MINISTERS’ DEPUTIES

Decisions

CM/Del/Dec(2024)1501/H46-40

13 June 2024

1501st meeting, 11-13 June 2024 (DH)

 

H46-40 McKerr group v. the United Kingdom (Application No. 28883/95)

Supervision of the execution of the European Court’s judgments

 

Reference documents

CM/Notes/1501/H46-40

 

Decisions

The Deputies

1.         recalling that these cases concern procedural violations of Article 2 of the European Convention due to various shortcomings in the investigations into the death of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel;

As regards individual measures

2.         reiterated their increasingly profound concern that five years have passed since the Supreme Court judgment finding that there has still not been an Article 2-compliant inquiry into Mr Finucane’s death in 1989 and that, while the judgment in the Court of Appeal is yet to be handed down, there is still no clear indication of how the Secretary of State proposes to proceed; strongly exhorted the authorities again to provide their full and clear response to the Supreme Court judgment, including information about the possible impact of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Act’) and a decision on the measures they intend to take as soon as possible;

3.         reiterated their deep regret that the inquests in the cases of McKerr and Kelly and Others did not complete before 1 May 2024, the cut-off date in the Act; urged the authorities to provide further clarification as to what steps are now underway to ensure the necessary individual measures are taken and further delays are avoided, whilst noting with interest that the ICRIR has recently published proposals to progress advanced stage inquests via enhanced inquisitorial proceedings;

As regards general measures

4.         recalling their decisions adopted at their examinations of the cases at the 1443rd meeting

(September 2022) (DH), the 1451st meeting (December 2022) (DH), the 1459th meeting (March 2023) (DH), the interim resolution adopted at their examination at the 1468th meeting (June 2023) (DH) together with the decision at the 1475th meeting (September 2023) (DH);

5.         recalling their previous concerns about the Act’s compatibility with the European Convention, including in particular the proposed conditional immunity scheme which risks breaching obligations under Article 2 of the European Convention to prosecute and punish serious grave breaches of human rights;

6.         noting the developments since their last examination of the group, including the ICRIR’s express commitment to ensuring that it conducts its work in compliance with the European Convention and the fact that the domestic courts are continuing to examine issues related to the Act, including compliance with Articles 2, 3, 6 and 8 of, and Article 1 of Protocol No.1 to, the European Convention, and the functioning of the ICRIR, having found in the first instance that the ICRIR has the necessary and structural independence, that the provisions of the Act leave sufficient scope for the ICRIR to conduct effective investigations and that the disclosure provisions in the Act are compliant with the European Convention and an improvement on the coronial system, but that the provisions relating to immunity, the retrospective barring of previously ongoing Troubles-related civil actions, the exclusion of evidence in civil proceedings, and interim custody orders, are not compatible with the Convention; expressed hope that these proceedings will be concluded expeditiously taking full account of the European Convention, the relevant case-law of the European Court and this Committee’s decisions;

7.         noting that the Government of Ireland has lodged an inter-state application at the European Court against the United Kingdom concerning the Act in which similar issues are also under examination;

8.         decided to resume the examination of this group of cases at one of their meetings in 2025, taking account of developments in the meantime.