Abstract
This contribution outlines the impact of Article 2 of the ECHR (right to life) on police actions and delivers an in-depth analysis of the ECtHR’s jurisprudence on this matter. For this purpose, it is necessary to understand first the scope of the (European) human right to life. A deprivation of life stemming from actions of public forces may under exceptional circumstances be justified. As the ECtHR’s case law stresses the importance of the principle of proportionality and allows, in accordance with the wording of the ECHR, the use of force only where it is absolutely necessary for specific purposes, this contribution deals in length with this requirement and analyzes several judgments where the ECtHR interpreted and clarified the principle of proportionality. As a matter of fact, the ECtHR had to deal with a wide range of case constellations where the right to life was affected, such as rescue operations, prevention of terrorist attacks, or, more generally, arresting alleged terrorists. However, it is noteworthy that the right to life may also become an issue in the unhappy event of an everyday situation that the police have to deal routinely with getting out of control. Lastly, a special focus lays on recent case law related to police using the relatively new device commonly known as “taser.”
Prof. Robert Esser holds the Chair for German, European and International Criminal Law, Criminal Procedure and White-Collar-Crime at the University of Passau. Since 2010 he leads the Research Center Human Rights in Criminal Proceedings (HRCP).
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Notes
- 1.
ECtHR, McCann v. United Kingdom, judgment of the Grand Chamber of 27 September 1995, No. 18984/91, § 147, expressly referring to of ECtHR, Soering v. United Kingdom, judgment of 7 July 1989, No. 14038/88, § 88, where the Court stressed these same matters in respect of Article 3 ECHR.
- 2.
The exceptions mentioned in Article 15 § 1 ECHR (“time of war”) and Article 15 § 2 ECHR (“except in respect of deaths resulting from lawful acts of war”) do only refer to public emergencies. A terrorist attack does not fall under that provision: Esser (2012), Art. 15 ECHR, para. 24; Trechsel (2005), p. 515; Shaw (2014), p. 258; but see also: ECtHR, A et al. v. United Kingdom, judgment of 19 February 2009, No. 3455/05: Following the terrorist attacks of 11 September 2001 on the United States, the British government considered the UK to be under threat from a number of foreign nationals present in the country who were providing a support network for extremist Islamist terrorist operations linked to al-Qaeda. Furthermore, on 24 November 2015 the French authorities informed the Secretary General of the Council of Europe about a number of state of emergency measures taken following the large scale terrorist attacks in Paris on 13 November 2015 and which may involve a derogation from certain rights guaranteed by the European Convention on Human Rights (http://www.coe.int/en/web/secretary-general/news/).
- 3.
ECtHR, Makaratzis v. Greece, judgment of the Grand Chamber of 20 December 2004, No. 50385/99, § 56, emphasis added.
- 4.
It should be noted that as of today, only Armenia, Azerbaijan, and Russia have not ratified Protocol No. 13 whereas only Russia has not even ratified—yet signed—the Protocol No. 6 but has halted death penalty anyway. See CoE Factsheet on death penalty, http://www.coe.int/t/DC/Files/Source/FS_death_penalty_en.doc. Besides, the Parliamentary Assembly of the Council of Europe (CoE) recalls in this connection that accession to the CoE must go together with becoming a party to the European Convention on Human Rights (ECHR): http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=16442&lang=en. See also Oppermann et al. (2016), p. 283, para. 87; Streinz (2016), p. 16, 76.
- 5.
ECtHR, McCann v. United Kingdom (Fn. 1), § 145.
- 6.
ECtHR, McCann v. United Kingdom (Fn. 1), § 161; Mowbray (2012), p. 87; Ibid, p. 112.
- 7.
Ibid, § 145.
- 8.
Note that the line between “passive” withdrawal of life support and “active” euthanasia is not a clear one. See, e.g., the United Kingdom case of Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 mentioned in ECtHR, Pretty v. United Kingdom, judgment of 29 April 2002, No. 2346/02, § 18.
- 9.
ECtHR, Timurtaş v. Turkey, judgment of 13 June 2000, No. 23531/91, §§ 81–86; Mowbray, Cases and Materials on the ECHR (Fn. 6), p. 108, para. 10.
- 10.
ECtHR, McCann v. United Kingdom (Fn. 1), §§ 211–214.
- 11.
ECtHR, McCann v. United Kingdom (Fn. 1), § 150.
- 12.
ECtHR, Makaratzis v. Greece (Fn. 3), §§ 58–59; other examples: ECtHR, Finogenov et al. v. Russia, judgment of 20 December 2011, Nos. 18299/03 and 27311/03, §§ 209, 210, 236; ECtHR, Wasilewska and Kalucka v. Poland, judgment of 23 February 2010, Nos. 28975/04 and 33406/04.
- 13.
Section 32 German Criminal Code (StGB). The prevailing view among academics in Germany is that Article 2 ECHR has to be seen in an overall context and that lit. a is only a barrier (Schranke) for the execution of state violence, but that it does not affect the relationships among private persons. Under specified circumstances, the killing of an aggressor to protect material goods is allowed until the limit of a massive imbalance (krasses Missverhältnis) is reached. The State is obliged to provide the amount of protection needed by the entitled person, that is appropriate regarding the significance of the legally protected good. While life as a legally protected good has a very high significance, the aggressor himself is not in need of protection, see Esser (2012), Art. 2 ECHR, para. 53, of the same opinion Engländer (2009), p. 352; Wessels et al. (2017), para. 514, 515. The alternative view (Paeffgen, Zieschang, Bernsmann, Frister, Baumann) which is internationally prevailing does not support the willful killing in order to protect a material good (see Roxin (2006), p. 15, para. 76 seq.). The State does not violate its general duty to protect the right to life by allowing the killing of an aggressor by acting in self-defense. However, the acceptance of an intended “material-good-self-defense” among private persons is not covered by this view. It has to be seen as a violation of the duty to protect. Günther discusses this dispute extensively in Systematic Commentary on the German Criminal Code (SK-StGB), 8th edition, Cologne 2012, p. 32, para. 112–117.
- 14.
ECtHR, McCann v. United Kingdom (Fn. 1), § 148.
- 15.
Recent examples: ECtHR, Andreou v. Turkey, judgment of 27 October 2009, No. 45653/99; Mowbray, Cases and Materials on the ECHR (Fn. 6), p. 142.
- 16.
- 17.
See further: CNN news: http://edition.cnn.com/2016/07/17/asia/turkey-attempted-coup/.
- 18.
See further the news release on the Council of Europe website on 21 July 2016: https://wcd.coe.int/ViewDoc.jsp?p=&Ref=DC-PR132(2016)&Language=lanEnglish&Ver=original&Si te=DC&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE& direct=true; and: https://wcd.coe.int/ViewDoc.jsp?p=&id=2436911&Site=COE&BackColorInternet =F7F8FB&BackColorIntranet=F7F8FB&BackColorLogged=F7F8FB&direct=true.
- 19.
ECtHR, McCann v. United Kingdom (Fn. 1), § 213. In Makaratzis v. Greece (Fn. 3), the Court, having found that the law did not adequately protect the applicant’s right to life and that this in itself already amounted to a violation of Article 2 ECHR, felt that it was “not necessary” to examine whether “the life-threatening conduct of the police” violated the requirement of “absolute necessity” (§ 72).
- 20.
See: ECtHR, Finogenov et al. v. Russia, judgment of 20 December 2011, Nos. 18299/03 and 27311/03; ECtHR, Wasilewska and Kalucka v. Poland, judgment of 23 February 2010, Nos. 28975/04 and 33406/04.
- 21.
ECtHR, McCann v. United Kingdom (Fn. 1), § 149.
- 22.
As the Court put it in McCann (Fn. 1), § 149: In this respect the use of the term “absolutely necessary” in Article 2 § 2 ECHR 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 § 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in § 2 lit. a, b and c of Article 2 ECHR.
- 23.
Irish Republican Army.
- 24.
ECtHR, McCann v. United Kingdom (Fn. 1), § 12.
- 25.
Ibid, § 25.
- 26.
Ibid, § 191; Greer (2006), p. 243.
- 27.
ECtHR, Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, No. 25052/94, § 55; Mowbray, Cases and Materials on the ECHR (Fn. 6), pp. 101–103, para. 5.
- 28.
Ibid, § 230.
- 29.
Ibid, § 183.
- 30.
Ibid, § 193.
- 31.
ECtHR, Makaratzis v. Greece (Fn. 3), § 11.
- 32.
Ibid, § 13.
- 33.
Ibid, § 15.
- 34.
Ibid, § 33.
- 35.
Ibid, § 55; Mowbray, Cases and Materials on the ECHR (Fn. 6), p. 114–118.
- 36.
ECtHR, Wasilewska and Kalucka v. Poland, judgment of 23 February 2011, Nos. 28975/04 and 33406/04, § 32.
- 37.
ECtHR, Giuliani and Gaggio v. Italy, judgment of the Grand Chamber of 24 March 2011, No. 23458/02, § 8.
- 38.
Ibid, dissenting opinions annexed to the judgment.
- 39.
Ibid, § 172.
- 40.
Ibid, § 230.
- 41.
Ibid, § 188.
- 42.
Ibid, § 205.
- 43.
ECtHR, Finogenov et al. v. Russia, judgment of 20 December 2011, Nos. 18299/03 and 27311/03, § 8.
- 44.
Ibid Reason No. 4.
- 45.
Ibid, §§ 210, 236.
- 46.
Ibid, § 266.
- 47.
Ibid, § 210.
- 48.
ECtHR, Fanziyeva v. Russia, judgment of 18 June 2015, No. 41675/08, § 7. The applicant is the mother of the late Ms Madina Eneyeva who died in 2007.
- 49.
ECtHR, Fanziyeva v. Russia (Fn. 48), §§ 57–60.
- 50.
The Berlin Senator of the Interior, Frank Henkel, argues that a taser opens up possibilities to resolve critical situations and that they could even be lifesaving. There had been an incident at the Alexanderplatz in Berlin in 2013, where a confused man fidgeting with a knife and attacking the police, was killed by a shot from a police officer’s firearm. In these kinds of situations a taser could be the adequate measure and close the gap between pepper spray and firearms, see rbb-online, Press release of 31 August 2016, Henkel wants to test taser at the Alexanderplatz in Berlin, http://www.rbb-online.de/politik/beitrag/2016/08/taser-bei-berliner-polizei-henkel-kandt-reaktionen-mueller.html.
- 51.
See http://www.amnestyusa.org/news/press-releases/amnesty-international-urges-stricter-limits-on-police-taser-use-as-us-death-toll-reaches-500; http://www.mopo.de/hamburg/nach-angriffen-auf-wachen-polizisten-fordern-schock-pistolen-4109054; the first source quotes an AI spokesperson as follows: “Even if deaths directly from Taser shocks are relatively rare, adverse effects can happen very quickly, without warning, and be impossible to reverse […] Given this risk, such weapons should always be used with great caution, in situations where lesser alternatives are unavailable.”
- 52.
ECtHR, Fox v. United Kingdom, decision of 20 March 2012, No. 61319/09, § 13.
- 53.
Ibid, § 33; see High Court, Morrison v. The Independent Police Complaints Commission, [2009] EWHC 2589 judgment of 26 October 2009, §§ 9–11, where High Court Judge Nicol commented on the use of tasers by the police : “The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 s, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times. The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probese.” (quoted after ECtHR, Fox v. United Kingdom, decision of 20 March 2012, No. 61319/09, § 33).
- 54.
Ibid, § 36.
- 55.
Ibid, § 45.
- 56.
ECtHR, Anzhelo Georgiev et al. v. Bulgaria, judgment of 30 September 2014, No. 51284/09, § 8.
- 57.
Ibid, § 69.
- 58.
Ibid, § 42.
- 59.
20th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 1 August 2009 – 31 July 2010, p. 35, § 66: Electrical discharge weapons, see further: http://www.cpt.coe.int/en/annual/rep-20.pdf.
- 60.
Committee against Torture, Thirty-Ninth Session, press release, United Nations Office at Geneva, 23 November 2007.
- 61.
Amnesty International’s statement on Tasers use to the US Justice Department, AI Index: AMR 51/151/2007, October 2007.
- 62.
BVerfG, Decision of 26 June 2014 – 2 BvR 2699/10 (Tennessee E.); BVerfG, Decision of 6 October 2014 – 2 BvR 1568/12 (Gorch Fock), NJW 2015, 150 = EuGRZ 2014, 719; BVerfG, Decision of 23.3.2015 – 2 BvR 1304/12 (Münchener Lokalderby); BVerfG, Decision of 19 May 2015 – 2 BvR 987/11, NJW 2015, 3500 = EuGRZ 2015, 429 = JZ 2015, 890 (Kunduz) Compare Esser/Lubrich, StV 2017, 418–424.
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Cases
BVerfG, Decision of 26 June 2014 – 2 BvR 2699/10 (Tennessee E.)
BVerfG, Decision of 6 October 2014 – 2 BvR 1568/12 (Gorch Fock), NJW 2015, 150 = EuGRZ 2014, 719 BVerfG, Decision of 23.3.2015 – 2 BvR 1304/12 (Münchener Lokalderby)
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ECtHR, A et al. v. United Kingdom, judgment of 19 February 2009, No. 3455/05
ECtHR, Andreou v. Turkey, judgment of 27 October 2009, No. 45653/99
ECtHR, Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, No. 25052/94
ECtHR, Anzhelo Georgiev et al. v. Bulgaria, judgment of 30 September 2014, No. 51284/09
ECtHR, Fanziyeva v. Russia, judgment of 18 June 2015, No. 41675/08
ECtHR, Finogenov et al. v. Russia, judgment of 20 December 2011, Nos. 18299/03 and 27311/03
ECtHR, Fox v. United Kingdom, decision of 20 March 2012, No. 61319/09
ECtHR, Giuliani and Gaggio v. Italy, judgment of the Grand Chamber of 24 March 2011, No. 23458/02
ECtHR, Makaratzis v. Greece, judgment of the Grand Chamber of 20 December 2004, No. 50385/99
ECtHR, McCann v. United Kingdom, judgment of the Grand Chamber of 27 September 1995, No. 18984/91
ECtHR, Pretty v. United Kingdom, judgment of 29 April 2002, No. 2346/02
ECtHR, Soering v. United Kingdom, judgment of 7 July 1989, No. 14038/88
ECtHR, Timurtaş v. Turkey, judgment of 13 June 2000, No. 23531/91
ECtHR, Wasilewska and Kalucka v. Poland, judgment of 23 February 2010, Nos. 28975/04 and 33406/04
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Esser, R. (2018). The Police and the Right to Life. In: Alleweldt, R., Fickenscher, G. (eds) The Police and International Human Rights Law. Springer, Cham. https://doi.org/10.1007/978-3-319-71339-7_4
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