Monday 26 September 2016

Decision not to prosecute police over Jean Charles de Menezes shooting was right, European Court of Human Rights rules

Published 30/03/2016 | 16:18

An undated file family picture of Brazilian electrician Jean Charles de Menezes. Reuters/Handout via Reuters/Files
An undated file family picture of Brazilian electrician Jean Charles de Menezes. Reuters/Handout via Reuters/Files
File photo 02/08/07: A memorial to Jean Charles de Menezes outside Stockwell Tube station in London, as his family have lost a human rights challenge over the decision not to charge any individual police officer over his death. Photo: Stephen Kelly/PA Wire
Brazilians Maria Otoni de Menezes (left), 60, and her husband Matozinho Otoni da Silva, 66, hold up photographs of their son, Jean Charles de Menezes in their home in the village of Gonzaga, Minas Gerais State, Brazil on July 24, 2005. Reuters/Washington

The family of Jean Charles de Menezes have lost a human rights challenge over the decision not to charge any individual police officer over his death.

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Relatives of the Brazilian took their case to the European Court of Human Rights (ECHR) last year - almost a decade after he was mistaken for a suicide bomber and shot dead by police marksmen on a London Tube train.

Lawyers for the family argued the assessment used by prosecutors in deciding that no individual should be charged over the shooting is incompatible with Article 2 of the European Convention on Human Rights, which covers the right to life.

However, in a judgment on Wednesday the Strasbourg court's Grand Chamber found that UK authorities had not failed in their obligations under the article to conduct an effective investigation into the shooting which was capable of identifying and - if appropriate - punishing those responsible.

Judges found that Article 2 did not require the evidential test used to be lowered in cases where deaths had occurred at the hands of state agents.

Lawyers for the family claimed the evidential test applied by the Crown Prosecution Service - that there should be sufficient evidence for a "realistic prospect" of conviction - is too high a threshold.

It means that, in effect, the decision not to bring a prosecution was based on a conclusion that there was less than a 50% chance of conviction, they argued.

The judgment said: "The facts of the present case are undoubtedly tragic and the frustration of Mr de Menezes's family at the absence of any individual prosecutions is understandable."

It concluded that "having regard to the proceedings as a whole, it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and - if appropriate - punishing those responsible".

The court did not consider that the evidential test constituted a failing in the prosecutorial system which precluded those responsible for Mr de Menezes's death being held accountable.

The decision not to prosecute any individual officer was not due to any failings in the investigation "or the State's tolerance of or collusion in unlawful acts", the judgment said.

It added: "Rather, it was due to the fact that, following a thorough investigation, a prosecutor considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test in respect of any criminal offence."

The complaint also challenged the domestic definition of self-defence, arguing that officers only had to show an honest belief that the use of force was absolutely necessary - as opposed to an honest and reasonable belief.

However, the court found the test for self-defence was not significantly different from its own standard.

Mr de Menezes, 27, was shot dead by Metropolitan Police firearms officers at Stockwell Underground station in south London on July 22 2005 - a fortnight after the July 7 attacks.

The following year the CPS announced that no individual should be charged.

In 2007 the Met was fined £175,000 after being convicted of breaching health and safety laws.

An inquest jury later rejected the police account of the shooting and returned an open verdict. The coroner had already ruled out a verdict of unlawful killing.

In 2009, the family of the electrician agreed an undisclosed settlement with Scotland Yard.

Mr de Menezes's cousin Patricia da Silva Armani, who lodged the case, said the family are "deeply disappointed".

She said: "We had hoped that the ruling would give a glimmer of hope, not only to us, but to all other families who have been denied the right to justice after deaths at the hands of the police.

"We find it unbelievable that our innocent cousin could be shot seven times in the head by the Metropolitan police when he had done nothing wrong and yet the police have not had to account for their actions.

"As we have always maintained, we feel that decisions about guilt and innocence should be made by juries, not by faceless bureaucrats and we are deeply saddened that we have been denied that opportunity yet again.

"We will never give up our fight for justice for our beloved Jean Charles."

The Justice4Jean campaign said the ruling "fails not only the family of Jean Charles de Menezes but all families seeking accountability after deaths at the hands of the state".

Harriet Wistrich, solicitor for the family, said it was a "very disappointing decision" but noted that four of the 17 judges dissented.

A Government spokesman said: "The Government considers the Strasbourg court has handed down the right judgment.

"The facts of this case are tragic, but the Government considers that the court has upheld the important principle that individuals are only prosecuted where there is a realistic prospect of conviction."

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