Civil and political rights have traditionally been considered negative in nature. To what extent is this true of Article 2 of the Convention as interpreted by the European Court of Human Rights?
The European Convention on Human Rights was put in place by the Council of Europe as a way of ensuring respect for personal autonomy, the inherent dignity of persons and the equality of all men and women. It offers a judicial approach to the protection of the fundamental rights and freedoms it concerns. For the most part the Convention guarantees civil and political rights, which have traditionally been considered negative in nature. However, The European Court of Human Rights (EctHR) has thrown doubt over this long standing assumption, in particular with regards to its interpretation of Article 2, which provides that everyone’s right to life shall be protected by law. The right to life is regarded as one of the most fundamental provisions in the Convention as noted in the case of Mc Cann and Others v United Kingdom1 in which it was stated;
‘Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe’.
The Court, keen to ensure the provision of the Convention is interpreted in a way so as to make its safeguards ‘practical and effective’,2 has, however, been cautious in its approach, being careful not to open the interpretation of Article 2 too far and placing an impossible or disproportionate burden on the contracting States. This varied approach has left the law in this area in a less than certain state. I will now go on to discuss the development of the positive obligation present in Article 2 considering the relevant case law.
The submission by the Court in the case of McCann suggests action by the contracting States to ensure protection of the right contained in Article 2 is necessary. There are three levels of positive obligations, the least onerous being to respect, then to protect and the most demanding being to secure. It is most likely the use of the word ‘protect’ in Article 2 is what caused the Court to conclude that the imposition of some positive obligation was intended by the Convention. To suggest on a literal or even purposive interpretation of this provision that the European Council did not intend contracting States to be burdened with some sort of positive obligation would lead to absurdity. It would pose the question, how can you ‘protect’ a right negatively? The Court also often refers back to Article 1 of the Convention when interpreting Article 2 as imposing a positive obligation. It does this by focusing on the duty of contracting States to ‘secure’ the rights and freedoms imposed by the Convention.
The fundamental nature of Article 2 has meant that abounding case law surrounds it. This has determined three main aspects of the right to life. Firstly is the duty of the state to refrain, by its agents, from unlawful killing. This is quite obviously imposing a negative duty on member States, therefore for the purposes of this discussion is irrelevant. The second is the duty to investigate suspicious deaths, an obligation I will return to later. The third is that in some circumstances there is a positive obligation on the state to prevent the avoidable loss of life. This was first recognised in the case of LCB v United Kingdom3 in which it was stated that the first sentence of Article 2(1) obliges the State not only to refrain from intentional unlawful killing but also;
‘…to take appropriate steps to safeguard the lives of those within their jurisdiction’.
Despite the fact that in this particular case the Court was unwilling to hold that the State had breached Article 2 it makes an important statement of principle, that as well as imposing a negative obligation on States, Article 2 also imposes a positive obligation to put in place a legislative framework to protect people. It is this case that provides the stepping-stone to the situation we see today in this area of law. Subsequent case law demonstrates the extensive nature of the duty of States to safeguard life. Onerylidiz v Turkey4 involved a methane explosion at a tip, which caused a landslide killing nine of the Mr Oneryildiz’s relatives and destroying his illegally built home. The Court found a direct casual link between the explosion and the negligence of the authorities, who failed to take any measures to protect inhabitants, although illegal, that they knew were in danger. It was held here by the Grand Chamber that Article 2 entails a duty on the State to ensure an adequate response;
‘…Applying in the context of any activity, whether public or not, in which the right to life may be at stake’5.
Here the law saw a broad interpretation of this positive obligation being imposed. This is fitting in that Article 2 protects a fundamental right, however the Courts must be careful not to impose too strong a burden on contacting States so as not to deter them from joining or remaining party to the Convention.
The undefined positive obligation contained in Article 2 was again in dispute in the case of Osman v United Kingdom6. Here the claim was that the State had breached Article 2 by failing to protect the Claimant’s family from harassment. The Court accepted that Article 2 implied in certain circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual. This extends the positive obligation further than the Court has before, as it suggests contracting States have a duty to protect against risks caused by the actions of any individual, not just their own. However, it was noticed by the Court for such burden to be manageable it must be construed narrowly given the difficulties in modern policing, the unpredictability of human behavior and the restraints on police by virtue of Articles 5 and 8;
‘…Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent the risk form materializing.’7
For this reason the Court established a test to determine when a breach of Article 2 had occurred. It was held that when presented with an allegation that a State has breached its positive duty to protect the life the court must be satisfied that the authorities;
‘…Knew or ought to have known at the time of existence of a real and immediate risk to the life of an identified individual[s] 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 the risk’8.
This test was put to use in the case of Keenan v United Kingdom9 in which the risk to life came from the victim himself. A man with mental health problems committed suicide in prison. The court recognised the vulnerable position of prisoners and that there was a duty on the authorities to protect them without denying them of their rights under Articles 5 and 8. It was held that no breach had occurred as the prison authorities had done all that was reasonably expected of them in the circumstances. This case has a dual effect as on one hand it extends the scope of the positive obligation to include protection from oneself and also the successful use of the test from the Osman case to limit the burden imposed by Article 2. The positive obligation in Article 2 therefore definitely exists and plays an important role in the general working of the Convention. Following the Osman case the extent of the burden of responsibility is reasonably clear however the scope, whom the State has a duty to protect and from what risks, remains to be clarified whether through case law or further legislation on the matter.
Another positive duty which Article 2 imposes on contracting States is the duty to investigate. It was recognised the case of McCann and Others that the prohibition of arbitrary killing by agents of the state would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force. It does this by reading Article 2 in conjunction with Article 1 of the Convention;
‘…The general duty [under Article 1] 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 by, inter alios, agents of the State’10.
This is imposing on States a duty to investigate the loss of any life so as to make sure no breach of the Convention had occurred and where there is found to have been a breach to put the punitive measures in action to deal with it. This is opening up the Article to yet another positive obligation being imposed by the Convention.
The essential purpose of such investigation was later confirmed in the case of Kaya v Turkey11, as being to secure the effective implementation of domestic law, which protects the right to life. This positive obligation has become an important tool for the Court in cases of a complained breach of Article 2 but where the evidence is not sufficiently clear to justify a finding of deliberate killing by the State. In this case the applicant, complaining that his brother had been deliberately killed by soldiers, was unable to establish clearly what events had taken place. The court did however find a breach of Article 2 on the basis that the domestic investigation had been inadequate. The form of the investigation to achieve compliance with Article 2 will vary in different circumstances therefore each case is heavily dependant upon its own facts. But it is clear from Gulec v Turkey12 that for it to comply it must be carried out by someone who is fully independent of those implicated in the events, on the basis of the evidence. Here we see yet another due process safeguard on the positive obligation therefore showing the importance of this imposition on the effectiveness of the Convention.
In conclusion it would be manifestly wrong to consider the European Convention on Human Rights as being wholly negative in nature following recent case law. Although the negative elements are the basis of the Convention it seems it would be largely futile without these positive obligations being read into it. Although some clarification is still necessary as to the extent of these obligations it must be noted that;
‘A genuine exercise of rights protected by Article 1 did not just depend on the duty of the State not to interfere, but could require positive measures of protection’13.
1McCann and Others v. United Kingdom, Judgement of 27 September 1995, (1996) 21 E.H.R.R. 97, para 147
3LBC v. United Kingdom, Judgement of 9 June 1998; (1998) 27 EHRR 212, para, 36
4Oneryildiz v. Turkey (2005) 41 EHRR 325
5Ibid, para, 93
6Osman v. Uinted Kingdom (1998) 29 EHRR 245
7Ibid, para 116
8Ibid, para 116
9Keenan v. United Kingdom (2001) EHRR 903
10McCann and Others v. United Kingdom, Judgement of 27 September 1995, (1996) 21 E.H.R.R. 97. Para 161
11Kaya v. Turkey (1998) 28 EHRR 1
12Gulec v. Turkey (1999) 28 HER 121
13Oneryildiz v. Turkey (2005) 41 EHRR 325