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Jean Charles de Menezes case could spark new human rights battle
Ian Dunt By Ian Dunt Thursday, 4 June 2015 11:05 AM
The family of Jean Charles de Menezes, the Brazilian electrician shot dead by British police in the aftermath of the London bombings, will take their case to the European Court of Human Rights next week.
The legal battle could prove explosive given the tense standoff between human rights defenders and the government in Westminster.
The family were left with few options but to go to Strasbourg after a succession of British legal avenues were closed off to them.
The Crown Prosecution Service (CPS) decided no individuals should be prosecuted over the shooting and an application for judicial review of the decision was rejected.
The family's legal team will argue that the CPS decision not to bring a prosecution is incompatible with Article 2 of the European Convention of Human Rights (ECHR), which guarantees the right to life.
Under CPS rules, an assessment that there is a less than 50% chance of conviction is enough to rule out prosecutions.
They will also argue that the test relating to whether police officers acted in self-defence should be amended so that it is not just an honest belief but also a reasonable one.
De Menezes was killed after a series of police errors saw him followed onto the Tube by two members of the CO19 elite armed unit. The officers, who believed De Menezes to be a suicide bomber, opened fire at point blank range while pinning him to the seat of the underground train, killing him instantly.
The family will argue that there was sufficient evidence for a conviction for murder or gross negligence manslaughter for a number of police officers, including the two who shot him and senior officers in command of the operation.
"For ten years our family has been campaigning for justice for Jean because we believe that police officers should have been held to account for his killing," his cousin, Patricia Armani da Silva, said.
"Jean's death is a pain that never goes away for us. Nothing can bring him back but we hope that this legal challenge will change the law so that so no other family has to face what we did."
Campaigners for greater scrutiny of deaths at the hands of police will also be attending the hearing on Wednesday, as they push for a change in the way the UK responds to deaths at the hands of authorities.
"A democratic society needs a criminal justice system that ensures scrutiny and accountability of the police and ensures that prosecutions for human rights violations are brought in appropriate cases," Deborah Coles, co-director of Inquest, said.
"Public confidence in the police is fundamental to democratic policing and must not be undermined by any suggestion that the rule of law does not apply equally to all citizens including those in uniform."
Inquest says investigations by the Independent Police Complaints Commission (IPCC) and the CPS begin by treating the death as "anything other than a potential homicide", thereby fostering a culture of impunity.
There has never been a successful prosecution for manslaughter or murder in any of these cases in the UK, even where an inquest jury has returned a finding of 'unlawful killing'.
Despite the overwhelming public sympathy for De Menezes, the case comes at a pivotal moment in the debate over the role of the Strasbourg court in British law.
A finding which forced the CPS to reconsider its benchmarks for prosecutions might spark a wave of backbench Tory resentment at perceived interference with UK legal standards.
Although critics of the ECHR say Strasbourg acts as the supreme court in British law, the reality is more nuanced. If it finds Britain to be in breach of Article 2, it will ultimately be up to parliament, not the courts, to vote on a measure which addresses Strasbourg's concerns.
During PMQs yesterday, David Cameron once again raised the prospect of pulling out of the ECHR if Michael Gove cannot secure the changes he wants over European human rights law.
Asked if withdrawal was still an option by potential backbench rebel Andrew Mitchell, Cameron answered: "I rule out absolutely nothing in getting that done."
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Jean Charles de Menezes case to be heard at Strasbourg
On Wednesday (10th June), the European Court of European Rights (E Ct HR) Grand Chamber will hear the case of Armani Da Silva v. the United Kingdom (no. 5878/08) which arises from the shooting in 2005 of Jean Charles de Menezes at Stockwell Station, London - The Guardian 3rd June 2015.
The following is as published by the E Ct HR:-
The E Ct HR press release:
The applicant, Patricia Armani Da Silva, is a Brazilian national who was born in 1974 and lives in Thornton Heath, London. The case concerns her complaint about the police’s fatal shooting of her cousin, Jean Charles de Menezes, aged 27, who was mistakenly identified as a terrorist suspect and shot dead on 22 July 2005 by two special firearms officers (SFOs) at Stockwell London Underground Station. The shooting occurred the day after a police manhunt was launched to find those responsible for four unexploded bombs that had been found on three underground trains and a bus in London. It was feared that a further bomb attack was imminent. Two weeks earlier, the security forces had been put on maximum alert after 56 people had died when suicide bombers detonated explosions on the London transport network. Two of the terrorist suspects lived at the same address as Mr de Menezes in Scotia Road, London, which had been placed under surveillance. As he left for work on the morning of 22 July, Mr de Menezes was followed by surveillance officers, who thought he might be one of the suspects. SFOs were dispatched to the scene with orders to stop him boarding any underground trains. However, by the time they arrived, he had already entered Stockwell tube station. There he was followed onto a train, pinned down and shot several times in the head.
The case was referred to the Independent Police Complaints Commission (IPCC), which concluded in a report dated 19 January 2006 that Mr de Menezes had been killed because of mistakes that could and should have been avoided. The report also made a series of operational recommendations and identified a number of possible offences that might have been committed by the police officers involved, including murder and gross negligence.
Ultimately, however, it was decided not to press criminal or disciplinary charges against any individual since there was no realistic prospect of a conviction against any individual police officer being upheld. Notably, in July 2006 the Crown Prosecution Service found that it would be very difficult to prove beyond reasonable doubt that the SFOs had not genuinely believed that they were facing a lethal threat and that there was insufficient evidence to show that the mistakes made by the police officers involved in planning the surveillance and stop of Jean Charles de Menezes were so bad as to amount to criminal conduct.
Similarly, in May 2007, the IPCC decided that no disciplinary action should be pursued against any of the frontline and surveillance officers (11 officers) involved in the operation since there was no realistic prospect of any disciplinary charges being upheld.
In October 2006 Ms Armani Da Silva applied unsuccessfully for leave to apply for judicial review of the decision not to prosecute any individual police officer for criminal offences. Leave to appeal to the House of Lords was refused by the High Court and, in July 2007, by the House of Lords.
A successful prosecution was however brought against the police authority under the Health and Safety at Work Act 1974. The jury accepted the prosecution’s allegations of failings in the operation’s planning, implementation and communication, notably as concerned Mr de Menezes’ identification and the deployment of the SFOs at relevant locations in time to prevent Mr de Menezes from getting onto public transport. Thus, in November 2007 the authority was ordered to pay a fine of £175,000, but in a rider to its verdict that was endorsed by the judge, the jury absolved the officer in charge of the operation of any “personal culpability” for the events.
At an inquest in 2008 the jury returned an open verdict after the coroner had excluded unlawful killing from the range of possible verdicts.
The family also brought a civil action in damages which resulted in a confidential settlement in 2009.
Ms Armani Da Silva complains that the State’s duty under Article 2 (right to life – investigation) to ensure accountability and punishment of State agents or bodies for the fatal shooting of her cousin was not fulfilled by the prosecution of the police authority for a health and safety offence. More particularly, she complains about the decision not to prosecute any individuals for her cousin’s death.
In this regard, she alleges that the evidential test used by prosecutors to determine whether criminal charges should be brought – namely a suspect cannot be prosecuted unless it is considered that a conviction is more likely than not to result – is too high a threshold for decisions as to whether to prosecute, particularly in cases concerning the use of lethal force by State agents.
She also takes issue with the definition of self-defence in the United Kingdom, as the officers who shot Mr de Menezes only had to show that they had an honest belief (as opposed to an honest and reasonable belief) that the use of force was absolutely necessary.
The application was lodged with the European Court of Human Rights on 21 January 2008. The case was communicated on 28 September 2010 to the United Kingdom Government, which was asked to submit its observations as well as all decisions of the IPCC as regards possible disciplinary charges against relevant officers. On 9 December 2014 the Chamber to which the case had been assigned relinquished jurisdiction in favour of the Grand Chamber.
Birnberg Peirce Press Release:
Solicitors Birnberg Peirce have issued a Press Briefing which explains the points at issue in the case. A key point relates to the standard applied by the Crown Prosecution Service when they decide whether to prosecute an individual. The test is set out in the Code for Crown Prosecutors. It is argued that the test is too stringent and is incompatible with Article 2 (Right to Life).
Official Statements / Reports:
Independent Police Complaints Commission - The Stockwell Investigation
The July 7th Truth Campaign - Jean Charles de Menezes Inquest - Transcripts and Evidence
CPS Statement of 13th February 2009 - Shooting of Jean Charles de Menezes
The Metropolitan Police were convicted under Health and Safety legislation - The Guardian 1st November 2007 and The Independent 2nd November 2007
Under Article 30 of the European Convention on Human Rights, "Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects"
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AN INNOCENT MAN SHOT DEAD ON THE LONDON TUBE BY POLICE . . .SINCE THEN EVERYTHING WE'VE BEEN TOLD HAS BEEN WRONG. A COVER-UP? AND IF SO . . . WHY?
Sunday 21 August 2005
BRAZIL'S deputy attorney general and a senior official from Brazil's ministry of justice will tomorrow morning hold discussions in London with members of the Independent Police Complaints Commission, the Metropolitan Police and senior officials from the Foreign Office. Despite the diplomatic manners that will initially be on show, a Foreign Office source hinted that this will be an "uncomfortable" gathering. It could be very uncomfortable.
On July 22, an innocent Brazilian citizen was gunned down inside a London Underground train during a bungled police operation which followed the second terrorist attack in London. The Metropolitan Police says the shooting was a "tragic mistake".
But behind the public contrition there lies a web of contradictory statements, deviation from routine procedures, and a mist of confusion that has led to serial calls for the resignation of the Met's head, Sir Ian Blair.
And throughout four weeks of calls for clarity and the truth, has been the odour of a police cover-up that has refused to retreat in its intensity.
The two Brazilian officials, Wagner Goncalves and Marcio Pereira Pinto Garcia, will, above all, be seeking assurances that every detail of the death of Jean Charles de Menezes will be investigated and that they are kept informed. On that basic request the two Brazilians may be disappointed.
The IPCC has already hinted that the Brazilians will be told no more than lawyers from the de Menezes family.
The two Brazilians are likely to leave the meeting with the realisation that they may need to be patient in their desire to know the full facts. It could be two years and more before the IPCC publishes its findings. Its report will need to be sent to the official coroner. It will also have to be examined by lawyers at the Crown Prosecution Service. A formal inquest will take place and if there is any prosecution of any officer involved, that will take precedence over the report's publication. The Home Secretary, if he believes any part of the IPCC's report compromises national security, could also order an edited version to be made public, with key elements remaining confidential.
That is a lengthy period for a climate of cover-up to endure and Sir Ian Blair knows it. In an interview with the BBC, given at the end of last week, the Met chief said: "Of all the allegations made in the last couple of weeks, the matter I would most want to reject is the concept of a cover-up . . . tragic as the death of Mr Menezes is, and we have apologised for it and we take responsibility for it, it is one death out of 57."
The Met is currently involved in the largest criminal inquiry in England's history, centred on the people who lost their lives in the terrorist attack in London on July 7. There are double that number whose lives have been wrecked by the horrors of the attack carried out by four suicide bombers.
Yet despite Sir Ian's plea that "we cannot let one tragic death outweigh all the others", the confusion and chaos surrounding the shooting of de Menezes has forced Britain's senior police officers last Friday to question the use of the shoot-to-kill policy that led to an innocent death.
"Operation Kratos" was the codename for the police policy that gave authority to armed officers from the SO19 firearms squad to kill a suspected suicide bomber if deemed necessary. A suspected suicide bomber would not be targeted with a shot to the body - a shot likely to trigger explosives strapped to a bomber.
If a suspect was targeted there would be a lethal shot to the head.
But how did de Menezes get to the point where he was identified, wrongly, as that kind of risk?
Two weeks after the first attacks on July 7 London's transport network was hit by a second wave of attacks. No bombs were detonated on July 21 and a massive manhunt for four bombers was launched.
Police are said to have quickly established the identity of some of the men they were looking for and began monitoring a flat in Scotia Road, Tulse Hill, in south London.
The address they believed was linked to the second wave of attacks.
A police surveillance team believed two of the suspected bombers lived in the block, one of them, Hussein Osman. Among the surveillance team in Scotia Road was a soldier from a new "special forces" regiment that had only become operational in April. The Special Reconnaissance Regiment (SRR) is the first special forces unit to be created in the UK since the end of the second world war. The SRR is based in Hereford, its personnel selected and trained by the SAS.
Geoff Hoon, then defence secretary, announced on April 5 in a written Commons answer that "the pursuit of international terrorists" would be the SRR's priority.
However, the involvement of the SRR in the operation on July 22 was not confined to just one soldier at Scotia Road. According to security sources, SRR personnel were involved in the tailing operation that saw de Menezes leave the block of flats, board a bus, and then enter the tube station at Stockwell. SRR personnel are also believed to have been on the tube train when he was shot.
The SRR soldier at Scotia Road (given the codename Tango 10) used equipment which sent realtime pictures of all who came and went from the flats. Those receiving the pictures could check them against footage of who they were looking for. One security source said: "In this kind of operation you never leave. You need to pee: you use a bottle; if there's no bottle, tough. You never leave."
The police account says there is no footage of de Menezes leaving because the SRR soldier had to relieve himself. The police account says he sent out a message calling the man who left [de Menezes] an "ICI" - a white northern European. It was also suggested that "it would be worth someone else having a look".
Hussein Osman - arrested in Rome and scheduled for deportation to the UK within the next two months - was not an ICI. The CCTV footage of Osman the police held showed an Asian/north African male.
De Menezes took a bus to Stockwell tube station, stopping briefly at Brixton. The surveillance operation logged his every step. An assessment was made on the basis of his demeanour: he was identified as a suspect. By whom? That is still unclear. It is also understood that the senior police officer in charge of the operation, Commander Cressida Dick, had ordered de Menezes at this stage to be detained before he went into the tube station and that he should be alive.
So why was de Menezes not stopped before the station? Suggestions that SO19 officers had yet to arrive in the vicinity of the station are irrelevant if armed SRR personnel were part of the surveillance team tracking the 27-year-old Brazilian.
Details contained in a leaked IPCC draft report given to ITV News last week reveal that the Brazilian walked into the station lobby, picked up a free newspaper, used a travelcard at the ticket barriers, and headed towards the train. Three members of the surveillance team followed de Menezes on to the train and sat alongside him. Another sat near the train's doors.
The leaked IPCC report says the surveillance team inside the train saw four other armed personnel (said to be from SO19) moving along the platform. The IPCC report says one of the surveillance team - codenamed called Hotel Three - saw the men on the platform, and said they were "probably" - but not definitely - "from SO19". He said he decided to identify the male in the denim jacket [de Menezes] to them. "I placed my foot against the open carriage to prevent it shutting . . . I shouted, 'He's here, ' and indicated to the male in the denim jacket with my right hand. I heard them shouting which indicated the word 'police' and turned to face the male in the denim jacket." The IPCC account says de Menezes stood up and walked towards the armed men. "Hotel Three" decided to intervene.
The report says he wrapped his arms around the young Brazilian and pushed him back into his seat.
Hotel Three says he then heard a gunshot close to his ear and he was dragged away on the floor of the train carriage. The report also says that one of the officers from SO19 shot de Menezes seven times in the head and once in the neck. Three other shots were fired and missed.
A security agency source contacted by the Sunday Herald said: "This takeout is the signature of a special forces operation. It is not the way the police usually do things. We know members of SO19 have been receiving training from the SAS, but even so, this has special forces written all over it."
The IPCC report offers a degree of clarity absent in the "eyewitness" accounts which suggested the suspect had been wearing a padded jacket and had vaulted a ticket barrier.
These accounts are governed not by rational recall but by panic. They reflect public terror and fear. But despite Sir Ian Blair's insistence that "there was no evidence" that the Met had made up or leaked stories suggesting that the victim was running from the police and had been wearing a bulky jacket and had jumped over a barrier, the initial postmortem report into de Menezes's death states the young Brazilian had "vaulted over the ticket barrier".
A post-mortem report does not take its information from media reports. The police are contacted directly and written accounts are delivered. Details of the barrier being "vaulted" therefore came from the police. Why?
And why at 4pm - five hours after the shooting - when the police would have known they had not killed Hussein Osman but a young Brazilian, did Sir Ian hold a press conference and insist that the shooting was "directly linked" to the anti-terrorist operation?
It took until 5pm the following day, July 23, for Scotland Yard to formally admit that the victim was not linked to the anti-terrorism operation. At 9.30pm Scotland Yard issued the name Jean Charles de Menezes.
However, the day before the admission that there was no anti-terrorism link, Sir Ian wrote to John Gieve, the permanent secretary at the Home Office, arguing that an internal inquiry into the killing should take precedence over an independent investigation. But why was Ian Blair worried that an IPCC investigation could impact on security and intelligence? Was he concerned that it was not just his force's officers, but also the personnel of the new special forces regiment, the SRR, who would be exposed? He told Gieve that he feared the IPCC would have to inform the family of everything that was found - and "this investigation involves secret intelligence". It was also believed that any outside investigation could damage the morale of SO19.
Despite the Met chief 's plea, he was over-ruled. The IPCC was brought in. But no explanation has so far been offered as to why it took a further three days for the IPCC investigation team to be given access to the scene of the shooting at Stockwell. In normal procedures, an IPCC team would have been given access "within hours" to preserve evidence.
Despite Sir Ian's insistence that the Met "do not spin", the contradictions and confusion point either to a cover-up designed to protect what the Met still believes is valued intelligence material, or to a confused chain of command between police and the clear involvement of special forces personnel from the new Special Reconnaissance Regiment.
De Menezes's cousin, Alessandro Pereira, certainly has no doubts that the police have not been forthcoming with the truth about the circumstances surrounding the shooting.
"For three weeks we have listened to lie after lie about Jean and about how he was killed, " he said. "I want Ian Blair to think how it felt having to ring Jean's mother and father . . . and tell them their son was dead, that he was killed in such a way. The police know Jean was innocent and yet they let my family suffer."
This was the SRR's first public test of their operational skills in combating terrorism. It would be highly damaging for the government if a new unit, designed to increase national protection, were found to be incapable of working successfully alongside special armed units of the Met. A full and open public inquiry would answer such questions, but it would also expose a special forces unit to public scrutiny, something the SAS has been able to resist throughout its history.
Like the two Brazilian justice officials expecting answers tomorrow, we may all have to wait much longer for a believable account that helps explain the death of Jean Charles de Menezes.
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