Legacy inquests: It will be hard to tackle our troubled past if state killings are given privileged scrutiny

Last week’s article explained the importance of the European Convention on Human Rights as a political as well as legal document and the basic elements of the ‘right to life’ under Article 2 of the Convention.

This article examines in some more detail how the Article 2 right has been developed in the ‘case law’ of the convention.

There are three components to the duty:

Firstly the state must not take life without justification. This does not require further discussion.

Secondly the state must establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. This does not require here much discussion: certainly, the state is under a duty to protect the right to life, but the exigencies of circumstances apply in considering whether in any particular case the state may be in breach.

Thirdly the state has what may be called a ‘procedural obligation’ to supplement the above ‘substantive’ obligations. This ‘procedural obligation’ arises in cases where it appears that ‘agents of the state’ may be implicated in a death. In such cases the duty of the state is to instigate a prompt and effective public investigation by an independent official body into any such death occurring in circumstances where it appears that one or other of the substantive obligations has or may have been violated.

This ‘procedural obligation’ does not expressly appear in the text of Article 2: it was established by the court in a series of cases over several decades.

But certainly as the law now stands, established in these cases and confirmed also by the House of Lords and now the Supreme Court in London, proposals for dealing with the past in Northern Ireland must conform to this ‘procedural obligation’.

Many politicians and activist groups have been energetically focused on this ‘procedural obligation’ of Article 2. Indeed, if one thinks about it, clearly the Strasbourg court is right to insist that in circumstances of deaths involving ‘agents of the state’, in principle there should be a prompt, effective and independent procedure of investigation. Otherwise the state may cover up its ‘actions’ and the substantive protections of Article 2 to protect the citizen may be rendered of only theoretic benefit, if in practice the state cannot be held to account.

On that basis, one would not seek to have the Strasbourg Court water down this ‘procedural obligation’ which should stand as essentials protection for all the citizens of Europe against abuse of power by their governments.

But it is the outworking of this, in the particular circumstances of Northern Ireland in the last three decades of the last century that is problematic. As will be discussed, the rulings of the Strasbourg court appear to require a privileged level of investigation in the circumstances of deaths involving ‘agents of the state’ as compared with what must or feasibly can be done in regard to investigations of deaths in which ‘agents of the state’ are not implicated.

Obviously, it will be difficult to chart a way forward for any comprehensive tackling of the problems of our past if the Strasbourg court’s requirement for privileged treatment of the investigation of deaths caused by ‘agents’ of the state’ means that all the other deaths, injuries, damage and destruction of the troubles merit only a lesser degree of investigation.

I will suggest that this need not necessarily be so and the next article will investigate in more detail the problems that arise.

• Neil Faris is a Belfast lawyer who does advisory work in public and commercial law. His first article is online, here: Article 2 of the ECHR and the right to life