ECHR Grand Chamber – Article 1
Jurisdiction of states
Territorial jurisdiction in relation to alleged killing of Iraqi national by Netherlands serviceman, member of Stabilisation Force in Iraq
Article 2
Positive obligations
Article 2-1
Effective investigation
Failure to hold effective investigation into alleged fatal shooting by Netherlands forces at vehicle checkpoint in southern Iraq: violation
Facts – From July 2003 until March 2005 Netherlands troops participated in the Stabilisation Force in Iraq (SFIR) in battalion strength. They were stationed in south-eastern Iraq as part of Multinational Division South-East (MND-SE), which was under the command of an officer of the armed forces of the United Kingdom. The participation of Netherlands forces in MND-SE was governed by a Memorandum of Understanding between the United Kingdom and the Kingdom of the Netherlands to which Rules of Engagement were appended. Both documents were classified confidential.
The applicant is the father of an Iraqi national who died in April 2004 from bullet wounds received when the car in which he was travelling as a passenger was shot at after passing a vehicle checkpoint at speed. The checkpoint was manned at the time by members of the Iraqi Civil Defence Corps (ICDC) who had been joined by a patrol of Netherlands soldiers who had arrived after the checkpoint had come under fire from another vehicle a few minutes before the incident in which the applicant’s son was killed. One of the Netherlands servicemen admitted to having fired several rounds at the car in which the applicant’s son was travelling, but claimed to have done so in self-defence, believing himself to have been under fire from the vehicle. Following an investigation by the Royal Military Constabulary (a branch of the Netherlands armed forces), the military public prosecutor concluded that the applicant’s son had presumably been hit by an Iraqi bullet and that the Netherlands serviceman had been acting in self-defence. He therefore closed the investigation. That decision was upheld by the Military Chamber of the Court of Appeal which found that the serviceman had reacted to friendly fire, mistaking it for fire from inside the car. In the circumstances, he had therefore acted within the confines of his instructions and the decision not to prosecute him could stand.
In his application to the European Court, the applicant complained under Article 2 of the Convention that the investigation was not sufficiently independent or effective. On 9 July 2013 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.
Law – Article 1 (jurisdiction): The Government raised a preliminary objection that the complaints did not come within the territorial jurisdiction of the Netherlands since authority lay elsewhere: either with the United States and the United Kingdom as the designated ‘occupying powers’ under United Nations Security Council Resolution 1483, or with the United Kingdom alone as the ‘lead nation’ in south-eastern Iraq, holding command over the Netherlands contingent of SFIR.
Rejecting that argument, the Court observed that the fact of executing a decision or an order given by an authority of a foreign State was not in itself sufficient to relieve a Contracting State of its obligations under the Convention. The Netherlands were not divested of ‘jurisdiction’ solely by dint of having accepted the operational control of a United Kingdom commanding officer. Although the forces of nations other than the ‘lead nations’ took their day-to-day orders from foreign commanders, the formulation of essential policy – including, within the limits agreed in the form of Rules of Engagement appended to the relevant Memoranda of Understanding, the drawing up of distinct rules on the use of force – remained the reserved domain of the individual States who had supplied forces. The Netherlands assumed responsibility for providing security in the area where their troops were stationed, to the exclusion of other participating States, and retained full command over its contingent there. Nor was it relevant that the checkpoint where the shooting happened was nominally manned by ICDC personnel, as the ICDC was supervised by and subordinate to officers from the coalition forces. The Netherlands troops had thus not been at the disposal of any foreign power or under the exclusive direction or control of any other State.
The fatal shooting had taken place at a checkpoint manned by personnel under the command and direct supervision of a Netherlands army officer which had been set up in the execution of SFIR’s mission under United Nations Security Council Resolution 1483. It had thus occurred within the ‘jurisdiction’ of the Netherlands.
Conclusion: preliminary objection dismissed (unanimously).
Article 2 (procedural aspect): The Court did not accept the applicant’s allegation that the investigation had not been sufficiently independent. There was no evidence to show that the fact that the Royal Military Constabulary unit which had undertaken the initial investigation had shared their living quarters with the army personnel allegedly responsible for the death had in itself affected its independence to the point of impairing the quality of its investigations. Nor did the fact that the public prosecutor had relied to a large extent on the reports by the Royal Military Constabulary raise an issue, as public prosecutors inevitably relied on the police for information and support. As to the inclusion of a serving military officer as a judge of the Military Chamber of the Court of Appeal which upheld the decision not to prosecute the Netherlands army officer who had fired at the car, the chamber had been composed of two civilian members of the Court of Appeal and one military member. The military member was a senior officer qualified for judicial office who was not subject to military authority and discipline and whose functional independence and impartiality were the same as those of civilian judges. The Military Chamber had thus offered sufficient guarantees of independence for the purposes of Article 2.
However, as regards the effectiveness of the investigation, the Court found that it had been characterised by a number of shortcomings. Notably, the Military Chamber of the Court of Appeal had confined itself to establishing that the officer who had fired the shots had acted in self-defence, mistakenly reacting to friendly fire from across the road, without addressing certain aspects relevant to the question of the proportionality of the force used, in particular, whether more shots had been fired than necessary and whether the firing had ceased as soon as the situation had allowed. Documents containing information potentially relevant to those questions had not been made available to the Military Chamber at the time. In particular, an official record of statements from the ICDC personnel who had been guarding the checkpoint at the time of the shooting and a list of the names of ICDC personnel who had fired their weapons had not been added to the case file.
In addition, there had been a delay of more than six hours after the incident before the officer who had fired the shots was questioned. While there was no suggestion of foul play, the fact that no appropriate steps had been taken to reduce the risk of him colluding with other witnesses was another shortcoming. As regards the autopsy, it had been carried out without any qualified Netherlands official being present. The pathologist’s report was extremely brief, lacked detail and did not include any pictures. Finally, fragments of metal identified as bullet fragments taken from the body – potentially important material evidence – were not stored or examined in proper conditions and had subsequently gone missing in unknown circumstances.
In sum, the investigation into the circumstances surrounding the death had failed to meet the standards required by Article 2 in that documents containing important information were not made available to the judicial authorities and the applicant; no precautions were taken to prevent the officer who fired the shots from colluding, before he was questioned, with other witnesses; no attempt was made to carry out the autopsy under conditions befitting an investigation into the possible criminal responsibility of an agent of the State, and the resulting report was inadequate; and important material evidence was mislaid in unknown circumstances. It could not be said that these failings had been inevitable, even in the particularly difficult conditions that had prevailed in Iraq at the relevant time.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
47708/08 – Legal Summary, [2014] ECHR 1403
Bailii
European Convention on Human Rights
Human Rights, Armed Forces
Updated: 24 December 2021; Ref: scu.540003
