Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
“Core” rights
Right to life (Article 2)
Effective investigation
The Armani Da Silva v. the United Kingdom[11] judgment concerned the criminal conviction of the police force, but not the individual police officers, following a fatal shooting incident.
The applicant’s cousin was shot dead, in error, by Special Firearms Officers while on the underground in London in the wake of a series of bombs on the city’s transport network. An extensive investigation was conducted and detailed investigation reports were published. The decisions of the Crown Prosecution Service not to prosecute were detailed and the inquest was comprehensive: both were the subject of judicial review. While no individual officer was disciplined or prosecuted, the Office of the Commissioner of Police of the Metropolis (“the OCPM”) was found guilty of criminal charges under health and safety legislation.
Before the Court, the applicant complained under Article 2 of the Convention of the failure to prosecute any individuals for her cousin’s death. The Grand Chamber found no violation of the procedural limb of that provision.
(i) It is worth noting that the judgment contains a comprehensive outline of the procedural investigative requirements in cases concerning the use of lethal force by State agents.
(ii) The judgment is interesting in that it clarifies precisely what the Court meant in McCann and Others v. the United Kingdom[12] by an “honest belief [that the use of force was justified] which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken”.
The Court did not adopt the stance of a detached observer (objectively reasonable) but rather considered it should put itself in the position of the officer, in determining both whether force was necessary and the degree needed. It found that the principal question was whether the person had an “honest and genuine” belief and, in this regard, the Court took into account whether the belief was “subjectively reasonable” (the existence of subjective good reasons for it). The Court did also indicate that, if the use of force was found not to be subjectively reasonable, it would have difficulty accepting that the belief was honestly and genuinely held. It went on to conclude, contrary to the applicant’s submission, that this Convention test was not significantly different from the test of self-defence in England and Wales.
(iii) One of the more novel aspects of the case concerns the prosecutorial decision not to prosecute any individual police officer in addition to prosecuting the police force (the OCPM), a decision made on the basis of the “threshold evidential test”. The test is “whether there was sufficient evidence to provide a realistic prospect of conviction”: it is not an arithmetical “51% rule” but asks whether a conviction is “more likely than not”. The prosecution found that there was insufficient evidence against any individual officer to meet that test in respect of any criminal offence. However, it identified institutional and operational failings which resulted in the police force being prosecuted and convicted on health and safety charges. The Court found that this did not breach the procedural requirement of Article 2 of the Convention.
In so finding, the Court clarified that an aspect of its case-law had evolved. While it had initially stated that an investigation should be capable of leading to the “identification and punishment of those responsible”, the case-law now recognised that the obligation to punish would apply only “if appropriate” (see, for example, Giuliani and Gaggio v. Italy[13]). As to whether it was “appropriate” or not to punish the individual police officers, the Court noted that it had never found to be at fault a prosecutorial decision following an Article 2 compliant investigation (and the present one had so complied) but that “institutional deficiencies” in the systems of criminal justice and prosecution had led to such findings. The present applicant had alleged one such deficiency: the threshold evidential test (whether there was a “realistic prospect of conviction”) applied when deciding whether or not to prosecute. The Court did not dispute the need for such a test and, further, considered that the State should be accorded a certain margin of appreciation in setting the threshold (it required balancing competing interests and there was no relevant European consensus). Having regard to other related domestic-law factors, it could not be said that the threshold evidential test for bringing a prosecution was so high as to fall outside the State’s margin of appreciation. The authorities were entitled to take the view that public confidence in the prosecutorial system was best maintained by prosecuting where the evidence justified it and not prosecuting where it did not. The applicant had not therefore demonstrated any “institutional deficiencies” which gave rise – or were capable of giving rise – to a procedural breach of Article 2 concerning the decision not to prosecute the individual officers.
In concluding on this question of individual or institutional prosecutions, the Court reviewed the State’s overall response to the shooting incident to find that it could not be said that any question of the authorities’ responsibility was left in abeyance (unlike the position in Öneryildiz v. Turkey[14]). In particular, it noted that during the extensive investigations both individual and institutional responsibility had been considered, the prosecution deciding to prosecute the OCPM for the detailed reasons given (including the accepted threshold evidential test). The institutional changes recommended by the Independent Police Complaints Commission had been made and it could not be said that the fine imposed on the OCPM following its conviction was manifestly disproportionate (that is, it was not too low). The next of kin had been adequately involved and the Court noted the prompt ex gratia payments to them and the settlement of the civil proceedings.
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The judgment in Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia[15] concerned the delayed enforcement of a sentence imposed on an accused who had been found guilty of the serious assault of the applicant.
The (first) applicant was very seriously injured during a robbery of her home. Her husband, who was also attacked during the same incident, later died from his injuries. The assailants were later convicted of aggravated robbery and received prison sentences. However, one of the assailants continued to live in the vicinity of the applicant’s neighbourhood for a period of eighteen months before starting to serve his sentence.
In the Convention proceedings the applicant complained that the delayed enforcement of the prison sentence gave rise to a breach of Article 2 of the Convention.
The Court agreed. It noted that the Article 2 procedural requirements were satisfied as regards the establishment of the circumstances of the incident and the identification and punishment of the perpetrators. However, it considered that these requirements had been undermined on account of the delayed enforcement of the custodial sentence, which was entirely attributable to the competent authorities. It noted that the notion of an effective investigation under Article 2 can also be interpreted as imposing a duty on States to execute their final judgments without undue delay. For the Court, “the enforcement of a sentence imposed in the context of the right to life must be regarded as an integral part of the procedural obligation of the State under this Article”.
Expulsion
The judgment in F.G. v. Sweden[16] concerned the duty of an expelling State to investigate an individual risk factor not relied upon by an applicant in his or her asylum application.
The applicant applied for asylum in Sweden citing his activities as an opponent of the regime in Iran. While he had mentioned his conversion (in Sweden) to Christianity during his asylum proceedings, he had expressly refused to rely on this ground. His asylum claim was rejected. His later request for a stay on deportation, this time relying on his conversion, was refused as this was not “a new circumstance” justifying a re-examination of his case.
The Grand Chamber considered that his expulsion to Iran would give rise to a violation of Articles 2 and 3, not on account of risks associated with his political past, but rather if his expulsion took place without an assessment of the risks associated with his religious conversion.
(i) The first issue worth noting concerned the fact that the deportation order expired after the Chamber judgment was delivered. The Government therefore argued before the Grand Chamber that the case should be struck out (Article 37 § 1 (c) of the Convention) or that the applicant could no longer claim to be a victim (Article 34). While the Grand Chamber was not convinced that the applicant had lost his victim status, it observed that, in principle, it might not be justified to continue its examination as it was clear the applicant could not be expelled for a considerable time to come (Article 37 § 1 (c)). However, “special circumstances concerning respect for human rights” required the continued examination of the application: the case had been referred to the Grand Chamber under Article 43 (a serious question of interpretation) and it concerned important issues regarding the duties of parties to asylum proceedings which would have an impact beyond the applicant’s situation. The request to strike out the case was dismissed.
(ii) The main issue on the merits concerned the existence/extent of any duty on the Contracting State to assess an individual risk factor which had not been relied upon by the individual in his or her asylum claim. The Grand Chamber reiterated that it was, in principle, for the individual to submit, as soon as possible, his or her asylum claim together with the reasons and evidence in support of that claim. It went on to outline two clarifications of that principle.
In the first place, when an asylum claim was based on a “well-known general risk, when information about such a risk is freely ascertainable from a wide number of sources”, the Article 2 and 3 obligations on the State were such that the authorities were required to carry out an assessment of that general risk of their own motion.
Secondly, as regards asylum claims based on individual risk, Articles 2 and 3 could not require a State to discover a risk factor to which an asylum applicant had not even referred. However, if the State had been “made aware of facts relating to a specific individual” that could expose him or her to a relevant risk of ill-treatment on expulsion, the authorities were required to carry out an assessment of that risk of their own motion.
It is worth noting that, in the present case, the Court concluded that there would be a violation of Articles 2 and 3 if the applicant were to be returned to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his religious conversion, despite the fact that on several occasions the applicant had been given the opportunity to plead his conversion during the asylum claim, that he had refused to do so during those initial proceedings and that he had been legally represented throughout.
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11. Armani Da Silva v. the United Kingdom, no. 5878/08, ECHR 2016.
12. McCann and Others v. the United Kingdom [GC], 27 September 1995, § 200, Series A no. 324.
13. Giuliani and Gaggio v. Italy [GC], no. 23458/02, ECHR 2011 (extracts).
14. Öneryildiz v. Turkey [GC], no. 48939/99, ECHR 2004-XII.
15. Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia, no. 2319/14, 13 October 2016.
16. F.G. v. Sweden [GC], no. 43611/11, ECHR 2016.
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