II Council of Europe
| Published date | 01 December 1995 |
| Date | 01 December 1995 |
| DOI | http://doi.org/10.1177/016934419501300406 |
| Subject Matter | Part B: Human Rights News |
NQHR 4 / 1995
The case
of
Alina
Simunek et
a1.
vs. the Czech Republic (No. 516/1992) concems a
number
of
persons
who
had left the former
CSSR
for political reasons between 1968 and
1987
and
whose
property had, therefore, been confiscated by the then Communist
Govemment.
They
presently live in
Canada
or Switzerland. After the revolution the then
Czech
and
Slovak Government in early 1991 adopted arestitution act which endorsed the
rehabilitation
of
these
persons and granted
them
a right to restitution on the condition that
they
were
both
citizens and permanent residents
of
the CSFR. On 12 June 1991 the OP
entered into force
for
the
CSFR
which ceased to exist on 31
December
1992. On 22
February 1993 the
Czech
Republic notified its succession to the Covenant (ratified by the
CSSR
in 1975) and the OP. While stressing that the right to property, as such, is not
protected
by
the
Covenant the Committee, nevertheless, declared the communication
admissible
with
respect
to possible violations
of
Articles 14(6) and 26 continuing after the
entry into force
of
the
OP. In its final views the Committee held the cumulative conditions
of
citizenship and permanent residence unreasonable and found that the denial
of
restitution or compensation to the authors constituted aviolation
of
Article 26 CCPR.
Two
inadmissibility decisions relate to capital punishment in Trinidad and Tobago.
No. 515/1992
was
declared inadmissible for non-exhaustion
of
domestic remedies under
Article 5(2)(b) OP. In the second case (No. 553/1993)
the
Committee reiterated its
jurisprudence that, unless there is a denial
of
justice, it is not for the Committee but for
domestic courts to ascertain the facts.
The
communication was, therefore, found
incompatible ratione materiae under Article 3 OP. The same argument was used in the
case
of
a
Dutch
peace
activist (No. 578/1994) who in
November
1988 had participated in
civil disobedience actions against militarism including the painting
of
apeace symbol on
amilitary vehicle,
and
who was sentenced to one
month's
imprisonment for participation
in a criminal organization. The second case against the Netherlands (No. 583/19944)
concerns a
Dutch
citizen who in February 1993 was arrested and in
May
1993 sentenced
to 25
months'
imprisonment on charges
of
the possession and selling
of
cocaine. He
claimed
that
73
hours
of
detention without having been brought before ajudge violated
Article 9(3) CCPR. The Committee declared the communication incompatible ratione
materiae
under
Article 3 OP on the ground that the author
'was
in fact promptly brought
before
ajudge'.
In
our
view such aholding should have been adopted in final views rather
that in a decision on admissibility.
II
COUNCIL
OF
EUROPE
Leo
Zwaak
A.
European
Court
of
Human
Rights
Article
2
ECHR:
Right
to
respect
for
life.
27 September 1995, McCann
andOthers
(United Kingdom). The applicants are parents
of
McCann, Farrell
and
Savage,
who
were shot dead on 6
March
1988 in Gibraltar by
members
of
the
Special Air Service (the
'SAS'),
which is a regiment
of
the British Army.
Prior to 4
March
1988, the United Kingdom, Spanish and Gibraltar authorities were aware
that the Provisional IRA was planning aterrorist attack on Gibraltar. On that date it was
reported that an
IRA
'active service
unit'
had
been sighted in
Malaga
in Spain. By
5
March
the
intelligence assessment
of
the British and Gibraltar authorities was that the
IRA
unit (which
had
been identified)
would
carry out an attack by means
of
a car bomb
which
would
probably
be detonated by a remote control device.
It
was
planned to arrest
442
Human Rights News
the members
of
the unit after they had brought the car into Gibraltar, which would provide
evidence to be secured for use at a subsequent trial. However, the members
of
the unit
were considered by the authorities to be dangerous terrorists who would almost certainly
be armed and who would be likely, if confronted by security forces, to use their weapons
or detonate the bomb. Savage was seen in the afternoon of 6 March 1988 parking a car
in Gibraltar. He was later seen, together with McCann and Farrell, staring towards the spot
where the car was parked. After all three had moved away from the car, a bomb disposal
expert reported after cursory visual examination that he regarded it as a possible car bomb.
It
was decided at this point that the three should be arrested. Soldiers
of
the SAS in plain
clothes were standing by for that purpose. Control of the operation was handed over by
the Gibraltar Police Commissioner to their commanding officer. Allegedly thinking that
the three suspects were trying to detonate remote control divices, the soldiers shot them
at close range. No weapons or detonator devices were found on the bodies of the three
suspects. The car which had been parked by Savage was revealed on inspection not to
contain any explosive device or bomb. However, another car was found to contain an
explosive device. An inquest by the Gibraltar Coroner into the killings was opened on 6
September 1988.
It
was presided over by the Coroner who sat with a jury chosen from the
local population. Evidence was heard from 79 witnesses, including the soldiers, police
officers and surveillance personnel involved in the operation as well as pathologists,
forensic scientists and experts on explosive devices. Pursuant to certificates issued by the
Government, certain information, such as the identities, training, equipment and activities
of
the military and security-service witnesses, was not disclosed. On 30 September 1988,
the jury returned verdicts of lawful killing. Dissatisfied with these verdicts, the applicants
commenced actions against the Ministry of Defence in the High Court of Justice in
Northern Ireland on 1 March 1990. The Secretary of State for Foreign Affairs, however,
issued certificates excluding proceedings against the Crown. The applicants unsuccessfully
sought leave to apply for judicial review to challenge the legality
of
the certificates. The
actions were finally struck
off
the list on 4 October 1991.
The European Court
of
Human Rights first observed that Article 2 ranks as one
of
the
most fundamental provisions in the Convention.
It
considered that the exceptions
delineated in paragraph 2 indicate that this provision extends to cover, but is not concerned
exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates
that paragraph 2 does not primarily define instances where it is permitted intentionally to
kill an individual, but describes the situations where it is permitted to 'use force' which
may result, as an unintended outcome, in the deprivation of life. The use of force must
be no more than 'absolutely. necessary' for the achievement of one
ofthe
purposes set out
in subparagraphs (a), (b) or (c). The
COUlt
stated that it must subject deprivations
of
life
to the most careful scrutiny,
if
deliberate lethal force is used, taking into consideration not
only the actions of the agents
of
the State, but also the surrounding circumstances
including the planning and control of the actions under examination.
In connection with the compatibility of national law and practice with Article 2
standards the Court noted that Article 2 of the Gibraltar Constitution is similar to Article
2
of
the Convention with the exception that the standard of justification for the use of
force which results in the deprivation of life is that of 'reasonably justifiable' and opposed
to 'absolutely necessary'. While the Convention standard appeared on its face to be stricter
than the relevant national standard, it had been submitted by the Government that, having
regard to the manner in which the standard was interpreted and applied by the national
courts, there was no significant difference in substance between the two concepts. Inthe
443
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