Information Note on the Court’s case-law 55

July 2003

Finucane v. the United Kingdom - 29178/95

Judgment 1.7.2003 [Section IV]

Article 2

Positive obligations

Effectiveness of investigations into shooting allegedly carried out with collusion of security forces: violation

Facts : The applicant’s husband was shot dead by two masked men in Northern Ireland in 1989. Responsibility was claimed by an illegal paramilita ry group. A forensic examination was carried out, photographs were taken and maps made, a post mortem was conducted and many suspected members of the paramilitary group were detained and interviewed. One of the weapons used was found and three members of t he group were convicted of unlawful possession of weapons. A further suspect, S., was arrested in connection with the murder but in 1991 it was decided that there was insufficient evidence to prosecute. In the meantime, an inquest had been held, at which t he Coroner had refused to allow the applicant to make a statement concerning death threats which had allegedly been made against her husband by officers of the Royal Ulster Constabulary (RUC). The Chief Constable of the RUC subsequently appointed a senior police officer from England to investigate allegations of collusion between members of the security forces and loyalist paramilitaries. The report was not made public. As a result of the inquiry, a former undercover agent who the authorities maintained had got out of hand was convicted on five charges of conspiracy to murder. While in prison, he allegedly admitted being involved in the murder of the applicant’s husband. The Director of Public Prosecutions (DPP) asked the Chief Constable of the RUC to conduc t further inquiries. Following a second investigation by the same senior officer, the DPP issued a direction of “no prosecution”, having concluded that there was insufficient evidence to prosecute anyone. In 1999, the same officer was appointed by the Chie f Constable of the RUC to conduct an independent investigation into the murder of the applicant’s husband. He submitted a report to the DPP in April 2003 and an overview was made public, indicating that there had been collusion and that the murder could ha ve been prevented. In the meantime, S. had been charged with the murder but found not guilty in the absence of evidence.

Law : Article 2 – An investigation into alleged unlawful killing by State agents must be independent, both institutionally and practical ly, and it must be capable of leading to a determination of whether the use of force was justified, as well as to the identification and punishment of those responsible. It must also be instituted promptly and conducted with reasonable expedition and there must be a sufficient element of public scrutiny and involvement of the next-of-kin to the extent necessary to safeguard their interests.

(i) The police investigation was started immediately and involved the necessary steps to secure evidence and a number of suspects were interviewed. However, it was conducted by officers who were part of the police force suspected by the applicant of issuing threats and in the circumstances there was a lack of independence raising serious doubts as to the thoroughness or e ffectiveness with which the possibility of collusion was pursued.

(ii) The inquest did not involve any inquiry into the allegations of collusion and the applicant was refused permission to make a statement about the alleged threats to her husband. The inqu est therefore failed to address serious and legitimate concerns and could not be regarded as having provided an effective investigation.

(iii) Of the three independent inquiries, it was not apparent that the first two were concerned with investigating the death of the applicant’s husband with a view to bringing a prosecution and in any event the reports were not made public, so that the decisive elements of public scrutiny and involvement of the family were missing. While the third inquiry was concerned wit h the murder, the Government admitted that it could not comply with the requirements of promptness and expedition. Moreover, it was not apparent to what extent the report would be made public.

(iv) The DPP was not required to give reasons for his decisions not to prosecute and there was no possibility in Northern Ireland to challenge such decisions by way of judicial review. No reasons had been given for the decisions not to prosecute in the present case and no information had been provided to reassure the applicant and the public that the rule of law had been respected.

In conclusion, there had been a failure to comply with the procedural obligation imposed by Article 2.

Conclusion : violation (unanimously).

Article 41 – The Court was unable to make the declaration or clarifications requested by the applicant and, as she had stated that in that event she did not seek damages, the Court proceeded on the basis that her claim was withdrawn. It made an award in re spect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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