Introduction
Article 2 of the European Convention on Human Rights states: Everyone’s right to life shall be protected by law. Though Article 2 is a limited right it is still fundamental as it cannot be derogated from even during times of war. The article institutes two types of obligations on the state. The first being the substantive duty for the state to protect life and refrain from unlawful kills. The second being the procedural duty to initiate an effective investigation into the deaths of public concern. This duty can apply when the killing is done at the hands of state agents or when it is done by private persons. The procedural obligation ensures the possibility of “proper accountability…[and] if necessary criminal prosecution.” This literature review aims to examine the sources and themes that highlight the different facets of a state’s procedural duty. First the review will examine the formulation of the procedural duty; followed by its application in regard to hate crimes. Then it will provide a brief overview of what it is considered an effective investigation. Lastly it will examine the procedural obligation in regard to historical deaths.
McCann and Others v. United Kingdom Application No 18984/91, Judgment (Grand Chamber), 27 September 1995.
The procedural obligation of the state was first introduced in the case McCann and Others v United Kingdom. The case concerned the deaths of Daniel McCann, Sean Savage and Mairéad Farrell who were killed by British Special Air Service (SAS) officers. In the facts presented to the Grand Chamber, the British government stated that security officials received intelligence that indicated an attack on the British Army in Gibraltar. McCann, Savage, and Farrell were deemed suspects as they were members of the Irish Republican Army with knowledge of explosives. The three members made their way from Malaga to Spain; however, they were not stopped from entering Gibraltar. It was believed that they were there to detonate a car bomb and as such rules of engagement were established. As the group was making their way across the Spanish border they were shot and killed by British SAS officers.
The family members of the deceased (the applicants) submitted that the deceased’s Article 2 rights had been violated. The applicants stipulated that Article 2 imposed a positive duty on the state to provide “an effective ex post facto procedure for establishing the facts surrounding the killing by agents of the state.” The UK government countered that the duty to investigate does not derive from the Convention. They went on to say that it would not be “appropriate for the Court to seek to identify a single set of standards by which all investigations […] should be assessed”. Similar arguments concerning the lack of specific wording had been made by other states. The Court utilized the McCann case to reject the UK’s assertion and establish a duty to investigate. The Court stated that when taken in conjunction with Article 1 the Convention requires by implication for there to be some form of effective investigation when an individual is killed by the state. The judgement established that the procedural requirement was different than the substantive requirement of not using lethal force. The case also established how a state can be in violation of one requirement but not necessarily the other. Overall, McCann had a significant impact by stating that states did have a duty to investigate specific types of deaths.
Angelova and Iliev v. Bulgaria Application No 55523/00, Judgement, 26 July 2007.
The applicants Ginka Dimitrova Angelova, and her son, Mikto Fimitrov Iliev were the mother and brother of Angel Dimitrov Iliev. Angle, a man of Roma origin, was attacked by seven teenagers in April 1996. He was severely beaten and later died in the hospital. Following his death, the Bulgarian government detained and question the assailants later that day. One of the assailants ‘G.M.G’ was charged with murder. It was later revealed by another suspect that the crime was racially motivated. However, the authorities claimed that there was no evidence that G.M.G stabbed Angle so they lowered his to ‘hooliganism of exceptional cynicism and impudence’ like the other suspects. During this time the family tried to gain information about the case. They later filed a complaint about the length of the proceeding; however, it appeared that no action was taken in response to their complaint.
In June 2001, investigators concluded that the case should go to trial. However, after that there were no developments for four years. As a result, in 2005 the prosecutor’s office dismissed the charges as the time limit for bringing a case had expired. In its judgement the ECtHR found that investigation had been unduly protracted. Especially since the suspect and evidence was quickly detained. Additionally, the Court found it unacceptable that Bulgaria failed to bring the perpetrators to justice knowing the racial motives behind the attack. In this case the ECtHR established that part of the procedural duty meant the state must partake in a prompt and effective investigations. Angelova also demonstrated the importance of the procedural duty even if the death was not necessarily caused by an agent of the state. It also established a duty to take reasonable steps to investigate crimes of ethnic hatred or prejudice a sentiment that was later reaffirmed in other case law.”
The criteria for an effective investigation
In McCann, the Court stated that there must be “some form of effective investigation”. However, in the McCann case it was not necessary to define what form [the] investigation should take.” As such the Court initially limited itself by not commenting on the exact procedures an investigation should follow. Since McCann jurisprudence in this area has increased and the following looks at the various cases that provided states with the minimum requirements for investigations. In the case Hugh Jordan, the Court referred to a judgement made by Sir Thomas Bingham in which he stated that the purpose of an investigation is to “allay rumours or suspicions”. Strasbourg also highlighted standards made in the Minnesota Protocol in order to institute further requirements. At a minimum an investigation must identify the victim, recover relevant evidence, determine the cause of death, and identify and if possible bring the suspected perpetrators before a court. Further case law also identified that the investigation must be independent , prompt, thorough , and involve the victim’s next of kin.
While the Court has developed ‘prima facie standardized requirements’ they are still open for interpretation. For example, on May 4th 2001 the Court released four judgments concerning the deaths of individuals killed by paramilitary groups in Northern Ireland . In the judgement the Court re-emphasised the important aspects of an investigation; however, it also said that it was not in any position to provide the specific procedures authorities should adopt to investigate individual deaths. These comments led to some obdurate criticism. In their article Christine Bell and Johanna Keenan argued that decision “[continued] a pattern of litigation…and denial of investigation” . They believed that the state should have reopened the case in order to obtain a conviction or prosecution. However, as Juliet Chevalier-Watts points out the Courts would later establish that if an investigation were to provide limited results it does not mean an automatic violation of Article 2; additionally, reopening an investigation might be too burdensome on the state.
The previously mentioned cases clarify the minimum requirements for an effective investigation. While the two articles show how these minimums provide a margin of appreciation despite some controversy.
Harriet Moynihan, “Regulating the Past: The European Court of Human Rights’ Approach to the Investigation of Historical Deaths under Article 2 ECHR” (2017)
In this article, Moynihan examined the circumstances that eventually led the ECtHR to impose a duty for states to investigate deaths that took place before they signed the Convention. Moynihan first discussed how this specific duty can be controversial. Prior to Silih v Slovenia, the ECtHR held that the provisions of the Convention did not bind a contracting state to acts that occurred before they joined. The date the state in question joined the Convention is known as the ‘critical date’. These ideas are based on a principle in international law called non-retroactivity. The principle of non-retroactivity precludes the possibility of litigation that arises out of situations that happened prior to a law being passed. However, Silih v Slovenia the Courts departed from previous case law when the Grand Chamber held that:
“the procedural duty to carry out an effective investigation…had evolved into a separate and autonomous duty detachable from the substantive aspect of article 2 and capable of binding the state even when the death took place before the critical date.”
This meant that a state could be required to investigate deaths that occurred before they signed on to the Convention. On its own it technically meant that any death that occurred prior could be reopened. Which is why the decision proved controversial with other judges. Judge Brazta provided a dissenting opinion and in which he stated that the decision was “tantamount to applying the Convention retrospectively.” The majority opinion countered that the test was not open-opened as the death would have to pass the ‘genuine connection test’. The test stipulated that there must be a connection between the death and country’s entry into the Convention. In addition, a ‘Conventions Values Test’ was established for serious international crimes.
While these ideas were controversial the author states that the ECtHR was basing this decision on other international jurisprudence and the Court later clarified its position in Janowiec by establishing criteria for historical deaths. This criterion particularly expands upon the ‘genuine connection test’. The judgement stated that the test had two parts. The first being that the death in question could not have occurred no more than ten years after the country’s accession to the Convention. Additionally, a major part of the investigation must have taken place (or ought to have taken place) after the critical date. It also states that these rules could not be applied to deaths that occurred before the Convention was conceived. Moynihan states that further clarification is needed when it comes to the application of the criteria, specifically when it concerns the divergence between the state’s critical date and the date of entry into the Convention. Moynihan’s article is important because it provides an in-depth history on the ECtHR’s evolving jurisprudence concerning historical deaths. While it provides a thorough history it also argues that further clarification is needed in this specific area of law.
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