State & Death [ECHR]

Article 2

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally. save in the execution of a sentence of a court following his conviction of a crime for which this penalty. is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results  from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Protocol 6 abolished the death penalty except in times of war. A later Protocol abolished it entirely. Most member states have ratified Protocol 13.

Security Force Killing

Killing by the security forces is permitted only where absolutely necessary. In McCann v UK three members of the IRA had been killed by British special forces in Gibraltar. It was said, but based on inaccurate intelligence, that they were about to detonate a car bomb in a crowded area by touching a button. The court held that it was not necessary to kill the persons concerned because they could have been arrested beforehand. Therefore, the killing breached Article 2.

In Finogenov v Russia 18 suicide bombers took possession of a theatre holding nine h hundred persons at gunpoint and booby-trapped it. Russian security forces stormed the building having put gas through the ventilators. Many of the suicide bombers were shot t while unconscious.

Over a hundred hostages were killed by the gas. The use of gas and the storming of the building were held not to be disproportionate. The court found breaches of Article 2 in the failure to evacuate hostages for over an hour and lack of preparation and medical treatment.

Apprehended Danger

In Andronicou v Cyprus firing on a hostage taker who seemed to be armed and had already fired on police was not disproportionate.

In Giuliani & Gaggio v Italy, a case was taken by relatives of Giuliani who was shot at during demonstrations near the G8 meeting. A truck carrying military police was surrounded by demonstrators who attacked the vehicle.

A military policeman believed that his life was in danger when Giuliani lifted a fire extinguisher apparently to throw at the persons in the vehicle. A deflected bullet killed Giuliani. It was held there was no breach in the circumstances.

Death in Custody

In Timurtas v Turkey the applicant claimed his son had been taken into custody and subsequently disappeared. There was some proof of his being taken into police custody but no direct evidence of what happened. The failure to disclose evidence held by police which would have corroborated other evidence together led to a declaration that Article 3 was violated.

In Saoud v France, a man was restrained by a number of police officers and pinned down for a period ultimately dying from asphyxiation. There was a breach of Article 2.

Various

In Makaratzis v Greece, the applicant was shot and injured during a police chase after he failed to stop. Although he was not killed, Article 2 applied. It was held that the use of force was reasonable in the circumstances. The court criticised the lack of guidelines and the indiscriminate use of firearms.

In Gul v Turkey, an unknown man was shot from behind the door by the police, where they mistakenly believed that somebody was about to fire on them. It was found to be grossly disproportionate and a breach of Article 2.

In Gorgiev Macedonia a police reservist in form who was supposed to be on duty in a police station shot the applicant in a bar while intoxicated. The state was held liable.

In Nikolava v Bulgaria a man engaged in relatively innocuous activity was hit over the head by police and died from a brain haemorrhage. This violated Article 2.

Investigation of suspicious deaths

In McCann v UK the obligation to protect life, read in conjunction with the state’s general duty under Article 1 of the Convention [to secure the rights] requires that there should be some form of effective operational investigation when individuals have been killed as a result of force by inter alios, by agents of the State. In the circumstances, the subsequent inquest was found to be sufficient.

Ramsahai v Netherland concerned a shooting by police. Although the use of force was not excessive in the circumstances for the purpose of the Convention, the court found the investigation to be inadequate. The court set out the requirements as follows.

in order to be effective as this is understood in the context of Article 2 of the Convention an investigation into a death that engages the responsibility of a contracting party under that article must be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermined its ability to identify the perpetrator or perpetrators will risk falling foul of this standard.

In order for the investigation to be effective in this sense it may generally be regarded as necessary that persons responsible for it and carrying it out be independent from those implicated in the event. This means not only a lack of hierarchical or institutional connection but also practical independence. What is at stake here is nothing less than public confidence in the state monopoly on the use of force.

Investigation of Disappearances

In Varnava v Turkey, the European court indicated that the state may have a continuing obligation in respect of the disappearance of missing persons. The case related to the disappearance of Cypriot nationals during the Turkish invasion of North Cyprus in 1974, which was accompanied by systematic arrests, killings and disappearances.

Aslakhanova v Russia concerned the failure properly to investigate disappearances in Chechnya.  The court identified factors which made the investigation inadequate including delays, failure to take vital steps, failure to interview witnesses et cetera.

Jordan v UK involved the investigation into the death of a civilian killed by the police. Inadequacies were identified in the Northern Ireland rules on inquest including the absence of police compellability and the limited possibilities for verdicts. It was found to be insufficient for the purposes of the Article 2 duties and obligations of the state.

Al-Skeini v UK concerned persons shot in Basra during the Iraq war by British soldiers. The European court acknowledged the difficulties and constraints of investigation in an occupied and hostile war region. The investigation was found non-compliant with Article 2 because it was undertaken entirely within the military without the requisite degree of independence.

Other cases have emphasised that proceedings and investigation should be prompt particularly when there is no good reason that it be otherwise.

Menson v UK emphasised the requirement for effective police and criminal justice provisions and arrangements. This includes effective follow-up to investigation and prosecution.

Death & Hunger Strike

Horoz v. Turkey  The applicant’s son died in 2001 while in prison after going on hunger strike to protest against the introduction of “F-type” prisons, designed to provide living spaces for two to three persons instead of dormitories. Before the European Court of Human Rights, the applicant complained in particular that the judicial authorities’ refusal to release her son, contrary to the opinion of the Institute of Forensic Medicine, had led to his death.

The European Court of Human Rights held that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights with regard to the death of the applicant’s son, since it had been impossible to establish a causal link between the refusal to release him and his death. It observed that the death in this case had clearly been the result of the hunger strike. The applicant had not complained either about her son’s conditions of detention or of an absence of appropriate treatment.

While it would have been desirable for the subject to be released following the report of the Institute of Forensic Medicine, there had been no evidence permitting the Court to criticise the judicial authorities’ assessment of the information contained in it. Nor had it found any element enabling it to challenge the conclusion that there had been no case to answer in the investigation conducted by the Minister of Justice. The Court therefore found that the authorities had amply satisfied their obligation to protect the applicant’s son’s physical integrity, specifically through the administration of appropriate medical treatment, and that they could not be criticised for having accepted his clear refusal to allow any intervention, even though his state of health had been life-threatening.

Death Penalty Exposure

Al Nashiri v. Poland  concerned allegations of torture, ill-treatment and secret detention of a Saudi Arabian national of Yemeni descent – who is currently detained in the United States Guantanamo Bay Naval Base in Cuba – suspected of terrorist acts. The Court held that there had been a violation by Poland of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention by having enabled the CIA to transfer the applicant to the jurisdiction of the militarycommission and thus exposing him to a foreseeable serious risk that he could be subjected to the death penalty following his trial. on him.

The Court also found in this case that Poland had failed to comply with its obligation under Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation) of the Convention. It further held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects, a violation of Article 5 (right to liberty and security), a violation of Article 8 (right to respect for private and family life), a violation of Article 13 (right to an effective remedy) and a violation of Article 6 § 1 (right to a fair trial) of the Convention.

Al Nashiri v. Romania The applicant in this case was facing capital charges in the US for his alleged role in terrorist attacks. The case concerned his allegations that Romania had let the United States Central Intelligence Agency (CIA) transport him under the secret extraordinary rendition programme onto its territory and had allowed him to be subjected to ill- treatment and arbitrary detention in a CIA detention “black site”.

The Court held that in the applicant’s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Romanian Government’s failure to effectively investigate the applicant’s allegations and because of its complicity in the CIA’s actions that had led to ill-treatment. The Court also held that there had been violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Articles 3, 5 and 8.

The Court therefore found that the applicant had been within Romania’s jurisdiction and that the country had been responsible for the violation of his rights under the Convention. It further recommended that Romania conclude a full investigation into the applicant’s case as quickly as possible and, if necessary, punish any officials responsible. The Court lastly held that the country should also seek assurances from the United States that the applicant would not suffer the death penalty.

Death Penalty Unfair trial

M.A. and Others v. Bulgaria The applicants in this case were five Chinese nationals, Uighur Muslims from the Xinjiang Uighur Autonomous Region in China.. The applicants submitted that if returned to China they would face persecution, ill-treatment and arbitrary detention and could even be executed. The Court held that the deportation to China of three of the applicants would constitute a violation of Article 2 (right to life) and a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.

It noted in particular that the governmental repression against Uighurs was being justified by the Chinese authorities by the need to combat terrorism and extremism, and that suspicions of separatism or endangering State security could lead to long prison terms or the death penalty without due process. In the present case, the Court found that there were substantial grounds for believing that the applicants would be at real risk of arbitrary detention and imprisonment, as well as ill-treatment and even death, if they were removed to their country of origin. Moreover, there were no effective guarantees, in the process of implementation of the repatriation or the expulsion decisions against the applicants, that they would not be sent back to China.