The European Commission of Human Rights sitting in private on

7 March 1985 the following members being present:

                  MM. C.A. NØRGAARD, President

                      G. SPERDUTI

                      J.A. FROWEIN

                      G. JÖRUNDSSON

                      G. TENEKIDES

                      S. TRECHSEL

                      B. KIERNAN

                      J.A. CARRILLO

                      A.S. GÖZÜBÜYÜK

                      J.C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                      G. BATLINER

                      J. CAMPINOS

                      H. VANDENBERGHE

                  Mrs G.H. THUNE

                  Sir Basil HALL

          Mr H.C. KRÜGER, Secretary to the Commission

        Having regard to Art 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 3 December 1981

by M.G. against the United Kingdom and Ireland and

registered on 29 April 1982 under file N° 9837/82;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated on 13 December 1984 and 6 and 7 March 1985;

        Decides as follows:

THE FACTS

                              I.

        The applicant is a United Kingdom citizen born in 1939 and

residing at Armagh in Northern Ireland.  She is represented by Messrs

Cleaver, Fulton and Rankin, Solicitors in Belfast.

        The applicant complains on behalf of herself and her then

dependent children John, Hugh, Peter and Helen of violations of the

Convention in respect of the murder of her husband Hugh McGinn on

28 December 1980 at Armagh.

                               II.

        The facts stated by the applicant with regard to the death of

her husband are as follows:

1.      Hugh Gerald McGinn was a service engineer and part-time member

of the TAVR.  He was born in 1940 and married the applicant in 1960.

They had three daughters, Caroline, born in 1961, Geraldine, born in

1962 and Helen, born in 1972, and three sons, John, born in 1964,

Hugh, born in 1965 and Peter, born in 1970.

2.      Mr McGinn was shot dead in the doorway of his home by six men,

after answering a knock at his door.  The gunmen had held a local

family hostage and used their car to do the shooting before returning

the car and making their escape.

3.      The Irish National Liberation Army claimed responsibility but

no one was apprehended.  Mr McGinn was not armed.  He had asked for a

firearm for protection because of the other attacks and intimidations

he and his family had suffered (see below) but this had been refused,

apparently because the Territorial Army and Volunteer Reserve believed

it would make him more of a target.

4.      Mr McGinn and his family lived in a strongly republican area

and had suffered the following intimidations:  The house was attacked

with a petrol bomb (while Mr McGinn was away);  however the family

managed to put the flames out.  The house was stoned.  The children

were attacked and abused in the street.  Threats were made to burn down

the house, especially when the applicant refused to allow a gang to

cut down the tree in the front garden for a barricade.  The worst of

these incidents occurred over eight years ago.  However, during the

"H" block protests, slogans were written on the gable of the house.

5.      As a result the family have become isolated in the local

community.  The children have become bitter especially because of

their father's death and no longer wish to go to Mass and do not shop

in the area but go to other shops about a mile away.

COMPLAINTS AND SUBMISSIONS

I.      The applicant alleges violations of Arts 1, 2, 8 and 13

of the Convention and of Art 1 of Protocol N° 1.

        She refers to the extensive submissions made by Mrs Elliott in

her Applications N°s 9348/81 (against the United Kingdom) and 9360/81

(against Ireland) and makes further submissions concerning the six

months' rule (Art. 26) and the respondent States' obligations under

Arts 1 and 2 of the Convention.

II.     The applicant notes that the Commission, in its decision of

28 February 1983 on the admissibility of Application N° 9360/81, held

that Mrs Elliott's complaint concerning the murder of her husband in

the Republic of Ireland on 28 June 1980 was inadmissible, under

Arts 26 and 27 (3) of the Convention, for non-observance of the six

months' rule, Mrs Elliott having introduced that application more

than six months later, on 24 April 1981.  In that decision the

Commission referred to its earlier decision on the admissibility of

Application N° 7379/76, where it had held that, "where no domestic

remedy is available, the act or decision complained of must itself

normally be taken as the 'final decision' for the purposes of Art 26"

(X v the United Kingdom, Decisions and Reports 8, 211, at pp 212 -

213).

        The applicant accepts that the question of the application of

the six months' rule arises also in the present case, her application

having been introduced on 3 December 1981, that is more than six

months after the murder of her husband on 28 December 1980.

        In her submission, however, this rule is inapplicable for

the following reasons:

1.      There are few precedents in international law for the time

limit of six months imposed by Art 26.

2.      The six months time limit rule specified in Art 26 is to be

restrictively interpreted because it goes beyond the general rule of

international law that proceedings should be brought within a

reasonable time after the commission of the act complained of.

3.      The present case may be distinguished from Application N°

7379/76, relied on by the Commission in the Elliott case.  Application

N° 7379/76 concerned a specific decision or act of a public

authority, where the period runs from the moment that decision or act

takes effect.  In addition, the act complained of, being a deprivation

of a right to property, was held not to give rise to a continuing

situation of lack of property which prevented the running of the six

months period.  The present complaint, grounded in the deprivation of

life or family rights, raises entirely different questions.

4.      The principles stated by the Commission in the De Becker case

should also be applied in the present case, which likewise concerns a

continuing situation in respect of which there is no domestic

remedy (1).

5.      In Application N° 6181/73, Yearbook 17, 430 at p 446, a

prisoner complained of lack of medical treatment of his eye;  the

Commission held that he alleged a continuous violation of Art 3, which

did not result from any particular act of the moment but from the

authorities' persistent refusal to suspend the execution of his

sentence.  Reference is also made to the McFeeley case, Decisions and

Reports 20, 44, and to the Greek case.

6.      The applicant's complaints do not relate to any act occurring

at a given point in time, nor even to the enduring effects of such an

act, but are of continuing violations by the respondent States in

respect of their legislation, administrative practices and procedures,

and failures to take adequate and effective measures to counter

terrorism and protect the applicant and others like her.  It is true

that the application was in a sense "triggered" by the murder of the

applicant's spouse, but such complaint does not itself ground a claim

because no Government can be expected to guarantee absolutely the life

of any citizen.  Rather, the claim is grounded in the totality of the

circumstances in which the applicant lives and in the legislative

measures and practices of the respondent States, which have

contributed to such situation, and their failures to deal effectively

with such situation.

____________

(1)     At point 5 of her application form - under the heading:

        "Statement as to the exhaustion of domestic remedies (Art 26

        of the Convention).  List of remedies pursued before the

        competent judicial or administrative authorities.  In

        particular, the date and instance of the last decision taken

        in regard to your case" - the applicant stated:  "Not

        applicable as the applicant complains of continuing

        violations of her rights under the Convention."

7.      There have been previous campaigns of violence in Northern

Ireland in 1939 to 1941 and again from 1956 to 1962.  A complaint

related to one of those past events might infringe any reasonable time

limit.  But the Commission may be properly seized of complaints in

regard to the situation of terrorism and constitutional upheaval in

Northern Ireland which has been continuing and developing since 1971.

8.      The term "final decision" in Art 26 is to be interpreted

exclusively within the framework of exhausting domestic remedies (De

Becker case, Greek case and Application N° 3893/68, Yearbook 13, 620

at p 624), so that the six months rule is operative only in this

context.

9.      Art 26 refers to a final decision by a State and not to an act

such as murder, committed by a third party.

10.     The six months time limit does not run until the applicant's

position has been finally determined on the domestic level, ie until

all proceedings connected with the murder, such as the inquest,

compensation claim, and any criminal proceedings in which the

applicant is a witness, have been finally disposed of.  It is the

State's duty to pursue those guilty of the murder.  Reference is made

to the McFeeley case (loc cit p 76) and to Application N° 8440/78,

Christians against Racism and Fascism, Decisions and Reports 21, 147.

11.     Special circumstances interrupted or suspended the running of

the six months period in the applicant's case.  She has provided

particulars concerning her state of health and morale after the murder

of her husband.

III.    The applicant also refers to the Commission's interpretation

of Art 2 of the Convention, as stated in its decision of 28

February 1983 on the admissibility of Mrs Elliott's applications (N°s

9348/81 and 9360/81), and in this connection elaborates Mrs Elliott's

submissions under Art 1 of the Convention in the light of the

judgment of the European Court of Human Rights in the case of Ireland

v the United Kingdom.

        The applicant states that she does not seek any individual

privileges for herself (like the applicant in Application N° 6040/73,

quoted by the Commission in the Elliott decisions) but a proper level

of general security in each locality where persons are under attack or

living under the threat or fear of terrorism or paramilitary

influence.  The Commission should hear the respondent Governments on

this issue.  There have been recent failures of security policy in

both jurisdictions.

        In recent security operations in the Republic of Ireland

criticism was expressed of the degree of training offered to the

police force to deal with the large scale manhunts which are required

to track down and apprehend gangs of armed men.  A major deficiency in

planning and tactics was admitted to have occurred in the case of

kidnappers of a Dublin business man.  The Irish Government also failed

to provide the resources for a radio network for the entire police

force within its jurisdiction.

        Equally serious breaches of a proper level of security have

occurred in Northern Ireland.  Reference is made to the breakout from

the Maze Prison on 25 September 1983.

        An example of security problems involving both States is the

recent unsuccessful attempt of United Kingdom security forces to block

certain "unapproved" frontier crossings.  It illustrates in stark form

the lack of co-ordination between the two Governments.  The Commission

should require them to explain this apparent failure, albeit that it

may not be its role to examine in detail the adequacy of any

particular security strategy or policy.

        The Commission as an independent tribunal presents the only

ground for a frank consideration of the Convention issues in a setting

respected by both Governments.  This is all the more important because

of the attack on and loss of confidence in many of the legal and

political institutions within Northern Ireland by one side or other of

the community.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 3 December 1981 and

registered on 29 April 1982.  It referred to submissions of 5 February

and 27 April 1982 in Applications Nos 9360/81 (Elliott v Ireland)

and 9348/81 (Elliott v United Kingdom).

        Applications Nos 9360/81 and 9348/81 were declared

inadmissible by the Commission on 28 February 1983.

        In a telex communication of 30 March 1983 the applicant stated

that she wished to make further submissions.  These were filed under

cover of her solicitors' letters of 24 June 1983 and 24 February

1984.        On 7 December 1983 Mr.  Edgar Graham, Member of the Northern

Ireland Assembly, Barrister at Law and principal counsel in the

present case, was assassinated at University Square, Belfast, on his

way to attend his students.

        In a letter of 23 February 1984 the applicant's solicitors

stated inter alia:

"It is generally accepted that Edgar Graham's open commitment

to the even-handed application of the law to the defeat of

terrorism prompted this terrible response and this fact is

confirmed by the Provisional IRA in a statement claiming

responsibility for his murder.  Edgar Graham's commitment to

the rule of law was expressed in many ways not least we believe

in the character of the submissions which he drafted and the

belief he held of the relevance of the Convention to protect

human rights.

We therefore believe that the attack on him was an attack on

the very principles of the Convention and indeed on all who

bring their Petitions to you."

        Under cover of their letter of 23 August 1984 the applicant's

solicitors submitted a chronology of terrorist murders in border areas

of Armagh, Fermanagh, Londonderry, South Down and Tyrone, Northern

Ireland (Vol 1: 1.1.1968 - 31.12.1975, Vol 2: 1.1.1976 - 31.12.1981).

THE LAW

I.      General

1.      The applicant complains on behalf of herself and her dependent

children of violations of the Convention in respect of the murder of

her husband.  She states that this murder does not itself ground a

claim, because no Government can be expected to guarantee absolutely

the life of any citizen, but that, rather, the claim is grounded in

the totality of the circumstances in which she lives and in the

legislative measures and practices of the respondent States, which

have failed to take adequate and effective measures to counter

terrorism and to protect the applicant and others like her.  The

applicant does not seek "any individual privileges" for herself but "a

proper level of general security in each locality where persons are

under attack or living under the threat or fear of terrorism or

paramilitary influence".

2.      However, under  Art. 25 (Art. 25) of the Convention, an individual

applicant can only seize the Commission of alleged violations of his

or her own Convention rights but not, by an actio popularis, of

complaints concerning rights of third persons (Applications N° 867/60,

Collection of Decisions 6, 34 = Yearbook 4, 270; N° 6481/74,

Decisions and Reports 1, 79; N° 6742/74, Decisions and Reports 3, 98;

N° 7045/75, Decisions and Reports 7, 87; N° 8727/79,  Decisions and

Reports 20, 230).

3.      It follows that the Commission, in its examination of the

present application, must limit its consideration to the situation of

the applicant and her children and to the murder of her husband.

II.     As to the complaint concerning the murder of the applicant's

        husband on 28 December 1980

4.      The Commission holds that the applicant, as the wife who was

affected by the death of her husband, may in this respect claim to be a

"victim", in the sense of Art 25 (Art. 25).  The Commission here refers to its

decisions on the admissibility of Application N° 2758/66 (Collection of

Decisions 30, 11 = Yearbook 12, 175), as confirmed in Application N° 8416/79

(Decisions and Reports 19, 244, 248) and of Applications N° 9348/81 - Elliott v

United Kingdom - and N° 9360/81 - Elliott v Ireland - (European Human Rights

Reports 5, 504 and 506).

5.      The applicant submits that the murder of her husband by terrorists was

made possible by the respondent States' failure to prevent terrorism; that no

domestic remedy was available in respect of this failure;  that the six months'

rule does not apply to this complaint; and that, if it applied, the running of

the period was suspended or interrupted.

6.      Art 26 (Art. 26) of the Convention provides that the Commission may

only deal with a matter "after all domestic remedies have been exhausted,

according to the generally recognised rules of international law, and within a

period of six months from the date on which the final decision was taken".

7.      The Commission does not find that there was a domestic remedy which the

applicant was required to exhaust.  She complains that the respondent States

failed to prevent that a criminal act - the murder of her husband - was

committed by private individuals.  The applicant states that no domestic remedy

was available in respect of this failure of the respondent States (complaints

and submissions, II, 4). The Commission has already held in Application N°

9360/81 (Elliott v Ireland), in respect of an analogous complaint against

Ireland, that there was no domestic remedy in the Republic of Ireland, in

respect of the alleged failure of the Republic to prevent the murder of Mr

Elliott, which Mrs Elliott was required to exhaust.  Confirming that finding

the Commission holds that, in the present case, there was neither in Ireland

nor in the United Kingdom a domestic remedy which the applicant was required to

exhaust in respect of the alleged failure of those States to prevent the murder

of Mr McGinn.

8.      The Commission in particular does not find that proceedings concerning

the criminal prosecution of those individuals who committed the murder, or

relating to a compensation claim which the applicant could bring under the

domestic legislation, could be considered as remedies in respect of the

respondent States' alleged failure to prevent the murder.  It notes that such

proceedings are not referred to by the applicant as domestic remedies, but only

as relevant for the determination of the six months' period (complaints and

submissions, II, 10).

9.      The applicant submits that the six months' rule is inapplicable in

respect of her complaint concerning the murder of her husband because her case

is based upon continuing violations of the Convention.  The Commission has

previously stated that, where there is a "permanent state of affairs which is

still continuing", the question of the six months' rule "could only arise after

the state of affairs has ceased to exist" (De Becker case, Yearbook 2, 214,

244; First Greek Case, second decision on admissibility, Collection 26, 80, 110

= Yearbook 11, 730, 778).  The Commission does not find, however, that the

respondent Governments' alleged failure to prevent the murder of the

applicant's husband can be regarded as a violation of the Convention which

continued after the murder.  It follows that the application of the six months'

rule cannot in respect of the applicant's complaint concerning the murder of

her husband be excluded on the ground that this complaint relates to a

violation which continued after her husband's death.

10.     The applicant further submits that the six months rule is inapplicable

because Art 26 (Art. 26) refers to a final decision by a State and not to an

act such as murder, committed by a third party;  moreover, Application N°

7379/76, relied on by the Commission in the Elliott case and concerning a right

to property, may be distinguished from the present complaint, which is grounded

in a deprivation of life or family rights (complaints and submissions II, 9 and

3).  The Commission observes, however, that the application does not, according

to the applicant's own statements, relate to an act of private individuals -

the murder of her husband - but to the authorities' alleged failure to prevent

this act.  Moreover, the considerations announced by the Commission in

Application N° 7379/76 are not limited to property rights but state a general

principle concerning the six months' rule which is valid also for complaints

concerning other Convention rights and freedoms.

11.     The Commission held in Application N° 7379/76 that "where no domestic

remedy is available, the act or decision complained of must itself normally be

taken as the 'final decision' for the purposes of Art 26 (Art. 26)" (X v the

United Kingdom, Decisions and Reports 8, 211, at pp 212 - 213).  In the present

case the Commission has already found that there was no domestic remedy to be

exhausted with regard to the alleged failure of the respondent States to

prevent the murder of the applicant's husband.  It has also observed that this

failure cannot be regarded as a violation of the Convention which continued

after the death of the applicant's husband.  It follows that, in the present

case, the six months limitation period ran from 28 December 1980, the date of

the death of the applicant's husband, unless the running of this period was

interrupted or suspended.

12.     The applicant submits that her state of health prevented her from

filing her application in time.  However, the Commission finds no evidence

that, during a prolonged period, she was in fact unable to address herself to

the Commission.

13.     The Commission recalls that the six months' rule, in reflecting the

wish of the High Contracting Parties to prevent the examination of past events

after an indefinite lapse of time, serves the interests of legal certainty.  It

marks out the temporal limits of supervision carried out by the organs of the

Convention and signals to both individuals and State authorities the period

beyond which such supervision is no longer possible (Application N° 9587/81, X

v France, Decisions and Reports 29, 228 at paras 13 - 16;  Application N°

10416/83, Kelly v Ireland).

14.     The Commission notes that the present application was introduced on 3

December 1981, that is more than eleven months after the murder of the

applicant's husband on 28 December 1980.  It concludes that the applicant's

complaint concerning the death of her husband must be rejected under Arts 26

and 27 (3) (Art. 26, 27-3) of the Convention for non-observance of the six

months' rule.

III.    As to the complaint concerning the applicant's own

        situation in Northern Ireland

        1.  United Kingdom

15.     The Commission observes that the applicant's complaint,

concerning her and her children's present situation in Northern Ireland,

raises the question of State responsibility for the protection of the right to

life in accordance with Art 2 (Art. 2) of the Convention.  It follows that this

complaint cannot be declared inadmissible, under Art 27 (2), (Art. 27-2) as

being incompatible with the Convention ratione personae, on the ground that it

is directed against acts of private persons.

16.     Art 2 (ARt. 2), first sentence, of the Convention states that

everyone's right to life "shall be protected by law".  The applicant does not

suggest that there are no laws in Northern Ireland protecting the right to

life, or that they are not applied.

17.     It is the applicant's case that Art 2 (Art. 2), first sentence,

interpreted in the light of the phrase "The High Contracting Parties shall

secure .... the rights and freedoms defined in Section I" in Art 1 (Art. 1) of

the Convention, requires the United Kingdom, in the emergency situation

prevailing in Northern Ireland, to protect the right to life not only by

criminal prosecution of offenders but also by such preventive control, through

deployment of its armed forces, as appears necessary to protect persons who are

considered to be exposed to the threat of terrorist attacks.

18.     The Commission has already found (Application N° 9348/81 - Elliott v

United Kingdom - loc cit) that Art 2 (Art. 2), which states that "the right of

life shall be protected by law", may, as other Convention Articles (cf Eur

Court HR, Marckx case, judgment of 13 June 1979, Series A, N° 31, para 31),

indeed give rise to positive obligations on the part of the State.  That,

however, does not mean that a positive obligation to exclude any possible

violence could be deduced from this Article.

19.     The Commission does not find that it can be its task, in its

examination of the present applicant's complaint under Art 2 (Art. 2), to

consider in detail, as she appears to suggest, the appropriateness and

efficiency of the measures taken by the United Kingdom to combat terrorism in

Northern Ireland.

20.     The Commission notes from the applicant's submissions that the army

strength in Northern Ireland was raised from 4,000 to about 10,500 men and

that, between August 1969 and December 1981, several hundred members of the

armed and security forces lost their lives there combatting terrorism.

21.     The Commission cannot find that the United Kingdom was required under

the Convention to protect the applicant and her children by measures going

beyond those actually taken by the authorities in order to shield life and limb

of the inhabitants of Northern Ireland against attacks from terrorists.  The

applicant's submissions concerning the breakout from Maze Prison and the

attempt to block frontier crossings cannot in the Commission's view lead to the

conclusion that the United Kingdom is in respect of the applicant in breach of

Art 2 (Art. 2) of the Convention.

22.     The Commission concludes that the applicant's complaint under Art 2

(Art. 2) against the United Kingdom concerning her and her children's situation

in Northern Ireland is manifestly ill-founded within the meaning of Art 27 (2)

(Art. 27-2) of the Convention.

23.     In the light of its above considerations under Art 2 (Art. 2) the

Commission finds no issues under the other Convention Articles invoked by the

applicant in support of her complaint against the United Kingdom.

        2.  Ireland

24.     The applicant's complaint against the Republic of Ireland, concerning

her and her children's security in Northern Ireland, relates to an alleged

violation of the Convention outside the territory of the Republic.  In its

examination of this complaint the Commission has had regard to the applicant's

extensive submissions under Art 1 (Art. 1) of the Convention.

25.     The Commission recalls that, in this provision, the High Contracting

Parties undertake to secure the rights and freedoms defined in Section 1 to

everyone "within their jurisdiction" (in the French text:  "relevant de leur

juridiction").  This term is not equivalent to or limited to the national

territory of the High Contracting Party concerned.  It emerges from the

language, in particular of the French text, and the object of this Article, and

from the purpose of the Convention as a whole, that the High Contracting

Parties are bound to secure the said rights and freedoms to all persons under

their actual authority and responsibility, not only when the authority is

exercised within their own territory but also when it is exercised abroad

(Application N° 9360/81, Elliott v Ireland, loc cit with further references).

As stated  by the Commission in Applications N°s 6780/74 and 6950/75 - Cyprus v

Turkey - the authorised agents of the State, including diplomatic or consular

agents and armed forces, not only remain under its jurisdiction when abroad but

bring any other persons or property "within the jurisdiction" of that State, to

the extent that they exercise authority over such persons or property.  In so

far as, by their acts or omissions, they affect such persons or property, the

responsibility of the State is engaged  (Decisions and Reports 2, 125 at page

136).

26.     In the light of its above case-law the Commission has examined whether

it is competent ratione personae, in relation to the jurisdiction of the

Republic of Ireland, to deal with the applicant's complaint concerning her and

her children's security in Northern Ireland.  This condition would be fulfilled

if the applicant and her children, although resident in Northern Ireland, could

be said to be "within (the) jurisdiction" of the Republic of Ireland, in the

sense of Art 1 (Art. 1).  The Commission cannot find that this was, or is, the

case.

27.     As regards, firstly, the question whether Northern  Ireland, or parts

thereof, can be considered as national territory of the Republic of Ireland,

for the purposes of Art 1 (Art. 1), the applicant herself states that the

constitutional claim to the territory of Northern Ireland, contained in Arts 2

and 3 (Art. 2, 3) of the Constitution of Ireland, is not accepted by the

international community as constituting a basis for jurisdiction over Northern

Ireland.

28.     Secondly, in the Commission's view it cannot be said that "authorised

agents" of the Republic of Ireland are exercising authority over the applicant

and her children, in the sense of the Commission's decision in Applications N°s

6780/74 and 6950/75.

29.     Thirdly, the Commission, having noted the applicant's submissions

concerning Ireland's alleged failure to contribute to the prevention of

terrorism in Northern Ireland, does not find that, as regards her and her

children's security in Northern Ireland, she has shown that, in the concrete

circumstances of her case, the right to life is affected by any specific act or

omission of the respondent State.

30.     It follows that the applicant's complaint, against the Republic of

Ireland and concerning her and her children's situation in Northern Ireland, is

ratione personae incompatible with the provisions of the Convention within the

meaning of Art 27 (2) (Art. 27-2).

        For these reasons, the Commission

        DECLARES THIS APPLICATION INADMISSIBLE.

Secretary to the Commission          President of the Commission

     (H.C. KRUGER)                       (C.A. NØRGAARD)