Resolution DH(99) 720

Concerning the judgment of the European Court of Human Rights of 28 October 1998 in the case of Osman against the United Kingdom

(Adopted by the Committee of Ministers on 3 December 1999 at the 688th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Osman case delivered on 28 October 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 23452/94) against the United Kingdom, lodged with the European Commission of Human Rights on 10 November 1993 under Article 25 of the Co n vention by two British nationals, Ms Mulkiye Osman and her son , Mr Ahmet Osman, and that the Commission declared admissible the complaints that there had been a failure to protect the life of the second applicant and his father, Mr Ali Osman, murdered on 7 March 1998, despite the fact that the police had been informed that their lives were at risk; that there had been a failure to prevent the harassment of the applicants' family, and that they had no effective remedy in respect of these failures;

Recalling that the case was brought before the Court by the Commission on 22 September 1997;

Whereas in its judgment of 28 October 1998 the Court:

- held, by seventeen votes to three, that there had been no violation of Article 2 of the Convention;

- held, by seventeen votes to three, that there had been no violation of Article 8 of the Convention;

- held, unanimously, that Article 6, paragraph 1, of the Convention was applicable in this case and had been violated;

- held, by nineteen votes to one, that it was unnecessary to examine the applicants’ complaints under Article 13 of the Convention;

- held, unanimously, that the government of the respondent state was to pay, within three months, each applicant, 10 000 pounds sterling each by way of compensation for loss of opportunity; that the government of the respondent state was to pay the applicants, 30 000 pounds sterling in respect of costs and expenses together with any value-added tax that may be chargeable, less 28 514 French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment; and that simple interest at an annual rate of 7.5% should be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, by nineteen votes to one, the remainder of the applicants’ claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 28 October 1998, having regard to the United Kingdom’s obligation under Article 53 of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken to prevent new violations of the same kind as that found in the present judgment; (this information appears in the appendix to this resolution);

Having satisfied itself that, within the time-limit set, the government of the respondent state paid the a p plicants the sum provided for in the judgment of 28 October 1998,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exe r cised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (99) 720

Information provided by the Government of the United Kingdom during the examination of the Osman case

by the Committee of Ministers

The Government of the United Kingdom recalls that the violation of Article 6, paragraph 1, of the Convention stems from the application in the domestic proceedings of a House of Lords precedent, Hill v. Chief Constable of South Yorkshire (1989), which ruled that the police had immunity from action, on public policy grounds, for alleged failures in the investigation and suppression of crime.  The European Court of Human Rights observed that, providing such a watertight defence to the police, without further enquiry into the existence of competing public interest considerations, amounted to an "unjustifiable restriction on an applicant’s right to have a determination on the merits of his or her claim against the police in deserving cases" (see paragraphs 150-151 of the judgment in the Osman case).

The government anticipates that the rule established by the Hill case will be applied with more circumspection in the future.

It points out that the judgement of the European Court has been published in the national press (The Times Law Reports) and in special journals such as the European Human Rights Reports and the European Human Rights Law Review. Through this publication, lawyers, judges and the public have been made aware of the judgment.  In addition, the judgment has been circulated to civil servants and, by means of a circular letter, to all Chief Officers of Police. The government notes that it is for the latter officers to decide, in any given case alleging negligence against the police in the conduct of their investigations, whether to seek to have such an action struck out on grounds of public policy immunity.   The circular letter urges them, in the light of the Osman judgment, to exercise considerable caution before applying for a strike-out on these grounds.  The circular letter also points out that a claim of immunity may require full consideration of the facts of the case so that the strike-out hearing will be virtually indistinguishable from a full hearing on the merits.

Following these measures, the competent authorities will ensure in cases of alleged police negligence that all the material necessary will be put before the courts.  The government further considers that the courts will not fail to take into account the European Court's judgment in the Osman case (see, for example, Resolution DH (97) 507 in the Goodwin case) so as not to confer automatically a total immunity on the police, but rather make a judgment on the proportionality of the immunity sought, considering all the circumstances of the case.

The Government of the United Kingdom considers that the measures adopted will prevent further violations of the same kind as found in this case and that the United Kingdom has, accordingly, complied with its obligations under Article 53 of the Convention in this respect.