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Published: Fri, 02 Feb 2018
Application Of The Right To Life Provisions
The European Convention on Human Rights (ECHR), ratified in 1950, protects in its Article 2 the “Right to Life”. On one hand, the first paragraph provides that the State has an obligation to protect the right to life of everyone by law. Therefore, intentionally deprivations of life are not allowed “save in the execution of a sentence of a criminal court for which this penalty is provided by law”.(Article2). However, Protocol 6 to the Convention, that abolishes the death penalty in peacetime, entered into force in 1985. It was ratified by all the Council of Europe member states, except Russia. (put reference echr website. Look at reference). In addition, Protocol 13 concerning the abolition of the death penalty in all circumstances including time of war or imminent threat of war, entered into force on 2003. Actually, only Azerbaijan and Russia have not signed the protocol and there are three states whose have signed it but not ratified. (reference)
On the other hand, the second paragraph of Article 2 regulates the cases in which causing deaths does not implied breach of the convention when it results from the use of force which is no more than “absolutely necessary”. The cases are the followings: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection.
Furthermore, Article 15 (ECHR) disciplines the cases in which, in time of emergency, any Contracting Party could derogate from its obligations under the convention. It is specified that derogations from Article 2 are not allowed with the exception of “…deaths resulting from lawful acts of war…”.(testo art15). According to the first statement of the European Court of Human Rights on the topic of Article 2, in the case McCann v. United Kingdom (1995), this provision is one of the most fundamental in the Convention because together with Article 3 they show the “heart” of values in democratic societies making up the Council of Europe. As observed by Reid (2008), the circumstances justified in which the use of force by the State results in deprivation of life are “exhaustive” and must be “narrowly interpreted”.
After the judgement relating to the case McCann v.UK (1995), the Strasbourg Court’s jurisprudence has been greatly enriched concerning the right to life and limits of using force by the State. The most part of cases handled by the Court under Article 2, from 1995 onwards, regards principally two countries members of the Council of Europe: the United Kingdom (almost only for acts of blood during the repression of riots in Northern Ireland) and Turkey (cases relating to the armed intervention in predominantly Kurdish areas). The following essay will analyze very briefly some of those cases on which the Court has decided, trying to highlight the new interpretative guidelines that are emerging since the case McCann v. UK (1995) and by focusing on the tasks that the State must necessarily put in place to fulfil the “positive” obligations established by Article 2.
CASES OF USE OF FORCE
First of all the “memorable” judgment in McCann v. UK (1995) will be explored because it constitutes the “starting point” in the jurisprudence regarding Article 2.
In 1988 the British, Spanish and Gibraltar intelligences knew that the Provisional Irish Republican Army (IRA) was working on a terrorist attack against the British army, in a place where they used to change the guard, located in Gibraltar. The Gibraltar Commissioner of Police was in possess of some information under which the assumptive attack would take place by a car bomb and the use of a radio-controlled device to detonate it. In addition, the suspects (Daniel McCann, Mairead Farrell and Sean Savage) were known by the Security Services as experts in bombs and were supposed to be dangerous because armed. Savage was seen parking a car in the thought area of attack; McCann and Farrell were seen looking at this car thirty minutes later; the British bomb-disposal adviser noted that the car aerial was out of place. The Police Commissioner immediately informed, ordered to proceed at the capture of the suspects. Two soldiers in plain clothes were going to arrest McCann and Farrell but them, as the soldiers had reported, made strange movements (thought they were trying to press the remote control device to detonate the bomb). Consequences: McCann and Farrell were killed by the soldiers with twelve shots. In the meantime Savage was followed by other two soldiers. Same scene, same result: Savage was killed by fifteen shots. After the deaths, no weapons or detonation devices were found on the suspects’ bodies; no bomb in the car but, in Farrell’s bag, were found the keys of a car parked in Marbella with 64 Kg of explosive. Then, there was an inquest by Gibraltar authorities (seventy-nine witness were heard) and the jury concluded for “lawful killing”. The relatives proposed a civil action against the Ministry of Defence in Northern Ireland but it was rejected. Therefore, they complained to the Commission about the planning and execution of the counter-terrorist operation alleging that it was in breach of Article 2. The Commission concluded for no breach.
(par.147)In this case, the Court of Human Rights interpreting the meaning of Article 2 pointed out that this provision does not allow intentional killing by the State in the three scheduled circumstances (art 2.2), but it contemplates only the situations in which is permitted the “use of force” which may results in the loss of life. In addition, it must be “absolutely necessary”(par.148). The test of necessity must be done in a stricter way than in determining when the State’s action is “necessary in a democratic society” as appear under Articles from 8 to 11. The State’s action also requires to be “strictly proportionate” for the realization of an objective under Article 2.2. (par.149). The general prohibition of causing deaths by the State’s agents would be ineffective, in practice, without the existence of a procedure provided by the national law for the test of “legality”. Perhaps, Article 1 (ECHR) imposes the duty on the State to “secure everyone within their jurisdiction the rights and freedoms defined in the Convention”. For this matter, the Court did not find a breach of Article 2.1 because it considered as impartial and careful the investigation on the circumstances in which the lethal force was used.(par.161-163).
Giving to the duty on the State to protect the right to life of everyone a major logic, the Court observed that it is necessary to analyze not only the proportionality of the action taken by the agents but also the planning and control of the operation by the authorities devoted to this issue to minimise the recourse to lethal force(194). However, according to the Court, the use of force by the soldiers in that specific situation was “absolutely necessary” in the light of the information they had, for the purpose to prevent the terrorists in detonating the bomb. A new rule was delineated in this judgement: the use of force by the State in one of the three circumstances provided by Article 2-2 could be justified when “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”.(par.200) Must be remembered that after the killings no bomb in the car, no weapons or detonation devices were found in the suspects’ bodies. The point is to check how the whole anti-terrorist operation was controlled and organized.(201-2-3) The Court found a breach of Article 2 for those reasons: first of all, the authorities should have avoid those murders by stopping the suspects at the borders; secondly, information from intelligence turned out to be wrong; thirdly, for the use of British special forces (SAS), soldiers trained to shoot to kill. Consequently, the State’s responsibility was found on the failure in controlling and organizing the operation. Needs to be underlined that this judgment was taken by ten votes to nine.
In searching a different judgement with similar events, it is helpful to analyze another case brought in front of the Court: Andronicou and Constantinou v. Cyprus (1997). In Christmas of 1993, Andronicou barricaded himself and his girlfriend Constantinou at home, threatening to kill her at the stroke of midnight and to commit a suicide after. During the day the police tried to bring an end to the incident through persuasion and dialogue with Andronicou but it came out without results. The chief of police sent the platoon of Police Special Forces (MMAD) to deal with the matter. In one hand, Constantinou was known to be armed with a double-barrelled hunting gun and was suspected to be in possession of other weapons. On the other hand, the MMAD officers were armed with pistols and machine guns with torches attached. Their targets were to disarm and arrest the man and free the woman using only proportionate force and fire if Constantinou and their lives were in danger. Few minutes before midnight the MMAD officers went inside the flat: the first was shot in the shoulder by Andronicou who then shot Constantinou’s hands and shoulder. Other two soldiers who arrived immediately after, killed Andronicou with twenty-five bullets and, unlucky, two bullets hit the woman who died some hours later in the hospital. After that, the Government made an inquiry about the operation concluding for the legality of using force. In opposition, the Commission found a breach of Article 2 on the topic of planning and control of the situation focusing on the error in using MMAD forces to end a domestic dispute.
The Court’s approach in this case was different from the judgement of McCann (1995). It concluded for the absence of any breach of Article 2. The judges considered that “the negotiations were in general conducted in a manner which can be said to be reasonable in the circumstances”(par. 183). The police tried to stop Andronicou’s purposes asking help to the family and friends, attempting to convince him to release the hostage (also by delivering in the flat food drugged with a sedative) and instructing the soldiers to open fire only if Constantinou’s life or their own lives were in danger. In addition, soldiers were equipped with machine guns with torches that would have enable them, eventually, to locate the woman in a dark room filled with tear gas and to control the use of their weapons. Obviously, there were some mistakes in the control of the operation by the police. For example, the lack of crowd control and the absence of a dedicated telephone line between them and Andronicou for the negotiation. However, the Court did not find a breach of Article 2, unlike McCann case (1995), because was verified that the officers were not provided with misleading information (Reid 2008). Nevertheless, the same tests in the examination of the event were applied: the one about absolutely necessity of using force for one of the purposes described in paragraph 2 Article 2 and the one about the planning and organization of the operation.
In the Ergi v. Turkey (1998) case, the applicant’s sister was killed in 1993 while she was in the terrace of her house during what was described as been a punitive expedition by the Government’s forces against the homes of a village where the day before the PKK terrorists had killed a “collaborator” of the Government. It sustained that there had been a clash between the Security Forces and the PKK group and that the death of Ergi took place by a bullet coming from the PKK militants.
The Court, in the powerlessness of establishing the origin of the bullet that had killed the woman, focused on the planning and control of the operation by the Security Forces, also taking into account the absence of clear information by the Government. In the analysis of the action, the Court, must consider all the precautions adopted by the State “to avoid or minimise, to the greatest extent possible, any risk to the lives of the villagers, including from the fire-power of the PKK members caught in the ambush”(par. 79 sentenza). Having regard to the Commission’s report, the Court agreeing held that the planning and conduct of the ambush operation, also in the light of the failure of the respondent State to provide evidences, was undertook with a real risk to the lives of the civilian population(par.81). Therefore, was enough just that the authorities had placed the victim in danger to commit a violation of Article 2.
CASES OF INVESTIGATIONS
In developing the meaning of Article 2 both with the duties on the State, the Court pointed out the existence of an implied obligation: to undertake effective investigations into killings. This rule comes from the McCann (1995)’s assessment but was fully elaborated in Kaya v. Turkey (1998). Here, the applicant complained to the Commission that his brother was killed by Turkish Security Forces in 1993 without reasons. The Government sustained he was a terrorist killed during a military operation. The Court found a breach of Article 2 because there was an ineffective investigation about Kaya’s death. Perhaps, the Turkish prosecutor had not commenced any investigation that an independent and impartial body should have started but had assumed in its entirety the reconstruction proposed by military authorities, despite glaring shortcomings. In particular, they did not collect any deposition and did not interrogate the soldiers whom were at the scene; the corpse was handed over to villagers with the result that an analysis of the bullets lodged in the body was impossible. Furthermore, was unfeasible reconstructing if Kaya would belonged to the Workers’ Party of Kurdistan (PKK), a terrorist group. Mowbray (2007) argues that “if investigations are to satisfy the requirements of Article 2 they must be genuinely rigorous and not merely ritualistic charades”.
In 2001 the Court of Human Rights decided four cases (Hugh Jordan v. UK; Kelly v. UK; Shanaghan v. UK; McKerr v. UK) discussing them together because their similarities in point of legal reasons. In these judgments the common feature is that Article 2 requires that all complaints about unlawful killing must be investigated in an effective way. For the purpose to provide an example, the case Hugh Jordan v. UK (2001) will be analyzed.
Pearse Jordan was killed in 1992 by an anti-terrorism special agent of the Royal Ulster Constabulary (RUC) in Belfast. According to the agent’s declaration, him and his team were preparing to intercept a car suspected of carrying explosives as proxy for IRA. Jordan was driving. On stopping the car, the agent opened the fire against the driver. A car chase started in the traffic, ended with the car ramming by police. Jordan, started to escape and when the agent shouted to stop himself, he turned in a position that the officer considered threatening. Result: Jordan was killed by several shots. No guns, ammunition, explosives, masks or gloves had been found in the car and the driver. The next day, the agent was interrogated by a superior of the RUC that in 1993 sent the report of the inquiry to the Director of Public Prosecutions (DPP), the independent body appointed by the Attorney General which promotes and conduct criminal proceedings in Northern Ireland. The DPP is not bound to give reasons in a decision to do not open a criminal proceeding. Subsequently, the decision of the DDP induced the Independent Commission for Police Complaints (which is responsible in carrying out disciplinary proceeding against security forces’ members) to not proceed against the agent who fired at Jordan. For determining the circumstances of the death, the Coroner decided to open an investigation which clashed with the obstruction of the Government. In particular, the British Ministry of Defence announced that the Coroner could have not use for its inquiry any information considered relevant for the national safety, including the revelation of the names of the soldiers involved in the operation. The investigation began in 1995 with the full participation of the relatives of Jordan but, the agent, communicated his absence in the proceeding. Consequently, the family of Jordan raised a number of objections about the way in which the Coroner was carrying out its investigation, in particular, by focusing on the matter of the prohibition to participate at the hearing of the military witnesses. All the appeals were rejected. Finally, after other procedural problems, the father of Pearce Jordan appealed to the European Commission alleging many violations of the ECHR including Article 2.
Here, the Court reminded almost all the statements made in McCann v. UK (1995) and in Kaya v. Turkey (1998), including other rules delineated in many cases. It found a violation of Article 2 in the failure to comply with the procedural obligation under the Convention. Precisely, some shortcomings were found in the State’s investigation: (par.142) lack of independence of the police officers that conducted the investigation from the officers implicated; lack of public scrutiny, and information to the Jordan’s family, of the reasons for the decision taken by the DPP to not prosecute any police officer; the absence of legal aid for the representation of the victim’s family and the non-communication of the witness statements before their appearance at the inquest prevented the participation of the applicant at the proceedings. Furthermore, the inquiry was not promptly started and continued with reasonable expedition. According to the Court’s judgment, an investigation will only be independent if “ the persons responsible for and carrying out the investigation…” are “…independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence”.(par 106) Going on, the Court explained that an investigation to be “effective” must be “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”. (par.107) The fact that the investigation must be effective “is not an obligation of result, but of means”(par.107).
GUARDARE DIApositive right to life very important
References: scrivere i casi.. in the case: McCann v UK A.324 (1995) 21 EHRR 97 at para: 209, the court argued…
scrivere un paio di libri(ke devo aver citato nel testo) nel testo dellessay scrivere solo MCCANN V UK (1995).
This right has been chosen because of its
fundamental importance. If a State does not
respect a person’s right to life, that person
may not be able to benefit from any of the
other rights and freedoms set out in the
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