Dr. Natasa Mavronicola:

I thank the joint committee for inviting me to present on Article 2 of the European Convention of Human Rights, with a particular focus on Northern Ireland and issues of concern that have arisen, particularly from the angle of Troubles-related deaths. As some elements of my opening statement might involve repetition, I apologise in advance. I am grateful to the previous two experts for giving an eminent account of aspects of obligations that arise under Article 2.

I will go back to and recount the obligations that arise under the heading of right to life under the European Convention on Human Rights. A number of state obligations flow from that article, or in combination with Article 1, of the convention which provides that, "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this Convention". The negative obligations arising consist of duties to refrain from certain actions. There is a duty not to intentionally take life and a duty not to use potentially lethal force. There are narrowly carved exceptions to these obligations which include taking action in defence of any person against unlawful violence in order to effect a local arrest but the force used must be no more than what is absolutely necessary.

Positive obligations constitute duties to take positive action to respect, protect and fulfil the right to life under the convention. There are general, operational, investigative and redress focused obligations which are intermeshed under Article 2. General obligations consist of framework duties to protect the right to life by law and through establishing appropriate institutions and mechanisms for the protection and prevention of the unlawful taking of life. Operational obligations involve duties to take positive steps to protect particular individuals from real and immediate risks to life, as well as duties to plan operations in life endangering circumstances in a way that will minimise the risk to life. Investigative obligations involve duties to investigate suspicious deaths. Such obligations have been explored in some depth, but I hope to unpick them even more. Redress focused obligations encompass duties to secure redress through compensation and-or, potentially, the criminal process or, at least, through the capability of initiating proceedings leading to a criminal process for breaches of the right to life. These obligations are often cited in connection with Article 13 of the European Convention on Human Rights, which deals with the right to an effective remedy.

I will further unpick the investigative obligations. The components of an Article 2 compliant investigation were unpicked predominantly in case law linked with Troubles-related deaths by the European Court of Human Rights. They include the following requirements. The authorities must act on their own initiative in initiating an investigation on their own motion; the investigation must be independent and impartial vis-à-visthe potential individuals involved in the taking of life or any negligence involved in the loss of life; the investigation must be effective; the investigation must be reasonably prompt and proceed with reasonable expedition; the investigation must be sufficiently open to public scrutiny and it must also sufficiently safeguard the interests of the next of kin.

I want to zoom in a little on some failings which have led to findings of breaches of the investigative duty under Article 2 in regard to Troubles-related deaths. In the McKerr group of cases adjudicated on by the European Court of Human Rights in 2001 a number of systemic shortcomings in Northern Ireland were identified in the fulfilment of the investigative duty under Article 2.. They included: a lack of independence of the police officers investigating loss of life from officers who were, potentially or actually, implicated in the incident; a lack of public scrutiny and sufficient disclosure and information to the victim's family; the fact that the inquest procedure at the time did not allow for any verdict or finding which might play an effective role in leading to a prosecution for any criminal offence; the non-disclosure of witness statements to the applicant's family; the fact that public interest immunity certificates relating primarily to public safety or national security prevented the inquest from examining relevant matters and documents in finding out the circumstances surrounding the loss of life; the non-compellability of essential witnesses, including central figures involved in the taking of life; the lack of prompt commencement and reasonable expedition; the lack of investigations, in some instances, into allegations of collusion by agents of the State in the taking of life; and the lack of legal aid, an issue which has been mentioned, for representation of the victim's family and the safeguarding of their interests in the proceedings.

Following these cases, a package of measures was instituted to remedy the deficiencies identified. They include the Historical Enquiries Team; the ability of the Police Ombudsman to carry out Article 2-based investigations into grave matters; reform of the coronial system; changes in the giving of reasons not to prosecute; options to provide for judicial review of such decisions; and the establishment of the Inquiries Act 2005.

Shortcomings and concerns subsist in Northern Ireland about these measures which are in a state of flux. However, I want to highlight a few aspects which might be informative and, I hope, meet the purposes of the committee.

Delays constitute an issue of long-standing. There is a lack of reasonable expedition in investigations into Troubles-related deaths. This stems from a number of factors in Northern Ireland, including prolonged delays in the disclosure of relevant information, institutional limitations, limited resources, etc.

Interestingly, recently the Council of Europe's Commissioner for Human Rights indicated that the UK remains in continuing breach of its obligations under Article 2 in failing to conduct reasonably expedited and prompt investigations as well as effective investigations. Nils MuiŽnieks indicated that the UK Government could not justify these failings on the basis of limited resources. Another long-standing issue is barriers to truth recovery. The non-disclosure of documents that are essential to identifying the circumstances of the loss of life has been a significant barrier to truth recovery in investigations into Troubles-related deaths. Barriers to truth recovery and to delays to the investigative process involve redactions or delays or attempts to issue public interest immunity certificates. While after the reform - witnesses are now compellable in inquests in Northern Ireland - a compellable witness may decline to answer any question tending to incriminate himself or herself or his or her spouse and this is also in conjunction with human rights against self-incrimination in various proceedings.

Another long-standing issue remains the independence and impartiality of the mechanisms instituted to investigate suspicious deaths. Concerns have been raised by different bodies and actors with regard to proceedings by the Police Ombudsman, in respect of the Historical Enquiries Team. In addition, in the coronial system, the process of appointing a jury is anonymous so the vetting of jurors for any issues of bias is impossible. There are also ongoing concerns regarding the independence and effectiveness of public inquiries.

I reiterate the point about effectiveness which has been raised by the other two speakers. In the European Court of Human Rights case law this principle of effectiveness is tied to identifying whether there has been a breach of either of the positive or the negative obligation under the right to life. In instances where lethal force was used, for example, it is to find out whether it was no more than absolutely necessary and justified in the circumstances and as the court has put it, to identify and potentially punish those responsible, an obligation not of result but of means, but one which requires the investigative process to remain capable of leading to prosecutions. This raises some tensions between truth and justice in the view of many transitional justice experts, notably, a tension between mechanisms targeted towards encouraging witnesses to come forward in order to divulge the truth about certain controversial events on the one hand versus the capability of potentially leading to a prosecution of some of these individuals.

Recently, the European Court of Human Rights has indicated that the investigative duty under Article 2 is in fact related to a framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible. It said that this principle of investigation operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing an historical truth. This is quite a controversial statement from the Grand Chamber of the European Court of Human Rights which seems to prioritise justice perhaps over truth with regard to the investigation of takings of life. We are not sure how this will entirely crystallise for Northern Ireland and Troubles-related deaths. However, what we know is that the passage of time and the continued delay and barriers to truth recovery continue to militate against finding out the circumstances of a number of Troubles-related deaths. Therefore, this is a non-exhaustive but still a very lengthy outline of some of the issues of concern relating to compliance with Article 2 in Northern Ireland. I remain at the disposal of the committee for any questions.