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Committee of Ministers Secrétariat Du Comité Des Ministres SECRETARIAT / SECRÉTARIAT SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITÉ DES MINISTRES Contact: Zoë Bryanston-Cross Tel: 03.90.21.59.62 Date: 12/02/2021 DH-DD(2021)178 Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1398th meeting (March 2021) (DH) Communication from an NGO (Relatives for Justice) (02/02/2021) in the cases of MCKERR, JORDAN, FINUCANE, KELLY AND OTHERS, SHANAGHAN, MCCAUGHEY AND OTHERS, McSHANE and Collette and Michael HEMSWORTH v. the United Kingdom (Applications No. 28883/95, 24746/94, 29178/95, 30054/96, 37715/97, 43098/09, 43290/98, 58559/09). 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. * * * * * * * * * * * Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : 1398e réunion (mars 2021) (DH) Communication d’une ONG (Relatives for Justice) (02/02/2021) concernant les affaires MCKERR, JORDAN, FINUCANE, KELLY ET AUTRES, SHANAGHAN, MCCAUGHEY ET AUTRES, McSHANE et Collette et Michael HEMSWORTH c. le Royaume-Uni (Requêtes n° 28883/95, 24746/94, 29178/95, 30054/96, 37715/97, 43098/09, 43290/98, 58559/09) [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. DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. DGI 02 FEV. 2021 SERVICE DE L’EXECUTION DES ARRETS DE LA CEDH Rule 9 submission to the Committee of Ministers of the Council of Europe February 2021 Execution of Judgments of the European Court of Human Rights Group of cases: McKerr v UK, 2001 Jordan v UK, 2001 Kelly and others v UK, 2001 Shanaghan v UK, 2001 McShane v UK ,2002 Finucane v UK, 2003 Hemsworth v UK, 2013 McCaughey and others v UK, 2013 Relatives for Justice is recognised by the Inland Revenue as a Registered Charity NIC101311; And a Company Limited by Guarantee NI44611 DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. Introduction Relatives For Justice (RFJ) is a human rights’ framed victim support NGO that provides holistic support services to the bereaved and injured of all the actors of the conflict on an inclusive and non-judgemental basis. We also seek to examine and develop transitional justice and truth recovery mechanisms assisting with individual healing, contributing to positive societal change, and ensuring the effective promotion and protection of human rights, social justice and reconciliation in the context of an emerging participative post-conflict democracy. As part of our engagement with human rights bodies, RFJ has made several submissions to the Committee of Ministers (the Committee), most recently in November 2020. The current submission seeks to provide a brief update of developments and a general response to the document submitted by the UK Government on the 25th of January 2021, for consideration at the 1398th meeting in March 2020. However, it is noteworthy that updates contained herein do not change the overall situation of delay and prevarication by state agents that have been mentioned submission after submission. Only consistent international scrutiny is likely to encourage the UK to implement its international human rights obligations in respect of legacy issues. We therefore welcome that the Committee is maintaining its interest and pursuing its mandate by maintaining regular scrutiny of the UK’s record. Without this, the UK Government’s own approach to dealing with its actions would undermine the rule of law and respect for international human rights. RFJ hopes that the Committee finds the following information of assistance in its continued monitoring of the UK Government’s obligation to respond to the findings of the European Court in the variety of cases from this jurisdiction. 2 DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. Summary of developments since last submission • UK Government’s decision not to carry out a public inquiry into the murder of solicitor Patrick Finucane. • Information submitted by the UK Government regarding their “action plan” now described as the legacy policy reform. • RFJ open letter signed by over 3,500 bereaved relatives, urging the Irish and British Governments to implement the mechanisms agreed in the Stormont House Agreement. 3 DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. Individual measures: the case of Patrick Finucane On the 30th of November 2020, after an unnecessary and unjustifiable delay of almost two years, Secretary of State (SoS) Brandon Lewis finally made a statement in the House of Commons regarding the decision of the UK Government on how they intended to conduct an Article 2 compliant investigation into the murder of Patrick Finucane, following the judgment of the Supreme Court in February 2019. The SoS made the disappointing decision not to carry out a public inquiry into Finucane’s case “at this time”, in order to enable a police review process and investigations by the Office of the Police Ombudsman (OPONI) to proceed. Shortly after his statement, however, the Chief Constable of the PSNI, Simon Byrne, and Police Ombudsman Marie Anderson contradicted the the SoS’ statement, confirming that, in fact, there were no ongoing investigations regarding the murder of Patrick Finucane within their respective caseloads.1 Furthermore, former Police Ombudsman Nuala O’Loan dismantled the assertion that the OPONI would ever investigate the case and that this would address the extensive and grave human rights breaches in relation to the state killing of Pat Finucane. She explained that the Police Ombudsman simply does not have the powers to do that. “The work of the Police Ombudsman, which was referred as a consequence of de Silva, relates to other terrorist murders carried out in Northern Ireland. When I was Police Ombudsman, I knew that I could not investigate matters surrounding the murder of Patrick Finucane because I did not have the powers. That continues for the current 1 BBC, ‘Pat Finucane inquiry decision an 'insult' to family’ accessible at https://www.bbc.co.uk/news/uk- northern-ireland-55144268 (01/12/2020). 4 DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. police ombudsman. She can only investigate the activities of police officers. She has no remit to investigate, with a view to prosecution, loyalist paramilitaries, the staff of the Ministry of Defence or the Security Service—that is what is required in this case. Moreover, the police ombudsman does not have the resources to do the work she should be doing; she is grossly under-resourced.”2 O’Loan also advocated for the establishment of a public inquiry into the murder of Patrick Finucane, as well as the implementation of the Historical Investigations Unit (HIU) set out in the Stormont House Agreement (SHA) for all the other outstanding cases of the conflict. One might think that the argument presented by the SoS to justify the decision not to carry out a public inquiry into the murder of Finucane was the result of an error, a misunderstanding or sheer incompetence, but the response of the UK Government to the Committee of Ministers submitted on the 25th of January 2021 indicates otherwise. Indeed, the UK Government’s communication includes the assertion of the SoS regarding the (non-existent) investigations within the PSNI and the OPONI, but fails to clarify the reality and situation provided by those two bodies regarding the Finucane case – that is, that they are not conducting nor planning to conduct any Article 2 compliant investigations into the murder of the solicitor. To add insult to injury, the UK Government submits that “all necessary steps are being taken to ensure compliance with both the domestic courts’ and Strasbourg Court’s decisions in this case”. 2 Baroness Nuala O’Loan in UK Parliament, accessible in: https://hansard.parliament.uk/Lords/2020-12- 02/debates/9C663D37-CE2E-4835-AE94-88C11D63DFA6/PatrickFinucaneSupremeCourtJudgment (30/11/2020). 5 DH-DD(2021)178: Rule 9.2 Communication from an NGO in the McKerr group of cases v. the United Kingdom. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. General measures Ten months after their unilateral decision to withdraw from the SHA, the UK Government have at last started offering some insight into their new “plan of action”, which they have described as the ‘legacy policy reform’ in their last communication submitted for consideration of the Committee. The reasoning for such reform is based on an inexplicable interpretation of the response to the Consultation ‘Addressing the Legacy of the Past’ carried out by the British Government in 2018.
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