States not only have to refrain from intentional and unlawful deprivation of life, but must also take appropriate steps to safeguard the lives of those within their jurisdiction. Through the work of the major human rights bodies, it is possible to identify a variety of positive measures that states are required to adopt. The measures required are wide-ranging, from establishing legislative measures aimed at controlling and limiting the circumstances in which firearms may be used by state agents to, in some cases, the provision of some commodities to keep one alive. Below follows examples of the positives duties imposed by the right to life.
Duty to ‘take appropriate care’ in the planning and conduct of an operation
When planning and conducting operations that put lives at risk, states are required to take the utmost care in the choice of means and methods employed by state officials. The planning and conduct of an operation must be carried out and controlled by the authorities in a manner which minimises, to the greatest extent possible, any risk to life. States are required, inter alia, to take into account contingencies in planning, to adopt provisions for a margin of error, to consider sufficient alternative possibilities and to establish procedures that review the lawfulness of the use of force in specific cases.
In the following case the victims were detained at the San Juan Bautista prison in Peru, charged with terrorist acts. There was a riot at the detention centre and control of the prison was delegated to the armed forces through a Supreme Decree. The armed forces proceeded to put an end to the riots and Víctor Neira-Alegría, Edgar Zenteno-Escobar and William Zenteno-Escobar went missing; their relatives did not see or hear from them again. During the intervention of the armed forces, more than a hundred prisoners were killed. During public hearings held in this case, the government abstained from presenting evidence but the Inter-American Commission submitted witnesses and experts.
Neira Alegría et al. v. Peru
Inter-American Court of Human Rights
Series C No. 20
Judgement of 19 January 1995
Keywords: life - terrorism – prisoners’ rights - detention conditions - positive obligations
60. In the terms of Article 5(2) of the Convention, every person deprived of her or his liberty has the right to live in detention conditions compatible with her or his personal dignity, and the State must guarantee to that person the right to life and to humane treatment. Consequently, since the State is the institution responsible for detention establishments, it is the guarantor of these rights of the prisoners.
61. In the instant case, Peru had the right and the duty to subdue the uprising of the San Juan Bautista Prison, even more so given the fact that it did not occur suddenly. Rather, the uprising appears to have been prepared in advance, given that the prisoners had made weapons of different types, dug tunnels, and practically taken control of the Blue Pavilion. It must also be kept in mind that, during the initial phase of the crushing of the riot by the Republican Guard, the prisoners captured one corporal and two guards as hostages, wounded another four guards, and took possession of three rifles and an automatic pistol with which they caused deaths among the forces that entered to crush the riot.
62. The majority’s Peruvian Congressional Commission investigative report states that the “disproportion of the war potential employed is nevertheless inferred from the results of the action. The final demolition, after the surrender which occurred at 14:30 hours on the nineteenth, would not have a logical explanation and would, consequently, be unjustified” Also, the minority report stated as follows:
It has been shown that the government, in failing to comply with its obligation to protect human life, gave orders which resulted in an unjustifiable number of deaths . . . The military force used was disproportionate in relationship to the actual danger present, and no precautionary measures were put into effect to reduce the human cost of crushing the riot (supra para. 43).
63. The Court considered it unnecessary to analyze whether the functionaries and authorities who took part in the crushing of the riot acted consistently with their functions and in accordance with domestic law, since the responsibility for the actions of Government functionaries is attributable to the State, independently of whether the functionary contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law (Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C No. 4, para. 170; Godínez Cruz Case, Judgment ofJanuary 20, 1989. Series C No. 5, para. 179).
64. Of the 97 bodies on which autopsies were performed, only seven were identified. It has not been shown that all procedures necessary to obtain a larger number of identifications were carried out, nor is there proof that the assistance of the relatives of the victims was requested for that purpose. It should be noted that there is a discrepancy in the number of prisoners in the Blue Pavilion before the riot and the number of rioters who surrendered plus the number of dead. According to the proceedings in the military jurisdiction, there were 111 dead (bone remains of fourteen persons and 97 bodies) and 34 survivors, which adds up to a total of 145 persons, while the non-official list delivered by the President of the National Correctional Council includes 152 inmates before the riot. The removal of debris took place between June 23, 1986 and March 31, 1987, that is, over a period of nine months.
65. The Court feels that it is not up to the Inter-American Commission to determine the whereabouts of the three persons to whom these proceedings refer, but instead, because of the circumstances at the time, the prisons and then the investigations were under the exclusive control of the Government, the burden of proof therefore corresponds to thedefendant State. This evidence was or should have been at the disposal of the Government had it acted with the diligence required. In previous cases, the Court has said:
[i]n contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation.
The State controls the means to verify acts occurring within its territory. Although the Commission has investigatory powers, it cannot exercise them within a State’s jurisdiction unless it has the cooperation of that State. (Velásquez Rodríguez Case, supra63, paras. 135-136; Godínez Cruz Case, supra 63, paras. 141-142).
66. The Court deems it proven that Víctor Neira-Alegría, Edgar Zenteno-Escobar and William Zenteno-Escobar were being held in the Blue Pavilion of the San Juan Bautista Prison on June 18, 1986, the date on which the crushing of the uprising started. This fact is certified by the list submitted by the President of the National Correctional Council to the Instructional Judge of the Twenty-First Court of Lima, where a habeas corpus writ was under consideration, and by the list submitted by the Head of Identifications of the San Juan Bautista Prison to the Second Permanent Instructional Court of the Navy. This fact has not been contested by the Government.
67. The Court considers it proven that the three cited persons were not among the rioters who surrendered and that their bodies were not identified. The preceding was certified by the September 20, 1990 note sent by the Minister of Foreign Affairs of Peru to the Commission, which was transmitted by its Alternate Ambassador to the OAS. This note is binding on the Peruvian State (cfr. Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, page 71) and reads as follows:
The allegedly missing persons, Víctor Neira-Alegría, Edgar Zenteno-Escobar, and William Zenteno-Escobar, are not among the rioters who surrendered in the events of the San Juan Bautista Prison from June 18 to 19, 1986, nor are their bodies, according to the records, among the few that could be identified.
On the other hand, as a result of these incidents, 92 death certificates were issued corresponding to non-identified bodies, three of which undoubtedly correspond to those three persons whom the Commission regards as missing.
68. In the instant case, an escape of the inmates and actions by third parties other than State authorities not alleged by the Peruvian State are excluded.
69. The Court considers it proven that the Pavilion was demolished by the forces of the Peruvian Navy, as may be concluded from the reports submitted by the experts in the hearing (supra, paras. 47 and 48), from the deposition made on July 16, 1986 by the President of the National Correctional Council before the Instructional Judge of the Twenty-First Court of Lima, and from the fact that many of the dead, according to the autopsies, had been crushed to death. The majority and minority reports of the Congress (supra para. 43) are consistent in regards to the disproportionate use of force. These reports are official and are regarded by this Court to be sufficient proof of that fact.
70. Also to be taken into consideration is the congressional minority commission report, which affirmed without objection by the Government, that there was lack of interest in rescuing the surviving rioters after the demolition, since a few days later four inmates appeared alive and more could have been alive (supra para. 43).
71. The Court likewise considers it proven that the identification of the bodies was not undertaken with the required diligence, since only a few of those bodies recovered during the days immediately following the end of the conflict were identified. Of the rest, which were recovered over a span of nine months, certainly a long period, this was not done either although, according to the statement of the experts (supra paras. 56 and 57), identification could have been possible by applying certain techniques. This conduct on the part of the Government constitutes a serious act of negligence.
72. Based on the preceding, the Court concludes that Víctor Neira-Alegría, Edgar Zenteno-Escobar and William Zenteno-Escobar lost their lives due to the effects of the crushing of the uprising by the forces of the Government and as a consequence of the disproportionate use of force.
73. The Court must now determine whether the actions and omissions attributable to the State constitute violations of the American Convention . It must be pointed out that the Commission, in its complaint, indicates the violation of Articles 1, 2, 4, 7, 8, and 25, but that, in its closing arguments, it omits Article 2 and adds Articles 5 and 27.
74. Article 4(1) of the Convention states that “[n]o one shall be arbitrarily deprived of his life.” The expression “arbitrarily” excludes, as is obvious, the legal proceedings applicable in those countries that still maintain the death penalty. But, in the present case, the analysis that must be made has to do with the right of the State to use force, even if this implies depriving people of their lives to maintain law and order, an issue that currently is not under discussion. There is an abundance of reflections in philosophy and history as to how the death of individuals in these circumstances generates no responsibility whatsoever against the State or its officials. Although it appears from arguments previously expressed in this judgment that those detained in the Blue Pavilion of the San Juan Bautista Prison were highly dangerous and, in fact armed, it is the opinion of this Court, those do not constitute sufficient reasons to justify the amount of force used in this and other prisons where riots had occurred. The incident was understood as a political confrontation between the Government and the real or alleged terrorists of Sendero Luminoso (supra para.52), a confrontation which probably led to the demolition of the Pavilion and all of its consequences; among them the death of inmates who would have eventually surrendered, the clear negligence in the search for survivors and, later, in the recovery of the bodies.”
75. As this Court has stated in previous cases:
[w]ithout question, the State has the right and duty to guarantee its security. It is also indisputable that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action. (Velásquez Rodríguez Case, supra 63, para. 154; Godínez Cruz Case, supra 63, para. 162.)
76. Given the circumstances that surrounded the crushing of the riot at the San Juan Bautista Prison; the fact that eight years after the riot occurred there is still no knowledge of the whereabouts of the three persons to whom this case refers, as was acknowledged by the Minister of Foreign Affairs stating that the victims were not among the survivors and that “three of the [non-identified bodies] undoubtedly correspond to those three persons;” and the disproportionate use of force; it may be reasonably concluded that they were arbitrarily deprived of their lives by the Peruvian forces in violation of Article 4(1) of the Convention.
87. The Court must express its position concerning the court costs and attorneys’ fees of these proceedings. In this respect, it would be appropriate to insist that the Commission cannot demand that expenses incurred as a result of its own internal work structure be reimbursed through the assessment of costs. The operation of the human rights organs of the American System is funded by the Member States by means of their annual contributions. (Aloeboetoe et al. Case , Reparations (Article 63(1) American Convention on Human Rights ), Judgment of September 10, 1993. Series C No. 15, para. 114.)
88. However, the Court must sentence Peru to the pay the expenditures that the victims’ next of kin may have incurred during these proceedings, which determination shall be left to the Government and the Commission, the Court reserving the right to determine them should the parties not reach an agreement.
89. Article 63(1) of the Convention states as follows:
1. If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
In the current circumstances it is clear that the Court may not rule that the victims be guaranteed the enjoyment of the rights of which they were deprived. It is then only appropriate to determine the reparation of the consequences of the violation and the payment of fair compensation.
90. The Court lacks the elements of judgment that would enable it to determine the extent of the compensation, as such information was neither submitted by the parties nor discussed during the proceedings. Therefore, the Court shall limit itself to the passing of an in genere judgment, leaving its determination in the hands of the parties. Should the parties not reach an agreement, the final decision shall be made by the Court.
1. Declares that Peru has violated the right to life recognized in Article 4(1) of the American Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment of Víctor Neira-Alegría, Edgar Zenteno-Escobar and William Zenteno-Escobar.
2. Declares that Peru has, to the detriment of the three persons cited, violated the right to habeas corpus established in Article 7(6), in relation to the prohibition established in Article 27(2) of the American Convention on Human Rights.
3. Decides that Peru is obliged to pay fair compensation to the next of kin of the victims on the occasion of these proceedings and to reimburse the expenditures that they have incurred in their petitions before the national authorities.
4. Decides that the form and extent of the compensation and the reimbursement of the expenditures shall be determined by Peru and the Commission, by mutual agreement, within a term of six months as of the date of notification of this judgment.
5. Reserves the power to review and approve the agreement and, should there be no agreement, to determine the extent of the compensation and expenditures, to which effect the Court does not close this case.’
The Court stressed in its judgement that although the rioters at the prison were armed and highly dangerous, the use of dynamite to blow up the building held by them was a ‘disproportionate use of force’ and thus the death of the three inmates constituted ‘arbitrary’ killing by the state.
The following case against Colombia was submitted by Pedro Pablo Camargo on behalf of the husband of Maria Fanny Suarez de Guerrero. On 13 April 1978, a Colombian Military Court ordered a raid on a house in the belief that a victim of a kidnap by a guerrilla organisation was being held there. In spite of the fact that the kidnapped person was not found, the police patrol decided to hide in the house to await the arrival of the ‘suspected kidnappers’. Seven persons who subsequently entered the house were shot by the police and died. None of the victims had fired a shot and some were killed at point-blank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack.
Suarez de Guerrero v. Colombia
Human Rights Committee
Communication No. 45/1979
Views of 31 March 1982
Keywords: life - use of force, proportionality – exhaustion of domestic remedies
VIEWS UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL
13.1 Article 6 (1) of the Covenant provides:
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The right enshrined in this article is the supreme right of the human being. It follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State.
13.2 In the present case it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the Covenant. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack. There can be no reasonable doubt that her death was caused by the police patrol.
13.3 For these reasons it is the Committee’s view that the action of the police resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was disproportionate to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary to article 6 (1) of the International Covenant on Civil and Political Rights . Inasmuch as the police action was made justifiable as a matter of Colombian law by Legislative Decree No. 0070 of 20 January 1978, the right to life was not adequately protected by the law of Colombia as required by article 6 (1).
15. The Committee is accordingly of the view that the State party should take the necessary measures to compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to ensure that the right to life is duly protected by amending the law.
In this case the Human Rights Committee stressed the importance of the principle of proportionality in the use of force. In other words, the use of force must be proportionate to the legitimate objective to be achieved. Thus, the use of firearms is legitimate only when less extreme means are insufficient to achieve the legitimate objective. This rule of proportionality must be applied in conjunction with the principle of necessity, stressed by the European Courtin the McCann case (see below). Therefore, firearms should only be used intentionally when strictly unavoidable in order to protect life. The use of firearms must be reserved as a last resort.
Similarly, in the following case, the United Kingdom, Spanish and Gibraltar authorities were aware that a unit of the Irish Republican Army (IRA) were planning a terrorist attack on Gibraltar. Soldiers from the Special Air Service (SAS) arrived to Gibraltar. Allegedly thinking that the suspects were trying to detonate a car bomb with a remote control device, the security forces shot dead all the IRA members. Inspections afterwards revealed that the suspected car bomb did not contain any explosive devices and that the three IRA members were unarmed when killed.
McCann et al. v. The United Kingdom
European Court of Human Rights
Application No. 1998/91
Judgement of 27 September 1995
Keywords: life - use of force, absolutely necessary - use of force, proportionality - positive obligations - terrorism
AS TO THE FACTS
I. Particular circumstances of the case
13. Before 4 March 1988, and probably from at least the beginning of the year, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA (Irish Republican Army - “IRA”) were planning a terrorist attack on Gibraltar. It appeared from the intelligence received and from observations made by the Gibraltar police that the target was to be the assembly area south of Ince’s Hall where the Royal Anglian Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00 hours.
14. Prior to 4 March 1988, an advisory group was formed to advise and assist Mr Joseph Canepa, the Gibraltar Commissioner of Police (“the Commissioner”). It consisted of Soldier F (senior military adviser and officer in the Special Air Service or “SAS”), Soldier E (SAS attack commander), Soldier G (bomb-disposal adviser), Mr Colombo (Acting Deputy Commissioner of Police), Detective Chief Inspector Ullger, attached to Special Branch, and Security Service officers. The Commissioner issued instructions for an operational order to be prepared to deal with the situation.
A. Military rules of engagement
15. Soldier F and his group, including Soldier E and a number of other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988. Preliminary briefings had been conducted by the Ministry of Defence in London. According to the military rules of engagement (entitled “Rules of Engagement for the Military Commander in Operation Flavius”) issued to Soldier F by the Ministry of Defence, the purpose of the military forces being in Gibraltar was to assist the Gibraltar police to arrest the IRA active service unit (“ASU”) should the police request such military intervention. The rules also instructed F to operate as directed by the Commissioner.
16. The rules also specified the circumstances in which the use of force by the soldiers would be permissible as follows:
“Use of force
4. You and your men will not use force unless requested to do so by the senior police officer(s) designated by the Gibraltar Police Commissioner; or unless it is necessary to do so in order to protect life. You and your men are not then to use more force than is necessary in order to protect life ?
5. You and your men may only open fire against a person if you or they have reasonable grounds for believing that he/she is currently committing, or is about to commit, an action which is likely to endanger your or their lives, or the life of any other person, and if there is no other way to prevent this.
Firing without warning
6. You and your men may fire without warning if the giving of a warning or any delay in firing could lead to death or injury to you or them or any other person, or if the giving of a warning is clearly impracticable.
Warning before firing
7. If the circumstances in paragraph 6 do not apply, a warning is necessary before firing. The warning is to be as clear as possible and is to include a direction to surrender and a clear warning that fire will be opened if the direction is not obeyed.”
B. Operational order of the Commissioner
17. The operational order of the Commissioner, which was drawn up on 5 March 1988, stated that it was suspected that a terrorist attack was planned in Gibraltar and that the target was highly probably the band and guard of the First Battalion of the Royal Anglian Regiment during a ceremonial changing of the guard at Ince’s Hall on 8 March 1988. It stated that there were “indications that the method to be used is by means of explosives, probably using a car bomb”. The intention of the operation was then stated to be “(a) to protect life; (b) to foil the attempt; (c) to arrest the offenders; (d) the securing and safe custody of the prisoners”.
18. The methods to be employed were listed as police surveillance and having sufficient personnel suitably equipped to deal with any contingency. It was also stated that the suspects were to be arrested by using minimum force, that they were to be disarmed and that evidence was to be gathered for a court trial. Annexed to the order were, inter alia, lists of attribution of police personnel, firearms rules of engagement and a guide to firearms use by police (see paragraphs 136 and 137 below).
F. Operational briefing on 5 March 1988
22. At midnight between 5 and 6 March 1988, the Commissioner held a briefing which was attended by officers from the Security Services (including from the surveillance team Witnesses H, I, J, K, L, M and N), military personnel (including Soldiers A, B, C, D, E, F and G) and members of the Gibraltar police (Officers P, Q and R and Detective Chief Inspector Ullger, Head of Special Branch, and Detective Constable Viagas). The Commissioner conducted the police aspect of the briefing, the members of the Security Services briefed on the intelligence aspects of the operation, the head of the surveillance team covered the surveillance operation and Soldier E explained the role of the military if they were called on for assistance. It then appears that the briefing split into smaller groups, E continuing to brief the soldiers under his command but in the same location. The Commissioner also explained the rules of engagement and firearms procedures and expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists.
23. The briefing by the representative of the Security Services included inter alia the following assessments: (a) the IRA intended to attack the changing of the guard ceremony in the assembly area outside Ince’s Hall on the morning of Tuesday 8 March 1988; (b) an ASU of three would be sent to carry out the attack, consisting of Daniel McCann, Sean Savage and a third member, later positively identified as Mairead Farrell. McCann had been previously convicted and sentenced to two years’ imprisonment for possession of explosives. Farrell had previously been convicted and sentenced to fourteen years’ imprisonment for causing explosions. She was known during her time in prison to have been the acknowledged leader of the IRA wing of prisoners. Savage was described as an expert bomb-maker. Photographs were shown of the three suspects; (c) the three individuals were believed to be dangerous terrorists who would almost certainly be armed and who, if confronted by security forces, would be likely to use their weapons; (d) the attack would be by way of a car bomb. It was believed that the bomb would be brought across the border in a vehicle and that it would remain hidden inside the vehicle; (e) the possibility that a “blocking” car - i.e. a car not containing a bomb but parked in the assembly area in order to reserve a space for the car containing the bomb - would be used had been considered, but was thought unlikely. This possibility was discounted, according to Senior Security Services Officer O in“his evidence to the inquest, since (1) it would involve two trips; (2) it would be unnecessary since parking spaces would be available on the night before or on a Tuesday morning; (3) there was the possibility that the blocking car would itself get blocked by careless parking. The assessment was that the ASU would drive in at the last moment on Monday night or on Tuesday morning. On the other hand Chief Inspector Lopez, who was not present at the briefing, stated that he would not have brought in a bomb on Tuesday since it would be busy and difficult to find a parking place.
1. Mode of detonation of bomb.
24. Various methods of detonation of the bomb were mentioned at the briefing: by timing device, by RCIED (radio-controlled improvised explosive device) and by command wire. This last option which required placing a bomb connected to a detonator by a wire was discounted as impracticable in the circumstances. The use of a timer was, according to O, considered highly unlikely in light of the recent IRA explosion of a bomb by timer device at Enniskillen which had resulted in a high number of civilian casualties. Use of a remote-control device was considered to be far more likely since it was safer from the point of view of the terrorist who could get away from the bomb before it exploded and was more controllable than a timer which once activated was virtually impossible to stop. 25. The recollection of the others present at the briefing differs on this point. The police witnesses remembered both a timer and a remote-control device being discussed. The Commissioner and his Deputy expected either type of device. Chief Inspector Ullger recalled specific mention of the remote-control device as being more likely. The surveillance officers also thought that an emphasis was placed on the use of a remote-control device.
26. The military witnesses in contrast appear to have been convinced that it would certainly be a remote-control device. Soldier F made no mention of a timer but stated that they were briefed that it was to be a “button job”, that is, radio-controlled so that the bomb could be detonated at the press of a button. He believed that there had been an IRA directive not to repeat the carnage of a recent bomb in Enniskillen and to keep to a minimum the loss of life to innocent civilians. It was thought that the terrorists knew that if it rained the parade would be cancelled and in that event, if a timer was used, they would be left with a bomb that would go off indiscriminately. Soldier E also stated that at the—briefing they were informed that the bomb would be initiated by a “button job”. In answer to a question by a juror, he stated that there had been discussion with the soldiers that there was more chance that they would have to shoot to kill in view of the very short time factor which a “button job” would impose.
27. Soldiers A, B, C and D stated that they were told at the briefing that the device would be radio-controlled. Soldier C said that E stressed to them that it would be a “button job”.
2. Possibility that the terrorists would detonate the bomb if confronted
30. It does not appear that there was any discussion at the briefing as to the likely size, mode of activation or range of a remote-control device that might be expected. The soldiers appear to have received information at their own briefings. Soldier F did not know the precise size a radio detonator might be, but had been told that the device would be small enough to conceal on the person. Soldier D was told that the device could come in a small size and that it could be detonated by the pressing of just one button.
31. As regards the range of the device, Soldier F said that the military were told that the equipment which the IRA had was capable of detonating a radio-controlled bomb over a distance of a mile and a half.
G. Events on 6 March 1988
6. Sighting of three suspects in the assembly area
45. At about 14.50 hours, it was reported to the operations room that the suspects McCann and Farrell had met with a second man identified as the suspect Savage and that the three were looking at a white Renault car in the car-park in the assembly area. Witness H stated that the three suspects spent some considerable time staring across to where a car had been parked, as if, in his assessment, they were studying it to make sure it was absolutely right for the effect of the bomb. DC Viagas also witnessed the three suspects meeting in the area of the car-park, stating that all three turned and stared towards where the car was parked. He gave the time as about 14.55 hours. He stated that the Security Services made identification of all three at this moment. At this moment, the possibility of effecting an arrest was considered. There were different recollections. Mr Colombo stated that he was asked whether he would hand over control to the military for the arrest but that he asked whether the suspects had been positively identified; he was told that there was 80% identification. Almost immediately the three suspects moved away from the car through the Southport Gate. He recalled that the movement of the three suspects towards the south gave rise to some discussion as to whether this indicated that the three suspects were on reconnaissance and might return for the car. It was for this reason that the decision was taken not to arrest at this point.
47. The Commissioner asked for positive identification of the three suspects. Identification was confirmed by 15.25 hours when it was reported to the operations room that the three suspects had returned to the assembly area and gone past looking at the car again. The three suspects continued north and away from the car. Soldiers E and F recalled that control was passed to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects. The confirmation of identity which the Commissioner had requested was received almost immediately.
7. Examination of the suspect car in the assembly area
48. After the three suspects’ identities had been confirmed and they had moved away from the assembly area, Soldier G examined the suspect car. He conducted an examination from the exterior without touching the car. He described it as a newish-looking white Renault. He detected nothing untoward inside the car or anything visibly out of place or concealed under the seats. He noted that the aerial of the car, which was rusty, was out of place with the age of the car. He was in the area for less than two minutes. He returned to the operations room and reported to the Commissioner that he regarded the car as a “suspect car bomb”. At the inquest, he explained that this was a term of art for a car parked in suspicious circumstances where there is every reason to believe that it is a car bomb and that it could not be said that it was not a car bomb.
49. The Commissioner recalled that G had reported that it was a suspect car bomb since there was an old aerial situated centrally of a relatively new car. He stated that as a result they treated it as a “possible car bomb”.
50. Soldier F referred to the aerial as rendering the car suspicious and stated that this information was passed on to all the parties on the ground.
51. Soldier E was more categorical and stated that as far as G could tell “from a cursory visual examination he was able to confirm our suspicion that they were dealing with a car bomb”.
52. Soldier A stated that he believed 100 per cent that there was a bomb in the debussing area, that the suspects had remote-control devices and were probably armed. This was what he had been told over the radio. Soldier C recalled that it had been confirmed by Soldier E that there was a device in Ince’s Hall area which could be detonated by one of three suspects who was more likely to be Savage because he had been seen “fiddling” with something in the car earlier. He had also been told of the indication of an old aerial on a new car. Soldier D said that it had been confirmed to him by Soldier E that there was a bomb there. To his recollection, no one told them that there was a possibility that the three suspects might not be carrying the remote-control devices with them on the Sunday or that possibly they had not brought a bomb in. He had been told by Soldier E - whom he fully trusted - that there was a bomb in the car.
53. At the inquest Soldier G was described as being the bomb-disposal adviser. He had experience of dealing with car bombs in Northern Ireland but at the inquest he stated in reply to various questions that he was neither a radio-communications expert nor an explosives expert. He had not thought of de-activating the suspect bomb by unscrewing the aerial from the car. When it was put to him in cross-examination, he agreed that to have attempted to unscrew the aerial would have been potentially dangerous.
8. Passing of control to the military for arrest
59. The evidence of Soldiers A and B at the inquest was to the following effect.
61. When Soldier A was approximately ten metres (though maybe closer) behind McCann on the inside of the pavement, McCann looked back over his left shoulder. McCann appeared to look directly at A and the smile left his face, as if he had a realisation of who A was and that he was a threat. Soldier A drew his pistol, intending to shout a warning to stop at the same time, though he was uncertain if the words actually came out. McCann’s hand moved suddenly and aggressively across the front of his body. A thought that he was going for the button to detonate the bomb and opened fire. He shot one round into McCann’s back from a distance of three metres (though maybe it may have been closer). Out of the corner of his eye, A saw a movement by Farrell. Farrell had been walking on the left of McCann on the side of the pavement next to the road. A saw her make a half turn to the right towards McCann, grabbing for her handbag which was under her left arm. A thought that she was also going for a button and shot one round into her back. He did not disagree when it was put to him that the forensic evidence suggested that he may have shot from a distance of three feet (see paragraph 111 below). Then A turned back to McCann and shot him once more in the body and twice in the head. A was not aware of B opening fire as this was happening. He fired a total of five shots.
62. Soldier B was approaching directly behind Farrell on the road side of the pavement. He was watching her. When they were three to four metres away and closing, he saw in his peripheral vision that McCann turned his head to look over his shoulder. He heard what he presumed was a shoutnfrom A which he thought was the start of the arrest process. At almost the same instant, there was firing to his right. Simultaneously, Farrell made a sharp movement to her right, drawing the bag which she had under her left arm across her body. He could not see her hands or the bag and feared that she was going for the button. He opened fire on Farrell. He deemed that McCann was in a threatening position and was unable to see his hands and switched fire to McCann. Then he turned back to Farrell and continued firing until he was certain that she was no longer a threat, namely, her hands away from her body. He fired a total of seven shots.
63. Both soldiers denied that Farrell or McCann made any attempt to surrender with their hands up in the air or that they fired at the two suspects when they were lying on the ground. At the inquest, Soldier A stated expressly that his intention had been to kill McCann “to stop him becoming a threat and detonating that bomb”.
64. The shooting took place on the pavement in front of a Shell petrol station in Winston Churchill Avenue. After the shooting, the soldiers put on berets so they would be recognised by the police. They noticed a police car, with its siren going, coming south from the sundial down the far side of Winston Churchill Avenue. A number of policemen jumped out of the car and leapt the central barrier. Soldier A still had his pistol in his hand. He put his hands up in the air and shouted “Police”. A recalled hearing shooting from behind as the police car was approaching. While neither of the soldiers was aware of the police car or siren until after the shooting, the majority of witnesses, including the police officers P, Q and R who were in the vicinity to support the soldiers in the arrest and a number of the surveillance team as well as civilian witnesses, recalled that the sound of the police siren preceded, if only by a very short time, the sound of the gunfire. Officers P and Q, who were watching from a relatively close distance, considered that Farrell and McCann reacted to the sound of the siren: Q was of the opinion that it was the siren that caused Farrell and McCann to stop and turn.
68. The shooting took place on a fine Sunday afternoon, when there were many people out on the streets and the roads were busy with traffic. The Shell garage was also overlooked by a number of apartment buildings. The shooting consequently was witnessed by a considerable number of people, including police officers involved in the operation, police officers who happened to pass the area on other duties, members of the surveillance team and a number of civilians and off-duty policemen.
69. Almost all the witnesses who gave evidence at the inquest recalled that Farrell had carried her bag under her right arm, not as stated by Soldiers A and B under her left arm. The Coroner commented in his summing-up to the jury that this might have had significance with regard to the alleged justification of the soldiers for opening fire, namely, the alleged movement of the bag across the front of her body.
70. More significantly, three witnesses, two of whom gave an interview on the controversial television documentary concerning the events “Death on the Rock”, gave evidence which suggested that McCann and Farrell had been shot while lying on the ground. They stated that they had witnessed the shooting from apartment buildings overlooking the Shell petrol station (see paragraph 125 below).
11. The shooting of Savage
77. At the inquest the evidence of Soldiers C and D was to the following effect.
78. After the three suspects had split up at the junction, Soldier D crossed the road and followed Savage who was heading towards the Landport tunnel. Savage was wearing jeans, shirt and a jacket. Soldier C was briefly held up on the other side of the road by traffic on the busy road but was catching up as D closed in on Savage. D intended to arrest by getting slightly closer, drawing his pistol and shouting “Stop. Police. Hands up”. When D was about three metres away, he felt that he needed to get closer because there were too many people about and there was a lady directly in line. Before D could get closer however, he heard gunfire to the rear. At the same time, C shouted “Stop”. Savage spun round and his arm went down towards his right hand hip area. D believed that Savage was going for a detonator. He used one hand to push the lady out of line and opened fire from about two to three metres away. D fired nine rounds at rapid rate, initially aiming into the centre of Savage’s body, with the last two at his head. Savage corkscrewed as he fell. D acknowledged that it was possible that Savage’s head was inches away from the ground as he finished firing. He kept firing until Savage was motionless on the ground and his hands were away from his body.
79. Soldier C recalled following after Savage, slightly behind D. Savage was about eight feet from the entrance to the tunnel but maybe more. C’s intention was to move forward to make arrest when he heard shots to his left rear from the direction in which Farrell and McCann had headed. Savage spun round. C shouted “Stop” and drew his pistol. Savage moved his right arm down to the area of his jacket pocket and adopted a threatening and aggressive stance. C opened fire since he feared Savage was about to detonate the bomb. He saw something bulky in Savage’s right hand pocket which he believed to be a detonator button. He was about five to six feet from Savage. He fired six times as Savage spiralled down, aiming at the mass of his body. One shot went into his neck and another into his head as he fell. C continued firing until he was sure that Savage had gone down and was no longer in a position to initiate a device.
80. At the inquest, both soldiers stated under cross-examination that once it became necessary to open fire they would continue shooting until the person was no longer a threat. C agreed that the best way to ensure this result was to kill. D stated that he was firing at Savage to kill him and that this was the way that all soldiers were trained.’Both soldiers, however, denied that they had shot Savage while he was on the ground. Soldier E (the attack commander) stated that the intention at the moment of opening fire was to kill since this was the only way to remove the threat. He added that this was the standard followed by any soldier in the army who opens fire.
81. The soldiers put on berets after the incident to identify themselves to the police.
13. Events following the shootings
93. After the shooting, the bodies of the three suspects and Farrell’s handbag were searched. No weapons or detonating devices were discovered.
94. At the Shell garage scene, the shell cases and cartridges were picked up without marking their location or otherwise recording their position. The positions of the bodies were not marked.
95. At the scene of the Savage shooting, only some of the cartridge positions were marked. No police photographs were taken of the bodies’ positions. Inspector Revagliatte had made a chalk outline of the position of Savage’s body. Within that outline, there were five strike marks, three in the area of the head.
H. Police investigation following the shootings
98. Inside Farrell’s handbag was found a key ring with two keys and a tag bearing a registration number MA9317AF. This information was passed at about 17.00 hours to the Spanish police who commenced a search for the car on the suspicion that it might contain explosives. During the night of 6 to 7 March, the Spanish police found a red Ford Fiesta with that registration number in La Linea. Inside the car were found keys for another car, registration number MA2732AJ, with a rental agreement indicating that the car had been rented at 10.00 hours on 6 March by Katharine Smith, the name on the passport carried in Farrell’s handbag.
99. At about 18.00 hours on 8 March, a Ford Fiesta car with registration number MA2732AJ was discovered in a basement car-park in Marbella. It was opened by theMalaga bomb-disposal squad and found to contain an explosive device in the boot concealed in the spare-wheel compartment. The device consisted of five packages of Semtex explosive (altogether 64 kg) to which were attached four detonators and around which were packed 200 rounds of ammunition. There were two timers marked 10 hrs 45 mins and 11 hrs 15 mins respectively. The device was not primed or connected.
1. Pathologists’ evidence at the inquest
107. Evidence was given by Professor Watson, the pathologist who had conducted the post-mortem on the deceased on 7 March 1988 and also by Professor Pounder called on behalf of the applicants (see paragraph 102 above).
108. Concerning Farrell, it was found that she had been shot three times in the back, from a distance of some three feet according to Professor Pounder. She had five wounds to the head and neck. The facial injuries suggested that either the entire body or at least the upper part of the body was turned towards the shooter. A reasonable scenario consistent with the wounds was that she received the shots to the face while facing the shooter, then fell away and received the shots to the back. Professor Watson agreed that the upward trajectory of the bullets that hit Farrell indicated that she was going down or was down when she received them. Altogether she had been shot eight times.
109. Concerning McCann, he had been shot in the back twice and had three wounds in the head. The wound on the top of the head suggested that the chest wounds came before the head wound and that he was down or very far down when it was inflicted. The shots to the body were at about a 45-degree angle. He had been hit by five bullets.
110. Concerning Savage, he had been hit by sixteen bullets. He had seven wounds to the head and neck, five on the front of the chest, five on the back of the chest, one on the top of each shoulder, three in the abdomen, two in the left leg, two in the right arm and two on the left hand. The position of the entry wounds suggested that some of the wounds were received facing the shooter. But the wounds in the chest had entered at the back of the chest. Professor Watson agreed that Savage was “riddled with bullets” and that “it was like a frenzied attack”. He agreed that it would be reasonable to suppose from the strike marks on the pavement that bullets were fired into Savage’s head as he lay on the ground. Professor Pounder also agreed that the evidence from strike marks on the ground and the angle and state of wounds indicated that Savage was struck by bullets when lying on his back on the ground by a person shooting standing towards his feet. He insisted under examination by counsel for the soldiers that the three strike marks on the ground within the chalk outline corresponded with wounds to the head. In his view “those wounds must have been inflicted when either the head was on the ground or very close to the ground indeed” and when pressed “within inches of the ground”.
FINAL SUBMISSIONS TO THE COURT
143. The Government submitted that the deprivations of life to which the applications relate were justified under Article 2 para. 2 (a) (art. 2-2-a) as resulting from the use of force which was no more than absolutely necessary in defence of the people of Gibraltar from unlawful violence and the Court was invited to find that the facts disclosed no breach of Article 2 (art. 2) of the Convention in respect of any of the three deceased.
144. The applicants submitted that the Government have not shown beyond reasonable doubt that the planning and execution of the operation was in accordance with Article 2 para. 2 (art. 2-2) of the Convention. Accordingly, the killings were not absolutely necessary within the meaning of this provision (art. 2-2).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 (art. 2) OF THE CONVENTION
145. The applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage by members of the security forces constituted a violation of Article 2 (art. 2) [?]
A. Interpretation of Article 2 (art. 2)
1. General approach
146. The Court’s approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87, and the Loizidou v. Turkey (Preliminary Objections) judgment of 23 March 1995, Series A no. 310, p. 27, para. 72).
147. It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15.3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe (see the above-mentioned Soering judgment, p. 34, para. 88). As such, its provisions must be strictly construed.
148. The Court considers that the exceptions delineated in paragraph 2 (art. 2.2) indicate that this provision (art. 2.2) extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2 (art. 2), read as a whole, demonstrates that paragraph 2 (art. 2.2) does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (art. 2.2-a, art. 2.2-b, art. 2.2-c) (see application no. 10044/82, Stewart v. the United Kingdom, 10 July 1984, Decisions and Reports 39, pp. 169-71).
149. In this respect the use of the term “absolutely necessary” in Article 2 para. 2 (art. 2.2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 (art. 8.2, art. 9.2, art. 10.2, art. 11.2) of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (art. 2.2-a-b-c).
150. In keeping with the importance of this provision (art. 2) in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.
2. The obligation to protect life in Article 2 para. 1 (art. 2.1)
(a) Compatibility of national law and practice with Article 2 (art. 2) standards
151. The applicants submitted under this head that Article 2 para. 1 (art. 2.1) of the Convention imposed a positive duty on States to “protect” life. In particular, the national law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State. The State must also give appropriate training, instructions and briefing to its soldiers and other agents who may use force and exercise strict control over any operations which may involve the use of lethal force. In their view, the relevant domestic law was vague and general and did not encompass the Article 2 (art. 2) standard of absolute necessity. This in itself constituted a violation of Article 2 para. 1 (art. 2.1). There was also a violation of this provision (art. 2.1) in that the law did not require that the agents of the State be trained in accordance with the strict standards of Article 2 para. 1 (art. 2.1).
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. Germanyjudgment 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 the State through an independent judicial process to which relatives must have full access. Together with the amici curiae, Amnesty International and British-Irish Rights Watch and Others, they submitted that this procedural requirement had not been satisfied by the inquest procedure because of a combination of shortcomings. In particular, they complained that no independent police investigation took place of any aspect of the operation leading to the shootings; that normal scene-of-crime procedures were not followed; that not all eyewitnesses were traced or interviewed by the police; that the Coroner sat with a jury which was drawn from a “garrison” town with close ties to the military; that the Coroner refused to allow the jury to be screened to exclude members who were Crown servants; that the public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation. They further contended that they did not enjoy equality of representation with the Crown in the course of the inquest proceedings and were thus severely handicapped in their efforts to find the truth since, inter alia, they had had no legal aid and were only represented by two lawyers; witness statements had been made available in advance to the Crown and to the lawyers representing the police and the soldiers but, with the exception of ballistic and pathology reports, not to their lawyers; they did not have the necessary resources to pay for copies of the daily transcript of the proceedings which amounted to §500-§700.
158. The Government submitted that the inquest was an effective, independent and public review mechanism which more than satisfied any procedural requirement which might be read into Article 2 para. 1 (art. 2.1) of the Convention. In particular, they maintained that it would not be appropriate for the Court to seek to identify a single set of standards by which all investigations into the circumstances of death should be assessed. Moreover, it was important to distinguish between such an investigation and civil proceedings brought to seek a remedy for an alleged violation of the right to life. Finally, they invited the Court to reject the contention by the intervenors British-Irish Rights Watch and Others that a violation of Article 2 para. 1 (art. 2.1) will have occurred whenever the Court finds serious differences between the UN Principles on Extra-Legal Executions and the investigation conducted into any particular death (see paragraph 140 above).
161. The Court confines itself to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with the State’s general duty under Article 1 (art. 2.1) of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.
162. However, it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented and which involved the hearing of seventy-nine witnesses, did in fact take place. Moreover, the proceedings lasted nineteen days and, as is evident from the inquest’s voluminous transcript, involved a detailed review of the events surrounding the killings. Furthermore, it appears from the transcript, including the Coroner’s summing-up to the jury, that the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings.
163. In light of the above, the Court does not consider that the alleged various shortcomings in the inquest proceedings, to which reference has been made by both the applicants and the intervenors, substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings.
164. It follows that there has been no breach of Article 2 para. 1 (art. 2.1) of the Convention on this ground.
B. Application of Article 2 (art. 2) to the facts of the case
1. General approach to the evaluation of the evidence
165. While accepting that the Convention institutions are not in any formal sense bound by the decisions of the inquest jury, the Government submitted that the verdicts were of central importance to any subsequent examination of the deaths of the deceased. Accordingly, the Court should give substantial weight to the verdicts of the jury in the absence of any indication that those verdicts were perverse or ones which no reasonable tribunal of fact could have reached. In this connection, the jury was uniquely well placed to assess the circumstances surrounding the shootings. The members of the jury heard and saw each of the seventy-nine witnesses giving evidence, including extensive cross-examination. With that benefit they were able to assess the credibility and probative value of the witnesses’ testimony. The Government pointed out that the jury also heard the submissions of the various parties, including those of the lawyers representing the deceased.
168. The Court recalls that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28.1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area. The Court is not, however, bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, and the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).
169. In the present case neither the Government nor the applicants have, in the proceedings before the Court, sought to contest the facts as they have been found by the Commission although they differ fundamentally as to the conclusions to be drawn from them under Article 2 (art. 2) of the Convention. Having regard to the submissions of those appearing before the Court and to the inquest proceedings, the Court takes the Commission’s establishment of the facts and findings on the points summarised in paragraphs 13 to 132 above to be an accurate and reliable account of the facts underlying the present case.
173. The Court, in determining whether there has been a breach of Article 2 (art. 2) in the present case, is not assessing the criminal responsibility of those directly or indirectly concerned. In accordance with its usual practice therefore it will assess the issues in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 160, and the above-mentioned Cruz Varas and Others judgment, p. 29, para. 75).
2. Applicants’ allegation that the killings were premeditated.
179. The Court observes that it would need to have convincing evidence before it could conclude that there was a premeditated plan, in the sense developed by the applicants.
180. In the light of its own examination of the material before it, the Court does not find it established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that Soldiers A, B, C and D had been so encouraged or instructed by the superior officers who had briefed them prior to the operation, or indeed that they had decided on their own initiative to kill the suspects irrespective of the existence of any justification for the use of lethal force and in disobedience to the arrest instructions they had received. Nor is there evidence that there was an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects.
181. The factors relied on by the applicants amount to a series of conjectures that the authorities must have known that there was no bomb in the car. However, having regard to the intelligence information that they had received, to the known profiles of the three terrorists, all of whom had a background in explosives, and the fact that Mr Savage was seen to “fiddle” with something before leaving the car (see paragraph 38 above), the belief that the car contained a bomb cannot be described as either implausible or wholly lacking in foundation.
182. In particular, the decision to admit them to Gibraltar, however open to criticism given the risks that it entailed, was in accordance with the arrest policy formulated by the Advisory Group that no effort should be made to apprehend them until all three were present in Gibraltar and there was sufficient evidence of a bombing mission to secure their convictions (see paragraph 37 above).
183. Nor can the Court accept the applicants’ contention that the use of the SAS, in itself, amounted to evidence that the killing of the suspects was intended. In this respect it notes that the SAS is a special unit which has received specialist training in combating terrorism. It was only natural, therefore, that in light of the advance warning that the authorities received of an impending terrorist attack they would resort to the skill and experience of the SAS in order to deal with the threat in the safest and most informed manner possible.
184. The Court therefore rejects as unsubstantiated the applicants’ allegations that the killing of the three suspects was premeditated or the product of a tacit agreement amongst those involved in the operation.
3. Conduct and planning of the operation
(b) The Court’s assessment
(1) Preliminary considerations
192. In carrying out its examination under Article 2 (art. 2) of the Convention, the Court must bear in mind that the information that the United Kingdom authorities received that there would be a terrorist attack in Gibraltar presented them with a fundamental dilemma. On the one hand, they were required to have regard to their duty to protect the lives of the people in Gibraltar including their own military personnel and, on the other, to have minimum resort to the use of lethal force against those suspected of posing this threat in the light of the obligations flowing from both domestic and international law.
193. Several other factors must also be taken into consideration. In the first place, the authorities were confronted by an active service unit of the IRA composed of persons who had been convicted of bombing offences and a known explosives expert. The IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses.
194. Against this background, in determining whether the force used was compatible with Article 2 (art. 2), the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The Court will consider each of these points in turn.
(2) Actions of the soldiers
195. It is recalled that the soldiers who carried out the shooting (A, B, C and D) were informed by their superiors, in essence, that there was a car bomb in place which could be detonated by any of the three suspects by means of a radio-control device which might have been concealed on their persons; that the device could be activated by pressing a button; that they would be likely to detonate the bomb if challenged, thereby causing heavy loss of life and serious injuries, and were also likely to be armed and to resist arrest (see paragraphs 23, 24-27, and 28-31 above).
196. As regards the shooting of Mr McCann and Ms Farrell, the Court recalls the Commission’s finding that they were shot at close range after making what appeared to Soldiers A and B to be threatening movements with their hands as if they were going to detonate the bomb (see paragraph 132 above). The evidence indicated that they were shot as they fell to the ground but not as they lay on the ground (see paragraphs 59-67 above). Four witnesses recalled hearing a warning shout (see paragraph 75 above). Officer P corroborated the soldiers’ evidence as to the hand movements (see paragraph 76 above). Officer Q and Police Constable Parody also confirmed that Ms Farrell had made a sudden, suspicious move towards her handbag (ibid.).
197. As regards the shooting of Mr Savage, the evidence revealed that there was only a matter of seconds between the shooting at the Shell garage (McCann and Farrell) and the shooting at Landport tunnel (Savage). The Commission found that it was unlikely that Soldiers C and D witnessed the first shooting before pursuing Mr Savage who had turned around after being alerted by either the police siren or the shooting (see paragraph 132 above). Soldier C opened fire because Mr Savage moved his right arm to the area of his jacket pocket, thereby giving rise to the fear that he was about to detonate the bomb. In addition, Soldier C had seen something bulky in his pocket which he believed to be a detonating transmitter. Soldier D also opened fire believing that the suspect was trying to detonate the supposed bomb. The soldiers’ version of events was corroborated in some respects by Witnesses H and J, who saw Mr Savage spin round to face the soldiers in apparent response to the police siren or the first shooting (see paragraphs 83 and 85 above). The Commission found that Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he had hit the ground (see paragraph 132 above). This conclusion was supported by the pathologists’ evidence at the inquest (see paragraph 110 above).
198. It was subsequently discovered that the suspects were unarmed, that they did not have a detonator device on their persons and that there was no bomb in the car (see paragraphs 93 and 96 above).
199. All four soldiers admitted that they shot to kill. They considered that it was necessary to continue to fire at the suspects until they were rendered physically incapable of detonating a device (see paragraphs 61, 63, 80 and 120 above). According to the pathologists’ evidence Ms Farrell was hit by eight bullets, Mr McCann by five and Mr Savage by sixteen (see paragraphs 108-10 above).
200. The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life (see paragraph 195 above). The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. It considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 (art. 2.2) of the Convention may be justified under this provision (art. 2.2) where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision (art. 2.2).
201. The question arises, however, whether the anti-terrorist operation as a whole was controlled and organised in a manner which respected the requirements of Article 2 (art. 2) and whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adequately into consideration the right to life of the three suspects. (3) Control and organisation of the operation
202. The Court first observes that, as appears from the operational order of the Commissioner, it had been the intention of the authorities to arrest the suspects at an appropriate stage. Indeed, evidence was given at the inquest that arrest procedures had been practised by the soldiers before 6 March and that efforts had been made to find a suitable place in Gibraltar to detain the suspects after their arrest (see paragraphs 18 and 55 above).
203. It may be questioned why the three suspects were not arrested at the border immediately on their arrival in Gibraltar and why, as emerged from the evidence given by Inspector Ullger, the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists’ intentions it would certainly have been possible for the authorities to have mounted an arrest operation. Although surprised at the early arrival of the three suspects, they had a surveillance team at the border and an arrest group nearby (see paragraph 34 above). In addition, the Security Services and the Spanish authorities had photographs of the three suspects, knew their names as well as their aliases and would have known what passports to look for (see paragraph 33 above).
204. On this issue, the Government submitted that at that moment there might not have been sufficient evidence to warrant the detention and trial of the suspects. Moreover, to release them, having alerted them to the authorities’ state of awareness but leaving them or others free to try again, would obviously increase the risks. Nor could the authorities be sure that those three were the only terrorists they had to deal with or of the manner in which it was proposed to carry out the bombing.
205. The Court confines itself to observing in this respect that the danger to the population of Gibraltar - which is at the heart of the Government’s submissions in this case - in not preventing their entry must be considered to outweigh the possible consequences of having insufficient evidence to warrant their detention and trial. In its view, either the authorities knew that there was no bomb in the car - which the Court has already discounted (see paragraph 181 above) - or there was a serious miscalculation by those responsible for controlling the operation. As a result, the scene was set in which the fatal shooting, given the intelligence assessments which had been made, was a foreseeable possibility if not a likelihood. The decision not to stop the three terrorists from entering Gibraltar is thus a relevant factor to take into account under this head.
206. The Court notes that at the briefing on 5 March attended by Soldiers A, B, C, and D it was considered likely that the attack would be by way of a large car bomb. A number of key assessments were made. In particular, it was thought that the terrorists would not use a blocking car; that the bomb would be detonated by a radio-control device; that the detonation could be effected by the pressing of a button; that it was likely that the suspects would detonate the bomb if challenged; that they would be armed and would be likely to use their arms if confronted (see paragraphs 23-31 above).
210. In the absence of sufficient allowances being made for alternative possibilities, and the definite reporting of the existence of a car bomb which, according to the assessments that had been made, could be detonated at the press of a button, a series of working hypotheses were conveyed to Soldiers A, B, C and D as certainties, thereby making the use of lethal force almost unavoidable.
211. However, the failure to make provision for a margin of error must also be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the Coroner in his summing-up to the jury at the inquest, all four soldiers shot to kill the suspects (see paragraphs 61, 63, 80 and 120 above). Soldier E testified that it had been discussed with the soldiers that there was an increased chance that they would have to shoot to kill since there would be less time where there was a “button” device (see paragraph 26 above). Against this background, the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill.
212. Although detailed investigation at the inquest into the training received by the soldiers was prevented by the public interest certificates which had been issued (see paragraph 104, at point 1. (iii) above), it is not clear whether they had been trained or instructed to assess whether the use of firearms to wound their targets may have been warranted by the specific circumstances that confronted them at the moment of arrest. Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement (see paragraphs 136 and 137 above). This failure by the authorities also suggests a lack of appropriate care in the control and organisation of the arrest operation.
213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention.
214. Accordingly, the Court finds that there has been a breach of Article 2 (art. 2) of the Convention.
In this case many of the assumptions held by the security forces which led to the death of the victims proved to be wrong. According to the European Court, the obligation to respect the right to life requires the authorities to exercise the greatest care in planning an anti-terrorist attack. In this case, the exception of Article 2(2) ECHR was not applicable. The killings of the three IRA members constituted a use of force which was not ‘absolutely necessary’ for the defence of persons from unlawful violence. In the light of all operational measures taken by different states in order to counter possible terrorist threats, the decision of the European Court indicates that there are certain minimum requirements with which states must comply when planning and conducting security operations which involve the use of force or firearms. It is clear from this decision that authorities must carry out and control such operations in a manner which minimises, to the greatest extent possibl, any risk to life. States are, inter alia, required to take into account different contingencies in planning, to adopt provisions for a margin of error, to consider sufficient alternative possibilities and to establish procedures to review the lawfulness of the use of force in specific cases.
In the following case Pearce Jordan was shot and killed in Belfast by an officer of the Royal Ulster Constabulary (the RUC). The official statement issued to the media indicated that an RUC unit had pursued a car and brought it to a halt. On stopping the car, the officers had fired several shots at the driver, fatally wounding him a short distance from where he had abandoned the car. His mother, the applicant in this case, submitted that the death of her son was the result of the unnecessary and disproportionate use of force by an RUC officer and that her son was the victim of a shoot-to-kill policy operated by the United Kingdom Government in Northern Ireland.
European Court of Human Rights
Application No. 24746/94
Judgement of 4 May 2001
Keywords: life - positive obligations - use of force, proportionality - non-derogable rights and freedoms
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
94. The applicant submitted that his son Pearce Jordan had been unjustifiably killed and that there had been no effective investigation into the circumstances of his death. [?]
A. The submissions made to the Court
1. The applicant
95. The applicant submitted that the death of his son was the result of the unnecessary and disproportionate use of force by an RUC officer and that his son was the victim of a shoot-to-kill policy operated by the United Kingdom Government in Northern Ireland. He referred, inter alia, to reports by Amnesty International and the Human Rights Watch, as well as the statements made by Mr John Stalker, a senior policeman, who carried out an investigation into allegations of such a policy. He argued that this case could not be looked at in isolation from the other cases in Northern Ireland involving the use of lethal force by State agents. In this context, it could be seen on analysis of the lethal force deaths between 1969 and 1994 that there was at the material time a practice whereby suspects were arbitrarily killed rather than arrested. He pointed to the common features of preplanning based on intelligence from informers, the deployment of specialist military or police units and the maximal use of force. In this case, Sergeant A had no evidence that Pearse Jordan was armed, and directed fire at the trunk of the body, making no attempt to wound or take evasive action in ducking behind his armoured car to protect himself. This could not be regarded as the use of minimum or proportionate force. The inadequate investigations into this and other cases were also evidence of official tolerance on the part of the State of the use of unlawful lethal force. Here, the police officer involved in the shooting was allowed to leave the scene with his weapons, a car involved in the incident had been moved from the scene and no adequate steps were taken to find independent eye witnesses, while witnesses who did come forward were subject to abuse and harassment.
96. The applicant submitted that while there were a few outstanding issues of fact, e.g. whether Sergeant A issued a warning, and whether and in what manner the deceased changed direction as he ran away, these elements were relevant only to issues of individual criminal responsibility and did not prevent the Court reaching its own conclusions under Article 2 of the Convention. To the extent that the Court felt there were any issues to resolve, it should of its own motion obtain the necessary material by an investigation under Article 38§ 1 a) of the Convention.
97. The applicant further submitted that there had been no effective official investigation carried out into the killing, relying on the international standards set out in the Minnesota Protocol. He argued that the RUC investigation was inadequate and flawed by its lack of independence and lack of publicity. The DPP’s own role was limited by the RUC investigation and he did not make public his reasons for not prosecuting. The inquest was flawed by the delays, the limited scope of the enquiry, a lack of legal aid for relatives, a lack of access to documents and witness statements, the non-compellability of security force or police witnesses and the use of public interest immunity certificates. The Government could not rely on civil proceedings either as this depended on the initiative of the deceased’s family.
2. The Government
98. While the Government did not accept the applicant’s claims under Article 2 that his son was killed by any excessive or unjustified use of force, they considered that it would be wholly inappropriate for the Court to seek itself to determine the issues of fact arising on the substantive issues of Article 2. This might involve the Court seeking to resolve issues, and perhaps examining witnesses and conducting hearings, at the same time as the High Court in Northern Ireland, with a real risk of inconsistent findings. It would also allow the applicant to forum-shop and would thus undermine the principle of exhaustion of domestic remedies. They submitted that there were in any event considerable practical difficulties for the Court to pursue an examination of the substantive aspects of Article 2 as the factual issues would be numerous and complex, involving live evidence with a substantial number of witnesses. This primary fact finding exercise should not be performed twice, in parallel, such an undertaking wasting court time and costs and giving rise to a real risk of prejudice in having to defend two sets of proceedings simultaneously.
99. Insofar as the applicant invited the Court to find a practice of killing rather than arresting terrorist suspects, this allegation wasemphatically denied. The Government submitted that such a wide ranging allegation calling into question every anti-terrorist operation over the last thirty years went far beyond the scope of this application and referred to matters not before this Court. They denied that there had been any obstruction to the police investigation in this case, pointing out that the removal of the car from the scene was consistent with legitimate security concerns (i.e. the team being sent to Arizona Street where the presence of a bomb was suspected). They denied that there had been any intimidation or abuse of witnesses.
100. The Government further denied that domestic law in any way failed to comply with the requirements of this provision. They argued that the procedural aspect of Article 2 was satisfied by the combination of procedures available in Northern Ireland, namely, the police investigation, which was supervised by the ICPC and by the DPP, the inquest proceedings and civil proceedings. These secured the fundamental purpose of the procedural obligation, in that they provided for effective accountability for the use of lethal force by State agents. This did not require that a criminal prosecution be brought but that the investigation was capable of leading to a prosecution, which was the case in this application. They also pointed out that each case had to be judged on its facts since the effectiveness of any procedural ingredient may vary with the circumstances. In the present case, they submitted that the available procedures together provided the necessary effectiveness, independence and transparency by way of safeguards against abuse. [?]
B. The Court’s assessment
1. General principles
102. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46,§ 146-147).
103. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC] no. 21986/93, ECHR 2000-VII,§ 100, and also Çakici v. Turkey [GC] ECHR 1999-IV,§ 85, Ertak v. Turkey no. 20764/92 [Section 1] ECHR 2000-V,§ 32 and Timurtas v. Turkey , no. 23531/94 [Section 1] ECHR 2000-VI,§ 82).
104. The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor however to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (the McCann judgment, cited above,§ 148-149).
105. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see,mutatis mutandis, the McCann judgment cited above, p. 49,§ 161, and the Kaya v. Turkey judgment of 19 February 1998,Reports of Judgments and Decisions1998-I, p. 324,§ 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v. Turkey [GC] no. 22277/93, ECHR 2000-VII,§ 63).
106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see e.g. the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV,§ 81-82; Ögur v. Turkey, [GC] no. 21954/93, ECHR 1999-III,§ 91-92). This means not only a lack of hierarchical or institutional connection but also a practical independence (see for example the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV,§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).
107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (e.g. the Kaya v. Turkey judgment, cited above, p. 324,§ 87) and to the identification and punishment of those responsible (Ögur v. Turkey, cited above,§ 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see concerning autopsies, e.g.Salman v. Turkey cited above,§ 106; concerning witnesses e.g. Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV,§ 109; concerning forensic evidence e.g.‘Gül v. Turkey, 22676/93, [Section 4],§ 89). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
108. A requirement of promptness and reasonable expedition is implicit in this context (see the Yasa v. Turkey judgment of 2 September 1998, Reports 1998-IV, pp. 2439-2440,§ 102-104; Cakici v. Turkey cited above,§ 80, 87 and 106; Tanrikulu v. Turkey, cited above,§ 109; Mahmut Kaya v. Turkey, no. 22535/93, [Section I] ECHR 2000-III,§ 106-107). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
109. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v. Turkey, cited above, p. 1733,§ 82, where the father of the victim was not informed of the decisions not to prosecute; Ögur v. Turkey, cited above,§ 92, where the family of the victim had no access to the investigation and court documents; Gül v. Turkey judgment, cited above,§ 93).
2. Application in the present case
a. Concerning alleged responsibility of the State for the death of PearceJordan
110. It is undisputed that Pearse Jordan was shot and killed by a police officer while he was unarmed. This use of lethal force falls squarely within the ambit of Article 2, which requires any such action to pursue one of the purposes set out in second paragraph and to be no more than absolutely necessary for that purpose. A number of key factual issues arise in this case, in particular whether Sergeant A acted on the basis of an honest belief perceived for good reasons to be valid at the time but which turned out subsequently to be mistaken, namely, that he or any other police officer was at risk from Pearse Jordan in the circumstances of the case (see McCann and Others judgment, cited above, p. 58-59,§ 200). Determining this issue would involve inter alia an assessment of whether Sergeant A’s view was blocked by any vehicle as alleged, whether Sergeant A gave a warning shout, whether Pearse Jordan was facing him or whether in fact his back was already turned at the moment when Sergeant A decided to open fire. The evidence of the police officers at the scene are on a number of these points in direct conflict with statements given by civilian eye witnesses (see paragraphs 16 and 19-21 above). Assessment of the credibility and reliability of the various witnesses would play a crucial role.
112. In the present case, the Court does not consider that there are any elements established which would deprive the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of Pearse Jordan’s death (see further below concerning the applicant’s allegations about the defects in the police investigation, paragraphs 118-121).
113. Nor is the Court persuaded that it is appropriate to rely on the documentary material provided by the parties to reach any conclusions as to responsibility for the death of the applicant’s son. The written accounts provided have not been tested in examination or cross-examination and would provide an incomplete”and potentially misleading basis for any such attempt. The situation cannot be equated to a death in custody where the burden may be regarded as resting on the State to provide a satisfactory and plausible explanation.
114. The Court is also not prepared to conduct, on the basis largely of statistical information and selective evidence, an analysis of incidents over the past thirty years with a view to establishing whether they disclose a practice by security forces of using disproportionate force. This would go far beyond the scope of the present application.
115. Conversely, as regards the Government’s argument that the availability of civil proceedings provided the applicant with a remedy which he has yet to exhaust as regards Article 35§ 1 of the Convention and, therefore, that no further examination of the case is required under the Article 2, the Court recalls that the obligations of the State under Article 2 cannot be satisfied merely by awarding damages (see e.g. the Kaya v. Turkey judgment cited above, p. 329,§ 105; the Yasa v. Turkey judgment cited above, p. 2431,§ 74). The investigations required under Articles 2 and 13 of the Convention must be able to lead to the identification and punishment of those responsible. The Court therefore examines below whether there has been compliance with this procedural aspect of Article 2 of the Convention.
b. Concerning the procedural obligation under Article 2 of the Convention
116. Following the death of Pearse Jordan, an investigation was commenced by the RUC. On the basis of that investigation, there was a decision by the DPP not to prosecute any officer. An inquest was opened on 4 January 1995 and is still pending.
117. The applicant has made numerous complaints about these procedures, while the Government have contended that even if one part of the procedure failed to provide a particular safeguard, taken as a whole, the system ensured the requisite accountability of the police for any unlawful act.
142. The Court finds that the proceedings for investigating the use of lethal force by the police officer have been shown in this case to disclose the following shortcomings:
– a lack of independence of the police officers investigating the incident from the officers implicated in the incident;
– a lack of public scrutiny, and information to the victim’s family, of the reasons for the decision of the DPP not to prosecute any police officer;
– the police officer who shot Pearse Jordan could not be required to attend the inquest as a witness;
– the inquest procedure did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed;
– the absence of legal aid for the representation of the victim’s family and non-disclosure of witness statements prior to their appearance at the inquest prejudiced the ability of the applicant to participate in the inquest and contributed to long adjournments in the proceedings;
– the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.
143. It is not for this Court to specify in any detail which procedures the authorities should adopt in providing for the proper examination of the circumstances of a killing by State agents. While reference has been made for example to the Scottish model of enquiry conducted by a judge of criminal jurisdiction, there is no reason to assume that this may be the only method available. Nor can it be said that there should be one unified procedure providing for all requirements. If the aims of fact finding, criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the Court considers that the requirements of Article 2 may nonetheless be satisfied if, while seeking to take into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner. In the present case, the available procedures have not struck the right balance.
144. The Court would observe that the shortcomings in transparency and effectiveness identified above run counter to the purpose identified by the domestic courts of allaying suspicions and rumours. Proper procedures for ensuring the accountability of agents of the State are indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of lethal force. Lack of such procedures will only add fuel to fears of sinister motivations, as is illustrated inter alia by the submissions made by the applicant concerning the alleged shoot-to-kill policy.
145. The Court finds that there has been a failure to comply with the procedural obligation imposed by Article 2 of the Convention and that there has been, in this respect, a violation of that provision.
In this case, the Court stressed that when law enforcement officials are permitted to use force, the force used must not be more than that ‘absolutely necessary’ and must be strictly proportionate to the achievement of permitted aims. This ruling was extremely relevant as this case was one in a sequence of similar incidents that occurred in Northern Ireland where the police seem to have decided to ‘shoot to kill’ (see, McKerr v. The United Kingdom (Application No. 28883/95);Kelly et al. v. The United Kingdom (Application No. 30054/96) and Shanaghan v. The United Kingdom (Application No. 37715/97). Nonetheless, in this case the Court decided not to examine if the incidents disclosed a specific practice of the security forces.
More recently, the European Court considered, in Nachova et al. v. Bulgaria (Application Nos. 43577/98 and 43579/98, Judgement of 26 February 2004), that striking a balance between the imperative need to preserve life as a fundamental value and the legitimate aim of effecting a lawful arrest, cannot justify putting human life at risk when the fugitive has committed a non-violent offence and does not pose a threat to anyone. According to the Court, any other approach would be incompatible with the basic principles of democratic societies, as universally accepted today (for further analysis, see the right to equality and non-discrimination, Prohibited Grounds of Discrimination ).
Finally, it is important to note that this judgement the Court set out the requirements of an ‘effective investigation’ analysed below.
Selected additional cases: I/A Court H.R.:Velásquez Rodríguezv. Honduras (see above) and Fairén Garbi and Solís Corralesv. Honduras , Judgement of 15 March, 1989, Series C No. 6. ECHR: Nachova et al. v. Bulgaria, Application Nos. 43577/98 and 43579/98, Judgement of 26 February 2004 (see below); Finucanev. The United Kingdom , Application No. 29178/95, Judgement of 1 July 2003; McKerr v. The United Kingdom, Application No. 28883/95; Judgement of 4 May 2001, Kelly et al. v. The United Kingdom, Application No. 30054/96, Judgement of 4 May 2001 and Shanaghan v. The United Kingdom, Application No. 37715/97, Judgement of 4 May 2001.
Duty to carry out an effective official investigation when individuals have been killed or ‘disappeared’
As has been noted above, respecting the right to life, in conjunction with the general duties to ‘ensure’ (Article 1(1) ACHR and Article 2(1)ICCPR ) or ‘to secure’ in the case of the ECHR (Article 1 ECHR), requires states to carry out an ‘effective’ official investigation by an appropriate and impartial body a) when individuals have been killed as a result of the use of force and b) when there is a case of ‘disappearance’ in circumstances that may involve a violation of the right to life. The European Court tends to call these obligations the ‘State’s procedural obligations to protect the right to life’ because they refer to the way in which the state must ‘proceed’ after a deprivation of life has occurred under its jurisdiction or after someone has disappeared.
In the following case the applicant alleged that his brother, Mr. Abdülmenaf Kaya, had been deliberately killed by the Turkish security forces. The body of the brother was found in some bushes on the bank of a creek, covered with bullet entry and exit holes. The state contended that Mr. Kaya was killed in a gun battle between members of the security forces and a group of terrorists who had engaged the security forces on the day in question. It was claimed that the applicant’s brother was among the assailants. During the proceedings, it was not proved beyond reasonable doubt that Mr. Kaya was deliberately killed by soldiers in the circumstances alleged by the applicant.
European Court of Human Rights
Application Nos. 158/1996/777/978
Judgement of 19 February 1998
Keywords: life - inhuman treatment - degrading treatment - positive obligations - duty to investigate
I. THE CIRCUMSTANCES OF THE CASE
A. Events preceding the disappearance of Hasan Kaya and Metin Can
8. Dr Hasan Kaya, the applicant’s brother, practised medicine in south-east Turkey. From November 1990 to May 1992, he had worked in Sirnak. He had treated demonstrators injured in clashes with the security forces during the Nevroz (Kurdish New Year) celebrations. Following this, he was transferred from Sirnak to Elazig. He had told Fatma Can, the wife of his friend Metin Can, that he had been threatened in Sirnak and put under considerable pressure.
9. In Elazig, Hasan Kaya worked in a health centre. He met often with his friend Metin Can, who was a lawyer and President of the Elazig Human Rights Association (HRA). Metin Can had been representing persons suspected of being members of the PKK (Workers’ Party of Kurdistan). He had told his wife Fatma Can that he had received threats and that an official had warned him that steps had been planned against him. According to Serafettin Özcan, who worked at the HRA, Metin Can had also been subjected to threats because of the attempts he had made to improve conditions in Elazig Prison. The police had carried out a search at the Elazig HRA, as they had at other HRA offices in the south-east.
10. In December 1992 Bira Zordag, who had lived in Elazig until October 1992, was taken into—detention by police officers in Adana and transferred to Elazig, where he was interrogated to find out what he knew about the PKK. He was asked whether two doctors in Elazig, one of whom was Hasan Kaya, had been treating wounded members of the PKK. A threat was made that Hasan Kaya would be punished. He was also asked about lawyers, particularly Metin Can. On his release, Bira Zordag visited the Elazig HRA and told Serafettin Özcan and Metin Can what had occurred.
11. At Christmas 1992 Hasan Kaya told the applicant that he felt that his life was in danger. He believed that the police were making reports on him and keeping him under surveillance. At around the same time, Metin Can told the applicant that his flat had been searched while he was out and that he thought he was under surveillance.
12. On or about 20 February 1993, two men came to the block of flats where Metin Can lived. They rang the doorbells of Süleyman Tursum and Ahmet Oygen, asking for Metin Can. When Metin and Fatma Can got home later that night, they received a telephone call. The callers said that they had been to the flat earlier and wanted to come and see Metin Can immediately. Metin Can told them to come to his office the next day.
13. On 21 February 1993, after receiving a phone call at his office, Metin Can met two men in a coffee house. Serafettin Özcan was also present. The men said that there was a wounded member of the PKK hidden outside town. Metin Can took the men back to his flat and called Hasan Kaya on the telephone. Hasan Kaya arrived at the flat. It was arranged that the two men would take the wounded man to Yazikonak, a village outside Elazig, and that they would call when they were ready. The two men left. At about 7 p.m., there was a phone call. Metin Can left with Hasan Kaya, who was carrying his medical bag. Metin Can told his wife that they would not be long. They drove off in the car of Hasan Kaya’s brother.
14. Metin Can and Hasan Kaya did not return that night. At about 12 noon or 1 p.m. on22 February 1993, Fatma Can received a phone call. The speaker sounded like one of the men who had come to the flat. He said that Metin and his friend had been killed. Fatma Can and Serafettin Özcan went to the Security Directorate to report that Metin Can and Hasan Kaya were missing. Neither told the police about the meeting of Metin Can with the two men or the details of events preceding the disappearance. Nor did Fatma Can mention those details when she made a statement to the public prosecutor that day.
B. Investigation into the disappearance
15. By notification of 22 February 1993 the Elazig governor informed all the other governors in the state of emergency region of the disappearance of Metin Can and Hasan Kaya, requesting that they and their car be located.
16. At about 6 p.m. on 22 February 1993 Hakki Ozdemir noticed a car parked suspiciously opposite his office in Yazikonak and reported it to the police. It was the car belonging to Hasan Kaya’s brother. The police searched the car, fingerprinted and photographed it.
That evening, police officers took statements from the neighbours in Metin Can’s block of flats.
17. Further strange calls were made to the Metin Can flat. On 23 February 1993 Metin Can’s nephew answered the phone. A person claimed that Metin Can and Hasan Kaya were still alive and that they would release the former. He said that Metin would not go toEurope and would continue the struggle.
18. On 23 February 1993 at about 10 p.m., a bag was found outside the SHP (People’s Social Democratic Party) building in Elazig. It contained two pairs of old shoes. On 24 February 1993 one pair of shoes was recognised by Tekin Can as belonging to his brother Metin Can. Hüseyin Kaya stated that the other pair did not belong to his brother, Hasan Kaya. On the same day the public prosecutor obtained an order from the Elazig Magistrates’ Court for the telephone at Metin Can’s flat to be monitored in order to identify the persons making threatening calls.
C. Investigation into the deaths
21. An autopsy was carried out at about 4.25‘p.m. on 27 February 1993 at the TunceliState Hospital morgue. The autopsy report noted that both men had been shot in the head and had their hands tied. No trace of violence or blow was observed on Hasan Kaya’s body. As for Metin Can, it was noted that his nose had haemorrhaged, there was a wound in his lip and some teeth were missing, there were bruises around his neck, on the knees and on the torso and abdomen. Maceration was observed on the feet. It was noted that there was no trace of violence or blow. An addendum was attached by the doctors who had carried out the examination to the effect that a bruise on the right eyebrow might have been caused by a blow. It was estimated that death had occurred fourteen to sixteen hours previously.
I. The court’s assessment of the facts
72. The Court observes in the present case that the facts as established in the proceedings before the Commission are no longer substantially in dispute between the parties.
73. Before the Commission, the applicant argued that the facts supported a finding that his brother had been killed either by undercover agents of the State or by persons acting under their express or implied instructions and to whom the State gave support, including training and equipment. This assertion was denied by the Government.
74. After a Commission delegation had heard evidence in Ankara and Strasbourg (see paragraphs 19, 21 and 28 of the Commission’s report of 23 October 1998), the Commission concluded that it was unable to determine who had killed Dr Hasan Kaya. There was insufficient evidence to establish beyond reasonable doubt that State agents or persons acting on their behalf had carried out the murder (see paragraphs 312-36 of the Commission’s report cited above). It did however conclude that Dr Hasan Kaya was suspected by the authorities of being a PKK sympathiser, as was his friend Metin Can and that there was a strong suspicion, supported by some evidence, that persons identified as PKK sympathisers were at risk of targeting from certain elements in the security forces or those acting on their behalf, or with their connivance and acquiescence. Grave doubts arose in the circumstances of this case which had not been dispelled by the official investigation.
In his memorial and pleadings before the Court, the applicant invited the Court to make its own evaluation of the facts found by the Commission and find that these disclosed sufficient evidence to hold, beyond reasonable doubt, that persons acting with the acquiescence of certain State forces and with the knowledge of the authorities were responsible for the killing of Dr Hasan Kaya. In their memorial and pleadings before the Court, the Government submitted that the testimony of the applicant, Fatma Can, Bira Zordag and Serafettin Özcan were unreliable and invited the Court to discount any findings based on their evidence.
75. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28§ 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is only in exceptional circumstances thatit will exercise its powers in this area (see, among other authorities, Tanrikulu v. Turkey [GC], no. 23763/94,§ 67, ECHR 1999-IV).
76. In the instant case the Court recalls that the Commission reached its findings of fact after a delegation had heard evidence on two occasions in Ankara and on one occasion in Strasbourg. It considers that the Commission approached its task of assessing the evidence before it with the requisite caution, giving detailed consideration to the elements which supported the applicant’s allegations and to those which cast doubt on their credibility.
The Court observes that the Commission was aware of the applicant’s strong feelings and was careful in placing any reliance on his evidence. However, the delegates who heard Fatma Can, Serafettin Özcan and Bira Zordag found them to be sincere, credible and generally convincing. In assessing their evidence, the Commission gave consideration to the inconsistencies referred to by the Government but found that these did not undermine their reliability. While it accepted their evidence as to their part in the events preceding the disappearance and discovery of the bodies, the Commission’s overall conclusion was that there was insufficient evidence to support a finding beyond reasonable doubt that State officials carried out the killing of Hasan Kaya. The Court finds no elements which might require it to exercise its own powers to verify the facts. It accordingly accepts the facts as established by the Commission.
II. Alleged violations of article 2 of the convention
B. The Court’s assessment
Alleged failure to protect the right to life
(a) Alleged failure to take protective measures
86. The Court recalls at the outset that the general legal prohibition on arbitrary killing by agents of the State contained in Article 2 of the Convention would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State (see the above-mentioned McCann and Others judgment, p. 48,§ 161).
87. The Court observes that the procedural protection of the right to life inherent in Article 2 of the Convention secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the force used was or was not justified in a particular set of circumstances.
88. The Court recalls the Government’s contention that the instant case is a clear-cut case of lawful killing by the security forces and for that reason the authorities were dispensed from having to comply with anything other than minimum formalities. It cannot accept that submission, having regard to the fact that the official account of the events was impaired through the absence of corroborating evidence. In addition, it also considers that the minimum formalities relied on by the Government were in themselves seriously deficient even for the purposes of an alleged open and shut case of justified killing by members of the security forces.
89. The Court is struck in particular by the fact that the public prosecutor would appear to have assumed without question that the deceased was a terrorist who had died in a clash with the security forces. No statements were taken from any of the soldiers at the scene and no attempt was made to confirm whether there were spent cartridges over the area consistent with an intense gun battle having been waged by both sides as alleged. As an independent investigating official he should have been alert to the need to collect evidence at the scene, to make his own independent reconstruction of the events and to satisfy himself that the deceased, despite being dressed as a typical farmer, was in fact a terrorist as alleged. There are no indications that he was prepared in any way to scrutinise the soldiers’ account of the incident. His readiness to accept at face value the information given by the military may also explain why no tests were carried out on the deceased’s hands or clothing for gunpowder traces or why the weapon was not dusted for fingerprints. In any event, these shortcomings must be considered particularly serious in view of the fact that the corpse was later handed over to villagers, thereby rendering it impossible to conduct any further analyses, including of the bullets lodged in the body. The only exhibits which were taken from the scene for further examination were the weapon and ammunition allegedly used by the deceased. However, whatever the merits of this initiative as an investigative measure at the time, it is to be noted that the public prosecutor issued his decision of non-jurisdiction without awaiting the findings of the ballistics experts (see paragraph 31 above).
The autopsy report provided the sole record of the nature, severity and location of the bullet wounds sustained by the deceased. The Court shares the concern of the Commission about the incompleteness of this report in certain crucial respects, in particular the absence of any observations on the actual number of bullets which struck the deceased and of any estimation of the distance from which the bullets were fired. It cannot be maintained that the perfunctory autopsy performed or the findings recorded in the report could lay the basis for any effective follow-up investigation or indeed satisfy even the minimum requirements of an investigation into a clear-cut case of lawful killing since they left too many critical questions unanswered.
The Court acknowledges that the on-the-spot post-mortem and forensic examination were conducted in an area prone to terrorist violence, which may have made it extremely difficult to comply with standard practices. Dr Dogru admitted such in his report (see paragraph 29 above). It is therefore surprising that neither the doctor nor the public prosecutor requested that the body be flown to a safer location to allow more detailed analyses to be made of the body, the clothing and the bullet wounds.
90. No concrete measures were taken thereafter by the public prosecutor to investigate the death of the applicant’s brother, for example by verifying whether the deceased was in fact an active member of the PKK or by questioning villagers living in the vicinity of Dolunay to ascertain whether they heard the sound of a gun battle on the day in question or by summoning members of the security forces involved to his office to take statements. The public prosecutor’s firm conviction that the deceased was a terrorist killed in an armed clash with the security forces was never in fact tested against any other evidence and the terms of his non-jurisdiction decision effectively excluded any possibility that the security forces might somehow have been culpable, including with respect to the proportionality of the force used in the circumstances of the alleged armed attack. It is also to be noted that the public prosecutor attached to the National Security Court did not seek to verify the statement made by Hikmet Aksoy on 17 June 1994, for example by checking the custody records at the Lice gendarmerie headquarters to ascertain whether he had been detained there on or around 25 March 1993 as alleged (see paragraph 20 above).
91. The Court notes that loss of life is a tragic and frequent occurrence in view of the security situation in south-east Turkey (see the above-mentioned Aydin judgment, p. 1873,§ 14). However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into deaths arising out of clashes involving the security forces, more so in cases such as the present where the circumstances are in many respects unclear.
92. Having regard to the above considerations the Court, like the Commission, concludes that the authorities failed to carry out an effective investigation into the circumstances surrounding the death of the applicant’s brother. There has accordingly been a violation of Article 2 of the Convention in that respect.
93. It recalls that, as the Government submit, there was a large number of security forces in the south-east region pursuing the aim of establishing public order. They faced the difficult task of countering the violent armed attacks of the PKK and other groups. There was a framework of law in place with the aim of protecting life. The Turkish Criminal Code prohibited murder and there were police and gendarmerie forces with the functions of preventing and investigating crime, under the supervision of the judicial branch of public prosecutors. There were also courts applying the provisions of the criminal law in trying, convicting and sentencing offenders.
94. The Court observes, however, that the implementation of the criminal law in respect of unlawful acts allegedly carried out with the involvement of the security forces discloses particular characteristics in the south-east region in this period.
95. Firstly, where offences were committed by State officials in certain circumstances, the competence to investigate was removed from the public prosecutor in favour of administrative councils, which took the decision whether to prosecute (see paragraph 65 above). These councils were made up of civil servants, under the orders of the governor, who was himself responsible for the security forces whose conduct was in issue. The investigations which they instigated were often carried out by gendarmes linked hierarchically to the units concerned in the incident. The Court accordingly found in two cases that the administrative councils did not provide an independent or effective procedure for investigating deaths involving members of the security forces (see the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1731-33,§ 77-82, andOgur v. Turkey [GC], no. 21594/93,§ 85-93, ECHR 1999-III).
96. Secondly, the cases examined by the Convention organs concerning the region at this time have produced a series of findings of failure by the authorities to investigate allegations of wrongdoing by the security forces, both in the context of the procedural obligations under Article 2 of the Convention and the requirement of effective remedies imposed by Article 13 of the Convention (see, concerning Article 2, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 324-26,§ 86-92; the Ergi v. Turkey judgment of 28 July 1998,Reports 1998-IV, pp. 1778-79, § 82-85; the Yasa judgment cited above, pp. 2454-57,§ 98-108; Çakici v. Turkey [GC], no. 23657/94,§ 87, ECHR 1999-IV; and Tanrikulucited above,§ 101-11; concerning Article 13, see the judgments cited above and the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2286-87,§ 95-100; the Aydin v. Turkey judgment of 25 September 1997, Reports1997-VI, pp. 1895-98,§ 103-09; the Mentes and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, pp. 2715-16,§ 89-92; the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, pp. 912-14,§ 93-98; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1188-90,§ 135-42; and theTekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1519-20,§ 62-69).
A common feature of these cases is a finding that the public prosecutor failed to pursue complaints by individuals claiming that the security forces were involved in an unlawful act, for example not interviewing or taking statements from implicated members of the security forces, accepting at face value the reports of incidents submitted by members of the security forces and attributing incidents to the PKK on the basis of minimal or no evidence.
97. Thirdly, the attribution of responsibility for incidents to the PKK has particular significance as regards the investigation and judicial procedures which ensue since jurisdiction for terrorist crimes has been given to the National Security Courts (see paragraph 64 above). In a series of cases, the Court has found that the National Security Courts do not fulfil the requirement of independence imposed by Article 6 of the Convention, due to the presence of a military judge whose participation gives rise to legitimate fears that the court may be unduly influenced by considerations which had nothing to do with the nature of the case (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1571-73,§ 65-73).
98. The Court finds that these defects undermined the effectiveness of the protection afforded by the criminal law in the south-east region during the period relevant to this case. It considers that this permitted or fostered a lack of accountability of members of the security forces for their actions which, as the Commission stated in its report, was not compatible with the rule of law in a democratic society respecting the fundamental rights and freedoms guaranteed under the Convention.
99. Consequently, these defects removed the protection which Hasan Kaya should have received by law.
100. The Government have disputed that they could in any event have effectively provided protection against attacks. The Court is not convinced by this argument. A wide range of preventive measures would have been available to the authorities regarding the activities of their own security forces and those groups allegedly acting under their auspices or with their knowledge. The Government have not provided any information concerning steps taken by them prior to the Susurluk report to investigate the existence of contra-guerrilla groups and the extent to which State officials were implicated in unlawful killings carried out during this period, with a view to taking appropriate measures of prevention.
101. The Court concludes that in the circumstances of this case the authorities failed to take reasonable measures available to them to prevent a real and immediate risk to the life of Hasan Kaya. There has, accordingly, been a violation of Article 2 of the Convention.
(b) Alleged inadequacy of the investigation
102. The Court reiterates that the obligation to protect life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention “to secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49,§ 161, and the Kaya judgment cited above, p. 329,§ 105).
103. In the present case, the investigation into the disappearance was conducted by the public prosecutor at Elazig. It changed hands four times. The file was transferred to Tunceli when the bodies were discovered. The Tunceli public prosecutor ceded jurisdiction to the National Security Court at Kayseri considering the case to concern a terrorist crime. From Kayseri, the investigation was transferred to Erzincan National Security Court and finally to Malatya National Security Court, where it is still pending.
104. The investigation at the scene of discovery of the bodies involved two autopsies. The first was cursory and included the remarkable statement that there were no marks of ill-treatment on the bodies. The second autopsy was more detailed and did record marks on both bodies. It omitted, however, to provide explanations or conclusions regarding the ecchymoses on the nail bases and the knees and ankle or the scratches on the ankle. Bruises on the right ear and head area were attributed to pressure on the body, without clear explanation as to what that might involve (see paragraph 22 above).
There was no forensic examination of the scene or report regarding whether the victims were killed at the scene or how they were deposited at the scene. Nor was there any investigation concerning how the two victims had been transported from Elazig to Tunceli, which journey would have involved stopping at a series of official checkpoints along the more than 130 km route. The Court observes that there is no evidence in the investigation file to document any attempts to check custody records or to take statements from potential eyewitnesses at Yazikonak, where the car was found.
105. It is noticeable that the major, indeed the only, leads in the investigation concerned alleged contra-guerrilla and security force involvement and were provided by information from the relatives of the victims, Ahmet Kaya and Anik Can, who passed on what they had heard from others and from the press. Information was also provided by a Tunceli lawyer and the president of the Tunceli HRA when they read an article in the press concerning the alleged perpetrators of the killings. The Aydinlik editor submitted a petition, drawing attention to interviews published in the newspaper alleging contra-guerrilla and State security-officer involvement. The public prosecutors concerned did take steps in response. However, these were often limited and superficial. For example, instructions were given to locate the suspected contra-guerrilla Mahmut Yildirim. However, the reports by the police were contradictory – the first stated that he had left his address while the second claimed the address did not exist. No steps were taken to clarify this (see paragraphs 45 and 53 above).
The information concerning the alleged sighting of a wanted terrorist, Yusuf Geyik, who had claimed participation in the killings, with gendarmes in Pertek, was also not pursued, in particular, the apparent report of the police officer confirming the eyewitness statements that Geyik had been staying at the district gendarmerie headquarters. No further enquiry was made of the gendarmes, notwithstanding the fact that one of the eyewitnesses had given the first names of two gendarmes whom he had claimed to recognise.
The Government have disputed that the public prosecutor can be criticised for failing to contact the press concerning their sources of information, in particular the journalist Soner Yalçin, who published interviews, and later a book, concerning information given to him by a JITEM officer, Cem Ersever, about the targeting of a lawyer and doctor in Elazig. It is correct that the information which he could have given may have been hearsay in nature. Yalçin’s claims were, however, relevant to the investigation and could have provided other lines of enquiry.
106. The investigation was also dilatory. There were significant delays in seeking statements from witnesses: for example, it took from 17 November 1993 to April 1994 to obtain a fuller and more detailed statement from Hüseyin Kaykaç. There was no apparent activity between 5 May 1993 and September 1993 and no significant step taken from April 1994 until 13 March 1995.
107. The Court does not underestimate the difficulties facing public prosecutors in the south-east region at that time. It recalls that Judge Major Bulut, who gave evidence to the Commission’s delegates, explained that he had 500 other investigations under his responsibility. Nonetheless, where there are serious allegations of misconduct and infliction of unlawful harm implicating State security officers, it is incumbent on the authorities to respond actively and with reasonable expedition (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94,§ 76-79, ECHR 1999-V).
108. The Court is not satisfied that the investigation carried out into the killing of Hasan Kaya and Metin Can was adequate or effective. It failed to establish significant elements of the incident or clarify what happened to the two men and has not been conducted with the diligence and determination necessary for there to be any realistic prospect of identifying and apprehending the perpetrators. It has remained from the early stages within the jurisdiction of the National Security Court prosecutors, who investigate primarily terrorist or separatist offences.
109. The Court concludes that there has been in this respect a violation of Article 2 of the Convention.
The circumstances of the death of Hasan Kaya were unknown so the Court did not find the state directly responsible for his death because it was unable to conclude ‘beyond reasonable doubt’ that state officials had carried out the disappearance and killing of Mr. Kaya. Nonetheless, the Court found a violation of the right to life (Article 2) due to failure of the Turkish authorities’‘to take reasonable measures available to them to prevent a real risk to the life of Hasan Kaya’ and the lack of an investigation which was ‘conducted with the diligence and determination necessary for there be any realistic prospect of the identification and apprehension of the perpetrators’. It is worth noting that in dealing with cases of torture, unlawful killings and disappearances, the European Court has until now always used the standard of ‘proof beyond reasonable doubt’.’This standard is, however, completely inappropriate in such cases. The Inter-American Court of Human Rights, for instance, has established standards that are altogether more reasonable (see e.g. Velásquez Rodriguez above). The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of states responsible. In this regard, it is worth stressing that in the case Tahsin Acar v. Turkey , Application No. 26307/95, Judgement of 8 April 2004, the Court stated that it must be established beyond reasonable doubt that the Government’s responsibility had been engaged in the abduction and disappearance. However, the domestic authorities must conduct an adequate and effective investigation into the disappearance and, failing that, there is a breach of the States’ procedural obligations under Article 2 and 3 of the Convention.
The inadequacy of judicial investigations was also found in the Anguelova v. Bulgaria , (Application No. 38361/97, Judgement of 13 June 2002) where the Court held that any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling short of this standard. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.
In the case of Finucane v. The United Kingdom (Application No. 2978/95, Judgement of 1 July 2003) the Court held that for an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.
The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
In the above-mentioned Nachova case (see comment in the Hugh Jordan case), the authorities did not bring charges as they considered that the relevant regulations on the use of force had been complied with. The Court found that some of these findings were questionable. Even if they were accepted, however, they could not be seen as grounds for concluding that the force used against applicants was ‘no more than absolutely necessary’. The Court thus considered that the investigation into the deaths of the applicants was flawed in that it did not apply a standard comparable to the ‘no more than absolutely necessary’ standard required by Article 2(2) of the Convention. The Court found that the investigation was characterised by a number of serious and unexplained omissions. It ended with decisions which contained inconsistencies and conclusions unsupported by a careful analysis of the facts. The Court has held that it regards as particularly serious cases where indispensable and obvious investigative steps that could have elucidated acts of deprivation of life by State agents were not taken and the respondent Government failed to provide a plausible explanation about the reasons why that was not done (Velikova v. Bulgaria , Application No. 41488/98, Judgement of 18 May 2000, para. 82). The Court considered that such conduct on the part of the authorities– which has already been remarked on by the Court in previous cases against Bulgaria (see Velokova v. Bulgaria, Application No. 41488/98, Judgement of 18 May 2000 and Anguelova v. Bulgaria, Application No. 38361/97, Judgement of 13 June 2002) – is a matter of particular concern, as it casts serious doubts on the objectivity and impartiality of the investigators and prosecutors involved. There had been, therefore, a violation of the respondent State’s obligation under Article 2(1) of the Convention to investigate deprivations of life effectively.
Selected additional cases: I/A Court H.R.: Velásquez Rodríguez v. Honduras (see above); Neira Alegría et al. v. Honduras (see above). HRC: Bleierv. Uruguay , Communication No. 30/1978, views of 29 March 1982; Herrera Rubiov. Colombia , Communication No. 161/1983, views of 2 November 1987; Bautista de Arellana, v.Colombia, Communication No. 563/1993, Views of 27 October 1995. ECHR: Ipekv. Turkey (see above); Ergi v. Turkey, Application No. 23818/94, Judgement 28 July 1998,Kurt v. Turkey, Application No. 24276/94, Judgement of 25 May 1998;‘Tanrikulu v.Turkey, Application No. 23763/94, Judgement of 8 July 1999; Cyprusv. Turkey , Application No. 25781/94, Judgement of 10 May 2001 (as to Greek–Cypriot missing persons); Timurtas v. Turkey, Application No. 23531/94, Judgement of 13 June 2000; Kiliçv. Turkey , Application No. 22492/93, Judgement of 28 March 2000; Tas v. Turkey, Application No. 24396/94, Judgement of 14 November 2000; Velikova v.Bulgaria, Application No. 41488/98, Judgement of 18 May 2000;”Anguelova v. Bulgaria, Application No. 38361/97, Judgement of 13 June 2002; Finucane v. The United Kingdom, Application No. 2978/95 Judgement of 1 July 2003; Tahsin Acar v. Turkey, Application No. 26307/95, Judgement of 8 April 2004; Nachova et al. v. Bulgaria, Application Nos. 43577/98 and 43579/98, Judgement of 26 February 2004 and Mehmet Sirin Yilmaz v. Turkey , Application No. 35875/97, Judgement of 29 July 2004.
The duty to take ‘reasonable’ measures to protect individuals whose lives are in danger because of criminal acts of other individuals
The state’s obligations in this respect extend beyond the duty to establish effective criminal law provisions to deter the commission of offences and may imply the duty to take preventive operational measures to protect an individual whose life is at risk. If a state does not protect the right to life by, for example, failing to penalise dangerous behaviour or, if in well-defined circumstances, it fails to provide security to protect an individual at risk, this gives rise to state responsibility even though the harm may have been committed by private individuals (see e.g. HRC: Delgado v. Colombia, Communication No. 195/1985, Views of 12 July 1990 and ECHR: Osmanv. The United Kingdom (see below), and Kaya v. Turkey (see above)).
The following case concerns the disappearance of Saúl Godínez, a leader of a teachers’ group, in Honduras in 1982. During the period 1981 to 1984, a hundred to one hundred fifty persons disappeared in a systematic manner in Honduras and it was publicly known that military personnel, the police or persons acting under their orders carried out the kidnappings.
Godínez Cruz v. Honduras
Inter-American Court of Human Rights‘
Series C. No. 5 1989
Judgement of 29 January 1989
Keywords: life - arbitrary arrest or detention – disappearance - exhaustion of domestic remedies - liberty of person - physical integrity - compensation
175. The second obligation of the States Parties is to “ensure” the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. [?]
181. Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State.
182. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.
Both Velásquez Rodriguez v. Honduras (reproduced above) and Godínez Cruz v. Honduras, deal with the practice of ‘disappearances’ in Honduras and are therefore generally called the ‘Honduran Disappearance cases’. These were the first cases in which the Inter-American Court decided that a state party had violated the Convention and in both instances the Court found that the state was required to take measures to protect the right to life.
Through the years, the Court has stressed the state’s duty to take positive measures in regard to the right to life. Worth mentioning is, for example, an order of provisional measures adopted to protect the life of human rights defenders who working as attorneys for a non-governmental organization in Mexico, the Miguel Agustín Pro Juárez Human Rights Centre, who had received several threats to their life, including having been kidnapped for a period of four hours by unknown assailants. In its order of provisional measures, the Court required that the state adopt, without delay, whatever measures necessary to protect the lives and integrity of the attorneys and to assure that the persons who worked at or visited the offices of the Miguel Agustín Pro Juárez Human Rights Centre could do so without endangering their lives or physical integrity (see Digna Ochoa and Plácido et al. v. Mexico, Order of the Court of 17 November 17, 1999, Series E No. 2 (1999).
The following case deals with the responsibility of states to take appropriate measures to protect the right to life of individuals. Mr. Ali Osman was shot dead by his son’s former teacher Paul Paget-Lewis, in an incident in which his son, Ahmet Osman, was also wounded. The applicant alleged that despite several warnings given to the police about the real risk posed by Paget-Lewis, the police failed to take appropriate and adequate preventive measures to secure effective protection for the lives of the victims.
European Court of Human Rights
Application No. 87/1997/871/1083
Judgement of 28 October 1998
Keywords: life - access to court - effective remedy - positive obligations
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants
10. The applicants are British citizens resident in London. The first applicant, Mrs Mulkiye Osman, was born in Cyprus in 1948. She is the widow of Mr Ali Osman who was shot dead by Mr Paul Paget-Lewis on 7 March 1988. The second applicant, Ahmet Osman, is her son, born in England in 1972. He was a former pupil of Paul Paget-Lewis at HomertonHouse School. Ahmet Osman was wounded in the shooting incident which led to the death of his father.
The applicants’ complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paul Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. There is disagreement between the applicants and the respondent State on essential aspects of the circumstances leading to the tragedy. The applicants have disputed in this respect the completeness of the facts as found by the Commission.
B. The events to the end of March 1987
1. The initial complaints against Paget-Lewis
11. In 1986 the headmaster of Homerton House School, Mr John Prince, noticed that one of his teaching staff, Paul Paget-Lewis, had developed an attachment to Ahmet Osman, a pupil at the school. According to a statement which he made to the police on 10 March 1988, Mr Prince indicated that he “made a point of personally keeping an eye on the situation”. As a result of this attachment, Paget-Lewis informed Mr Prince that he intended to leave the school and become a supply teacher. Mr Kenneth Perkins, a deputy head teacher, spoke with Paget-Lewis and managed to persuade him to remain at the school.
C. The events between April 1987 and August 1987
1. Paget-Lewis changes name
26. On 14 April 1987, Paget-Lewis changed his name by deed poll to Paul Ahmet Yildirim Osman. On 1 May 1987, Mr Prince wrote to the Inner London Education Authority (ILEA) informing them that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of Ahmet Osman. He also stated that he was of the opinion that Paget-Lewis should be removed from the school as soon as possible.
D. The events between August 1987 and December 1987
1. The criminal damage to the Osmans’ property
36. In August or September 1987, a mixture of engine oil and paraffin was poured on the area outside the Osman family home. On 18 October 1987, the windscreen of Ali Osman’s car was smashed. During November 1987, in a series of incidents, the applicants’ front door lock was jammed with superglue, dog excrement was smeared on their doorstep and on their car, and on more than one occasion the light bulb was stolen from the light in the outside porch. Around this time all the windows of their car were also broken. All these incidents were reported to the police and on two occasions Ali Osman visited Hackney police station to discuss the vandalism and criminal damage to his property.
37. At some point during November 1987, PC Adams visited the Osmans’ home and then spoke to Paget-Lewis about the acts of vandalism. In a later statement to the police, Paget-Lewis alleged that he told PC Adams that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane. The Government deny that this was said, and refer to the fact that during the interview with PC Adams Paget-Lewis denied any involvement in the acts of vandalism and criminal damage. No detailed records were made by PC Adams of his contacts with Paget-Lewis or the Osman family. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor’s Department.
E. The events between January 1988 and October 1988
1. Attempts to trace the whereabouts of Paget-Lewis
51. In early January 1988 the police commenced the procedure of laying an information before the Magistrates’ Court with a view to prosecuting Paget-Lewis for driving without due care and attention. In addition, Paget-Lewis’ name was put on the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage.
52. On 8 January an officer of ILEA rang Detective Sergeant Boardman for an update on the case but he was unavailable. Three days later he returned her call saying there had been no progress.
53. Between January and March 1988 Paget-Lewis travelled around England hiring cars in his adopted name of Osman and was involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there.
54. On 17 January 1988 Paget-Lewis broke into a car parked near a clay-pigeon shoot near Leeds in Yorkshire and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, because there was nothing to connect the incident to Paget-Lewis the theft did not come to the attention of the Metropolitan police dealing with the case.
2. Paget-Lewis is sighted near the Osman home
55. On 1, 4 and 5 March 1988 Leslie Green saw Paget-Lewis wearing a black crash helmet near the applicants’ home. According to the applicants, Mrs Green informed the police on each occasion, but her calls were not returned. The Government accept that, on 5 March 1988, Detective Sergeant Boardman received a message which stated “phone Mrs Green” but since there was no phone number on the note he did not connect the message with the mother of Leslie Green.
3. The fatal shootings and the arrest of Paget-Lewis
56. On 7 March 1988 Paget-Lewis was seen near the applicants’ home by a number of people. At about 11 p.m. Paget-Lewis shot and killed Ali Osman and seriously wounded Ahmet. He then drove to the home of Mr Perkins where he shot and wounded him and killed his son.
57. Early the next morning Paget-Lewis was arrested. On being arrested he stated “why didn’t you stop me before I did it, I gave you all the warning signs?”
58. Later that day Paget-Lewis was interviewed by the police. According to the record of the interview, Paget-Lewis said that he had been planning the attacks ever since he lost his job, and for the previous two weeks he had been watching the Osmans’ house. Although he considered Mr Perkins as his main target, he also regarded Ali and Ahmet Osman as being responsible for his losing his position at Homerton House. Paget-Lewis stated that he had been hoping in the back of his mind that the police would stop him. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmet Osman kneel down in the kitchen, turning out the light and shooting at them. He denied that on earlier occasions he had damaged the windows of the Osmans’ house but admitted that he had let down the tyres of their car as a prank. He also denied responsibility for the graffiti and taking the files from the school office.
4. Paget-Lewis is convicted of manslaughter
59. On 28 October 1988 Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on grounds of diminished responsibility (see paragraph 73 below). He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section 41 of the Mental Health Act 1983.
FINAL SUBMISSIONS TO THE COURT
100. The applicants maintained in their memorial and at the hearing that the facts of the case disclosed breaches by the respondent State of its obligations under Articles 2, 6, 8 and 13 of the Convention. They requested the Court to find accordingly and to award them just satisfaction under Article 50.
The Government for their part requested the Court to find that there had been no breach of any of the Articles relied on by the applicants.
A. Arguments of those appearing before the Court
1. The applicants
103. The applicants contended that a most careful scrutiny of the events leading to the tragic shooting incident revealed that the police were several times put on notice that the lives of Ali and Ahmet Osman were at real risk from the threat posed by Paget-Lewis. Despite the clear warning signals given the police failed to take appropriate and adequate preventive measures to secure effective protection for their lives from that risk. While disagreeing with the standard of care formulated by the Government (see paragraph 107 below), they submitted that even on the basis of that overly-strict standard the obvious inadequacy of the police response over a period of fourteen months must be considered to amount to a grave dereliction of the authorities’ duty to protect life and a substantial contributing factor to the death of Ali Osman and the wounding of the second applicant.
104. The applicants argued that by May 1987 the police, on the basis of their contacts with the headmaster of the school, Mr Prince (see paragraphs 21 and 27 above) must be taken to have been fully aware that Paget-Lewis was an unbalanced, obsessive and aggressive individual who had stalked Ahmet Osman, taken photographs of him, plied him with gifts and even assumed his name. Further, they were plainly made aware that Paget-Lewis was strongly suspected of being responsible for the graffiti incident and the theft of the school files. However, these warning signs were never taken seriously by the police even though they must have known of Mr Prince’s assessment of the situation, in particular his view that Paget-Lewis was psychologically unbalanced (see paragraph 26 above). In spite of the existence of compelling circumstantial evidence linking Paget-Lewis with the theft of the school files and the spraying of graffiti close to the school (see paragraphs 22 and 24 above), the police did not investigate these matters further.
The applicants further submitted that this inertia on the part of the police in the face of clear indications that the life of a vulnerable child was at real risk from the danger posed by Paget-Lewis was compounded by their failure to apprehend the significance of the eight reported attacks on the home and property of the Osman family between May and November 1987 marking an escalation in an already life-threatening situation. In brief, nothing was done to establish that Paget-Lewis was the author of this campaign of harassment and intimidation threatening the security of the family. It was only on 17 December 1987, and ten days following the ramming incident (see paragraph 38 above), that a decision was finally taken to arrest Paget-Lewis. Even then the police seriously mishandled the situation by giving Paget-Lewis the opportunity to avoid arrest and abscond, and then failing to inform the Osman family of this occurrence and to keep a watch on their home.
105. The applicants emphasised that Paget-Lewis had on three separate occasions stated that he intended to commit a murder and each of his statements came to the attention of the police (see paragraphs 37, 40 and 46 above). However, the police once again failed to take seriously what was conclusive proof that the lives of the Osman family were at risk from an unstable, obsessive, disturbed and dangerous individual. The fact that no records were ever kept of the police visits to the school in March and May 1987 nor of the attacks on the home and property of the family confirmed in the applicants’ view the casual and careless approach of the authorities to the investigation of a very grave threat to life and explained their failure to make use of their powers to prevent that threat from materialising by arresting Paget-Lewis on suspicion of being responsible for the graffiti incident, the theft of the school files or the attacks on the Osmans’ home, or searching his home for evidence of his involvement in these offences or by having him compulsorily admitted to a psychiatric hospital for assessment.
106. For the above reasons, the applicants concluded that the authorities had failed in the circumstances to comply with their positive obligation under Article 2 of the Convention. They further contended that there had never been any effective official investigation into the authorities’ failure in this respect. Their civil action in negligence against the police founded on the successful invocation by the Metropolitan Police Commissioner of the rule of police immunity (see paragraph 63 above). In their view, this gave rise to a separate violation of Article 2.
2. The Government
107. The Government did not dispute that Article 2 of the Convention may imply a positive obligation on the authorities of a Contracting State to take preventive measures to protect the life of an individual from the danger posed by another individual. They emphasised however that this obligation could only arise in exceptional circumstances where there is a known risk of a real, direct and immediate threat to that individual’s life and where the authorities have assumed responsibility for his or her safety. In addition, it had to be shown that their failure to take preventive action amounted to gross dereliction or wilful disregard of their duty to protect life. Finally, it must be established on sound and persuasive grounds that there is a causal link between the failure to take the preventive action of which the authorities are accused and that that action, judged fairly and realistically, would have been likely to have prevented the incident in question.
108. On that basis, and having regard to the facts of the instant case, the Government argued that the police could not be taken at any relevant time to have appreciated that Paget-Lewis represented a real and immediate threat to the lives of the Osman family. He had never threatened either Ali or Ahmet Osman in word or deed and both before and after his arrest he had consistently denied that he had been responsible for the theft of the school files, the graffiti in the area around the school and the acts of vandalism on the home and property of the family. Significantly, the Inner London Education Authority (“ILEA”), after investigating the complaints against Paget-Lewis, considered that a reprimand was sufficient action and he was allowed to assume teaching duties in another school. The fact that Dr Ferguson, the ILEA psychiatrist, had concluded on the basis of a complete case file that Paget-Lewis was fit to teach (see paragraph 29 above) confirmed that the latter manifested no clear signs of mental illness which would have suggested that he posed a real and immediate danger to the lives of the Osmans.
109. In the Government’s submission, the police response at each stage of the events in the light of their knowledge and information at the relevant times was reasonable. At no time was there sufficient evidence on which to lay charges against Paget-Lewis on suspicion of having committed acts of criminal damage or to search his home to secure proof of such. Detective Sergeant Boardman conducted a complete review of the case file in December 1987 but was forced to concede that, in the absence of a confession statement, there was no evidence on which to lay charges against—Paget-Lewis.
110. The Government averred that the weakness of the applicants’ case before the Court lay not only in their assessment of the police action from the standpoint of hindsight but also in their erroneous interpretation of certain events in order to impute to the police knowledge of the danger posed by Paget-Lewis to the Osman family or to accuse them of gross negligence. In this latter respect they challenged, inter alia, the applicants’ unfounded assertions that the police had promised protection to the family on the basis of the ILEA memorandum of 8 December 1987 (see paragraph 41 above) or that the ILEA letter of 17 December 1987 caused Paget-Lewis to abscond before he could be arrested (see paragraph 50 above) or that no police records had been kept of the incidents reported to them (see paragraph 105 above). As to the latter allegation, they pointed to the fact that Detective Sergeant Boardman was fully apprised of the entire case file in December 1987 (see paragraph 109 above). [?]
B. The Court’s assessment
1. As to the establishment of the facts
113. The Court notes that there was never any independent judicial determination at the domestic level of the facts of the instant case. The Commission on the basis of the pleadings of the parties and the hearing which it held in the case made its own findings on the course of events in the case up until the time of the armed attack by Paget-Lewis on Ali and Ahmet Osman on 7 March 1988 (see paragraphs 67–71 above). According to the applicants, the Commission overlooked in its findings of fact the importance of certain events which they claim have a bearing on the level of knowledge which can be imputed to the police in respect of the seriousness of the danger which Paget-Lewis represented for the lives of the Osman family (see paragraph 10 above).
114. The Court observes that it is called on to determine whether the facts of the instant case disclose a failure by the authorities of the respondent State to protect the right to life of Ali and Ahmet Osman, in breach of Article 2 of the Convention. In addressing that issue, and having due regard to the Commission’s role under the Convention in the establishment and verification of the facts of a case, it will assess this issue in accordance with its usual practice in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64,§ 160; and the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 51,§ 173).
2. As to the alleged failure of the authorities to protect the rights to life of Ali and Ahmet Osman
115. The Court notes that the first sentence of Article 2§ 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403,§ 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45,§ 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.
121. In the view of the Court the applicants have failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the applicants have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative steps following his disappearance, it cannot be said that these measures, judged reasonably, would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it. As noted earlier (see paragraph 116 above), the police must discharge their duties in a manner which is compatible with the rights and freedoms of individuals. In the circumstances of the present case, they cannot be criticised for attaching weight to the presumption of innocence or failing to use powers of arrest, search and seizure having regard to their reasonably held view that they lacked at relevant times the required standard of suspicion to use those powers or that any action taken would in fact have produced concrete results.
122. For the above reasons, the Court concludes that there has been no violation of Article 2 of the Convention in this case.
3. As to the alleged breach by the authorities of a procedural obligation under Article 2
123. The Court considers that the essence of the applicants’ complaint under this head (see paragraph 106 above) concerns their inability to secure access to a court or other remedy to have an independent assessment of the police response to the threat posed by Paget-Lewis to the lives of the Osman family. The Court considers it appropriate therefore to consider this grievance in the context of the applicants’ complaints under Articles 6 and 13 of the Convention (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 48,§ 160).
The Court held that the state’s obligation regarding the right to life extends beyond its primary duty to put in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Having regard to the nature of the right protected by Article 2 - a right fundamental in the scheme of the Convention - it may also imply, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Nonetheless, according to the Court, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (para. 116). Accordingly, not every claimed risk to life can entail a claim on authorities to take operational measures to prevent that risk from materialising. The test that the European Court has established is that the ‘authorities knew or ought to have known at the time of the existence of a real risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (para 116). In other words, failure of the state to take positive measures to prevent and suppress offences against the person at risk in the above mentioned circumstances would entail a violation of the right to life.
As to the circumstances of the case, however, the Court concluded that the applicants ‘failed to point to any decisive stage in the sequence of the events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis’. This contrasts with the opinion of the aggressor himself, Mr. Paget Lewis, who after the shooting, when arrested by the police, stated ‘why didn’t you stop me before I did it, I gave you all the warning signs?’ (para. 57). In a similar, more recent case, Akkoç v. Turkey (Application Nos. 22947/93, 22948/93, Judgement of 10 October 2000) the Court found a violation of Article 2 ECHR.
While the situation examined in the Osman case concerned the requirement of personal protection of one or more individuals identifiable in advance as potential targets of a lethal act, the European Court has also examined the responsibility of the authorities when failing to afford general protection to society against the potential acts of persons serving a prison sentence for a violent crime and the determination of the scope of that protection. In Mastromatteo v. Italy(Application No. 37703/97, Judgement of 24 October 2002), the applicant’s son was murdered by a criminal who had just robbed a bank with two accomplices. The robbers attempted to take control of the applicant’s son’s car, but it appears that A. Mastromatteo tried to get away from his attackers by accelerating, whereupon he was shot at point-blank range. He died a few hours later. The Court noted that the murder of A. Mastromatteo was committed by prisoners, one on prison leave and the other benefiting from a semi-custodial regime. Accordingly, the conduct of those two criminals could potentially engage the responsibility of the state for a breach of its duty to protect life. The Court observed that, before a prisoner is eligible for prison leave in the Italian system, he or she must have served a minimum period of imprisonment, the length of the period being dependent on the gravity of the offence for which the prisoner was convicted. Furthermore, prison leave may be granted to a prisoner only if he or she has behaved well and if the release does not present a danger to society. In this connection, the mere absence of disciplinary punishments is not sufficient to justify the grant of measures facilitating reintegration; the prisoner is required to show a genuine willingness to participate in the reintegration and rehabilitation programme. The assessment of a prisoner’s dangerousness is left to the judge responsible for the execution of sentence who must consult the prison authorities. The assessment must be based not only on information furnished by the prison authorities but also on information available from the police when the judge considers this to be necessary. The Court held that this system in Italy provided sufficient protective measures for society. This was confirmed by the statistics supplied by the state, which showed that the percentage of crimes committed by prisoners subject to a semi-custodial regime was very low, as well as that of prisoners absconding while on prison leave. Accordingly, there was nothing to suggest that the system of reintegration measures applicable in Italy at the time of the killing raised issues under Article 2.
Selected additional cases: ECHR: Akkoç v. Turkey, Application Nos. 22947/93, 22948/93, Judgement of 10 October 2000 and Mastromatteo v. Italy, Application No. 37703/97, Judgement of 24 October 2002.
The duty to take adequate measures to protect the lives of individuals held in state custody
These obligations include the duty to provide proper medical care and to make available adequate food and water in order to sustain life. It is important to note here that the duty to provide medical treatment as well as the duty to meet survival requirements to allow individuals to sustain life with dignity while they are being held in state custody, are also analysed under the prohibition of torture and ill-treatment under Conditions of Detention .
In Neira Alegría et al. v. Peru (reproduced above), the Inter-American Court of Human Rights confirmed that state parties have a duty to protect the lives of individuals held in state custody:
60. In the terms of Article 5(2) of the Convention, every person deprived of her or his liberty has the right to live in detention conditions compatible with her or his personal dignity, and the State must guarantee to that person the right to life and to humane treatment. Consequently, since the State is the institution responsible for detention establishments, it is the guarantor of these rights of the prisoners.
In the following case against Russia, the author Ms. Lantsova, mother of Vladimir Albertovich Lantsov, claimed that her son was healthy when he was brought into a pre-trial detention centre, but that he fell ill due to the very poor conditions in the prison. She complained that her son was given no medical treatment despite repeated requests for assistance by the other detainees during his first week of detention. Finally, after the other detainees cried out for assistance, medical personnel arrived with a stretcher. Mr. Lantsov died later that day in the prison clinic. Mrs. Lantsova claimed a violation byRussia of inter alia Article 6(1) ICCPR. This case is also discussed under Right to Health Facilities, Goods and Services .
Lantsova v. The Russian Federation
Human Rights Committee
Communication No. 763/1997
Views of 26 March 2002
Keywords: life – prisoners’ rights - detention conditions – health - positive obligations
Issues and proceedings before the Committee
8.2 The Committee must determine whether the State party violated articles 6, paragraph 1, article 7 and 10, paragraph 1 of the Covenant in connection with the death of the author’s son.
9.1 Regarding the conditions of detention, the Committee notes that the State party concedes that prison conditions were bad and that detention centres at the time of the events held twice the intended number of inmates. The Committee also notes the specific information received from the author, in particular that the prison population was, in fact, five times the allowed capacity and that the conditions in Matrosskaya Tishina prison were inhuman, because of poor ventilation, inadequate food and hygiene. The Committee finds that holding the author’s son in the conditions prevailing at this prison during that time entailed a violation of his rights under article 10, paragraph 1 of the Covenant.
9.2 Concerning the death of Mr. Lantsov, the Committee notes the author’s allegations, on the strength of testimony by several fellow detainees, that after the deterioration of the health of the author’s son, he received medical care only during the last few minutes of his life, that the prison authorities had refused such care during the preceding days and that this situation caused his death. It also takes note of the information provided by the State party, namely that several inquiries were carried out into the causes of the death, i.e. acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had not requested medical assistance. The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection. The stated intention of the State party to improve conditions has no impact in the assessment of this case. The Committee notes that the State party has not refuted the causal link between the conditions of the detention of Mr. Lantsov and the fatal deterioration of his state of health. Further, even if the Committee starts from the assertion of the State party that neither Mr. Lantsov himself nor his co-detainees had requested medical help in time, the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. The Committee considers that a properly functioning medical service within the detention centre could and should have known about the dangerous change in the state of health of Mr. Lantsov. It considers that the State party failed to take appropriate measures to protect Mr. Lantsov’s life during the period he spent in the detention centre. Consequently, the Human Rights Committee concludes that, in this case, there has been a violation of paragraph 1 of Article 6 of the Covenant.
9.3 In the light of the above findings of violations of article 6 and article 10 of the Covenant. The Committee does not consider it necessary to pronounce itself on a violation of article 7.
10. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party failed in its obligation to ensure the protection of Mr. Lantsov, who lost his life as a direct result of the existing prison conditions. The Committee finds that articles 6, paragraph 1, and article 10, paragraph 1 of the Covenant were violated.
11. The Committee is of the view that Mrs. Lantsova is entitled, under article 2, paragraph 3 (a) of the Covenant, to an effective remedy. The State party should take effective measures: (a) to grant appropriate compensation (b) to order an official inquiry into the death of Mr. Lantsov; and (c) to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that conditions of detention are compatible with the State party’s obligation under articles 6 and 10 of the Covenant.
It is significant, that the Human Rights Committee emphasises that by arresting or detaining a person, the state takes responsibility for his/her care and ‘the lack of financial means cannot reduce this responsibility’. States are required to take measures to protect the lives of individuals held in their custody. These obligations include not only the duty to provide adequate food and water but also proper medical care in custody when required.
It is evident from this case that states have positive obligations in regard to the right to life that require the expenditure of resources. These positive obligations are of the same nature as those obligations imposed by economic, social and cultural rights. It is also important to stress that even when the state has left the administration of prisons in the hands of private companies or corporations it retains ultimate responsibility for the protection of human rights. Thus the state is still responsible for any mistreatment suffered by individuals in these institutions (see General Comment 20 adopted by the Human Rights Committee ).
In the following case Mr. Rickly Burrell was awaiting execution at St. Catherine District Prison in Jamaica when he submitted the communication alleging that he was sentenced to death as a result of a trial which had not been carried out in accordance with the provisions of the ICCPR. After submitting this complaint, Mr. Burrell and three other death-row prisoners were killed during a prison disturbance. Reports indicated that the prisoners were shot dead after they had tried to take prison guards hostage. However, prior to the incident, some prisoners had received death threats from prison personnel because they had complained of maltreatment. Although the state pathologist carried out autopsies and a police investigation took place, no official report was made available on the circumstances of the incident in which Mr. Burrell died.
Human Rights Committee
Communication No. 546/1993
Views of 18 July 1995
Keywords life - trial within a reasonable time - sentence and conviction reviewed by a higher tribunal - right to be promptly informed of any charges against him/her - right to be brought promptly before a judge
3.4 Counsel claims that, because Mr. Burrell was threatened and ill-treated by warders at St. Catherine prison, the State party has violated articles 7 and 10 of the Covenant. It is further alleged that Mr. Burrell’s death constitutes a violation of article 6, paragraph 1, of the Covenant. In this context, counsel refers to the Committee’s prior jurisprudence and submits that there is a prima facie case that Mr. Burrell was arbitrarily deprived of his life by the authorities of the State and that the law in Jamaica fails strictly to control and limit circumstances in which a person may be deprived of his life. It is submitted that in view of the evidence, the burden of proof now lies on the State to refute that article 6 has been breached. In this context, counsel submits that the State party has sole access to the most significant information, such as the autopsy reports.
3.5 It is also submitted that the warders who killed Mr. Burrell either had the intent to kill him or acted negligently or recklessly as to whether he would be killed; in this connection, it is argued that the shooting was not necessary in the particular circumstances and not proportional to the requirements of law enforcement. Counsel claims that no warnings were given to Mr. Burrell or to the three other inmates who were shot.
3.6 It is argued that the State party failed to take adequate measures to protect Mr. Burrell’s life while he was held in custody. In this context, reference is made to a series of previously reported abuse and killings with regard to which no proper investigations were conducted by the State party, to the lack of training received by warders in restraint techniques and the use of different levels of force, and to the ready access warders have to weapons. Counsel also refers to international norms with regard to the use of force.
3.7 Counsel submits that the State party is under a duty to make a full and thorough inquiry into the allegations and to bring to justice any person found to be responsible for Mr. Burrell’s death and to pay compensation to Mr. Burrell’s family.
Issues and proceedings before the Committee
9.1 The Committee has considered the communication in the light of all the information provided by the parties. It notes with concern that, following the transmittal of the Committee’s decision on admissibility, no further information has been received from the State party clarifying the matter raised by the present communication. The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party examine in good faith all the allegations brought against it, and that it provide the Committee with all the information at its disposal. In the light of the failure of the State party to cooperate with the Committee on the matter before it, due weight must be given to the allegations submitted on behalf of Mr. Burrell, to the extent that they have been substantiated.
9.4 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, when no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6(16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that “the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review of conviction and sentence by a higher tribunal. In the present case, since the final sentence of death was passed without effective representation for Mr. Burrell on appeal, there has consequently also been a violation of article 6 of the Covenant.
9.5 The Committee has carefully examined all information forwarded by both counsel and the State party in relation to Mr. Burrell’s death following the hostage taking of some warders at St. Catherine prison’s death row section, on 31 October 1993. It regrets that the State party has not made available the autopsy report nor the results of the Coroner’s inquest in the case. The Committee notes that counsel has alleged, on the basis of letters received from other inmates in St. Catherine Prison, that Mr. Burrell was shot after the warders were already released, and thus the need for force no longer existed. The Committee notes that the State party itself has acknowledged that Mr. Burrell’s death was the unfortunate result of confusionÄon the side of the warders, who panicked when seeing some of their colleagues being threatened by the inmates, and that the report submitted by the State party acknowledges that the shooting continued after the warders were rescued. In the circumstances, the Committee concludes that the State party has failed in taking effective measures to protect Mr. Burrell’s life, in violation of article 6, paragraph 1, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose (a) a violation of article 14, paragraph 3(b) juncto 5, and consequently of article 6, paragraph 2, and (b) of article 6, paragraph 1, of the International Covenant on Civil and Political Rights.
11. Under article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide an effective remedy for the violations of which Mr. Burrell became the victim. The Committee is of the opinion that in the circumstances of the case, this entails the payment of compensation to the family of Mr. Burrell. The State party is under an obligation to ensure that similar violations do not occur in the future.
The failure by the state to take appropriate measures to protect Mr. Burrell from the excessive use of force by prison wardens constituted a violation of the right to life. In addition, the Human Rights Committee found a violation of the right to life because Mr. Burrell was sentenced to capital punishment following a procedure that did not meet the requirements of a fair trial (see Death Penalty or Capital Punishment ).
In Aktaç v. Turkey the applicant’s brother Yakup Aktaç was arrested in November 1990 by Turkish forces. Prior to his arrest he had been in good health but a few days later he died in an interrogation centre. A forensic examination concluded that it was not possible to determine the cause of death from the information available.
European Court of Human Rights
Application No. 24351/95
Judgement of 24 April 2003
Keywords: life – effective remedy – torture
A. General considerations
1.In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, amongst other authorities, Avsar v. Turkey, cited above,§ 391). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (Orhan, cited above,§ 326)
2. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (Salman v. Turkey [GC], no. 21986/93,§ 100, ECHR 2000-VII; Çakici v. Turkey [GC], no. 23657/94,§ 85, ECHR 1999 IV; Ertak v. Turkey, no. 20764/92,§ 32, ECHR 2000-V; Timurtas v. Turkey, cited above,§ 82, ECHR 2000-VI; and Orhan, cited above,§ 327).
B. The circumstances of Yakup Aktas’s death
3.The Court [?] therefore finds that Yakup Aktas was deprived of his life in circumstances engaging the responsibility of the respondent State. There is nothing to suggest that this was necessary for any of the reasons set out in the second paragraph of Article 2 of the Convention.
4. There has therefore been a violation of that Article in this respect.
C. Alleged inadequacy of the investigation
5.The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann and Others judgment, cited above,§ 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I,§ 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, 0lhan v.Turkey [GC] no. 22277/93,§ 63, ECHR 2000-VII)
6. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV,§ 81-82, and Our, cited above, no. 21594/93,§ 91-92, ECHR 1999-III). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (for example, the Kaya judgment, cited above,§ 87) and to the identification and punishment of those responsible (Our, cited above,§ 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye-witness testimony (see, concerning witnesses, for example, Tanrikulu v. Turkey, cited above,§ 109). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (Orhan, cited above,§ 355).
7. In these circumstances, the Court finds, as the Commission did, that the investigation was capable neither of yielding the information required to determine whether the force used was justified under Article 2 of the Convention, nor of securing evidence sufficient to bring the perpetrators to justice.
8. There has therefore been a violation of Article 2 in this respect also.
In this case, the Court not only stresses the importance of complying with the duty to carry out an effective investigation (see above), but it also emphasises that detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the state to provide a plausible explanation of how those injuries were sustained. As the Court noted, the obligation of the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or ‘disappears’ during detention. It is also worth stressing that, according to Court when injuries or death take place with the exclusive knowledge of the authorities, the burden of the proof falls on the state because there is a presumption that the injuries and deaths occurred during detention.
Within the African system, the case of Ken Saro-Wiwa and others against Nigeria is notable. Here the African Commission’s findings related to the right to life will be discussed but this case is also examined under the prohibition of torture, What is Torture and Ill-Treatment? This case refers to the detention and trial of Kenule Beeson Saro-Wiwa and eight co-defendants. During a riot which followed a public meeting organised by Movement for the Survival of the Ogoni People (MOSOP), Saro-Wiwa, a writer and Ogoni activist, president of the MOSOP, was arrested along with hundreds of people. Mr. Saro-Wiwa was severely beaten during the first days of his detention and was held for several days in leg irons and handcuffs. He was denied access to his lawyer and the medicine he needed to control his blood pressure, at times prevented from seeing his family, and held in very poor conditions. Mr. Saro-Wiwa and eight of the co-defendants were subsequently sentenced to death in a trial which did not comply with due process guarantees.
International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria
African Commission of Human and Peoples’ Rights
Communications Nos. 137/94, 139/94, 154/96 and 161/97, Twelfth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1998-1999 Annex V.
Keywords: life – torture - arbitrary arrest or detention - death penalty - execution, while case pending before African Commission – health - fair hearing
102. Article 4 of the African Charter reads:
“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
103. Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4. The violation is compounded by the fact that there were pending communications before the African Commission at the time of the executions, and the Commission had requested the government to avoid causing any “irreparable prejudice” to the subjects of the communications before the Commission had concluded it consideration. Executions had been stayed in Nigeria in the past on the invocation by the Commission of its rule on provisional measures (Rule 109 now 111) and the Commission had hoped that a similar situation will obtain in the case of Ken Sarow-Wiwa and others. It is a matter of deep regret that this did not happen.
104. The protection of the right to life in Article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims’ lives was seriously endangered by the denial of medication during detention. Thus, there are multiple violations of Article 4.
In line with the jurisprudence of other human rights supervisory bodies, the Commission stated that the imposition of the death penalty must comply with due process guarantees. In addition, and going beyond established case-law on the topic, the Commission provided a broad interpretation of the right to life. In fact, it considered that denying medication to a prisoner, endangering his life but without causing his death, also constituted a violation of the right to life ‘as the right to life also included a duty not to purposefully let a person die while in custody’. Regrettably, the Commission did not further elaborate on this point.
Selected additional cases: I/A Court H.R. Durand and Ugartev. Peru , Judgement of 16 August 2000, Series C No. 68;Bulaciov. Argentina , Judgement of 18 September 2003, Series C No. 100 and the provisional measures adopted by the Court to protect the life and personal safety of the inmates at the Urso Branco Prison in Brazil. The Court also requested the state to adjust conditions at this prison to applicable international standards for protection of human rights (see The Urso Branco Prisonsv. Brazil , Order of the Court of 29 August 2002). African Commission:Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwav. Malawi , Communication Nos. 64/92, 68/92 and 78/92.
The duty to provide minimum conditions for a dignified life
The right to life has been interpreted as imposing a duty upon states to satisfy the basic needs necessary for sustaining life. This is clear, for example, from the Human Rights Committee General Comment 6 para. 5, which establishes that:
[T]he Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.
Generally, when dealing with individual cases, international supervisory bodies have taken a cautious position in regard to this duty. However, some progressive decisions have been made.
The following case, also known as ‘The Street Children’ case, deals with the murder of five children who lived on the streets of Guatemala City, by members of the National Police of Guatemala (this case is also discussed under under prohibition of torture and ill-treatment, Mental Distress as Torture or Ill-Treatment .
Villagrán Morales et al. v. Guatemala
Inter-American Court of Human Rights
Judgement of 19 November 1999
Series C No. 77
Keywords: life - children’s rights - positive obligations – torture - disappearance
Violation of Article 4
(Right to Life)
139. In its final arguments, the Commission underscored the ius cogens nature of the right to life and the fact that it is the essential basis for the exercise of the other rights. The Commission stated that compliance with Article 4 in relation to Article 1.1 of the Convention, not only presumes that no person shall be deprived of his life arbitrarily (negative obligation), but also requires the States to take all necessary measures to protect and preserve the right to life (positive obligation). It concluded, therefore, that the State had violated two aspects of the said right because, when the events took place, the “street children” were the object of different types of persecution, including threats, harassment, torture and murder. In consequence, there were a great many complaints to which the State should have responded with effective investigations, prosecutions and punishment; however, the State agents who were responsible were rarely investigated or convicted, and this gave rise to the de facto impunity that allowed, and even encouraged, the continuation of these violations against the “street children”, increasing their vulnerability.
142. In the instant case there is extensive concurring evidence that it was State agents and, more specifically, members of the National Police Force, who murdered Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes and Anstraum Aman Villagrán Morales [?]
143. As State agents perpetrated the five homicides, the Court must necessarily conclude that they may be attributed to the State.
144. The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.
191. In the light of Article 19 of the American Convention, the Court wishes to record the particular gravity of the fact that a State Party to this Convention can be charged with having applied or tolerated a systematic practice of violence against at-risk children in its territory. When States violate the rights of at-risk children, such as “street children”, in this way, it makes them victims of a double aggression. First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the “full and harmonious development of their personality”, even though every child has the right to harbor a project of life that should be tended and encouraged by the public authorities so that it may develop this project for its personal benefit and that of the society to which it belongs. Second, they violate their physical, mental and moral integrity and even their lives.
This judgement certainly is an important contribution to the jurisprudence on the right to life. The Court interpreted the right to life to include the necessary conditions to maintain a dignified life. Therefore, the state’s duty in protecting the right to life goes far beyond refraining from taking life, protecting against deprivation of life by third parties or carrying out investigations, but extends to creating the conditions to guarantee a dignified existence.
In the following case, the applicants alleged that the military government of Nigeria had been directly involved in oil production through the state oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations had caused environmental degradation and health problems resulting from the contamination of the environment in the region inhabited by the Ogoni People. It was held that the oil consortium had exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities and that the Nigerian government had condoned and facilitated these violations by placing the legal and military powers of the state at the disposal of the oil companies. The communication alleged that the government had neither monitored operations of the oil companies nor required standard safety measures. In addition, it was alleged that the Nigerian security forces had attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement for the Survival of Ogoni People (MOSOP). These attacks were said to have come in response to MOSOP’s non-violent campaign in opposition to the destruction of their environment by oil companies. As a result, the communication alleged violations of Articles 2, 4 (right to life), 14, 16, 18(1), 21, and 24 of the African Charter.
The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria
African Commission on Human Rights
Communication No. 155/96
Fifteenth Activity report 1999-2000, Annex V
Keywords: life – health – environment - right to dispose of one’s wealth and natural resources – property – housing – food - obligation to respect - obligation to protect - obligation to fulfil - transnational corporations
43. The present Communication alleges a concerted violation of a wide range of rights guaranteed under the African Charter for Human and Peoples’ Rights. Before we venture into the inquiry whether the Government of Nigeria has violated the said rights as alleged in the Complaint, it would be proper to establish what is generally expected of governments under the Charter and more specifically vis-à-vis the rights themselves.
44. Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights-both civil and political rights and social and economic-generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these rights. These obligations universally apply to all rights and entail a combination of negative and positive duties. As a human rights instrument, the African Charter is not alien to these concepts and the order in which they are dealt with here is chosen as a matter of convenience and in no way should it imply the priority accorded to them. Each layer of obligation is equally relevant to the rights in question.
45. At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action. With respect to socio economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.
46. At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms. This is very much intertwined with the tertiary obligation of the State to promote the enjoyment of all human rights. The State should make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, and even building infrastructures.
47. The last layer of obligation requires the State to fulfil the rights and freedoms it freely undertook under the various human rights regimes. It is more of a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights. This is also very much intertwined with the duty to promote mentioned in the preceding paragraph. It could consist in the direct provision of basic needs such as food or resources that can be used for food (direct food aid or social security).
48. Thus States are generally burdened with the above set of duties when they commit themselves under human rights instruments. Emphasising the all embracing nature of their obligations, the International Covenant on Economic, Social, and Cultural Rights, for instance, under Article 2(1), stipulates exemplarily that States “undertake to take steps?by all appropriate means, including particularly the adoption of legislative measures.” Depending on the type of rights under consideration, the level of emphasis in the application of these duties varies. But sometimes, the need to meaningfully enjoy some of the rights demands a concerted action from the State in terms of more than one of the said duties. Whether the government of Nigeria has, by its conduct, violated the provisions of the African Charter as claimed by the Complainants is examined here below.
50. The Complainants allege that the Nigerian government violated the right to health and the right to clean environment as recognized under Articles 16 and 24 of the African Charter by failing to fulfill the minimum duties required by these rights. This, the Complainants allege, the government has done by -:
- Directly participating in the contamination of air, water and soil and thereby harming the health of the Ogoni population,
- Failing to protect the Ogoni population from the harm caused by the NNPC Shell Consortium but instead using its security forces to facilitate the damage
- Failing to provide or permit studies of potential or actual environmental and health risks caused by the oil operations
Article 16 of the African Charter reads:
“(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.
(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.”
Article 24 of the African Charter reads:
“All peoples shall have the right to a general satisfactory environment favourable to their development.”
51. These rights recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. As has been rightly observed by Alexander Kiss, “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.”
52. The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, therefore imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health enunciated in Article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development (Article 16(3)) already noted obligate governments to desist from directly threatening the health and environment of their citizens. The State is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the State for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual.
64. The Communication argues that the right to food is implicit in the African Charter, in such provisions as the right to life (Art. 4), the right to health (Art. 16) and the right to economic, social and cultural development (Art. 22). By its violation of these rights, the Nigerian Government trampled upon not only the explicitly protected rights but also upon the right to food implicitly guaranteed.
65. The right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation. The African Charter and international law require and bind Nigeria to protect”and improve existing food sources and to ensure access to adequate food for all citizens. Without touching on the duty to improve food production and to guarantee access, the minimum core of the right to food requires that the Nigerian Government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves.
66. The government’s treatment of the Ogonis has violated all three minimum duties of the right to food. The government has destroyed food sources through its security forces and State Oil Company; has allowed private oil companies to destroy food sources; and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves. The Nigerian government has again fallen short of what is expected of it as under the provisions of the African Charter and international human rights standards, and hence, is in violation of the right to food of the Ogonis.
67. The Complainants also allege that the Nigerian Government has violated Article 4 of the Charter which guarantees the inviolability of human beings and everyone’s right to life and integrity of the person respected. Given the wide spread violations perpetrated by the Government of Nigeria and by private actors (be it following its clear blessing or not), the most fundamental of all human rights, the right to life has been violated. The Security forces were given the green light to decisively deal with the Ogonis, which was illustrated by the wide spread terrorisations and killings. The pollution and environmental degradation to a level humanly unacceptable has made it living in the Ogoni land a nightmare. The survival of the Ogonis depended on their land and farms that were destroyed by the direct involvement of the Government. These and similar brutalities not only persecuted individuals in Ogoniland but also the whole of the Ogoni Community as a whole. They affected the life of the Ogoni Society as a whole. The Commission conducted a mission to Nigeria from the 7th – 14th March 1997 and witnessed first hand the deplorable situation in Ogoni land including the environmental degradation.
68. The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples’ Rights imposes upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective. As indicated in the preceding paragraphs, however, the Nigerian Government did not live up to the minimum expectations of the African Charter.
69. The Commission does not wish to fault governments that are labouring under difficult circumstances to improve the lives of their people. The situation of the people of Ogoniland, however, requires, in the view of the Commission, a reconsideration of the Government’s attitude to the allegations contained in the instant communication. The intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities. [?]
For the above reasons, the Commission,
Finds the Federal Republic of Nigeria in violation of Articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter on Human and Peoples’ Rights;
Appeals to the government of the Federal Republic of Nigeria to ensure protection of the environment, health and livelihood of the people of Ogoniland by:
- Stopping all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and permitting citizens and independent investigators free access to the territory;
- Conducting an investigation into the human rights violations described above and prosecuting officials of the security forces, NNPC and relevant agencies involved in human rights violations; - Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations;
- Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and - Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations. [?]
This is a very important finding which contributes significantly to the protection of economic, social and cultural rights. In regard to the topic under examination, the Commission found that the facts disclosed a violation of the right to life. Among other facts, the destruction of food and villages, the killing and other widespread terror activities perpetrated by the military, and the environmental degradation the Nigerian government had tolerated, grounded this finding.
In addition, it is worth mentioning that the Commission also found that Nigeriahad violated the right to health and the right to a clean environment. It found that the right to housing or shelter is implicitly entrenched in the right to enjoy the highest attainable standard of mental and physical health, the right to property, and the protection of the family, giving protection through this interpretation to the rights to housing and food, which are not expressly recognised in the African Charter.
In the following inter-state complaint, the applicant state alleged that Turkey had violated several rights, including the right to life, with respect to the situation that had existed in northern Cyprus since the start of Turkey’s military operations there in July 1974. These complaints were invoked, inter alia, with reference to the living conditions of Greek Cypriots in northern Cyprus. The applicant state maintained that the restrictions on the ability of the Greek Cypriots and Maronites in northern Cyprus to receive medical treatment and the failure to provide or to permit receipt of adequate medical services gave rise to a violation of Article 2 of the European Convention . It was stated that in these communities there were no adequate emergency and specialist services or geriatric care. The European Commission found that there had been no violation of Article 2 by virtue of denial of access to medical services. The Court did not rule out the possibility that a denial of medical treatment could be a breach of Article 2, although it considered that it was not proven in this case.
European Court of Human Rights
Application No. 25781/94
Judgement of 10 May 2001
Keywords: life - inhuman treatment or punishment - security of person - property - home, respect for - effective remedy - freedom of religion - fair trial - health
THE CIRCUMSTANCES OF THE CASE
A. General context
9. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory ofCyprus. At the time of the Court’s consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996-VI, p. 2223,§ 16-17):
“16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army’s headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.
17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns ‘TRNC citizens’ by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the ‘TRNC’.”
10. A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985. This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.
11. According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations.
12.United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General’s Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”.
Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations.
C. The instant application
13. The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”.
These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.
V. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus
14. The applicant Government asserted that the living conditions to which the Greek Cypriots who had remained in the north were subjected gave rise to substantial violations of the Convention. They stressed that these violations were committed as a matter of practice and were directed against a depleted and now largely elderly population living in the Karpas area of northern Cyprus in furtherance of a policy of ethnic cleansing, the success of which could be measured by the fact that from some 20,000 Greek Cypriots living in the Karpas in 1974 only 429 currently remained. Maronites, of whom there were currently 177 still living in northern Cyprus, also laboured under similar, if less severe, restrictions.
15. The applicant Government invoked Articles 2, 3, 5, 6, 8, 9, 10, 11, 13, 14 of the Convention and Articles 1 and 2 of Protocol No. 1.
B. As to the merits of the applicant Government’s complaints
1. Article 2 of the Convention
16. The applicant Government maintained that the restrictions on the ability of the enclaved Greek Cypriots and Maronites to receive medical treatment and the failure to provide or to permit receipt of adequate medical services gave rise to a violation of Article 2 of the Convention.
17. In their submission, the respondent State must be considered, as a matter of administrative practice, to have failed to protect the right to life of these communities, having regard to the absence in northern Cyprus of adequate emergency and specialist services and geriatric care. In support of their submission, the applicant Government observed that aged Greek Cypriots were compelled to transfer to the south to obtain appropriate care and attention.
219. The Court observes that an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally. It notes in this connection that Article 2§ 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1403,§ 36). It notes, however, that the Commission was unable to establish on the evidence that the “TRNC” authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. It observes that during the period under consideration medical visits were indeed hampered on account of restrictions imposed by the “TRNC” authorities on the movement of the populations concerned and that in certain cases delays did occur. However, it has not been established that the lives of any patients were put in danger on account of delay in individual cases. It is also to be observed that neither the Greek-Cypriot nor Maronite populations were prevented from availing themselves of medical services including hospitals in the north. The applicant Government are critical of the level of health care available in the north. However, the Court does not consider it necessary to examine in this case the extent to which Article 2 of the Convention may impose an obligation on a Contracting State to make available a certain standard of health care.
220. The Court further observes that the difficulties which the Greek Cypriot and Maronite communities experience in the area of health care under consideration essentially stem from the controls imposed on their freedom of movement. Those controls result from an administrative practice which is not amenable to challenge in the “TRNC” courts (see paragraph 41 above). On that account, the Court considers that the issue of non-exhaustion need not be examined.
221. The Court concludes that no violation of Article 2 of the Convention has been established by virtue of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus.
It is striking that in this case the Court recognised that denial of health care may raise issues under the right to life (Article 2). It stresses that the duty to protect the life of individuals under state jurisdiction goes beyond the obligation to refrain from intentional and unlawful taking of life and it requires states ‘to take appropriate steps to safeguard the lives of those within its jurisdiction’ (para. 219).