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McCann v UK

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. Germany judgment 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).

159. For the Commission, the inquest subjected the actions of the
State to extensive, independent and highly public scrutiny and
thereby provided sufficient procedural safeguards for the
purposes of Article 2 (art. 2) of the Convention.

160. The Court considers that it is unnecessary to decide in the


present case whether a right of access to court to bring civil
proceedings in connection with deprivation of life can be
inferred from Article 2 para. 1 (art. 2-1) since this is an issue
which would be more appropriately considered under Articles 6
and 13 (art. 6, art. 13) of the Convention - provisions (art. 6,
art. 13) that have not been invoked by the applicants.

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.

166. The applicants, on the other hand, maintained that inquests


are by their very nature ill-equipped to be full and detailed
inquiries into controversial killings such as in the present
case. Moreover, the inquest did not examine the killings from
the standpoint of concepts such as "proportionality" or "absolute
necessity" but applied the lesser tests of "reasonable force" or
"reasonable necessity". Furthermore, the jury focused on the
actions of the soldiers as they opened fire as if it were
considering their criminal culpability and not on matters such
as the allegedly negligent and reckless planning of the
operation.
167. The Commission examined the case on the basis of the
observations of the parties and the documents submitted by them,
in particular the transcript of the inquest. It did not consider
itself bound by the findings of the jury.

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.

170. As regards the appreciation of these facts from the


standpoint of Article 2 (art. 2), the Court observes that the
jury had the benefit of listening to the witnesses at first hand,
observing their demeanour and assessing the probative value of
their testimony.

Nevertheless, it must be borne in mind that the jury's


finding was limited to a decision of lawful killing and, as is
normally the case, did not provide reasons for the conclusion
that it reached. In addition, the focus of concern of the
inquest proceedings and the standard applied by the jury was
whether the killings by the soldiers were reasonably justified
in the circumstances as opposed to whether they were "absolutely
necessary" under Article 2 para. 2 (art. 2-2) in the sense
developed above (see paragraphs 120 and 148-49 above).

171. Against this background, the Court must make its own
assessment whether the facts as established by the Commission
disclose a violation of Article 2 (art. 2) of the Convention.

172. The applicants further submitted that in examining the


actions of the State in a case in which the use of deliberate
lethal force was expressly contemplated in writing, the Court
should place on the Government the onus of proving, beyond
reasonable doubt, that the planning and execution of the
operation was in accordance with Article 2 (art. 2) of the
Convention. In addition, it should not grant the State
authorities the benefit of the doubt as if its criminal liability
were at stake.

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

174. The applicants alleged that there had been a premeditated


plan to kill the deceased. While conceding that there was no
evidence of a direct order from the highest authorities in the
Ministry of Defence, they claimed that there was strong
circumstantial evidence in support of their allegation. They
suggested that a plot to kill could be achieved by other means
such as hints and innuendoes, coupled with the choice of a
military unit like the SAS which, as indicated by the evidence
given by their members at the inquest, was trained to neutralise
a target by shooting to kill. Supplying false information of the
sort that was actually given to the soldiers in this case would
render a fatal shooting likely. The use of the SAS was, in
itself, evidence that the killing was intended.

175. They further contended that the Gibraltar police would not
have been aware of such an unlawful enterprise. They pointed out
that the SAS officer E gave his men secret briefings to which the
Gibraltar police were not privy. Moreover, when the soldiers
attended the police station after the shootings, they were
accompanied by an army lawyer who made it clear that the soldiers
were there only for the purpose of handing in their weapons. In
addition, the soldiers were immediately flown out of Gibraltar
without ever having been interviewed by the police.

176. The applicants referred to the following factors, amongst


others, in support of their contention:

- The best and safest method of preventing an explosion and


capturing the suspects would have been to stop them and their
bomb from entering Gibraltar. The authorities had their
photographs and knew their names and aliases as well as the
passports they were carrying;

- If the suspects had been under close observation by the Spanish


authorities from Malaga to Gibraltar, as claimed by the
journalist, Mr Debelius, the hiring of the white Renault car
would have been seen and it would have been known that it did not
contain a bomb (see paragraph 128 above);

- The above claim is supported by the failure of the authorities


to isolate the bomb and clear the area around it in order to
protect the public. In Gibraltar there were a large number of
soldiers present with experience in the speedy clearance of
suspect bomb sites. The only explanation for this lapse in
security procedures was that the security services knew that
there was no bomb in the car;

- Soldier G, who was sent to inspect the car and who reported
that there was a suspect car bomb, admitted during the inquest
that he was not an expert in radio signal transmission (see
paragraph 53 above). This was significant since the sole basis
for his assessment was that the radio aerial looked older than
the car. A real expert would have thought of removing the aerial
to nullify the radio detonator, which could have been done
without destabilising the explosive, as testified by Dr Scott.
He would have also known that if the suspects had intended to
explode a bomb by means of a radio signal they would not have
used a rusty aerial - which would reduce the capacity to receive
a clear signal - but a clean one (see paragraph 114 above). It
also emerged from his evidence that he was not an explosives
expert either. There was thus the possibility that the true role
of Soldier G was to report that he suspected a car bomb in order
to induce the Gibraltar police to sign the document authorising
the SAS to employ lethal force.

177. In the Government's submission it was implicit in the jury's


verdicts of lawful killing that they found as facts that there
was no plot to kill the three terrorists and that the operation
in Gibraltar had not been conceived or mounted with this aim in
view. The aim of the operation was to effect the lawful arrest
of the three terrorists and it was for this purpose that the
assistance of the military was sought and given. Furthermore,
the jury must have also rejected the applicants' contention that
Soldiers A, B, C and D had deliberately set out to kill the
terrorists, whether acting on express orders or as a result of
being given "a nod and a wink".

178. The Commission concluded that there was no evidence to


support the applicants' claim of a premeditated plot to kill the
suspects.

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

(a) Arguments of those appearing before the Court

(1) The applicants

185. The applicants submitted that it would be wrong for the


Court, as the Commission had done, to limit its assessment to the
question of the possible justification of the soldiers who
actually killed the suspects. It must examine the liability of
the Government for all aspects of the operation. Indeed, the
soldiers may well have been acquitted at a criminal trial if they
could have shown that they honestly believed the ungrounded and
false information they were given.

186. The soldiers had been told by Officer E (the attack


commander) that the three suspects had planted a car bomb in
Gibraltar, whereas Soldier G - the bomb-disposal expert - had
reported that it was merely a suspect bomb; that it was a
remote-control bomb; that each of the suspects could detonate it
from anywhere in Gibraltar by the mere flicking of a switch and
that they would not hesitate to do so the moment they were
challenged. In reality, these "certainties" and "facts" were no
more than suspicions or at best dubious assessments. However,
they were conveyed as facts to soldiers who not only had been
trained to shoot at the merest hint of a threat but also, as
emerged from the evidence given during the inquest, to continue
to shoot until they had killed their target.

In sum, they submitted that the killings came about as a


result of incompetence and negligence in the planning and conduct
of the anti-terrorist operation to arrest the suspects as well
as a failure to maintain a proper balance between the need to
meet the threat posed and the right to life of the suspects.

(2) The Government

187. The Government submitted that the actions of the soldiers


were 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. Each of them had to make a split-second
decision which could have affected a large number of lives. They
believed that the movements which they saw the suspects make at
the moment they were intercepted gave the impression that the
terrorists were about to detonate a bomb. This evidence was
confirmed by other witnesses who saw the movements in question.
If it is accepted that the soldiers honestly and reasonably
believed that the terrorists upon whom they opened fire might
have been about to detonate a bomb by pressing a button, then
they had no alternative but to open fire.

188. They also pointed out that much of the information available
to the authorities and many of the judgments made by them proved
to be accurate. The three deceased were an IRA active service
unit which was planning an operation in Gibraltar; they did have
in their control a large quantity of explosives which were
subsequently found in Spain; and the nature of the operation was
a car bomb. The risk to the lives of those in Gibraltar was,
therefore, both real and extremely serious.

189. The Government further submitted that in examining the


planning of the anti-terrorist operation it should be borne in
mind that intelligence assessments are necessarily based on
incomplete information since only fragments of the true picture
will be known. Moreover, experience showed that the IRA were
exceptionally ruthless and skilled in counter-surveillance
techniques and that they did their best to conceal their
intentions from the authorities. In addition, experience in
Northern Ireland showed that the IRA is constantly and rapidly
developing new technology. They thus had to take into account
the possibility that the terrorists might be equipped with more
sophisticated or more easily concealable radio-controlled devices
than the IRA had previously been known to use. Finally, the
consequences of underestimating the threat posed by the active
service unit could have been catastrophic. If they had succeeded
in detonating a bomb of the type and size found in Spain,
everyone in the car-park would have been killed or badly maimed
and grievous injuries would have been caused to those in adjacent
buildings, which included a school and an old-people's home.

190. The intelligence assessments made in the course of the


operation were reasonable ones to make in the light of the
inevitably limited amount of information available to the
authorities and the potentially devastating consequences of
underestimating the terrorists' abilities and resources. In this
regard the Government made the following observations:

- It was believed that a remote-controlled device would be used


because it would give the terrorists a better chance of escape
and would increase their ability to maximise the proportion of
military rather than civilian casualties. Moreover, the IRA had
used such a device in Brussels only six weeks before.

- It was assumed that any remote-control such as that produced


to the Court would be small enough to be readily concealed about
the person. The soldiers themselves successfully concealed
radios of a similar size about their persons.

- As testified by Captain Edwards at the inquest, tests carried


out demonstrated that a bomb in the car-park could have been
detonated from the spot where the terrorists were shot (see
paragraph 116 above).

- Past experience strongly suggested that the terrorists'


detonation device might have been operated by pressing a single
button.

- As explained by Witness O at the inquest, the use of a blocking


car would have been unnecessary because the terrorists would not
be expected to have any difficulty in finding a free space on
8 March. It was also dangerous because it would have required
two trips into Gibraltar, thereby significantly increasing the
risk of detection (see paragraph 23 (point (e) above).

- There was no reason to doubt the bona fides of Soldier G's


assessment that the car was a suspect car bomb. In the first
place his evidence was that he was quite familiar with car bombs.
Moreover, the car had been parked by a known bomb-maker who had
been seen to "fiddle" with something between the seats and the
car aerial appeared to be out of place. IRA car bombs had been
known from experience to have specially-fitted aerials and G
could not say for certain from an external examination that the
car did not contain a bomb (see paragraph 48 above).
Furthermore, all three suspects appeared to be leaving Gibraltar.
Finally the operation of cordoning off the area around the car
began only twenty minutes after the above assessment had been
made because of the shortage of available manpower and the fact
that the evacuation plans were not intended for implementation
until 7 or 8 March.

- It would have been reckless for the authorities to assume that


the terrorists might not have detonated their bomb if challenged.
The IRA were deeply committed terrorists who were, in their view,
at war with the United Kingdom and who had in the past shown a
reckless disregard for their own safety. There was still a real
risk that if they had been faced with a choice between an
explosion causing civilian casualties and no explosion at all,
the terrorists would have preferred the former.

(3) The Commission

191. The Commission considered that, given the soldiers'


perception of the risk to the lives of the people of Gibraltar,
the shooting of the three suspects could be regarded as
absolutely necessary for the legitimate aim of the defence of
others from unlawful violence. It also concluded that, having
regard to the possibility that the suspects had brought in a car
bomb which, if detonated, would have occasioned the loss of many
lives and the possibility that the suspects could have been able
to detonate it when confronted by the soldiers, the planning and
execution of the operation by the authorities did not disclose
any deliberate design or lack of proper care which might have
rendered the use of lethal force disproportionate to the aim of
saving lives.

(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).

207. In the event, all of these crucial assumptions, apart from


the terrorists' intentions to carry out an attack, turned out to
be erroneous. Nevertheless, as has been demonstrated by the
Government, on the basis of their experience in dealing with the
IRA, they were all possible hypotheses in a situation where the
true facts were unknown and where the authorities operated on the
basis of limited intelligence information.

208. In fact, insufficient allowances appear to have been made


for other assumptions. For example, since the bombing was not
expected until 8 March when the changing of the guard ceremony
was to take place, there was equally the possibility that the
three terrorists were on a reconnaissance mission. While this
was a factor which was briefly considered, it does not appear to
have been regarded as a serious possibility (see paragraph 45
above).

In addition, at the briefings or after the suspects had been


spotted, it might have been thought unlikely that they would have
been prepared to explode the bomb, thereby killing many
civilians, as Mr McCann and Ms Farrell strolled towards the
border area since this would have increased the risk of detection
and capture (see paragraph 57 above). It might also have been
thought improbable that at that point they would have set up the
transmitter in anticipation to enable them to detonate the
supposed bomb immediately if confronted (see paragraph 115
above).

Moreover, even if allowances are made for the technological


skills of the IRA, the description of the detonation device as
a "button job" without the qualifications subsequently described
by the experts at the inquest (see paragraphs 115 and 131 above),
of which the competent authorities must have been aware,
over-simplifies the true nature of these devices.

209. It is further disquieting in this context that the


assessment made by Soldier G, after a cursory external
examination of the car, that there was a "suspect car bomb" was
conveyed to the soldiers, according to their own testimony, as
a definite identification that there was such a bomb (see
paragraphs 48, and 51-52 above). It is recalled that while
Soldier G had experience in car bombs, it transpired that he was
not an expert in radio communications or explosives; and that his
assessment that there was a suspect car bomb, based on his
observation that the car aerial was out of place, was more in the
nature of a report that a bomb could not be ruled out (see
paragraph 53 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.

DISSENTING OPINION JUDGES RYSSDAL, BERNHARDT,


THÓR VILHJÁLMSSON, GÖLCÜKLÜ, PALM, PEKKANEN,
Sir John FREELAND, BAKA AND JAMBREK

8. Before turning to the various aspects of the operation which


are criticised in the judgment, we would underline three points
of a general nature.

First, in undertaking any evaluation of the way in which the


operation was organised and controlled, the Court should
studiously resist the temptations offered by the benefit of
hindsight. The authorities had at the time to plan and make
decisions on the basis of incomplete information. Only the
suspects knew at all precisely what they intended; and it was
part of their purpose, as it had no doubt been part of their
training, to ensure that as little as possible of their
intentions was revealed. It would be wrong to conclude in
retrospect that a particular course would, as things later
transpired, have been better than one adopted at the time under
the pressures of an ongoing anti-terrorist operation and that the
latter course must therefore be regarded as culpably mistaken.
It should not be so regarded unless it is established that in the
circumstances as they were known at the time another course
should have been preferred.

9. Secondly, the need for the authorities to act within the


constraints of the law, while the suspects were operating in a
state of mind in which members of the security forces were
regarded as legitimate targets and incidental death or injury to
civilians as of little consequence, would inevitably give the
suspects a tactical advantage which should not be allowed to
prevail. The consequences of the explosion of a large bomb in
the centre of Gibraltar might well be so devastating that the
authorities could not responsibly risk giving the suspects the
opportunity to set in train the detonation of such a bomb. Of
course the obligation of the United Kingdom under Article 2
para. 1 (art. 2-1) of the Convention extended to the lives of the
suspects as well as to the lives of all the many others, civilian
and military, who were present in Gibraltar at the time. But,
quite unlike those others, the purpose of the presence of the
suspects in Gibraltar was the furtherance of a criminal
enterprise which could be expected to have resulted in the loss
of many innocent lives if it had been successful. They had
chosen to place themselves in a situation where there was a grave
danger that an irreconcilable conflict between the two duties
might arise.

10. Thirdly, the Court's evaluation of the conduct of the


authorities should throughout take full account of (a) the
information which had been received earlier about IRA intentions
to mount a major terrorist attack in Gibraltar by an active
service unit of three individuals; and (b) the discovery which
(according to evidence given to the inquest by Witness O) had
been made in Brussels on 21 January 1988 of a car containing a
large amount of Semtex explosive and four detonators, with a
radio-controlled system - equipment which, taken together,
constituted a device familiar in Northern Ireland.

In the light of (a), the decision that members of the SAS


should be sent to take part in the operation in response to the
request of the Gibraltar Commissioner of Police for military
assistance was wholly justifiable. Troops trained in a
counter-terrorist role and to operate successfully in small
groups would clearly be a suitable choice to meet the threat of
an IRA active service unit at large in a densely populated area
such as Gibraltar, where there would be an imperative need to
limit as far as possible the risk of accidental harm to
passers-by.

The detailed operational briefing on 5 March 1988


(paragraphs 22-31) shows the reasonableness, in the circumstances
as known at the time, of the assessments then made. The
operational order of the Gibraltar Commissioner of Police, which
was drawn up on the same day, expressly proscribed the use of
more force than necessary and required any recourse to firearms
to be had with care for the safety of persons in the vicinity.
It described the intention of the operation as being to protect
life; to foil the attempt; to arrest the offenders; and the
securing and safe custody of the prisoners (paragraphs 17
and 18).

All of this is indicative of appropriate care on the part


of the authorities. So, too, is the cautious approach to the
eventual passing of control to the military on 6 March 1988
(paragraphs 54-58).

11. As regards the particular criticisms of the conduct of the


operation which are made in the judgment, foremost among them is
the questioning (in paragraphs 203-05) of the decision not to
prevent the three suspects from entering Gibraltar. It is
pointed out in paragraph 203 that, with the advance information
which the authorities possessed and with the resources of
personnel at their disposal, it would have been possible for them
"to have mounted an arrest operation" at the border.

The judgment does not, however, go on to say that it would


have been practicable for the authorities to have arrested and
detained the suspects at that stage. Rightly so, in our view,
because at that stage there might not be sufficient evidence to
warrant their detention and trial. To release them, after having
alerted them to the state of readiness of the authorities, would
be to increase the risk that they or other IRA members could
successfully mount a renewed terrorist attack on Gibraltar. In
the circumstances as then known, it was accordingly not "a
serious miscalculation" for the authorities to defer the arrest
rather than merely stop the suspects at the border and turn them
back into Spain.

12. Paragraph 206 of the judgment then lists certain "key


assessments" made by the authorities which, in paragraph 207, are
said to have turned out, in the event, to be erroneous, although
they are accepted as all being possible hypotheses in a situation
where the true facts were unknown and where the authorities were
operating on the basis of limited intelligence information.
Paragraph 208 goes on to make the criticism that "insufficient
allowances appear to have been made for other assumptions".

13. As a first example to substantiate this criticism, the


paragraph then states that since the bombing was not expected
until 8 March "there was equally the possibility that the ...
terrorists were on a reconnaissance mission".

There was, however, nothing unreasonable in the assessment


at the operational briefing on 5 March that the car which would
be brought into Gibraltar was unlikely, on the grounds then
stated, to be a "blocking" car (see paragraph 23, point e). So,
when the car had been parked in the assembly area by one of the
suspects and all three had been found to be present in Gibraltar,
the authorities could quite properly operate on the working
assumption that it contained a bomb and that, as the suspects
were unlikely to risk two visits, it was not "equally" possible
that they were on a reconnaissance mission.

In addition, Soldier F, the senior military adviser to the


Gibraltar Commissioner of Police, gave evidence to the inquest
that, according to intelligence information, reconnaissance
missions had been undertaken many times before: reconnaissance
was, he had been told, complete and the operation was ready to
be run. In these circumstances, for the authorities to have
proceeded otherwise than on the basis of a worst-case scenario
that the car contained a bomb which was capable of being
detonated by the suspects during their presence in the territory
would have been to show a reckless failure of concern for public
safety.

14. Secondly, it is suggested in the second sub-paragraph of


paragraph 208 that, at the briefings or after the suspects had
been spotted, "it might have been thought unlikely that they
would have been prepared to explode the bomb, thereby killing
many civilians, as Mr McCann and Ms Farrell strolled towards the
border area since this would have increased the risk of detection
and capture".

Surely, however, the question is rather whether the


authorities could safely have operated on the assumption that the
suspects would be unlikely to be prepared to explode the bomb
when, even if for the time being moving in the direction of the
border, they became aware that they had been detected and were
faced with the prospect of arrest. In our view, the answer is
clear: certainly, previous experience of IRA activities would
have afforded no reliable basis for concluding that the killing
of many civilians would itself be a sufficient deterrent or that
the suspects, when confronted, would have preferred no explosion
at all to an explosion causing civilian casualties. It is
relevant that, according to Soldier F's evidence at the inquest,
part of the intelligence background was that he had been told
that the IRA were under pressure to produce a "spectacular". He
also gave evidence of his belief that, when cornered, the
suspects would have no qualms about pressing the button to
achieve some degree of propaganda success: they would try to
derive such a success out of having got a bomb into Gibraltar and
that would outweigh in their minds the propaganda loss arising
from civilian casualties.

15. The second sub-paragraph of paragraph 208 goes on to suggest


that it "might also have been thought improbable that at that
point" - that is, apparently, as McCann and Farrell "strolled
towards the border" - "[the suspects] would have set up the
transmitter in anticipation to enable them to detonate the
supposed bomb immediately if confronted".

Here, the question ought, we consider, to be whether the


authorities could prudently have proceeded otherwise than on the
footing that there was at the very least a possibility that, if
not before the suspects became aware of detection then
immediately afterwards, the transmitter would be in a state of
readiness to detonate the bomb.

16. It is next suggested, in the third sub-paragraph of


paragraph 208, that "even if allowances are made for the
technological skills of the IRA, the description of the
detonation device as a `button job' without the qualifications
subsequently described by the experts at the inquest ..., of
which the competent authorities must have been aware,
over-simplifies the true nature of these devices". The exact
purport of this criticism is perhaps open to some doubt. What
is fully clear, however, is that, as the applicants' own expert
witness accepted at the inquest, a transmitter of the kind which
was thought likely to be used in the present case could be set
up so as to enable detonation to be caused by pressing a single
button; and in the light of past experience it would have been
most unwise to discount the possibility of technological advance
in this field by the IRA.

17. Paragraph 209 of the judgment expresses disquiet that the


assessment made by Soldier G that there was a "suspect car bomb"
was conveyed to the soldiers on the ground in such a way as to
give them the impression that the presence of a bomb had been
definitely identified. But, given the assessments which had been
made of the likelihood of a remote control being used, and given
the various indicators that the car should indeed be suspected
of containing a bomb, the actions which the soldiers must be
expected to have taken would be the same whether their
understanding of the message was as it apparently was or whether
it was in the sense which Soldier G apparently intended. In
either case, the existence of the risk to the people of Gibraltar
would have been enough, given the nature of that risk,
justifiably to prompt the response which followed.

18. Paragraph 209, in referring to the assessment made by


Soldier G, also recalls that while he had experience with car
bombs, he was not an expert in radio communications or
explosives. In considering that assessment, it would, however,
be fair to add that, although his inspection of the car was of
brief duration, it was enough to enable him to conclude,
particularly in view of the unusual appearance of its aerial in
relation to the age of the car and the knowledge that the IRA had
in the past used cars with aerials specially fitted, that it was
to be regarded as a suspect car bomb.

The authorities were, in any event, not acting solely on the


basis of Soldier G's assessment. There had also been the earlier
assessment, to which we have referred in paragraph 13 above, that
a "blocking" car was unlikely to be used. In addition, the car
had been seen to be parked by Savage, who was known to be an
expert bomb-maker and who had taken some time (two to three
minutes, according to one witness) to get out of the car, after
fiddling with something between the seats.

19. Paragraph 210 of the judgment asserts, in effect, that the


use of lethal force was made "almost unavoidable" by the
conveyance to Soldiers A, B, C and D of a series of working
hypotheses which were vitiated by the absence of sufficient
allowances for alternative possibilities and by "the definite
reporting ... of a car bomb which ..., could be detonated at the
press of a button".

We have dealt in paragraphs 13-16 with the points advanced


in support of the conclusion that insufficient allowance was made
for alternative possibilities; and in paragraphs 17 and 18 with
the question of reporting as to the presence of a car bomb.

We further question the conclusion that the use of lethal


force was made "almost unavoidable" by failings of the
authorities in these respects. Quite apart from any other
consideration, this conclusion takes insufficient account of the
part played by chance in the eventual outcome. Had it not been
for the movements which were made by McCann and Farrell as
Soldiers A and B closed on them and which may have been prompted
by the completely coincidental sounding of a police car siren,
there is every possibility that they would have been seized and
arrested without a shot being fired; and had it not been for
Savage's actions as Soldiers C and D closed on him, which may
have been prompted by the sound of gunfire from the McCann and
Farrell incident, there is every possibility that he, too, would
have been seized and arrested without resort to shooting.

20. The implication at the end of paragraph 211 that the


authorities did not exercise sufficient care in evaluating the
information at their disposal before transmitting it to soldiers
"whose use of firearms automatically involved shooting to kill"
appears to be based on no more than "the failure to make
provision for a margin of error" to which the beginning of the
paragraph refers. We have dealt already with the "insufficient
allowances for alternative possibilities" point (see, again,
paragraphs 13-16 above), which we take to be the same as the
alleged failure to provide for a margin of error which is
referred to here. Any assessment of the evaluation by the
authorities of the information at their disposal should, in any
event, take due account of their need to reckon throughout with
the incompleteness of that information (see paragraph 8 above);
and there are no cogent grounds for any suggestion that there was
information which they ought reasonably to have known but did
not.

21. Paragraph 212, after making a glancing reference to the


restrictive effect of the public interest certificates and saying
that it is not clear "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", goes on to say
that "their reflex action in this vital respect lacks the degree
of caution ... 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". It concludes with the assertion that this "failure by
the authorities also suggests a lack of appropriate care in the
control and organisation of the arrest operation".

22. As regards any suggestion that, if an assessment on the


issue had been required by their training or instruction to be
carried out by the soldiers, shooting to wound might have been
considered by them to have been warranted by the circumstances
at the time, it must be recalled that those circumstances
included a genuine belief on their part that the suspects might
be about to detonate a bomb by pressing a button. In that
situation, to shoot merely to wound would have been a highly
dangerous course: wounding alone might well not have immobilised
a suspect and might have left him or her capable of pressing a
button if determined to do so.

23. More generally as regards the training given, there was in


fact ample evidence at the inquest to the effect that soldiers
(and not only these soldiers) would be trained to respond to a
threat such as that which was thought to be posed by the suspects
in this case - all of them dangerous terrorists who were believed
to be putting many lives at immediate risk - by opening fire once
it was clear that the suspect was not desisting; that the intent
of the firing would be to immobilise; and that the way to achieve
that was to shoot to kill. There was also evidence at the
inquest that soldiers would not be accepted for the SAS unless
they displayed discretion and thoughtfulness; that they would not
go ahead and shoot without thought, nor did they; but they did
have to react very fast. In addition, evidence was given that
SAS members had in fact been successful in the past in arresting
terrorists in the great majority of cases.

24. We are far from persuaded that the Court has any sufficient
basis for concluding, in the face of the evidence at the inquest
and the extent of experience in dealing with terrorist activities
which the relevant training reflects, that some different and
preferable form of training should have been given and that the
action of the soldiers in this case "lacks the degree of caution
in the use of firearms to be expected of law-enforcement
personnel in a democratic society". (We also question, in the
light of the evidence, the fairness of the reference to "reflex
action in this vital respect" - underlining supplied. To be
trained to react rapidly and to do so, when the needs of the
situation require, is not to take reflex action.)

Nor do we accept that the differences between the guide to


police officers in the use of firearms (paragraph 137 of the
judgment) and the "Firearms - rules of engagement" annexed to the
Commissioner's operational order (paragraph 136), when the latter
are taken together (as they should be) with the Rules of
Engagement issued to Soldier F by the Ministry of Defence
(paragraph 16), can validly be invoked to support a contention
that the standard of care enjoined upon the soldiers was
inadequate. Those differences are no doubt attributable to the
differences in backgrounds and requirements of the recipients to
whom they were addressed, account being taken of relevant
training previously given to each group (it is to be noted that,
according to the evidence of Soldier F at the inquest, many
lectures are given to SAS soldiers on the concepts of the rule
of law and the use of minimum force). We fail to see how the
instructions for the soldiers could themselves be read as showing
a lack of proper caution in the use of firearms.

Accordingly, we consider the concluding stricture, that


there was some failure by the authorities in this regard
suggesting a lack of appropriate care in the control and
organisation of the arrest operation, to be unjustified.

25. The accusation of a breach by a State of its obligation


under Article 2 (art. 2) of the Convention to protect the right
to life is of the utmost seriousness. For the reasons given
above, the evaluation in paragraphs 203 to 213 of the judgment
seems to us to fall well short of substantiating the finding that
there has been a breach of the Article (art. 2) in this case.
We would ourselves follow the reasoning and conclusion of the
Commission in its comprehensive, painstaking and notably
realistic report. Like the Commission, we are satisfied that no
failings have been shown in the organisation and control of the
operation by the authorities which could justify a conclusion
that force was used against the suspects disproportionately to
the purpose of defending innocent persons from unlawful violence.
We consider that the use of lethal force in this case, however
regrettable the need to resort to such force may be, did not
exceed what was, in the circumstances as known at the time,
"absolutely necessary" for that purpose and did not amount to a
breach by the United Kingdom of its obligations under the
Convention.

Andronicou and Constantinou v Greece

182. In carrying out its assessment of the planning and control phase of the operation from
the standpoint of Article 2 of the Convention, the Court must have particular regard to the
context in which the incident occurred as well as to the way in which the situation developed
over the course of the day.

183. As to the context, the authorities clearly understood that they were dealing with a young
couple and not with hardened criminals or terrorists. The negotiations and the resolve to
negotiate up until the last possible moment clearly indicate that the authorities never lost sight
of the fact that the incident had its origins in a “lovers’ quarrel” and that this factor had to be
taken into account if, in the final analysis, it transpired that force had to be used to free Elsie
Constantinou. It was not unreasonable in view of the context for the authorities to enlist the
help of the family and friends of Lefteris Andronicou in order to bring the situation to an end.

It is also to be noted that the authorities tried to bring an end to the incident through
persuasion and dialogue right up to the last possible moment. The police negotiator continued
his attempts in the later phase of the incident to assure Lefteris Andronicou that no harm
would come to him if he were to release the young woman. Instructions were in fact given at
a meeting which ended at 11 p.m. to delay the involvement of the MMAD officers as much as
possible to enable negotiations to continue (see paragraph 55 above). This sustained effort by
the authorities to resolve the situation through negotiations illustrates a deep concern on the
part of the authorities to deploy the MMAD officers only as a last resort.

While there may have been shortcomings as regards, for example, the lack of crowd control
or the absence of a dedicated telephone line between the police negotiator and Lefteris
Andronicou, the Court considers nevertheless that the negotiations were in general conducted
in a manner which can be said to be reasonable in the circumstances.

184. Irrespective of the domestic nature of the incident, the situation progressively developed
in the eyes of the authorities present into a situation fraught with danger and in which critical
decisions had to be taken. Lefteris Andronicou’s intransigence in the face of negotiations, his
threatening tone as well as the young woman’s shouts for help persuaded the authorities that
he intended to kill her and commit suicide at midnight. Admittedly, Lefteris Andronicou never
announced that he would kill Elsie Constantinou and he only threatened to shoot her if the
police broke into his flat. Nevertheless, the authorities could not reasonably ignore her shouts
that her life was in danger. It must be emphasised that one hour before midnight she was
repeatedly heard screaming that Lefteris Andronicou was going to kill her (see paragraph 59
above) and that Lefteris Andronicou had already shown his capacity for violence by beating
her (see paragraph 16 above). In these circumstances and in the knowledge that Lefteris
Andronicou was armed, the authorities could reasonably consider that as midnight
approached the negotiations had failed and that an attempt had to be made to get into the flat,
disarm and arrest him and free Elsie Constantinou.

185. In the Court’s view the authorities’ decision to use the MMAD officers in the
circumstances as they were known at the time was justified. Recourse to the skills of a highly
professionally trained unit like the MMAD would appear to be quite natural given the nature
of the operation which was contemplated. The decision to use the MMAD officers was a
considered one of last resort. It was discussed both at the highest possible level in the police
chain of command and at ministerial level (see paragraph 55 above) and only implemented
when the negotiations failed and, as noted above, in view of a reasonably held belief that the
young woman’s life was in imminent danger. While it is true that the officers deployed were
trained to shoot to kill if fired at, it is to be noted that they were issued with clear instructions
as to when to use their weapons. They were told to use only proportionate force and to fire
only if Elsie Constantinou’s life or their own lives were in danger (see paragraph 38 above).

It is to be noted that no use of weapons was ever intended and in fact the authorities were
deeply anxious to avoid any harm to the couple (see paragraphs 38 and 54 above). However,
it was not unreasonable to alert the officers to the dangers which awaited them and to direct
them carefully on firearms use. Furthermore, it must be stressed that the officers were not in
fact informed that Lefteris Andronicou was in possession of weapons in addition to the
shotgun. They were told that this possibility could not be excluded (see paragraph 38 above).
Seen in these terms the message could reasonably be considered to be a warning to the
officers to use extreme caution when effecting the operation.

As to the decision to arm the officers with machine guns, it must be emphasised once again
that the use of any firearm was never intended in the execution of the plan. However, given
that Lefteris Andronicou was armed with a double-barrelled shotgun and it was not to be
excluded that he had other weapons, the authorities had to anticipate all possible eventualities.
It might be added that the machine guns had the advantage that they were fitted with
flashlights which would enable the officers to overcome any difficulties encountered in
identifying the precise location of the young woman in a dark room filled with tear gas and at
the same time leave their hands free to control their weapons in the event of coming under
fire. Furthermore, the use by the officers of their machine guns was subject to the same clear
instructions as applied to the use of their pistols (see paragraph 38 above).

186. Having regard to the above considerations the Court is of the view that it has not been
shown that the rescue operation was not planned and organised in a way which minimised to
the greatest extent possible any risk to the lives of the couple.

Gulec v Turkey

2. The Court’s assessment

69. The Court has been given two contradicting versions of the events of 4 March 1991.
According to its settled case-law, the establishment and verification of the facts are primarily
a matter for the Commission (Articles 28 § 1 and 31 § 1 of the Convention). While the Court
is not 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, it is only in exceptional circumstances
that it will exercise its own powers in this area (see the Aksoy v. Turkey judgment of 18
December 1996, Reports of Judgments and Decisions 1996-VI, p. 2272, § 38, the Aydın v.
Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1888–89, § 70, the Menteş and
Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, pp. 2709–10, § 66, and
the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 321, § 75).

70. The file on the present case has not revealed any reason to cast doubt on the
establishment of the facts as set out in the Commission’s report.

As the Commission rightly pointed out, the demonstration was far from peaceful, as was
evidenced by the damage to moveable and immoveable property in the town and the injuries
sustained by some gendarmes. Confronted with acts of violence which were, admittedly,
serious, the security forces, who were not present in sufficient strength, called for
reinforcements, and at least two armoured vehicles were deployed. Whereas the driver of the
Condor, warrant-officer Nazım Ayhan, asserted that he had fired into the air, several
witnesses, including some of the leading citizens of the town, said that shots had been fired at
the crowd. Although this allegation was categorically denied by the Government, it is
corroborated by the fact that nearly all the wounded demonstrators were hit in the legs; this
would be perfectly consistent with ricochet wounds from bullets with a downward trajectory
which could have been fired from the turret of an armoured vehicle.

71. The Court, like the Commission, accepts that the use of force may be justified in the
present case under paragraph 2 (c) of Article 2, but it goes without saying that a balance must
be struck between the aim pursued and the means employed to achieve it. The gendarmes
used a very powerful weapon because they apparently did not have truncheons, riot shields,
water cannon, rubber bullets or tear gas. The lack of such equipment is all the more
incomprehensible and unacceptable because the province of Şırnak, as the Government
pointed out, is in a region in which a state of emergency has been declared, where at the
material time disorder could have been expected.

72. As to the question whether there were armed terrorists among the demonstrators, the
Court notes that the Government produced no evidence to support that assertion. In the first
place, no gendarme sustained a bullet wound either in the place where the applicant’s son died
or in other places passed by the demonstration. Secondly, no weapons or spent cartridges
supposed to have belonged to PKK members were found on the spot. Moreover, prosecutions
brought in the Diyarbakır National Security Court against the owners of thirteen rifles
confiscated after the incidents, from which spent cartridges had been collected by the security
forces, ended in acquittals, because the defendants had not taken part in the events in issue
(see paragraph 8 above).

73. In conclusion, the Court considers that in the circumstances of the case the force used to
disperse the demonstrators, which caused the death of Ahmet Güleç, was not absolutely
necessary within the meaning of Article 2.

Nachova v Bulgaria

93. Article 2, which safeguards the right to life, ranks as one of the most fundamental
provisions in the Convention and enshrines one of the basic values of the democratic societies
making up the Council of Europe. The Court must subject allegations of a breach of this
provision to the most careful scrutiny. In cases concerning the use of force by State agents, it
must take into consideration not only the actions of the agents of the State who actually
administered the force but also all the surrounding circumstances, including such matters as
the relevant legal or regulatory framework in place and the planning and control of the actions
under examination (see McCann and Others v. the United Kingdom, judgment of 27
September 1995, Series A no. 324, p. 46, § 150, and Makaratzis v. Greece [GC],
no. 50385/99, §§ 56-59, ECHR 2004-XI).

94. As the text of Article 2 § 2 itself shows, the use of lethal force by police officers may be
justified in certain circumstances. However, any use of force must be “no more than
absolutely necessary”, that is to say it must be strictly proportionate in the circumstances. In
view of the fundamental nature of the right to life, the circumstances in which deprivation of
life may be justified must be strictly construed (see Andronicou and Constantinou v. Cyprus,
judgment of 9 October 1997, Reports of Judgments and Decisions 1997-VI, pp. 2097-98, §
171, p. 2102, § 181, p. 2104, § 186, p. 2107, § 192, and p. 2108, § 193, and McKerr v. the
United Kingdom, no. 28883/95, §§ 108 et seq., ECHR 2001-III).

95. Accordingly, and with reference to Article 2 § 2 (b) of the Convention, the legitimate aim
of effecting a lawful arrest can only justify putting human life at risk in circumstances of
absolute necessity. The Court considers that in principle there can be no such necessity where
it is known that the person to be arrested poses no threat to life or limb and is not suspected of
having committed a violent offence, even if a failure to use lethal force may result in the
opportunity to arrest the fugitive being lost (see the Court's approach in McCann and Others,
cited above, pp. 45-46, §§ 146-50, and pp. 56-62, §§ 192-214, and, more recently, in
Makaratzis, cited above, §§ 64-66; see also the Court's condemnation of the use of firearms
against unarmed and non-violent persons trying to leave the German Democratic Republic in
Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §§ 87,
96 and 97, ECHR 2001-II).

96. In addition to setting out the circumstances when deprivation of life may be justified,
Article 2 implies a primary duty on the State to secure the right to life by putting in place an
appropriate legal and administrative framework defining the limited circumstances in which
law enforcement officials may use force and firearms, in the light of the relevant international
standards (see Makaratzis, cited above, §§ 57-59, and the relevant provisions of the United
Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
paragraphs 71-74 above). In line with the above-mentioned principle of strict proportionality
inherent in Article 2 (see McCann and Others, cited above, p. 46, § 149), the national legal
framework regulating arrest operations must make recourse to firearms dependent on a
careful assessment of the surrounding circumstances, and, in particular, on an evaluation of
the nature of the offence committed by the fugitive and of the threat he or she posed.

97. Furthermore, the national law regulating policing operations must secure a system of
adequate and effective safeguards against arbitrariness and abuse of force and even against
avoidable accident (see Makaratzis, cited above, § 58). In particular, law enforcement agents
must be trained to assess whether or not there is an absolute necessity to use firearms, not
only on the basis of the letter of the relevant regulations, but also with due regard to the pre-
eminence of respect for human life as a fundamental value (see the Court's criticism of the
“shoot to kill” instructions given to soldiers in McCann and Others, cited above, pp. 61-62,
§§ 211-14).

(b) Application of the above principles in the present case

98. Mr Angelov and Mr Petkov were shot and killed by a military police officer who was
trying to arrest them following their escape from detention. It follows that the case falls to be
examined under Article 2 § 2 (b) of the Convention.
(i) The relevant legal framework

99. The Court notes as a matter of grave concern that the relevant regulations on the use of
firearms by the military police effectively permitted lethal force to be used when arresting a
member of the armed forces for even the most minor offence. Not only were the regulations
not published, they contained no clear safeguards to prevent the arbitrary deprivation of life.
Under the regulations, it was lawful to shoot any fugitive who did not surrender immediately
in response to an oral warning and the firing of a warning shot in the air (see paragraph 60
above). The laxity of the regulations on the use of firearms and the manner in which they
tolerated the use of lethal force were clearly exposed by the events that led to the fatal
shooting of Mr Angelov and Mr Petkov and by the investigating authorities' response to those
events. The Court will revert to these matters later.

100. Such a legal framework is fundamentally deficient and falls well short of the level of
protection “by law” of the right to life that is required by the Convention in present-day
democratic societies in Europe (see paragraphs 94-97 above setting out the principles on
which the relevant legal framework must be based).

101. It is true that the Supreme Court had stated that a proportionality requirement was
inherent in the domestic criminal law. However, the Supreme Court's interpretation was not
applied in the present case (see paragraphs 50-54 and 64 above).

102. The Court thus finds that there was a general failure by the respondent State to comply
with its obligation under Article 2 of the Convention to secure the right to life by putting in
place an appropriate legal and administrative framework on the use of force and firearms by
military police.

(ii) Planning and control of the operation

103. The Chamber gave separate consideration to the manner in which the arrest operation
had been planned. The Grand Chamber endorses the Chamber's finding that the authorities
failed to comply with their obligation to minimise the risk of loss of life since the arresting
officers were instructed to use all available means to arrest Mr Angelov and Mr Petkov, in
disregard of the fact that the fugitives were unarmed and posed no danger to life or limb. As
the Chamber rightly stated (see paragraph 110 of the Chamber judgment):

“... [A] crucial element in the planning of an arrest operation ... must be the analysis of all the
available information about the surrounding circumstances, including, as an absolute
minimum, the nature of the offence committed by the person to be arrested and the degree of
danger – if any – posed by that person. The question whether and in what circumstances
recourse to firearms should be envisaged if the person to be arrested tries to escape must be
decided on the basis of clear legal rules, adequate training and in the light of that
information.”

104. The Grand Chamber for its part would again highlight the absence of a clear legal and
regulatory framework defining the circumstances in which military police officers may have
recourse to potentially deadly force (see paragraphs 99-102 above). It agrees with the
Chamber's finding (see paragraph 112 of the Chamber judgment) that the relevant regulations

“... did not make use of firearms dependent on an assessment of the surrounding
circumstances, and, most importantly, did not require an evaluation of the nature of the
offence committed by the fugitive and of the threat he or she posed”.
105. In the event, the regulations in place permitted a team of heavily armed officers to be
dispatched to arrest the two men in the absence of any prior discussion of the threat, if any,
they posed or of clear warnings on the need to minimise any risk to life. In short, the manner
in which the operation was planned and controlled betrayed a deplorable disregard for the
pre-eminence of the right to life.

(iii) The actions of the arresting officers

106. It was undisputed that Mr Angelov and Mr Petkov had served in the Construction Force,
a special army institution in which conscripts discharged their duties as construction workers
on non-military sites. They had been sentenced to short terms of imprisonment for non-
violent offences. They had escaped without using violence, simply by leaving their place of
work, which was outside the detention facility. While they had previous convictions for theft
and had repeatedly been absent without leave, they had no record of violence (see paragraphs
13-15 above). Neither man was armed or represented a danger to the arresting officers or third
parties, a fact of which the arresting officers must have been aware on the basis of the
information available to them. In any event, upon encountering the men in the village of
Lesura, the officers, or at least Major G., observed that they were unarmed and not showing
any signs of threatening behaviour (see paragraphs 15-26 above).

107. Having regard to the above, the Court considers that in the circumstances that obtained
in the present case any resort to potentially lethal force was prohibited by Article 2 of the
Convention, regardless of any risk that Mr Angelov and Mr Petkov might escape. As stated
above, recourse to potentially deadly force cannot be considered as “absolutely necessary”
where it is known that the person to be arrested poses no threat to life or limb and is not
suspected of having committed a violent offence.

108. In addition, the conduct of Major G., the military police officer who shot the victims,
calls for serious criticism in that he used grossly excessive force.

(i) It appears that there were other means available to effect the arrest: the officers had a jeep,
the operation took place in a small village in the middle of the day and the behaviour of Mr
Angelov and Mr Petkov was apparently predictable, since, following a previous escape, Mr
Angelov had been found at the same address (see paragraphs 17, 18, 23 and 24 above).

(ii) Major G. chose to use his automatic rifle and switched it to automatic mode although he
also carried a handgun (see paragraph 26 above). He could not possibly have aimed with any
reasonable degree of accuracy using automatic fire.

(iii) Mr Petkov was wounded in the chest, a fact for which no plausible explanation was
provided (see paragraphs 41 and 50-54 above). In the absence of such an explanation, the
possibility that Mr Petkov had turned to surrender at the last minute but had nevertheless been
shot cannot be excluded.

(iv) The Court's conclusion

109. The Court finds that the respondent State failed to comply with its obligations under
Article 2 of the Convention in that the relevant legal framework on the use of force was
fundamentally flawed and Mr Angelov and Mr Petkov were killed in circumstances in which
the use of firearms to effect their arrest was incompatible with Article 2 of the Convention.
Furthermore, grossly excessive force was used. There has therefore been a violation of Article
2 of the Convention as regards the deaths of Mr Angelov and Mr Petkov.
Anguelova v Bulgaria

(a) General principles

109. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most
fundamental provisions in the Convention. Together with Article 3, it enshrines one of the
basic values of the democratic societies making up the Council of Europe. 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 McCann and Others v. the United Kingdom, judgment of 27 September 1995,
Series A no. 324, pp. 45-46, §§ 146-47; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR
2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI).

110. In the light of the importance of the protection afforded by Article 2, the Court must
subject complaints about deprivations of life to the most careful scrutiny, taking into
consideration all relevant circumstances.

Persons in custody are in a vulnerable position and the authorities are under an obligation to
account for their treatment. Consequently, where an individual is taken into police custody in
good health but later dies, it is incumbent on the State to provide a plausible explanation of
the events leading to his death (see, mutatis mutandis, Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V, and Salman and Velikova, cited above).

111. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”
(see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65,
§ 161). However, such proof may follow from the co-existence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of fact. 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 custody, 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
(see Salman, cited above, § 100).

(b) Application of those principles to the present case

112. The Court observes that Mr Zabchekov died after being detained for several hours at the
Razgrad police station, where he had been brought after being briefly chased by an off-duty
police officer.

It is incumbent on the Government, therefore, to provide a plausible explanation for Mr


Zabchekov's death.

113. The Government's explanation is that Mr Zabchekov's death could not possibly have
been the result of police ill-treatment as the second forensic report had concluded that the
fatal injury, a skull fracture, had been inflicted at least ten hours prior to the time of death. It
followed that the skull fracture had occurred before 7 p.m. on 28 January 1996, whereas
Mr Zabchekov's encounter with the police occurred about five hours later.

114. The Court observes that the conclusion of the second report as to the time at which the
injury occurred was based on a visual examination of photographs of the blood clot taken six
hours after Mr Zabchekov's death. The experts did not even mention why they considered that
no changes had occurred in the blood clot after the boy's death. According to the medical
opinion submitted by the applicant – uncontested by the Government – such changes did
occur and had to be taken into account.
Furthermore, the second forensic report, which relied solely on documentary material,
departed in significant respects from the conclusions of the first report without stating why
that report's findings concerning the strength of the blow and the time of the skull fracture had
been incorrect. The first forensic report, in contrast, had been based on a direct observation of
the body (see paragraphs 53-59, 70 and 72-77 above).

The Court finds that all of the above significantly reduces the reliability of the second report's
conclusions.

115. It is true that certain facts in the present case cannot be unequivocally explained: Mr
Zabchekov's reported staggering and mumbling at the time of his arrest may be seen as an
indication that he had already been injured at that time, but it may also have been the result of
his apparently high level of alcohol intoxication (see paragraphs 11, 22, 28, 59, 60, 74, 76 and
95 above).

116. However, if Mr Zabchekov was indeed injured before 7 p.m. on 28 January 1996, as was
suggested by the conclusions of the second medical report, that would mean that he went out
with friends, visited a bar and then decided to steal car parts while suffering from a skull
fracture. That may appear unlikely even if the so-called “lucid interval” between the injury
and the death is taken into account. In particular, it is not disputed that Mr Zabchekov was
able to run when C attempted to apprehend him and was walking normally when brought to
the police station (see paragraphs 12-14, 16 and 29 above).

117. The Court notes that the first forensic report considered that the skull injury had most
likely been inflicted between four and six hours prior to Mr Zabchekov's death and, therefore,
possibly at a time when he was in police custody, either before or after he was taken to the
police station (see paragraph 59 above).

Furthermore, there were a number of other injuries to Mr Zabchekov's body which could have
been the result of the same events that caused the skull fracture (see paragraphs 55, 56, 58, 77
and 92-94 above).

118. The Government stated that Mr Zabchekov might have sustained his injuries by falling
to the ground – before he encountered the police or during the chase – as he was drunk and
had a history of health problems. The traces on his wrists were allegedly caused by the normal
use of handcuffs.

119. That supposition is not, however, supported by forensic evidence, as the presence or
absence of “contre-coup lesions” characteristic of falls was not recorded by the autopsy (see
paragraphs 73 and 95 above).

Furthermore, the Court considers it significant that none of the witnesses who were in contact
with the applicant's son until he was taken to the police station reported any complaint of an
ailment on his part.

As regards the use of handcuffs, according to the medical opinion submitted by the applicant,
handcuffs may leave marks if they are too tight or the person is struggling or is dragged. The
autopsy found a very slight mark on Mr Zabchekov's left hand and severe bruising on his
right hand (see paragraphs 55, 56, 58 and 95 above). It was also reported that at some point he
was handcuffed to a tree. It seems unlikely, therefore, that the injury to his right wrist was the
result of normal use of tight handcuffs. The other two possible explanations – that Mr
Zabchekov was struggling or was dragged – may suggest that he was ill-treated.
Finally, the Court does not find the information about Mr Zabchekov's alleged illness reliable
or particularly pertinent. It was based on statements made by him and by his mother in the
context of questioning on criminal charges and, in any event, cannot lead to any reasonable
conclusion as regards the skull fracture or the other injuries (see paragraphs 96-98 above).

The Government's proposed conclusion that Mr Zabchekov might have injured himself by
falling is thus improbable when examined in the light of all the surrounding facts.

120. In assessing the evidence in the present case, the Court, moreover, attaches significant
weight to the information that the police officers behaved in a suspect manner and to the fact
that the authorities accepted the credibility of their evidence despite serious indications
calling for caution.

Examples of the police's suspect behaviour are: between 3 a.m. and 5 a.m. on 29 January
1996, when they delayed contact between Mr Zabchekov and a doctor and possibly attempted
to choose which doctor saw him (see paragraphs 32-40 above); their apparently false
statement, in answer to a question by Dr Mihailov, that Mr Zabchekov had been taken to the
police station in the same condition as that in which the doctor had seen him at about 5 a.m.
(see paragraph 39 above); and that the detention records were tampered with (see paragraphs
41-46 above) and that Mr Zabchekov was registered post factum as an “unidentified person”
although he had been well known to the police officers as a suspect on theft charges and had
been recognised by them at the very moment of their encounter (see paragraphs 25, 42 and
96-98 above).

These facts were important indications that required thorough investigation; such an
investigation was not undertaken.

121. Having regard to all the relevant circumstances, the Court thus finds implausible the
Government's explanation of Mr Zabchekov's death, which was based on the conclusion of
the second forensic report as to the timing of the injury and a supposition that the boy might
have injured himself by falling to the ground. The Government have not offered any other
explanation.

122. Accordingly, there has been a violation of Article 2 of the Convention.

2. The Court's assessment

125. The Court, referring to its findings as regards the suspect conduct of the police (see
paragraph 120 above), observes that they delayed the provision of medical assistance to Mr
Zabchekov and that that contributed in a decisive manner to the fatal outcome.

126. The Government's position is that the police officers, not being medical professionals,
could not be criticised for having failed to detect that there was a medical emergency.

127. That argument is, however, irrelevant, as it is not disputed that at a certain point after 3
a.m. the police officers realised that Mr Zabchekov's condition was deteriorating. Even then,
instead of calling for an ambulance, they contacted their colleagues who had arrested the boy.
Those officers, who were on patrol duty, saw fit to abandon their patrolling tasks and drive
back to the police station to verify the situation. Having seen Mr Zabchekov's condition, they
took the time to drive to the hospital and then return, followed by an ambulance, instead of
calling for one (see paragraphs 32-40 above).
128. It is particularly significant, furthermore, that the case file does not contain any trace of
criticism or disapproval of that manner of dealing with a detainee's medical problem.

129. The first medical report and the expert whose opinion was submitted by the applicant
found that the delay in providing medical assistance had been fatal (see paragraphs 59 and 95
above).

130. The Court thus finds that the behaviour of the police officers between 3 a.m. and 5 a.m.
on 29 January 1996 and the lack of any reaction by the authorities constituted a violation of
the State's obligation to protect the lives of persons in custody.

131. There has been therefore a violation of Article 2 § 1 of the Convention in that respect.

MM Chang v Guatemala

Considerations of the Court

138. Article 4(1) of the American Convention provides that:

[e]very person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.

139. The Court deems that, pursuant to what was established in the chapter on proven
facts, the State is responsible for the extra-legal execution of Myrna Mack Chang committed
through actions of its agents, carrying out orders issued by the high command of the
Presidential General Staff, which constitutes a violation of the right to life. This circumstance
was worsened because at the time of the facts there was in Guatemala a pattern of selective
extra-legal executions fostered by the State, which was directed against those individuals who
were considered “internal enemies.” Furthermore, since then and still today, there have not
been effective judicial mechanisms to investigate the human rights violations nor to punish
those responsible, all of which gives rise to an aggravated international responsibility of the
respondent State.

140. The death of Myrna Mack Chang was the result of a covert military intelligence
operation carried out by the Presidential General Staff and tolerated by various authorities and
institutions (supra para. 134.6). This military intelligence operation had three phases.

141. The first phase was to single-out the victim in view of her professional activity, an
activity that bothered various authorities and institutions in Guatemala (supra paras. 134.7,
134.10 and 134.11). In this regard, en 1992, the Guatemalan Human Rights Ombudsman,
Ramiro de León Carpio, based on the investigation of the instant case, stated that:

[t]he topics of the research projects carried out by anthropologist Myrna


Mack Chang are still considered to be high risk ones, because they affect
Government policies and their conclusions may not be in accordance with
externally-oriented strategies.
[…] After an in-depth analysis of the above, one can infer, based on
presumptions, that the violation to the right to life and to the physical
integrity of Myrna Elizabeth Mack Chang was committed because of the
development of her social investigation activities, because they were
considered destabilizing vis-à-vis the order pre-established by the
Government, which was perceived by the Intelligence Section of the National
Army, who ordered and carried out this extra-legal killing. This case
constitutes a typical politically-motivated killing.1

142. Several of the expert witnesses and witnesses who appeared before the Court also
stated that Myrna Mack Chang was singled-out as a “target” or an “internal enemy” due to the
activities she carried out. In this regard, expert witness Mónica Pinto (supra para. 127.i), in
her expert opinion before the Court, stated that:

Myrna Mack was executed in 1990. I do not recall the exact date. It was not
the only execution in 1990, there were others. And in reality, summary
executions in Guatemala have had various profiles over time. After a stage of
massive, collective summary executions that would be part of various
policies such as the “Scorched Earth” policy or some others, came the more
selective summary executions. Myrna Mack was working in a sensitive area,
perhaps for political considerations, and on the other hand, the way she was
executed determined that it was not a traditional murder. Myrna Mack
suffered 27 knife wounds.

[…]

[M]y mandate does not extend to the time of the facts in which Myrna Mack
lost her life. The interpretation of the four reports that I submitted to the
Commission is that basically the whole treatment of the issue of refugees by a
broad segment of power in Guatemala is very close to considering that refuge
was practically synonymous to membership in the guerrilla forces. Myrna
Mack was working on the topic of refugees and was working on the causes,
and at a given moment Myrna Mack became a dangerous element. How
intense was this danger? I do not know whether this is precisely the
interpretation that might have made the authorities decide that Myrna Mack
should be eliminated. Yet obviously all the circumstances were in place at
the time in which I drafted the first of the reports to reach the conclusion that
the way in which Myrna Mack had lost her life was not due to a mere
homicide, that it was not due to any matter of passion, but rather that it
stemmed from a policy that had decided, in a premeditated manner, that it
was necessary to get rid of Myrna Mack.

143. Witness Lucrecia Hernández Mack, daughter de the victim (supra para. 27.c),
likewise stated before the Court:

[m]y mother was killed for political reasons. At the time she was conducting,
and had already conducted, research studies on the internally displaced
population in Guatemala. In other words, a civilian population that had been
harassed and persecuted by the Guatemalan Army. And she was hearing the
testimony of these persons and the institutional policies of the State regarding
[...] these persons. She was letting people know, and had published a book in
which she clearly stated the existence of these populations and also how the
Army had been massacring within the country and had been violating human
rights within the country. This was obviously not convenient for the Army
and therefore they saw my mother as a threat and she then became a target
and that is why they murdered her. It was for political reasons. And well and

1
Cf. report by the Human Rights Ombudsman of Guatemala dated November 9, 1992 (file with
annexes to the application, annex 47, leaves 882 to 896).
this is something that they denied from the start, that it could be for political
reasons.

144. In this regard, the CEH Report concluded, with respect to Myrna Mack Chang case,
that it:

deems that this human rights violation is an example and consequence of the
harmful discourse that, during the years of internal armed confrontation,
identified the internally displaced population and the intellectuals who
studied their problems as enemies of the State. The CEH deems that those
who decided to murder Myrna Mack sought, based an erroneous intelligence
assessment of the role of this professional and her anthropological activity, to
send an intimidating message, in general, to the communities of displaced
persons and, specifically, to the institutions and persons who were concerned
about their living conditions.2

145. The second phase of the military intelligence operation consisted of keeping watch
on, following, and extra-legally executing the victims. This was done by a group of
specialists of the Presidential General Staff (supra paras. 134.3, 134.4, 134.6, 134.10 and
134.11). The execution of Myrna Mack Chang was not an isolated act carried out by the
Presidential General Staff specialist Noel de Jesús Beteta Alvarez, but rather the result of a
careful operation developed by the high command of that body, directly executed by Sergeant
Beteta Alvarez (supra paras. 134.5 and 134.22). In this regard, Noel de Jesús Beteta Alvarez
stated, with respect to the modus operandi of the Presidential General Staff, that:

[t]his type of murder missions is not often, it depends on the situation, but at
that time there was a lot of work. I think that there were perhaps some thirty
murder missions, only for me. This is aside from the rest of the group, so the
amount is twenty by thirty. Some six hundred a year only in that office (the
EMP). In Myrna’s case they passed me the file, I analyzed it and began the
surveillance. This type of missions last no more than fifteen days from when
we single the person out until the time of the execution. We do not report
until the mission has been completed. Once that mission was completed, I
shredded the file, I burned it, and I did not speak about the matter any more
to anyone at the office. All my reports to Juan Valencia Osorio, my
supervisor, were verbal. It included the way to eliminate her so that people
thought it was a common crime. Then they tried to eliminate me physically
and armed people even kept watch on the house and came asking for me. I
am sure that Juan Valencia Osorio ordered that I be killed. That is why I left
the country. Once I was a prisoner they did not talk to me nor send me any
messages. When my mother said that they were coming to the house I
understood the message.3

146. In this regard, the CEH Report pointed out that:

[m]ost of the human rights violations took place with knowledge by or under
orders from the highest authorities of the State. Evidence from various
sources (statements of former members of the Armed Forces, declassified
2
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del
silencio” in June, 1999, volume VI, pages 243 to 244 (file with annexes to the application, annex 42,
leaves 792 to 793).

3
Cf. Report by the Proyecto Interdiocesano de Recuperación de la Memoria Histórica,
“Guatemala: Nunca Más: los mecanismos del horror,” volume II, page 190; and transcripts of
interviews with Noel de Jesús Beteta Alvarez (file with annexes to the application, annex 52.2, leaves
1152 to 1259).
documentation, data from various organizations, testimony of Guatemalan
eminent persons) all points to the fact that the intelligence services of the
Army, especially the G-2 and the Presidential General Staff, obtained
information on all types of individuals and civil organizations, evaluated their
behavior in their respective spheres of activity, prepared lists of those to be
repressed due to their allegedly subversive nature, and then, according to
each case, captured, interrogated and tortured them, made them disappear, or
executed them.

[…T]he responsibilities for many of these violations include, in the line of


military command and in that of political and administrative responsibility,
the highest levels of the Army and of successive Governments.

[…T]he excuse that the lower-ranking officers acted with a great deal of
autonomy and decentralization, which would explain “excesses” and
“mistakes” that were not ordered by the commanding officers, is a
groundless argument according to the investigation conducted by the CEH.
The notorious fact that no commander, officer or intermediate authority in the
Army or the security forces of the State has been prosecuted or convicted for
his acts in violation of human rights over so many years strengthens the
evidence that most said violations resulted from an institutional policy that
ensured an impenetrable impunity, which continued throughout the period
investigated by the CEH.4

147. The REMHI Report, in turn, in fitting with the statements by Noel de Jesús Beteta
Alvarez regarding the modus operandi, in connection with the extra-legal executions in
Guatemala, found that:

[t]he commandoes that carried them out were formed by groups of five to
eight individuals, including the executors, the drivers, and those keeping
watch. As part of covert operations, there were no written orders,
identification of the members of the commando was through pseudonyms,
and the vehicles and weapons used did not have registration numbers that
could link to the origin of the operation.

In general, these extra-legal executions were decisions of the commander


of the respective intelligence body in the area, although certain cases were
consulted beforehand with the highest levels of military intelligence. In
some cases in which trouble was foreseen, the decisions were often
coordinated with the heads of other security forces, advising even the
directors of the National Police, for them to previously clean the area and
not interfere when the commando left it.

Ordinarily the executions did not include prior warnings to the victim,
although there was a discrete plan to follow them for eight and up to
fifteen days. The victim was followed to establish customary reference
points regarding his or her movements, such as place of residence and of
work.

[...] Most of the times the orders were direct and there was no discussion,
and a brief report was subsequently required regarding the outcome, as
well as destruction of evidence such as reports, and so forth. The system

4
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del silencio” in
June, 1999, Conclusions, pages 47 to 48.
included following the person for several days or weeks to establish his or
her movements. In general, the way the person was killed, the day and
how they would flee were decided by the specialist in charge of the
kidnapping or murder, taking into account that it should look like a
common crime or make their identification difficult (for example, in
darkness), at an appropriate time (without witnesses) and, if applicable, to
ensure that the person would not be left wounded. This was the system in
many murders of leaders or intellectuals, as in the case of Myrna Mack.
[…] Very often the intelligence actions continued after the crime, leading
to destruction or alteration of evidence, threats against witnesses and
members of the family, and so forth, obstructing any investigation, to
ensure the impunity of their actions.”5

148. In this regard, the CEH reached the conclusion that:

taking into account all the information gathered, the CEH is convinced that
the murder of Myrna Elizabeth Mack Chang was committed by an agent of
the State in his capacity as an active member of the Presidential General
Staff (EMP), carrying out orders received from other officers of this
military advisory body, and her death is a grave violation of the right to
life.6

149. The third phase of the military intelligence operation consisted of covering up, insofar
as possible, all the direct perpetrators and accessories of the operation, so as to ensure their
impunity in the instant case to be able to continue acting in a clandestine manner, without any
control, and to continue performing illegal acts (supra paras. 134.11 to 134.13). In this
regard, the State itself acknowledged that “military influence might be a factor affecting the
difficulties and irregularities in the proceeding.” 7 Likewise, the CEH pointed out that “[m]ost
of the arbitrary executions committed by agents of the State were complemented by other acts
and maneuvers directed at avoiding or obstructing investigation by the judges, thus
intensifying the climate of impunity.”8

150. The CEH also stated in its final conclusions that:

it has established that in Guatemala the military intelligence services


conducted unconventional and irregular operations outside any legal order or
framework. Their illegal operations were clandestine, both in their
preparation and in their execution. The purpose of these missions was to
ensure secrecy of a task so that it would not be possible to identify the
accessories and direct perpetrators of the facts, to exonerate the agents of the
State from all responsibility, and to thus ensure the ineffectiveness of any
judicial or police investigation.9

5
Cf. Report by the Proyecto Interdiocesano de Recuperación de la Memoria Histórica,
“Guatemala: Nunca Más: los mecanismos del horror,” volume II, page 189.
6
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del
silencio” in June, 1999, volume VI, page 243 (file with annexes to the application, annex 42, leaf
792).

7
Cf. report by the Government of the Republic of Guatemala to the Inter-American
Commission on Human Rights, pages 2 and 3 (file with annexes to the application, annex 10, leaves
232 to 233).
8

Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del
silencio” in June, 1999, volume VI, page 369.
151. Therefore, and pursuant to the proven facts, the Court deems it proven that at the time
of the facts there was in Guatemala a pattern of selective extra-legal executions fostered and
tolerated by the State itself (supra paras. 134.10 and 134.11). In this regard, the CEG stated
in its final conclusions, with respect to the extra-legal executions, that:

the State of Guatemala repeatedly and systematically committed violations of


the right to life that in this Report are referred to as arbitrary executions,
aggravated in many cases by resorting to extreme mercilessness, as happened
for example in situations in which the bodies were abandoned with obvious
signs of torture, multiple mutilations, bullet wounds, or burns. The agents of
this type of violations were generally Army officers, specialists, and troops,
death squads operating under the protection of the authorities or constituted
by their agents [...].10

152. On this matter, the Court has pointed out that when there is a pattern of extra-legal
executions fostered or tolerated by the State, this generates an environment that is
incompatible with effective protection of the right to life . This Court has established that the
right to life plays a fundamental role in the American Convention because it is a prior
condition for realization of the other rights. 11 When the right to life is not respected, all the
other rights lack meaning. The States have the obligation to ensure the creation of such
conditions as may be required to avoid violations to this inalienable right and, specifically, the
duty of avoiding attempts against it by the agents of the State. 12

153. Compliance with Article 4 of the American Convention, in combination with Article
1(1) of that same Convention, requires not only that no person be arbitrarily deprived of his or
her life (negative obligation), but also that the States adopt all appropriate measures to protect
and preserve the right to life (positive obligation), 13 under their duty to ensure full and free
exercise of the rights by all persons under their jurisdiction. 14 This active protection of the
right to life by the State involves not only its legislators, but all State institutions, and those
who must protect security, be these its police forces or its armed forces. 15 Therefore, the
States must adopt all necessary measures, not only to prevent, try, and punish deprivation of
life as a consequence of criminal acts, in general, but also to prevent arbitrary executions by
its own security agents.16

9
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del
silencio” in June, 1999, Conclusions, page 31.
10
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del
silencio” in June, 1999, Conclusions, page 44.

11
Cf. Juan Humberto Sánchez Case, supra note 9, para. 110; and “Street Children” Case
(Villagrán Morales et al.), supra note 8, para. 144.

12
Cf. Juan Humberto Sánchez Case, supra note 9, para. 110.

13
Cf. Bulacio Case, supra note 9, para. 111; Juan Humberto Sánchez Case, supra note 9, para.
110; and “Street Children” Case (Villagrán Morales et al.), supra note 8, para. 139.

14
Cf. Bulacio Case, supra note 9, para. 111; Juan Humberto Sánchez Case, supra note 9, para.
110; and Cantoral Benavides Case. Reparations (Art. 63(1) American Convention on Human Rights).
Judgment of December 3, 2001. Series C No. 88, para. 69.

15
Cf. Juan Humberto Sánchez Case, supra note 9, para. 110.

16
Cf. Juan Humberto Sánchez Case, supra note 9, para. 110; Bámaca Velásquez Case. Judgment of
November 25, 2000. Series C No. 70, para. 172; and “Street Children” Case (Villagrán Morales et
al.), supra note 8, paras. 144 to 145.
154. In the sub judice, case, it has been established that the State itself fostered a practice
of selective summary executions (supra paras. 134.10 and 134.11), a situation that is totally
contrary to the duty of the State to respect and ensure the right to life.

155. The Court also deems it proven that at the time of the facts in Guatemala there were
no effective mechanisms to investigate violations of the right to life, for which reason there
was a climate of impunity regarding human rights violations (supra para. 134.13). Likewise,
the CEH stated in its final conclusions:

[t]he weakness of the justice system, absent in vast areas of the country
before the armed conflict, became more acute when the judiciary bent to the
requirements imposed by the prevailing model of national security. The CEH
concludes that, by tolerating or directly participating in the impunity that
provided material coverage for the very basic violations of human rights, the
bodies of the justice system became ineffective in one of their fundamental
functions of protection of the individual vis-à-vis the State, and they lost all
credibility as guarantors of legality in force. They allowed impunity to
become one of the most important mechanisms to generate and maintain the
climate of terror.17

156. In cases of extra-legal executions, it is essential for the States to effectively


investigate deprivation of the right to life and to punish all those responsible, especially when
State agents are involved, as not doing so would create, within the environment of impunity,
conditions for this type of facts to occur again, which is contrary to the duty to respect and
ensure the right to life .

157. In this regard, safeguarding the right to life requires conducting an effective official
investigation when there are persons who lost their life as a result of the use of force by
agents of the State.18 In this connection, the European Court of Human Rights has stated that:

[the] 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 Article 2, read in conjunction with the State's
general duty [...] to "secure to everyone within their jurisdiction the rights
and freedoms defined in [the] Convention", requires by implication that there
should be [an] effective official investigation when individuals have been
killed as a result of the use of force.19

158. Therefore, the Court concludes that the extra-legal execution of Myrna Mack Chang
was the result of a covert military intelligence operation prepared by the high command of the
Presidential General Staff carried out by its members within a pattern of selective extra-legal
executions, in a climate of impunity, which was and has been tolerated by various State
authorities and institutions, for which reason it finds that Guatemala has violated Article 4(1)
of the American Convention, in combination with Article 1(1) of that same Convention, to the
detriment of Myrna Mack Chang.

17
Cf. report by the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del silencio” in
June, 1999, Conclusions, page 35.

18
Cf. Juan Humberto Sánchez Case, supra note 9, para. 112.

19
Cf. Eur. Court H.R., Case of Hugh Jordan v. the United Kingdom judgment of 4 May 2001,
para. 105; Eur. Court H.R., Case of Çiçek v. Turkey judgment of 27 February 2001, para. 148; and
Eur. Court H.R., McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A
no. 324, para. 161.
Miguel Castro Castro Prison v Peru

Considerations of the Court

231. Article 1(1) of the Convention states that:

The States Parties to this Convention undertake to respect the rights and
freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any other
social condition.

232. Article 4(1) of the Convention states that:

[e]very person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.

233. The Tribunal considers it convenient to analyze the violation of Article 4 of the
Convention due to the seriousness of the facts, the circumstances in which they occurred, and
the fact that Peru did not acknowledge the events that occurred after May 9, 1992 ( supra
paras. 150 through 152).

234. As indicated by the Court (supra para. 227), in the analysis of the present chapter the
information mentioned that determine the seriousness of the facts of this case will be taken
into account. Therefore, it is precise to start with the fact that what happened in the Miguel
Castro Castro Prison was a massacre and that there are no grounds to state that the inmates
represented a threat to state agents that called for an attack of that magnitude (supra paras.
215 through 219). When the first act of the “operative” there was no riot of the inmates, or
any other cause that could determine the legitimate use of force by state agents ( supra para.
215). On the contrary, the behavior observed by the security agents, high State authorities,
and other state officials during the four days that the “operative” lasted, as well as after it,
proves that it was an attack executed to endanger the life and integrity of the inmates that
were located in pavilions 1A and 4B. In this sense, in the judgment issued by the National
Terrorism Chamber on February 3, 2004 it indicated that “there are elements that generate a
reasonable suspicion in the Judging Body, regarding the fact that with operative transfer 1 as
an excuse the highest levels of the government planned […] the physical elimination of those
imprisoned for terrorism that occupied pavilions One A and four B.” (supra para. 197(17))

235. In this regard, when acknowledging its international responsibility for the events of
May 6 to 9, 1992, the State itself expressed hat “the acts of violence were committed against
inmates of a specific orientation,” who were in “pavilion 1A and pavilion 4B, occupied at the
time of the facts by inmates accused of crimes of terrorism linked to Peru’s communist party,
Sendero Luminoso.” As expressed by the State, “the act had a direct purpose: attack Sendero
Luminoso” and “from the military strategy of the Government of that time there was a
steering of the actions towards that party, towards that group, there was a war logic [towards
the] enemy.”

236. This case presented itself within a context of a systematic violation to human rights,
in which there were extrajudicial killings of people suspected of belonging to armed groups
that operate at the margin of the law, such as Sendero Luminoso, and said practices were
carried out by state agents following orders of military and police leaders (supra para. 203).

237. The Court has established that the right to life plays a fundamental role in the
American Convention for being the essential prerequisite for the realization of the other
rights.20 The States have the obligation to guarantee the creation of the conditions required so
that biolations to that inalienable right do not occur, and the duty to prevent their agents from
endangering it.21 The compliance of Article 4, related to Article 1(1) of the American
Convention, not only presupposes that nobody will be arbitrarily deprived of their life
(negative obligation), but it also requires that the States adopt all the appropriate measures to
protect and preserve the right to life (positive obligation), 22 pursuant to the right to guarantee
the full and free exercise of the rights of all the people under its jurisdiction. 23 This active
protection of the right to life by the State not only involves its legislators, but the entire state
instituion and those that must protect the security, being these either police forces or armed
forces.24

238. Based on the aforementioned, the States must adopt the necessary measures not only
to prevent and punish the deprivation of life as a consequence of criminal acts, bt also to
prevent arbitrary executions by their own police force, 25 situation that is made worse when
there is a pattern of violations to human rights. 26 The State must especially supervise that their
police forces, which were attributed the use of legitimate force, respect the right to life of
those under its jurisdiction.27

239. As can be concluded from the “Basic Principles of the Use of Force and Fire Arms by
Law Enforcement Officials,” the state police forces may only recur to the use of lethal
weapons when it is “strictly inevitable to protect a life” and when less extreme measures
result ineffective.28
20
Cfr. Case of the Pueblo Bello Massacre, supra note 7, para. 120; Case of the Indigenous
Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125, para. 161; and Case of the
“Juvenile Reeducation Institute”. Judgment of September 2, 2004. Series C No. 112, para. 156.

21
Cfr. Case of Montero Aranguren et al. (Detention Center of Catia). Judgment of July 5, 2006.
Series C No. 150, para. 64; Case of the Ituango Massacres, supra note 7, para. 129; and Case of
Baldeón García, supra note 21, para. 83.

22
Cfr. Case of Vargas Areco, supra note 3, para. 75; Case of Montero Aranguren et al.
(Detention Center of Catia), supra note 128, para. 65; and Case of the Ituango Massacres, supra note
7, para. 130.

23
Cfr. Case of Vargas Areco, supra note 3, para. 75; Case of Montero Aranguren et al.
(Detention Center of Catia), supra note 128, para. 65; and Case of the Ituango Massacres, supra note
7, para. 130.

24
Cfr. Case of Vargas Areco, supra note 3, para. 75; Case of the Ituango Massacres, supra note 7,
para. 131; and Case of the Pueblo Bello Massacre, supra note 7, para. 120.

25
Cfr. Case of Baldeón García, supra note 21, para. 87; Caso of the “Mapiripán Massacre”, supra note
8, para. 232; and Case of Huilce Tecse, supra note 22, para. 66.

26
Cfr. Case of Baldeón García, supra note 21, para. 87; Case of the Gómez Paquiyauri
Brothers, supra note 21, para. 128; and Case of Myrna Mack Chang. Judgment of November 25,
2003. Series C No. 101, para. 139.

27
Cfr. Case of Servellón García et al., supra note 3, para. 102; and Case of Montero Aranguren
et al. (Detention Center of Catia), supra note 128, para. 66.
28

Cfr. U.N., Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officers,
adopted by the Eight Congress of the United Nations for the Prevention of Crime and Treatment of
Delinquents, Habana, Cuba, August 27th through September 7th, 1990, Principles 4 and 9. In the same
sense, Cfr. Case of Yare I and Yare II Capital Regional Penitenciary Center. Provisional Measures,
supra note 125, Fifteenth whereas, and Monagas Judicial Confinement Center (La Pica). Provisional
240. As has been stated on previous occasions, this Court acknowledges the existence of
the power and even the obligation of the State to guarantee security and maintain public order,
especially within the prisons, using force if necessary. 29 In this sense, it has also established
that by reducing the alterations to public order the State must do so in accordance with and in
application of domestic legislation in seeking the satisfaction of pblic order, as long as this
legislation and the actions taken when applying it adjust, at the same time, to the norms for
the protection of human rights applicable to the subject. 30 The state’s power is not limited; it is
necessary that the State act “within the limits and pursuant to the procedures that permit both
the preservation of public security as well as the fundamental rights of human beings.” 31 In
cases that have come before this Court in which the State has used force to maintain public
order within criminal centers when there is a riot, which did not happen in the present case,
the Tribunal has analyzed if there were sufficient elements to justify the magnitude of the
force used.32

241. However, as was established (supra para. 215), at the time at which the State started
the “operative” the inmates were not in mutiny and it has not been proven that there was any
cause that called from the legitimate use or force by the state agents in that first act of the
attack. The resistance presented by the inmates was after the attack, as a normal reaction to
the offensive of the police officials, as the result of a natural instinct of defense of their life
and physical integrity.

242. For the four days during which the so-called “Operative Transfer 1” lasted the
inmates of pavilions 1A and 4B constantly saw their lives threatened sue to the intensity of
the attack, which implied the use of weapons of war and the participation of police and army
agents, as well as special forces, and for the magnitude of the damages produced (supra para.
197(18) through 197(38)). According to the evidence included in the case file, the inmates
spent four days looking for ways to survive the multiple and constant actions of the state that
could lead to their death.

243. Likewise, according to the facts presented, 41 identified persons lost their life. From
the analysis of the autopsy certificates it can be concluded that the majority of the victims
presented between 3 and 12 bullet wounds to the head and thorax (supra para. 197(39).
Measures, supra note 125, Seventeenth whereas.

29
Cfr. Case of Montero Aranguren et al. (Detention Center of Catia), supra note 128, para. 70; Case of
Neira Alegría et al. Judgment of January 19, 1995. Series C No. 20, para. 75; Case of Godínez Cruz.
Judgment of January 20, 1989. Series C No. 5, para. 162; Case of Yare I and Yare II Capital Regional
Penitenciary Center. Provisional Measures, supra note 125, Fifteenth whereas, and Monagas Judicial
Confinement Center (La Pica). Provisional Measures, supra note 125, Seventeenth whereas; and Case
of Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM. Provisional Measures. Ruling
of the Court of November 30, 2005, Twelfth whereas.

30
Cfr. Case of the Caracazo. Reparations (Art. 63(1) American Convention on Human Rights).
Judgment of August 29, 2002. Series C No. 95, para. 127; Case of Hilaire, Constantine and Benjamin
et al. Judgment of June 21, 2002. Series C No. 94, para. 217; Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American
Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5,
para. 67.

31
Cfr. Case of Bulacio. Judgment of September 18, 2003. Series C No. 100, para. 124; Case of
Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 86; Case of Yare I and
Yare II Capital Regional Penitenciary Center. Provisional Measures, supra note 125, Tenth whereas,
and Monagas Judicial Confinement Center (La Pica). Provisional Measures, supra note 125,
Seventeenth whereas; and Case of Urso Branco Prison. Provisional Measures. Ruling of the Inter-
American Court of Human Rights of April 22, 2004, Tenth whereas.

32
Cfr. Case of the Caracazo. Reparations, supra note 137, para. 127; Case of Durand et al..
Judgment of August 16, 2000. Series C No. 68, para. 68; and Case of Neira Alegría et al., supra note
136, para. 74.
Similarly from the physical exams performed by the expert José Quiroga, who describes the
wounds of 13 of the survivors, it can be concluded that at least 4 people present wounds from
firearms in parts of the body where one can assume that the result of the shot would be death,
such as the head, neck, and thorax. For these reasons, among others, it can be concluded that
the shots fired by the police agents did not seek to immobilize or persuade the inmates, but
instead cause an irreparable damage t the lives of said people.

244. In the present case the police forces, in a attitude coherent with the purpose of the
“Operative Transfer 1”, did not make any effort to use other means different to the use of
lethal force (supra para. 216); thus, rejecting the offer of intervention made by the
International Red Cross, the Inter-American Commission on Human Rights, the Episcopal
Commission for Social Action, and the National Human Rights Coordinator.

245. The seriousness of the events of the present case can be clearly seen when analyzing
the form in which some of the inmates, who on the last day of the “operative” announced to
the state agents that they were going to exit pavilion 4B and requested that the shooting stop,
were executed; however, when they came out they were received with gusts of bullets from
shots fired by state agents (supra para. 197(37). The other inmates that also decided to exit
pavilion 4B faced the same luck (supra para. 197(37). On that same day another group of
inmates, who were under the control of state authorities, were separated from the group and
executed by state agents (supra para. 197(38). In this case the deliberate way in which the
police officials acted in order to deprive the inmates of their life is notorious. Due to the
situation of these inmates, there was no possible justification for the use of weapons against
them, nor was there any need of self defense, or an inminent danger of death or serious
injuries against the police officers.

246. Similarly, it has been proven that once the “Operative Transfer 1” concluded, some
inmates were taken to hospitals and they died because they did not receive the medications or
the medical attention required (supra para. 197(47). Those omissions in the medical
assistance to the injured inmates responded to deliberate decisions and no to mere
carelessness or negligence, which resulted in arbitrary deprivations of life.

247. Regarding the dead inmates, the Court declares as victims the 41 people identified in
the Commission’s application, which coincide with the people identified as dead by the
common intervener, and regarding which there is evidence of their death and identification.

248. The Tribunal considers it necessary to refer to that stated by the Commission and the
intervener regarding the possibility of the existence of dead inmates that have not been
identified. In its application the Commission made emphasis on the fact that “the petitioners
have argued that the fatal victims were at least 86,” but that the Commission would refer
“only to the victims whose decease has been established in a convincing manner through the
body of evidence offered by the parties and from the report prepared by the Commission for
Truth and Reconciliation, without detriment to any new evidence that may arise in the future
and prove the identity and circumstances of death or disappearance of the other victims
referred to by the petitioners.” The Commission in its application stated as deceased victims
41 people identified and one “N.N. autopsy report 1944 of 5/7/92.” Likewise, it provided
copy of 10 autopsy certificates of people identified, one of which corresponds to the police
officer who dies (supra para. 197(40). The Commission did not argue that none of those 10
people were victims of this case.

249. On its part, the common intervener presented as an appendix to the brief of pleadings
and motions a list in which the same 41 dead victims identified and included in the
application appear, but it added a “N.N. Protocol 2007, (man) who died burned” and included
at the of its list 43 “unidentified prisoners”, without indicating if there was any autopsy
protocol or if the execution of one was pending.
250. In this sense, it is important to point out that:

a) neither the Commission nor the intervener presented a copy of the “autopsy
protocol 1944 of May 7, 1992” included in the Commission’s list of victims;
b) of the evidence included in the case file, the Court has verified that the
nautopsy protocol that the intervener called “N.N. Protocol 2007, (male) died
burned”, actually corresponds to the autopsy protocol of Mr. Mario Francisco
Aguilar Vega, which is Nº 2007. Said document states that the diagnosis was
“due to: bullets from firearms/ Carbonization”. Said male is included within
the 41 deceased identified and listed both by the Commission and the
intervener. Likewise, from the testimonial and documentary evidence
provided it could be concluded that the body of this man was never handed
over to his next of kin;
c) regarding that argued by the intervener, in the sense that there were 43
“unidentified prisoners”, it is necessary to calirfy that the evidence on which
the intervener based their addition to her list of deceased are statements of
other surviving inmates, in which they recount having seen inmates die,
without identifying them. In this sense, the Court notes that these recounts
could refer to the way in which the people who are already identified died;
and
d) it can not be concluded from the evidence included in the case file that there
are currently bodies of victims that have not been identified.

251. Therefore, there is doubt regarding compliance by the State of the duty to identify all
the inmates that died and hand over the remains to their next of kin, and it has been proven
that in the case of the inmate Mario Francisco Aguilar Vega they were not handed over. With
regard to the remains of the latter the Tribunal will decide the corresponding measure in the
chapter on Reparations (infra para. 442). Likewise, this Tribuna considers that the State must
adopt all the necessary measures to ensure that all inmates that died as a consequence of the
attack be identified and their remains be handed over to their next of kin, pursuant with its
domestic legislation. If the other inmates that died are identified, their next of kin may present
the corresponding claims within the domestic courts.

252. According to the acknowledgment of partial responsibility made by the State and the
considerations of the previous paragraphs, Peru is responsible for the violation of the right to
life enshrined in Article 4 of the American Convention, in relation to Article 1(1) of the same,
in detriment of the 41 dead inmates that have been identified, whose names have been
included in Appendix 1 of victims of the present Judgment that for these effects forms part of
the same.

*
* *

Obligation to effectively investigate the facts

253. The Court has established that in order to effectively guarantee the rights to life and
integrity it is necessary to comply with the obligation to investigate the infringement of the
same, which derives from Article 1(1) of the Convention along with the substative right that
must be protected or guaranteed.33

33
Cfr. Case of Servellón García et al., supra note 3, para. 119; Case of Ximenes Lopes, supra note 3,
para. 147; Case of the Ituango Massacres, supra note 7, para. 297; and Case of Baldeón García,
supra note 21, para. 92.
254. In the present case, this Court understands that from the events that occurred in the
Miguel Castro Castro Prison the obligation to investigate the violation of the right to life arose
for the State, especially if you take into consideration that tens of people dies and many more
were injured due to an “operative” that implied the use f force, with great intensity, during 4
days and in which police and army agents participated.

255. The duty to investigate is an obligation of means, not results. The same must be
assumed by the State as its own juridical duty and not as a simple formality condemned
beforehand to be fruitless,34 or as a simple action of individual interests, which depends on the
procedural initiative of the victims or their next of kin or of the private contribution of
evidentiary elements.35 The latter does not contravene the right that the victims of violations
of human rights or their next of kin, to be heard during the investigation proceeding and the
judicial processing of the case, as well as to participate amply in the same. 36

256. At the light of this duty, once the state authorities become aware of the fact, they must
begin ex officio and without delay, a serious, impartial, and effective investigation. 37 This
investigation must be carried out through all legal means available and oriented to the
determination of the truth and the investigation, persecution, capture, prosecution, and in its
case, punishment of all those responsible for the facts, especially when state agents are
involved.38

257. To determine if the obligation to protect the rights to life through a serious
investigation of what has occurred, has been fully complied with, the procedures opened at an
internal level destined to identifying those responsible for the facts of the case must be
examined. This exam shall be made in the light of that stated in Article 25 of the American
Convention and of the requirements imposed by Article 8 of the same for all proceedings, and
it will be carried out in Chapter XV of the present Judgment.

*
Guerrero v Colombia

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
34
Cfr. Case of Ximenes Lopes, supra note 3, para. 148; Case of the Ituango Massacres, supra note 7,
para. 296; and Case of Baldeón García, supra note 21, para. 93.

35
Cfr. Case of Goiburú et al., supra note 5, para. 117; Case of Baldeón García, supra note 21, para.
93; and Case of the Pueblo Bello Massacre, supra note 7, para. 144.

36
Cfr. Case of Goiburú et al., supra note 5, para. 117; Case of the Ituango Massacres, supra note 7,
para. 296; and Case of Baldeón García, supra note 21, para. 93.

37
Cfr. Case of Vargas Areco, supra note 3, para. 77; Case of Servellón García et al., supra note 3,
para. 119; and Case of Montero Aranguren et al. (Detention Center of Catia), supra note 128, para.
79.

38
Cfr. Case of Goiburú et al., supra note 5, para. 117; Case of Servellón García et al., supra note 3,
para. 119; and Case of Ximenes Lopes, supra note 3, para. 148.
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 d 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).

14. It is not necessary to consider further alleged violations, arising from the same facts, of
other articles of the Covenant. Any such violations are subsumed by the even more serious
violations of article 6.

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.

Kurt v Turkey

100. The applicant maintained that a number of factors militated in favour of a finding that
her son was the victim of violations of Article 2 of the Convention, which stipulates:

“1. 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.

2. 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.”
101. The applicant stressed that her son’s disappearance occurred in a context which was life-
threatening. She requested the Court to base itself on the approach taken by the Inter-
American Court of Human Rights in the Velásquez Rodríguez v. Honduras case (judgment of
29 July 1988) as well as by the United Nations Human Rights Committee in the Mojica v.
Dominican Republic case (decision of 15 July 1994) to the issue of enforced disappearances
(see paragraphs 65–71 above) and to find the respondent State in breach of its positive
obligation under Article 2 to protect her son’s life. Such a finding could be reached, she
maintained, even though there may not exist specific evidence that her son had died at the
hands of the authorities of the respondent State.

102. In an alternative submission, the applicant asserted that there existed a well-documented
high incidence of torture, unexplained deaths in custody as well as of “disappearances” in
south-east Turkey which not only gave rise to a reasonable presumption that the authorities
were in breach of their obligation to protect her son’s life under Article 2 but, in addition,
constituted compelling evidence of a practice of “disappearances” such as to ground a claim
that her son was also the victim of an aggravated violation of that provision. She contended
that the Inter-American Court in the above-mentioned Velásquez Rodríguez v. Honduras
judgment of 29 July 1988 was prepared to draw the conclusion that the respondent State in
that case had violated the right to life provision of the American Convention on Human
Rights on the existence of either sort of evidence.

103. The applicant further submitted that the Court’s own case-law provided two additional
reasons why the respondent State should be found to be in breach of Article 2, given that it
had been established that her son had been taken into custody on 25 November 1993 and has
not been seen since. In the first place, the authorities had failed to provide any convincing
explanation as to how he had met his presumed death. Having regard to the approach taken by
the Court in its Tomasi v. France judgment of 27 August 1992 (Series A no. 241-A) to
evidence of ill-treatment of a detainee, she reasoned that a similar approach should be taken,
mutatis mutandis, in respect of the presumed death of her son. Secondly, and with reference to
the McCann and Others judgment previously cited, the applicant maintained that the failure of
the authorities to conduct a prompt, thorough and effective investigation into her son’s
disappearance must in itself be seen as a separate violation of Article 2.

104. The Government replied that the applicant had not substantiated her allegations that her
son had been detained by the security forces. Accordingly, no issue could arise under Article
2.

105. The Commission found that in the absence of any evidence as to the fate of Üzeyir Kurt
subsequent to his detention in the village, it would be inappropriate to draw the conclusion
that he had been a victim of a violation of Article 2. It disagreed with the applicant’s argument
that it could be inferred that her son had been killed either from the life-threatening context
she described or from an alleged administrative practice of disappearances in the respondent
State. In the Commission’s opinion, the applicant’s allegation as to the apparent forced
disappearance of her son and the alleged failure of the authorities to take reasonable steps to
safeguard him against the risks to his life attendant on his disappearance fell to be considered
under Article 5 of the Convention.

106. The Court recalls at the outset that it has accepted the Commission’s findings of fact in
respect of the detention of the applicant’s son by soldiers and village guards on 25 November
1993. Almost four and a half years have passed without information as to his subsequent
whereabouts or fate. In such circumstances the applicant’s fears that her son may have died in
unacknowledged custody at the hands of his captors cannot be said to be without foundation.
She has contended that there are compelling grounds for drawing the conclusion that he has in
fact been killed.
107. However, like the Commission, the Court must carefully scrutinise whether there does
in fact exist concrete evidence which would lead it to conclude that her son was, beyond
reasonable doubt, killed by the authorities either while in detention in the village or at some
subsequent stage. It also notes in this respect that in those cases where it has found that a
Contracting State had a positive obligation under Article 2 to conduct an effective
investigation into the circumstances surrounding an alleged unlawful killing by the agents of
that State, there existed concrete evidence of a fatal shooting which could bring that
obligation into play (see the above-mentioned McCann and Others judgment; and the Kaya v.
Turkey judgment of 19 February 1998, Reports 1998-I).

108. It is to be observed in this regard that the applicant’s case rests entirely on presumptions
deduced from the circumstances of her son’s initial detention bolstered by more general
analyses of an alleged officially tolerated practice of disappearances and associated ill-
treatment and extra-judicial killing of detainees in the respondent State. The Court for its part
considers that these arguments are not in themselves sufficient to compensate for the absence
of more persuasive indications that her son did in fact meet his death in custody. As to the
applicant’s argument that there exists a practice of violation of, inter alia, Article 2, the Court
considers that the evidence which she has adduced does not substantiate that claim.

109. Having regard to the above considerations, the Court is of the opinion that the
applicant’s assertions that the respondent State failed in its obligation to protect her son’s life
in the circumstances described fall to be assessed from the standpoint of Article 5 of the
Convention.

Iv. alleged violation of article 3 of the convention in respect of the applicant HERSELF

130. The applicant contended that she herself was the victim of inhuman and degrading
treatment on account of her son’s disappearance at the hands of the authorities. She requested
the Court to find, like the Commission, that the suffering which she has endured engages the
responsibility of the respondent State under Article 3 of the Convention.

She invoked in support of her argument the decision of the United Nations Human Rights
Committee in the case of Quinteros v. Uruguay of 21 July 1983 (see paragraph 71 above)
affirming that the next-of-kin of disappeared persons must also be considered victims of, inter
alia, ill-treatment.

131. The Commission considered that the uncertainty, doubt and apprehension suffered by
the applicant over a prolonged and continuing period of time caused her severe mental
distress and anguish. Having regard to its conclusion that the disappearance of her son was
imputable to the authorities, the Commission found that she had been subjected to inhuman
and degrading treatment within the meaning of Article 3.

132. The Government contested the Commission’s conclusion, reiterating that there was no
credible evidence to support the applicant’s view that her son had been detained by the
security forces. While sympathising with the applicant’s plight, they contended that there was
no causal link between the alleged violation of her son’s rights under the Convention and her
distress and anguish.

133. The Court notes that ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (see, among other authorities, the Cruz Varas and Others v.
Sweden judgment of 20 March 1991, Series A no. 201, p. 31, § 83). It recalls in this respect
that the applicant approached the public prosecutor in the days following her son’s
disappearance in the definite belief that he had been taken into custody. She had witnessed his
detention in the village with her own eyes and his non-appearance since that last sighting
made her fear for his safety, as shown by her petitions of 30 November and 15 December
1993 (see paragraphs 39 and 42 above). However, the public prosecutor gave no serious
consideration to her complaint, preferring instead to take at face value the gendarmes’
supposition that her son had been kidnapped by the PKK. As a result, she has been left with
the anguish of knowing that her son had been detained and that there is a complete absence of
official information as to his subsequent fate. This anguish has endured over a prolonged
period of time.

Bersunkayeva v Russia

92. The Court reiterates that, in the light of the importance of the protection afforded by
Article 2, it 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.
It has held on many occasions that, 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. The obligation on the authorities to account
for the treatment of an individual within their control is particularly stringent where that
individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey,
no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). 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
(see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey
[GC], no. 23657/94, § 85, ECHR 1999-IV).

93. In the present case, the Court observes that although the Government denied that the
State was responsible for the abduction and disappearance of the applicant's son, they
acknowledged the specific facts underlying the applicant's version of events. In particular, it is
common ground between the parties that Artur Bersunkayev was abducted from his home by
men in masks and camouflage uniforms armed with automatic firearms during the night of 13
June 2001. It has therefore first to be established whether the armed men belonged to the
federal armed forces.

94. The Court notes at the outset that despite its repeated requests for a copy of the
investigation file concerning the abduction of Artur Bersunkayev, the Government refused to
produce it, referring to Article 161 of the Russian Code of Criminal Procedure. The Court
observes that in previous cases it has already found this explanation insufficient to justify the
withholding of key information requested by it (see, for example, Imakayeva v. Russia,
no. 7615/02, § 123, ECHR 2006-... (extracts)). In view of the foregoing and bearing in mind
the principles cited above, the Court finds that it can draw inferences from the Government's
conduct in this respect.

95. It further considers that the applicant presented a coherent and consistent picture of her
son's abduction on 13 June 2001. She stated, with reference to the eye-witness statements of
her brother-in-law, his wife and their neighbour, that the perpetrators had acted in a manner
similar to that of a security operation. In particular, they had arrived in a group during the
night and had spoken Russian without an accent. A military vehicle had also been seen near
the scene of the incident on the night of 13 June 2001 (see paragraph 17 above). In this latter
respect the Court is sceptical about the Government's assertion that “some of the witnesses,
indeed, confirmed that they had seen a “Ural” military vehicle with servicemen near the house
of the Bersunkayev family, but that was long before the alleged abduction” of Artur
Bersunkayev, given that, unlike the applicant, the Government did not produce copies of any
of the witness statements to which they referred. In the Court's opinion, the fact that a group
of armed men in camouflage uniforms, equipped with portable transmitters and a military
vehicle and able to move freely during the curfew and to apprehend a person at his home in a
town area strongly supports the applicant's allegation that they were State agents.

96. Moreover, it appears that, at least initially, the fact of Artur Bersunkayev's detention was
acknowledged by some of the Urus-Martan officials. The Court notes the applicant's relevant
submissions before the domestic authorities and before the Court (see paragraphs 22 – 24, 52,
59 and 60 above) as well as the Government's statement to the effect that Mr Ya., the head of
the Urus-Martan administration, and Mr M.G., the deputy head of the Urus-Martan
administration, had indicated when questioned by the investigating authorities that in the first
few days following 13 June 2001 they had had information that Artur Bersunkayev had been
detained (see paragraph 55 above).

97. In support of her submissions, the applicant also referred to a letter of the deputy
prosecutor of the Chechen Republic dated 6 November 2001 stating that “the fact of the
implication of the Urus-Martan Division of the FSB in Artur Bersunkayev's abduction has
been established” which, according to her, she had found among the materials of the file of
case no. 25082 (see paragraph 72 above). The Government remained silent as regards this
argument.

98. The Court observes that where the applicant makes out a prima facie case and the Court
is prevented from reaching factual conclusions owing to the lack of such documents, it is for
the Government to argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicant, or to provide a satisfactory and convincing
explanation of how the events in question occurred. The burden of proof is thus shifted to the
Government and if they fail in their arguments, issues will arise under Article 2 and/or Article
3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005-II).

99. Taking into account the above elements, the Court is satisfied that the applicant has made
a prima facie case that her son was detained by State agents. The Government's statement that
the investigation did not find any evidence to support the involvement of the special forces in
the abduction is insufficient to discharge them from the above-mentioned burden of proof.
The Court is also sceptical about the Government's assertion of the possible implication of
illegal fighters in the abduction of Artur Bersunkayev, given that this allegation was not
specific and was not supported by any materials. Drawing inferences from the Government's
failure to submit the documents from the criminal investigation file which were in their
exclusive possession or to provide another plausible explanation of the events in question, the
Court finds it established that Artur Bersunkayev was detained on 13 June 2001 by State
agents.

100. The Court further notes that there has been no reliable news of the applicant's son since
that date. His name has not been found in the official records of any detention facilities. The
domestic investigation into Artur Bersunkayev's disappearance, dragging on for over seven
years, has not made any meaningful findings regarding his fate. Lastly, the Government did
not submit any explanation as to what had happened to him after he had been apprehended.

101. Having regard to the previous cases concerning disappearances of people in Chechnya
which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev
and Others v. Russia, no. 69480/01, ECHR 2006-... (extracts)), the Court considers that, in the
context of the conflict in the Chechen Republic, when a person is detained by unidentified
servicemen without any subsequent acknowledgement of the detention, this can be regarded
as life-threatening. The absence of Artur Bersunkayev or any news of him for over seven
years corroborates this assumption. In the light of these considerations and having regard to
the particular circumstances of the case, and more specifically the considerable lapse of time
since the day on which Artur Bersunkayev went missing, the Court finds that he must be
presumed dead following unacknowledged detention by State agents.

102. In the absence of any plausible explanation on the part of the Government as to the
circumstances of Artur Bersunkayev's death, the Court further finds that the Government have
not accounted for the death of the applicant's son during his detention and that the respondent
State's responsibility for this death is therefore engaged.

103. Accordingly, there has been a violation of Article 2 of the Convention in this
connection.

Velasquez Rodriguez v Honduras

149. Disappearances are not new in the history of human rights violations. However, their
systematic and repeated nature and their use not only for causing certain individuals to
disappear, either briefly or permanently, but also as a means of creating a general state of
anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually
worldwide, it has occurred with exceptional intensity in Latin American in the last few years.

150. The phenomenon of disappearances is a complex form of human rights violation that
must be understood and confronted in an integral fashion.

151. The establishment of a Working Group on Enforced or Involuntary Disappearances of


the United Nations Commission on Human Rights, by Resolution 20 (XXXVI) of February
29, 1980, is a clear demonstration of general censure and repudiation of the practice of
disappearances, which had already received world attention at the UN General Assembly
(Resolution 33/173 of December 20, 1978), the Economic and Social Council (Resolution
1979/38 of May 10, 1979) and the Subcommission for the Prevention of Discrimination and
Protection of Minorities (Resolution 5B (XXXII) of September 5, 1979). The reports of the
rapporteurs or special envoys of the Commission on Human Rights show concern that the
practice of disappearances be stopped, the victims reappear and that those responsible be
punished.

152. Within the inter-American system, the General Assembly of the Organization of
American States (OAS) and the Commission have repeatedly referred to the practice of
disappearances and have urged that disappearances be investigated and that the practice be
stopped (AG/RES. 443 (IX-0/79) of October 31, 1979; AG/RES.510 (X-0/80) of November
27, 1980; AG/RES. 618 (XII-0/82) of November 20, 1982; AG/RES. 666 (XIII-0/83) of
November 18, 1983; AG/RES. 742 (XIV-0/84) of November 17, 1984 and AG/RES. 890
(XVII-0/87) of November 14, 1987; Inter-American Commission on Human Rights: Annual
Report 1978, pp. 24-27; Annual Report, 1980-1981, pp. 113-114; Annual Report, 1982-1983,
pp. 46-67; Annual Report, 1985-1986, pp. 37-40; Annual Report, 1986-1987, pp. 277-284 and
in many of its Country Reports, such as OEA/Ser. L/V/II.49, doc. 19, 1980 (Argentina);
OEA/Ser. L/V/II.66, doc. 17, 1985 (Chile) and OEA/Ser. L/V/II.66, doc. 16, 1985
(Guatemala)).

153. International practice and doctrine have often categorized disappearances as a crime
against humanity, although there is no treaty in force which is applicable to the States Parties
to the Convention and which uses this terminology (Inter-American Yearbook on Human
Rights, 1985, pp. 368, 686 and 1102). The General Assembly of the OAS has resolved that it
"is an affront to the conscience of the hemisphere and constitutes a crime against humanity"
(AG/RES. 666, supra) and that "this practice is cruel and inhuman, mocks the rule of law, and
undermines those norms which guarantee protection against arbitrary detention and the right
to personal security and safety" (AG/RES. 742, supra).

154. Without 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.

155. The forced disappearance of human beings is a multiple and continuous violation of
many rights under the Convention that the States Parties are obligated to respect and
guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement
of a detainee's right to be taken without delay before a judge and to invoke the appropriate
procedures to review the legality of the arrest, all in violation of Article 7 of the Convention
which recognizes the right to personal liberty by providing that:

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the


reasons and under the conditions established beforehand by the constitution
of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his


detention and shall be promptly notified of the charge or charges against
him.

5. Any person detained shall be brought promptly before a judge or


other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without prejudice
to the continuation of the proceedings. His release may be subject to
guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse


to a competent court, in order that the court may decide without delay on
the lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone
who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on the
lawfulness of such threat, this remedy may not be restricted or abolished.
The interested party or another person in his behalf is entitled to seek these
remedies.

156. Moreover, prolonged isolation and deprivation of communication are in themselves


cruel and inhuman treatment, harmful to the psychological and moral integrity of the person
and a violation of the right of any detainee to respect for his inherent dignity as a human
being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the
right to the integrity of the person by providing that:
1. Every person has the right to have his physical, mental, and moral
integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or


degrading punishment or treatment. All persons deprived of their liberty
shall be treated with respect for the inherent dignity of the human person.

In addition, investigations into the practice of disappearances and the testimony of victims
who have regained their liberty show that those who are disappeared are often subjected to
merciless treatment, including all types of indignities, torture and other cruel, inhuman and
degrading treatment, in violation of the right to physical integrity recognized in Article 5 of
the Convention.

157. The practice of disappearances often involves secret execution without trial, followed
by concealment of the body to eliminate any material evidence of the crime and to ensure the
impunity of those responsible. This is a flagrant violation of the right to life, recognized in
Article 4 of the Convention, the first clause of which reads as follows:

1. Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of conception.
No one shall be arbitrarily deprived of his life.

158. The practice of disappearances, in addition to directly violating many provisions of


the Convention, such as those noted above, constitutes a radical breach of the treaty in that it
shows a crass abandonment of the values which emanate from the concept of human dignity
and of the most basic principles of the inter-American system and the Convention. The
existence of this practice, moreover, evinces a disregard of the duty to organize the State in
such a manner as to guarantee the rights recognized in the Convention, as set out below.

Price v Jamaica

9.3 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, if 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 the conviction
and sentence by a higher tribunal". In the present case, since the final sentence of death was
passed without having observed the requirement of effective representation on appeal as set
out in article 14, it must be concluded that the right protected by article 6 of the Covenant has
been violated. The Committee notes that the State party has commuted the author's death
sentence and considers that this constitutes sufficient remedy for the violation of article 6,
paragraph 2, in this case.

Ocalan v Turkey

2. The Court's assessment

(a) Legal significance of the practice of the Contracting States as regards the death penalty
162. The Court must first address the applicant's submission that the practice of the
Contracting States in this area can be taken as establishing an agreement to abrogate the
exception provided for in the second sentence of Article 2 § 1, which explicitly permits
capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting
capital punishment, notwithstanding the almost universal abolition of the death penalty in
Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would
nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103).

163. The Grand Chamber agrees with the following conclusions of the Chamber on this point
(see paragraphs 190-96 of the Chamber judgment):

“... The Court reiterates that it must be mindful of the Convention's special character as a
human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so
far as possible be interpreted in harmony with other rules of public international law of which
it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, §
55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-
VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of
interpretation and application of the provisions of the Convention that arise in the present
case.

... It is recalled that the Court accepted in Soering that an established practice within the
member States could give rise to an amendment of the Convention. In that case the Court
accepted that subsequent practice in national penal policy, in the form of a generalised
abolition of capital punishment, could be taken as establishing the agreement of the
Contracting States to abrogate the exception provided for under Article 2 § 1 and hence
remove a textual limit on the scope for evolutive interpretation of Article 3 (ibid., pp. 40-41, §
103). It was found, however, that Protocol No. 6 showed that the intention of the States was to
adopt the normal method of amendment of the text in order to introduce a new obligation to
abolish capital punishment in time of peace and to do so by an optional instrument allowing
each State to choose the moment when to undertake such an engagement. The Court
accordingly concluded that Article 3 could not be interpreted as generally prohibiting the
death penalty (ibid., pp. 40-41, §§ 103-04).

... The applicant takes issue with the Court's approach in Soering. His principal submission
was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by
which the practice of the States may be measured and that the evidence shows that all
member States of the Council of Europe have, either de facto or de jure, effected total
abolition of the death penalty for all crimes and in all circumstances. He contended that as a
matter of legal theory there was no reason why the States should not be capable of abolishing
the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1
through their practice and by formal recognition of that process in the ratification of Protocol
No. 6.

... The Court reiterates that the Convention is a living instrument which must be interpreted in
the light of present-day conditions and that the increasingly high standard being required in
the area of the protection of human rights and fundamental liberties correspondingly and
inevitably requires greater firmness in assessing breaches of the fundamental values of
democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).

... It reiterates that in assessing whether a given treatment or punishment is to be regarded as


inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the
developments and commonly accepted standards in the penal policy of the member States of
the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the
concepts of inhuman and degrading treatment and punishment have evolved considerably
since the Convention came into force in 1953 and indeed since the Court's judgment in
Soering in 1989.

... Equally the Court observes that the legal position as regards the death penalty has
undergone a considerable evolution since Soering was decided. The de facto abolition noted
in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure
abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining
State that has not yet abolished the penalty, namely Russia. This almost complete
abandonment of the death penalty in times of peace in Europe is reflected in the fact that all
the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is
to say, all except Turkey, Armenia and Russia[1]. It is further reflected in the policy of the
Council of Europe, which requires that new member States undertake to abolish capital
punishment as a condition of their admission into the organisation. As a result of these
developments the territories encompassed by the member States of the Council of Europe
have become a zone free of capital punishment.

... Such a marked development could now be taken as signalling the agreement of the
Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2
§ 1, particularly when regard is had to the fact that all Contracting States have now signed
Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether
it is necessary to await ratification of Protocol No. 6 by the three remaining States before
concluding that the death penalty exception in Article 2 § 1 has been significantly modified.
Against such a consistent background, it can be said that capital punishment in peacetime has
come to be regarded as an unacceptable ... form of punishment that is no longer permissible
under Article 2.”

164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition
of the death penalty in all circumstances, the Contracting States have chosen the traditional
method of amendment of the text of the Convention in pursuit of their policy of abolition. At
the date of this judgment, three member States have not signed this Protocol and sixteen have
yet to ratify it. However, this final step towards complete abolition of the death penalty – that
is to say both in times of peace and in times of war – can be seen as confirmation of the
abolitionist trend in the practice of the Contracting States. It does not necessarily run counter
to the view that Article 2 has been amended in so far as it permits the death penalty in times
of peace.

165. For the time being, the fact that there is still a large number of States who have yet to
sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established
practice of the Contracting States to regard the implementation of the death penalty as
inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation
may be made from that provision, even in times of war. However, the Grand Chamber agrees
with the Chamber that it is not necessary for the Court to reach any firm conclusion on these
points since, for the following reasons, it would be contrary to the Convention, even if Article
2 were to be construed as still permitting the death penalty, to implement a death sentence
following an unfair trial.

(b) Unfair proceedings and the death penalty

(i) Under Article 2

166. As regards the reference in Article 2 of the Convention to “the execution of a sentence
of a court”, the Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201-04
of the Chamber judgment):
“... Since the right to life in Article 2 of the Convention ranks as one of the most fundamental
provisions of the Convention – one from which there can be no derogation in peacetime under
Article 15 – and enshrines one of the basic values of the democratic societies making up the
Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann
and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-
46, § 147), a fortiori the second sentence of Article 2 § 1.

... Even if the death penalty were still permissible under Article 2, the Court considers that an
arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the
requirement that '[e]veryone's right to life shall be protected by law'. An arbitrary act cannot
be lawful under the Convention (see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59).

... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant
to the 'execution of a sentence of a court', that the 'court' which imposes the penalty be an
independent and impartial tribunal within the meaning of the Court's case-law (see Incal,
cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February
1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no.
154), and that the most rigorous standards of fairness be observed in the criminal proceedings
both at first instance and on appeal. Since the execution of the death penalty is irreversible, it
can only be through the application of such standards that an arbitrary and unlawful taking of
life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the
decisions of the United Nations Human Rights Committee ...; also Advisory Opinion OC-
16/99 of 1 October 1999 of the Inter-American Court of Human Rights on 'The right to
information on consular assistance in the framework of the guarantee of due process of law',
§§ 135-36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148 ...).
Lastly, the requirement in Article 2 § 1 that the penalty be 'provided by law' means not only
that there must exist a basis for the penalty in domestic law but that the requirement of the
quality of the law be fully respected, namely that the legal basis be 'accessible' and
'foreseeable' as those terms are understood in the case-law of the Court (see Amann v.
Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], no.
28341/95, § 52, ECHR 2000-V).

... It follows from the above construction of Article 2 that the implementation of the death
penalty in respect of a person who has not had a fair trial would not be permissible.”

(ii) Under Article 3

167. The above conclusion concerning the interpretation of Article 2 where there has been an
unfair trial must inform the opinion of the Court when it considers under Article 3 the
question of the imposition of the death penalty in such circumstances.

168. As the Court has previously noted in connection with Article 3, the manner in which the
death penalty is imposed or executed, the personal circumstances of the condemned person
and a disproportionality to the gravity of the crime committed, as well as the conditions of
detention awaiting execution, are examples of factors capable of bringing the treatment or
punishment received by the condemned person within the proscription under Article 3 (see
Soering, cited above, p. 41, § 104).

169. In the Court's view, to impose a death sentence on a person after an unfair trial is to
subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as
to the future generated by a sentence of death, in circumstances where there exists a real
possibility that the sentence will be enforced, must give rise to a significant degree of anguish.
Such anguish cannot be dissociated from the unfairness of the proceedings underlying the
sentence which, given that human life is at stake, becomes unlawful under the Convention.
(iii) Application of these principles to the present case

170. The Court notes that there has been a moratorium on the implementation of the death
penalty in Turkey since 1984 and that in the present case the Government complied with the
Court's interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted
that the applicant's file was not sent to Parliament for approval of the death sentence, as was
then required by the Turkish Constitution.

171. The Court has also had regard, in this context, to Çınar (cited above) in which the
Commission rejected a claim that Article 3 had been violated in the case of an applicant who
had been sentenced to death in Turkey. In its reasoning, the Commission took into account the
long-standing moratorium on the death penalty and concluded in the circumstances of that
case that the risk of the penalty being implemented was illusory.

172. The Grand Chamber agrees with the Chamber that the special circumstances of the
instant case prevent it from reaching the same conclusion as that reached in Çınar. The
applicant's background as the founder and leader of the PKK, an organisation that had been
engaged in a sustained campaign of violence causing many thousands of casualties, had made
him Turkey's most wanted person. In view of the fact that the applicant had been convicted of
the most serious crimes existing in the Turkish Criminal Code and of the general political
controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the
question of whether he should be executed, it is not possible to rule out the possibility that the
risk that the sentence would be implemented was a real one. In practical terms, the risk
remained for more than three years of the applicant's detention in İmralı, from the date of the
Court of Cassation's judgment of 25 November 1999 affirming the applicant's conviction until
the Ankara National Security Court's judgment of 3 October 2002 commuting the death
penalty to which the applicant had been sentenced to imprisonment.

173. As to the nature of the applicant's trial, the Court refers to its conclusions on the
applicant's complaints under Article 6 of the Convention. It has found that the applicant was
not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that
there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction
with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police
custody and was unable to communicate with his lawyers out of the hearing of officials,
restrictions had been imposed on the number and length of his lawyers' visits to him, he was
unable to consult the case file until an advanced stage of the proceedings, and his lawyers did
not have sufficient time to consult the file properly.

174. The death penalty has thus been imposed on the applicant following an unfair procedure
which cannot be considered to conform to the strict standards of fairness required in cases
involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of
that sentence for nearly three years.

175. Consequently, the Court concludes that the imposition of the death sentence on the
applicant following an unfair trial by a court whose independence and impartiality were open
to doubt amounted to inhuman treatment in violation of Article 3 of the Convention.

Boyce v Barbados

1. The Court considers that there is no dispute that the four alleged victims, Messrs.
Boyce, Joseph,39 Atkins40 and Huggins41 were sentenced to capital punishment 42 pursuant to
Section 2 of Barbados’ Offences Against the Person Act of 1994, which reads: “[a]ny person
convicted of murder shall be sentenced to, and suffer, death.” 43 There is also no dispute that
such legislation imposes a mandatory sentence of death for persons convicted for the crime of
murder.44 The dispute lies as to whether the imposition of a mandatory sentence of death is
contrary to the American Convention.45

2. In interpreting the issue of death penalty in general, the Court has observed that
Article 4(2) of the Convention allows for the deprivation of the right to life by the imposition
of the death penalty in those countries that have not abolished it. That is, capital punishment
is not per se incompatible with or prohibited by the American Convention. However, the
39
Jeffrey Joseph and Lennox Ricardo Boyce were accused together with Rodney Murray and Romaine Bend of
allegedly beating Marquelle Hippolyte on April 10, 1999, which eventually caused his death on April 15, 1999. On January 10,
2001 they were arraigned for the crime of murder. Rodney Murray and Romaine Bend pleaded guilty to the lesser offence of
manslaughter, which was accepted by the Prosecution. Boyce and Joseph, however, pleaded not guilty to the charge of murder.
On February 2, 2001 Lennox Boyce and Jeffrey Joseph were found guilty of murder and sentenced to suffer death by hanging
pursuant to the Offences Against the Person Act. Cf. Lennox Ricardo Boyce and Jeffrey Joseph v. The Queen, Record of
proceedings (case file of appendices to the application, volume II, appendix B.1, folios 502 and 814-815); Judgment delivered by
the Barbados Court of Appeal in Jeffrey Joseph and Lennox Ricardo Boyce v. The Attorney-General et al., supra note 13, (folios
910-912); Affidavit of Jeffrey Joseph, August 17, 2004 (case file of appendices to the application, volume IV, appendix D.1,
folios 1556), and Affidavit of Lennox Boyce, August 17, 2004 (case file of appendices to the application, volume IV, appendix
D.1, folio 1559).
40
Frederick Benjamin Atkins was charged with the murder of Sharmaine Hurley, who died sometime between October
10 and 13, 1998, as a result of two stab wounds in the chest. Mr. Atkins pleaded not guilty to the charge of murder and on July
21, 2000 was convicted and sentenced to suffer death by hanging pursuant to the Offences Against the Person Act. Cf. Her
Majesty The Queen v. Frederick Benjamin Atkins, Trial Transcript (case file of appendices to the application, volume III,
appendix B.6, folios 1010, 1014, 1085, and 1325), and Judgment delivered by the Court of Appeal of Barbados, Frederick
Benjamin Atkins v. The Queen, Criminal Appeal No. 21 of 2000 (case file of appendices to the application, volume III, appendix
B.7, folio 1328).
41
Michael McDonald Huggins was accused of the murder of Stephen Wharton, who died as a result of a gunshot wound
on November 30, 1999. Mr. Huggins pleaded not guilty to the crime of murder and on July 19, 2001, he was convicted and
sentenced to suffer death by hanging pursuant to the Offences Against the Person Act. Cf. Michael McDonald Huggins v. The
Queen, supra note 16, (folios 1384 and 1476), and Affidavit of Michael Huggins, August 17, 2004 (case file of appendices to the
application, volume IV, appendix D.1, folio 1562).
42
The Tribunal recalls that it is not a criminal court before which a person’s individual criminal
responsibility can be adjudicated. This matter corresponds to domestic courts. Furthermore, the Court is
cognizant of the State’s duty to protect all persons, prevent the commission of crimes, punish those
responsible and generally maintain public order. However, the State’s crime prevention and
punishment regime should be carried out with the utmost respect for the human rights of the persons
under their jurisdiction and in compliance with the applicable human rights treaties. Cf. Case of
Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 154; Case
of Suárez Rosero V. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35, para. 37; Case
of Raxcacó Reyes v. Guatemala. Merits, Reparations and Costs. Judgment of September 15, 2005.
Series C No. 133, para. 55, and Case of Fermín Ramírez v. Guatemala. Merits, Reparations and Costs.
Judgment of June 20, 2005. Series C No. 126, para. 63.
43
Offences Against the Person Act, Ch. 141 (case file of appendices to the answer to the
application, volume I, appendix 23, folio 2980).
44
The only exceptions to this rule include cases where the convicted person is less than 18 years of age or is a pregnant
woman. Cf. Section 14 of the Juvenile Offenders Act (case file of appendices to the answer to the application, volume I, appendix
22, folio 2973) and Section 2 of the Sentence of Death (Expectant Mothers) Act (case file of appendices to the answer to the
application, volume I, appendix 27, folio 3087).
45
The State has repeatedly affirmed throughout this case that “the people of Barbados strongly
believe in the effectiveness and validity of the death penalty as a criminal deterrent. The current
Government was elected in part on the explicit platform of enforcing the death penalty. It was elected
to uphold not just any form of the death penalty, but rather the current, mandatory form of capital
punishment.” lt emphasized that even if no death sentence has been carried out in Barbados since 1984,
there is still very strong public support for mandatory capital punishment as a criminal deterrent. In this
regard, the Court is aware of the information presented by the State providing evidence on the public
opinion’s support for the death penalty in Barbados. However, pursuant to Articles 62 of the
Convention and 1 of the Court’s Statute, the main purpose of this Tribunal, as a judicial institution, is
“the application and interpretation of the American Convention on Human Rights.” The State of
Barbados ratified the American Convention on November 27, 1982 and recognized the Court’s
contentious jurisdiction on June 4, 2000 (supra, para. 30). Accordingly, pursuant to its duty to resolve
Convention has set a number of strict limitations to the imposition of capital punishment. 46
First, the imposition of the death penalty must be limited to the most serious common crimes
not related to political offenses. 47 Second, the sentence must be individualized in conformity
with the characteristics of the crime, as well as the participation and degree of culpability of
the accused.48 Finally, the imposition of this sanction is subject to certain procedural
guarantees, and compliance with them must be strictly observed and reviewed. 49

3. Specifically, in addressing the issue of mandatory death sentencing in other cases, the
Court has held that the reference to “arbitrary” in Article 4(1) of the Convention and the
reference to “the most serious crimes” in Article 4(2) render the imposition of mandatory
death sentences incompatible with such provisions where the same penalty is imposed for
conduct that can be vastly different, and where it is not restricted to the most serious crimes. 50

4. The provisions of the Convention regarding the imposition of the death penalty must
be interpreted (supra pars. 16 and 17) in view of the pro persona principle, that is to say, they
should be interpreted in favor of the individual 51 as “imposing restrictions designed to delimit
strictly its application and scope, in order to reduce the application of the death penalty to
bring about its gradual disappearance”.52

A.1) The limitation of the application of the death penalty to the “most serious crimes”

5. The Court has previously held that the

intentional and illicit deprivation of another’s life (intentional or premeditated


murder, in the broad sense) can and must be recognized and addressed in
criminal law under various categories (criminal classes) that correspond with
the wide range of seriousness of the surrounding facts, taking into account the
cases properly brought before it, the Court must analyze whether Barbados’ system of capital
punishment comports with the legal obligations the State has undertaken under the American
Convention, in light of this Tribunal’s jurisprudence. In this way, the Court, as the final interpreter of
the Convention, ensures that its effet utile is not reduced or annulled by the application of laws which,
however popular they may be, are contrary to the Convention’s provisions, object and purpose. Cf.
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú. Preliminary Objections,
Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 158, para. 128.
46
Cf. Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human
Rights), supra note 7.
47
Cf. Case of Hilaire, Constantine and Benjamin et al. V. Trinidad and Tobago. Merits,
Reparations and Costs. Judgment of June 21, 2002. Series C No. 94, para. 106, and Case of Raxcacó
Reyes, supra note 37, para. 68. See also Restrictions to the death penalty (Arts. 4(2) and 4(4) American
Convention on Human Rights), supra note 7, para. 55.
48
Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, paras. 103, 106 and 108,
and Case of Raxcacó Reyes, supra note 37, para. 81. See also Restrictions to the death penalty (Arts.
4(2) and 4(4) American Convention on Human Rights), supra note 7, para. 55.
49
Cf. Case of Fermín Ramírez, supra note 37, para. 79. See also Restrictions to the death
penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), supra note 7, para. 55, and The
Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process
of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 135.
50
Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, paras. 103, 106 and 108,
and Case of Raxcacó Reyes, supra note 37, paras. 81 and 82.
51
Cf. Case of the 19 Merchants V. Colombia. Merits, Reparations and Costs. Judgment of July
5, 2004. Series C No. 109, para. 173; Case of Dismissed Congressional Employees (Aguado Alfaro et
al.), supra note 40, para. 77, and Case of the Massacre of Pueblo Bello V. Colombia. Merits,
Reparations and Costs. Judgment of January 31, 2006. Series C No. 140, para. 59.
52
Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 99, and Case of
Raxcacó Reyes, supra note 37, para. 56. See also Restrictions to the Death Penalty (Arts. 4(2) and 4(4)
American Convention on Human Rights), supra note 7, para. 57.
different facets that can come into play: a special relationship between the
offender and the victim [e.g. infanticide], motives for the behavior [e.g. for
reward or remunerative promise], the circumstances under which the crime is
committed [e.g. brutality], the means employed by the offender [e.g. poison],
etc. This approach allows for a graduated assessment of the seriousness of the
offence, so that it will bear an appropriate relation to the graduated levels of
gravity of the applicable punishment.53

6. Thus, the Convention reserves the most severe form of punishment for the most
severe illicit acts. Nevertheless, as stated previously, Section 2 of the Offences Against the
Person Act simply states that where a person is found guilty of murder, that person shall be
sentenced to death. Regardless of the manner in which the murder is committed or the means
employed, the penalty is the same for all murders in Barbados. That is, the Offences Against
the Persons Act of Barbados fails to differentiate between intentional killings punishable by
death, and intentional killings (not merely manslaughter or other lesser form of homicide) 54
that would not be punishable by death. Rather, the Offences Against the Person Act “compels
the indiscriminate imposition of the same punishment for conduct that can be vastly
different”.55

7. Consequently, the Court considers that Section 2 of the Offences Against the Person
Act of Barbados does not confine the application of the death penalty to the most serious
crimes, in contravention with Article 4(2) of the Convention.

A.2) The arbitrariness of the mandatory death penalty

8. The State argued that the imposition of its mandatory death penalty for the crime of
murder in Barbados is not arbitrary, within the meaning of Article 4(1) of the Convention,
precisely because it is lawfully sanctioned, as opposed to “ad hoc executions administered
outside of the realm of law”. To support its argument, the State asserted that “the Barbadian
criminal justice system allows every person accused of a crime of murder or treason the full
range of due process rights and procedures, access to common law and statutory defenses and
exceptions, and judges each person’s guilt or innocence at law individually. Further, the
Barbados Privy Council examines all of the considerations that may be said to apply to the
individual – looking at that person in her or his unique circumstances – in order to decide
whether to commute the death sentence”.

9. Although the Court agrees that extrajudicial executions are, by definition, arbitrary
and contrary to Article 4(1) of the Convention,56 the State is incorrect to assume that a
lawfully sanctioned death sentence may not also be arbitrary. A lawfully sanctioned
mandatory sentence of death may be arbitrary where the law fails to distinguish the possibility
of different degrees of culpability of the offender and fails to individually consider the
particular circumstances of the crime. Section 2 of the Offences Against the Person Act in
Barbados lawfully sanctions the death penalty as the one and only possible sentence for the

53
Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 102.
54
Killings which otherwise would constitute murder in Barbados are subject to lesser
punishments in the following areas: attempted murder, threatening murder through letters, conspiracy
to murder, aiding suicide, acting in pursuance of a suicide pact and infanticide. Cf. Offenses Against the
Person Act, supra note 38, ss. 2 and 9-14, (folios 2980 and 2983-2984).
55
Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 103.
56
Cf. Case of Cantoral Huamaní and García Santa Cruz, supra note 25; Case of Escué Zapata
V. Colombia. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 165, and Case of
La Rochela Massacre V. Colombia. Merits, Reparations and Costs. Judgment of May 11, 2007. Series
C No. 163.
crime of murder57, and the law does not allow the imposition of a lesser sentence in
consideration of the particular characteristics of the crime (supra pars. 49-61), or the
participation and degree of culpability of the defendant.

10. In this regard, the Court has previously held that to consider all persons responsible
for murder as deserving of the death penalty, "treats all persons convicted of a designated
offense not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the death penalty." 58

11. Evidently, the State is correct in asserting that the strict observation of certain due
process rights and procedures are essential in evaluating whether the death penalty has been
imposed arbitrarily.59 Nevertheless, a distinction should be made between the sentencing
stage and the availability and observance of such procedures during the whole proceedings of
a capital case, including the appeals process. In accordance with the law in Barbados, the
availability of statutory and common law defenses and exceptions for defendants in death
penalty cases are relevant only for the determination of the guilt or innocence of the accused,
not for the determination of the appropriate punishment that should be imposed once a person
has been convicted. That is, a defendant in a capital punishment case may attempt to escape a
guilty verdict by claiming certain common law defenses to a charge of murder. 60 These
defenses seek to escape a conviction for murder and replace it with one for manslaughter, for
example, which carries a sentence of life imprisonment, or even to totally exclude criminal
liability for murder.61 Nevertheless, if and when a defendant is found guilty of the crime of
murder, the law does not allow the judge any latitude to consider the degree of culpability of
the defendant or other forms of punishment that may be better suited for that particular person
in light of all circumstances. That is, courts have no authority to individualize the sentence in
conformity with information of the offence (supra pars. 54) and the offender.

12. The State has argued that the unique circumstances of the individual and of the crime
are taken into account by the executive branch, which, through the recommendation of the
Barbados Privy Council,62 may decide to commute a death sentence (supra par. 20). In this
57
The definition of murder is not provided in any written law, as it remains a common law
offence, and it is understood that “[m]urder is committed where a person of sound mind and the age of
discretion unlawfully kills any reasonable creature in being under the Queen’s peace with malice
aforethought either expressed by that person or implied by law, so that the party wounded or hurt dies
of that wound or hurt within a year and a day of same”. Cf. Definition of murder in Final written
submissions of the State (merits case file, volume III, folio 848). Moreover, a person who “aids, abets,
counsels, procures or incites another to commit [murder] is guilty of [such] offence and may be
proceeded against and punished as a principal offender”. Cf. Offenses Against the Person Act, supra
note 38, s. 45, (folio 2992).
58
Cf. Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 105, citing Woodson v. North Carolina, 428
U.S. 280, 304 (1976). The Supreme Court of the United States of America held that the mandatory death penalty constituted a
violation of the due process guarantees of the Fourteenth Amendment and the right to not be subjected to cruel and unusual
punishment of the Eighth Amendment of the Constitution of the United States of America. The Court also indicated that the
imposition of the death penalty generally necessitates a consideration of the relevant facets of the character and record of the
individual offender and the circumstances of the particular offence.
59
In Advisory Opinion OC-16/99, the Court made it clear that when due process guarantees are affected the “imposition
of the death penalty is a violation of the right not to be ‘arbitrarily’ deprived of one's life, in the terms of the relevant provisions
of the human rights treaties (e.g. The American Convention on Human Rights, Article 4 […]) with the juridical consequences
inherent in a violation of this nature i.e., those pertaining to the international responsibility of the State and the duty to make
reparations”. Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of
Law, supra note 44, para. 137.
60
Cf. Offenses Against the Person Act, (defining, for example, diminished responsibility and
provocation), supra note 38, ss. 4 and 5, (folios 2980-82).
61
Cf. Offenses Against the Person Act, supra note 38, s. 6, (folio 2982).
62
Article 78 of Barbados Constitution provides for the Barbados Privy Council to advice the
Governor-General in his duty to exercise the prerogative of mercy, through which he may grant a
pardon or respite, substitute a less severe form of punishment for that imposed on any person for such
an offence, or remit the whole or part of any punishment or any other penalty or forfeiture. The
Governor-General appoints the members of the Barbados Privy Council, also known as the Mercy
regard, the Court considers that a distinction must also be made between the right under
Article 4(6) of the Convention of every convicted person to “apply for amnesty, pardon, or
commutation of sentence”, and the right recognized in Article 4(2) to have a “competent
court” determine whether the death penalty is the appropriate sentence in each case, in
accordance with domestic law and the American Convention. That is, sentencing is a judicial
function. The executive branch may grant pardon or commutation of a sentence already
imposed, but the judicial branch may not be stripped away of its responsibility to impose the
appropriate sentence for a particular crime. In the present case, the judicial branch had no
other option than to sentence the four alleged victims to death when they were found guilty of
murder, and no judicial review of the actual punishment of death was allowed because it is a
punishment specifically fixed by law. 63

13. In sum, regardless of the available defenses for the determination of a murder
conviction, and despite the possibility to apply to the executive branch for a commutation of a
death sentence, the Court considers that “in the determination of punishment, [the Offences
Against the Person Act] mechanically and generically imposes the death penalty for all
persons found guilty of murder”. 64 This is in contravention of the prohibition of the arbitrary
deprivation of the right to life recognized in Article 4(1) of the Convention, as it fails to
individualize the sentence in conformity with the characteristics of the crime, as well as the
participation and degree of culpability of the accused.65

14. In light of these facts, the Court concludes that because the Offences Against the
Person Act submits all persons charged with murder to a judicial process in which the
participation and degree of culpability of the accused and the individual circumstances of the
crime are not considered, the aforementioned Act violates the prohibition against the arbitrary
deprivation of life and fails to limit the application of the death penalty to the most serious
crimes, in contravention of Article 4(1) and 4(2) of the Convention.

Committee, after consultation with the Prime Minister. Currently, the Mercy Committee is composed of
members from the executive branch, the academia, the church and the private sector. Members serve
for a term of office that should not exceed 15 years or until the age of 75. However, the Governor-
General can revoke their appointment after consultation with the Prime Minister. Cf. The Constitution
of Barbados, Chapter VI, Executive Powers, ss. 76, 77 and 78 (case file of appendices to the answer to
the application, volume I, appendix 17, folios 2840-2841), and Final written submissions of the State
(merits case file, volume III, folio 874).
63
After a murder conviction, an appeal against conviction can be pursued to the Court of Appeal
of Barbados, and following that, to the Judicial Committee of the Privy Council. Since 2005, the
Caribbean Court of Justice replaced the latter. Grounds for appeal to the Court of Appeal are based on
questions of law, fact, mixed law and fact, or any other grounds sufficient for appeal, and in mandatory
death penalty cases, it is an appeal against the conviction, not the death sentence, which is specifically
fixed and mandated by law. Grounds for appeal to the Judicial Committee of the Privy Council were
based on questions of law, interpretation of the Constitution, general or public importance, and mixed
law and fact. Cf. Criminal Appeal Act, Ch. 113A (case file of appendices to the final written
submissions presented by all parties, folios 6867 and 6887). Grounds for appeal to the Caribbean Court
of Justice on criminal proceedings are mainly based on the interpretation of the Constitution. Cf.
Caribbean Court of Justice Act, Ch. 117 (case file of appendices to the final written submissions
presented by all parties, folios 6903-6904).
64
Case of Hilaire, Constantine and Benjamin et al., supra note 42, para. 104. Cf. also Case of
Raxcacó Reyes, supra note 37, para. 81.
65
Similarly, the Human Rights Committee has highlighted in its concluding observations on
Barbados that “it remains concerned that the State party’s laws make the imposition of the death
penalty mandatory in respect of certain crimes, thus depriving the sentencing court of any discretion in
imposing the penalty in the light of all the circumstances of the case.” UNHRC, Consideration of
Reports submitted by States Parties under Article 40 of the Covenant, Concluding Observations on
Barbados (Eighty-ninth session, 2007), CCPR/C/BRB/CO/3, May 11, 2007, para. 9.
15. Therefore, the Court considers that Barbados has violated Article 4(1) and 4(2) of the
Convention, in conjunction with Article 1(1) thereof, to the detriment of Messrs. Boyce,
Joseph, Atkins, and Huggins.

International Pen and others v Nigeria

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 Saro-Wiwa and others. It is a matter of deep regret that this did not happen.

Vo v France

1. Existing case-law

75. Unlike Article 4 of the American Convention on Human Rights, which provides that the
right to life must be protected “in general, from the moment of conception”, Article 2 of the
Convention is silent as to the temporal limitations of the right to life and, in particular, does
not define “everyone” (“toute personne”) whose “life” is protected by the Convention. The
Court has yet to determine the issue of the “beginning” of “everyone’s right to life” within the
meaning of this provision and whether the unborn child has such a right.

To date it has been raised solely in connection with laws on abortion. Abortion does not
constitute one of the exceptions expressly listed in paragraph 2 of Article 2, but the
Commission has expressed the opinion that it is compatible with the first sentence of Article 2
§ 1 in the interests of protecting the mother’s life and health because “if one assumes that this
provision applies at the initial stage of the pregnancy, the abortion is covered by an implied
limitation, protecting the life and health of the woman at that stage, of the ‘right to life’ of the
foetus” (see X v. the United Kingdom, Commission decision cited above, p. 253).
76. Having initially refused to examine in abstracto the compatibility of abortion laws with
Article 2 of the Convention (see X v. Norway, no. 867/60, Commission decision of 29 May
1961, Collection of Decisions, vol. 6, p. 34, and X v. Austria, no. 7045/75, Commission
decision of 10 December 1976, DR 7, p. 87), the Commission acknowledged in Brüggemann
and Scheuten (cited above) that women complaining under Article 8 of the Convention about
the Constitutional Court’s decision restricting the availability of abortions had standing as
victims. It stated on that occasion: “... pregnancy cannot be said to pertain uniquely to the
sphere of private life. Whenever a woman is pregnant her private life becomes closely
connected with the developing foetus” (ibid., p. 116, § 59). However, the Commission did not
find it “necessary to decide, in this context, whether the unborn child is to be considered as
‘life’ in the sense of Article 2 of the Convention, or whether it could be regarded as an entity
which under Article 8 § 2 could justify an interference ‘for the protection of others’ ” (ibid., p.
116, § 60). It expressed the opinion that there had been no violation of Article 8 of the
Convention because “not every regulation of the termination of unwanted pregnancies
constitutes an interference with the right to respect for the private life of the mother” (ibid.,
pp. 116-17, § 61), while emphasising: “There is no evidence that it was the intention of the
Parties to the Convention to bind themselves in favour of any particular solution” (ibid., pp.
117-18, § 64).

77. In X v. the United Kingdom (cited above), the Commission considered an application by a
man complaining that his wife had been allowed to have an abortion on health grounds. While
it accepted that the potential father could be regarded as the “victim” of a violation of the
right to life, it considered that the term “everyone” in several Articles of the Convention could
not apply prenatally, but observed that “such application in a rare case – e.g. under Article 6,
paragraph 1 – cannot be excluded” (p. 249, § 7; for such an application in connection with
access to a court, see Reeve v. the United Kingdom, no. 24844/94, Commission decision of
30 November 1994, DR 79-A, p. 146). The Commission added that the general usage of the
term “everyone” (“toute personne”) and the context in which it was used in Article 2 of the
Convention did not include the unborn. As to the term “life” and, in particular, the beginning
of life, the Commission noted a “divergence of thinking on the question of where life begins”
and added: “While some believe that it starts already with conception, others tend to focus
upon the moment of nidation, upon the point that the foetus becomes ‘viable’, or upon live
birth” (X v. the United Kingdom, p. 250, § 12).

The Commission went on to examine whether Article 2 was “to be interpreted: as not
covering the foetus at all; as recognising a ‘right to life’ of the foetus with certain implied
limitations; or as recognising an absolute ‘right to life’ of the foetus” (ibid. p. 251, § 17).
Although it did not express an opinion on the first two options, it categorically ruled out the
third interpretation, having regard to the need to protect the mother’s life, which was
indissociable from that of the unborn child: “The ‘life’ of the foetus is intimately connected
with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2
were held to cover the foetus and its protection under this Article were, in the absence of any
express limitation, seen as absolute, an abortion would have to be considered as prohibited
even where the continuance of the pregnancy would involve a serious risk to the life of the
pregnant woman. This would mean that the ‘unborn life’ of the foetus would be regarded as
being of a higher value than the life of the pregnant woman” (ibid., p. 252, § 19). The
Commission adopted that solution, noting that by 1950 practically all the Contracting Parties
had “permitted abortion when necessary to save the life of the mother” and that in the
meantime the national law on termination of pregnancy had “shown a tendency towards
further liberalisation” (ibid., p. 252, § 20).

78. In H. v. Norway (cited above), concerning an abortion carried out on non-medical


grounds against the father’s wishes, the Commission added that Article 2 required the State
not only to refrain from taking a person’s life intentionally but also to take appropriate steps
to safeguard life (p. 167). It considered that it did not have to decide “whether the foetus may
enjoy a certain protection under Article 2, first sentence”, but did not exclude the possibility
that “in certain circumstances this may be the case notwithstanding that there is in the
Contracting States a considerable divergence of views on whether or to what extent Article 2
protects the unborn life” (ibid.). It further noted that in such a delicate area the Contracting
States had to have a certain discretion, and concluded that the mother’s decision, taken in
accordance with Norwegian legislation, had not exceeded that discretion ( p. 168).

79. The Court has only rarely had occasion to consider the application of Article 2 to the
foetus. In Open Door and Dublin Well Woman (cited above), the Irish Government relied on
the protection of the life of the unborn child to justify their legislation prohibiting the
provision of information concerning abortion facilities abroad. The only issue that was
resolved was whether the restrictions on the freedom to receive and impart the information in
question had been necessary in a democratic society, within the meaning of paragraph 2 of
Article 10 of the Convention, to pursue the “legitimate aim of the protection of morals of
which the protection in Ireland of the right to life of the unborn is one aspect” (pp. 27-28, §
63), since the Court did not consider it relevant to determine “whether a right to abortion is
guaranteed under the Convention or whether the foetus is encompassed by the right to life as
contained in Article 2” (p. 28, § 66). Recently, in circumstances similar to those in H. v.
Norway (cited above), where a woman had decided to terminate her pregnancy against the
father’s wishes, the Court held that it was not required to determine “whether the foetus may
qualify for protection under the first sentence of Article 2 as interpreted [in the case-law
relating to the positive obligation to protect life]”, and continued: “Even supposing that, in
certain circumstances, the foetus might be considered to have rights protected by Article 2 of
the Convention, ... in the instant case ... [the] pregnancy was terminated in conformity with
section 5 of Law no. 194 of 1978” – a law which struck a fair balance between the woman’s
interests and the need to ensure protection of the foetus (see Boso, cited above).

80. It follows from this recapitulation of the case-law that in the circumstances examined to
date by the Convention institutions – that is, in the various laws on abortion – the unborn
child is not regarded as a “person” directly protected by Article 2 of the Convention and that
if the unborn do have a “right” to “life”, it is implicitly limited by the mother’s rights and
interests. The Convention institutions have not, however, ruled out the possibility that in
certain circumstances safeguards may be extended to the unborn child. That is what appears
to have been contemplated by the Commission in considering that “Article 8 § 1 cannot be
interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter
of the private life of the mother” (see Brüggemann and Scheuten, cited above, pp. 116-17, §
61) and by the Court in the above-mentioned Boso decision. It is also clear from an
examination of these cases that the issue has always been determined by weighing up various,
and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in
relation to one another or vis-à-vis an unborn child.

Pretty v UK

37. The Court's case-law accords pre-eminence to Article 2 as one of the most fundamental
provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of
27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47). It safeguards the right to life,
without which enjoyment of any of the other rights and freedoms in the Convention is
rendered nugatory. It sets out the limited circumstances when deprivation of life may be
justified and the Court has applied a strict scrutiny when those exceptions have been relied on
by the respondent States (ibid., p. 46, §§ 149-50).

38. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by
State agents. However, it has been interpreted as covering 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 (ibid., p. 46, § 148). Furthermore, the Court has held 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 L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998-III, p. 1403, § 36). This obligation extends beyond a 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 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 (see Osman v. the United Kingdom, judgment of 28
October 1998, Reports 1998-VIII, p. 3159, § 115, and Kılıç v. Turkey, no. 22492/93, §§ 62
and 76, ECHR 2000-III). More recently, in Keenan, Article 2 was found to apply to the
situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan,
cited above, § 91).

39. The consistent emphasis in all the cases before the Court has been the obligation of the
State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2
can be interpreted as involving a negative aspect. While, for example in the context of Article
11 of the Convention, the freedom of association has been found to involve not only a right to
join an association but a corresponding right not to be forced to join an association, the Court
observes that the notion of a freedom implies some measure of choice as to its exercise (see
Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no.
44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993,
Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention is phrased in different terms. It
is unconcerned with issues to do with the quality of living or what a person chooses to do
with his or her life. To the extent that these aspects are recognised as so fundamental to the
human condition that they require protection from State interference, they may be reflected in
the rights guaranteed by other Articles of the Convention, or in other international human
rights instruments. Article 2 cannot, without a distortion of language, be interpreted as
conferring the diametrically opposite right, namely a right to die; nor can it create a right to
self-determination in the sense of conferring on an individual the entitlement to choose death
rather than life.

40. The Court accordingly finds that no right to die, whether at the hands of a third person or
with the assistance of a public authority, can be derived from Article 2 of the Convention. It is
confirmed in this view by the recent Recommendation 1418 (1999) of the Parliamentary
Assembly of the Council of Europe (see paragraph 24 above).

41. The applicant has argued that a failure to acknowledge a right to die under the
Convention would place those countries which do permit assisted suicide in breach of the
Convention. It is not for the Court in this case to attempt to assess whether or not the state of
law in any other country fails to protect the right to life. As it recognised in Keenan, the
measures which may reasonably be taken to protect a prisoner from self-harm will be subject
to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8, as
well as more general principles of personal autonomy (see Keenan, cited above, § 92).
Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the
infliction of harm on individuals at liberty, by their own or another's hand, may raise
conflicting considerations of personal freedom and the public interest that can only be
resolved on examination of the concrete circumstances of the case (see, mutatis mutandis,
Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports
1997-I). However, even if circumstances prevailing in a particular country which permitted
assisted suicide were found not to infringe Article 2 of the Convention, that would not assist
the applicant in this case, where the very different proposition – that the United Kingdom
would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has
not been established.

Paula and Audrey Edwards v UK

2. The Court's assessment

(a) General principles

54. The Court reiterates 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 L.C.B. v. the United Kingdom,
judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). This involves a primary duty on
the State 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 a law-enforcement
machinery for the prevention, suppression and punishment of breaches of such provisions. It
also extends in appropriate circumstances to 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 (see Osman, cited above, p. 3159, § 115).

55. Bearing in mind the difficulties in policing modern societies, the unpredictability of
human conduct and the operational choices which must be made in terms of priorities and
resources, the scope of the positive obligation must be interpreted in a way which does not
impose an impossible or disproportionate burden on the authorities. Not every claimed risk to
life, therefore, can entail for the authorities a Convention requirement to take operational
measures to prevent that risk from materialising. For a positive obligation to arise, it must be
established 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 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 (ibid., pp. 3159-60, § 116).

56. In the context of prisoners, the Court has had previous occasion to emphasise that persons
in custody are in a vulnerable position and that the authorities are under a duty to protect
them. It is incumbent on the State to account for any injuries suffered in custody, which
obligation is particularly stringent where that individual dies (see, for example, Salman v.
Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII). It may be noted that this need for scrutiny
is acknowledged in the domestic law of England and Wales, where inquests are automatically
held concerning the deaths of persons in prison and where the domestic courts have imposed a
duty of care on prison authorities in respect of detainees in their custody.

(b) Application in the present case

57. Christopher Edwards was killed while detained on remand by a dangerous, mentally ill
prisoner, Richard Linford, who was placed in his cell. As a prisoner he fell under the
responsibility of the authorities who were under a domestic-law and Convention obligation to
protect his life. The Court has examined, firstly, whether the authorities knew or ought to have
known of the existence of a real and immediate risk to the life of Christopher Edwards from
the acts of Richard Linford and, secondly, whether they failed to take measures within the
scope of their powers which, judged reasonably, might have been expected to avoid that risk.
58. As regards the state of knowledge of the authorities, the Court notes that it was
considered in the inquiry report that any prisoner sharing a cell with Richard Linford that
night would have been at risk to his life. It seems therefore to the Court that the essential
question is whether the prison authorities knew or ought to have known of his extreme
dangerousness at the time the decision was taken to place him in the same cell as Christopher
Edwards.

59. That Richard Linford was mentally ill was known to the doctors who were treating him –
he had been admitted to hospital in 1988 and been diagnosed as suffering from schizophrenia.
He also had a history of violent outbursts and assaults. However, some weeks prior to his
arrest on 26 November 1994, while fears had arisen that he was capable of serious violence,
the consultant psychiatrist considered that one more effort to manage his behaviour through
depot medication was required before steps were taken to detain him under the Mental Health
Act 1983. At the police station, after his arrest, his bizarre behaviour led the police to suspect
that he was mentally ill and the police surgeon considered that his mental state was such that
he was not fit to be detained. This view was overruled, somewhat to the surprise of the police,
by the psychiatric registrar who examined him and concluded that his behaviour could be a
result of substance abuse and a deliberate attempt at manipulation. The registrar did not
consult Richard Linford's notes which would have shown him that he was under consideration
for compulsory committal. While in the police station, Richard Linford's behaviour continued
to fluctuate with violent and bizarre episodes. When he arrived at the prison after being
remanded in custody by the court, he bore visible signs of injury and was known to the
screening health worker to have been “difficult”. The screening health worker was not,
however, made aware of his prison record or his previous committal to hospital and the
police, prosecution and court did not pass on any detailed information relating to his conduct
and his known history of mental disturbance.

60. The Court is satisfied that information was available which identified Richard Linford as
suffering from a mental illness with a record of violence which was serious enough to merit
proposals for compulsory detention and that this, in combination with his bizarre and violent
behaviour on and following arrest, demonstrated that he was a real and serious risk to others
and, in the circumstances of this case, to Christopher Edwards, when placed in his cell.

61. As regards the measures which they might reasonably have been expected to take to
avoid that risk, the Court observes that the information concerning Richard Linford's medical
history and perceived dangerousness ought to have been brought to the attention of the prison
authorities, and in particular those responsible for deciding whether to place him in the health
care centre or in ordinary location with other prisoners. It was not. There was a series of
shortcomings in the transmission of information, from the failure of the registrar to consult
Richard Linford's notes in order to obtain the full picture, the failure of the police to fill in a
CID2 form (exceptional risk) and the failure of the police, prosecution or Magistrates' Court
to take steps to inform the prison authorities in any other way of Richard Linford's suspected
dangerousness and instability.

62. The Government have pointed out that even if a CID2 form had been filled in by the
police, this would not have conclusively led the prison to place Richard Linford in the health
care centre rather than a cell with another prisoner. They submit that the screening process
concentrated on the behaviour of the prisoner on admission and was not expected to be a full
medical or psychiatric examination, a doctor generally visiting each prisoner within a day of
arrival. However, the inquiry report considered that if the screening health worker had been
properly informed of Richard Linford's background, he would have perhaps paid closer
attention, noticing that Linford had lied in his answers in the questionnaire and he might in
those circumstances have erred on the side of caution and not placed him on ordinary
location. It is true that this is speculation to some extent. However, the Court considers that it
is self-evident that the screening process of the new arrivals in a prison should serve to
identify effectively those prisoners who require for their own welfare or the welfare of other
prisoners to be placed under medical supervision. The defects in the information provided to
the prison admissions staff were combined in this case with the brief and cursory nature of the
examination carried out by a screening health worker who was found by the inquiry to be
inadequately trained and acting in the absence of a doctor to whom recourse could be had in
case of difficulty or doubt.

63. It is apparent from the inquiry report that in addition there were numerous failings in the
way in which Christopher Edwards was treated from his arrest to his allocation to a shared
cell. In particular, despite his disturbed mental state, no doctor was called to examine him in
the police station, no CID2 form was filled in by the police and there was a failure to pass on
to the prison screening officer information provided informally by the applicants, the
probation service at the court and an individual police officer. However, although it would
obviously have been desirable for Christopher Edwards to be detained either in a hospital or
the health care centre of the prison, his life was placed at risk by the introduction into his cell
of a dangerously unstable prisoner and it is the shortcomings in that regard which are most
relevant to the issues in this case. On the same basis, while the Court deplores the fact that the
cell's call button, which should have been a safeguard, was defective, it considers that on the
information available to the authorities, Richard Linford should not have been placed in
Christopher Edwards's cell in the first place.

64. The Court concludes that the failure of the agencies involved in this case (medical
profession, police, prosecution and court) to pass information about Richard Linford on to the
prison authorities and the inadequate nature of the screening process on Richard Linford's
arrival in prison disclose a breach of the State's obligation to protect the life of Christopher
Edwards. There has therefore been a breach of Article 2 of the Convention in this regard.

Osman v UK

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.

On the above understanding the Court will examine the particular circumstances of this case.

117. The Court observes, like the Commission, that the concerns of the school about Paget-
Lewis’ disturbing attachment to Ahmet Osman can be reasonably considered to have been
communicated to the police over the course of the five meetings which took place between
3 March and 4 May 1987 (see paragraphs 21 and 27 above), having regard to the fact that
Mr Prince’s decision to call in the police in the first place was motivated by the allegations
which Mrs Green had made against Paget-Lewis and the school’s follow-up to those
allegations. It may for the same reason be reasonably accepted that the police were informed
of all relevant connected matters which had come to light by 4 May 1987 including the
graffiti incident, the theft of the school files and Paget-Lewis’ change of name.

It is the applicants’ contention that by that stage the police should have been alert to the need
to investigate further Paget-Lewis’ alleged involvement in the graffiti incident and the theft of
the school files or to keep a closer watch on him given their awareness of the obsessive nature
of his behaviour towards Ahmet Osman and how that behaviour manifested itself. The Court
for its part is not persuaded that the police’s failure to do so at this stage can be impugned
from the standpoint of Article 2 having regard to the state of their knowledge at that time.
While Paget-Lewis’ attachment to Ahmet Osman could be judged by the police officers who
visited the school to be most reprehensible from a professional point of view, there was never
any suggestion that Ahmet Osman was at risk sexually from him, less so that his life was in
danger. Furthermore, Mr Perkins, the deputy headmaster, alone had reached the conclusion
that Paget-Lewis had been responsible for the graffiti in the neighbourhood of the school and
the theft of the files. However Paget-Lewis had denied all involvement when interviewed by
Mr Perkins and there was nothing to link him with either incident. Accordingly, at that
juncture, the police’s appreciation of the situation and their decision to treat it as a matter
internal to the school cannot be considered unreasonable.

Like the Commission (see paragraph 68 above), the Court is not persuaded either that the
ILEA official’s memorandum and internal notes written between 14 April and 8 May 1987 are
an accurate reflection of how the discussions between Mr Prince and the police officers
wound up (see paragraph 28 above).

118. The applicants have attached particular weight to Paget-Lewis’ mental condition and in
particular to his potential to turn violent and to direct that violence at Ahmet Osman.
However, it is to be noted that Paget-Lewis continued to teach at the school up until June
1987. Dr Ferguson examined him on three occasions and was satisfied that he was not
mentally ill. On 7 August 1987 he was allowed to resume teaching, although not at Homerton
House (see paragraph 35 above). It is most improbable that the decision to lift his suspension
from teaching duties would have been made if it had been believed at the time that there was
the slightest risk that he constituted a danger to the safety of young people in his charge. The
applicants are especially critical of Dr Ferguson’s psychiatric assessment of Paget-Lewis.
However, that assessment was made on the basis of three separate interviews with Paget-
Lewis and if it appeared to a professional psychiatrist that he did not at the time display any
signs of mental illness or a propensity to violence it would be unreasonable to have expected
the police to have construed the actions of Paget-Lewis as they were reported to them by the
school as those of a mentally disturbed and highly dangerous individual.

119. In assessing the level of knowledge which can be imputed to the police at the relevant
time, the Court has also had close regard to the series of acts of vandalism against the
Osmans’ home and property between May and November 1987 (see paragraphs 30, 36 and 37
above). It observes firstly that none of these incidents could be described as life-threatening
and secondly that there was no evidence pointing to the involvement of Paget-Lewis. This
was also the view of Detective Sergeant Boardman in his report on the case in mid-December
1987 having interviewed the Green and Osman families, visited the school and taken stock of
the file (see paragraphs 42–45 above). The completeness of Detective Sergeant Boardman’s
report and the assessment he made in the knowledge of all the allegations made against Paget-
Lewis would suggest that even if it were to be assumed that the applicants are correct in their
assertions that the police did not keep records of the reported incidents of vandalism and of
their meetings with the school and ILEA officials, this failing could not be said to have
prevented them from apprehending at an earlier stage any real threat to the lives of the Osman
family or that the irrationality of Paget-Lewis’ behaviour concealed a deadly disposition. The
Court notes in this regard that when the decision was finally taken to arrest Paget-Lewis it
was not based on any perceived risk to the lives of the Osman family but on his suspected
involvement in acts of minor criminal damage (see paragraph 49 above).

120. The Court has also examined carefully the strength of the applicants’ arguments that
Paget-Lewis on three occasions communicated to the police, either directly or indirectly, his
murderous intentions (see paragraph 105 above). However, in its view these statements
cannot be reasonably considered to imply that the Osman family were the target of his threats
and to put the police on notice of such. The applicants rely in particular on Paget-Lewis’
threat to “do a sort of Hungerford” which they allege he uttered at the meeting with ILEA
officers on 15 December 1987 (see paragraph 46 above). The Government have disputed that
these words were said on that occasion, but even taking them at their most favourable to the
applicants’ case, it would appear more likely that they were uttered with
respect to Mr Perkins whom he regarded as principally to blame for being forced to leave his
teaching post at Homerton House. Furthermore, the fact that Paget-Lewis is reported to have
intimated to the driver of the car with which he collided on 7 December 1987 that he was on
the verge of committing some terrible deed (see paragraphs 38 and 40 above) could not
reasonably be taken at the time to be a veiled reference to a planned attack on the lives of the
Osman family. The Court must also attach weight in this respect to the fact that, even if Paget-
Lewis had deliberately rammed the vehicle as alleged, that act of hostility was in all
probability directed at Leslie Green, the passenger in the vehicle. Nor have the applicants
adduced any further arguments which would enhance the weight to be given to Paget-Lewis’
claim that he had told PC Adams that he was in danger of doing something criminally insane
(see paragraph 37 above). In any event, as with his other cryptic threats, this statement could
not reasonably be construed as a threat against the lives of the Osman family.

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.

Gongadze v Ukraine

2. The Court's assessment

164. The Court reiterates 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. This involves a primary duty on the State
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 punishment of breaches of such provisions. It also extends, in
appropriate circumstances, to a positive obligation on the authorities to take preventive
operational measures to protect an individual or individuals whose lives are at risk from the
criminal acts of another individual.

165. Bearing in mind the difficulties in policing modern societies, the unpredictability of
human conduct and the operational choices which must be made in terms of priorities and
resources, the positive 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. For a positive obligation to arise, it must be established
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 (see Kılıç v. Turkey, no.
22492/93, §§ 62-63, ECHR 2000-III).

166. The recent developments in the present case demonstrate with a high degree of
probability that police officers were involved in the disappearance and murder of Mr
Gongadze. The question to be determined is whether the authorities failed to comply with
their positive obligation to protect Mr Gongadze from a known risk to his life.

167. The Court first notes that, in the instant case, the applicant's husband, in his open letter
of 14 July 2000 to the Prosecutor General, reported several facts concerning the questioning
of his relatives and colleagues by police officers about him and his surveillance by unknown
persons. He requested an investigation of these facts and the implementation of measures for
his protection.

168. Secondly, the authorities, primarily prosecutors, ought to have been aware of the
vulnerable position in which a journalist who covered politically sensitive topics placed
himself/herself vis-à-vis those in power at the material time (as evidenced by the death of
eighteen journalists in Ukraine since 1991 – see paragraph 83 above).

169. Thirdly, the Court notes that, by virtue of powers conferred upon it under domestic law,
the GPO is entitled and obliged to supervise the activities of the police and investigate the
lawfulness of any actions taken by them. Despite clear indications in Mr Gongadze's letter
about the inexplicable interest in him shown by law enforcement officers, the response of the
GPO was not only formalistic, but also blatantly negligent (see paragraph 12 above). A
fortnight later the applicant's husband disappeared.

170. The Court finds that these complaints, made by the late Mr Gongadze, and subsequent
events revealing the possible involvement of State officials in his disappearance and death,
were neglected or simply denied for a considerable period of time without proper
investigation. There was no reaction to the alleged involvement of the police in the
disappearance when information about such a possibility was disseminated publicly (see
paragraph 41 above). The fact that the alleged offenders, two of them active police officers,
were identified and charged with the kidnap and murder of the journalist just a few days after
the change in the country's leadership raises serious doubts as to the genuine desire of the
authorities under the previous government to investigate the case thoroughly.

171. In view of these considerations, the Court finds that there has been a substantive
violation of Article 2 of the Convention.

Oneryildiz v Turkey

3. The Court’s assessment


69. Taking the parties’ arguments as a whole, the Court reiterates, firstly, that its approach to
the interpretation of Article 2 is guided by the idea that the object and purpose of the
Convention as an instrument for the protection of individual human beings requires its
provisions to be interpreted and applied in such a way as to make its safeguards practical and
effective (see, for example, Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI,
p. 2429, § 64).

70. In the instant case the complaint before the Court is that the national authorities did not
do all that could have been expected of them to prevent the deaths of the applicant’s close
relatives in the accident of 28 April 1993 at the Ümraniye municipal rubbish tip, which was
operated under the authorities’ control.

71. In this connection, the Court reiterates that Article 2 does not solely concern deaths
resulting from the use of force by agents of the State but also, in the first sentence of its first
paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the
lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, cited
above, p. 1403, § 36, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §
54, ECHR 2002-II).

The Court considers that this obligation must be construed as applying in the context of any
activity, whether public or not, in which the right to life may be at stake, and a fortiori in the
case of industrial activities, which by their very nature are dangerous, such as the operation of
waste-collection sites (“dangerous activities” – for the relevant European standards, see
paragraphs 59-60 above).

72. Where the Convention institutions have had to examine allegations of an infringement of
the right to the protection of life in such areas, they have never ruled that Article 2 was not
applicable. The Court would refer, for example, to cases concerning toxic emissions from a
fertiliser factory (see Guerra and Others, cited above, pp. 228-29, §§ 60 and 62) or nuclear
tests (see L.C.B. v. the United Kingdom, cited above, p. 1403, § 36).

73. In this connection, contrary to what the Government appear to be suggesting, the
harmfulness of the phenomena inherent in the activity in question, the contingency of the risk
to which the applicant was exposed by reason of any life-endangering circumstances, the
status of those involved in bringing about such circumstances, and whether the acts or
omissions attributable to them were deliberate are merely factors among others that must be
taken into account in the examination of the merits of a particular case, with a view to
determining the responsibility the State may bear under Article 2 (ibid., pp. 1403-04, §§ 37-
41).

The Court will return to these points later.

74. To sum up, it considers that the applicant’s complaint (see paragraph 70 above)
undoubtedly falls within the ambit of the first sentence of Article 2, which is therefore
applicable in the instant case.

B. Compliance

1. The Chamber judgment

75. The Chamber observed that in the instant case the relevant authorities had not only
refused to make any real effort to avert the serious operational risks highlighted in the expert
report of 7 May 1991 but had also made no attempt to discourage the applicant from living
near the rubbish tip that was the source of the risks. The Chamber also noted that the
government authorities had failed to comply with their duty to inform the inhabitants of the
Kazım Karabekir area of the risks they were taking by continuing to live near a rubbish tip.

It therefore found that there was a causal link between, on the one hand, the negligent
omissions attributable to the Turkish authorities and, on the other, the occurrence of the
accident on 28 April 1993 and the ensuing loss of human life. Accordingly, it concluded that
in the instant case the Turkish authorities could not be said to have done everything that could
reasonably be expected of them to prevent the materialisation of the real risks to the lives of
the inhabitants of certain slum areas of Ümraniye.

76. The Chamber went on to examine the complaint concerning the failings of the Turkish
criminal and administrative courts in the light of the “procedural obligations” under Article 2,
in order to assess whether the applicant could be deemed to have obtained redress in respect
of his complaints.

As regards the criminal proceedings instituted in the instant case, the Chamber held that they
could not in themselves be considered “adequate” with regard to the allegations of an
infringement of the applicant’s right to life, because their sole purpose had been to establish
whether the authorities could be held liable for “negligence in the performance of their
duties” rather than for the deaths that occurred.

As regards the administrative proceedings for compensation, the Chamber observed, firstly,
that there had been a breach of the requirement of promptness in that the applicant’s right to
compensation had not been recognised until four years, eleven months and ten days after his
initial claims for compensation had been dismissed. It also noted that, although the applicant
had eventually been awarded compensation, it had never been paid.

The Chamber therefore concluded that the legal remedies used at domestic level, even taken
as a whole, could not in the particular circumstances of the case be deemed to have afforded
appropriate redress for the applicant’s complaints under Article 2 of the Convention.

3. The Court’s assessment

(a) General principles applicable in the present case

(i) Principles relating to the prevention of infringements of the right to life as a result of
dangerous activities: the substantive aspect of Article 2 of the Convention

89. The positive obligation to take all appropriate steps to safeguard life for the purposes of
Article 2 (see paragraph 71 above) entails above all a primary duty on the State to put in place
a legislative and administrative framework designed to provide effective deterrence against
threats to the right to life (see, for example, mutatis mutandis, Osman, cited above, p. 3159, §
115; Paul and Audrey Edwards, cited above, § 54; İlhan v. Turkey [GC], no. 22277/93, § 91,
ECHR 2000-VII; Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III; and Mahmut Kaya v.
Turkey, no. 22535/93, § 85, ECHR 2000-III).

90. This obligation indisputably applies in the particular context of dangerous activities,
where, in addition, special emphasis must be placed on regulations geared to the special
features of the activity in question, particularly with regard to the level of the potential risk to
human lives. They must govern the licensing, setting up, operation, security and supervision
of the activity and must make it compulsory for all those concerned to take practical measures
to ensure the effective protection of citizens whose lives might be endangered by the inherent
risks.

Among these preventive measures, particular emphasis should be placed on the public’s right
to information, as established in the case-law of the Convention institutions. The Grand
Chamber agrees with the Chamber (see paragraph 84 of the Chamber judgment) that this
right, which has already been recognised under Article 8 (see Guerra and Others, cited above,
p. 228, § 60), may also, in principle, be relied on for the protection of the right to life,
particularly as this interpretation is supported by current developments in European standards
(see paragraph 62 above).

In any event, the relevant regulations must also provide for appropriate procedures, taking
into account the technical aspects of the activity in question, for identifying shortcomings in
the processes concerned and any errors committed by those responsible at different levels.

(ii) Principles relating to the judicial response required in the event of alleged infringements
of the right to life: the procedural aspect of Article 2 of the Convention

91. The obligations deriving from Article 2 do not end there. Where lives have been lost in
circumstances potentially engaging the responsibility of the State, that provision entails a duty
for the State to ensure, by all means at its disposal, an adequate response – judicial or
otherwise – so that the legislative and administrative framework set up to protect the right to
life is properly implemented and any breaches of that right are repressed and punished (see,
mutatis mutandis, Osman, cited above, p. 3159, § 115, and Paul and Audrey Edwards, cited
above, § 54).

92. In this connection, the Court has held that if the infringement of the right to life or to
physical integrity is not caused intentionally, the positive obligation to set up an “effective
judicial system” does not necessarily require criminal proceedings to be brought in every case
and may be satisfied if civil, administrative or even disciplinary remedies were available to
the victims (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII;
Calvelli and Ciglio, cited above, § 51; and Mastromatteo, cited above, §§ 90 and 94-95).

93. However, in areas such as that in issue in the instant case, the applicable principles are
rather to be found in those the Court has already had occasion to develop in relation notably
to the use of lethal force, principles which lend themselves to application in other categories
of cases.

In this connection, it should be pointed out that in cases of homicide the interpretation of
Article 2 as entailing an obligation to conduct an official investigation is justified not only
because any allegations of such an offence normally give rise to criminal liability (see
Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I), but also because often,
in practice, the true circumstances of the death are, or may be, largely confined within the
knowledge of State officials or authorities (see McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 47-49, §§ 157-64, and İlhan, cited
above, § 91).

In the Court’s view, such considerations are indisputably valid in the context of dangerous
activities, when lives have been lost as a result of events occurring under the responsibility of
the public authorities, which are often the only entities to have sufficient relevant knowledge
to identify and establish the complex phenomena that might have caused such incidents.

Where it is established that the negligence attributable to State officials or bodies on that
account goes beyond an error of judgment or carelessness, in that the authorities in question,
fully realising the likely consequences and disregarding the powers vested in them, failed to
take measures that were necessary and sufficient to avert the risks inherent in a dangerous
activity (see, mutatis mutandis, Osman, cited above, pp. 3159-60, § 116), the fact that those
responsible for endangering life have not been charged with a criminal offence or prosecuted
may amount to a violation of Article 2, irrespective of any other types of remedy which
individuals may exercise on their own initiative (see paragraphs 48-50 above); this is amply
evidenced by developments in the relevant European standards (see paragraph 61 above).

94. To sum up, the judicial system required by Article 2 must make provision for an
independent and impartial official investigation procedure that satisfies certain minimum
standards as to effectiveness and is capable of ensuring that criminal penalties are applied
where lives are lost as a result of a dangerous activity if and to the extent that this is justified
by the findings of the investigation (see, mutatis mutandis, Hugh Jordan v. the United
Kingdom, no. 24746/94, §§ 105-09, 4 May 2001, and Paul and Audrey Edwards, cited above,
§§ 69-73). In such cases, the competent authorities must act with exemplary diligence and
promptness and must of their own motion initiate investigations capable of, firstly,
ascertaining the circumstances in which the incident took place and any shortcomings in the
operation of the regulatory system and, secondly, identifying the State officials or authorities
involved in whatever capacity in the chain of events in issue.

95. That said, the requirements of Article 2 go beyond the stage of the official investigation,
where this has led to the institution of proceedings in the national courts: the proceedings as a
whole, including the trial stage, must satisfy the requirements of the positive obligation to
protect lives through the law.

96. It should in no way be inferred from the foregoing that Article 2 may entail the right for
an applicant to have third parties prosecuted or sentenced for a criminal offence (see, mutatis
mutandis, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I) or an absolute obligation
for all prosecutions to result in conviction, or indeed in a particular sentence (see, mutatis
mutandis, Tanlı v. Turkey, no. 26129/95, § 111, ECHR 2001-III).

On the other hand, the national courts should not under any circumstances be prepared to
allow life-endangering offences to go unpunished. This is essential for maintaining public
confidence and ensuring adherence to the rule of law and for preventing any appearance of
tolerance of or collusion in unlawful acts (see, mutatis mutandis, Hugh Jordan, cited above,
§§ 108 and 136-40). The Court’s task therefore consists in reviewing whether and to what
extent the courts, in reaching their conclusion, may be deemed to have submitted the case to
the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the
judicial system in place and the significance of the role it is required to play in preventing
violations of the right to life are not undermined.

Albekov and others v Russia

2. The Court’s assessment

(a) General principles

78. The Court reiterates 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 L.C.B. v. the United Kingdom,
judgment of 9 June 1998, Reports 1998-III, § 36). 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. Article 2 of the Convention may also imply 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 (see Osman v. the United Kingdom, judgment
of 28 October 1998, Reports 1998-VIII, § 115).

79. In this connection the Court reiterates that, in the light of the difficulties in policing
modern societies, the unpredictability of human conduct and the operational choices which
must be made in terms of priorities and resources, the scope of the positive obligation must be
interpreted in a way which does not impose an impossible or disproportionate burden on the
authorities. Not every claimed risk to life therefore can entail for the authorities a Convention
requirement to take operational measures to prevent that risk from materialising (see Osman,
cited above, § 116).

(b) Application to the present case

80. Turning to the facts of the present case, the Court firstly takes note of the applicants’
allegations that Mr Vakhazhi Albekov had been intentionally killed by servicemen. The
applicants supported this contention by referring to remains of tape allegedly found on Mr
Vakhazhi Albekov’s body and traces of tarpaulin boots which had led from the body to the
military unit.

81. Assuming the accuracy of these submissions, the Court does not find them sufficient to
corroborate the allegation. There is nothing to suggest that any remains of the tape that might
have been found were connected to the death of Mr Vakhazhi Albekov. As for the traces of
bootprints, it had not been shown conclusively that these belonged to a serviceman, or that
they could not have been left on a different occasion.

82. Accordingly, the Court shall proceed from the assumption that Mr Vakhazhi Albekov was
accidentally blown up on a mine laid in the forest near Akhkinchu-Barzoy, in a similar
manner to Mr Khasayn Minkailov and Mr Nokha Uspanov.

83. The Court also takes note of the applicants’ submissions that, after the incident with the
landmines, Mr Nokha Uspanov was allegedly apprehended by servicemen in January 2001,
and about two weeks later his body was found in a neighbouring village. However, the
applicants made no complaints in connection with these events. At the same time, although
the complaint at issue relates to the injuries sustained by Mr Nokha Uspanov, the Court
considers that the events complained of concerned a serious risk to life and that therefore the
complaint falls to be examined under Article 2 of the Convention.

84. The Court further notes that the parties disagreed as to who laid the mines in the vicinity
of Akhkinchu-Barzoy. According to the applicants, they were laid by servicemen. In this
regard they referred to the fact that the sappers who had assisted in the search for Mr Khasayn
Minkailov had a map of the minefields in the area. The Government contended that the mines
had been laid by illegal armed groups who were active in the area. They supported this
contention by statements of servicemen to the effect that no mines had been laid by them and
by statements from other witnesses who submitted that cattle had been blown up on mines on
numerous occasions before the military unit had been located in the area.

85. The Court observes that the domestic investigation which is under way has to date
produced no conclusive results on the matter. The evidence submitted by the parties is not
sufficient to establish who laid the mines in the forest near Akhkinchu-Barzoy. However, the
Court does not consider it necessary to decide on this issue since, in any event, the
Government does not deny that the authorities were aware that mines had been laid in the
area. Accordingly, regard being had to the principles cited above, the Court finds that the
domestic authorities were under a positive obligation to protect the residents from the risks
involved.

86. The Court shall further determine whether, in the circumstances of the present case, the
State has taken all necessary measures to protect the applicants’ relatives and other villagers
from being exposed to the danger constituted by the land mines.

87. The area of the minefield in the vicinity of the village appears to have been very large,
since it took the villagers hours and even days to find the bodies of the victims, and it was
clearly easily accessible to local residents. The Court notes that according to the statement by
Mr R-v., who served in military unit no. 73881 from August 2000 to February 2001, when
explosive devices were found by servicemen of the military unit, they had been destroyed on
the spot by sappers. However, the Government has not provided the Court with information
on any organised efforts to locate and deactivate mines in the whole area. In the Court’s
opinion, the deactivation of isolated mines occasionally found by sappers did not discharge
the State from its obligation under Article 2 of the Convention to protect life.

88. The Court observes that in the absence of efforts to locate and deactivate mines the State
might have discharged its positive obligation under Article 2 of the Convention by marking
and sealing off the area so as to prevent anybody from entering it freely, and by
comprehensively warning the residents of the location of the mines and the risks involved.
The Government submitted, on the one hand, that the minefield around the military unit
stationed near the village had been marked and, on the other hand, that servicemen had not
known where exactly mines had been laid. The Court notes that these statements are
contradictory. The Government further submitted that villagers had been aware of the mines
laid in the forest, as was confirmed by some of the residents questioned.

89. The Court recalls that in Paşa and Erkan Erol v. Turkey, no. 51358/99, §§ 33-38, 12
December 2006, it found that the placement of warning signs and two rows of barbed wire
around a minefield situated near a village in an area normally used for pasture was not
sufficient for the purposes of compliance with the State’s positive obligation under Article 2.
In the present case the Government did not allege that any efforts had been made to seal off
the area, which alone was incompatible with the State’s obligation to protect life.
Furthermore, in contrast to Paşa and Erkan Erol v. Turkey, cited above, the Government
submitted no photographs or other evidence to support their contention that the minefield had
been marked. Moreover, even assuming that residents received verbal warnings about mines
laid somewhere in the forest and were in any case aware of their presence because of the
deaths of cattle, without information on the precise locations of the mines such general
knowledge could hardly significantly decrease the risks associated with the presence of mines
in the forest, which was used by the villagers for pasture. In as much as the failure to provide
more accurate information was attributable to the fact that the servicemen themselves had not
known the precise location of the mines, the Court has already stated in paragraph 87 above
that no information was submitted to it on any efforts to locate and deactivate the mines.

90. Therefore, having regard to the State’s failure to endeavour to locate and deactivate the
mines, to mark and seal off the mined area so as to prevent anybody from freely entering it,
and to provide the villagers with comprehensive warnings concerning the mines laid in the
vicinity of their village, the Court finds that the State has failed to comply with its positive
obligation under Article 2 of the Convention to protect the lives of Mr Vakhazhi Albekov, Mr
Khasayn Minkailov and Mr Nokha Uspanov.
Cyprus v Turkey

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.

Kelly and others v UK

95. 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. Güleç v. Turkey
judgment of 27 July 1998, Reports 1998-IV, §§ 81-82; Öğur 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 case of Ergı 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).

96. 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. Kaya v. Turkey judgment, cited above, p. 324, § 87) 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 (see
concerning autopsies, e.g. Salman v. Turkey cited above, § 106; concerning witnesses e.g.
Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 199-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 responsible will risk falling
foul of this standard.

97. A requirement of promptness and reasonable expedition is implicit in this context (see
Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-IV, pp. 2439-2440, §§ 102-104;
Cakıcı 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.

98. 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; Öğur 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).