972.

Further, an Inquest into the deaths was held by the Coroner of Derry

on 21 August 1973, which resulted in an open verdict.

Insofar therefore as the applicants complain of a failure to

provide an effective investigation into the circumstances of the deaths

of their relatives or to commence a prosecution, they must have been

aware by 21 August 1973 at the latest of the basis of their present

complaint. In particular, it must have been clear to the applicants

that no prosecution would be instituted and they would already have

been aware of the allegedly unsatisfactory conclusion of the Widgery

Report which was the official response to the events. The applicants'

complaints to the Commission however were introduced on 18 August 1994,

which is more than twenty years after the Inquest terminated.

Insofar as the applicants complain that they are victims of a

continuing violation to which the six month is inapplicable, the

Commission recalls that the concept of a "continuing situation" refers

to a state of affairs which operates by continuous activities by or on

the part of the State to render the applicants victims (see eg. Nos.

11192/84, dec. 14.5.87, D.R. 52 p. 227, 12015/86, D.R. 57 p. 108 and

24841/94 dec. 30.11.94). Since the applicants' complaints have as their

source specific events which occurred on identifiable dates, they

cannot be construed as a "continuing situation" for the purposes of the

six month rule. While the Commission does not doubt that the events of

"Bloody Sunday" continue to have serious repercussions on the

applicants' lives, this however can be said of any individual who has

undergone a traumatic incident in the past. The fact that an event has

significant consequences over time does not itself constitute a

"continuing situation".

Finally, while the applicants argue, alternatively, that the six

months time-limit should run from the refusal of Mr Major on 17

February 1994 to hold a fresh inquiry, the Commission does not consider

that a request to re-open the enquiry submitted to the Executive 22

years after the original tribunal published its findings can be

considered an effective remedy for the purposes of the exhaustion of

domestic remedies pursuant to Article 26 (Art. 26) of the Convention.

The Commission accordingly finds that an examination of the case

does not disclose the existence of any special circumstances which

might have interrupted or suspended the running of the six-month

period. It would note that there is no provision for waiver of

compliance with the six-month rule (see eg. No. 10416/83, Dec.

17.5.84, D.R. 38 p. 158).

It follows that the application has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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McDAID AND OTHERS v. THE UNITED KINGDOM

McDAID AND OTHERS v. THE UNITED KINGDOM

LEXI