Information Note on the Court’s case-law 14

January 2000

Caraher v. the United Kingdom (dec.) - 24520/94

Decision 11.1.2000 [Section III]

Article 34

Victim

Acceptance by applicant of compensation for the killing of her husband by soldiers: inadmissible

The applicant’s husband was killed by British soldiers in Northern Ireland while he was in a vehicle driven by his brother. The two soldiers involved in the sh ooting were charged with the murder of the applicant’s husband and attempted murder of his brother with intent to do him grievous bodily harm. The version of events as presented at the trial by the two soldiers and military witnesses on the one side and th e applicant and civilian witnesses on the other differed greatly. The brother of the applicant’s husband and a friend stopped their car to help somebody whose car, which had a Republic of Ireland registration, had broken down. Just as the Irish car drove o ff, the applicant’s husband came along in his own car and stopped. The three men were checked out there by a patrol of British soldiers who allowed them to go on. The military witnesses alleged that the applicant’s husband then went past an army vehicle ch eckpoint (VCP), not far from where they had been checked out, without stopping despite being ordered to do so. He drove into a car park not far from the VCP. The applicant’s husband and his brother took the former’s car and, according to the two soldiers w ho had by then left the VCP to go to the car park, deliberately ignored another express order to stop their vehicle. The applicant and civilian witnesses, on the other hand, claimed that no attempt had ever been made to stop them either at the VCP or in th e car park. The two soldiers alleged that a third soldier, in trying to stop them from leaving the car park, had ended up on the car’s bonnet as the car moved forward. Considering that his life was at danger, they had shot at the driver to stop the vehicle . They admitted at the trial that they were trained to stop a vehicle by shooting at the driver rather than at the tyres. The two soldiers were acquitted of all charges by the Crown Court, which found that there was a reasonable possibility that they had f ired at the driver because they honestly considered it necessary in order to save their fellow soldier from death or serious injury. The applicant started civil proceedings before the High Court to obtain compensation. A settlement was reached between the applicant and the Ministry of Defence by means of which she was awarded GBP 50,000.

Inadmissible under Articles 2 and 13: Concerning the adequacy and context of the settlement - The possibility of obtaining compensation for the death of a person constitute s, generally and in normal circumstances, 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. In the present case, the sum awarded could be regarded as a substantia l one. Insofar as the applicant claimed that she could have received far more had she pursued her claims to a successful conclusion, it was her choice not to do so and her argument according to which she had been forced to accept the settlement due to the risk of being held liable to pay the costs of proceedings was untenable. The requirement for a losing party to pay costs is a normal feature of civil proceedings, which does not dispense an applicant from the obligation to exhaust available domestic remedi es. Finally, civil proceedings are a standard method of challenging negligent conduct and practices of official bodies and the applicant did not substantiate her argument that such proceedings would provide no possibility of effective redress in the presen t case.

Concerning the payment of compensation for breach of the right to life - The use of force by the agents of the State in pursuit of one of the aims delineated in Article 2 § 2 may be justified where it was perceived, for good reasons, to be valid at the time but subsequently turned 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. Accordingly, in the  circumstances, the approach taken by the tr ial judge, 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 brothers, that they had open fire to save his life, was tenable. Insofar as the applicant denounced the existence of an administrative practice contrary to Article 2, there were two elements to examine: whether there had been a repetition of acts and whether there seemed to be an official tolerance of such acts;  furthermore, the existence of administrative practice had to be established through substantial evidence, namely prima facie evidence. In the present case, the applicant relied on the facts and the judgment in the McCann case, which was not a sufficient basis to justify of the existence of a practice in breach of Article 2. While there are five other cases pending before the Court in which allegations are made of excessive use of force by security forces stationed in Northern Ireland (Jordan, no. 24746/94; McKerr, no. 28883/95; Finucane, no. 29178/95; Kelly and others, no. 30054/96; and Shanaghan, no. 37715/97), the Commission found in a previous case that the use of lethal force by soldiers firing at a car going through a road block was justified in terms of Article 2 § 2 and did not disclose any disp roportionate use of force. In view of the facts of the pending cases, even assuming that these cases were to result in findings of substantive breaches of Article 2, they could not be analysed as a series of similar acts which could be linked such as to co nstitute a pattern or system. Nor is there substantial evidence of official tolerance of any alleged unlawful acts.

In conclusion, the applicant, in bringing civil proceedings for aggravated damages in respect of the death of her husband and in accepting a nd receiving compensation, effectively renounced further use of these remedies. She therefore can no longer claim to be a victim: manifestly ill-founded.

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

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