39
McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
152. For the Commission, with whom the Government agreed, Article 2
(art. 2) was not to be interpreted as requiring an identical formulation in
domestic law. Its requirements were satisfied if the substance of the
Convention right was protected by domestic law.
153. The Court recalls that the Convention does not oblige Contracting
Parties to incorporate its provisions into national law (see, inter alia, the
James and Others v. the United Kingdom judgment of 21 February 1986,
Series A no. 98, p. 47, para. 84, and The Holy Monasteries v. Greece
judgment of 9 December 1994, Series A no. 301-A, p. 39, para. 90).
Furthermore, it is not the role of the Convention institutions to examine in
abstracto the compatibility of national legislative or constitutional
provisions with the requirements of the Convention (see, for example, the
Klass and Others v. Germany judgment of 6 September 1978, Series A no.
28, p. 18, para. 33).
154. Bearing the above in mind, it is noted that Article 2 of the Gibraltar
Constitution (see paragraph 133 above) is similar to Article 2 (art. 2) of the
Convention with the exception that the standard of justification for the use
of force which results in the deprivation of life is that of "reasonably
justifiable" as opposed to "absolutely necessary" in paragraph 2 of Article 2
(art. 2-2). While the Convention standard appears on its face to be stricter
than the relevant national standard, it has been submitted by the
Government that, having regard to the manner in which the standard is
interpreted and applied by the national courts (see paragraphs 134-35
above), there is no significant difference in substance between the two
concepts.
155. In the Court’s view, whatever the validity of this submission, the
difference between the two standards is not sufficiently great that a violation
of Article 2 para. 1 (art. 2-1) could be found on this ground alone.
156. As regards the applicants’ arguments concerning the training and
instruction of the agents of the State and the need for operational control,
the Court considers that these are matters which, in the context of the
present case, raise issues under Article 2 para. 2 (art. 2-2) concerning the
proportionality of the State’s response to the perceived threat of a terrorist
attack. It suffices to note in this respect that the rules of engagement issued
to the soldiers and the police in the present case provide a series of rules
governing the use of force which carefully reflect the national standard as
well as the substance of the Convention standard (see paragraphs 16, 18 and
136-37 above).
(b) Adequacy of the inquest proceedings as an investigative mechanism
157. The applicants also submitted under this head, with reference to the
relevant standards contained in the UN Force and Firearms Principles (see
paragraphs 138-39 above), that the State must provide an effective ex post
facto procedure for establishing the facts surrounding a killing by agents of