ECtHR – Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, 7 July 2011

Article 2 ECHR – Preliminary questions

Attribution

The Government submitted that as the deaths of the second and third applicants’ relatives occurred after 16 October 2003 when the UNSC adopted resolution 1511, UK troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multi-National Force acting pursuant to the binding decision of the UNSC, in conducting the operations in which the second and third applicants’ relatives were shot. The Court rejected this argument as the Government had not raised it during the domestic proceedings.

Jurisdiction

The Court considered that the question of whether the applicants’ cases fell within the jurisdiction of the UK was closely linked to the merits of their complaints and therefore joined it to the merits.

Exhaustion of domestic remedies

The Government submitted that the fifth applicant’s case should be declared inadmissible for non-exhaustion of domestic remedies. The Court however considered that the applicants were correct in their assessment that the fifth applicant would have had no prospects of success had he sought to revive his claim before the Divisional Court. The Court therefore rejected the Government’s preliminary objection based on non-exhaustion of domestic remedies.

Victim status

The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2 ECHR, since the deaths of their relatives had been fully investigated by the national authorities and compensation paid to the applicants. The Court considered that this question was also closely linked and therefore joined it to the merits of the complaints.

 Article 2 ECHR – Merits

Jurisdiction

The Court first of all found, concerning the issue of jurisdiction, that from the removal from power of the Ba’ath regime on 1 May 2003 until the accession of the Interim Government on 28 June 2004, the UK assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government, especially with regards to the maintenance of security in South East Iraq. Therefore the Court held that for this period the UK had jurisdiction over the deceased for the purposes of Article 1 ECHR, as their deaths occurred between 8 May and 10 November 2003, and the argument of the Government that it did not exercise any Article 1 jurisdiction over the relatives of the first four applicants at the time of their deaths was rejected.

Breach of investigative duty under Article 2

Secondly, the applicants complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings within Article 2. The Government accepted the conclusion that it was clear that the investigations into the shootings of the first three applicants’ relatives fell short of the requirement of Article 2.

Concerning the fourth and fifth applicants, the Court found that even though there was an investigation by the Special Investigation Branch into the deaths of their relatives, this was insufficient to comply with the requirements of Article 2. Indeed, for the fourth applicant the Court found that the investigation was flawed as the Special Investigation Branch was not operationally independent from the military chain of command. In the case of the fifth applicant, the Court found that the effectiveness of the investigations were seriously undermined by the long delay between the death and the court-martial, as some of the soldiers involved were by then untraceable. Moreover, the Court considered the narrow focus of the criminal proceedings against the accused soldiers to be inadequate to satisfy the requirements of Article 2. The Court thus found that the procedural duty under Article 2 had not been satisfied in respect of the fifth applicant as there had never been a full and independent investigation into the circumstances of the death. The Government’s preliminary objection regarding the lack of victim status of the fifth applicant was therefore rejected.

Concerning the sixth applicant, as a full, public inquiry into the circumstances of the death is nearing completion, the Court found that the sixth applicant was no longer a victim of any breach of the procedural obligation under Article 2. It thus accepted the Government’s preliminary objection in respect of the lack of victim status of the sixth applicant.

In conclusion, the Court found that the Government had violated its procedural duty under Article 2 with regards to the first, second, third, fourth and fifth applicants.