Patrick Shanaghan v the United Kingdom - The Pat Finucane Centre

SHANAGHAN v. THE UNITED KINGDOM JUDGMENT 37
134. The Court’s case-law indicates that Article 13 of the Convention
guarantees the availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to deal with
the substance of an “arguable complaint” under the Convention and to grant
appropriate relief, although Contracting States are afforded some discretion
as to the manner in which they conform to their Convention obligations
under this provision. The scope of the obligation under Article 13 varies
depending on the nature of the applicant’s complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective” in
practice as well as in law (see the Aksoy v. Turkey judgment of
18 December 1996, Reports 1996-IV, p. 2286, § 95; the Aydõn v. Turkey
judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; the
Kaya v. Turkey judgment cited above, pp. 329-30, § 106).
135. In cases of the use of lethal force or suspicious deaths, the Court
has also stated that, given the fundamental importance of the right to the
protection of life, Article 13 requires, in addition to the payment of
compensation where appropriate, a thorough and effective investigation
capable of leading to the identification and punishment of those responsible
for the deprivation of life, including effective access for the complainant to
the investigation procedure (see the Kaya v. Turkey judgment cited above,
pp. 330-31, § 107). In a number of cases it has found that there has been a
violation of Article 13 where no effective criminal investigation had been
carried out, noting that the requirements of Article 13 were broader than the
obligation to investigate imposed by Article 2 of the Convention (see also
Ergõ v. Turkey, cited above, p. 1782, § 98; Salman v. Turkey cited above,
§ 123).
136. It must be observed that these cases derived from the situation
pertaining in south-east Turkey, where applicants were in a vulnerable
position due to the ongoing conflict between the security forces and the
PKK and where the most accessible means of redress open to applicants was
to complain to the public prosecutor, who was under a duty to investigate
alleged crimes. In the Turkish system, the complainant was able to join any
criminal proceedings as an intervenor and apply for damages at the
conclusion of any successful prosecution. The public prosecutor’s fact
finding function was also essential to any attempt to take civil proceedings.
In those cases, therefore, it was sufficient for the purposes of former
Article 26 (now Article 35 § 1) of the Convention, that an applicant
complaining of unlawful killing raised the matter with the public prosecutor.
There was accordingly a close procedural and practical relationship between
the criminal investigation and the remedies available to the applicant in the
legal system as a whole.