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Committee of Ministers Secretariat Du Comite Des Ministres SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES Contact: Clare Ovey Tel: 03 88 41 36 45 Date: 10/11/2016 DH-DD(2016)1213 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1273 meeting (6-8 December 2016) (DH) Communication from a NGO (The Pat Finucane Centre) (27/10/2016) in the McKerr group of cases against the United Kingdom (Application No. 28883/95). Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. * * * * * * * * * * * Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : 1273 réunion (6-8 décembre 2016) (DH) Communication d’une ONG (The Pat Finucane Centre) (27/10/2016) dans le groupe d’affaires McKerr contre le Royaume-Uni (Requête no 28883/95) [anglais uniquement] Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables. 1 The Pat Finucane Centre Unit B8, Rath Mór Bligh’s Lane, Derry Northern Ireland BT48 0LZ 27 October 2016 Via email to: [email protected] Dear Ms. Brown, The Pat Finucane Centre (PFC, Derry/Armagh, Northern Ireland) in conjunction with Justice for the Forgotten (JFF, Dublin) wish to make the following Rule 9 submission to the Committee of Ministers on its supervision of the following cases relating to security force actions in Northern Ireland: Jordan v the United Kingdom, judgment final on 4 August 2001 Kelly and Ors v the United Kingdom, judgment final on 4 August 2001 McKerr v the United Kingdom, judgment final on 4 August 2001 Shanaghan v the United Kingdom, judgment final on 4 August 2001 McShane v the United Kingdom, judgment final on 28 August 2002 Finucane v the United Kingdom, judgment final on 1 October 2003 and Hemsworth v UK, judgment final on 16 October 2013 McCaughey & Others v UK, judgment final on 16 October 2013 The PFC is a non-party political, anti-sectarian human rights group advocating a non- violent resolution of the conflict on the island of Ireland. We believe that all participants to the conflict have violated human rights. The PFC asserts that the failure by the British state to uphold Article 7 of the Universal Declaration of Human Rights, “all are equal before the law and are entitled without any discrimination to equal protection of the law”, is the single most important explanation for the initiation and perpetuation of violent conflict. We provide an advocacy, advice and support service to families, bereaved/injured as a result of the conflict, who wish to engage with statutory agencies including the (now- defunct) Historical Enquiries Team (HET), the Office for the Police Ombudsman of 1 2 Northern Ireland (OPONI) in Northern Ireland, and An Garda Síochána in the Republic (through JFF). The aim of our work is to assist families in establishing the facts surrounding the death/s of their loved one/s or physical/psychological injuries sustained. We are also engaged, on both sides of the border, in working with individual families in a project known as the Recovery of Living Memory Archive (RoLMA). We currently provide this service to approximately 200 families across Ireland through three offices in Derry, Armagh and Dublin (in partnership with Justice for the Forgotten). Many of these cases engage Article 2 ECHR issues. We respectfully submit this Rule 9 submission for consideration at the 1273th meeting of the Ministers’ Deputies in December 2016. The PFC has made previous Rule 9 communications to the Committee of Ministers (CM) on the same group of cases in relation to what are now called the “package of measures” agreed by the UK. Our most recent submission was made in April 2016. We make this submission to update the CM on developments, or more appropriately, the lack of them, regarding the UK government’s implementation of the “package of measures.” Legacy Inquests In our submission to the CM dated 21 April 2016 we referred to the plan by the Lord Chief Justice for Northern Ireland (LCJ), Declan Morgan, to reform the legacy coronial system1. The LCJ’s proposals followed an “extensive process of engagement with the families, the international community and others to develop a proposed way forward to tackle the outstanding legacy inquests”. 2 This considered plan would allow for a more expeditious hearing of the 56 outstanding conflict-related inquests (relating to over 80 deaths) in an Article 2 compliant manner over the next five years. Currently the coronial system can only facilitate two conflict-related inquests a year. Without the implementation of the LCJ’s plan it will take decades to clear the backlog of cases. The LCJ clearly stated that “This would not comply with the legal requirement to deal with the backlog of cases within a reasonable timeframe.3” However eight months after the LCJ outlined his plans for reform, they remain in limbo with no action taken on implementing them. Arlene Foster, leader of the DUP and First Minister, has used her powers to prevent the proposals from even being discussed by the Northern Ireland Executive (the Executive). This means agreement is impossible on releasing the financial package necessary for their implementation. In May this year Ms Foster stated: 1 https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680649551 page 2. 2 https://www.courtsni.gov.uk/en-GB/Publications/Press_and_Media/Documents/Press%20Release%20- %20The%20Lord%20Chief%20Justice's%20speech%20marking%20the%20opening%20of%20the%20new%20legal% 20year%202016/j_j_LCJ's%20Address%20-%20Full%20Speech%205%20Sep%202016.htm 3 ibid 2 3 "Unfortunately a lot of innocent victims feel that their voice has not been heard recently and there has been an imbalance in relation to state killings as opposed to paramilitary killings…… I think the rights of innocent victims are very key in this and I will not allow any process to rewrite the past.”4 It is our belief that Arlene Foster has blocked the proposals because her party are politically unhappy that many of the outstanding inquests concern deaths caused by state forces, in particular the British Army. The PFC believes this amounts to an unacceptable discrimination against families on the grounds that their loved-ones were killed by state forces or in collusion with state forces. The DUP are using their executive powers wrongfully to prevent these cases being examined as any impartial investigation will expose what we, and many others know, that the British Army and RUC killed many unarmed civilians in unjustifiable circumstances, and these deaths were never properly investigated. This is a dangerous blurring of the fundamental constitutional boundaries that should exist between executive and judicial powers. A question that must also be asked is whether the First Minister is calling the independence and probity of Coroners into question by suggesting they would be involved in “rewriting the past”? It is important to note that, prior to ordering any new inquest, the Attorney General for Northern Ireland must examine the evidence and satisfy himself that an inquest is necessary. In each of the 56 legacy inquests granted to date this has been the process. By refusing to release the funding necessary to reform the inquest system, the DUP is circumventing the orders of the Attorney General and the rights of families under Article 2 of the ECHR. The PFC advocates on behalf of a number of families who are currently waiting for inquests to start into the deaths of their loved ones. In one instance, family members attended twenty-plus preliminary hearings over the course of several years. One family member has had to take unpaid leave from work to attend these hearings without any substantive movement forward in the inquest. Numerous reasons, some apparently spurious, have been given for not moving forward. On one occasion, for example, a reason for delay was that Counsel was unable for technical reasons to open his e-mails that morning and therefore was unaware of his instructions. This has greatly added to the bereaved family’s hurt and frustration. In 2013, the Attorney General ordered a new inquest into the murders of Elizabeth McDonald and Gerard McGleenan in Keady on 16 August 1976. The bomb attack which resulted in their deaths is linked to approximately 120 deaths (including the 34 people killed in the Dublin and Monaghan bombings on 17 May 1974) at the hands of what has become known as the ‘Glenanne Gang’, a group of loyalist paramilitaries which included 13 serving/former members of the Royal Ulster Constabulary (local police force) and 16 4 http://www.belfasttelegraph.co.uk/news/northern-ireland-assembly-election/dup-leader-arlene-foster-why-i-blocked- plans-to-speed-up-troubles-probes-34683461.html 3 4 serving/former members of the Ulster Defence Regiment (a locally-recruited regiment of the British Army). While this inquest relates specifically to the deaths of Elizabeth and Gerard, the families of all those affected by the actions of the ‘Glenanne Gang’ feel they have a lot to gain from the hearing of this inquest. They believe that light may also be shone on the deaths of their loved ones. The Attorney General ordered the new inquest due to information that became available to the families as a result of the Historical Enquiries Team’s (HET) report into the bomb attack.
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