HEMSWORTH COLLETTE AND MICHAEL v. THE UNITED KINGDOM - 58559/09 - Chamber Judgment [2013] ECHR 683 (16 July 2013)

CONCURRING OPINION OF JUDGE KALAYDJIEVA[1]

It would be difficult not to agree with the majority that the applicants’ complaints that, in violation of the requirements of Article 2 of the Convention, “the investigative process ... has still not finished 23 years later” in the case of McCaughey (paragraph 129) and 15 years later in the case of Hemsworth (paragraph 68) are not manifestly ill-founded. The fact that the respondent Government failed to investigate “expeditiously” appears flagrant. This cannot in itself justify a downgrade of the usual analysis performed by the Court in cases under Article 2 to one appropriate for cases concerning the “unreasonable length of proceedings”.

The wrong premise of this analysis is that the requirement of Article 2 for investigations “to begin promptly and to proceed with reasonable expedition” is “quite apart from any question of whether the delay actually impacted on [its] effectiveness”. This premise seems to have little support in the Court’s position in hundreds of other cases, where the Court held that “any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness” (see, among many other authorities, Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001; Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV; and Mojsiejew v. Poland, no. 11818/02, 24 March 2009). Moreover, the case-law is clear in indicating that in certain cases a criminal investigation is required regardless of whether or not civil proceedings were or were not instituted seeking compensation for the damage allegedly sustained. In this regard the present two cases must be distinguished from the case of Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001-III), where the applicant had not availed himself of the opportunity of civil proceedings, as well as from the case of Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I), where the applicant had in fact come to an agreement on compensation. In any event this Court has never defined civil compensation proceedings as the sole appropriate forum for the determination of the issue whether or not there has been a violation of Article 2 or 3 of the Convention.

The analysis followed by the majority then continues along the line of the delays “attributable to” the fact of the “exceptional” complexity of the traditional scope and competence of the Coroner’s inquest and/or the time necessary for the domestic judiciary to overcome them at the request of the applicants (see paragraph 126 in McCaughey and 69-70 in Hemsworth). The Convention does not prescribe any specific form in which the required prompt investigation should take place. The procedure, in which the establishment of the facts takes place is irrelevant in so far as they were made known to those affected as a result of the authorities’ prompt and reasonable steps to this end (see, among many other authorities, Stoyanovi v. Bulgaria, no. 42980/04, §§ 64-69, 9 November 2010).

In these circumstances I am far from convinced that it was open to the respondent Government to rely on the deficiency or “complexity” of the existing domestic procedure, which seem to have been known to the authorities for some years after the first judgments of this Court in similar cases against the United Kingdom, or that they may rely on the time necessary to overcome the difficulties in the process of interpreting whether or not the domestic law “required [this] inquest to comply with the procedural requirements of Article 2” of the Convention (see paragraph 127 in McCaughey and 70 in Hemsworth. The fact remains that the respondent Government failed to demonstrate that it had taken any, still less “all reasonable steps” to investigate with a view to establishing the facts of their own motion.

The rationale of the analysis appears to further rely on the delays “attributable” to the applicants’ own “understandable” conduct. The fact that the applicants in the present two cases were required to make long and painful efforts in order to trigger a proper and effective investigation into the deaths of their next-of-kin and have the scope of the Coroner’s inquest expanded, thus bringing it into conformity with the requirements of Article 2 of the Convention, cannot be held to reverse the positive ex officio obligation of States Parties into a remedy which affected parties are expected to exhaust. While it is true that States Parties to the Convention are required to provide effective access for the next-of-kin to the investigation, this neither changes the burden of the ex officio duty of the authorities nor limits it to “providing the applicants with ‘access’ to an ... investigation which would commence promptly and be conducted with due expedition” (see McCaughey paragraph 138, and Hemsworth, paragraph 73). That the applicants “understandably” availed themselves of whatever procedure was open and available to them cannot be held against them.

This approach inevitably led the majority to the limited conclusion that the “unusual fact-finding exercise” of the Coroner’s inquest itself was “not structurally capable ... of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition”. I fully agree with this conclusion. However, I question its usefulness at a time when more than ten years have elapsed since the adoption of the first judgments (see paragraph 14 in Hemsworth and 85 in McCaughey in similar cases concerning the United Kingdom. The principles concerning the duty to investigate were indicated already the judgment of Hugh Jordan (paragraph 72-74) and were followed with regard to all other States Parties to the Convention.

The circumstances of the present two cases concern the first and primary purpose of the investigation prescribed by Article 2 - the establishment and disclosure of the facts and circumstances known only to the authorities. The determination of appropriate effective redress, including administrative, disciplinary, criminal or pecuniary responsibility, is only possible as a result of such disclosure (see, for example, Iliya Petrov v. Bulgaria, no. 19202/03, 24 April 2012, or Nencheva and Others v. Bulgaria, no. 48609/06, 18 June 2013). An investigation appears to be unnecessary where the facts giving rise to the arguable complaints were known to the affected parties ab initio (see Nencheva, cited above).

There is nothing to explain, still less to justify, the failure of the domestic authorities to meet their obligations through more appropriate and expeditious means of their own choice, including by introducing appropriate legislative changes in choosing “as a matter of some priority” any other “specific modalities”.

The question remains, however, whether in the face of a clearly ineffective domestic investigation which may be seen as amounting to a refusal to investigate, the Court may find itself in a situation where it may be prevented from subjecting such grave complaints to any scrutiny or must declare the domestic authorities “finally free” to discharge their obligations as they deem appropriate.

Looking at what appear to be ample, but missed, opportunities to do so for more than fifteen or even twenty years, I am not convinced that “the respondent State remains free to choose the means by which it will discharge its legal obligations” under Article 2 of the Convention. Such a conclusion falls short of those reached more than ten years ago in similar cases against the United Kingdom, where the Court indicated that “a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts” (see Hugh Jordan, cited above, §§ 108 and 136-140). The conclusions in that case were premised on the assumption that there were no reasons to believe that the applicant would be unable to assert his rights at the national level. This assumption remains valid only where the affected party was not already continuously confronted with obstacles in learning and establishing the facts - as in the present two cases.

The majority in the present two cases failed to scrutinise whether in the last two decades the authorities genuinely pursued - and the extent to which they finally achieved - this primary purpose of disclosure and establishment of facts, which would in its turn make possible any further steps required for the determination of disciplinary, criminal or pecuniary responsibility as appropriate. In this regard the majority merely noted the missing documents and witnesses and observed that “criminal and disciplinary proceedings, of central relevance to the investigative obligation under Article 2, can now be initiated” (paragraph 63 Hemsworth) and that “future criminal/disciplinary proceedings ... could clearly inform the civil action” instituted in 2001 (paragraph 61 Hemsworth). In its earlier practice this Court declared that a finding of delay on the part of the domestic authorities (92 McCaughey) was insufficient to deprive the injured party of its victim status in the absence of a remedy in this regard (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq. and § 193, ECHR 2006-V).

It should not be overlooked that the Court developed its views on the positive obligations to investigate precisely in cases where the national authorities had failed to act promptly and effectively in establishing the circumstances and disclosing them to the public and to the injured parties. Where this is not done, the Court shall always be faced with the necessity to deal with the facts submitted by the parties as a first-instance court. In addition to their failure to investigate promptly and officially, the respondent Government did not find it necessary to inform the Court of its views as to whether or not the circumstances known to them disclosed a violation of Article 2.

After decades of being faced with demonstrated reluctance and what would appear to be an attempted obstruction of justice (see paragraph 23 in Hemsworth), the applicants in Hemsworth were advised that the matter of the appropriateness of any potential criminal responsibility for the use of force against a person who was not even suspected of terrorist activities was now the subject of “active consideration” by the DPP (paragraph 31 Hemsworth), while in McCaughey there was allegedly still a possibility that the DPP would have to reconsider his decision. Any subsequent decision would, “in turn, be amenable to judicial review” (paragraph 100 McCaughey).

Having declared that “save in relation to the complaint about investigative delay, the Court [unlike in cases against other countries] is not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2” (paragraph 121 McCaughey), the majority in fact reverted the applicants to further indefinitely long proceedings, advising them that “should [they] be dissatisfied in the future with the progress or outcome of those [forthcoming] procedures, it would be open to them to re-introduce their complaints [before the Court] (paragraph 65 Hemsworth) .

In these circumstances I remain unconvinced that the domestic investigation was intended to “lead to the identification and punishment of those responsible” (see Assenov and Others, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, with further reference to McCann and Others v. the United Kingdom, § 161, 27 September 1995, Series A no. 324; Kaya v. Turkey, § 86, 19 February 1998, Reports 1998-I; and Yaşa v. Turkey, § 98, 2 September 1998, Reports 1998-VI).

The absence of any plausible explanation for the failure to collect key evidence at the time when this was possible, and for attempts to even obstruct this process, should be treated with particular vigilance. In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 and 3 seem as a matter of principle to make it possible for at least some agents of the State to benefit from virtual impunity as a result of the passage of time.

I refer to my separate opinion in the case of Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04, 24 June 2010). “In such circumstances the victims of alleged violations will be further humiliated by the fact that the open denial of an investigation successfully prevented the Court’s scrutiny and limited its role to witnessing acts which appear to be better qualified as “collusion in or tolerance of unlawful acts”.

I would prefer not to comment on the amount of the applicants’ compensation, which seems inappropriate even for “delays only”, and/or the risk of creating an impression of cynicism. My concern is that the overall effect of this judgment not only multiplies the ineffectiveness already observed, but also renders this Court’s subsidiary role clearly redundant. This role would have been unnecessary had the domestic authorities fulfilled their primary role in time.

CONCURRING OPINION OF JUDGE MAHONEY

This opinion is not intended to detract in any way from the reasoning of the Chamber’s judgment, with which I fully agree, but merely to add some observations on a point that is addressed in the judgment but not gone into in much detail, namely the relationship between two contrasting lines of authority concerning the interplay between the substantive and procedural requirements of the right-to-life clause under the Convention (Article 2).

Two lines of authority

The Government relied on a line of British cases exemplified by Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I (see §§ 35 and 45 of the Chamber’s judgment). This line of authority is usually summarised as entailing that where a breach of Article 2 - or Article 3, the clause prohibiting torture and inhuman or degrading treatment or punishment - has been acknowledged and adequate compensation paid in civil proceedings brought at national level, or where civil proceedings are pending or available, the Strasbourg Court should confine itself, in the international proceedings brought before it, to an examination of any plausible complaints made under the procedural aspect of Article 2 (or 3), it being accepted that payment of damages at national level cannot discharge the State from its duty under the Convention to secure the accountability of States agents for acts or omissions amounting to a breach of Article 2 (or 3).

The applicants, on the other hand, relied on a line of authority originating in Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55-56, 20 December 2007 (see § 50 of the Chamber’s judgment), which suggests that the examination of a substantive complaint under Article 2 (or 3) should be tied to the Court’s assessment of all the procedural protections available, including investigative processes and not being limited to any civil action brought or available. On one reading of this case-law, it requires that, for the Court to refrain from considering the substantive complaint in the international proceedings brought before it, there must be a domestic procedure capable of leading to the identification and punishment of the perpetrator, not that that procedure must have in fact have done so (see, for example, the language used in Fadime and Turan Karabulut v. Turkey, no. 23872/04, 27 May 2010, § 39; and Ablyazov v. Russia, no. 22867/05, 30 October 2012, § 54).

Reconciling the two lines of authority

My approach is that these two lines of authority can well be read as being reconcilable and not divergent.

What is said in the Nikolova and Velichkova judgment goes to the content of the obligation imposed on the Contracting States by Article 2 and to the implications for the kind of strict scrutiny that should be carried out by this Court when examining Article 2 claims: in cases of wilful ill-treatment by State agents resulting in death, the breach of Article 2 cannot be dealt with by the State concerned exclusively through an award of compensation to the relatives of the victim. This judgment cites (at § 55) the risk, failing proper prosecution and punishment of those responsible, of “buying off” the violation, of purchasing immunity for the perpetrators. As it was similarly put in the Karabulut case (cited above, § 39):

“Confining the authorities’ reaction to incidents of deprivations of life to the mere payment of compensation would ... make it possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ... .

... Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and breaches of such provisions ... . Compliance with the State’s positive obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce the criminal law against those who have unlawfully taken the life of another ... .

While there is no absolute obligation for all prosecutions to result in conviction, or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence, ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts.”

The point was also succinctly made in the case of Berganovic v. Croatia, no. 46423/06, 25 June 2009, §§ 56, 44-45 as regards complaints under Article 3:

“The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State’s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible... .”

Thus, the claim under Article 2 in relation to the procedural protection to be afforded in the national legal system in cases of killings by State agents will remain extant even if either sufficient compensation for conduct acknowledged as amounting to a substantive violation has already been awarded at national level or an effective domestic remedy capable of providing such acknowledgment and compensation is available. The possibility for the victim’s relatives to seek and receive compensation represents only one part of the measures required of the national legal system under Article 2 in relation to deaths resulting from action taken by State agents and, in particular, where the action was deliberate ill-treatment.

In sum, ensuring proper investigation, followed, where appropriate, by prosecution of the perpetrators is a procedural obligation incumbent on States under Article 2 that continues to call for strict scrutiny on the part of this Court even where a substantive violation has been acknowledged at national level and sufficient compensation awarded or an effective domestic remedy capable of providing such acknowledgment and compensation is available. Put another way, the extancy of this obligation means that on the international level an application alleging a procedural violation must be examined on its merits by this Court even where the substantive violation, for its part, has been, or is susceptible of being, acknowledged and compensated for at national level.

But these related conclusions do not in themselves and of themselves carry the consequence that an applicant is dispensed from the obligation incumbent on him or her under Article 35 § 1 to exhaust an appropriate domestic remedy, for example by bringing a civil action to obtain compensation for the substantive violation, if such a remedy is available and has not had its effectiveness undermined by the absence of adequate investigations. The differing obligations under Articles 2 (or 3) and 35 § 1 of the Convention, one incumbent on the State and the other on potential applicants to the Court, should not be confused and run into one.

This was brought out in the Court’s judgment in 1996 Grand Chamber case of Akdivar v. Turkey (Reports, 1996-IV), one of the first cases to establish the State’s duty to investigate under the Convention (for “Turkish” judgments employing similar reasoning, see Aksoy v. Turkey, Reports 1996-IV, and Menteş and Others v. Turkey [GC], Reports 1997-VIII; the “Turkish” case-law in this regard was then developed by the Court, through reading a duty to investigate directly into Article 2, in Kaya v. Turkey, Reports 1998-I, §§ 86-87, relying on the earlier British “Death-on-the-Rock” case of McCann and Others v. the United Kingdom [GC], 27 September 1995, Series A no. 324, §§ 161-163). By virtue of the operation of the burden of proof, so the Court explained in the Akdivar judgment, a complaint should not be rejected by reason of the mere existence of a theoretically adequate civil remedy if the applicant could demonstrate that the remedy was for some reason inadequate and ineffective in the particular circumstances or that there existed special circumstances absolving him or her from the requirement of exhaustion. One such reason may be constituted by the failure of the domestic authorities to undertake investigations in the face of serious allegations of misconduct or infliction of harm by State agents (§ 68). The Court recognised that in the particular circumstances obtaining in South East Turkey at that time,

“the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative enquiries on which such remedies depend may be prevented from taking place” (§ 70).

The Court’s conclusion on the facts was as follows:

“Against such a background [of severe civil strife, coupled with the applicants’ position of insecurity and vulnerability following the destruction of their homes], the prospects of success of civil proceedings based on allegations against the security forces must be considered to be negligible in the absence of any official inquiry into their allegations, even assuming that they would have been able to secure the services of lawyers willing to press their claims before the courts. ...” (§§ 73-75)

Not only would it sit with the Court’s aversion to blanket rules, but it would also fly in the face of the Akdivar case-law to deduce from the Nikolova and Velichkova line of authority any blanket rule to the effect that the failure to carry out an effective investigation and prosecution, as required by Article 2 (or 3), will always and automatically make it necessary for this Court to examine on its merits a substantive complaint made under the Article. As the Court was careful to state in Akdivar:

“The Court would emphasise that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that applicants are absolved from the obligation ... to have normal recourse to the system of remedies which are available and functioning. It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.” (§ 77)

On the other hand, it does of course follow from Nikolova and Velichkova, as it does from Akdivar, that the possible rejection of the substantive complaint on the ground of non-exhaustion of domestic remedies should be tied to an assessment of all the procedural protections available, notably the existence or not of an adequate investigation; and this in order to see if an effective remedy to complain about the alleged substantive violation could indeed be said to be available to the applicant in practice. It can readily be acknowledged that in many cases the Nikolova and Velichkova approach will indeed require the Court to go into the merits of the substantive complaint.

In terms of the Court’s procedure, the result may well either be that, as in Akdivar, the inadequacies of the investigation are so evident that the ineffectiveness in practice of the remedy relied on by the respondent Government can be found at the outset; or, where a plausible procedural complaint of inadequate investigation is made, be that the question of exhaustion or not of domestic remedies has to be joined to the merits. But it cannot and should not be excluded that, in some cases, it is clear on the evidence that the effectiveness of the available domestic remedy to look at the substantive allegations of unjustified killing by State agents has not been so adversely affected as to render the remedy ineffective. In such circumstances, it is difficult to see any reason (i) why the applicant should be dispensed from his or her normal obligation under Article 35 § 1 to exhaust an available and effective remedy in relation to that particular, namely substantive, complaint and (ii) why the national system should not be allowed by this Court to do its subsidiary task.

A distinction should be drawn between two aspects of the Convention’s operation. On the one hand, there is the strict scrutiny that this Court should always carry out in relation to Article 2 claims, notably as regards the procedural safeguards of proper investigation and prosecution, both in their own right as a ground for finding a violation of Article 2 and as a preliminary factor capable of affecting the effectiveness of legal and other remedies available to relatives of the victims. On the other hand, there is the “subsidiarity” obligation incumbent on applicants under Article 35 § 1 to exhaust available domestic remedies, even if those remedies relate to one branch only of their claim under Article 2, namely the substantive branch. There is overlapping and linkage between these two aspects of the Convention’s operation, but the two are not 100% co-extensive. As was intimated in Akdivar, a finding of inadequate investigation and prosecution does not automatically, in a blanket fashion, render nugatory the applicant’s obligation to exhaust an available and effective domestic civil remedy to recover compensation for the substantive breach of Article 2 or Article 3, as the case may be. The inadequacy of the investigation and prosecution undertaken, if any, may well be a factor, a powerful factor, pointing to ineffectiveness of the civil remedy for compensation in the circumstances, but it is not decisive in itself or in all circumstances.

In conclusion on this point of general principle, it would, in my view, be simplistic, and mistaken, to take the Nikolova and Velichkova jurisprudence as entailing an automatic obligation for this Court to examine on its full merits, substantive as well as procedural, a right-to-life case whenever there has been no adequate investigation and prosecution.

The position regarding civil remedies in Northern Ireland

The courts in Northern Ireland have at their disposal various procedural tools to establish the facts and, notably, to oblige witness attendance, to order disclosure and discovery of documents, and to manage evidence that is sensitive in terms of national security so as to find a fair balance between genuine security needs and a plaintiff’s legitimate interest in establishing the facts. The standard of proof required to establish liability is the civil one of proof on the balance of probabilities, not the stricter criminal or Convention standard of proof beyond reasonable doubt. As I understand it, the underlying logic in previous Northern Ireland cases, such as Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III, is that the system of civil remedies in Northern Ireland (and indeed in the United Kingdom in general) is sufficiently well armed and strong to constitute, in principle, an effective means of establishing facts and liability and of obtaining adequate compensation, as appropriate, in relation to killings or serious ill-treatment allegedly committed by State agents. As a consequence - and this is in accord with the reasoning developed in Akdivar -, as regards a substantive complaint of unlawfulling killing under Article 2, the civil claim is in principle to be exhausted. It would have to be demonstrated, in a particular case before this Court, that the deficiencies in the process of investigation and of prosecution of perpetrators were so serious that the civil remedy was compromised to the point where it would be unreasonable to expect the applicant to exhaust it. Arguably such a situation could arise where, for example, as a result of delay key evidence had been lost or destroyed, key witnesses had died or become untraceable, and so on.

A similar logic can be seen to have been applied in cases concerning other countries, but with a different result: in these cases, the system of civil remedies was considered to be such that, in the absence of an effective investigation, it did not offer any real chance of establishing either the facts relating to the death or liability on the part of State agents.

The particular circumstances of the present case

The Chamber found (at § 59 of its judgment) that in the present case “[no] demonstrated factor can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of John Hemsworth’s death”. The verdict of the inquest jury in May 2011, rendered after several days of hearing witnesses, following the production of various expert reports and apparently following adequate disclosure of relevant documentary material by the authorities (see notably §§ 21, 23, 26, 27 and 63 of the Chamber’s judgment), “was largely in the applicants’ favour in that it explicitly accepted key aspects of their claims about the death of John Hemsworth”, identifying its probable cause as being violent conduct by one or more police officers (see §§ 28 and 60 of the Chamber’s judgment). It cannot be said at this point that the bringing of the civil action by the applicants has been rendered ineffective in practice by reason of an alleged lack of adequate investigation and proper prosecution. As the Chamber’s judgment points out, “while the lapse of time would make it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic court, not in an international forum”. The domestic civil action brought by the applicants is capable of enabling them to obtain the same kind of finding that they are seeking in the proceedings before this Court, namely a finding of unjustified lethal conduct by members of the Northern Ireland police force, as well as the same kind of redress, namely an award of financial compensation. As a matter of general principle, subject, where applicable, to the specificities of the procedural protection afforded by virtue of Article 2 of the Convention, this is precisely the kind of situation that the rule of exhaustion of domestic remedies provided for under Article 35 § 1 of the Convention is meant to cover.

In Nikolova and Velichkova, as in a number of other similar cases, an already exhausted civil remedy granting compensation was held to be incapable of providing adequate redress for wilful ill-treatment by State agents resulting in death because of serious deficiencies in the completed investigation and criminal and/or disciplinary prosecution of the perpetrators. The most notable flaw being that the criminal and/or disciplinary proceedings brought against the perpetrators had ended with a result involving “a manifest disproportion between the gravity of the offence [found to have been committed] and the punishment imposed” (see, for example, Nikolova and Velichkova, cited above, §§ 62-63; and Karabulut, cited above, § 47; see also Gäfgen v. Germany [GC], no. 22978/05, §§ 123-125, ECHR 2010-..., in relation to conduct contrary to Article 3). Far from bringing the requisite procedural protection under Article 2, the outcome of the terminated investigative and prosecution process was judged to foster a sense of impunity on the part of the State agents responsible for the killing (see, for example, Nikolova and Velichkova, cited above, § 63 in fine).

In that respect the present applicants’ Convention claim, unlike that in the above-mentioned cases, is premature “because the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible” (§ 58 of the Chamber’s judgment). Indeed, the inquest verdict of May 2011, mentioned above, provides good cause (for criminal prosecution and/or disciplinary proceedings for unlawful use of lethal force by one or more members of the Northern Ireland police force and perhaps, as regards the evidence of a witness to the lethal incident (see §§ 22-24 and 62 of the Chamber’s judgment), for obstruction of justice. The Coroner referred the matter in January 2012 to the Director of Public Prosecutions, who, according to the latest information before the Court in July 2012, was actively considering the file (see § 28 in fine of the Chamber’s judgment).

As the Chamber’s judgment points out (at § 65 in fine), should the present applicants be dissatisfied with the progress or outcome of the various, as yet uncompleted, domestic procedures, it would be open to them to reintroduce before this Court both their substantive complaints and their outstanding procedural complaints under Article 2.

Concluding remark

It may doubtless appear somewhat anomalous that, over 15 years after the death of John Hemsworth, the applicants’ substantive complaints and most of their procedural complaints under the Convention’s right-to-life clause can be legally characterised as “premature”. However, the position is so precisely because the innumerable and excessive delays in the inquest proceedings prevented the investigative process from beginning promptly and from being carried out with reasonable expedition. For this reason, even before the completion of the applicants’ civil action and of any further proceedings, notably of a criminal and/or disciplinary nature, that might be brought, the Court could not but find a procedural violation of Article 2 on the basis that the United Kingdom had, in relation to this requirement of promptness and reasonable expedition, failed in its obligation to the applicants to ensure, through the legal system in Northern Ireland, the effectiveness of the investigative process concerning the death of their relative at the hands of the security forces.

[1]. This is an opinion common to the present judgment and the judgment in McCaughey v. the United Kingdom, no.43098/09, both delivered on the same date.

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