The Use of Force and Article 2 of the ECHR in Light of European Conflicts 9781509911813, 9781509911820, 9781509911790

Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to signi

180 99 7MB

English Pages [299] Year 2017

Table of contents :
Acknowledgements
Contents
Table of Abbreviations
Table of Cases
1
Introduction
I. Methodology
2
Introducing Guidelines on Article 2
I. Origins of the Right to Life
II. The Right to Life in Europe
III. Justification for Creating the Proposed Guidelines
IV. Conclusion
3
Duty to Refrain from Unjustified Killing
I. Finding a Violation of the Duty to Refrain from an Unjustified Killing
II. "Absolutely Necessary" Test
III. Defence of Any Person from Unlawful Violence-Article 2(2)(a) of the ECHR
IV. Effect a Lawful Arrest or to Prevent Escape-Article 2(2)(b) of the ECHR
V. Quelling a Riot and Insurrection-Article 2(2)(c) of the ECHR
VI. Margin of Appreciation and Article 2
VII. Conclusion
4
Duty to Protect Life By Law
I. WHAT DOES PROTECTING LIFE BY LAW ENTAIL?
II. DOMESTIC LAWS
III. THE ECtHR’s APPROACH TO DOMESTIC LAWS
IV. CONCLUSION
5
Duty to Protect LifePlanning and Reasonable Steps
I. DUTY TO ADEQUATELY PLAN OPERATIONS
II. DUTY TO PROTECT AGAINST REAL AND IMMEDIATE RISKS TO LIFE
III. EXTRA-TERRITORIAL SCOPE OF ARTICLE 2
IV. CONCLUSION
6
Enforced Disappearances
I. The Evolving Concept of Enforced Disappearances
II. Defining Enforced Disappearances
III. Protection by Law
IV. Duty to Investigate Enforced Disappearances
V. The Standard and Burden of Proof
VI. Conclusion
7
Duty to Investigate Suspicious Deaths
I. Establishing Minimum Requirements for an Article 2 Investigation
II. State"s Own Motion
III. Purpose of the Investigation
IV. Prompt Commencement of Investigations
V. Reasonable Expedition of Investigations
VI. Thorough Investigation
VII. Independent and Impartial Investigations
VIII. Public Scrutiny
IX. Conclusion
8
Right to an Effective Remedy and Article 2 of the ECHR
I. What is the Right to an Effective Remedy?
II. The Special Relationship between the Duty to Investigate Suspicious Deaths and the Right to an Effective Remedy
III. Domestic Remedies
IV. Remedies Provided by the ECHR
V. Types of Remedy
VI. Conclusion
9
Special Challenges
I. Intimidation
II. Collusion
III. Statute of Limitations
IV. Amnesties and Pardons
V. Conclusion
10
CoE Bodies and Protecting Life
I. Lack of Cooperation
II. Systematic Violations
III. Use of Compensation
IV. Politicisation
V. Lack of Awareness
VI. Conclusion
Appendix
Select Bibliography
Index

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THE USE OF FORCE AND ARTICLE 2 OF THE ECHR IN LIGHT OF EUROPEAN CONFLICTS Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant developments at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies—the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights—to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts—the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish–Kurdish conflict—to illustrate its points. Volume 81 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: Exceptions from EU Free Movement Law Edited by Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis Reconceptualising European Equality Law: A Comparative Institutional Analysis Johanna Croon-Gestefeld Marketing and Advertising Law in a Process of Harmonization Edited by Ulf Bernitz and Caroline Heide-Jörgensen The Fundamental Right to Data Protection: Normative Value in the Context of Counter-Terrorism Surveillance Maria Tzanou Republican Europe Anna Kocharov Family Reunification in the EU Chiara Berneri EU Liability and International Economic Law Armin Steinbach The EU and Nanotechnologies: A Critical Analysis Tanja Ehnert Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts Edited by Petr Agha The European Union and Social Security Law Jaan Paju The Rule of Law in the European Union: The Internal Dimension Theodore Konstadinides The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future Edited by Sacha Garben and Inge Govaere Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK Charlotte O’Brien For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law

The Use of Force and Article 2 of the ECHR in Light of European Conflicts

Hannah Russell

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Hannah Russell 2017 Hannah Russell has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, e lectronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50991-181-3 ePDF: 978-1-50991-179-0 ePub: 978-1-50991-180-6 Library of Congress Cataloging-in-Publication Data Names: Russell, Hannah, author. Title: The use of force and article 2 of the ECHR in light of European conflicts / Hannah Russell. Description: Portland, Oregon : Hart Publishing, 2017. | Series: Modern studies in European law ; volume 81 | Includes bibliographical references and index. Identifiers: LCCN 2017025635 (print) | LCCN 2017027014 (ebook) | ISBN 9781509911806 (Epub) | ISBN 9781509911813 (hardback : alk. paper) Subjects: LCSH: Right to life—Europe. | Convention for the Protection of Human Rights and Fundamental Freedoms (1950 November 5) | Human rights—Europe. Classification: LCC KJC5186 (ebook) | LCC KJC5186 .R87 2017 (print) | DDC 342.2408/5—dc23 LC record available at https://lccn.loc.gov/2017025635 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements Thank you to Hart Publishing for their faith in this project, supporting it to completion and producing these pages, particularly Sinead Moloney, Emily Braggins and Christopher Long. Gratitude is also due to the School of Law, Queen’s University Belfast and the Department for Employment and Learning NI for the resources that enabled the completion of a PhD on this topic. This book evolved from a PhD, but there are many people who inspired appreciation for and cultivated understanding of human rights who are owed a debt of gratitude—my family who encouraged and showed through example that each individual has a responsibility to look beyond themselves, and show compassion and respect towards others—Mum, Dad, Julie, Eve, Nana, Naneen and Papa. Teachers and mentors throughout my primary, secondary and third-level education who generously imparted their knowledge, expertise and advice that enabled a deeper understanding of the complexities, usefulness and applicability of human rights. Particular mention to Dr Catherine Donnelly for inspiring an interest in this particular area of law and, for their vital input and guidance into this project—Professor Brice Dickson; Dr Natasa Mavronicola; Dr Onder Backircioglu; Professor Colin Harvey; Professor Javid Rehman; Professor Philip Leach; Professor Françoise Hampson; Professor Bill Bowring; and the anonymous reviewers. Those who offered the opportunity, support and encouragement in my career to date that helped to develop the skill set to complete this project—Blanaid O’Shea; Dr Colin Harper; Dr Bronagh Byrne; Dr Nizar Ayoub; Dr David Russell; Professor Monica McWilliams; and Maha Abu-Dayyeh. The intermediaries and interviewees who agreed to be part of this project and offered their time and opinions; the dedication and strength that they demonstrate in their challenging, and often dangerous, work is inspirational. To friends around the world and extended family (especially Ann, Brian and Conor) who offered encouragement, experiences and new perspectives. Finally, Aidan, my partner in everything.

vi

Contents Acknowledgements��v Table of Abbreviations�� xi Table of Cases��xv

1. Introduction��1 I. Methodology��2 A. Justification for the Chosen Case Studies��3 B. Research Subjects and Documents��7 i. Challenges��8 C. Data Analysis��8 D. Research Questions��9 2. Introducing Guidelines on Article 2: Making a Case��12 I. Origins of the Right to Life��12 II. The Right to Life in Europe��14 A. Obligations��15 B. Limitations��16 III. Justification for Creating the Proposed Guidelines��17 A. Clarity��18 B. Lack of Awareness��20 C. Principle of Subsidiarity��21 IV. Conclusion��22 3. Duty to Refrain from Unjustified Killing��23 I. Finding a Violation of the Duty to Refrain from an Unjustified Killing��24 II. ‘Absolutely Necessary’ Test��26 III. Defence of Any Person from Unlawful Violence—Article 2(2)(a) of the ECHR��29 A. Detention��29 B. Targeted Killings��29 IV. Effect a Lawful Arrest or to Prevent Escape—Article 2(2)(b) of the ECHR��33 V. Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR��37 A. Definition of ‘Riot’��37 B. Definition of ‘Insurrection’��38

viii Contents C. The Use of Live Ammunition��39 D. The Use of Rubber and Plastic Bullets��40 E. The Use of Teargas��45 F. Water Cannon��49 VI. Margin of Appreciation and Article 2��49 VII. Conclusion��50 4. Duty to Protect Life: By Law��53 I. What Does Protecting Life by Law Entail?��54 A. Criminal Laws��54 B. Regulations��55 II. Domestic Laws��56 A. Basque Conflict��57 i. Law in Spain��57 ii. Law in France��59 B. Chechen Conflict��60 C. NI��61 i. Law in NI��62 ii. Law in Ireland��66 D. Turkish-Kurdish Conflict��67 III. The ECtHR’s Approach to Domestic Laws��69 IV. Conclusion��71 5. Duty to Protect Life: Planning and Reasonable Steps��73 I. Duty to Adequately Plan Operations��73 II. Duty to Protect Against Real and Immediate Risks to Life��77 III. Extra-territorial Scope of Article 2��83 IV. Conclusion��85 6. Enforced Disappearances��87 I. The Evolving Concept of Enforced Disappearances��89 II. Defining Enforced Disappearances��90 A. Perpetrators��92 B. Victim Status��93 C. Absolute Prohibition��94 D. Addressing Systematic Issues��95 E. Intention��98 F. Continuing Violation��99 III. Protection by Law��106 IV. Duty to Investigate Enforced Disappearances��109 V. The Standard and Burden of Proof��111 A. Lowering the Standard of Proof��114 B. Shifting the Burden of Proof��118 VI. Conclusion��120

Contents ix 7. Duty to Investigate Suspicious Deaths��121 I. Establishing Minimum Requirements for an Article 2 Investigation��122 II. State’s Own Motion��124 III. Purpose of the Investigation��125 IV. Prompt Commencement of Investigations��127 V. Reasonable Expedition of Investigations��128 A. Excessive Delays��129 B. Sheer Volume of Deaths��132 C. Violent Context��133 VI. Thorough Investigation��133 A. Autopsies and Forensic Examinations��134 B. Public Inquiries��140 C. Witness Statements��143 VII. Independent and Impartial Investigations��146 A. Independent Complaints Mechanism��149 VIII. Public Scrutiny��151 IX. Conclusion��154 8. Right to an Effective Remedy and Article 2 of the ECHR��155 I. What is the Right to an Effective Remedy?��156 A. Exhaustion of Domestic Remedies��157 i. Exceptions to the Rule��158 II. The Special Relationship between the Duty to Investigate Suspicious Deaths and the Right to an Effective Remedy��160 A. The ECtHR’s Struggle with the Special Relationship��161 III. Domestic Remedies��163 IV. Remedies Provided by the ECHR��164 A. The Supervision of the Execution of the ECtHR’s Judgments��165 V. Types of Remedy��167 A. Compensation and Damages��167 i. Withholding Compensation at a Domestic Level��168 B. Disciplinary Sanctions��171 C. Prosecutions��172 i. Impunity��174 D. Re-investigation��176 E. Reform of Legislation��179 VI. Conclusion��181 9. Special Challenges��183 I. Intimidation��183 II. Collusion��186 A. Collusion Leading to Deaths��187 B. Collusion Leading to Ineffective Investigations��189

x Contents C. Use of Informants��190 I II. Statute of Limitations��191 IV. Amnesties and Pardons��193 A. The Differing Approaches to Amnesties and Pardons at a Domestic Level��200 V. Conclusion��203 10. CoE Bodies and Protecting Life��204 I. Lack of Cooperation��205 A. Consistent Application of Article 38 of the ECHR��206 B. Fact-finding Missions��209 II. Systematic Violations��212 A. Missed Opportunities to Consider Systematic Violations—NI��214 B. Blatantly Ignoring the Issue of Systematic Violations—Turkey��215 C. Emergence of the Pilot Judgment System—Russia��217 D. Pilot Judgment Procedure��218 i. Pilot Judgment Cases��218 ii. Pros and Cons of the Pilot Judgment Procedure��220 iii. Impact of the Pilot Judgment Procedure��222 III. Use of Compensation��224 A. Overuse of Compensation��224 B. Awarding Insufficient Compensation��225 C. Lack of Consistency and Transparency with Compensation Awarded��225 IV. Politicisation��226 A. ECtHR��227 i. Challenging the ECtHR’s Politicisation��228 B. CoM��229 i. Developing the Use of Article 46(4) of the ECHR��229 C. PACE��231 i. Improved Use of the PACE’s Available Mechanisms��231 D. CoE Commissioner on Human Rights��232 i. Developing the Commissioner’s on Human Rights Office��233 ii. Improving Cooperation��234 V. Lack of Awareness��234 VI. Conclusion��237

Appendix��239 Select Bibliography��255 Index��267

Table of Abbreviations ADRDM

American Declaration on the Rights and Duties of Man 1948

AG

Attorney General

AI

Amnesty International

APT

Association for the Prevention of Torture

Behatokia

The Basque Observatory of Human Rights

BVE

Batallón Vasco Español

CAJ

Committee on the Administration of Justice

CCPR

United Nations Human Rights Committee

CCRC

Northern Ireland Criminal Cases Review Commission

CGPJ

General Council of the Judiciary (Consejo General del Poder Judicial)

CICS

Criminal Injuries Compensation Scheme

CIRA

Continuity Irish Republican Army

CLAHR

Committee on Legal Affairs and Human Rights

CoE

Council of Europe

CoM

Committee of Ministers

CPDS

Centre for Peace and Development Studies

CPI

Centre for International Protection

CPJ

Committee to Protect Journalists

CPS

Crime Prevention Studies

CRC

Convention on the Rights of the Child 1989

CSNI

Coroners Service for Northern Ireland

CSRC

Conflict Studies Research Centre

CVS

Commission for Victims and Survivors

DEECHR

Department for the Execution of the European Court of Human Rights Judgments

DHSSPS

Department of Health, Social Services and Public Safety

DOJ

Department of Justice

DPI

Democratic Progress Institute

xii Table of Abbreviations DPP

Director of Public Prosecutions

ECHR

European Convention on Human Rights 1950

ECommHR

European Commission on Human Rights

ECtHR

European Court of Human Rights

EHRAC

European Human Rights Advocacy Centre

EHRC

Equality and Human Rights Commission

EU

European Union

FRU

Force Research Unit

FSB

Federal Security Service of the Russian Federation

GAL

Grupos Antiterroristas de Liberación

GFA

Good Friday (Belfast) Agreement 1998

HCP

High Contracting Party

HET

Historical Enquiries Team

HIU

Historical Investigations Unit

HRA

Human Rights Act 1998

HRAA

Human Rights Agenda Association (Turkey)

HRAHIHS

Human Rights Advocacy and the History of International Human Rights Standards European Center for Constitutional and Human Rights

HMIC

Her Majesty’s Inspectorate of Constabulary

HRSJRI

Human Rights and Social Justice Research Institute

HRW

Human Rights Watch

IAC

International Armed Conflict

IACommHR

Inter-American Commission on Human Rights

IACtHR

Inter-American Court of Human Rights

ICCPR

International Covenant on Civil and Political Rights 1966

ICED

International Convention for Protection of All Persons from Enforced Disappearances 2006

ICL

International Criminal Law

ICPC

Independent Commission for Police Complaints

ICRC

International Committee of the Red Cross

IFHR

International Federation of Human Rights

IGJS

Inspectorate General of Judicial Services

Table of Abbreviations xiii IHL

International Humanitarian Law

IHOP

Human Rights Joint Platform (Insan Haklari Ortak Platform)

IHRL

International Human Rights Law

INLA

Irish National Liberation Army

IPCC

Independent Police Complaints Commission

IRA

Irish Republican Army

JCJEDWR

Joint Committee on Justice, Equality, Defence and Women’s Rights

JITEM

Turkish Gendarmerie Intelligence Organisation (Jandarma Istihbarat ve Terörle Mücadele)

LC

Law Commission

LIB

Legacy Investigation Branch

LVF

Loyalist Volunteers Force

Memorial

Memorial Centre for Human Rights

Minnesota Protocol

Model Autopsy Protocol in the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions 1999

MRF

Military Reaction Force

NI

Northern Ireland

NIAC

Non-international Armed Conflict

NICTS

Northern Ireland Courts and Tribunal Services

NIHRC

Northern Ireland Human Rights Commission

OAS

Organisation of American States

ÖHD

Turkish Special Operations Department (Özel harekat Dairesi)

OSGPSH

Office of the Secretariat General for Peace and Social Harmony

OTR

On the Runs Scheme

OV

Orange Volunteers

PACE

Parliamentary Assembly of the Council of Europe

PC

Privy Council

PCB

Northern Ireland Police Complaints Board

PICJ

Permanent Court of International Justice

xiv Table of Abbreviations PKK

Kurdish Workers’ Party

PONI

Police Ombudsman for Northern Ireland

PP

Public Prosecutors

PSNI

Police Service of Northern Ireland

Real IRA

Real Irish Republican Army

RHD

Red Hand Defenders

RJI

Russian Justice Initiative

Rome Statute

Rome Statute of the International Criminal Court 1998

RUC

Royal Ulster Constabulary

SACHR

Standing Advisory Committee on Human Rights

SIU

Special Investigative Unit

SRU

Special Reconnaissance Unit

Taoiseach

Irish Prime Minister

TJI

Transitional Justice Institute

UDA

Ulster Defence Association

UDHR

Universal Declaration of Human Rights 1948

UFF

Ulster Freedom Fighters

UK

United Kingdom

UN

United Nations

UNCPCTO

United Nations Congress on the Prevention of Crime and the Treatment of Offenders

UNCRPD

United Nations Convention on the Rights of Persons with Disabilities 2006

UNESC

United Nations Economic and Social Council

UNOHCHR

Office of the United Nations High Commission for Human Rights

UNSC

United Nations Security Council

UVF

Ulster Volunteers Force

VSS

Victim and Survivors Service

1989 Principles

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions 1989

Table of Cases Cases are referenced throughout using the case name and year of the judgment. The relevant citation can be located by cross-referencing the case name and year with the list below. European Commission on Human Rights and European Court of Human Rights A A and Others v UK, Application No 3455/05, Judgment of 19 February 2009��207 A, B and C v Ireland (2010) ECHR 2032��157 Abdulkhanov and Others v Russia (2013) ECHR 918��25 Abdullah Yasa and Others v Turkey (2013) ECHR 839��45, 181 Abdullah Yilmaz v Turkey, Application No 21899/02, Judgment of 17 June 2008��55 Abdülsamet Yaman v Turkey (2004) ECHR 572 ��171, 196–97 Abdurashidova v Russia (2010) ECHR 495��76 Abuyeva and Others v Russia (2010) ECHR 1853��76–77, 177, 230 Acar and Others v Turkey (2005) ECHR 313��134, 185 Adali v Turkey (2005) ECHR 199��154 Ahmet Ozkan and Others v Turkey (2004) ECHR 133�� 29, 31, 51, 75, 128, 133 Akdeniz and Others v Turkey (2001) ECHR 353��109, 185 Akdivar and Others v Turkey (1996) ECHR 35 ��159 Akhiyadova v Russia (2008) ECHR 588 ��208 Akhmadov and Others v Russia (2008) ECHR 1390��35, 208 Akhmdova v Russia, Application No 25548/07, Judgment of 24 September 2012��25 Akhmadova and Akhmadov v Russia (2008) ECHR 869 ��124, 156–57 Akhmadova and Sadulayeva v Russia (2007) ECHR 385��135, 143, 152, 162, 167, 184, 207 Akhmatov and Others v Russia (2014) ECHR 60 ��158 Akkoc v Turkey (2000) ECHR 458��78–79, 162, 185 Akkum and Others v Turkey (2005) ECHR 175�� 28, 34, 74, 206, 208 Akpinar and Altun v Turkey (2007) ECHR 183��43, 45, 75 Aksoy v Turkey (1996) ECHR 68 �� 126, 156–57, 159, 161, 174 Aktas v Turkey (2003) ECHR 194�� 28–29, 51, 170, 208 Al-Jedda v UK (2011) ECHR 1092��85 Al-Saadoon and Mufdhi v UK (2010) ECHR 282��16, 84 Al-Skeini and Others v UK (2011) ECHR 1093�� 83–85 Ali and Ayse Duran v Turkey (2008) ECHR 289�� 122, 171, 196, 203 Alikhadzhiyeva v Russia (2007) ECHR 555 ��162 Amuur v France (1996) ECHR 25��93 Ananyev and Others v Russia (2012) ECHR 21��96, 219, 221 Andronicou and Constantinou v Cyprus (1997) ECHR 80��66–67, 74 Anguelova v Bulgaria (2002) ECHR 489��112, 121 Anik and Others v Turkey (2007) ECHR 441��24 Arapkhanovy v Russia (2013) ECHR 914�� 43, 45, 75, 208

xvi Table of Cases Armani da Silva v UK (2016) ECHR 314��27, 66, 126, 133, 146, 148, 171, 173 Arzu Akhmadova and Others v Russia (2009) ECHR 11��184 Askhabova v Russia (2013) ECHR 354��25 Aslakhanova and Others v Russia (2012) ECHR 2075��7, 25, 87, 91, 95, 98, 110, 125, 127, 129, 135, 143, 177, 191–92, 217, 219 Association 21 December 1989 and Others v Romania, Application Nos 33810/07 and 18817/08, Judgment of 24 May 2011��191–92, 197 Ataman v Turkey (2006) ECHR 481 ��55 Ataykaya v Turkey (2014) ECHR 1030��46 Atiman v Turkey (2014) ECHR 987��25 Avsar v Turkey (2001) ECHR 439 ��124, 126, 128 Aydan v Turkey (2013) ECHR 206��25 Aydin v Turkey (1997) ECHR 75�� 126, 156, 161, 174 Aydin v Turkey (2001) ECHR 440��96 B Bankovic and Others v Belgium and Others (2001) ECHR 890��83 Batayev and Others v Russia (2010) ECHR 944��180 Baysayeva v Russia (2007) ECHR 256�� 90, 96, 109, 119–20, 143, 162 Baysultanova and Others v Russia (2013) ECHR 640 ��25, 146–47 Bazorkina v Russia (2006) ECHR 751 ��90, 109, 118–20 Benzer and Others v Turkey (2013) ECHR 1116 ��25 Betayev and Betayeva v Russia (2008) ECHR 469��110, 120, 127 Bitiyeva and Others v Russia (2009) ECHR 672��157 Bitiyeva and X v Russia (2007) ECHR 510 ��25, 184 Bopayeva and Others v Russia (2013) ECHR 1105��25 Brecknell v UK (2007) ECHR 989�� 13, 73, 78, 162, 191 Broniowski v Poland (2004) ECHR 274��164, 218–19 Bubbins v UK (2005) 41 EHRR 458��27, 66 Buldan v Turkey (2004) ECHR 153��129 C Cakici v Turkey (1999) ECHR 43��93 Calvelli and Ciglio v Italy (2002) ECHR 3��55 Cankocak v Turkey (2001) ECHR 93 ��100 Chiragov and Others v Armenia (2015) ECHR 647��84 Ciloglu and Others v Turkey (2004) ECHR 563��45 Cyprus v Turkey (2001) ECHR 331��83, 103–04 Cyprus v Turkey (2014) ECHR 478��225 D Damayev v Russia (2012) ECHR 894��25, 50, 76 De Becker v Belgium (1962) ECHR 1��103 De Saedeleer v Belgium, Application No 27535/04, Judgment of 24 July 2007��92 Demades v Turkey (2008) ECHR 331��100

Table of Cases xvii Demiray v Turkey (2000) ECHR 623��185 Dink v Turkey, Application Nos 2668/07, 6102/08, 30079/08, 7072/07 and 7124/09, Judgment of 14 September 2012��78 Donnelly and Others v UK (1975) 64 DR 4��158, 213 Dösemealti Belediyesi v Turkey, Application No 50108/06, Judgment of 23 March 2010��92 Dovletukayev and Others v Russia (2013) ECHR 1033 ��25, 158 Drozd and Janousek v France and Spain (1992) 14 EHRR 745��83 Dujardin v France, Application No 16734/90, Judgment of 2 September 1991�� 196–97 Durini v Italy, Application No 19217/91, Judgment of 12 January 1994��92 Dzhabrailov and Others v Russia (2014) ECHR 215��25, 158 Dzhamayeva and Others v Russia (2009) ECHR 17��207 E Edilova v Russia (2012) ECHR 341 ��25 Edwards v UK (2002) ECHR 303��78 El-Marsri v Former Yugoslav Republic of Macedonia, Application No 39630/09, Judgment of 13 December 2012��94 Er and Others v Turkey (2012) ECHR 1661��95, 117 Erdogan and Others v Turkey (2006) ECHR 461��69, 71, 181 Ergi v Turkey (1998) ECHR 59��27, 56, 74–75, 121, 125, 144, 148–49, 161 Ergin v Turkey (No 6) (2006) ECHR 529��146 Ersöz v Turkey, Application No 23144/93, Judgment of 20 October 1995��88, 106 Ertak v Turkey (2000) ECHR 193��117 ES v Germany, Application No 23576/94, Judgment of 29 November 1995��92 Esmukhambetov and Others v Russia (2011) ECHR 532��146, 173 Estamirov and Others v Russia (2006) ECHR 860 �� 135, 143, 159, 167–68 F Fatma Kacar v Turkey, Application No 35838/97, Judgment of 15 July 2005��173 Fedotov v Moldova (2011) ECHR 1014��221 Feyzi Yildirim v Turkey, Application No 40074/98, Judgment of 19 July 2007��162 Finogenov and Others v Russia (2010) ECHR 589��61, 74–75 Finogenov and Others v Russia (2011) ECHR 2234��47–50, 75 Finucane v UK (2003) ECHR 328 ��128, 131 G Gäfgen v Germany (2010) ECHR 759��167, 171, 173 Gakayeva and Others v Russia (2013) ECHR 946 ��25, 208 Giuliani and Gaggio v Italy (2011) ECHR 513�� 24, 39, 49, 75, 111 Gömi v Turkey, Application No 35962/97, Judgment of 21 December 2006��38 Goncharuk v Russia (2007) ECHR 759 ��143, 184 Gongadze v Ukraine, Application No 34056/02, Judgment of 8 November 2005��79 Guiterrez Dorado and Dorado Ortiz v Spain (2012) ECHR 600��102, 197 Gül v Turkey, Application No 22676/93, Judgment of 14 December 2000��138, 152 Gül v Turkey (2002) 34 EHRR 719��173 Gülbahar Ozer and Others v Turkey (2013) ECHR 632��34, 75

xviii Table of Cases Gülec v Turkey, Application No 21593/93, Judgment of 27 July 1998�� 37, 40, 148–49, 152, 160, 173 Gülen v Turkey (2008) ECHR 1077��24, 69, 71 H Hamiyet Kaplan v Turkey (2005) ECHR 592��54 Hass v Germany, Application No 73047/01, Judgment of 17 November 2005��190 Hess v UK, Application No 6231/73, Judgment of 28 May 1975��83 Horsham v UK, Application No 23390/94, Judgment of 19 January 1996��92 Hugh Jordan v UK (2001) ECHR 327�� 6, 34–35, 74, 77, 123–24, 128–29, 131, 134–36, 143, 145–46, 148–49, 151, 153, 162, 177, 215, 219 Hussein v Albania and Other States, Application No 23276/04, Admissibility Judgment of 14 March 2006��84 I Icyer v Turkey, Application No 18888/02, Judgment of 12 January 2006��170 Ilayeva v Russia (2012) ECHR 1570 ��25 Ilhan v Turkey (2000) ECHR 354��28, 124 Ikincisoy v Turkey (2004) ECHR 387��29, 51 Illich Sanchez Ramirez v France, Application No 28780/95, Judgment of 24 June 1996��84 Imakayeva v Russia (2006) ECHR 957��152, 184, 207 Inderbiyeva v Russia (2012) ECHR 521 ��25 Ipek v Turkey (2004) ECHR 74��117, 128–29 Ireland v UK (1978) ECHR 1��29, 40, 51, 70, 111, 159, 206 Isayeva, Yusupova and Bazayeva v Russia (2005) ECHR 129�� 27, 129, 133, 148–49, 162, 175, 208 Isayeva v Russia (2005) ECHR 128��75–76, 121, 151, 161, 175, 177, 180, 217, 225 Isigova and Others v Russia (2008) ECHR 558��175 Israilova v Russia (2013) ECHR 219��184 Israilova and Others v Russia (2009) ECHR 544 ��25 Issa and Others v Turkey (2004) ECHR 629��84 Izci v Turkey (2013) ECHR 719 ��46 J James and Others v UK (1986) ECHR 2 ��70 Janowiec and Others v Russia (2013) ECHR 1003��94, 101–04, 206 Jasinska v Poland (2008) ECHR 1319��55 Jasinskis v Latvia (2010) ECHR 1��121 Jelic v Croatia (2014) ECHR 809�� 104, 122, 124, 167, 173 Johnston and Others v Ireland (1986) ECHR 17��20 Joseph Kavanagh v Ireland (2001), CCPR/C/71/D/819/1998��146 K Kadirova and Others v Russia (2012) ECHR 523��25 Kamalak v Turkey, Application No 2251/11, Judgment of 8 October 2013��146 Kasa v Turkey (2008) ECHR 419�� 24, 43, 45, 75

Table of Cases xix Kasap and Others v Turkey (2014) ECHR 38��25 Kaya v Turkey (1998) ECHR 10��28, 121, 126, 136, 156, 160–61, 174, 185, 225 Kaykharova and Others v Russia (2013) ECHR 770 ��25, 169 Kelly and Others v UK (2001) ECHR 328�� 34–35, 77, 124, 128, 162, 168, 219 Kerimova and Others v Russia (2011) ECHR 744�� 75–76 Khadzhialiyev and Others v Russia (2008) ECHR 1261��25 Khalitova v Russia (2009) ECHR 405��25 Khamila Isayeva v Russia, Application (2008) ECHR 1897��143 Khamzatov and Others v Russia (2012) ECHR 340��25 Khamzayev and Others v Russia, Application No 1503/02, Judgment of 3 May 2011��76 Khashiyev and Akayeva v Russia (2005) ECHR 132 �� 133, 135, 147, 159, 162, 167, 175–77, 180, 201 Khatsiyeva and Others v Russia (2008) ECHR 46��77, 207–08 Khatuyeva v Russia (2010) ECHR 631��184 Kilic v Turkey (2000) ECHR 128�� 78–79, 81–82, 93, 109, 146, 154, 158, 160, 189, 190 Kismir v Turkey (2005) ECHR 345��208 Klass and Others v Germany (1978) ECHR 4��70 Koku v Turkey (2005) ECHR 346��154, 185, 208 Kopylov v Russia (2010) ECHR 1209 ��173 Kolevi v Bulgaria (2009) ECHR 1838��133 Kosumova v Russia (2014) ECHR 1080��162 Kudla v Poland (2000) ECHR 512��163 Kukayev v Russia (2007) ECHR 929�� 126, 158, 161–62, 174, 208 Kurt v Turkey (1998) ECHR 44�� 88, 106, 109, 112–15, 117, 183–85 L LCB v UK (1998) 27 EHRR 212�� 37, 54–55, 74, 78–79, 93 Loizidou v Turkey (1995) ECHR 10��84 Loizidou v Turkey (1996) ECHR 70��84 Luluyev v Russia (2006) ECHR 951 ��162 M M v Denmark, Application No 17392/90, 14 October 1992 ��84 Mahmut Kaya v Turkey (2000) ECHR 129�� 73, 77–78, 93, 128, 132, 145, 158, 162, 171, 173, 193, 215, 225 Maiorano and Others v Italy, Application No 28634/06, Judgment of 15 December 2009��75 Makaratzis v Greece (2004) 41 EHRR 1092�� 26, 54–55, 70, 73–75, 93, 173 Makayeva v Russia (2014) ECHR 966 ��25 Makhauri v Russia (2007) ECHR 760��23, 143 Malika Yusupova and Others v Russia (2015) ECHR 43 ��7, 25 Margus v Croatia (2014) ECHR 523��194, 197–99 McCann v UK (1995) 21 EHRR 97�� 6, 12, 17–19, 24, 26–27, 34, 42–43, 45, 54–55, 63, 65–67, 69–70, 74–75, 85, 93, 121–22, 124, 151, 172 McCann and Others v UK, Comm Rep 4.3.94, Eur Court HR, Series A no.324��34, 74, 146–47

xx Table of Cases McCaughey and Others v UK (2013) ECHR 682��131–32, 181 McDaid and Others v UK, Application No 25681/94, Admissibility Judgment of 9 April 1996��105 McGlinchey v UK (2003) 37 EHRR 821��167 McKerr v UK (2001) ECHR 329 �� 34–35, 77, 124, 128–29, 133, 148–49, 151, 158–59, 162, 177, 219 McShane v UK (2002) ECHR 469 �� 65, 128, 162, 177, 180 Medova v Russia (2009) ECHR 70��184, 206 Mentese and Others v Turkey (2005) ECHR 22 ��127, 133 Meryem Celik and Others v Turkey (2013) ECHR 325��95, 129 Mezhidov v Russia (2008) ECHR 897�� 207–08 Mikhalkova and Others v Ukraine (2011) ECHR 41��173 Mikheyev v Russia (2006) ECHR 78��176 Mikiyeva and Others v Russia (2014) ECHR 99 ��25 Moldovan and Others v Romania (No 1) (2005) ECHR 458��100 Moretti and Benedetti v Italy, Application No 16318/07, Judgment of 27 April 2010��92 Mozer v Republic of Moldova and Russia (2016) ECHR 213��85 Municipal Section of Antilly v France, Application No 45129/98, Judgment of 23 November 1999��92 Musayev and Others v Russia (2007) ECHR 671��143 Musayeva and Others v Russia (2007) ECHR 643�� 29, 51, 135, 162 Musikhanova and Others v Russia (2008) ECHR 1600�� 207–208 N Nachova and Others v Bulgaria (2004) ECHR 90�� 27, 39, 42, 54–56, 63, 66, 112, 162, 173 Nesibe Haran v Turkey, Application No 28299/95, Judgment of 6 October 2005��162 Nikolova and Velichkova v Bulgaria (2007) ECHR 1128��171 Nikolova and Velichkova v Bulgaria (2009) 48 EHRR 915��173 Nuray Sen v Turkey (No 2) (2004) ECHR 125��157 O Öcalan v Turkey (2003) ECHR 125��84 Odabasi v Turkey, Application No 23183/94, Admissibility Judgment of 28 November 1994��105 Ogur v Turkey (1999) ECHR 30��144, 148–49, 151–52, 173 Okkali v Turkey, Application No 52067/99, Judgment of 17 October 2006 ��173, 197 Oneryildiz v Turkey (2005) 41 EHRR 325�� 55–56, 74, 78–79, 93, 121 Opuz v Turkey (2009) ECHR 870��54, 78 Orhan v Turkey (2002) ECHR 497�� 74, 106, 117, 124, 126–27, 156, 160–61, 174 Osman v UK (2000) 29 EHRR 245�� 54, 56, 73–75, 77–79, 93 Osmanoglu v Turkey, Application No 48804/99, Judgment of 24 January 2008��78 Othman (Abu Qatada) v UK (2012) ECHR 56��84 Ould Dah v France (2009) ECHR 532�� 196–97 Oya Ataman v Turkey (2007) ECHR 493��45

Table of Cases xxi P Palmer v R [1971] AC 814�� 65–66 Pasa and Erkan Enrol v Turkey, Application No 51358/99, Judgment of 12 December 2006��55 Paul and Audrey Edwards v UK (2002) ECHR 2275��162 Pisari v Republic of Moldova and Russia (2015) ECHR 403��85 Peach v Commissioner of Police of the Metropolis [1986] 2 All ER 129��153 Perevedentsevy v Russia (2014) ECHR 438��78, 80, 85 Perez v France (2004) ECHR 72��172 Perisan v Turkey, Application No 12336/03, Judgment of 20 May 2010��38 Perk and Others v Turkey (2006) ECHR 261��27, 173 Pitsayeva and Others v Russia, Application Nos 53036/08 61785/08 8594/09 24708/09 30327/09 36965/09 61258/09 63608/09 67322/09 4334/10 4345/10 11873/10 25515/10 30592/10 32797/10 33944/10 36141/10 52446/10 62244/10 66420/10, Judgment of 9 January 2014��158 Powell v UK (2000) ECHR 703��55 Putintseva v Russia (2012) ECHR 820��61, 80 R Ramsahai and Others v Netherlands (2007) ECHR 393��134, 162 Renolde v France (2008) ECHR 1085 ��55 Ribitsch v Austria (1995) ECHR 55 ��112 ROD v Croatia (2008) ECHR 1048��121 S Saidova v Russia (2013) ECHR 772��25 Salman v Turkey (2000) ECHR 357��138, 185 Sandra Jankovic v Croatia (2009) ECHR 401��172 Sangariyeva and Others v Russia (2008) ECHR 468��25 Sasita Israilova and Others v Russia, Application No 35079/04, Judgment of 28 October 2010��158, 208 Saso Gorgiev v Former Yugoslav Republic of Macedonia (2012) ECHR 726��50, 132 Saydaliyeva and Others v Russia (2009) ECHR 536��25 Savin v Ukraine, Application No 34725/08, Judgment of 16 February 2012��173 Schenk v Germany, Application No 42541/02, Admissibility Judgment of 9 May 2007��157 Scozzari and Giunta v Italy (2000) ECHR 372��165 Selmouni v France (1999) ECHR 66��112 Shanaghan v UK, (2001) ECHR 330��121, 124, 128–29, 131, 151, 162, 177, 219 Shchiborshch and Kuzmina v Russia (2014) ECHR 52�� 60–61 Shishkin v Russia (2011) ECHR 1099��173 Siddik Yasa v Turkey (2002) ECHR 541��96 Silih v Slovenia (2009) ECHR 571�� 100–03 Simsek and Others v Turkey (2005) ECHR 546��23, 37 Sirin Yilmaz v Turkey (2004) ECHR 405��126, 133, 172 Slimani v Turkey, Application No 57671/00, Judgment of 27 July 2004��129

xxii Table of Cases Stephens v Cyrpus, Turkey and United Nations, Application No 45267/06, Judgment of 11 December 2008��92 Stewart v UK (1984) 7 EHRR 453��26, 37 Süheyla Aydin v Turkey (2005) ECHR 325��117, 208–09 Sultygov and Others v Russia (2014) ECHR 1046�� 124, 158, 205–08, 217 T Tahsin Acar v Turkey (2004) ECHR 149 ��129 Tangiyeva v Russia (2007) ECHR 1001��135, 143 Tanis and Others v Turkey (2005) ECHR 561��185 Tanrikulu v Turkey (1999) ECHR 55 �� 133, 138–39, 162, 183, 205, 208 Tarariyev v Russia, Application No 4353/03, Judgment of 14 December 2006��162 Tarbuk v Croatia (2012) ECHR 2049��197 Taş v Turkey (2000) ECHR 577�� 7, 109, 116, 118, 162 Taydas v Turkey (2013) ECHR 1184�� 75–76 Taysumov and Others v Russia (2009) ECHR 777��35, 207–08 The Holy Monasteries v Greece (1994) ECHR 49��70 Timurtas v Turkey (2000) ECHR 222�� 6–7, 109, 114–16, 162, 206 Togcu v Turkey (2005) ECHR 349��208 Tomasi v France (1992) ECHR 53 ��112 Tovbulatova and Others v Russia (2013) ECHR 1066 ��25 Turkmen v Turkey, Application No 43124/98, Judgment of 19 December 2006��173 Turluyeva v Russia (2013) ECHR 566 ��25, 98 U Umarova and Others v Russia (2012) ECHR 1667 ��25, 146 Umayevy v Russia (2012) ECHR 995��25 Usta and Others v Turkey (2008) ECHR 169�� 24, 43, 45, 69, 71, 75 V Varnava and Others v Turkey (2009) ECHR 1313�� 87, 93, 95, 99–100, 103–04, 110, 120 Velikova v Bulgaria (2000) ECHR 198��126, 205 Vladimir Fedorov v Russia (2009) ECHR 1242��173 Vladimir Romanov v Russia (2008) ECHR 693��173 Vo v France (2004) ECHR 326��55, 172–73 Vosgien v France (2013) ECHR 912��184 W W v UK, Application No 9749/82, Judgment of 8 July 1987��163 X X v UK (1981) ECHR 6��92 Y Yasa v Turkey (1998) ECHR 83��93, 133, 144, 161, 168, 174, 185 Yasin Ates v Turkey (2005) ECHR 351 ��208

Table of Cases xxiii Yesil and Sevim v Turkey, Application No 34738/04, Judgment of 5 June 2007��197 Yüksel Erdogan and Others v Turkey, Application No 57049/00, Judgment of 15 February 2007 �� 24, 43, 45, 75 Z Z and Others v UK (2001) ECHR 333��21 Zubayrayev v Russia (2008) ECHR 29��135 Inter-American Commission on Human Rights and Inter-American Court of Human Rights A Anzualdo Castro v Peru, Inter-American Court of Human Rights (Ser C) No 202, Judgment of 22 September 2009��195 B Bámaca-Velásquez v Guatemala, Inter-American Court of Human Rights (Ser C) No 70 (2000), Judgment of 25 November 2000��96, 124 Barrios Altos v Peru, Inter-American Court of Human Rights (Ser C) No 75 (2001), 14 March 2001��195 Barrios Altos v Peru, Inter-American Court of Human Rights (Ser C) No 87 (2001), Judgment of 30 November 2001��195 C Case 10.287 (El Salvador), Inter-American Commission on Human Rights Report No 26/92, 24 September 1992��195 Case 10.480 (El Salvador), Inter-American Commission on Human Rights, Report No 1/99, 27 January 1999��195 G Gelman v Uruguay, Inter-American Court of Human Rights (Ser C) No 221, Judgment of 24 February 2011��195 Godinez Cruz v Honduras, Inter-American Court of Human Rights (Ser C) No 8, Judgment of 20 January 1989��113 H Heliodoro Portugal v Panama, Inter-American Court of Human Rights (Ser C) No 186, 12 August 2008��87 M Montero-Aranguren et al (Detention Centre of Catia) v Venezuela, Inter-American Court of Human Rights (Ser C) No 150 (2006), Judgment of 5 July 2006��36 P Paniagua Morales et al, Inter-American Court of Human Rights (Ser C) No 37 (1998), Judgment of 8 March 1998��126

xxiv Table of Cases T The Massacres of El Mozote and Nearby Places v El Salvador, Inter-American Court of Human Rights (Ser C) No 252, Judgment of 25 October 2012��195 V Velasquez Rodriguez, Inter-American Court of Human Rights (Ser C) No 4 (1988), Judgment of 29 July 1988��113 International Court of Justice Right of Passage (Portugal/India), ICJ Rep 1960��102 International Court of Justice Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 8 July 1996��235 Permanent Court of International Justice Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Rep Ser A/B No 77��102 International Criminal Tribunal for the former Yugoslavia Prosecutor v Blaskic, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule and Additional Filings, IT-95-14, 26 September 2000��143 United Nations A Abubkara Amirov and Aïzan Amirova v Russian Federation, CCPR/C/95/D/1447/2006, 2 April 2009��158 M Mojica v Dominican Republic, CCPR/C/51/D/449/1991, Judgment of 10 August 1994��114 Domestic Courts Chile Videla Case, Chile, Appeal Court of Santiago (Third Criminal Chamber), Judgment of 26 September 1994��191 Ethiopia Mengistu and Others, Ethiopia, Special Prosecutor’s Office, Judgment of 23 May 1995��191 Italy Hass and Priebke, Italy, Military Tribunal of Rome, Judgment of 22 July 1997��191 Russia Russian Constitutional Judgment of 5 February 2007, No 2-P��235

Table of Cases xxv Turkey Turkish Constitutional Court, 2013/2187, Judgment of 19 December 2013�� 235–36 United Kingdom A Application by David Adams for Judicial Review [2001] NICA 2��153 Application by Hugh Jordan for Judicial Review [2004] NICA 29��136 Application by Jean McBride for Leave to Apply for Judicial Review and Decision of the Minister of State for the Armed Forces [2003] NIQB 72��175 Attorney General for Northern Ireland’s Reference No 1 [1976] NI 169��64, 214 Attorney General for Northern Ireland’s Reference No 1 [1977] AC 105��64, 214 D D [1984] AC 778��107 H Harvey v R [2009] EWCA Crim 496��66 R R v Clegg [1995] 1 AC 482 HL��65 R v DPP ex parte Patricia Manning and Elizabeth Manning, Unreported Judgment of 17 May 2000��153 R v Hegarty (1986) 12 NIJB 25��43 R v Jones [1975] 2 NIJB��50, 63, 214 R v McInnes [1971] 55 Cr App R 551��65 R v Oatbridge (1991) 94 Cr App R 367��65 R v Robinson (1984) 4 NIJB��65 R v Thain [1985] NI 457��63, 65, 175 R v Williams (Gladstone) [1987] 3 ALL ER 411��27, 65 R (Bennett) v HM Coroner for Inner London [2007] EWCA Civ 617��27 R (Middleton) v West Somerset Coroner [2004] 2 All ER 465��136 R (Smith) v Oxfordshire Assistant Deputy Coroner [2008] EWHC 694��81, 85 R (Smith) v Secretary of State for Defence [2010] UKSC 29��81, 85 Re McCaughey and Ancor [2011] UKSC 20�� 100–01 Re McKerr [2004] UKHL 12��100 S Shaw (Norman) v R [2001] UKPC 26��66 Smith and Others v the Ministry of Defence [2013] UKSC 41��81, 85 T Three Applications by Hugh Jordan for Judicial Review [2014] NIQB 11��178

xxvi

1 Introduction The European Convention on Human Rights should be an instrument of development and improvement rather than an ‘end game’ treaty which froze the state of affairs that existed 60 years ago. Kanstantsin Dzehtsiarou1

T

HE WORDS OF Dzehtsiarou ring true when considering Article 2 of the European Convention on Human Rights (ECHR), a provision that in its current form is incomplete and outdated. This raises the question of whether Article 2 as it stands is enough to protect the right to life. Unjustified killings, by state actors and due to state omissions, are continuing in Europe, making the words ‘never again’ that inspired the birth of human rights2 and the ECHR appear disingenuous. Should we just accept that death is a fact of life,3 and that ‘violence is inherently a human potential’?4 Or can more be done within the Council of Europe (CoE)’s legal system to deter this human potential and ensure that it remains ‘the exception [rather] than the norm’?5 With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It considers this within the time frame from when the ECHR entered into force on 3 September 1953 to the cut-off point for this book’s investigations on 31 March 2017. This book begins with the premise that Article 2 of the ECHR is outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within this provision. The book advocates modernisation of Article 2 through codifying developments in the form of guidelines. The guidelines, as a soft law instrument, are not binding. Yet they do clarify the scope of the enumerated and unenumerated minimum standards set by Article 2.6 Reflecting the ECHR’s format, and out of respect for the principle of subsidiarity, 1 K Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the ECHR’ (2011) 12(10) German Law Journal 1730, 1730. 2 E McClean, ‘The Dilemma of Intervention: Human Rights and the UNSC’ in M Odello and S Cavandoli (eds), Emerging Areas of Human Rights in the 21st Century: The Role of the UDHR (Routledge, 2012) 24. 3 P Wong, ‘Meaning Management Theory and Death Acceptance’ in A Tomer et al (eds), Existential and Spiritual Issues in Death Attitudes (Psychology Press, 2013) 66. 4 A Beyer, Inequality and Violence: A Re-appraisal of Man, the State and War (Ashgate Publishing Ltd, 2014) 39. 5 ibid. 6 Enumerated standards are expressly set out within the wording of Art 2. Unenumerated standards are standards that are implied within the text of Art 2. The unenumerated standards look at what

2 Introduction the provisions proposed are generalised and relate to obligations of the state. This makes it easier to gain the state support required for the proposed guidelines’ implementation. It also ensures that the correct balance is struck in terms of the ‘specification parameter’.7 This book looks beyond legislation and considers what improvements can be made by the CoE bodies—the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights—to encourage adherence to Article 2 and promote effective remedies to prevent future violations. The book focuses on the use of force. It uses the experience from four internal European conflicts—the Basque conflict, the Chechen conflict, the Northern Ireland (NI) Troubles and the Turkish-Kurdish conflict—to illustrate its points. The use of force poses the greatest threat to life. It is also an issue where the greatest consensus was reached. The book does not tackle more contentious questions such as when life begins (the termination of pregnancy debate) or if the right to life includes the right to die (the assisted suicide/euthanasia debate). Nevertheless, its findings are not limited to instances where force is used. The discussions on the scope of the negative and positive obligations have a more general application. Consequently, the guidelines aim to provide guidance on how to improve fulfilling, respecting and protecting the right to life in all contexts. They consider the minimum standards required to adequately protect life, to remedy a violation and to prevent future violations. This includes standards that the ECtHR offer clear guidance on, and those that require further clarification. The proposed guidelines are set out in the Appendix. The chapters preceding the Appendix justify the chosen wording.

I. METHODOLOGY

This research adopts a qualitative approach.8 A ‘“qualitative observation” identifies the presence or absence of something, in contrast to “quantitative observation”, which involves measuring the degree to which some feature is present’.9 Qualitative research ‘unfolds—it develops as the researcher learns more’.10 Due to the regional nature of this project and to ensure that this research is relevant and effective, a comparative element was introduced through looking at four case studies—the standards the ECtHR interpreted the right to life to contain. There are additional unenumerated standards that the ECtHR does not provide clear guidance on, but which are developed by other bodies such as the UN and the Inter-American Court of Human Rights. The CoE should consider these standards for inclusion within the proposed guidelines. 7 N Mavronicola, ‘What is an “Absolute Right”? Deciphering Absoluteness in the Context of Article 3 of the ECHR’ (2012) 12(4), Human Rights Law Review 723, 741–45. 8 J Kirk and M Miller, Reliability and Validity in Qualitative Research (Sage, 1986) 9; L Webley, ‘Qualitative Approaches to Empirical Legal Research’ in P Cane and H Kritzer (eds), The Oxford Handbook of Empirical Legal Research (OUP, 2010) 932. 9 Kirk and Miller (n 8) 9. 10 Webley (n 8) 932.

Methodology 3 Basque country, Chechnya, NI and the Kurdish issue in Turkey. Comparative law is ‘the only reliable way of accumulating knowledge of reality of law, and assessing problems that may arise … and giving warning signals where need be’.11 Comparative law can also: provide knowledge about ‘law as rules’, ‘law in context’ and ‘law as culture’, thus enabling us to have comprehensive and in-depth knowledge of the legal phenomena and their interactions in society. Comparative law draws from the pool of models to illustrate the general points it is making … Comparative law gives us a tool of communication.12

It is a ‘tool for the export of legal ideas and institutions and aiding law reform’.13 Comparative analysis also offers ‘new ways of finding solutions to legal problems and requires you to confront any assumptions (often unconscious) you may be holding about how legal systems should operate’.14 Thus it is a good fit for this research, which considers how the right to life can be better protected within Europe.

A. Justification for the Chosen Case Studies Conflict-related case studies raise challenges to the right to life which are not easily resolved by taking a superficial approach to Article 2. This right is most tested during times of conflict. The situations where force is used are increased, and the confusion that is created during such times of unrest can lead to intentional and unintentional disregard for life. Times of conflict offer the most overt examples of situations where the right to life is under threat and provide significant (often extreme) cases for analysis. The focus is on internal conflicts, as these have been the main source of unrest within Europe since World War II and offer the widest range of case law. It is limited to Article 2 of the ECHR (human rights instrument), as the states involved in the four case studies refused to recognise that an armed conflict existed within their jurisdiction. The states have viewed the oppositions’ actions as acts of terrorism and their response as counter-terrorism operations. Consequently they have denied that international humanitarian law (IHL) applies, while acceding that the full range of international human rights law (IHRL) applies. This is counterintuitive for states. IHRL places more restrictions on states than IHL treaties and limits their military capabilities to deal with opposition. This approach is for political as opposed to legal reasons. To ‘apply IHL is to tacitly concede that there is another “party” wielding power in the putatively sovereign State’.15 In other words, the benefits of legal compliance with IHRL outweigh ‘the political costs of 11 E Örücü, ‘Unde Venit, Quo Tendit Comparative Law?’ in A Harding and E Örücü (eds), Comparative Law in the 21st Century (Kluwer Academic Publishers, 2002) 5. 12 ibid 45. 13 ibid 6; H Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research (CUP, 1946) 2. 14 C Morris and C Murphy, Getting a PhD in Law (Hart Publishing, 2011) 37. 15 W Abresch, ‘A Human Rights Law of Internal Armed Conflict: The ECtHR in Chechnya’ (2005) 16(4) European Journal of International Law 741, 756.

4 Introduction these implied admissions of weakness’.16 Yet, for the purposes of this book, the approach offers an opportunity to consider what the highest standard of protection for the right to life entails. IHL allows the use of proportionate force against combatants when there is military necessity.17 This is a lower standard than IHRL, which only allows the use of force in very limited circumstances and only when absolutely necessary. Tragically, there are a number of internal European conflicts to choose from. Logistics dictated that all could not be analysed as required. The four case studies— the Basque conflict, the Chechen conflict, the NI Troubles and the TurkishKurdish conflict—were chosen for a number of reasons. Each case study is at a different stage in its conflict—NI is now a post-conflict society (though conflictrelated deaths continue),18 the Basque country has gained some autonomy,19

16

ibid 757. O Hathaway et al, ‘Which Law Governs During Armed Conflict? The Relationship Between IHL and IHRL’ (2012) 96 MLR 1883, 1928. 18 The period of time referenced in this book for the NI conflict is 1969 to March 2017. ‘The Troubles’ references from 1969 to the signing of the Belfast (Good Friday) Agreement in 1998. After this, NI was in post-conflict, but violent incidents linked to the Troubles continued. McKittrick and McVea stated that ‘the troubles which broke out in the late 1960s had roots going back many decades, for NI never resembled a place at peace with itself … A stream of incidents, large and small, testified to deep and dangerous fault lines in the society. Viewed from this perspective, the troubles can be seen as a more violent expression of existing animosities and unresolved issues of nationality, religion, power and territorial rivalry’. These incidents evolved into violence involving Republican paramilitaries (wanting a united Ireland), Loyalist paramilitaries (wanting to remain part of Britain), British security forces, the RUC, British Special Branch, Irish security forces and inevitably civilians. Rarely a day went by during the 30-year Troubles which did not involve violence. State and non-state actors regularly committed unjustified killings. According to official statistics between 1969 and 2003 there were 36,923 shooting incidents, 16,209 bomb incidents and 2,225 incendiary incidents. By March 2017, the conflict in NI had cost 3,740 lives—2,097 civilians, 1,018 security forces, 398 Republican paramilitaries, 168 Loyalist paramilitaries and 59 unclassified—with thousands more injured. See D McKittrick and D McVea, Making Sense of the Troubles (Penguin Books, 2001) 1; M Melaugh et al, ‘Security and Defence’, http://cain.ulster.ac.uk/ni/security.htm—06; S Rogers, ‘Deaths in NI conflict since 1969’, The Guardian, 10 June 2010; D McKittrick et al, Lost Lives: The Stories of the Men, Women and Children Who Died as a Result of the NI Troubles (Mainstream Publishing, 2012) 1552–60; M Melaugh, ‘Draft List of Deaths Related to the Conflict from 2002 to the Present’, http://cain.ulst.ac.uk/issues/violence/ deathsfrom2002draft.htm. 19 Aiartza and Zabola stated that ‘there is no unanimous agreement when it comes to determining the reasons for the so-called Basque conflict. According to different sources, it is either a long conflict with historical roots, an instrument of Basque nationalist politics, an attempt to impose a privilege, or evidence of the State’s obstinacy’. Historically the Basque country (Euskal Herria or Euskadi) consists of seven provinces across areas under Spanish and French sovereignty. The northern part (Iparralde) includes the provinces of Lapurdi, Xiberus and Lower Nafarror and governed by France. Nafarrora, Bizkaia, Guipuzkoa and Alava form the southern part (Hegoalde), which is under Spanish control. Bizkaia, Guipuzkoa and Alava have enjoyed some autonomy since 1978. The period of the Basque conflict covered by this book is 1960 to March 2017. Due to the oppression of Basques in Spain d uring Franco’s regime, ETA was formed in 1950 and developed into a violent organisation in the 1960s. Its violent acts were initially aimed at state actors, such as police officers, judges and politicians. ETA’s aim was independence for Basques. After Franco’s death in 1975 a new Constitution was introduced. This gave Basques some autonomy, but not independence, and ETA expanded its campaign to include civilians. The Spanish government responded disproportionately by creating the BVE and GAL. These were death squads tasked with seeking out not only ETA members, but also civilians who supported separatism of any form. Consequently, Basque civil society members were often ‘trapped between an increasingly violent ETA who condemned those that did not voice enough nationalist sentiment, and 17

Methodology 5 Chechnya’s conflict has officially ended but unjustified killings continue,20 and Turkey is struggling to reach a peaceful solution.21 This provides an opportunity to see how adherence to the right to life has improved or regressed, and to consider the role that the CoE’s human rights system has played in this. Each case study experienced different levels of killing, with approximately 1,081 in the Basque the Spanish government who were actively prosecuting those who did’. As a result many were either killed, forced into exile or lived in fear of ETA and state agents. In October 2011 ETA announced a definitive ceasefire which has held, but a peace agreement remains outstanding. It is estimated that 1,081 were killed during the Basque conflict. These include 177 suspected rebels, one French National Gendarmerie, 485 members of the Spanish security forces, 343 civilians and 75 uncategorised. These deaths were the result of state actions and the actions of organised non-state actors. See U Aiartza and J Zabola, ‘The Basque Country: The Long Walk to a Democratic Scenario’ (Berghof Conflict Research, 2010) 7; LM Ward et al, ‘Basque Country Conflict Map’ (University of St Andrews, Centre for Peace and Conflict Studies, 2010); ‘Autoria de las muertes (datos globales)’, Guernika Peace Museum, Permanent Exhibition, 17 September 2012; M Carmena et al, ‘Base Report on Human Rights Violations in the Basque Country Case (1960–2013)’ (OSGPSH, 2013) 7–12. 20 The Republic of Chechnya and Russia share a violent history. The focus is on the modern-day conflicts between these two parties—December 1994 to August 1996 and September 1999 to April 2009. Politkovskaya felt that ‘the war in Chechnya appears terribly overdetermined. That is, there are too many factors, each of which should suffice to cause the war: historical legacies, imperial geopolitics, political instability, oil, Islam, organised crime, and now atop of all that, al Qaeda. Different scholars have proposed sophisticated explanations based on any combination of these factors. And then there is the informed decision of General Alexander Korzhakov … that decisions that continue to puzzle political analysts were, in fact, influenced by hangover or indigestion’. The first conflict, sparked by Russian troops entering Chechnya to quash the independence movement, has no exact figure for the number of deaths that occurred. A conservative figure is 7,500 Russian soldiers and border guards, 4,000 Chechen fighters and 80,000 civilians. Some the Russian soldier deaths were a a consequence of inadequate equipment, insufficient training, poor healthcare, inadequate diets and institutional bullying. The period between the first and second conflict could not be referred to as a peaceful time. Chechnya had de facto control, but with Russia exerting significant control over Chechnya’s government, sporadic violent attacks from Chechen rebels against Russia and Chechen officials continued. As the Chechen and Russian governments’ responses to these attacks intensified, so did the violence. Russia invaded again in September 1999. By May 2000 Russia had regained territorial control and over the next three years constitutionalised its control of the Chechen government. The intensity of the violence gradually reduced and the second conflict was declared over in April 2009. However, the separatist struggle remains, with a continuation in sporadic attacks within Chechnya and Russia. There were also a number of questionable deaths that can be traced back to Chechen President Kadyrov’s command, such as that of the human rights activist Natalia Estemirova who was killed days after accusing Chechen forces of extra-judicial killings. In 2005 it was estimated that 25,000 civilians, 20,000 Russian combatants and 20,000 Chechen rebels were killed in the second Chechen conflict. It is also estimated that between 3,000 and 5,000 were disappeared, most presumed dead. The blame for these disappearances lies mainly with the Russian forces that often rounded Chechens up during purges and at checkpoints. Chechen rebels also carried out similar operations, though this subject is ‘taboo in Chechnya’. Despite an alleged return to normalisation, Chechnya is still not at peace and the death toll continues to rise. See A Politkovskaya, A Small Corner of Hell: Dispatches from Chechnya (University of Chicago Press, 2007); S Smith, Allah’s Mountains: The Battle for Chechnya (Tauris Parke Paperbacks, 2012); T Goltz, Chechnya Diary: A War Correspondent’s Story of Surviving the War in Chechnya (Thomas Dunne Books, 2003); A Politkovskaya, A Dirty War: A Russian Reporter in Chechnya (Harvill Press, 2001); J Russell, Chechnya: Russia’s ‘War on Terror’ (Routledge, 2007); A Seierstand, The Angel of Grozny: Life Inside Chechnya (Virago, 2009); M Haynes and R Husan, A Century of State Murder? Death and Policy in Twentieth-Century Russia (Pluto Press, 2003); A Babchenko, One Soldier’s War in Chechnya (Portobello Books Ltd, 2008); ‘Chechen official puts death toll for 2 wars at up to 160,000’, The New York Times, 16 August 2005; HRW, ‘Chechnya: “Disappearances” a Crime Against Humanity’, 21 March 2005. 21 Southeast Turkey, also known as Turkish Kurdistan or Northern Kurdistan, is home to the majority of 20 to 25 million Kurds that are under Turkish control. This area is the main focus of the

6 Introduction conflict (1960–present),22 156,500 in the Chechen conflict (1999–2009),23 3,740 in the NI conflict (1969–present)24 and 43,586 in the Turkish-Kurdish conflict (1974–present).25 This offers the opportunity to assess improvements in a variety of scenarios, from cases of an individual act to potential administrative practices. The relationship between these conflicts and the ECtHR is also a factor. The NI cases (eg McCann v UK (1995)26 and Hugh Jordan v UK (2001))27 encapsulate the Court’s first dealings with Article 2. The Turkish cases (eg Timurtas v Turkey

present-day conflict concerning the Kurdish question in Turkey. Yildiz and Breau attribute the TurkishKurdish conflict to ‘decades of State policy that denied the existence of a distinctive Kurdish identity in Turkey, combined with the limitations [on] political participation and a crackdown on freedom of association following the 1971 and 1980 military coups, [led] to a number of political groups, including those on the extreme left and right, to advocate the use of violence to achieve political objectives’. These objectives have changed over time, but in general terms include ending Turkish oppression against Kurds, and providing Kurds with democratic rights, including the opportunity and freedom to develop some form of autonomy, if not independence. Since the founding of the Turkish Republic as an indivisible secular Turkish state in October 1923, the Kurdish people and their culture have been a target of oppression: Kurdish schools, books and organisations were banned; Kurdish areas were placed under Turkish military control; Kurds were subject to compulsory assimilation under the 1930s Settlement Law; Kurdish villages were given Turkish names; Kurds were no longer recognised as a race, but as ‘Mountain Turks’; and any perceived opposition was suppressed under the Law of Maintenance Order. Kurdish rebellions and Turkish brutality have sporadically occurred since the 1930s. The focus is on the most recent conflict that began with the emergence of the Kurdish Workers’ Party (PKK) in 1974 and continued in March 2017. An originally peaceful organisation, the PKK turned to violent tactics in the mid-1980s. Over the course of this conflict, extra-judicial killing, enforced disappearances and torture were carried out by both state and non-state actors. Due to the sheer number of deaths and the number of disappearances it is difficult to determine the exact numbers killed during the TurkishKurdish conflict. There is also significant disparity between the figures provided by the state and those by non-state actors. Since 1984 it is conservatively estimated that at least 43,586 people were killed. Of these 5,994 were civilians, 30,357 were members of opposition forces such as the PKK, and 7,235 were members of the state security forces. An additional 3 million were displaced and over 3,000 villages were destroyed in the Kurdish region. A significant, but undefined number, has also disappeared, presumed dead. The present-day Turkish-Kurdish conflict experienced spates of tenuous ceasefires, with the most recent between March 2013 and July 2015, but each time the negotiations collapsed and the violence returned. See K Yildiz and SC Breau, The Kurdish Conflict: International Humanitarian Law and Post-Conflict Mechanisms (Taylor and Francis, 2010); N Entessar, Kurdish Ethnonationalism (Lynne Rienner Publishers, 1992) 82; A Öcalan, War and Peace in Kurdistan (Transmedia Publishing, 2011); A Öcalan, Prison Writings: The PKK and the Kurdish Question in the 21st Century (TMP Distribution, 2011); K McKiernan, The Kurds: A People in Search of their Homeland (St Martin’s Press, 2006); D Natali, The Kurds and the State: Evolving National Identity in Iraq, Turkey and Iran (Syracuse University Press, 2005); M Chulov, ‘Ascendant Kurds emerge from Syrian civil war as major power player’ The Guardian, 1 August 2015; N Robins-Early, ‘A fragile peace between Turkey and the Kurds is collapsing’ The World Post, 28 July 2015; B Mandiraci, ‘Turkey’s PKK Conflict: The Death Toll’, International Crisis Group, 20 July 2016. 22 Guernika Peace Museum (n 19); M Carmena et al, ‘Base Report on Human Rights Violations in the Basque Country Case (1960–2013)’ (Office of the Secretariat General for Peace and Social Harmony, 2013) 7–12. 23 Haynes and Husan (n 20) 195–96; ‘Chechen official puts death toll for 2 wars at up to 160,000’ (n 20). 24 Rogers (n 18); D McKittrick et al, Lost Lives (Mainstream Publishing, 2007) 1552–60; Melaugh (n 18). 25 Yildiz and Breau (n 21) 16; Mandiraci (n 21). 26 McCann v UK (1995). 27 Hugh Jordan v UK (2001).

Methodology 7 (2000)28 and Taş v Turkey (2000))29 provide an insight into how the Court began to tackle states’ lack of cooperation. The Chechen cases (eg Aslakhanova v Russia (2012)30 and Malika Yusupova v Russia (2015))31 offer an up-to-date analysis of the ECtHR’s interpretation of Article 2 and summarise the Court’s developments in relation to systematic violations. Furthermore, the high quantity of cases concerning these three conflicts offered a wide data-set to draw from. No Article 2 cases related to the Basque conflict have come before the ECtHR; this raises the question of why not?

B. Research Subjects and Documents This book analyses the jurisprudence of the ECtHR. It looks at the domestic laws related to the right to life in the jurisdictions concerning the four case studies—Basque country (France and Spain), Chechnya (Chechnya and Russia), NI (Ireland and UK) and Kurdish issue in Turkey (Turkey). It considers other legal examples and expert commentary on issues that lack clarity within the ECHR’s jurisprudence and legislation. These include the jurisprudence of the Inter- American Court of Human Rights (IACtHR); Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions 1989 (the 1989 Principles);32 the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions 1999 in its proposed model autopsy protocol (the Minnesota Protocol); and the International Convention for Protection of All Persons from Enforced Disappearances 2006 (ICED). It also draws from 12 semi-structured interviews with professionals who are familiar with the ECHR, have some form of relationship with the ECtHR and have knowledge of one or more of the internal conflicts. All interviews were recorded with the informed consent of the interviewee. Any quotes used received prior approval from the relevant interviewee. Interviewees were also offered the opportunity to remain anonymous. To tackle the challenge of ‘boundaries, borders, jurisdictions, treaty relations and legal traditions’33 that can be created by a comparative analysis, a balance between the ‘case-book’ (bottom-up) approach and the ‘European Principles’ (top-down) approach was adopted.34 A good understanding of the social, political and cultural context of each case study was achieved by using primary sources 28

Timurtas v Turkey (2000). Taş v Turkey (2000). 30 Aslakhanova and Others v Russia (2012). 31 Malika Yusupova and Others v Russia (2015). 32 E/1989/65 (1989), ‘Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions’, 24 May 1989. 33 W Twining, ‘Globalisation and Comparative Law’ in E Örücü and D Nelken, Comparative Law: A Handbook (Hart Publishing, 2007) 71. 34 W van Gerven, ‘Comparative Law in a Regionally Integrated Europe’ in A Harding and E Örücü, Comparative Law in the 21st Century (Kluwer Academic Publishers, 2002) 155. 29

8 Introduction (eg constitutions; legislation; regulations; political agreements; and domestic judicial decisions). Secondary sources were also examined (eg academic commentary; state reports, non-governmental submissions; and European/international body opinions and declarations/resolutions). Drawing from such a range of sources created a balance between the ‘virtually there’ and ‘researching there’ methods.35 Drawing from formal communications provided additional balance and enabled the researcher to ‘elicit the meaning of the words as used in the document, rather than using the researcher’s own understanding of the words and their meanings’.36 By visiting all but one of the conflict/post-conflict zones to conduct third party observation research,37 the researcher gained a better insight into each conflict and its ramifications. This was achieved through visiting museums, observing political activism and unrecorded discussions with locals. i. Challenges Conducting research on these four conflicts was not without its challenges. Locating, translating and analysing sources in eight different languages was time-consuming, but manageable through using various English sources from non-governmental organisations and legal databases to corroborate the translations. Establishing contacts related to each of the conflicts to organise and conduct interviews was initially problematic, but was overcome through intermediaries. Corroborating theories concerning the Basque conflict was difficult. Due to the intimidation to which lawyers, journalists and human rights activists continue to be subjected by the Spanish state, obtaining contact details and receiving responses was troublesome. The non-existence of ECtHR jurisprudence directly related to Article 2 and the Basque conflict also made corroboration of analysis challenging. This was resolved through the interviews conducted and the secondary sources used. Issues of personal safety made a trip to Chechnya to conduct third party observation research inadvisable. This was overcome by travelling to London to meet with key experts on Chechnya.

C. Data Analysis This research follows a ‘grounded theory’ method of analysis.38 This approach was adopted as it is ‘pragmatic yet theoretical’.39 It allows the researcher to understand

35 D Nelken, ‘Doing Research Into Comparative Criminal Justice’ in R Banakar and M Travers, Theory and Method in Socio-Legal Research (Hart Publishing, 2005) 250. 36 Webley (n 8) 939. 37 ibid. 38 B Glaser and A Strauss, The Discovery of Grounded Theory: Strategies of Qualitative Research (Aldine, 1967); Webley (n 8) 929–30. 39 ibid.

Methodology 9 an area, by developing and refining a theory as more is learned about the area.40 The analysis follows three stages. The first stage is to analyse documents, interview transcripts and observation notes. This began with investigating the obligations that exist within Article 2 of the ECHR using ECtHR jurisprudence and the writings of Dickson,41 Doswald-Beck,42 Harris,43 Akandji-Kombe,44 Korff,45 Reid,46 Rehman,47 Wicks48 and White and Ovey.49 The findings from these sources were compared ‘line by line, document by document’ to ensure that the observations were ‘producing replicable concepts rather than one-off observations’.50 This involved taking note of what was being read and the researcher’s reactions to the sources or any associations that sprang to mind to create ‘open coding’.51 This coding was used to refine concepts and, as a basis for the axial coding,52 formed stage two. Axial coding was conducted which enabled theoretical categories to be formulated through taking the ‘lead from the data rather than trying to impose a particular theoretical approach on the process’.53 This was satisfied by developing thematic investigations of right to life obligations, which formed the chapter structure. The final stage involved developing a ‘core concept, theory or conclusion’.54 This meant the codification of the minimum standards set by Article 2 within a set of soft law guidelines aimed at informing applicants, states, judges and commentators of the scope of the right to life that is not immediately obvious from the current text of Article 2. Furthermore, this research makes recommendations to the CoE bodies on how to improve their guardianship of this right, to help ensure practical and effective protection.

D. Research Questions This book makes suggestions on how the CoE’s system of protection can be improved with minor tweaking. It focuses on the substantive content given to the right to life in highly conflicted societies. It does not assess the effectiveness of the CoE system in reducing the conflicts in question, but considers the content 40 ibid. 41

B Dickson, The ECHR and the Conflict in NI (OUP, 2010). L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011). 43 D Harris et al, Harris, O’Boyle and Warbrick: Law of the ECHR (OUP, 2009). 44 JF Akandji-Kombe, Positive Obligations Under the ECHR: A Guide to the Implementation of the ECHR (CoE, 2007). 45 D Korff, ‘The Right to Life: A Guide to the Implementation of Article 2 of the ECHR’ (CoE, 2006). 46 K Reid, A Practitioner’s Guide to the ECHR (Sweet & Maxwell, 2011). 47 J Rehman, International Human Rights Law (Longman, 2010). 48 E Wicks, The Right To Life and Conflicting Interests (OUP, 2010). 49 R White and C Ovey, Jacobs, White and Ovey: The ECHR (OUP, 2010). 50 Webley (n 8) 944. 51 ibid. 52 ibid. 53 B Glaser, Basics of Grounded Theory Analysis: Emergence vs Forcing (Sociology Press, 1992). 54 Webley (n 8) 944. 42

10 Introduction that needs to be given to the right to life in such circumstances. This is particularly relevant as it is often difficult to hold states to account in a conflict situation. Focusing on Article 2 of the ECHR and jurisprudence of the ECtHR, and drawing from additional sources when required, it poses the overarching question of how the right to life can be better protected within a European context. This includes consideration of: —— —— —— —— —— ——

What are the main violations? What is causing these violations? What could be made clearer in relation to Article 2? What gaps exist within Article 2 and the ECtHR jurisprudence? What role do other bodies within the CoE have to play? What are the limitations of the European system?

Reflecting the ECHR, this is from the standpoint of the obligations on state actors. It does not rule out the possibility of non-state actors conducting unjustified killings, which was the case in each of the four case studies.55 Non-state actors are expected to adhere to national laws (including homicide laws), but the responsibility to ensure this lies with the state. This book adopts a thematic approach towards answering these questions, which is reflected in the chapter structure. Chapter 2 examines the origins of the right to life and the evolution of this right in Europe. It establishes the basis for the recommended guidelines to Article 2 of the ECHR—the need for clarity; the lack of awareness at a domestic level of the substantive scope and content of duties arising under Article 2; and the principle of subsidiarity. Drawing from the ECtHR’s jurisprudence, Chapter 3 explores the negative obligation to refrain from an unjustified killing contained within Article 2. It considers the limitations placed on the use of force by Article 2(2). It focuses on the use of force used by state actors in the four case studies to demonstrate the areas where Article 2 requires additional codification and how the ECtHR should be more robust in challenging domestic legislation. The duty to protect life has a number of sub-obligations. Chapter 4 analyses the positive obligation to protect life by law, which is enumerated within Article 2(1). Chapter 5 considers the other sub-obligations—the duty to adequately plan operations and the duty to prevent real and immediate risks to life. Both chapters consider the scope of these obligations, which aim to prevent an unjustified killing. Chapter 6 assesses the failings of the CoE system to protect against enforced disappearances, which are prevalent during times of conflict. Drawing from the

55 Ward (n 9) 9; ‘ETA blamed for journalist’s killing’, BBC News, 7 May 2000; P Woodworth, The Basque Country: A Cultural History (Signal Books Limited, 2010) 173; J Burns, ‘Basque separatists halt campaign of violence’, The New York Times, 20 October 2011; ‘Timeline: ETA campaign’, BBC News, 20 October 2011; B Renfrew, ‘Chechnya’ (Crimes of War Project, 2011); McKittrick (n 18) 1551–69; McKiernan (n 18) 99–102.

Methodology 11 ICED, it recommends a European definition of enforced disappearance is created. It considers the concessions that the ECtHR has made regarding the duty to investigate and how the burden of proof has shifted to the state to ensure that violations of life in cases of enforced disappearances are addressed. It also recommends that the ECtHR prohibits enforced disappearances and takes steps to improve cooperation between the various CoE bodies. Chapter 7 considers the duty to investigate suspicious deaths. It identifies the purpose of this duty and the components contained within. It draws from the jurisprudence of the ECtHR, the 1989 Principles, the Minnesota Protocol and the ICED to consider the full scope of this obligation. Chapter 8 assesses the special relationship between Articles 2 and 13 (right to an effective remedy) of the ECHR. It analyses the jurisprudence of the ECtHR to establish what is expected of a domestic remedy. It pinpoints areas that require further consistency and clarification within the case law, such as the CoE’s position on the duty to prosecute. Drawing from the four case studies, it considers the options available when an effective remedy is not provided by the state. Chapter 9, using examples from the four case studies, discusses the challenges posed to the effective implementation and enforcement of the obligations contained within Article 2. These include the existence of collusion; the presence of intimidation; the use of statute of limitations; and the utilisation of amnesties and pardons. These challenges are particularly common during times of conflict. Chapter 10 looks directly at the various bodies of the CoE—the ECtHR, the CoM, the PACE and the Commissioner on Human Rights. It assesses how the CoE mechanisms are not operating to their full capacity. A number of challenges have arisen that are not always dealt with appropriately. It considers five challenges that are prevalent during times of conflict: the lack of cooperation that exists regarding Article 2 investigations; the ECtHR’s struggle with systematic violations; the imbalance that exists when awarding compensation as a remedy; the politicisation of the CoE’s human rights bodies; and the lack of awareness of the ECHR more generally. The above chapters develop the justification for the creation of the recommended Article 2 guidelines. The Appendix provides an example of what these guidelines would look like.

2 Introducing Guidelines on Article 2 Making a Case

I

T IS EASY to declare that guidelines concerning Article 2 of the ECHR should be created, but such a proposal requires justification. This chapter lays the foundations. It offers a greater understanding of the origins of the right to life and how it has developed within Europe. It identifies gaps in the process, which are expanded upon in the subsequent chapters. It also sets out reasons for the creation of the proposed guidelines—to offer clarity; to enhance awareness; and to protect the principle of subsidiarity.

I. ORIGINS OF THE RIGHT TO LIFE

Human rights and fundamental freedoms are the birthright of all human beings ‘without distinction as to race, sex, language or religion’.1 They are all recognised as ‘universal, interdependent, indivisible and interrelated’.2 That is not to say that core rights do not exist. Core rights are those that are central to the existence of other rights; they are rights from which other rights emerge. The right to life fits within this category, with the United Nations (UN) Human Rights Committee (CCPR) declaring it to be a ‘supreme right’3 and the ECtHR ranking it as ‘one of the most fundamental provisions in the ECHR’.4 In other words, the existence of and adherence to the right to life is paramount, because without life any enjoyment of other rights is impossible. Also once life is taken away, it is impossible to undo the wrong that was done. The fundamentality of the right to life is reflected in its extensive protection within international and national laws. It is also one of the few non-derogable rights, except where lawful acts of war are concerned. In such scenarios IHRL, such as Article 2, is superseded by IHL principles.5 1 A/CONF.157/23, ‘Vienna Declaration and Programme of Action’, 25 June 1993, para 5; GA/RES/60/1, ‘World Summit Outcome Document’, 24 October 2005, para 9; GA/RES/60/251, ‘Human Rights Council’, 3 April 2006, preamble and para 1. 2 GA/RES/60/251 (n 1) reamble. 3 CCPR, ‘General Comment No 6: The Right to Life’, 30 April 1982, para 1. 4 McCann v UK (1995) paras 147 and 150. 5 Art 15(2), ECHR.

Origins of the Right to Life 13 The concept of a right to life has been reflected within domestic laws (primarily laws criminalising homicide) for centuries. In the context of international law, it was first awarded protection within the customary laws of war.6 It has since become a core right for a range of human rights instruments and national laws. It was sculpted into a fundamental human rights principle by the American Declaration on the Rights and Duties of Man 1948 (ADRDM) and the Universal Declaration of Human Rights 1948 (UDHR). Due to the prominent existence of the death penalty at the time, the respective framers opted to pair the right to life with the right to liberty and security.7 The right to life was first recognised as a standalone right in Article 2 of the ECHR. Subsequent human rights instruments followed this format: the right to life is enumerated as a standalone right within Article 6(1) of the International Covenant on Civil and Political Rights 1966 (ICCPR), Article 6 of the Convention on the Rights of the Child 1989 (CRC), Article 10 of the United Nations Convention on the Rights of Persons with Disabilities 2006 (UNCRPD) and Article 2 of the Charter of Fundamental Rights of the European Union 2007. The right to life is awarded further protection (of a more implicit nature) in Article 33 of the Convention Relating to the Status of Refugees 1951, Articles 6–8 of the Rome Statute of the International Criminal Court 1998 and in an array of internationally recognised principles and safeguards.8 These provisions set a minimum standard, which must be adhered to by the relevant High Contracting Parties (HCP). The core of a right ‘is to be considered as a floor, not a ceiling’.9 The expectations attached to the right to life differ from jurisdiction to jurisdiction, which can result in conflicting interpretations. Some states adopt as limited an interpretation of the right to life as possible and others expand its scope beyond what was originally intended. For example, the Supreme Court of India ruled that the right to life included the right to sleep peacefully.10 The fundamentality of this right make it important to pinpoint the scope of the right to life, clarify the obligations it imposes and establish who is responsible for upholding these obligations. This book considers this within a European context, which requires focusing on Article 2 of the ECHR. It illustrates how this provision is not as clear as it should be. It examines how the guardians of the Convention—the ECtHR with 6

Art 23, Hague Regulations 1907. Art 3, UDHR states: ‘Everyone has the right to life, liberty and security of person’. ‘Code of Conduct for Law Enforcement Officials’, 17 December 1979; E/CN.4/1985/4, UNESC, ‘Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR’, 1985; E/1984/50, UNESC, ‘Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty’, 25 May 1984; E/1989/89, ‘Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions’, 1989; UNCPCTO, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 27 August to 7 September 1990; A/C.3/65/L.29/Rev 1, ‘Extrajudicial, Summary or Arbitrary Executions’, 12 November 2010. 9 R O’Connell, ‘Opening Remarks’, Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014; Brecknell v UK (2007) para 70. 10 D Mahapatra, ‘Right to Sleep a Fundamental Rights, Says Supreme Court’, The Times of India, 25 February 2012. 7

8 GA/Res/34/169,

14 Introducing Guidelines on Article 2 the assistance of the CoM, the PACE and the CoE Commissioner for Human Rights—are not being as diligent as they should. It looks at how issues (such as a lack of cooperation from states, failure to deal with systematic violations, overuse of compensation as a remedy, politicisation of the CoE bodies, and lack of awareness of the ECHR and its case law within states) remain unaddressed and are hindering compliance with Article 2. It also considers how states pick and choose when to adhere to Article 2, and to what extent. Human rights mechanisms must convey a strong message that violations of the right to life are not to be tolerated. Therefore, these issues must be addressed to improve protection of the right to life within Europe. This book draws from four internal European conflicts, which provide the most obvious examples of these failings. The recommendations focus on creating a set of guidelines that offer clarification on the scope of the express and implied obligations of Article 2. These guidelines identify the minimum standards set by the text of Article 2 and codify the practical requirements of these standards provided by the ECtHR’s jurisprudence. They also include suggestions (drawn from other international sources) for issues that the ECtHR either fails to or has not had an opportunity to adequately address, but should be included as a minimum standard. Recommendations are also made for how to improve the workings of the various CoE bodies. The implementation of these suggestions will make it harder for states to actively violate Article 2 and will provide for improved remedies when violations do occur.

II. THE RIGHT TO LIFE IN EUROPE

Article 2 of the ECHR provides: 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 for the purpose of quelling a riot or insurrection.

The protections set out within Article 2 extend to all persons within the jurisdiction of the state that is bound by it. This includes suspected or known terrorists/ rebels, the state security forces and the state military. Exceptions extend to situations where lawful acts of war occur and IHRL is superseded by IHL, but outside of such scenarios Article 2 principles must apply.11 The HCPs to the ECHR are

11

Art 15(2), ECHR.

The Right to Life in Europe 15 responsible for ensuring that Article 2 is adhered to and protected. They are subject to the obligations and limitations set out within. These are not immediately obvious from the text of Article 2. Thus a set of guidelines, clarifying what the right to life demands of states, should be introduced.

A. Obligations Four obligations can be identified in Article 2 of the ECHR: 1) 2) 3) 4)

the right to life must be protected by law; the duty to refrain from an unjustified killing; the duty to protect people against real and immediate risks; and the duty to thoroughly investigate deaths.

Each of these contains a number of requirements. These requirements vary depending on the context and are not clear from the text of Article 2. They are developed by the ECtHR’s jurisprudence. Therefore, the proposed guidelines draw from the wording of the ECHR and its partnering case law. The four obligations can be divided into categories of negative and positive. Human rights violations by the state ‘are the exception rather than the rule’, and our understanding of an entitlement to human rights has developed into an ‘entitlement to enjoy human rights and not merely an entitlement to their nonviolation by State agents’.12 The latter, more traditional duty equates to negative obligations. These require states not to interfere in the exercise of rights. Positive obligations are the newer set of obligations, those that allow for enjoyment of rights. These impose an obligation on states to actively protect the human rights of individuals against acts of interference from other private parties.13 They require pro-action and foresight. Positive obligations can be subdivided into procedural and substantive categories. Procedural obligations ‘call for the organisation of domestic procedures to ensure better protection of persons, those that ultimately require the provision of sufficient remedies for violations of rights’.14 Substantive obligations are those which require: the basic measures needed for full enjoyment of rights guaranteed, for example, laying down proper rules governing intervention by the police, prohibiting ill-treatment or forced labour, equipping prisons, giving legal recognition to the status of transsexuals, incorporating the Convention rules into adoption procedures.15

12

D Xenos, The Positive Obligations of the State Under the ECHR (Routledge, 2011) 2.

13 ibid. 14

JF Akandji-Kombe, Positive Obligations Under the ECHR: A Guide to the Implementation of the ECHR (CoE, 2007) 11. 15 ibid.

16 Introducing Guidelines on Article 2 There is merit in creating distinctions when considering the obligations that are contained within individual human rights. It provides categorisation through which obligations can be explored, refined and expanded. Such distinctions enable a thorough exploration of the main challenges and failings that face a state in protecting human rights. It can also have the detrimental effect of causing confusion. The ‘two kinds of obligation are different in kind; however they sometimes have the same implications’.16 Acknowledging the overlap that can occur, and following the lead of the ECtHR, this book categorises the various obligations accordingly.

B. Limitations Article 15(2) of the ECHR states there is to be ‘no derogation from Article 2, except in respect of deaths resulting from lawful acts of war’. This highlights the fundamentality of the right to life. Initially, Article 2(1) also allowed for derogation in cases of judicial killings, but this was abolished with the enactment of Protocols No 617 and 1318 of the ECHR. Whilst accepted as defunct, the text allowing for the death penalty remains.19 As a point of accuracy, this development should be reflected in the proposed guidelines. While the right to life is non-derogable, Article 2(2) clarifies that not all instances of deprivation of life constitute a violation of the right to life. Therefore, despite misconceptions,20 the right to life is not absolute.21 Article 2(2) stipulates that force is only permitted where 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 for the purpose of quelling a riot or insurrection.

The ways to determine when force is excessive leading to an unjustified killing is not obvious from the text of Article 2. The ECtHR offers guidance on this within its jurisprudence, which can be drawn from for the purposes of the proposed guidelines. 16 ibid.

17 Protocol No 6 to the ECHR concerning the Abolition of the Death Penalty, 28 April 1983 abolishes the death penalty in peace-time. This applies to HCPs to the ECHR. 18 Protocol No 13 to the ECHR concerning the Abolition of the Death Penalty In All Circumstances, 3 May 2002. This applies to all HCPs to the ECHR. 19 Al-Saadoon and Mufdhi v UK (2010) paras 115–18. 20 EHRC, ‘What are Human Rights?’, www.equalityhumanrights.com/your-rights/human-rights/ what-are-human-rights%3F/the-human-rights-act/right-to-life. 21 According to Gewirth, ‘a right is absolute when it cannot be overridden in any circumstances, so that it can never be justifiably infringed and it must be fulfilled without any exceptions’. A Gewirth, ‘Are There Any Absolute Rights?’ (1981) 31 Philosophical Quarterly 1, 2; N Mavronicola, ‘What is an “Absolute Right”? Deciphering Absoluteness in the Context of Article 3 of the ECHR’ (2012) 12(4), Human Rights Law Review 723.

Justification for Creating the Proposed Guidelines 17 III. JUSTIFICATION FOR CREATING THE PROPOSED GUIDELINES

This book suggests codifying the developments regarding the right to life that have occurred since McCann v UK (1995)22 in the form of guidelines. These codify Article 2’s unenumerated obligations and clarify the scope of its enumerated obligations, similar to the General Comments that accompany UN treaties. Other forms were considered. This extended from creating a new specialised Convention to a new specialised Protocol to the ECHR. These were disregarded, as their creation would pose too much of a challenge in terms of generating political will within the CoE.23 There is also the risk of over-complicating the system by having too many sources.24 Guidelines were decided upon, as they offer an extension to the system that currently exists. They also enable Article 2 to remain as it is, though it is suggested that Article 2(1) is amended to reflect the abolition of the death penalty. The guidelines would be a more detailed version of the fact sheet on the right to life25 or the handbook issued by the CoE Directorate General26 that already exists. The existing sources are generalised and do not reflect fully the developments that have occurred, particularly in relation to the use of force in times of internal conflict. The proposed guidelines provide a more practical and thorough overview of what the agreed obligations within Article 2 are in this context and beyond. They also cover areas that the ECtHR ignored or has not had the opportunity to address. Drawing from other international legal sources of consensus, the proposed guidelines offer recommendations for how to fill these gaps. Overall, the guidelines are more user-friendly and extensive than the existing sources. In terms of how the proposed guidelines measure up against the existing academic analysis of case law, such analysis can be heavy reading and at times inaccessible. It is also often overlooked by legal professionals. The guidelines originate from within the ECHR’s system, confirming the consensus within the CoE, as opposed to one individual’s interpretation. Nevertheless, academic analysis has its place and informs the chapters of this book, which track the path and justifications for the content of the guidelines. The proposed guardian for the guidelines is the ECtHR. The main basis for the guidelines is the Court’s jurisprudence, and for the guidelines to be up-to-date, constant monitoring of case law will be required. The ECtHR (as the case law’s creator) is perfectly positioned to complete such a task. Confirming the format and gaining approval for the original content of the guidelines will require an initial spike in resources, but with landmark cases few and far between, any refreshment will not be labour intensive. Precedent exists for the ECtHR to oversee such mechanisms. The ECtHR’s factsheets are generated by court staff and 22

McCann v UK (1995). P Leach, EHRAC, School of Law, Middlesex University, interviewed 11 July 2014. 24 ibid. 25 ECtHR, ‘Factsheet: Right to Life’ (ECtHR, 2013). 26 D Korff, ‘The Right to Life: A Guide to the Implementation of Article 2 of the ECHR’ (CoE, 2006). 23

18 Introducing Guidelines on Article 2 the handbooks are compiled by the Directorate General of Human Rights and the Rule of Law, with final sign-off from ECtHR judges. A further advantage of allocating responsibility for the guidelines to the Court is that it is a relatively independent body whose sole purpose is to safeguard human rights. The PACE is another option. The guidelines could be adopted through a resolution. Given the overly political nature of this body, this avenue could see censorship of the guidelines’ content. An additional option is the CoE Commissioner for Human Rights, whose role is to promote awareness and respect for human rights in an independent and impartial manner. There are a number of options available; the final decision is the CoE’s. A number of guideline suggestions are made that are not currently covered by the ECtHR’s jurisprudence. These complicate things, as there is currently no remit for any of the CoE’s bodies to make such declarations. Consequently, it is difficult to override the issue of political will and a reconfiguring of the CoE’s operational structure entirely. This book focuses on creating a sound argument in favour of introducing the guidelines, to show the need for such guidelines and the ease with which they could be introduced. Thus, the mechanism for their creation becomes a mere formality for the relevant CoE body. A suggestion of what the guidelines could look like is provided in the Appendix. The reasons for the particular wording used there are provided in the subsequent chapters of this book. It is a starting point for the relevant CoE body, which has the final say. There are number of reasons for creating the proposed guidelines. These are to offer clarity; to challenge the lack of awareness of the ECHR at a domestic level; and to ensure adherence to the principle of subsidiarity.

A. Clarity Human rights instruments, such as the ECHR, provide a blueprint for rights protection. It is common for a fuller understanding of the rights contained within the ECHR to expand only through academic, institutional and judicial discussion. This ensures that it remains a living instrument27 and is interpreted ‘in light of present day conditions’.28 The development of the right to life within Article 2 is no exception, though improving understanding of this right was initially slow. The ECHR and its Court have been in operation since 1953 and 1959 respectively, yet the ECtHR remained silent on the right to life until 1995, with the first Article 2 violation ruling, McCann v UK.29 The assumption is that this delay was

27 W Thomassen, ‘The Vital Relationship Between the ECtHR and National Courts’ in S Phlogaites et al (eds), The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar Publishing, 2013) 98. 28 T Zwart, ‘More Human Rights Than Court: Why the Legitimacy of the ECtHR Is In Need of Repair and How It Can Be Done’, in Phlogaites et al (n 27) 78. 29 McCann v UK (1995).

Justification for Creating the Proposed Guidelines 19 due to a combination of the Court fearing the implications of this right and a lack of expertise within the applicants’ legal teams.30 Since McCann, there has been a steady development in the understanding of Article 2 (particularly in the context of internal conflicts) through the ECtHR’s jurisprudence. The significant substance of these developments exposed how little can be deduced with certainty from the text of Article 2 alone. This book proposes codifying these developments, to provide a ‘specification parameter’.31 In the context of the right to life, this is specifying the content of this right. Doing so ‘guides behaviour’ and ‘determines the scope’.32 To ‘subject human conduct to the control of rules, there must be rules’.33 These rules must strike a balance. They must not be too narrow; they must be general and they must be clear.34 This is to ensure that they ‘are teachable and usable’.35 However, they must not be so general as to equate to an ‘evolutive interpretation’ that would be ‘tantamount to arbitrary interpretation’.36 The mechanism for codification proposed by this book takes the form of guidelines. These constitute a soft law instrument and as such would not be binding. Such an approach raises questions in relation to their legitimacy and effectiveness. In answer to this, ‘in order to fufil Europe’s promise, it is necessary to address systematic shortcomings in Member States and to establish sustainable human rights centred policies at national and local level’.37 The proposed guidelines do both. They also offer the opportunity to be used as a template for creating guidelines in relation to other provisions of the ECHR. There is precedent for such an approach within the General Comment system of the UN treaty bodies, which offer carefully debated and crafted clarifications in relation to provisions contained within core international human rights treaties. A valid question is why codification is required, when the developments exist within the ECtHR’s jurisprudence. Reliance on the wording of the ECtHR’s judgments for clarification is time-consuming and confusing. The relevant principles and definitions are dotted over hundreds of judgments that span decades and are thousands of words in length. The ECtHR issued a fact sheet on the right to life38 and the CoE Directorate General issued a handbook regarding this right.39 However, these are generalised and do not fully reflect the developments that have occurred. The guidelines proposed by this book are more extensive and detailed. Furthermore, the ECtHR jurisprudence does not cover every aspect of the right to life. The reason for this is two-fold. First, the Court can only speak to the cases 30

B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 23 and 51. Mavronicola (n 21) 741. 32 ibid. 33 L Fuller, The Morality of Law (Yale University Press, 1969) 49. 34 Mavronicola (n 21) 742–45. 35 RM Hare, ‘The Presidential Address: Principles’ (1972–73) 73 Proceedings of the Aristotelian Society New Series 1, 15. 36 K Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the ECHR’ (2011) 12(10) German Law Journal 1730, 1730. 37 Nils Muiznieks, ‘Welcome’, www.coe.int/en/web/commissioner/the-commissioner. 38 ECtHR (n 25). 39 Korff (n 26). 31

20 Introducing Guidelines on Article 2 that are brought before it. Second, there are occasions when the ECtHR is not as clear or robust in its judgments as it should be. This can be due to the political nature of the Court or its struggle with the principle of subsidiarity. Where this book finds gaps, recommendations are made as to how these can be addressed within the CoE system. These include the ECtHR taking a harder or clearer line in its judgments, or better cooperation between the CoE bodies. Where there is no obvious suggestion within the CoE system, other sources are referenced. These provide an opportunity to assess whether there are other factors of the right to life which are recognised with consensus and should be included in the proposed guidelines, even though there is no clear precedent in the European context. Consensus is defined as ‘the universal agreement on the core values’.40 It is recognised by ‘specialists’, ‘elites’ and ‘ideally, by all citizens’. The ECtHR is open to developing its reasoning through relying on ‘consensus among the Contracting Parties identified through comparative legal research; consensus proved by binding and non-binding international treaties; consensus within the Member State; and consensus among the experts’.41 Assessment of additional sources is conducted with caution, especially when considering an individual state’s standpoint. Views can range from being overly conservative to overly liberal, often to the detriment of the right. For example, the Indian Supreme Court’s ruling that the right to life contains the right to sleep is a misrepresentation and would not receive consensus.42 As the ECtHR stated, the living instrument doctrine cannot derive ‘a right that was not included therein at the outset’.43 In summary, developing these guidelines would make it clear to state actors what it is they are expected to do, while also clarifying for potential victims and their legal teams when a violation occurred, and providing the ECtHR with a more structured yardstick against which to judge a state’s acts or omissions. They will also enable clearer, more concise judgments from the ECtHR. The standards would be an extension to Article 2 and reflect the CoE’s stance. This would allow them to be referred to within the Court’s reasoning and help the ECtHR to avoid the often repetitive and confusing exploration of previous case law.

B. Lack of Awareness The CoE consists of states that do not share the same legal structure. Some states follow a civil law legal system; others follow a common law legal system. Thus some jurisdictions are more comfortable dealing with legal developments through

40

A Kovler, ‘Judge of the ECtHR’ in A Kovler et al, Dialogues Between Judges (ECtHR, 2008) 13. K Dzehtsiarou, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the ECtHR’ (2011) PL 534, 553. 42 Mahapatra (n 10). 43 Johnston and Others v Ireland (1986) para 53. 41

Justification for Creating the Proposed Guidelines 21 case law than others. The way to address this is to codify the developments which have reached consensus and form precedent. There is a general lack of awareness of the obligations contained within the ECHR and how these apply at a domestic level. This is aggravated by the fact that the ECHR is an individualised system. While there are scenarios where more general measures are imposed, as a rule the ECtHR’s jurisprudence aims to deal with the individual complaint with individual measures. This means that states, particularly those without a human rights culture, only become interested in what the ECtHR has to say when a violation is brought against it. It has no interest in sifting through hundreds of judgments to determine the status quo. It may be interested in a clear set of guidelines that do all the hard work. On the other hand, a state may have a lack of awareness and no interest in addressing that, irrespective of the aids in place. For states with such an attitude, the guidelines are unlikely to change the status quo of only paying attention when it is in their interests to do so. Nevertheless, they will make life significantly easier for when an HCP decides to pay heed. The guidelines would also be beneficial for legal teams dealing with Article 2 cases and victims of Article 2 violations. They offer a sole reference for a state to better understand its Article 2 obligations, and for victims and their legal teams to better grasp when a violation occurred.

C. Principle of Subsidiarity The European human rights system operates under the principle of subsidiarity44—the Strasbourg organs’ supervision is designed to be supplementary and subsidiary to the protection of rights and freedoms under national legal systems. The ‘primary responsibility for guaranteeing the citizens’ rights rests on national authorities’.45 Put another way, ‘it is primarily for [the] national authorities, especially the courts, to protect the rights laid down in the ECHR’.46 As the ECtHR has stated: the object and purpose underlying the ECHR, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the ECHR that the national systems themselves provide redress for breaches of its provisions, the ECtHR exerting its supervisory role subject to the principle of subsidiarity.47

It is misconstrued that providing clear guidance to states violates the principle of subsidiarity; that it is a step too far in regulating states. This principle creates a 44 Art 1, Protocol 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, 24 June 2013. 45 Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002) 235. 46 ibid, 70. 47 Z and Others v UK (2001) para 103.

22 Introducing Guidelines on Article 2 fine line between telling states what their obligations are, and telling states how to fulfil these obligations. The former is appropriate and the latter is not, because the CoE is limited to a supervisory role. The CoE bodies can only step in when the state is not meeting its obligations or when a state’s attempts to meet its obligations are not ECHR-compliant. These bodies can only do so to the point of directing states back to the road of compliance. Clearer guidance can be provided in a way that respects this fine line. The proposed guidelines do not go much beyond what the ECtHR has developed. Where there are additions they are only suggestions and are in line with the format used by the Court. Such guidance would ensure greater respect for the principle of subsidiarity by reducing the times when the CoE bodies become involved in domestic affairs. Extensive guidance makes clear to states the minimum level of protection that is expected. This extends to future issues that are not currently covered, with the general approach to Article 2 making it easier to judge what equates to compliant measures. The impact will be that states will avoid burdensome litigation, at a domestic and regional level. It clarifies for the state what it should and should not be doing, and it clarifies for the victims and their legal team when a violation occurred or not. It is predicted that this will reduce the violations that occur and the number of inadmissible claims that clog the judicial system.

IV. CONCLUSION

This chapter has provided a brief overview of the origins of the right to life and how our understanding of this right has developed, particularly in relation to its obligations, limitations and jurisdictional scope. Key developments and gaps in understanding in relation to Article 2 of the ECHR have come to light. These have culminated in a lack of clarity surrounding how the right to life translates in practice and a lack of awareness around Article 2’s scope and relevance generally. This chapter stressed that finding a way to address these issues does not erode, but enhances the principle of subsidiarity. It lays the groundwork for introducing the proposed Article 2 guidelines. The remaining chapters analyse and develop the wording of the proposed guidelines, as set out in the Appendix.

3 Duty to Refrain from Unjustified Killing You never need an argument against the use of violence; it’s automatic. You need an argument for it. Noam Chomsky1

I

N AN IHRL context, the right to life is non-derogable,2 but Article 2(2) clarifies that not all instances of deprivation of life constitute a violation of this right. There are occasions when force that threatens life or limb can be used. The ‘lethal use of force by the State is a logical consequence of the very existence of the machinery of the State’.3 Such scenarios where the use of force may be acceptable fall within three categories: acts of defence; acts of law enforcement; or acts of war. The use of force can arise from ‘the duty of protecting the citizens’, ‘to restore social order and prevent harm’ or ‘to reconstitute the State authority’.4 The principles of necessity and proportionality guide the determination of whether the force used can be justified.5 This depends on the surrounding circumstances and the legal framework which is engaged at the time. For example, a ‘State[’s] prerogatives may vary depending on whether or not there is an armed conflict’.6 In the context of Article 2, force is only permitted in defence of any person from unlawful violence, to effect a lawful arrest, or to quell a riot or insurrection.7 The force used must be absolutely necessary and proportionate. This implies that there is a graduated system for the various types of force, in the sequence: 1) a warning; 2) less-lethal force; and 3) live ammunition.8 The type and extent of each that fits within the ambit of Article 2 is determined by the circumstances.9 This contextual

1 N Chomsky, ‘Asks Why Iraq?’ in Jesse Stellato (ed), Not in Our Name; American Antiwar Speeches, 1846 to Present (Penn State Press, 2012) 196. 2 Art 15(2), ECHR. 3 A Ubeda de Torres, ‘Extrajudicial Executions’, in L Burgorgue-Larsen and A Ubeda de Torres, The IACtHR: Case Law and Commentary (OUP, 2011) para 14.04. 4 O Bakircioglu, Self-Defence in International and Criminal Law (Routledge, 2011) 20–21. 5 B Mathieu, The Right to Life in European Constitutional and International Case Law (CoE, 2006) 68. 6 Ubeda de Torres (n 3) para 14.04. 7 Art 2(2), ECHR. 8 Simsek and Others v Turkey (2005) para 33. 9 Makhauri v Russia (2007) para 117.

24 Duty to Refrain from Unjustified Killing approach acknowledges that there are occasions when less lethal force is not an option.10 It is judged by looking at what the operational plans were and whether there was time to consider other means.11 This chapter focuses on the negative obligation to refrain from unjustified killings, and the extent to which force can be used. Drawing from the four case studies, it considers the foundations of the duty to refrain from an unjustified killing, and what is meant by the absolute necessity test for identifying justified use of force. It examines the three limitations set out within Article 2(2) of the ECHR and how these should be understood. It highlights the parts of Article 2 that are outdated and require specialised guidance regarding the duty to refrain from unjustified killing. It outlines the guidelines which should be created concerning this obligation. These include the codification of developments that have occurred since the enactment of the ECHR, via the ECtHR’s jurisprudence. They also include issues that have not reached consensus within the ECtHR’s jurisprudence and require further clarification. Furthermore, this chapter pinpoints situations where the ECtHR should be more reserved or more robust in its judgments, with the aim of improving state compliance.

I. FINDING A VIOLATION OF THE DUTY TO REFRAIN FROM AN UNJUSTIFIED KILLING

The ECtHR ruled in McCann v UK (1995) that Article 2 imposed a negative obligation on States to ensure that its agents refrained from unjustified killing.12 This draws from Article 2(1)’s requirement for states to protect life. If it is found that the state did not do enough to safeguard against an unjustified killing by its agents, it can be held accountable for the killing. This does not remove individual criminal responsibility from the individual who caused the death (which is to be determined by the national courts),13 but acknowledges that the state is answerable for violations of the ECHR. It is rare for the ECtHR to find a negative violation of Article 2 (that the state is responsible for the death). It is more common for a violation of a positive obligation (the duty to protect life or the duty to investigate) to be found regarding an act or omission that created circumstances in which a death occurred, or excessive use of force was used causing a threat to life or limb. This is shown by assessing negative violations in the four case studies. The test applied to a negative violation is whether it can be proven beyond reasonable doubt that the killing or presumed death was due to a state actor and whether the state provided satisfactory justification for the force used by

10 Yüksel Erdogan and Others v Turkey (2007) para 99; Gülen v Turkey (2008) para 37; Usta and Others v Turkey (2008) para 59; Kasa v Turkey (2008) para 87. 11 Anik and Others v Turkey (2007) para 63. 12 McCann v UK (1995). 13 Giuliani and Gaggio v Italy (2011) para 182.

Finding a Violation of the Duty to Refrain from an Unjustified Killing 25 its agents.14 The case law shows that for a negative violation to be found, the force used must be blatantly excessive and against civilians. For example, the aerial bombardment of a civilian village;15 an unjustifiable lethal shot fired at a checkpoint;16 an unjustifiable lethal shot fired at a bystander;17 the killing of civilians in their home;18 or the abduction and presumed killing of a civilian.19 This is a higher test than the ‘absolutely necessary’ test set by Article 2 and shows that the Court is more reserved when ruling that a negative violation occurred. A negative violation of Article 2(1) was found only in relation to the Chechen and Turkish-Kurdish conflicts. No such violations were found in the Basque context, due to no conflict-related Article 2 claims being brought before the ECtHR. In the NI context, the finding of no such violations could be due to a lack of evidence resulting from inadequate investigations at a domestic level, as discussed in Chapter 7. It could also be due to the political undercurrent that can influence the ECtHR, as discussed in Chapter 10. These same challenges exist in the context of the Chechen and Turkish-Kurdish conflicts. Out of the hundreds of conflict-related Article 2 cases that came before the ECtHR, only four negative violations against Turkey20 and 29 against Russia were found.21 The majority 14

Saidova v Russia (2013) para 76. Benzer and Others v Turkey (2013) 185; Abdulkhanov and Others v Russia (2013) para 54. 16 Atiman v Turkey (2014) 38; Kasap and Others v Turkey (2014) para 62; Israilova and Others v Russia (2009) para 126. 17 Aydan v Turkey (2013). 18 Damayev v Russia (2012) paras 70 and 70; Akhmdova v Russia (2012) para 77; Inderbiyeva v Russia (2012) para 97; Khamzatov and Others v Russia (2012) para 173; Bitiyeva and X v Russia (2007) para 141. 19 Malika Yusupova and Others v Russia (2015) para 201; Makayeva v Russia (2014) para 106; Kaykharova and Others v Russia (2013) para 161; Dzhabrailov and Others v Russia (2014) para 319; Turluyeva v Russia (2013) para 88; Mikiyeva and Others v Russia (2014) para 160; Bopayeva and Others v Russia (2013) para 80; Tovbulatova and Others v Russia (2013) para 102; Dovletukayev and Others v Russia (2013) para 220; Aslakhanova and Others v Russia (2012) para 118; Gakayeva and Others v Russia (2013) para 366; Baysultanova and Others v Russia (2013) para 88; Askhabova v Russia (2013) para 143; Umarova and Others v Russia (2012) para 83; Ilayeva v Russia (2012) para 77; Umayevy v Russia (2012) para 68; Damayev v Russia (2012) para 77; Kadirova and Others v Russia (2012) para 101; Khadzhialiyev and Others v Russia (2008) para 98; Edilova v Russia (2012) para 107; Sangariyeva and Others v Russia (2008) para 74; Khalitova v Russia (2009) para 59; Saydaliyeva and Others v Russia (2009) para 108. 20 Kasap and Others v Turkey (2014) para 62; Benzer and Others v Turkey (2013) 185; Atiman v Turkey (2014) para 38; Aydan v Turkey (2013). 21 Damayev v Russia (2012) paras 70 and 70; Akhmdova v Russia (2012) para 77; Inderbiyeva v Russia (2012) para 97; Khamzatov and Others v Russia (2012) para 173; Bitiyeva and X v Russia (2007) para 141; Abdulkhanov and Others v Russia (2013) para 54; Israilova and Others v Russia (2009) para 126; Malika Yusupova and Others v Russia (2015) para 201; Makayeva v Russia (2014) para 106; Kaykharova and Others v Russia (2013) para 161; Dzhabrailov and Others v Russia (2014) para 319; Turluyeva v Russia (2013) para 88; Mikiyeva and Others v Russia (2014) para 160; Bopayeva and Others v Russia (2013) para 80; Tovbulatova and Others v Russia (2013) para 102; Dovletukayev and Others v Russia (2013) para 220; Aslakhanova and Others v Russia (2012) para 118; Gakayeva and Others v Russia (2013) para 366; Baysultanova and Others v Russia (2013) para 88; Askhabova v Russia (2013) para 143; Umarova and Others v Russia (2012) para 83; Ilayeva v Russia (2012) para 77; Umayevy v Russia (2012) para 68; Damayev v Russia (2012) para 77; Kadirova and Others v Russia (2012) para 101; Khadzhialiyev and Others v Russia (2008) para 98; Edilova v Russia (2012) para 107; Sangariyeva and Others v Russia (2008) para 74; Khalitova v Russia (2009) para 59; Saydaliyeva and Others v Russia (2009) para 108. 15

26 Duty to Refrain from Unjustified Killing of negative violations concerning Chechnya were related to disappearances carried out by u nidentified organised groups in Russian-controlled areas and were brought before the ECtHR at a later time, when the Court was willing to draw inferences from disappearances. This explains why the state was not found to be responsible for the disappearances and presumed killings that occurred in the Turkish-Kurdishcontext, which were brought at a time before the Court was open to drawing such inferences.

II. ‘ABSOLUTELY NECESSARY’ TEST

The use of force is the main threat to fulfilling the duty to refrain from an unjustified killing. This threat is ever-present within internal conflict situations, as exemplified by the examples drawn from the four case studies. In line with Article 2(2) of the ECHR, the ECtHR acknowledges that the use of force is permitted in certain limited situations. However, the Court stressed that the use of force must be ‘strictly proportionate’22 to the ‘achievement of permitted aims’.23 The Court’s consideration of excessive use of force and its application of Article 2(2)’s ‘absolutely necessary’ test in Makaratzis v Greece (2004) reaffirmed that ‘unregulated and arbitrary action by State agents is incompatible with effective respect for human rights’.24 Though contained within Article 2(2), the ECHR fails to give a comprehensive definition of the term ‘absolutely necessary’. The ECtHR’s jurisprudence provides clarification. The ECtHR stated it is a ‘stricter, more compelling test’ than other provisions within the ECHR, which refer to necessity alone.25 McCann indicates that force is only absolutely necessary when it appears that there is no other way to ‘safeguard innocent lives’.26 Additionally, the Court assessed whether state agents had ‘prior warning’ and ‘ample opportunity to plan their reaction’.27 The Court acknowledged that in certain circumstances, strategies may be formulated on the basis of ‘incomplete hypotheses’.28 In contrast to reasonable necessity (whether the defendant acted as any reasonable person or authority in their position would),29 absolute necessity requires the action to be a last resort and to take account all of the surrounding circumstances.30 This requires assessing the ‘general context of the operation, the orders given and the information supplied to agents in the field, and, more broadly, the links between them and the hierarchy, the conduct of

22

Stewart v UK (1984). McCann v UK (1995) paras 148–49. Makaratzis v Greece (2004) para 58. 25 K Reid, A Practitioner’s Guide to the ECHR (Sweet & Maxwell, 2011) 744. 26 McCann v UK (1995) para 200. 27 ibid, para 193. 28 ibid, para 200. 29 D Korff, The Right to Life: A Guide to the Implementation of Article 2 of the ECHR (CoE, 2006) 30. 30 McCann v UK (1995) para 150. 23 24

‘Absolutely Necessary’ Test 27 operations etc’, looking for any shortcomings which would indicate that a violation of Article 2(2) had occurred.31 The ECtHR examines the obligation to supervise police operations from the standpoint of whether preparation and control of such operations was conducted in a way which minimised, ‘to the greatest extent possible, recourse to lethal force’.32 Nachova v Bulgaria (2004) further clarified that the accused must pose a ‘threat to life or limb’ and be ‘suspected of having committed a violent offence’.33 Despite an obligation to adhere to this strict test, a state opting to implement a test of reasonableness (as opposed to absolute necessity) within its domestic laws does not result in an automatic violation of the ECHR.34 For example, in the UK the defendant’s use of force must be based on a ‘genuine belief ’ that force is necessary.35 This subjective test appears to conflict with the objective test set in McCann, which requires that an accused has ‘good reasons’ to use force.36 Nevertheless, the ECtHR refused to condemn the UK’s subjective approach. When provided with the opportunity to do so in Bubbins v UK (2005),37 the Court stated that the national law was compatible with Article 2, since the defendant held ‘an honest belief which was perceived for good reason to be valid at the time but which was mistaken’.38 English judge Collins J argued that the reasonableness test adopted in England is not incompatible with Article 2 of the ECHR because: if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann.39

This presumes that state agents are objectively reasonable. This is not always the case, as the four case studies show. The ECtHR remains content to uphold a subjective test, which falls short of the absolutely necessary threshold enumerated in Article 2(2).40 Arguably this is because the cases to date have not given the ECtHR enough reason to conclude that such laws in the UK are a violation of the ECHR. For example, no convincing case from the UK was presented to the ECtHR where a person was killed based on a wholly irrational mistake.41 If such a case was presented, the ECtHR could be forced to adopt a different approach. 31

JF Akandji-Kombe, Positive Obligations Under the ECHR (CoE, 2007) 24. McCann v UK (1995) para 194; Ergi v Turkey (1998) para 79; Isayeva, Yusupova and Bazayeva v Russia (2005) para 169. 33 Nachova and Others v Bulgaria (2004) para 95. 34 Perk v Turkey (2006) para 60. 35 R v Williams (Gladstone) [1987]. 36 ibid, 200. 37 Bubbins v UK (2005). 38 ibid, para 138. 39 R (Bennett) v HM Coroner for Inner London [2007]. 40 Armani da Silva v UK (2016) para 252. 41 B Emmerson et al, Human Rights and Criminal Justice (Sweet and Maxwell, 2007) para 18.33; David Ormerod et al, Smith and Hogan’s Criminal Law (OUP, 2011), 384; Armani da Silva v UK (2016) para 253. 32

28 Duty to Refrain from Unjustified Killing Whichever test is adopted, the message from Article 2 and its case law is clear— force must only be used as a last resort and the force used must be necessary and proportionate. Using police operations as an example, the reasoning behind this is that: the only situation in which the prevention of crime can justify the killing of an individual by the State is when this is absolutely necessary in order to save another … life that is immediately under threat. The death is justified in those circumstances because, and only because, it is the only means of saving the lives threatened by the aggressor. Killing by the State is never justified in order to punish an individual, no matter how heinous his crimes, nor to prevent future crime … that falls short of a risk to life, nor whether other means might equally repel the risk to life. Lethal force is a last resort, available to agents of the State (as well as private individuals) when no other means exist in order to prevent an aggressor from taking an innocent life or lives, and because of this, any police operation leading to the use of lethal force must be planned and controlled in a manner that genuinely treats the death of any person as a last regrettable resort.42

A stricter test is particularly relevant in conflict situations where the use of death squads, collusion and impunity flourish. Furthermore, it is common for those who challenge the state to be referred to as ‘terrorists’, a group towards which the public is unsympathetic.43 This can cause actions (which would otherwise be unacceptable) being viewed as reasonable, and illegality being viewed as irrelevant by public opinion. It also reflects the fact that once a life is taken it is impossible to restore it. Ilhan v Turkey (2000) highlights a number of factors to consider when assessing whether the force used was excessive and violates Article 2. They include looking at the ‘degree and type of force used and the unequivocal intention or aim behind the use of force’.44 Such allegations must also be proved beyond reasonable doubt,45 which can include adequately clear, strong and consistent inferences.46 Special presumptions play a particular role in cases concerning deaths in custody, disappearances or (in instances of internal conflict) where a person is found injured or dead in an area under the exclusive control of the authorities. In such circumstances the burden lies with the state authorities to provide a satisfactory explanation.47 This is a welcome development, but the burden of proof in Article 2 cases falls to the complainant to prove that the use of force was not absolutely necessary. Collusion or procedural obstacles are often present, making gathering evidence difficult for complainants.

42

E Wicks, The Right To Life and Conflicting Interests (OUP, 2010) 149. CJM Drake, Terrorists’ Target Selection (Palgrave Macmillan, 1998) 145. 44 Ilhan v Turkey (2000) para 76. 45 Kaya v Turkey (1998) para 76. 46 Aktas v Turkey (2003). 47 Akkum v Turkey (2005). 43

Defence of Any Person from Unlawful Violence—Article 2(2)(a) of the ECHR 29 III. DEFENCE OF ANY PERSON FROM UNLAWFUL VIOLENCE—ARTICLE 2(2)(a) OF THE ECHR

State actors are under a negative obligation not to carry out unjustified killings, even if they believe their actions are justified for the greater good—the utilitarian approach. It became clear that despite these obligations there were violations of Article 2(2)(a) of the ECHR throughout each of the four conflicts. This is further reason for the codification of these obligations, as it is harder for states to ignore their obligations when they are clearly laid out.

A. Detention The ECtHR noted that those in detention are in a vulnerable position. It falls to the state authorities to provide ‘satisfactory and convincing explanations’ as to why a suspect was in good health when taken into custody, but is no longer.48 Stop and search powers of state actors in each of the four case studies were increased with a view to preventing crime and protecting the lives of others. This led to an increase in the number of detentions, which were often discriminatory internments that ignored Articles 5 (right to liberty and security) and 6 (right to fair trial) of the ECHR. This book focuses on what happened during those detentions. There were reports of incidents of torture and ill-treatment that posed a threat to life or limb in each of the four case studies.49 These cases are generally raised under Article 3 of the ECHR, on the grounds of torture and/or ill-treatment. Such actions do have implications for Article 2 and it is interesting that they are not dealt with as such. The most likely reason for this is that such cases are dealing with living applicants, though this is irrelevant. Article 2 is engaged in situations where life or limb was threatened; there does not have to be a death or injury.

B. Targeted Killings Death squads were employed in each of the four case studies as a means to further the states’ own agendas. In the Basque conflict, targeted killings were conducted by the state paramilitaries Batallón Vasco Español (BE—operated in the late 1970s) and Grupos Antiterroristas de Liberación (GAL—emerged with a change of government in the 1980s). These death squads were tasked with seeking out ETA members and civilians who supported separatism of any form. Between

48 Aktas v Turkey (2003) para 291; Ahmet Ozkan and Others v Turkey (2004) para 323; Ikincisoy v Turkey (2004); Musayeva and Others v Russia (2007) para 81. 49 Ireland v UK (1978); Aktas v Turkey (2003) para 291; Ahmet Ozkan and Others v Turkey (2004) para 323; Ikincisoy v Turkey (2004); Musayeva and Others v Russia (2007) para 81; ‘Spanish police jailed for torture of Basque ETA members’, BBC News, 30 December 2012.

30 Duty to Refrain from Unjustified Killing 1978 and 1982 the BVE killed approximately 15 people and injured 42 others, including suspected terrorists and civilians.50 During its four-year tirade, GAL killed at least 27 people in Iparralde (French jurisdiction) and Hegoalde (Spanish jurisidiction).51 It was reported that ‘it is not uncommon for individual police officers to shoot and then attempt to justify their actions by saying “I thought it was an ETA m ember”’.52 Official figures for such killings are lacking, but unofficial figures claim that at least 83 people were killed as a result of the covert operations of BVE and GAL, and the individual actions of Spanish police officers.53 Domestic investigations resulted in convictions against law enforcers and government ministers for some of these crimes, but not all.54 Cases challenging the lack of remedy were not brought to the ECtHR. In NI it was long speculated that ‘special anti-terrorist squads [were] employed to stake out and kill suspected terrorists’.55 The domestic organs and the ECtHR refused to consider these claims, quoting a lack of evidence. The UK also denies sponsoring any such operations. The Ministry of Defence stated that: the UK has strict rules of engagement which are in accordance with UK law and IHL. This applied to operations in NI. Soldiers were at all times subject to the general criminal law on the use of force, which was made clear to them in training and before operations.56

This denied that a policy of death squads existed in NI or that the legal system allowed for such a policy. Instead any actions that could be interpreted as proving the existence of a death squad were attributed to individuals. It was the BBC Panorama programme, ‘Britain’s Secret Terror Force’,57 that exposed how the Military Reaction Force (MRF)’s role went beyond surveillance. The MRF, which was sponsored by the British Army, operated in the 1970s. Its members were issued with the Yellow Card (which provide the guidelines for opening fire), yet testimony during the programme stated that the MRF sometimes acted in contravention of these regulations—‘if you had a player who was a well-known shooter who carried out quite a lot of assassinations … it would have been very simple—he had to be taken out’.58

50 Global Terrorism Database, www.start.umd.edu/gtd/search/Results.aspx?chart=attack& casualties_type=&casualties_max=&perpetrator=2834. 51 P Woodworth, The Basque Country: A Cultural History (Signal Books, 2010) 178. 52 I Urizar, Behatokia interviewed 8 January 2015. 53 ibid; D Albin, ‘El Gobierno criminaliza a las víctimas del terrorismo de Estado’, Público, 18 September 2014. 54 Expaticia, ‘“Dirty-war” ex-minister to be denied pardon’, Expaticia, 17 November 2004; Urizar (n 52); Albin (n 53). 55 A Jennings, ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990) 104. 56 O Bowcott, ‘Undercover NI soldiers accused of killing unarmed civilians’, The Guardian, 21 November 2013. 57 ibid; J Ware, ‘Panorama: Britain’s Secret Terror Force’, BBC 1, 21 November 2013. 58 ibid.

Defence of Any Person from Unlawful Violence—Article 2(2)(a) of the ECHR 31 Members of the MRF justified these actions by not viewing their victims as innocent; they believed them to be terrorists. This does not withstand the tests set by Article 2. If the suspect was not posing a threat to life or limb at the time of the killing and there was an opportunity to make an arrest, then any use of force (particularly a targeted killing) cannot be justified. Despite evidence to the contrary, the MRF members deny that they were ‘part of a death or assassination squad’.59 At the date of publication the Police Service of NI (PSNI) were investigating 18 shooting incidents that were linked to the MRF.60 The Stevens Inquiry into Pat Finucane and Brian Adam Lambert’s murders also exposed collusion between state intelligence and Loyalist paramilitary death squads, in this case the Ulster Freedom Fighters (UFF).61 In the context of Turkey, the ‘largest number of casualties reported appear to be as a result of killings during raids and military operations against the Kurdish Workers Party (PKK)’.62 The death squad attributed to these deaths is the Turkish Gendarmerie Intelligence Organisation (Jandarma Istihbarat ve Terörle Mücadele—JITEM). The JITEM was deployed (as part of a state policy to quash resistance) to eradicate suspected PKK rebels and suspected sympathisers with the Kurdish cause.63 Targeted killings related to the Turkish-Kurdish conflict have not been confined to Turkish territory, as illustrated by the killing of three female Kurdish activists in Paris during January 2013. It is unclear who was responsible for these deaths, whether it was Turkish-sponsored agents or as a result of Kurdish in-fighting.64 If it was the former, the extra-territorial reach of Article 2 must be considered. Live ammunition was heavily relied upon by the Turkish forces during their operations in the Kurdish south-east region of Turkey. It was used during village purges, often indiscriminately, which cost civilian lives. In Ahmet Ozkan v Turkey (2004)65 it was alleged that the Turkish forces attacked the village of Ormaniçi on a number of occasions in 1993 and 1994 causing the deaths of six villagers, including two children. The ECtHR noted that it should be cautious in taking on the role of a first-instance tribunal of fact. However, the Court ‘must apply a particularly thorough scrutiny’, even if the domestic proceedings and investigations

59 ibid.

60 ‘Military

Reaction Force: Breakthrough in PSNI investigation’, BBC News, 2 December 2015. J Stevens, ‘Stevens Enquiry 3: Overview and Recommendations’, 17 April 2003, s1.3. 1, ‘Questions of Violation of Human Rights and Fundamental Freedoms in any Part of the World, with Particular Reference to Colonial and Other Dependent Countries and Territories’, 23 December 1996, para 478. 63 N Entessar, Kurdish Ethnonationalism (Lynne Rienner Publishers, 1992); K McKiernan, The Kurds: A People in Search of their Homeland (St Martin’s Press, 2006); A Öcalan, War and Peace in K urdistan (Transmedia Publishing, 2011); A Öcalan, Prison Writings: The PKK and the Kurdish Question in the 21st Century (TMP Distribution, 2011). 64 ‘Turkey air strikes as Kurd activists’ bodies are returned’, BBC News, 16 January 2013; M de la Baume, ‘Man charged in deaths of 3 Kurds in Paris’, The New York Times, 21 January 2013; ‘Suspect in murders of Kurdish activists dies in Paris hospital’, France 24, 17 December 2016. 65 Ahmet Ozkan and Others v Turkey (2004). 61

62 E/CN.4/1997/60/Add

32 Duty to Refrain from Unjustified Killing took place where allegations under Articles 2 and 3 are concerned.66 It was noted that the Turkish forces were heavily armed, were only armed with live ammunition, and bombarded the village. Yet the choice to open intense fire was deemed to be absolutely necessary and justified. This was on the basis that the village was located in the heart of Kurdish strongholds, there were serious disturbances at the time, and no other civilians were injured.67 The Court accepted that shots were fired at the soldiers on their approach to the village. Thus the Turkish soldiers’ use of live ammunition was justified under Article 2(2)(a). Nevertheless, the state was found to be in violation of Article 2 for the callous disregard of the civilian casualties in the aftermath.68 The ECtHR adopted an IHL approach to an IHRL situation. Contrary to the Court’s analysis, considering the extent of force and the intense and indiscriminate firing, this does not satisfy the principles of absolute necessity and proportionality. To use the fact that loss of civilian lives was kept to a minimum devalues the lives of those that died. The utilitarian approach adopted by the ECtHR here is misplaced. It imposes a weakened form of necessity and proportionality that is more akin to IHL. This weakens Article 2’s protection of the right to life and is contrary to the Court’s own value system. There is evidence that Russian state forces regularly deployed ‘seek and destroy [groups] … to hunt down groups of [Chechen] insurgents’,69 otherwise known as ‘purges’.70 Operations were also carried out by the Russian air force and Federal Security Service of the Russian Federation (FSB). These included: the death of Chechen President Djohar Dudayev, who was allegedly killed by a guided missile in April 1996,71 and the poisoning of Chechen rebel commander Khattab in April 2002 from a letter planted by an FSB agent.72 It is alleged that Russian agents conducted a number of targeted killings on Russian territory outside Chechnya against individuals who were classified by the Russian government as Chechen sympathisers; for example, the execution of journalist Anna Politkovskaya.73 However, ‘Russia has refused to acknowledge responsibility or otherwise justify the killing [of Politkovskaya], and also refused to cooperate with any investigation or prosecution’.74

66

ibid, para 84. ibid, paras 305–06. 68 ibid, para 308. 69 S Saradzhyan, ‘Russia’s System to Combat Terrorism and Its Application in Chechyna’ in RW Orttung and AS Makarychev, National Counter-terrorism Strategies (IOS Press, 2006) 176 and 183. 70 A Politkovskaya, A Small Corner of Hell: Dispatches from Chechnya (University of Chicago Press, 2007) 96. 71 T Goltz, Chechnya Diary: A War Correspondent’s Story of Surviving the War in Chechnya (Thomas Dunne Books, 2003) 231. 72 ‘Obiturary: Chechen Rebel Khattab’, BBC News, 26 April 2002. 73 ‘Chechen war reporter found dead’, BBC News, 7 October 2006. 74 P Alston, ‘Using International Law to Combat Unlawful Targeted Killings’ in U Fastenrath and B Simma, From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP, 2011) 1152. 67

Effect a Lawful Arrest or to Prevent Escape—Article 2(2)(b) of the ECHR 33 The Russian-sponsored Chechen government currently in power has also allegedly conducted a number of targeted killings against individuals viewed as a threat, such as the human rights activist Natalia Estemirova who was killed days after accusing Chechen forces of extrajudicial killings. Her death is allegedly traceable to the Chechen President Ramzan Kadyrov.75 The Kadyrovtsy pro-Russian paramilitary unit is a team of former Chechen rebels from the first (December 1994–August 1996) and second (August 1999–April 2009) Chechen conflicts who are devoted to the pro-Russian President Kadyrov. The Kadyrovites were accused of working as a death squad against Kadyrov’s enemies, such as Estemirova. Memorial reports that ‘considering the evidence we have gathered, we have no doubt that most of the crimes which are being committed now in Chechnya are the work of Kadyrov’s men’.76 The Society of Endangered Peoples further reports that Kadyrov and ‘his henchmen spread fear and terror in Chechnya … They travel by night as death squads, kidnapping civilians, who are then locked in a torture chamber, raped and murdered.’77 The use of state-sponsored death squads was not admitted by the governments involved in each of the four conflicts. The deaths that resulted from the actions of these alleged death squads are often deemed necessary, on an individual basis, in the fight against terrorism.78 This implies that the state authorities are satisfied that they fulfil the requirements of Article 2. The victims’ relatives have the opposite opinion. The domestic organs’ dealings with these claims were subject to criticism. The ECtHR’s failure to fully address the issue (on the rare opportunities that it had to do so) reflects its limitations and its political nature.

IV. EFFECT A LAWFUL ARREST OR TO PREVENT ESCAPE—ARTICLE 2(2)(b) OF THE ECHR

A common issue in each of the four conflicts was direct recourse to live ammunition to effect a (not always lawful) arrest. The law is clear—as these are not situations of armed conflict, there is to be no derogation from Article 2 of the ECHR.79 The relevant domestic laws are not perfect, but they generally uphold Article 2 requirements and are to be interpreted in an Article 2 compliant manner. Yet there are instances where these laws were disregarded. This could be due to an honest belief, a consequence of the confusion of the moment, or pure disregard. How the state actors chose to deal with arrests in the Basque country is dealt with above. In cases concerning NI (with the exception of the pre-peace agreement

75

D Newman, ‘Chechnya’s long wait for the disappeared to return’, BBC News, 17 July 2011. M Franchetti, ‘In the torture cell of Chechnya’s tyrant’, The Sunday Times, 30 April 2006. 77 ibid. 78 A Le Huerou and A Regamey, ‘Russia’s War in Chechnya’ in S Cohen (ed), Democracies at War Against Terrorism (Palgrave Macmillan, 2008) 222. 79 Art 15(2), ECHR. 76

34 Duty to Refrain from Unjustified Killing McCann), lack of evidence was used as justification for not assessing the legality of state killings.80 In McCann, the killing of three suspected Irish Republican Army (IRA) bombers in Gibraltar was ruled unnecessary as the victims could have been arrested.81 Yet the ECtHR refused to rule that a negative violation of Article 2 had occurred. It reasoned that the soldiers who fired the fatal shots had an ‘honest belief ’ that lethal force was absolutely necessary and that this belief was ‘perceived, for good reasons’ that were ‘valid at the time’, but ‘subsequently [turned] out to be mistaken’.82 The remaining Article 2 rulings regarding the NI Troubles took place in the early 2000s, in the early stages of implementing the Good Friday (Belfast) Agreement 1998 (GFA). The ECtHR believed it was not in a position to conclusively rule whether these killings were justified. Instead the Court focused on the more procedural elements of Article 2, such as the planning of operations and the effectiveness of investigations. This could have been a conscious move by the ECtHR to not tackle anything too controversial, for fear of shaking the vulnerable peace process. The ECtHR directed that it was up to the domestic remedies to establish whether the killing was justified.83 This left the applicant in a Catch-22 situation. Unless the applicant had brought a case to the civil courts, it was ruled that they had not exhausted all domestic remedies, making their case before the ECtHR inadmissible. Whereas, if they went to the civil courts and were awarded compensation, they would lose their victim status before the ECtHR.84 At the same time the ECtHR was declaring that a state could not satisfy its Article 2 obligations by merely awarding damages.85 The ECtHR took a harder line in relation to the Turkish-Kurdish and Chechen conflicts. In Akkum v Turkey (2005) the ECtHR confirmed that a killing may be justified ‘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’.86 Turkish authorities (as with state actors in the other case studies) are guilty of failing to adequately investigate threats to life or limb at the hands of state forces. This was facilitated by lack of evidence, intimidation of witnesses, doctored evidence, secret evidence, collusion and the use of inadequate tribunals. The ECtHR overcame this by demanding that the state gives a sufficient explanation that fits within Article 2(2) for the killing. If the state refuses to do so, or its explanation is not satisfactory, the death is ruled unjustified by default.87 However, the ECtHR in Gülbahar Ozer v Turkey (2013) clarified that the Court needs ‘cogent elements’ to lead it to depart from the findings of fact reached by domestic authorities.88

80

Kelly and Others v UK (2001); McKerr v UK (2001); Hugh Jordan v UK (2001). McCann and Others v UK (1995) paras 213–14. ibid, para 200. 83 Kelly and Others v UK (2001); McKerr v UK (2001); Hugh Jordan v UK (2001). 84 Kelly and Others v UK (2001) paras 107 and 110. 85 ibid, para 105. 86 Akkum and Others v Turkey (2005) para 238. 87 ibid, paras 203 and 209. 88 Gülbahar Ozer and Others v Turkey (2013) para 60. 81 82

Effect a Lawful Arrest or to Prevent Escape—Article 2(2)(b) of the ECHR 35 This includes asking a government questions to which the Court receives no response.89 In this case the Turkish government claimed there had been a stand-off between state forces and Kurdish rebels, which resulted in the killing of children. The ECtHR was not satisfied that the government had provided sufficient justification for the lethal response. This reliance on drawing inferences from inadequate state responses represents a move away from the Court’s original approach regarding such contentious killings. In Akhmadov v Russia (2008)90 the ECtHR reprimanded Russia for policies that were accepted from the UK. This case involved the lethal attack against and abduction of unarmed farmers in the Gudermes district of Chechnya by Russian forces. The ECtHR reasoned that: 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 obligation to protect life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.91

Nevertheless, the military secrecy surrounding the legal framework in place was unsatisfactory. It is not acceptable ‘that every serviceman … knows and must strictly comply with the rules governing contacts with the civilian population in the area of military action’; more details of how this is ensured must be provided.92 The ECtHR was also dissatisfied with the lack of evidence produced to show that the suspects posed a threat to life or limb and that the soldiers reacted on the basis of an honest belief that they did pose such a threat.93 Similarly in NI, the rules of engagement used by state forces were shrouded in secrecy and there was a lack of evidence. Yet the ECtHR opted to leave the judgment on whether the killing was justified to the domestic courts. That was despite the domestic remedies facing the same questions of inadequacy and corruption that face Russian remedies.94 In the ECtHR’s defence, Russia’s methods of force were so extreme in Chechyna (including firing bullets and shells indiscriminately)95 that these methods increased the margin of doubt for whether the actions were absolutely necessary and proportionate. In Taysumov v Russia (2009),96 the village of Chechen-Aul was shelled on 7 September 2002, killing civilians. The Russian government denied the attack. The ECtHR found that only the Russian military could have carried out the attack, and therefore its involvement was proven beyond reasonable doubt. Since the Russian authorities provided no justification for the attack through their denial,

89 ibid. 90

Akhmadov and Others v Russia (2008). ibid, para 97. 92 ibid, 100. 93 ibid, para 101. 94 Kelly and Others v UK (2001); McKerr v UK (2001); Hugh Jordan v UK (2001). 95 Akhmadov and Others v Russia (2008); Taysumov and Others v Russia (2009). 96 Taysumov and Others v Russia (2009). 91

36 Duty to Refrain from Unjustified Killing the killings were ruled to have been unjustified.97 These developments are significant in terms of setting the standard of proof required and putting the onus on state agents to use live ammunition only when it is absolutely necessary, reasonable and proportionate. As time passed and Article 2 cases increased, the ECtHR became naturally braver in tackling hard issues. The later cases (such as those involving Turkey and Russia) have encountered most of this development. Further, the ECtHR received such a volume of repetitive Article 2 cases from Turkey and Russia that it could not ignore the situation and had to take a harder line against the systematic grave violations that were occurring. Yet the initial line against Turkey and Russia was not hard enough. The common response from the ECtHR was to award only compensation. This is unlike its counterpart the Inter-American Court of Human Rights, which often includes a number of recommendations that must be followed in its decisions.98 The ECtHR is moving towards the Inter-American model to an extent, but remains a reactive court that is reserved in the recommendations that it does make. The difference in reaction of the ECtHR to NI, Turkey and Russia could be attributed to the ECtHR’s political nature. The Court is less likely to question the actions of an established democracy and Member State of the EU (such as the UK) than the actions of an emerging democratic state that is struggling to gain accession to the Union (Turkey). To do so would call into question the stability and integrity of the EU. Furthermore, the UK is a state with a reputation of high compliance with the ECHR.99 To expressly rule that the UK government allowed its agents to regularly and intentionally disregard the most fundamental right in the ECHR, and to do so at the beginning of a sensitive realisation of a peace agreement, could have created a backlash. On the other hand, Turkey’s democratic structure is relatively new and it faced a number of reformed social contracts through military coups. Turkey is not recognised as a pillar of European society, but is seen as a state with a low reputation for compliance.100 Consequently, it was openly criticised by the CoE for its continuing disregard for human rights. The same can be said for Russia. It could also be the ECtHR reacting to Turkey’s systematic disregard for the ECHR. Similarly to Russia, Turkey provides minimal or no information and focuses on discrediting the applicants, instead of addressing the recurrent issues that arise—unlike the UK and Spain, which have imperfect but better records of engagement with the Court. This is an inherent flaw of the European system (which contains 47 HCPs), with some states more willing to engage with the system than others.

97

ibid, para 82 and 92. Montero-Aranguren et al (Detention Centre of Catia) v Venezuela (2006) para 160. Dothan, ‘Judicial Tactics in the ECtHR’ (2011) 12(1) Chicago Journal of International Law 115, 116. 100 ibid. 98

99 S

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 37 V. QUELLING A RIOT AND INSURRECTION—ARTICLE 2(2)(c) OF THE ECHR

The duty to only use force which is absolutely necessary to quell a riot or insurrection (Article 2(2)(c) of the ECHR) has not been extensively explored by the ECtHR. The first issue is the definition (or lack thereof) of ‘riot’ and ‘insurrection’, which ‘have autonomous meanings’.101 The second is the strengths and weaknesses of how the ECtHR deals with potential violations of Article 2 regarding the methods of force that are commonly used to quell a riot or insurrection. It is particularly concerning that less-lethal weapons are subject to a ‘form of mission creep’.102 That is: the weapons are intended for use in certain cases—for example, as an alternative to the use of deadly force (sometimes described as an option between ‘shout’ and ‘shoot’)—but once they are available they are used in a much broader range of cases, such as to compel non-violent persons to comply with directions.103

The ‘use of force’ set out in Article 2(2) refers to intentional as well as unintentional threats to life or limb.104 Therefore, the methods considered include lethal methods (live ammunition) and less-lethal methods (rubber and plastic bullets, teargas and water cannon).

A. Definition of ‘Riot’ The ECHR’s judicial bodies dealt with the definition of a ‘riot’ to some extent. The European Commission on Human Rights (ECommHR) found in Stewart v UK (1984) that ‘an assembly of 150 person throwing missiles at a patrol of soldiers to the point that they risked serious injury must be considered, by any standard, to constitute a riot’ (emphasis added).105 In Gülec v Turkey (1998) the ECtHR found that a riot within the meaning of Article 2 occurred, but did not clarify what this meant within its analysis.106 The Court was referring to the ‘spontaneous, unauthorised demonstrations, shop closures and attacks of public buildings’ that occurred.107 In Simsek v Turkey (2005) the ECtHR considered whether the demonstrations were peaceful.108 The Court concluded that in this particular case, where there was ‘resistance and acts of violence’, the demonstrations were not peaceful. In reaching this conclusion it referred to ‘chanting slogans, throwing stones 101

D Harris et al, Harris, O’Boyle and Warbrick: Law of the ECHR (OUP, 2009) 232. S Coleman, ‘Discrimination and Non-Lethal Weapons: Issues for the Future Military’ in D Lovell and I Primoratz (eds) Protecting Civilians During Violent Conflict: Theoretical and Practical Issues for the 21st Century (Ashgate Publishing, 2013) Ch13. 103 ibid. 104 LCB v UK (1998), para 36. 105 Stewart v UK (1984) 172. 106 Gülec v Turkey (1998) para 68. 107 ibid, para 7. 108 Simsek and Others v Turkey (2005) para 107. 102

38 Duty to Refrain from Unjustified Killing and fire bombs at police barricades and causing damage to nearby b uildings’.109 However, the ECHR’s judicial bodies did not clarify whether resistance (eg chanting slogans and unauthorised demonstrations) was enough to be defined as a riot, or whether acts of violence (eg throwing stones, fire bombs and attacks on public buildings) were the deciding factor for whether a riot occurred. This research finds that resistance alone is not enough. It remains unclear when actions move from trying to prevent a violent crime (an Article 2(2)(a) scenario) to quelling a riot (an Article 2(2)(c) scenario). A state actor is faced with a multitude of variables and challenges when dealing with different crimes or actions. Determining whether the use of force is justified is context-sensitive; thus the distinction could prove important for identifying whether the method of force used and the extent to which it is used is justified. In Perisan v Turkey (2010) it is implied that it is not the number of people involved— the same number of prisoners was involved in the initial disturbance in the prison which began at 10:30 as at the point when the Court was satisfied it became a riot, at 15:20.110 The determination appears to be the extent of the damage caused and the extent of the disruption to the everyday workings of the prison that resulted. Up until 15:20 the prisoners were confined to one part of the prison. After this point they gained access to other areas, caused widespread damage and disrupted the normal workings of the prison. Regarding the origin of the riot, the ECtHR confirmed that this is irrelevant if ‘attacks’ and ‘injuries’ take place.111 In Gömi v Turkey (2006) there were conflicting reports as to whether a prison riot was started by the inmates or was retaliation for mistreatment by the prison guards. The question became whether the force used against the prisoners was absolutely necessary and proportionate.112 The ECtHR should consider and clarify these points.

B. Definition of ‘Insurrection’ There is no guidance on what an ‘insurrection’ means, within the text of Article 2 or the jurisprudence of the ECtHR. The dictionary definition is ‘a violent uprising against an authority or government’.113 It is the first ‘rung of a ladder’ that could lead to war.114 It was also defined as ‘a civil disorder … of such a magnitude that law enforcement personnel are needed to maintain and preserve law and order’.115 109 ibid. 110

Perisan v Turkey (2010) paras 10 and 78. Gömi v Turkey (2006) para 50. 112 ibid, para 51. 113 Oxford Dictionaries, ‘Definition: Insurrection’, www.oxforddictionaries.com/definition/english/ insurrection. 114 C Berry, ‘The Convergence of the Terrorism Insurance and Political Risk Insurance Markets from Emerging Market Risk: Why it is Necessary and How it Will Come About’ in T Moran et al, Needs of the Present, Challenges for the Future (WBP, 2008) 21. 115 V Zachry-Perini, ‘A Joint Venture (Bangladesh: 1974)’ in M Kantor et al (eds), Reports of Overseas Private Investment Corporation Determinations (OUP, 2011) 349. 111

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 39 On the other hand, commentators indicated that it does not necessarily have to be a violent act, defining it as ‘a broad-based citizen’s movement’ or ‘social movement’.116 In the context of the ECHR, it was confirmed that for an insurrection to justify a response of force it must involve the perpetrators posing a threat to life or limb through violence.117 Yet it remains unclear as to when such actions move from trying to prevent a violent crime (an Article 2(2)(a) scenario) to quelling an insurrection (an Article 2(2)(c) scenario). As explained above, a distinction could prove important for determining whether the method of force used and the extent to which it is used is justified. Therefore, the ECtHR should clarify this definition at the earliest opportunity, for which it could use the dictionary definition as a starting point.

C. The Use of Live Ammunition It was established that there is ‘no basis for concluding that law-enforcement officers should not be entitled to have lethal weapons at their disposal to counter attacks’.118 Yet, this is a type of force and it is subject to the same general principles provided within Article 2(2) of the ECHR. Given the lethal nature of live ammunition, Giuliani and Gaggio v Italy (2011) provides specific guidance as to when it is permissible to use such force in an Article 2(2)(c) situation. This case identified that warnings must be given by the security forces and that the demonstrators must be persisting in their attack despite the warnings.119 Also, the shot from the state agent must be fired in defence against a ‘sudden’, ‘violent’ attack, which poses an ‘imminent and serious threat’ to life.120 The ECtHR confirmed that a shot that threatened life or limb ‘does not in itself mean that the defensive action’ is ‘excessive or disproportionate’.121 Live ammunition was disproportionately used in the four case studies to conduct operations implicating Articles 2(2)(a) and 2(2)(b). It is hard to judge how much live ammunition was used by state agents during riots in the four case studies, as its use was only reported when it led to a death. Nevertheless, there are cases that suggest that when live ammunition was used to quell a riot it was not always used in a manner that reflects the principles of absolute necessity and proportionality. These examples are drawn from the experiences in the Basque country, NI and Turkey. Given the guerrilla nature of the conflict in Chechnya, it was not common for Chechens to orchestrate riots. Peaceful demonstrator Rafael Gómez Jáuregui was killed and many others were injured by live ammunition fired indiscriminately into the crowd by the Spanish 116

K Danaher and J Mark, Insurrection: Citizen Challenges to Corporate Power (Routledge, 2003) 1. Nachova and Others v Bulgaria (2004), para 95. 118 Giuliani and Gaggio v Italy (2011) para 216. 119 ibid, para 193. 120 ibid, para 216. 121 ibid, para 193. 117

40 Duty to Refrain from Unjustified Killing Guardia during pro-amnesty demonstrations on 12 May 1977.122 This scenario was common in NI with the killing of bystanders Michael Lynch, Samuel McLaron, John Gallagher and Annette McGavigan.123 Indiscriminate fire also led to the fatal shooting of rioters Kirk Waters, Seamus Simpson and Seamus Cusack.124 These cases were not considered by the ECtHR, though Cusack’s death was initially included in Ireland v UK (1978).125 In each of the NI cases, compensation was awarded and where inquiries took place it was acknowledged that excessive force had been used. However, it was deemed impossible to determine who fired the fatal shot126 and prosecutions were not pursued. The ECtHR considered one case of deadly riots in Turkey related to the Turkish-Kurdish conflict. In Gülec v Turkey (1998) the Court assessed the use of live ammunition against unarmed demonstrators for the purposes of dispersing demonstrators, which led to the death of two people and the wounding of 12 others. The applicant’s 15-year-old son, Ahmet Gülec, was killed. He was moving through the demonstration on his way home from school.127 The ECtHR found that, even though the demonstration was not peaceful and constituted a riot, the force used by the state forces was disproportionate. It found no evidence of armed PKK members at the demonstration (claimed by the state to justify the use of lethal force) and reasoned that ‘a balance must be struck between the aim pursued and the means employed to achieve it’.128 The Court further found that the state’s excuse that it lacked an alternative was not acceptable: 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 equipment is all the more incomprehensible and unacceptable because the province of Sirnak … is a region [where] a state of emergency [had] been declared, where at the material time disorder could have been expected.129

The ECtHR therefore made it clear that the use of force (including the use of live ammunition) must be proportionate and absolutely necessary.

D. The Use of Rubber and Plastic Bullets It is speculated that in three of the four case studies state agents preferred to use less-lethal measures in a lethal manner, in an attempt to appear to be operating

122

R Clark, The Basques: The Franco Years and Beyond (University of Nevada Press, 1979) 294. D McKittrick et al, Lost Lives: The Stories of the Men, Women and Children Who Died as a Result of the NI Troubles (Mainstream Publishing, 2012) 35, 36 and 97. 124 ibid 75 and 422. 125 Ireland v UK (1978). 126 McKittrick (n 123) 35, 36, 75, 97 and 422. 127 Gülec v Turkey (1998). 128 ibid, para 71. 129 ibid. 123

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 41 within the domestic guidelines and the requirements of Article 2. Rubber bullets were frequently used against protesters in the Basque country. The facts are disputed, but there were claims that on occasion they were used unnecessarily against peaceful protesters,130 thus falling outside the justification provided by Article 2(2)(c). The bullets caused many injuries, but the first death was that of Iñigo Cabacas, in April 2012.131 Mr Cabacas was struck in the head by a rubber bullet after a football match in Bilbao and died four days later. The incident was unrelated to the Basque conflict, but it led to a banning of the use of rubber bullets in the Basque country. They continue to be used in the rest of Spain, but were replaced in the Basque country by plastic bullets. Significantly, the Spanish government stressed the importance of the protocol and training implemented for the use of the new weapon.132 There were claims that the Spanish authorities had not been adhering to these requirements of Article 2 of the ECHR before.133 The issue was not investigated by the national authorities or brought before the ECtHR. Plastic bullets were used against Kurdish protestors in Turkey, causing non-fatal injuries.134 This form of force was used during demonstrations. There is no conclusive evidence as to whether the demonstrations were peaceful and only escalated in reaction to excessive force from state agents. This raises questions as to whether the force used was absolutely necessary, proportionate and therefore justified. However, evidence suggests that in instances that could be deemed to satisfy Article 2(2)(c), not only demonstrators were targeted by the bullets, but also innocent bystanders.135 Such targeted attacks do not satisfy Article 2(2). Yet the issue was not effectively investigated by the national authorities or brought before the ECtHR. It is reasoned that this is because many people choose not to file a formal complaint of police ill-treatment with the prosecutor ‘because it would bring them to the attention of the police and work against them’.136 During the two periods of conflict in Chechnya, the Russian authorities preferred a more intense approach with the aim of flushing out Chechen insurgents.137 Less-lethal force was not used during the Chechen conflicts. Russian state actors resorted to live ammunition straight away. However, in the months running up to the end of the second Chechen conflict, the Chechen OMON used rubber bullets. One recorded incident was the dispersal of a group of women

130 M Heiberg, ‘ETA: Euskadi ‘ta Askatasuna’ in M Heiberg et al (eds), Terror, Insurgency and the State: Ending Protracted Conflicts (University of Pennsylvania Press, 2007) 41. 131 T Burridge, ‘Riot control guns raise concern in Spain’, BBC News, 21 December 2012. 132 ibid. 133 ibid. 134 E Sinclair-Webb, Closing Ranks Against Accountability: Barriers to Tackling Police Violence in Turkey (HRW, 2008) 46. 135 ibid. 136 ibid, 47. 137 R Shultz and A Dew, Insurgents, Terrorists and Militias: The Warriors of Contemporary Combat (Columbia University Press, 2013) ch 5.

42 Duty to Refrain from Unjustified Killing peacefully protesting against the unemployment situation.138 Applying the facts presented to Article 2(2), there is nothing to suggest that the women were being violent and posing a threat to life or limb, meaning that there is nothing to justify the use of rubber bullets. This sets a dangerous precedent and the impunity that exists for more serious crimes implies no remedies are available. The conflict in NI provides the starkest examples of the threat to life or limb posed by less-lethal forms of force. Rubber bullets (or more accurately, rubbercoated bullets) were used in NI between 1970 and 1975.139 Over this period 55,000 rounds were fired, causing permanent injuries to nine people.140 In 1973 plastic bullets were introduced to NI. Between then and the end of the Troubles, 125,000 rounds were fired,141 causing 14 deaths and approximately 594 injuries.142 The use of these less-lethal forms of force created much controversy; one side viewed them as ‘defensive, the other as offensive weapons’.143 At the time the regulations in place for the use of these bullets were secret. This created difficulties for applicants in gathering evidence for their claims of injustice.144 However, at an operational level, the state actors were in full knowledge. It is now known that the violations were not due to a lack of legal safeguards, but the wording of these safeguards could have more effectively reflected the principles of proportionality and absolute necessity. While this was not the main offending issue, it was part of the problem. Until the regulations changed in 1999, less-lethal forms of force could be used when there was a threat to property alone.145 It did not require a threat to life or limb, as stated by Article 2 of the ECHR.146 This significantly increases the situations where force can be used, thus increasing the threat to life (as proven by the statistics).147 The ECtHR should have taken a more robust approach towards the domestic legislation and regulations in force during the Troubles. By failing to do so it was operating contrary to its own stipulation that Article 2(2) of the Convention should be ‘strictly construed’.148 The main issue was that ‘on occasions the instructions for the use of the bullets were disobeyed’.149 Rubber bullets were designed to be fired against the ground, to ricochet towards their target. Children were particularly vulnerable in such

138

P Murphy, Allah’s Angels: Chechen Women in War (Naval Institute Press, 2011) 249. B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 260. 140 ibid. 141 ‘The trouble with plastic bullets’, BBC News, 2 August 2001. 142 Dickson (n 139) 261; M Sutton, An Index of Deaths from the Conflict in Ireland 1969–1993 (Beyond the Pale Publications, 1994); M Melaugh, ‘Draft List of Deaths Related to the Conflict, 2002’, http://cain.ulst.ac.uk/sutton/chron/index.html; ‘Special Report: New plastic bullets rules in force’, BBC News, 1 August 1999. 143 McKittrick (n 123) 567. 144 Dickson (n 139) 261. 145 ‘Special Report: New plastic bullet rules in force’, BBC News, 1 August 1999. 146 Nachova v Bulgaria (2004) para 95. 147 Dickson (n 139) 260; ‘The trouble with plastic bullets’, BBC News, 2 August 2001. 148 CCPR, ‘General Comment No 6’ (1982) para 1; McCann v UK (1995) paras 147 and 150. 149 Dickson (n 139) 261. 139

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 43 situations, given their height disadvantage,150 as evidenced by 11-year-old Frank Rowntree’s death.151 There was also evidence of the bullets being used incorrectly and fired directly at targets. Tobias Molloy152 and Thomas Friel died153 and three victims were blinded, due to blows to the head.154 Plastic bullets were to be fired directly at the target, but only from at least 20 metres away and targeted at a non-fatal part of the body.155 All fatalities occurred from injuries to the head or chest, with evidence to suggest that they were fired at close range.156 In addition, only four of the fatalities occurred during street disturbances. The remaining 13 were civilians, eight of whom were children.157 Using the parameters set by Article 2(2), only four of these cases were potentially justified, the classification of which depends on the context of each individual case. The facts are disputed in these four cases, but there is evidence to suggest that baton rounds were on occasion intentionally fired too close and at the wrong body parts.158 The statistics also suggest that they were lethally discharged in a discriminatory manner against Catholics, with only one Protestant fatality.159 Furthermore, it is now known that the state forces continued to use weapons that they knew were unreliable and could result in fatal injury.160 Only one prosecution resulted from these deaths. That ended in the constable in question being acquitted of manslaughter on the basis that Hutton J was satisfied that the police officer had acted ‘almost instinctively to defend his comrades without having time to assess the situation in the light of his knowledge of the police regulations’.161 Article 2 does allow for the extremities and unpredictability of the situation to be taken into account.162 However, the statistics alone—76% civilian deaths, 94% non-prosecutions and 100% acquittal rate—illustrate the

150

P Scraton, Power, Conflict and Criminalisation (Routledge, 2007) ch 8. McKittrick (n 123) 179. 152 ibid 226. 153 ibid 360. 154 Dickson (n 139) 260. 155 A Jennings, ‘Bullets Above the Law’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990) 133; ‘The trouble with plastic bullets’, BBC News, 2 August 2001. 156 McKittrick (n 123) 179, 226, 360, 568, 678, 835, 856, 861, 864, 870, 873, 875, 901, 993, 1035, 1175. 157 Sutton (n 142); ‘List of People Killed by “Rubber” and “Plastic” Bullets’, http://cain.ulst.ac.uk/ issues/violence/rubberplasticbullet.htm; McKittrick (n 123) 568, 678, 835, 856, 861, 864, 870, 873, 875, 901, 993, 1035, 1175. 158 Sutton (n 142); ‘List of People Killed by “Rubber” and “Plastic” Bullets’, http://cain.ulst.ac.uk/ issues/violence/rubberplasticbullet.htm; McKittrick (n 123) 568, 678, 835, 856, 861, 864, 870, 873, 875, 901, 993, 1035, 1175. 159 Dickson (n 139) 260. 160 ‘Rubber bullets: Army kept real dangers in NI hidden’, BBC News, 11 June 2013; the case of Stephen McConomy, where a forensic scientist told the inquest that the gun was inaccurate by 11 to 15 degrees: McKittrick (n 123) 901. 161 R v Hegarty (1986) para 42. Sean Downes’ case: HRW, ‘Human Rights in NI’ (HRW, 1991) 159–60. 162 McCann v UK (1995) para 150; Arapkhanovy v Russia (2013) para 118; Kasa v Turkey (2008) para 81; Usta and Others v Turkey (2008) para 53; Yüksel Erdogan and Others v Turkey (2007) para 93; Akpinar and Altun v Turkey (2007) para 51. 151

44 Duty to Refrain from Unjustified Killing domestic organs’ reluctance to hold to account those who exercised excessive use of force.163 This filtered to every level—the Director of Public Prosecutions (DPP) refused to take prosecutions;164 inquests ruled ‘death through misadventure’165 and not ‘unjustified’; and the High Court refused to allow inquests.166 Any culpability was covered up with compensation167 and where a reason was given for not prosecuting, it was that the state actor who fired the offending bullet could not be identified from the evidence available.168 The response was inadequate also at a regional level. The acceptance of compensation was deemed to be an effective alternative remedy and made any application before the European judicial bodies inadmissible.169 Further, the only case to be brought to the ECommHR, Stewart v UK (1985),170 found that plastic bullets were an appropriate weapon to deal with civil disturbances. This was on the basis of the ‘continuous public disturbance’ that existed in NI at the time and that the present case fell within the confines of Article 2(2)(c) of the ECHR.171 This illustrates: two central deficiencies in the ECHR system. First, that the system is almost entirely based on the consideration of complaints from individuals whose rights have allegedly been breached: it cannot easily deal with more general complaints to the effect that, for example, an inappropriate weapon has been deployed for use by a country’s security forces or that the instructions for its use do not take proper account of the likelihood of young children being struck by the weapon. To that extent the Convention is … a reactive rather than a preventative system. Second, the adjudicating bodies sometimes express themselves in ways which do not measure up to thorough scrutiny.172

In Stewart the ECommHR used the ratio of deaths to number of plastic bullets fired to conclude that such bullets were not sufficiently dangerous to be deemed force that was no more than absolutely necessary. This disregards the European system’s own stipulation that all circumstances of the individual case should be

163 Calculated on the basis of figures in Dickson (n 139) 260; ‘The trouble with plastic bullets’, BBC News, 2 August 2001. 164 Michael Donnelly’s and Nora McCabe’s cases where the actions were ruled unjustified and the state actors attempted to cover up their accountability with false statements: HRW (n 161) 160. 165 Stephen Geddis was a child killed by plastic bullets fired as soldiers were dispersing a crowd of 50–60 children throwing stones. There was no claim from the military that he was rioting, and civilian witnesses confirmed that he was not involved in the stoning. His death was ruled to be a misadventure. Henry Duffy, a civilian, was walking home when he was struck by plastic bullets. The inquest found that there was not rioting and that his death was by misadventure: HRW (n 161) 159–60. 166 Sean Downes’ case: HRW (n 161) 159–60. 167 McKittrick (n 123) 179, 226, 360, 568, 678, 835, 856, 861, 864, 870, 873, 875, 901, 993, 1035, 1175; ‘The trouble with plastic bullets’, BBC News, 2 August 2001. 168 The case of 15-year-old Seamus Duffy, killed by a plastic bullet during an anti-internment rally. The DPP ruled that no action should be taken, on the basis of being unable to identify which of the two police officers fired plastic bullets were to blame: McKittrick (n 123) 1176. 169 Dickson (n 139) 262. 170 Stewart v UK (1985). 171 ibid, paras 27, 28 and 30. 172 Dickson (n 139) 263–64.

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 45 taken into account to determine absolute necessity and proportionality.173 It should not be a numbers game, but a close analysis of whether, in that case, the recourse to plastic bullets was necessary, proportionate and justified.

E. The Use of Teargas Teargas varies in form. It is a chemical agent, but it is not considered a chemical weapon.174 It is authorised for the purposes of law enforcement, including during domestic riot control.175 It is not a harmless substance. Teargas can cause temporary discomfort and/or long-term issues including: breathing difficulties, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pains, dermatitis and allergies. In high doses it can cause necrosis of the tissue in the respiratory tract and the digestive system, pulmonary oedema and internal bleeding.176

Depending on the length and amount of exposure, this can lead to death. Also, when a teargas canister is improperly shot from a grenade launcher, it can kill or cause serious injuries.177 It was asserted that the teargas launcher is to be fired at an angle of more than 45 degrees into the air, not horizontally and not directly at the target.178 Teargas was used in each of the four case studies. In the Basque and NI conflicts there were no deaths as a result or any recorded injuries. However, as with the use of rubber and plastic bullets, there is doubt over whether the use of teargas was absolutely necessary and fitted within the exception provided by Article 2(2)(c) every time it was used. Incidents concerning the Turkish-Kurdish and Chechen conflicts offer clearer examples of how teargas was misused, despite the regulations in place. Abdullah Yasa was 13 years old when he was hit on the nose by a teargas canister while at the scene of a PKK demonstration in Diyarbakir in March 2006.179 His injuries were not life-threatening, which led to an Article 3 (not Article 2) ECHR

173 McCann v UK (1995) para 150; Arapkhanovy v Russia (2013) para 118; Kasa v Turkey (2008) para 81; Usta and Others v Turkey (2008) para 53; Yüksel Erdogan and Others v Turkey (2007) para 93; Akpinar and Altun v Turkey (2007) para 51. 174 Art 1(5), UN Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993. 175 Art II(9)(d), ibid; Ciloglu and Others v Turkey (2007) paras 18–19; Oya Ataman v Turkey (2007) paras 17–18; Abdullah Yasa and Others v Turkey (2013) para 29. 176 Abdullah Yasa and Others v Turkey (2013) para 29. 177 ibid, para 28. 178 ibid, para 22. 179 ibid.

46 Duty to Refrain from Unjustified Killing claim. This was due to circumstance, not the Article 2-compliant actions of the Turkish authorities. This was implied by the ECtHR in its statement that: regardless of whether or not the applicant had been participating actively in the demonstration … it has clearly not been established that the use of force against the applicant under the conditions … was an appropriate response to the situation … or was proportionate to the aim pursued, namely to disperse a non-peaceful gathering. In fact, the severity of the injuries noted to the applicant’s head could not have been commensurate with the strict use by the police officers of the force necessitated by his behaviour.180

While they were not under scrutiny by the ECtHR, two other persons were killed by teargas grenades during the period 28 to 31 March 2006.181 In Abdullah’s case the Turkish law was found to have ‘lacked any specific provisions on the use of teargas grenades during demonstrations, and did not lay down instructions for their utilisation’.182 This ‘deduced that the police officers were able to act very independently and take ill-considered initiatives, which would probably not have been the case if they were given appropriate training and instructions’.183 Therefore, the ECtHR ruled that compensation should be awarded. It also took an uncharacteristic approach of advising that the guarantees on proper use of teargas grenades are reinforced ‘in order to minimise the risks of death and injury stemming from their use, by adopting more detailed legislative and/or statutory instruments, in accordance with the principles’ set out by the Court.184 The latter remedy is an example of the more robust approach that this book advocates to assist with the effective promotion and protection of Article 2, something which the ECtHR is cautiously moving towards with its pilot judgment procedure. The Turkish authorities responded by introducing the Directive on the Principles and Procedures Regarding the Actions of Law Enforcement Officers Tasked to Police and Control Demonstrations of 25 August 2011. This Directive requires that less-lethal force is used proportionately and gradually, depending on the level of violence faced by the police.185 This Directive did not prevent the teargas injuries and deaths that occurred during the anti-government Gezi protests of June 2013.186 This further highlights the limitations of law and the need for states to address internal attitudes to rights. It remains to be seen whether the two additional directives introduced on 26 June 2013 and 22 July 2013 will be more effective. These directives provide more distinct instructions for the use of tear gas. They require law enforcers to give warnings, to restrict the places where

180

Ibid, para 46 and 49. Ibid, para 48. Ibid, para 48. 183 Ibid, para 48. 184 Ibid, para 54; Izci v Turkey (2013); Ataykaya v Turkey (2014). 185 CM/Del/Dec(2013)1179, ‘Annotated Order of Business and Decisions Adopted, 14–26 S eptember 2013’, 27 September 2013. 186 C Letsch, ‘Turkish police fire teargas to quell protests after boy, 15, dies’, The Guardian, 11 March 2014; HRW, ‘Turkey: Unlawful Use of Teargas’, 16 July 2013. 181 182

Quelling a Riot and Insurrection—Article 2(2)(c) of the ECHR 47 teargas can be used, to only allow trained officers to use teargas and not to fire at targets directly. Teargas was not used in Chechnya by the Russian forces, but it was used in the Moscow Theatre siege against Chechen rebels and their 778 hostages. On 23 October 2002 approximately 40 armed Chechens stormed the Dubrovka Theatre and maintained a siege for two and half days. Their demands were the withdrawal of Russian forces from Chechnya and the end of the second Chechen conflict.187 Over the course of the siege four people were killed by the rebels. On 26 October 2002 the Russian forces pumped an undisclosed chemical agent into the theatre’s ventilation system and raided it. All the rebels were killed and approximately 126 hostages died from the effects of the gas. The Russian authorities refused to disclose the identity of the gas to doctors, which increased the death toll,188 though this was contested by state witnesses.189 In Finogenov v Russia (2011) the applicants complained that their relatives suffered and died as a result of the storming conducted by the Russian security forces.190 The Russian authorities relied on Russia’s terrorism laws to justify their actions. Section 3 of the Suppression of Terrorism Act of the Russian Federation 1998 allows force to be used where there is: violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates danger to people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of violating public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to the terrorists or to satisfy their unlawful pecuniary and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.191

This provision largely follows Article 2, but adds the extra exception that use of force can be used to protect property. There was clear threat to life in this case, thus engaging Articles 2(2)(a) and 2(2)(c). The question is whether the Russian authorities’ actions were absolutely necessary, proportionate and justified. The Russian authorities challenged the assertion that there was a ‘direct causal link’ between the gas and the deaths, instead stating that the hostages that died were weakened by the siege or seriously ill.192 Applying the beyond reasonable doubt

187

Finogenov and Others v Russia (2011). D MacKenzie, ‘Mystery of Russian gas deepens’, New Scientist, 29 October 2002. 189 Finogenov and Others v Russia (2011) paras 72–93. 190 ibid, para 165. 191 Law No 130-FZ. In force until 1 January 2007. 192 Finogenov and Others v Russia (2011) para 201. 188

48 Duty to Refrain from Unjustified Killing standard of proof, the ECtHR found that it was ‘safe to conclude that gas remained a primary cause of the death of a large number of the victims’.193 The ECtHR acknowledged that the ‘magnitude of the crisis … exceeded everything known before and made that situation truly exceptional’.194 This included the fact that the rebels were heavily armed, well-trained and devoted to their cause; that the hostage-taking came as a surprise, requiring the Russian response to be quick and in full secrecy; and that the Russian authorities were not in control of the situation inside the building.195 It also accepted its own lack of expertise in relation to the issue.196 Consequently, the Court granted a margin of appreciation to the Russian authorities, ‘in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt’.197 Therefore, the Court concluded that the decision to storm the building was justified under Article 2.198 When considering whether the use of gas was justified in Finogenov, the ECtHR found the legislative framework for the use of gas to be ‘unclear’.199 The law allows for the use of weapons, but does not indicate the type of weapons or in what circumstances. The type of gas used was also shrouded in secrecy, making it impossible to identify whether it was a conventional weapon. Yet the Court was unfazed by this, stating that: it cannot lead to a finding of a violation of Article 2 of the Convention … The general vagueness of the Russian anti-terrorism law does not necessarily mean that in every particular case the authorities failed to respect the applicants’ right to life. Even if necessary regulations did exist, they probably would be of limited use in the situation at hand, which was totally unpredictable, exceptional and required a tailor-made response. The unique character and the scale of the Moscow hostage crisis allows the Court to distinguish the present case from other cases where it examined more or less routine police operations and where the laxity of a regulatory framework for the use of lethal weapons was found to violate, as such, the State’s positive obligations under Article 2.200

Further, the ECtHR found that the use of the gas was justified on the basis that it ‘was capable of facilitating the liberation of the hostages and reducing the likelihood of explosion, even if it did not remove that risk completely’.201 Therefore, the gas was not used indiscriminately and was not intended to kill.202 The Court noted that the situation might have been different if the Russian authorities had ‘used

193

ibid, paras 199 and 202. ibid, para 213. 195 ibid, para 213. 196 ibid, para 211. 197 ibid, para 213. 198 ibid, para 226. 199 Finogenov and Others v Russia (2011) para 229. 200 ibid, para 230. 201 ibid, para 234. 202 ibid, para 232. 194

Margin of Appreciation and Article 2 49 airborne bombs to destroy a rebel group hiding in a village full of civilians’.203 The Court concluded that the force used was not excessive, but after assessing the planning of the operation and the follow-up investigations, it did find a breach of Article 2.

F. Water Cannon A water cannon ejects a powerful jet of water, typically used to disperse a crowd. The ECtHR noted that ‘there is room for debate as to whether law-enforcement personnel should also be issued with … water cannons’,204 indicating that the use of such equipment is not always in line with Article 2(2)(c). It is acknowledged as a weapon that can, ‘on rare occasions, kill’.205 However, there are no recorded incidents of water cannon causing a threat to life or limb in Europe and there were no such claims before the former ECommHR or ECtHR. Nevertheless, the arguments made in relation to other less-lethal force apply equally to the use of water cannon. The fact that a death has not occurred or the threat to limbs was not found significant enough to record, does not negate the fact that water cannon should be used in a way that is compliant with Article 2.

VI. MARGIN OF APPRECIATION AND ARTICLE 2

It is traditionally understood that the right to life is a limited right206 with ‘no or less scope of margin of appreciation’.207 A margin of appreciation only arises in ‘truly exceptional’ circumstances.208 However, as the above cases concerning nonlethal use of force illustrate, there are inconsistencies in the ECtHR’s attitude to Article 2 and the margin of appreciation, which is troublesome.209 The level of scrutiny of Article 2 may now: depend on how far the Court is prepared to go in isolating a given incident or seeing it as a part of a broader set of planning and control challenges for the State, thus diluting the assessment of lethal force through narrative relativisation.210

203

ibid, para 232. Giuliani and Gaggio v Italy (2011) para 216. 205 R Booth, ‘Water cannon: a shocking device that could transform British policing’, The Guardian, 4 April 2014. 206 Limited rights are those that can be ‘subject to limitations, but only insofar as those limitations are listed’: G Anthony, UK Public Law and European Law (Hart Publishing, 2002) 68. 207 Reid (n 25) 744. 208 Finogenov and Others v Russia (2011) para 213. 209 S Skinner, ‘Deference, Proportionality and the Margin of Appreciation in Lethal Force Case Law Under Article 2 ECHR’ (2014) European Human Rights Law Review 32, 34–35. 210 ibid. 204

50 Duty to Refrain from Unjustified Killing The ECtHR stated that the margin of appreciation was awarded in Finogenov due to it being a ‘truly exceptional’ situation.211 Yet there is ‘conceptual slippage’.212 In Saso Gorgiev v the Former Yugoslav Republic of Macedonia (2012), the shooting of a bartender by an on-duty police officer was considered by the ECtHR.213 The police officer left his post of his own accord without informing his colleagues, walked into a bar and shot the victim. The Court found that the state had not taken enough precautions to ensure that the police officer was fit to be carrying a weapon and was aware of the regulations surrounding the use of a weapon. Therefore a violation of Article 2 occurred. However, on the issue of margin of appreciation, the ECtHR found that: the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means.214

On the basis of this finding, the margin argument is at risk of being used in more general terms.215 This is something that the ECtHR should be very careful of in the future.

VII. CONCLUSION

Exploring state practices regarding the use of force throughout this chapter has exposed a number of deficiencies at domestic and European levels. First, the subjective nature of the principles of absolute necessity and proportionality led to misinterpretations216 and advantageous disregard.217 This was facilitated by the challenge of transferring legal principles set out in legislation into practice, something which was identified in this chapter as spawning from the concerned state’s internal attitude to such principles. Second is the ECtHR’s reluctance to robustly criticise states. This involved the ECtHR using its lack of expertise to justify introducing a margin of appreciation that runs the threat of diluting this right.218 This in turn enabled the ECtHR to avoid dealing with the more contentious cases involving systematic violations. Despite the Court’s claims that the reasoning is on the basis of its inexperience, it is suggested that the real reason lies in the political nature of the court.

211

Finogenov and Others v Russia (2011) para 213. Skinner (n 209) 34–35. 213 Saso Gorgiev v the Former Yugoslav Republic of Macedonia (2012). 214 ibid, para 44. 215 Skinner (n 209) 34–35. 216 R v Jones (1975). 217 Damayev v Russia (2012) para 74. 218 Skinner (n 209) 34–35. 212

Conclusion 51 Furthermore, the Court is content to identify itself as a reactive, as opposed to proactive court like the IACtHR. Third, the Court often unnecessarily narrows its focus, when it has the opportunity to address a range of issues. This includes focusing on Article 2, but neglecting to deal with partnering issues such as Article 14 (prohibition of discrimination). Or alternatively choosing to make a ruling in relation to Article 3 of the ECHR, but refusing to consider the Article 2 elements of the claim.219 Taking all of this into account, the European system in its current form is failing to protect the right to life to its full capabilities and reforms are required. These reforms are on two levels—to reconfirm the scope of Article 2 in a way that reflects new developments (particularly those within ECtHR jurisprudence), and to improve the enforceability mechanisms within the CoE system. The former would be addressed by introducing guidelines that would act as official guidance on Article 2. These include clarification of what the CoE has reached consensus on, with reference to the wording of the ECHR and the jurisprudence of the ECtHR. They also include suggestions of what the European stance should be on issues where the ECHR and the ECtHR has not reached consensus. From the point of view of the use of force by state actors, these guidelines should include provisions that expressly provide for proportionality. This includes identifying the proportionality gradient—a warning; less-lethal force; and live ammunition. They should elaborate that ‘absolute necessity’ means ‘last resort’. They should promote protection for the vulnerable—members of the military and those in state custody; and they should prohibit the use of death squads and unjustified targeted killings under any circumstances. The suggested wording for how this can be reflected in the proposed guidelines is set out in the Appendix. Improving the enforceability mechanisms in the context of the use of force could be achieved by the ECtHR considering the context of the case; whether the incident involved unavoidable disorder; whether the incident involved unpredictable human conduct; and whether there is a need to keep certain aspects of security operations a secret. In cases where a state refuses to give an explanation for a death or the explanation is unsatisfactory, the ECtHR should be able to draw inferences leading to (where appropriate) a violation of Article 2. In doing so, the Court needs cogent elements to lead it to depart from the findings of fact reached by the domestic authorities. This includes asking a government questions to which the ECtHR receives no response. The ECtHR should also be particularly careful when applying the margin of appreciation to right to life cases. The examples drawn from the four case studies indicate that at times, state practice follows the (inaccurate) belief that you never needed an argument for violence; you need an argument against it. The legal system is limited in its ability to

219 Ireland v UK (1978); Aktas v Turkey (2003) para 291; Ahmet Ozkan and Others v Turkey (2004) para 323; Ikincisoy v Turkey (2004); Musayeva and Others v Russia (2007) para 81; ‘Spanish police jailed for torture of Basque ETA members’, BBC News, 30 December 2012.

52 Duty to Refrain from Unjustified Killing change the reality on the ground, but if the system is not operating as efficiently as it should, the opportunity for unjustified acts (whether intentional or otherwise) is increased. This was witnessed in each of the four case studies. The proposals made throughout this chapter offer the opportunity to reform the current system to one that is more efficient, clear and effective; thereby helping to steer the future reality on the ground towards Chomsky’s Article 2-compliant viewpoint quoted at the start of this chapter—you need an argument for violence, in this instance a justification that falls within the exceptions set out in Article 2(2) of the ECHR. Where this is not achieved, a more robust system should be in place to assist in effectively remedying the violation that occurred and helping to ensure that it does not re-emerge in the future. Expanding this further, the next two chapters consider the positive obligations that were introduced to help ensure that the duty to refrain from an unjustified killing is delivered in practice. They examine the scope of the duties to protect the right to life by law, to adequately plan operations, and to protect against real and immediate risks to life.

4 Duty to Protect Life By Law If we desire respect for the law, we must first make the law respectable. Justice Brandeis1

A

RTICLE 2 OF the ECHR sets out the positive duty to protect life. This obligation is made up of three sub-obligations: the duty to protect life by law, the duty to adequately plan operations and the duty to take reasonable steps to prevent against real and immediate risks. This chapter considers the duty to protect life by law. This substantive positive obligation is imposed by Article 2(1) of the ECHR, which expressly requires states to protect the right to life by law. In contrast, other human rights provisions set out that the right they guarantee should be provided by law,2 making the express enumeration of the positive obligation to protect by law and the high threshold of protection that this sets unique to Article 2.3 Thus, ‘Article 2 expressly requires States to use the law to protect the right. A State cannot simply do nothing and then provide a remedy when the right is violated.’4 This is a particular challenge that surfaces during times of conflict. For example, it is common for states to pay compensation for its violations, but to not take effective, practical steps to prevent future violations.5 This chapter considers the different elements of the duty to protect life by law, and the ECtHR’s approach to encouraging adherence with this obligation. It draws from the four case studies, as the wide spectrum of challenges that face this duty emerge during internal conflicts.

1 L Brandeis, ‘Cleaveland Plain Dealer, 15 October 2012’ in J Baron, A Treasury of Jewish Quotations (Rowman and Littlefield, 1996) 269. 2 Arts 8 (Right to respect for private and family life) and 11 (Freedom of assembly and association), ECHR; D Korff, The Right to Life: A Guide to the Implementation of Article 2 of the ECHR (CoE, 2006) 6. 3 JF Akandji-Kombe, Positive Obligations Under the ECHR (CoE, 2007) 21. 4 B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 227. 5 ibid, 249; J Lapitskaya, ‘ECHR, Russia and Chechnya: Two is Not Company and Three is Definitely a Crowd’ (2011) 43 NYU Journal of International Law and Politics 479, 480; AP, ‘Turkey to compensate air strike victims’, The Guardian, 3 January 2012.

54 Duty to Protect Life I. WHAT DOES PROTECTING LIFE BY LAW ENTAIL?

The purpose of protecting the right to life within national law is to prevent arbitrary deprivation of life. This duty, which lies with the state, transfers to various situations, including: where death is caused by agents of the State, where it is the result of risks arising from the activity of public authorities [state actors], where it is caused by third parties, or again by the victim himself or herself [non-state actors].6

LCB v UK (1998) clarified 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.’ The appropriate measures must have a ‘real prospect of altering the outcome or mitigating the harm’7 potentially caused by the criminal acts of others. Makaratzis v Greece (2004) sets out the minimum standard expected from states with regard to putting mechanisms in place for protecting the right to life. The ECtHR said: this involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework 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.8

There must be specific, clear and detailed rules that are sufficiently regulated within a structured framework of adequate and effective provisions9 which provide the appropriate channels of communication and guidelines.10 This requires a mix of criminal laws and regulations.

A. Criminal Laws The first step towards implementing adequate legal and administrative frameworks is to put in place effective criminal law provisions.11 These are laws prohibiting homicide and excessive use of force, which are applicable to all those within a state’s jurisdiction. The second is to implement prevention, suppression and punishment measures which deter offences linked to the right to life.12

6

Akandji-Kombe (n 3) 21. Opuz v Turkey (2009). 8 Makaratzis v Greece (2004) para 57. 9 McCann v UK (1995); Makaratzis v Greece (2004); Hamiyet Kaplan v Turkey (2005). 10 Makaratzis v Greece (2004) para 57; Nachova and Others v Bulgaria (2004) para 96; Hamiyet Kaplan v Turkey (2005) para 55. 11 L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011) 162. 12 Osman v UK (2000) para 115; Makaratzis v Greece (2004) para 58. 7

What Does Protecting Life by Law Entail? 55 For example, the state is obligated to construct a system whereby police and security operations are supervised. This meant that: as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident.13

Consequently, the state has a duty to organise its legal system in order to adequately supervise the actions of law enforcement agencies and ensure effective control of such agencies. In addition, Nachova v Bulgaria (2004) created an obligation to provide suitable training for members of the police and security services who: 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.14

These obligations do not ‘arise autonomously but operate in the framework of the review of necessity’.15

B. Regulations ECtHR jurisprudence indicates that regulations must be provided for policing,16 public and private health services,17 state-planted landmines,18 environmental threats19 and dangerous activities.20 For those in state custody21 and those serving in the military,22 the state is duty-bound to implement reasonable measures which offer adequate medical care and assist with preventing suicides. Yet such obligations are required regarding resource constrictions. The state is also obliged to legally require adequate regulations for the protection of patients’ lives and to provide an independent judicial system for cases concerning patients’ deaths, in both private and public sectors.23 This is not an exhaustive list. It could extend to everyday instances, such as transport regulations or health and safety at work. In such instances adequate regulations must be adopted, including ones which govern the licensing, setting up, operation, security and supervision of the activity,

13

Makaratzis v Greece (2004) para 60. Nachova v Bulgaria (2004) para 97. 15 Akandji-Kombe (n 3) 23. 16 McCann v UK (1995). 17 Calvelli and Ciglio v Italy (2002); Vo v France (2004). 18 Pasa and Erkan Enrol v Turkey (2006). 19 Oneryildiz v Turkey (2005). 20 LCB v UK (1998). 21 Renolde v France (2008); Jasinska v Poland (2008). 22 Ataman v Turkey (2006); Abdullah Yilmaz v Turkey (2008). 23 Powell v UK (2000). 14

56 Duty to Protect Life and making it compulsory for all those concerned to take the necessary practical measures.24 Furthermore, the public must be informed of the risks.25 Effective regulations (which adhere to Article 2) should set out the limitations to the use of lethal force. They should set out how, when and to what extent force could be used. This involves the requirement that lethal force is the last resort, not the sole intention. Article 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’.26 Furthermore, frameworks should contain information on what an effectively planned operation consists of. This should include the clarification that provision for other less-lethal measures should be made before lethal force is considered. These positive steps are not without limits. Budgetary and resource constraints must be taken into consideration so that unreasonable and disproportionate burdens are not placed on states.27 The need to respect other rights, such as the right to liberty (Article 5 of the ECHR) and respect for due process (Article 6 of the ECHR) must also be considered.28

II. DOMESTIC LAWS

Given the number of jurisdictions involved (including both common law and civil law systems),29 a challenging mix of legislation exists. Each state’s approach differs in structure, enforcement and competence. The general approach is to create a range of laws concerning homicide, which contain a number of limitations for both individuals and law enforcers. Using the ECHR as a baseline, such limitations are permitted as long as they fit within the constraints of Article 2(2). They must reflect the principles of absolute necessity, reasonableness and proportionality. Also the accused must pose a ‘threat to life or limb’30 and be ‘suspected of having committed a violent offence’.31 The level of compliance with these prerequisites differs from state to state. The subjectivity of the principles involved provides one explanation for this, but politics also plays a role. As such, ‘in the absence of an actual armed attack or pending danger, any calculation of inevitability is doomed to be speculative and conjectural’.32 Furthermore, ‘criminal norms do, and must, contain standards

24

Oneryildiz v Turkey (2005) para 90.

25 ibid. 26

Ergi v Turkey (1997) para 79. Osman v UK (2000) para 116. Reid, A Practitioner’s Guide to the European Convention on Human Rights (Sweet & Maxwell, 2011) 760. 29 The UK (including NI) and Ireland operate under a common law system. Chechnya, France, Spain, Russia and Turkey operate under a civil law system. 30 Nachova and Others v Bulgaria (2004) para 95. 31 ibid. 32 O Bakircioglu, Self-Defence in International and Criminal Law (Routledge, 2011) 203. 27

28 K

Domestic Laws 57 of legitimate behaviour’.33 This stance is justified on the basis that murder is ‘the most extreme rejection of legal prohibitions and the most potent reason for “the law’s” continued importance’.34 How killings are regulated is considered below in the four case studies.

A. Basque Conflict The Basque country has enjoyed some autonomy since 1979,35 but this is limited to the provinces of Bizkaia, Guipuzkoa and Alava in the southern part (Hegoalde). The rest of Hegoalde remains under Spanish control, and the northern part (Iparralde) is under full French control. The autonomous region has its own parliament, police force, education service and tax collection, but control over criminal law remains with the Spanish government. With most incidents taking place in Spain and the autonomous Basque country the main focus is on the Spanish authorities’ dealings with the conflict, but there were occasions when the conflict spilled over into the French-controlled Basque provinces. Consequently, the French authorities’ dealings with these overspills must also be considered. Initially, the French government offered the Basque rebels safe haven, viewing them as freedom fighters and political refugees.36 Yet GAL’s (a Spanish statesponsored death squad) campaign on French soil and an upsurge in Islamic violence within France caused French public opinion to grow ‘increasingly hostile to all political violence, including that of the Basque militants’.37 From 1985 cooperation between French and Spanish security forces became ‘increasingly closer and more coordinated’.38 The French authorities preferred to let the Spanish authorities deal with any issues along the border. This involved the Spanish being granted permission to operate in France’s jurisdiction (a cross-border policing which never occurred in the NI conflict). Therefore, after 1985 ETA militants were ‘denied mobility, safe houses were monitored and extradition was facilitated’.39 Thus, an exploration of the use of force in the Basque conflict focuses on Spanish and French law. i. Law in Spain Spain has ratified the ECHR.40 As a monist state, the ECHR has direct effect in Spain and can be invoked by private parties against Spanish national authorities 33

ibid 38. B Morrissey, When Women Kill: Questions of Agency and Subjectivity (Routledge, 2003) 1, quoted in Bakircioglu (n 32) 38. 35 Section 2, Spanish Constitution 1978; Statute of Autonomy of the Basque Country 1979. 36 M Heiberg, ‘ETA: Euskadi ‘ta Askatasuna’ in M Heiberg et al (eds), Terror, Insurgency and the State: Ending Protracted Conflicts (University of Pennsylvania Press, 2007) 42. 37 ibid. 38 ibid. 39 ibid. 40 Spain ratified the ECHR on 4 October 1979. 34

58 Duty to Protect Life and other private parties.41 Section 15 of the Spanish Constitution 1978 expressly protects the right to life. The implication from the text of section 55 of the Constitution, which omits section 15 from its list of suspendable freedoms, is that the right to life is considered a non-derogable right. Section 15 expressly allows for the death penalty within legal limits during times of war. Despite this text remaining in the Constitution, the death penalty was abolished in all circumstances within Spain in 1995.42 The Penal Code 1995, as amended in 2011, criminalises murder, manslaughter and inflicting bodily harm.43 Article 607 of the Penal Code criminalises genocide and crimes against humanity.44 Articles 571–80 of the Penal Code criminalise acts of terrorism.45 In addition, Article 6(5) of Law 9/2011 on the Rights and Obligations of the Members of the Armed Forces provides that members of the armed forces must respect the dignity and inviolable rights of human beings.46 This implies that members of the Spanish armed forces must respect the right to life. Regarding the circumstances under which force can be used, Article 20(4) of the Spanish Penal Code allows for self-defence in cases of illegitimate aggression, rational necessity and lack of provocation. The force used must be proportionate and necessary.47 Specific to state forces, Article 5(2) of the Organic Law on Security Forces 1986 provides that arms may only be used ‘in circumstances in which there exists a risk, rationally considered to be grave, to their lives or physical integrity, or that of third persons, or in those circumstances which could create a grave risk for public security’.48 This must be ‘in accordance with the principles of congruence, opportunity and proportionality’.49 Article 56 of the Criminal Code states that ‘whoever is authorised by the provision of any statute to use force may justify the use of necessary force according to the terms and conditions of his authority’.50 Article 6(2) of the Penal Code offers additional guidance by requiring that ‘security measures may not be more onerous, nor last longer than the punishment abstractly applicable to the act committed, nor exceed the limit necessary to prevent the principal being dangerous’. These laws satisfy the Article 2(1) requirement that the right to life must be protected by law, however prima facie they fail to adequately reflect the absolutely

41

Art 96(1), Spanish Constitution 1978. Art 1, Organic Law of 11/1995 of November 27, Abolishing the Death Penalty in Wartime. 43 Arts 230–36, Criminal Code of Spain, 20 January 1987; Arts 138–43, Organic Law 10/1995 of 23 November 1995. 44 Organic Law 10/1995 of 23 November 1995. 45 ibid. 46 CoE, ‘Spain: Implementation of ECHR’, www.coe.int/t/dghl/standardsetting/hrpolicy/Others_ issues/Armed_Forces/Questionnaire/SPAIN.pdf. 47 L Bachmaier and A del Moral García, Criminal Law in Spain (Kluwer Law International, 2010) 94. 48 Art 5(2), Organic Law on Security Forces, 13 March 1986. 49 Bachmaier (n 47) 93. 50 Criminal Code of Spain, 20 January 1987. 42

Domestic Laws 59 necessary requirement. They also extend the range of scenarios that allow for the use of force beyond those enumerated in Article 2(2) of the ECHR. This indicates that domestic protection of the right to life in Spain is weaker than that provided in the ECHR. ii. Law in France The right to life is not expressly referred to within the Constitution of France (Fifth Republic) 1958. The ECHR was ratified by France in 1974,51 nearly 20 years after the enactment of the Constitution. Subsequent amendments to the Constitution failed to expressly acknowledge the rights set out within the ECHR, including the right to life. France is a monist state, and with the 2008 constitutional reforms, the ECHR enjoys a ‘super-legislative ranking’52 and is treated as a ‘surrogate’ or ‘shadow Constitution’.53 In French domestic law, life is protected by Article 221 of the Criminal Code of the French Republic 1994 which criminalises murder, manslaughter and assassinations. Also genocide and crimes against humanity are criminalised in Articles 211 and 212 of the Criminal Code respectively. Article 431 of the French Criminal Code allows for representatives of the security forces to use force to ‘disperse an unlawful assembly … where acts of violence are carried out against themselves or if they are not in a position otherwise to protect the place they are occupying’. Article 122(5) of the French Criminal Code extends the right to self-defence without criminal liability to everyone, not just law enforcers, if that person: [in order] to interrupt the commission of a felony or a misdemeanour against property … performs an act of defence other than wilful murder, where the act is strictly necessary for the intended objective [and] the means used are proportionate to the gravity of the offence.

Moreover, Article 122(7) of the Criminal Code allows for force to be used to protect property, not only persons. It provides: a person is not criminally liable if confronted with a present or imminent danger to himself, another person or property, he performs an act necessary to ensure the safety of the person or property, except where the means used are disproportionate to the seriousness of the threat.54

51

France ratified the ECHR on 3 May 1974. Martinico, ‘Is the ECHR Going to Be “Supreme”? A Comparative-Constitutional Overview of ECHR and EU Law Before National Courts’, (2012) 23(2) European Journal of International Law 401, 404. 53 A Stone Sweet and H Keller, ‘Assessing the Impact of the ECHR on National Legal Systems’ (2008) 88 Faulty Scholarship Series 676, 686. 54 Art 122(7), Criminal Code of the French Republic 1994. 52 G

60 Duty to Protect Life B. Chechen Conflict Chechnya has its own government and constitution, but it remains a Russian republic. Consequently, the Chechen conflict involved Chechen and Russian state actors. Furthermore, Chechen and Russian domestic laws are relevant when considering the use of force during this conflict. The application of the latter in Chechnya is subject to the discretion of the Russian government.55 Article 15(4) of the Constitution of the Russian Federation 1993 accords the ECHR direct effect.56 The right to life also enjoys express recognition within Article 20(1) of the Russian Constitution and Article 17 of the Constitution of the Chechen Republic 2003. Article 20(2) of the Russian Constitution and Article 59 of the Russian Criminal Code 1996 allow the death penalty. Since January 2010 these provisions have been subject to an indefinite moratorium that extends to Chechnya.57 Therefore the death penalty continues to exist in law, but is not applied (similar to Article 2 of the ECHR). The non-derogable nature of the right to life is protected in Articles 55(2), 55(3) and 56 of the Russian Constitution and Articles 52(3) and 53 of the Chechen Constitution. Articles 105–14 of the Criminal Code of the Russian Federation of 1996 criminalise homicide in its various forms, including infliction by negligence.58 Many of these provisions refer to ‘excess’ force or ‘justifiable defence’, but they do not elaborate on what is meant by these terms. Genocide is prohibited under Article 357 of the 1996 Federal Law No 64-FZ.59 Concerning self-defence, Article 45(2) of the Russian Constitution provides that ‘each individual has the right to defend his/her rights and freedoms by all means not prohibited by law’. This allows anyone (including state actors) who legally owns a weapon to use it to protect their life, health and property when necessary.60 Section 13 of the Law on Police 1991 also authorises the police to use force (including martial arts) in order to: 1. Prevent the commission of crimes and administrative offences; 2. Arrest persons who had committed them; and 3. Break down the resistance to lawful demands where non-violent means had failed to ensure the fulfilment of police duties.61

55

Arts 15(1) and 15(2) of the Constitution of the Russian Federation 1993. Russia ratified the ECHR on 1 May 1998. 57 This was imposed by the Russian Supreme Court on 1 January 2010 due to Russia being a Member State of the CoE. 58 Federal Law No 64-FZ of June 13, 1996 on the Enforcement of the Criminal Code of the Russian Federation. 59 Art 357, Federal Law No 64-FZ of June 13, 1996. 60 E Tumanov, ‘Commentaries to the Federal Law on Weapons (Kommentarii k Federalnomu Zakonu ob Oruzhii)’ (Moscow, 2010) 138. 61 Law on the Police of 18 April 1991, in force until 1 March 2011; Shchiborshch and Kuzmina v Russia (2014) para 190. 56

Domestic Laws 61 The Russian Criminal Code permits the infliction of harm against a person who has committed a crime,62 where there is a direct danger to a person or his/her rights,63 where there is physical or psychic coercion,64 where there is a justified risk65 and where it is executing a legal order or instruction.66 It does not state that the risks must equate to a threat to life, as required by Article 2 of the ECHR. The Criminal Code further states that the force used must be proportionate.67 Concerning Chechnya, regulation of the Russian military is relevant. The Statute of Military Service of the Russian Federation 199368 provides that firearms should only be used as a last resort. A last resort in this context is to: repel an attack; prevent the stealing of equipment; defend; and prevent a crime. By including the protection of property, this provision goes beyond the remit of Article 2 of the ECHR. The Statute of Garrison and Sentry Service in the Military Forces of the Russian Federation further provides that a soldier must give a warning before using firearms.69 Dealing with domestic issues (eg the Moscow theatre massacre)70 the Russian Law on the Police of 18 April 1991 is relevant. Section 12 of this law provides that Russian police can use force, special tools or firearms only in situations stipulated in law. In such circumstances a police officer must provide adequate warning, minimise the possible damage, enable expedient medical assistance and report incidents.71

C. NI NI’s legal system consists of UK-wide and NI-specific laws, as NI’s political structure originates in the Westminster Parliament and devolves legislative control on certain issues to the NI Assembly. Some examples are also drawn from English case law, which is often used to clarify how laws should be interpreted. There have been many disruptions to the current political set-up, but the Assembly has enjoyed relatively consistent functionality since 2007 (post-St Andrew’s Agreement 2006).72 The Assembly was granted full legislative powers on justice and policing matters in April 2010, but Westminster retains responsibility for defence, the

62 Art 38, Federal Law No 64-FZ of June 13, 1996 on the Enforcement of the Criminal Code of the Russian Federation. 63 ibid, Art 39. 64 ibid, Art 40. 65 ibid, Art 41. 66 ibid, Art 42. 67 Arts 37(2), 38(2), 39(2) and 41(2), Federal Law No 64-FZ of June 13, 1996 on the Enforcement of the Criminal Code of the Russian Federation. 68 Statute of Military Service of the Russian Federation, PD No 2140, 14 December 1993, which remained in force until 1 January 2008. 69 Putintseva v Russia (2012). 70 Finogenov and Others v Russia (2010). 71 Shchiborshch and Kuzmina v Russia (2014) para 188. 72 The latest political impasse was in early 2017.

62 Duty to Protect Life armed forces and national security. If it first obtains the consent of the Secretary of State, the Assembly has legislative powers for firearms and explosives.73 Given NI’s land-border with Ireland, there were occasions when the conflict spilled across the border. Such incidents included organised operations, smuggling, flights from prosecution and deadly attacks. Consequently, incidents that took place on the southern side of the border (in Ireland) engaged Irish law. i. Law in NI The UK (which includes NI) does not have a codified Constitution. It was not until the post-Troubles Human Rights Act 1998 (HRA—which is a constitutional statute)74 that the ECHR (including Article 2) was given direct effect in the UK. Prior to this the UK was bound by the ECHR due to its ratification of the treaty, but the provisions of the ECHR were not enforceable in the domestic courts. Consequently, prior to the HRA the domestic law did not contain a right to life. Instead, the domestic law protected life by regulating the use of force through section 3(1) of the Criminal Law Act (NI) 1967, a counterpart to the UK Criminal Law Act 1967. This provision provides that ‘a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’. Additional provisions were adopted during the Troubles, such as: section 117 of the Police and Criminal Evidence Act 1984; the Police and Criminal Evidence Codes of Practice; and the Police and Criminal Evidence (NI) Order 1989. However, these only confirmed that the force used must be reasonable in the circumstances. Specially compiled guidelines were created for soldiers serving in NI. These sought to ensure that all forces were aware of their obligations and limitations under the Criminal Law Act (NI) 1967. The guidelines for using PVC baton rounds refer to ‘minimum and reasonable force in the circumstances’.75 The guidelines for opening fire (the Yellow Card) stated that soldiers must ‘never use more force than the minimum necessary’ to carry out duties.76 It further stipulated that soldiers should ‘always try to handle the situation by other means’, but if firearms must be used, they must only be ‘aimed shots’, and only the amount of rounds that are ‘absolutely necessary to achieve’ the aim.77 The shots could only be fired after a

73

Gov.UK, ‘Devolution Settlement: NI’, www.gov.uk/devolution-settlement-northern-ireland. is a body of law that ‘determines the persons or the classes of persons who shall bear the sovereign powers … moreover the mode wherein such persons shall share those powers’: F Maitland and H Fisher, The Constitutional History of England: A Course of Lectures (The Lawbook Exchange Ltd, 1908) 528. 75 ‘Rules of Engagement for PVC Baton Rounds’, revised December 1975. 76 Army Code No 70771, ‘Instructions by the Director of Operations for Opening Fire in NI’, revised November 1972, rule 2. 77 ibid, rule 3. 74 This

Domestic Laws 63 warning, unless a warning was impracticable,78 and against a person whose action is ‘likely to endanger life’.79 These rules also introduced absolute necessity, by stating that firearms may only be used ‘if there is no other way to protect yourself or those whom it is your duty to protect from the danger of being killed or seriously injured’.80 These inoffensive standards were issued in secrecy. The lack of transparency assisted cover-ups, by ensuring that as little as possible was known of the procedure, so few were aware of when the procedures were not being followed. For the police the ‘Firearms—Rules of Engagement’ were created. They stated that law enforcers should not ‘use more force than necessary to achieve’ their objective, that firearms should be used ‘with care of the safety of persons in the vicinity’ and only where there is danger to life or serious injury to others.81 These rules include the requirement to give a warning before firing where practicable; that is unless ‘the giving of a warning or any delay in firing could lead to death or serious injury to a person, whom it is your duty to protect, or to yourself, or to another member in your operation’.82 Post-Troubles, section 114(2) of the Terrorism Act 2000 and section 76(3) of the Criminal Justice and Immigration Act 2008 were introduced. In cases of a security threat (eg instances where law enforcers encountered a suspected terrorist) it is stipulated in section 114(2) of the Terrorism Act 2000 that the force used must be ‘reasonable’. Section 76 of the Criminal Justice and Immigration Act 2008 brings together the common law principles of R v Palmer and the principles set out in section 3 of the Criminal Law Act (NI) 1967. Section 76(3) of the 2008 Act further states that ‘the question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be’. Section 3(1) of the 1967 Act was criticised as the sole indicator of reasonable force because ‘the test of reasonableness seems vague, and does not necessarily suggest a test of proportionality’.83 There is also no indication that there has to be a threat to life or limb to justify the use of force.84 The Standing Advisory Committee on Human Rights (SACHR) in the 1980s,85 and Lord Lowry CJ in R v Thain (1985),86 indicated that the domestic law in a state of unclarity requires addressing. The resulting deficiencies are illustrated by the McElhone case,87 which

78

ibid, rule 12. ibid, rules 6–10. 80 ibid, rules 12 and 15. 81 McCann v UK (1995) para 137. 82 ibid, para 137. 83 Dickson (n 4) 249. 84 Nachova and Others v Bulgaria (2004) para 95. 85 SACHR, ‘Ninth Annual Report’ (HMSO, 1984) paras 20–28 and Appendix B; SACHR, ‘Tenth Annual Report’ (HSMO, 1985) paras 67–71; SACHR, ‘Eleventh Annual Report’ (HSMO, 1986) para 71(d). 86 R v Thain (1985). 87 R v Jones (1975). 79

64 Duty to Protect Life involved the fatal shooting of a 22-year-old man in 1974 as he ran away from an army foot patrol in South Armagh. MacDermott J had to determine whether the soldier who fired the fatal shot was guilty of murder under the Criminal Law Act 1967. Despite knowing that the man was unarmed, the soldier was acquitted, as he honestly believed the man to be a member of the IRA. The Court of Criminal Appeal upheld MacDermott J’s ruling, confirming that such force is ‘reasonable’ if it is used against a suspected member of an illegal organisation and with no other way of detaining that individual.88 Yet McGonigal LJ dissented, as the maximum prison sentence for being the member of an illegal organisation is five years, not life.89 The House of Lords confirmed that a broad interpretation of ‘reasonable in the circumstances’ should be taken, and the soldier’s acquittal was upheld.90 This was justified using section 3(2) of the Criminal Law Act 1967. This provides that section 3(1) of the same Act replaces ‘the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose’. Thus: if a plea of self-defence is put forward in answer to a charge of murder and fails because excessive force was used though some force was justifiable, as the law now stands the accused cannot be convicted of manslaughter. It may be that a strong case can be made for an alteration of the law to enable a verdict of manslaughter to be returned where the use of some force was justifiable but that is a matter for legislation not for judicial decision.91

McElhone illustrates the disregard that the domestic courts had for Article 2.92 In this case Article 2 was not directly drawn from by the courts, but the implication is that Article 2(2)’s exceptions were interpreted in a broader manner than intended by the ECHR. This was facilitated by the ECtHR’s refusal to condemn the deficiencies that existed within domestic law. By leaving the domestic law unchallenged, the Court is facilitating the ‘all or nothing difficulty’93 that faces the domestic courts. Drawing from Lord Diplock,94 there have been calls by commentators to introduce an excessive defence doctrine. This ‘would allow that a charge of murder could be reduced to manslaughter, recognising both the culpability of and mitigating circumstances facing the accused in the exercise of deadly force’.95 This was never introduced and provided opportunity for impunity as state forces could only be charged with murder, even in cases of negligent discharge. Consequently, the domestic courts generally ruled in the perpetrator’s favour. 88

AG for NI’s Reference No 1 (1976).

90

AG for NI’s Reference No 1 (1977).

89 ibid. 91 ibid. 92

Dickson (n 4) 251. F Ní Aoláin, The Politics of Force: Conflict Management and State Violence in NI (Blackstaff Press, 2000) 128. 94 AG for NI’s Reference No 1 (1977). 95 Ní Aoláin (n 93) 128; T Hadden, ‘Legal Controls on the Use of Lethal Force: Options for Reform in SACHR, 18th Annual Report 5 (1992–1993)’, Annex E. 93

Domestic Laws 65 Even in the exceptional circumstances of guilty verdicts, the perpetrators served a fraction of their sentence and were permitted to continue serving as law enforcers post-imprisonment (eg the Thain case).96 It is possible that the guilty verdict in Thain was due to specific circumstances. In Thain the victim (the road manager of pop group Bananarama) was involved in an altercation with a soldier, but had no paramilitary connections. The case was also subject to significant publicity and came at a time when the domestic courts were facing external criticism.97 McElhone also indicates the sympathy that the domestic courts tended to have for law enforcers. MacDermott J’s comments in R v Robinson illustrate this. When finding that there was ‘no doubt’ that the police officers who fired in excess of 15 shots killing two unarmed men acted in self-defence, he stated that ‘while policemen are required to act within the law they are not required to be supermen and one does not use jeweller’s scales to measure what is reasonable in the circumstances’.98 This attitude led to impunity. In the UK (including NI) ‘self-defence or the defence(s) of others is contained within the concept of the prevention of crime’.99 Palmer v R (1971)100 is commonly used as a reference for the law of self-defence within the UK. The Privy Council in this case elaborated that an individual can exercise use of reasonable force in self-defence, defence of another, defence of property, prevention of crime or lawful arrest.101 This is with the prerequisites that the individual may only use force in circumstances where he/she honestly believes102 force was necessary and reasonable in the circumstances.103 This covers non-state actors and law enforcers. Palmer raises a number of issues concerning domestic law and the right to life that are common in the four case studies. First, Palmer and Lord Lane CJ’s judgment in R v Gladstone Williams (1984)104 clarify that the domestic law of selfdefence imposes a subjective test of whether the defendant genuinely believed that the use of force was required in the circumstances.105 The ECHR requires that the assessment is more than whether the defendant acted as any reasonable person or authority would in their position.106 The defendant must be left with no other choice, or so they honestly believed.107 The ECHR’s standards allow for consideration of the ‘honest belief at the time’,108 but this is with the additional proviso that 96 R v Thain (1985); A Jennings, ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990) 122. 97 Jennings (n 96) 122. 98 R v Robinson (1984). 99 McShane v United Kingdom (2002) para 48. 100 Palmer v R (1971). 101 ibid; s 3, Criminal Law Act (NI) 1967; R v McInnes (1971); s 76, Criminal Justice and Immigration Act 2008. 102 R v Williams (Gladstone) (1987); R v Oatbridge (1991). 103 Palmer v R (1971); R v Clegg (1995). 104 R v Gladstone Williams (1984). 105 ibid. 106 Korff (n 2) 30. 107 McCann v UK (1995) para 156. 108 ibid, para 156.

66 Duty to Protect Life the honest belief is based on ‘good reasons’.109 This imposes an objective test.110 However, it is questioned whether Article 2 ‘demands’ a change in law to an objective test, since the test of absolute necessity ‘is not an inflexible one’.111 The domestic courts do not believe it does,112 which is a predictable outcome. Unpredictably, the ECtHR appears to agree, through its lack of condemnation.113 Second, Palmer introduces a limitation unrecognised within European standards—that potentially lethal force can be used in defence of property. Article 2(2)(a) of the ECHR states that such force is only permitted ‘in defence of any person’ (emphasis added), it does not include property.114 Fourth, in Palmer the domestic courts failed to clarify (in line with European standards) that the force can only be used to prevent a violent crime.115 However, the Privy Council stated in Shaw (Norman) v R (2001)116 that the defendant must believe that he/she was in danger.117 This implies that the defendant must be defending against a violent crime. Therefore, the Privy Council’s jurisprudence bridged the gap between domestic and European standards. ii. Law in Ireland In Ireland the ECHR (including Article 2) was granted direct effect under the ECHR Act 2003. Moreover, Article 40(3)(2) of the Constitution of Ireland 1937 protects the right to life. Additionally, section 4 of the Criminal Justice Act 1964 and section 3 of the Criminal Justice Act 1990 criminalise murder with no reference to whether there are exceptions where such an act could be justified, such as set out in Article 2(2) of the ECHR. Irish domestic law does not include a provision on the inviolability of the right to life. Sections 18–20 of the Non-Fatal Offences Against the Person Act 1997 deal with the use of force. Section 18(1) allows for the use of force: if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence–– a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or

109

ibid, para 200; Andronicou and Constantinou v Cyprus (1997) para 192. D Ormerod et al, Smith and Hogan’s Criminal Law (OUP, 2011) 384. 111 ibid. 112 R (Bennett) v HM Coroner for Inner London (2006). 113 CCPR, ‘General Comment No 6’ (1982) para 1; McCann v UK (1995) para 147 and 150; Bubbins v UK (2005) para 138; Armani da Silva v UK (2016) para 252. 114 Ormerod (n 110) 384. 115 Nachova and Others v Bulgaria (2004) para 95. 116 Shaw (Norman) v R (2001). 117 ibid, para 19; Harvey v R (2009), para 27. 110

Domestic Laws 67 d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or e) to prevent crime or a breach of the peace.

Section 19(1) of the 1997 Act further provides ‘the use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence’. It fails to clarify that the honest belief must be supported by ‘good reasons’118 and that the force must be absolutely necessary.119 Section 20 of the 1997 Act defines the use of force as including actual or threat of force.

D. Turkish-Kurdish Conflict The period of the Kurdish conflict in Turkey which is considered here spans from 1984 to the present day. When assessing the use of force laws related to this conflict, the legal developments that occurred can be separated into two periods. The first is from 1982, when Turkey’s new Constitution was introduced. The second is from 2001 onwards, when legal reforms aimed at assisting Turkey’s accession to the European Union (EU) were implemented. Despite the developments over these two stages, protection of the right to life experienced minimal change. This book focuses on the law as it currently stands, highlighting any relevant developments or alternative provisions. The ECHR was accorded direct effect in Turkey through the country’s ratification of the treaty and Article 90(6) of the Constitution of the Republic of Turkey 1982, as amended. The latter provision provides that ratified international laws (eg the ECHR)120 are superior to domestic law. Consequently, Article 2’s application in Turkey is assured. The right to life is also expressly reiterated in domestic law under Article 17 of the Constitution. This provision remains relatively unchanged since 1982, aside from the removal of the phrase ‘cases such as the execution of death penalties under court sentences’ in 2004.121 This aligned the Constitution with Turkey’s obligations under Protocol No 6122 and pre-empted recognition of Protocol No 13 of the ECHR.123 In terms of whether this will hold, President Erdogan publically announced his intentions to reinstate the death penalty in Turkey.124

118

McCann v UK (1995) para 200; Andronicou and Constantinou v Cyprus (1997) para 192. Art 2(2), ECHR. 120 Turkey ratified the ECHR on 18 May 1954. 121 Amended on 7 May 2004 by Act No 5170. 122 Turkey ratified Protocol No 6 on 12 November 2003. 123 Turkey ratified Protocol No 13 on 6 October 2005. 124 K Forster, ‘Erdogan announces Turkish parliament will consider bringing back the death penalty’, The Independent, 29 October 2016. 119

68 Duty to Protect Life Articles 81 to 85 of the Criminal Code of the Republic of Turkey 2004 criminalise homicide,125 including voluntary homicide, death due to failure to perform an obligation, and death due to negligence. Articles 86 to 89 of the 2004 Criminal Code criminalise intentional, negligent and consequential bodily injury. Genocide and crimes against humanity are deemed unlawful under Articles 76 and 77, respectively, of the Criminal Code. Further, Article 2 of the Law No 3713 allows for the use of force.126 Articles 14 and 15 of the Constitution protect the inviolability of the right to life in Turkey. Turkey’s law on self-defence for all citizens is set out in Article 25 of the Criminal Code. It states: 1) No punishment is given to an offender who acts with immediate necessity, according to the prevailing conditions, to repulse or eliminate an unjust assault against his or another person’s rights, of which the recurrence is highly expected. 2) No punishment is given to the offender for an act executed to protect himself from a severe and definite danger or an assault against his or another person’s rights, where he has no other choice to eliminate this danger. However, there should be proportional relation between the imminent necessity to protect oneself and the seriousness of danger, and the means used to eliminate this danger.

Article 6 of Law No 2559, the Duties and Powers of the Police 1934 specifies that: use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force. [Emphasis added.]

Article 16 of Law No 2559 allows the police to use firearms for the purposes of self-defence, thwarting an attack and preventing an escape. Section 17 of the Regulation on the Duties and Powers of the Police 1992127 states that: recourse to firearms should be limited to cases when all other means remain ineffective. In this connection, it should be recalled that the police should not aim to kill but to capture the accused person(s) with minimum physical injury, and should try to avoid using firearms in crowded areas.

Article 23(2) of Law No 2935, the State of Emergency Law of 25 October 1983 provides that: in the case of a state of emergency declared under Article 3(1)(b) of this Act, the security forces on duty may fire (on a person or a group of persons) if an order to surrender is not obeyed or if there is an attempt at armed resistance or if the security forces have to act in the interests of legitimate self-defence.128

125

Formally Arts 448, 450, 452 and 459 of the Criminal Code of the Republic of Turkey 1991. Law No 3713 on Fight Against Terrorism, 12 April 1991, as amended in 2006. 127 Law No 92/3718 of 6 November 1992. 128 Y Alexander et al, Turkey: Terrorism, Civil Rights and the European Union (Routledge, 2008) 97. 126

The ECtHR’s Approach to Domestic Laws 69 These Turkish laws largely reflect the principles of necessity, though not necessarily absolute necessity, and proportionality.129 However, they have faced criticism. They have omissions that ‘open the way for unlawful killing’.130 One law refers to the suspected criminal having to be involved in ‘a serious offence liable to severe punishment’ or ‘suspicious circumstances’.131 Another refers to cases where ‘an order to surrender is not obeyed’.132 Article 2 of the ECHR requires that the victim must be suspected of committing or attempting to commit a violent crime to justify the use of force.133 The Turkish law allows for a wider interpretation than provided for in the ECHR. Furthermore, ‘although proportionality is mentioned, the omission of the required objective of protecting life and the ambiguity of the “stop warning” result in a dangerously large power grant’.134

III. THE ECtHR’s APPROACH TO DOMESTIC LAWS

Regardless of the criticism that the domestic laws related to the right to life faces, the ECtHR is generally satisfied that where deficiencies exist they will be interpreted in an ECHR compliant manner. This was found in McCann135 and was extended to other situations throughout Europe. For example, Spanish and French law aimed at protecting life offers no accurate reconstructions of Article 2’s standards. There was no Article 2 case law regarding the Basque conflict before the ECtHR, but using the reasoning used in McCann it is deduced that these domestic laws are not so offensive as to be considered non-compliant. Despite the opportunity to do so, the ECtHR did not challenge Russian laws that allowed for force to be used to protect property, or for force to be used when dealing with any crime, not only violent crime that posed a threat to life or limb as required by Article 2. The ECtHR also expressed satisfaction that Article 17 of the Turkish Constitution provides ‘recourse to lethal force [that] can only be justified in case of absolute necessity authorised by law’.136 The ECtHR quotes this phrase as though it is expressly set out within Article 17,137 but there is no evidence of it in the Constitution. Instead, the ECtHR seems content that this phrase is implied in the words ‘when permitted by law as a compelling measure to use a weapon’.138

129 RM Önok, ‘Criminal Law’ in T Ansay and D Wallace (eds), Introduction to Turkish Law (Kluwer Law International, 2011) 190. 130 C Heyns, ‘Preliminary Observations on Official Visit to Turkey by C Heyns, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 26–30 November 2012’, 30 November 2012. 131 Art 16(e), Law No 2559, Duties and Powers of the Police 1934. 132 Art 23, Law No 2935, the State of Emergency Law, 25 October 1983. 133 Nachova and Others v Bulgaria (2005) para 95. 134 Heyns (n 130). 135 McCann v UK (1995) para 152. 136 Erdogan and Others v Turkey (2006) para 77; Usta and Others v Turkey (2008) para 52; Gülen v Turkey (2008) para 31. 137 Erdogan and Others v Turkey (2006) para 77; Usta and Others v Turkey (2008) para 52; Gülen v Turkey (2008) para 31. 138 Art 17(4), Constitution of the Republic of Turkey 1982, as amended.

70 Duty to Protect Life The ECtHR stated in Makaratzis v Greece (2004) that: police officers should not be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.139

The criticism in this case related to the ‘somewhat slender’ body of law dealing with the use of force that existed in Greece, as opposed to its quality.140 When discussing quality, the ECtHR found that the difference in standards between the ECHR and domestic law is not ‘sufficiently great that a violation of Article 2(1) could be found on this ground alone’.141 The ECommHR stated that ‘Article 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’.142 The ECtHR continued in McCann that ‘the Convention does not oblige Contracting Parties to incorporate its provisions into national law’.143 Moreover, ‘it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions within the requirements of the Convention’.144 This approach stems from the ECtHR’s reasoning that the ECHR institutions may find a breach: only if the law challenged pursuant to Article 24 is couched in terms sufficiently clear and precise to make the breach immediately apparent, otherwise, the decision of the Convention institutions must be arrived at by reference to the manner in which the respondent State interprets and applies in concreto the impugned text or texts. The absence of a law expressly prohibiting this or that violation does not suffice to establish a breach since such a prohibition does not represent the sole method of securing the enjoyment of the rights and freedoms guaranteed.145

Nevertheless, the travaux préparatoires provide that a breach can result ‘from the mere existence of a law which introduces, directs or authorises measures incompatible with the rights and freedoms safeguarded’.146 Furthermore, Article 32 of the ECHR states that ‘the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and Protocols thereto’ [emphasis added]. This is the ECtHR’s own determination, not one required by the ECHR or its framers. Regardless, the ECtHR stands by its decision.

139

Makaratzis v Greece (2004) para 59. ibid, para 62. McCann v UK (1995) paras 202–14. 142 ibid, para 152. 143 ibid, para 153; James and Others v UK (1986) para 84; The Holy Monasteries v Greece (1994) para 90. 144 ibid, para 153; Klass and Others v Germany (1978) para 133. 145 Ireland v UK (1978) para 240. 146 M Nijhoff, Travaux Préparatoires (Document H (61) 4, 1975–1985) 384, 502, 703 and 706. 140 141

Conclusion 71 It should be considered that: it is not necessarily a problem with the domestic law. Domestic law may identify when you are allowed to use potentially lethal force. What domestic law does not do is explain how the people were trained and what the rules of engagement are. The problem is that some of the other information that is required in Article 2 cases is not included in the judgment. You can tinker with the law, but the actual practice is the problem.147

The ECtHR is setting a precedent that respects the principle of subsidiarity. Yet, these principles should not prevent states from satisfying their obligations in a way which honours their sovereignty. It should also not prevent the ECtHR from challenging domestic laws when required. The ECtHR should be making more bold statements, similar to that made regarding Turkish Law No 2559. The Court found this law to ‘not appear sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe’.148 The case was then referred to the CoM to work with Turkey to address this.149

IV. CONCLUSION

For legal provisions to transfer to practice, a culture of respect for the law must exist. Such a culture cannot be cultivated without solid foundations. These foundations are established by clear guidance. Such guidance is provided by the written word of the laws themselves. Efficient, clear and effective laws have a crucial role to play in developing the theory, establishing guidance, ensuring adequate implementation and offering effective remedy. In the context of the use of force (particularly during times of conflict) this chapter has set out the positive obligation on states to protect the right to life by law, as provided within Article 2(1) of the ECHR. It shows that what this duty entails is not obvious from the text of Article 2. This chapter has identified that the provisions to be added to the proposed guidelines (as set out in the Appendix) should require that domestic laws accurately and adequately reflect Article 2 of the ECHR. The proposed guidelines also establish what an Article 2-compliant legal framework contains. In addition, this chapter has highlighted that on occasion, the ECtHR has failed to challenge domestic laws which have fallen short of mirroring Article 2. These included domestic laws that omitted necessity and/or proportionality, or domestic legislation that included situations of force beyond those set out in Article 2(2).

147

F Hampson, School of Law, University of Essex, interviewed 11 July 2014. Erdogan and Others v Turkey (2006) para 77; Usta and Others v Turkey (2008) para 52; Gülen v Turkey (2008) para 31. 149 CoE, ‘Pending Cases: Current State of Execution’, www.coe.int/t/dghl/monitoring/execution/ Reports/pendingCases_en.asp?CaseTitleOrNumber=19807%2F92&StateCode=TUR&SectionCode=. 148

72 Duty to Protect Life This is to the detriment of protecting the right to life. To remedy this, the ECtHR (within the constraints of its jurisdiction) should adopt a more robust approach towards critically analysing domestic law. These steps do not require anything new of HCPs or the ECtHR. These are steps that these key players should be following as parties to and the guardian of Article 2, respectively. If the HCPs are not adhering to their obligations, the message is that their agents need not either. Similarly, if the ECtHR is not consistent and robust in its guidance, an avoidable opportunity is created enabling a HCP to disregard or fall short of its obligations.

5 Duty to Protect Life Planning and Reasonable Steps

A

LEGAL FRAMEWORK provides guidance on the actions that should and should not be taken to protect life. For these foundations to translate into practice, a culture of respect for the law is key (as explored in Chapter 4), but additional steps are also required. Reflecting this, Article 2(1)’s positive obligation on states to protect life is not limited to the duty to protect life by law. This obligation contains two further duties—the requirement that operations are adequately planned; and the requirement that states take reasonable steps to protect against real and immediate risks to life. Drawing from the four case studies, this chapter considers what is expected in relation to the proactive duties to plan and to act. These duties are particularly relevant during times of conflict. This chapter also explores whether Article 2 has an extra-territorial scope, as during times of conflict, planned operations and known real and immediate risks to life can spill over political borders.

I. DUTY TO ADEQUATELY PLAN OPERATIONS

To be Article 2-compliant, security operations must be ‘regulated and organised in such a way as to minimise to the greatest extent possible any risk to … life’ [emphasis added].1 This creates a positive duty for states to ensure that operations are adequately planned. A higher standard is applied to this than under Osman, which requires ‘real and immediate risk to life’.2 Yet a number of limiting factors exist, such as: 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 … [which] must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.3

1 2 3

Makaratzis v Greece (2004) para 60. Osman v UK (2000) para 116. Mahmut Kaya v Turkey (2000) para 86; Brecknell v UK (2007) para 62.

74 Duty to Protect Life Thus ‘not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising’.4 For example, the state can only be held responsible for a violation of the right to life if it can be proven that the authorities were or ought to be aware of the risks and failed to act.5 Furthermore, the security forces should exercise their powers in a manner which ‘fully respects the due process and other guarantees’.6 The ECtHR was uncharacteristically forthcoming in scrutinising the planning of operations in Article 2 cases, particularly during times of conflict. This is with the exception of enforced disappearances where such scrutiny was found unnecessary, given the larger issues at play.7 Where a police or military operation is examined, the ECtHR will: examine whether the police operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses, and whether all feasible precautions in the choice of means and methods of a security operation were taken.8

This includes the planning of rescue and evacuation operations (eg information exchange, prompt evacuation, coordination, appropriate medical treatment, adequate logistics, and access to equipment).9 If the government is found liable for the deaths, it is unnecessary to determine whether there was a violation of Article 2 due to the alleged lack of care in the planning and control of the operation.10 When there is contention surrounding the government’s liability for the deaths, the ECtHR focuses on either the planning of operations or the inadequate investigations that followed. This could be due to a lack of evidence to find a negative violation. It could also be due to the political element that exists within the ECtHR’s decisions. This reliance on Article 2’s positive obligations is evident in three of the case studies—the Chechen, NI and Turkish-Kurdish conflicts. There was evidence of poor planning in the Basque conflict (eg GAL’s operations), but these cases were not explored by the ECtHR, due to lack of applications. The key case on planning of operations is McCann, concerning the killing of three suspected IRA bombers in Gibraltar.11 There was evidence that these killings were premeditated, but the ECtHR focused on the planning of operations. The Court ruled that: 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 4

Osman v UK (2000) para 116. LCB v UK (1998); Oneryildiz v Turkey (2005). 6 Osman v UK (2000) para 116. 7 Orhan v Turkey (2002) para 349. 8 McCann and Others v UK (1995) paras 146–50 and 194; Andronicou and Constantinou v Cyprus (1997) paras 171, 181, 186, 192 and 193; Ergi v Turkey (1998) para 79; Hugh Jordan v UK (2001) para 102–04; Makaratzis v Greece (2004) paras 56–59; Finogenov and Others v Russia (2010) para 208. 9 Finogenov and Others v Russia (2010) paras 237 and 266. 10 Akkum v Turkey (2005) point 4 of reasons. 11 McCann and Others v UK (1995). 5

Duty to Adequately Plan Operations 75 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 is not more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2(2)(a) of the Convention.12

The ECtHR is looking to establish whether the planning of the operation ‘disclosed a lack of care which might have rendered the use of force disproportionate to the aim pursued’.13 This includes considering: whether the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The authorities must take appropriate care to ensure that any risk to life is minimised. The Court must also examine whether the authorities were not negligent in their choice of action. The same applies to an attack where the victim survives but which, because of the lethal force used, amounted to attempted murder. Similarly, the State’s responsibility is not confined to circumstances where there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life.14

In this assessment the ECtHR evaluates the context of each case.15 This includes whether it involved unavoidable disorder, unpredictable human conduct and the need to keep certain aspects of security operations secret.16 Furthermore, it examines whether the obligation to protect the right to life is interpreted in a way which imposed on authorities an impossible or disproportionate burden.17 These factors must be considered relative to the situation under scrutiny and how it developed.18 It is common for Russia and Turkey to attempt to hide behind the complexities of the conflicts involved and to attempt to use this as justification for excessive force. The ECtHR challenges this stance. In Finogenov v Russia (2010) (the Moscow theatre massacre), the ECtHR ruled that the operation was ‘not sufficiently prepared’.19 In Taydas v Turkey (2013) (the life-threatening shooting of two brothers in south-east Turkey), the ECtHR considered whether the Turkish

12

ibid, para 213. Gülbahar Özer and Others v Turkey (2013) para 53. Isayeva v Russia (2005) paras 175 and 176; Ahmet Ozkan and Others v Turkey (2004) para 297; Ergi v Turkey (1998) para 79. 15 McCann v UK (1995) para 150; Arapkhanovy v Russia (2013) para 118; Kasa v Turkey (2008) para 81; Usta and Others v Turkey (2008) para 53; Yüksel Erdogan and Others v Turkey (2007) para 93; Akpinar and Altun v Turkey (2007) para 51. 16 Finogenov and Others v Russia (2010) para 265. 17 Kerimova and Others v Russia (2011) para 244; Finogenov and Others v Russia (2011) para 209; Makaratzis v Greece (2004) para 69; Osman v UK (1998) para 116; Maiorano and Others v Italy (2009) para 105; Giuliani and Gaggio v Italy (2011) para 245. 18 Arapkhanovy v Russia (2013) para 118. 19 Finogenov and Others v Russia (2010) para 265. 13 14

76 Duty to Protect Life forces had ‘adequate time and resources to give thought to different ways of observing possible suspects and apprehending them by using non-lethal methods’.20 Finding a violation of Article 2, the ECtHR stated that ‘it cannot be said that the security forces [who had been observing the two brothers for a time] had to take decisions and act in the heat of the moment’.21 Khamzayev v Russia (2011) (the aerial bombing of Urus-Martan in Chechnya), confirms that it is enough to show insufficient planning from the authorities to violate Article 2. It is not required to demonstrate an inappropriate legal framework or excessive use of force by the state actor performing the operation.22 In Chechnya’s case the ECtHR also uncovered situations where Russian state actors acted on the basis of ‘either a lack of coherent intelligence information available to those who planned and carried out [the operations]’ or ‘a blatant disregard for any safety and humanitarian considerations on the part of the officers’.23 One such situation was Damayev v Russia (2012), involving the aerial bombardment of Rigakhoy village in Chechnya. The applicant’s wife and five children were killed in the attack. The Russian government contested the applicant’s claim that the military fired indiscriminately at the village for a prolonged period of time, instead claiming that the applicant’s family was killed by the explosion of an artillery shell kept in their house. The military commanders further claimed that they were unaware that the applicant’s house was inhabited, despite the applicants living there for years.24 The ECtHR rejected the government’s arguments finding that in the circumstances and ‘in the absence of any reasonable explanation … the six deaths were imputable to the State’.25 In Abuyeva v Russia (2010) the ECtHR held that: the use of artillery and aviation bombs in a populated area, outside wartime and without prior evacuation of civilians, was impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. Even when faced with a situation where, as the [Russian] government submitted, the population of the village had been held hostage by a large group of well-equipped and well-trained fighters, the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stood in flagrant contrast to this aim and could not be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.26

In Abuyeva the Chechen village of Katyr-Yurt was captured by Chechen fighters escaping from Grozny in February 2000, but access to the village was controlled by way of military roadblocks. It was negotiated that civilians would be allowed to leave the village, but during transfer they were bombarded with aviation bombs,

20

Taydas v Turkey (2013) para 37; Abdurashidova v Russia (2010) para 77. ibid, para 37. 22 Khamzayev and Others v Russia (2011) para 188; Kerimova and Others v Russia (2011) para 256. 23 Damayev v Russia (2012) para 74. 24 ibid, para 74. 25 ibid, paras 68 and 69. 26 Abuyeva and Others v Russia (2010) para 200; Isayeva v Russia (2005) paras 172–78. 21

Duty to Protect Against Real and Immediate Risks to Life 77 killing many civilians. The applicants brought the case on behalf of their 24 relatives who were killed. The ECtHR concluded that, while the operation ‘pursued a legitimate aim, it was not planned and executed with requisite care for the lives of the civilian population’.27 Accordingly there was a violation of ‘the respondent State’s obligation to protect the right to life of the applicants and their relatives who died or who were wounded during the operation’.28 Further in Khatsiyeva v Russia (2008)29 (a Russian aerial attack on Chechens working the land outside the Chechen village of Arshty in August 2000), there was evidence to suggest that ‘the pilots did not take the decision to destroy the vehicle with the people of their own motion, but acted pursuant to their superiors’ order which was binding on them’.30 Consequently there was a ‘lack of appropriate care by the authorities in assessing the situation reported by the pilots and giving them an order to attack the six men’.31 Thus a violation of Article 2 of the ECHR occurred.32 There is a range of examples where operations are not effectively planned during times of conflict in Europe, which threatened or caused a violation of Article 2. It is the same for suspected premeditated killings. Yet the ECtHR is unwilling to consider these claims, never mind criticise them. This may be due to the ECtHR’s initial reluctance to deal with suspected systematic violations. It is also an example of the tactical approach that the Court can adopt—choosing to focus on issues that states are more likely to interpret as constructive criticism and to address, as opposed to issues that states would view as an attack on their integrity and would reject. In order to make some gains, the Court has to be tactical. However, the Court picks and chooses when to adopt this approach, exposing its political nature. For example, ordering fact-finding missions in Turkey, yet viewing fact-finding missions into the allegations that shoot-to-kill policies were adopted during the NI Troubles to be outside its remit.33

II. DUTY TO PROTECT AGAINST REAL AND IMMEDIATE RISKS TO LIFE

Osman v UK (2000)34 imposes a positive obligation on the state to take proactive action when there is a ‘real and immediate risk to life’35 towards ‘an identified individual or individuals from the criminal acts of a third party’36 that the state

27

ibid, para 203. Abuyeva and Others v Russia (2010) para 203. 29 Khatsiyeva and Others v Russia (2008). 30 ibid, para 136. 31 ibid, para 137. 32 ibid, paras 138–40. 33 Kelly and Others v UK (2001); McKerr v UK (2001); Hugh Jordan v UK (2001). 34 Osman v UK (2000). 35 ibid, para 116. 36 Mahmut Kaya v Turkey (2000) para 86. 28

78 Duty to Protect Life ought to have known about.37 For example, in circumstances concerning threats from ‘terrorists/rebels’38 or from mentally ill individuals who indicated their intentions,39 death threats against journalists,40 known cases of domestic violence,41 prisoners,42 and hazing of members of the military.43 As exemplified by the four case studies, many of these scenarios arise during times of conflict. With regard to persons who have disappeared in life-threatening circumstances, in which the state is not implicated, an obligation is placed on the authorities to take action in a bid to protect the life of the missing person. The expected reaction of the state authorities varies according to the circumstances of each individual case. In situations where disappearance cases are common, the state is obligated to react promptly, and to be proactive in its actions. In Osmanoglu v Turkey (2008)44 the applicant’s son went missing in circumstances similar to those whereby other missing persons turned up dead. Taking these circumstances into account, the ECtHR found Turkey had failed to fulfil its obligations, by merely checking the custody register and adding the missing person’s name to a missing list. It ruled that the Turkish authorities should have been more proactive and launched preventative measures, such as inspecting premises where the applicant’s son was last seen, taking statements, seeking eyewitnesses and alerting official roadblocks in the region.45 Yet, when considering the duty to protect against real and immediate risks to life, it must be borne 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 … [which] must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.46

In such circumstances the state authorities must do ‘all that could reasonably be expected of them to avoid the risk’.47 This assessment is based upon the questions: 1) Was the victim threatened in a real and immediate way? 2) Did the authorities know this, or ought they to have known it? 3) Did they take reasonable measures to counter that risk? It goes beyond state forces establishing public order and implementing a framework of law. The state forces must commit to upholding the law, and those who violate the rights of others must be held accountable.48

37

LCB v UK (1998); Oneryildiz v Turkey (2005). Kilic v Turkey (2000); Mahmut Kaya v Turkey (2000); Akkoc v Turkey (2000). 39 Osman v UK (2000). 40 Dink v Turkey (2012). 41 Opuz v Turkey (2009). 42 Edwards v UK (2002). 43 Perevedentsevy v Russia (2014). Hazing refers to intra-bullying of members of the military. 44 Osmanoglu v Turkey (2008). 45 ibid, paras 70–84. 46 Mahmut Kaya v Turkey (2000) para 86; Brecknell v UK (2007) para 62. 47 Kilic v Turkey (2000) para 69. 48 ibid, paras 70–76. 38

Duty to Protect Against Real and Immediate Risks to Life 79 In order for a state to be found guilty of this, all three questions must be answered in the affirmative. The ECtHR must keep in mind that the key phrase is ‘reasonable’. While there is a duty to ‘diminish’ the risk, this obligation does not impose an ‘impossible’ or ‘disproportionate’ burden upon authorities,49 such as providing constant protection. The extent of this positive obligation expanded as the ECtHR’s jurisprudence grew. It includes the obligation to prevent loss of life in instances of dangerous activities controlled by public authorities (eg nuclear testing).50 It includes a responsibility to inform the public of the risks involved, where relevant.51 Additionally, it imposes an obligation upon the state forces to take reasonable measures concerning situations where victims had received death threats, a particular consideration in times of conflict.52 Nevertheless, this obligation: does not yet go so far as to require protection in every sphere of life capable of engendering fatal risk… the mere fact someone has died, although a tragic event, cannot be enough to trigger Article 2. There is no right to absolute security of person, even in the prison context where the authorities have a special obligation to ensure the welfare of their detainees.53

These safeguards are most vulnerable and the threat to life is highest during times of conflict. The need to clarify what steps are required to prevent avoidable deaths is exemplified by the violations of Article 2 that occurred in three of the case studies where journalists, lawyers, civilians and members of the state forces were not adequately protected against real and immediate risks to their lives. For example, the murder of lawyer Pat Finucane in NI,54 the murder of journalist Kemal Kilic in Turkey55 and the murder of Anna Politkovskaya in Russia.56 Death threats had been issued to each of the victims, but no action was taken to prevent the deaths or to find those responsible. There are suspicions that state forces were involved at some level in the deaths. Concerning the Basque conflict, one of ETA’s methods of assault was to kidnap and ransom individuals it viewed as state sympathisers. These kidnaps would often end in an assassination (eg the kidnap and killing of the Basque councillor Miguel Angel Blanco Garrido).57 ETA also assassinated individuals it viewed as a political threat (eg the killings of politicians Juan Maria Jauregui, Ernest Lluch and Jose Ignacio Iruretagoyena Larranga, and of trade union activist Jose Luis Lopez de la Calle).58 ETA’s threats were widespread; it was often unclear 49

K Reid, A Practitioner’s Guide to the ECHR (Sweet & Maxwell, 2011) 760. LCB v UK (1998). 51 Oneryildiz v Turkey (2005). 52 Osman v UK (2000); Kilic v Turkey (2000); Akkoc v Turkey (2000); Gongadze v Ukraine (2005). 53 Reid (n 49) 762. 54 J Stevens, ‘Stevens Enquiry 3: Overview and Recommendations’, 17 April 2003, para 1.3. 55 Kilic v Turkey (2000) paras 70–76. 56 ‘Chechen war reporter found dead’, BBC News, 7 October 2006. 57 ‘Timeline: ETA campaign’, BBC News, 20 October 2011. 58 P Woodworth, The Basque Country: A Cultural History (Signal Books, 2010) 184. 50

80 Duty to Protect Life whom it was planning on targeting next until it was too late. As a result, the state took the proactive move of providing bodyguards for a select few. Those that did not meet the criteria for state protection often funded a bodyguard privately.59 The criteria for receiving state protection are unclear, however prima facie it appears that Spain fulfilled its duty to take reasonable protective measures against a known real and immediate risk to life from non-state actors. In Russia’s case it is guilty of failing to adequately protect against or investigate widespread bullying or hazing in its armed forces which poses a threat to life or limb due to the actual abuse60 or suicide.61 Hazing was common during the Chechen offences.62 Furthermore, the Russian authorities did not provide troops with adequate nutrition63 or effective protective equipment,64 which increased the threats to soldier’s lives outside of standard operations. That those who were affected were members of the military, whose job it is to put their life on the line, is irrelevant. Outside of lawful acts of war (when IHL takes precedence), Article 2 principles apply.65 Therefore, any force used against members of the military must be absolutely necessary66 and the state is obliged to take reasonable steps to address known real and immediate threats to life.67 In Perevedentsevy v Russia (2014), which dealt with the hazing of conscripts in the Russian army, the ECtHR ruled that: as with persons in custody, conscripts are within the exclusive control of the authorities of the State since any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities, and that the authorities are under a duty to protect them.68

The Court further stated that: the primary duty of a State is to put in place rules geared to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels.69

59 ‘Journalists in ETA’s line of sight: A hundred media professionals under official or private protection in Basque Country’, Reporters Sans Frontieres, June 2000; I Arteta, Basque Hell (El Infierno Vasco) (Leize Producciones SL, 2008). 60 K Giles, ‘Where have all the Soldiers Gone? Russia’s Military Plans Versus Demographic Reality’ (CSCR, October 2006) 13. 61 Perevedentsevy v Russia (2014). 62 A Babchenko, One Soldier’s War in Chechnya (Portobello Books, 2007) 30, 104–07, 307–08 and 352. 63 ibid, 308. 64 ibid, 97. 65 Art 15(2), ECHR. 66 Putintseva v Russia (2012). 67 Perevedentsevy v Russia (2014). 68 ibid, para 93. 69 ibid, para 94.

Duty to Protect Against Real and Immediate Risks to Life 81 Though not directly explored by the ECtHR, the implication is that the state who controls the issuing of equipment and nutritional rations is obliged to ensure that these are supplied in adequate measure and to a reasonable standard. This is supported by Collins J’s ruling in the UK case R (Smith) v Oxfordshire Assistant Deputy Coroner (2008), which looks at the state’s duty of care towards members of the military as a whole, not just conscripts. In this case it was found that although a duty of care could not be expected in combat, a ‘soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations’ and ‘thus, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2’.70 The UK Supreme Court extended this reasoning in Smith v Ministry of Defence (2013) by acknowledging that members of the armed forces relinquish total control over their lives to the state.71 Therefore, the state owes the same duties to conscripts as to volunteer recruits. There were clear failings on the state’s behalf in relation to the targeted victims of the conflicts in Chechnya, NI and Turkey. The common denominator was that the individuals involved were viewed as anti-state sympathisers, and (contrary to Article 2) that devalued their life in the eyes of the state. In relation to the lack of provision for Russian soldiers, this indicates a wider lack of appreciation of human life. Regarding the devaluation of life that exists in the ‘Russian sociocultural background’, there: has always existed [in Russia] an extremely significant number of people who are not deterred from committing murder … And the succession of wars and cruel repressions [that we have experienced] has lowered catastrophically the value of the human personality, of life itself … And this applies even more so to present Russia.72

Furthermore, the ‘Russian attitudes to death and the value of life have probably been affected, in the medium term, by repeated exposure to unmourned, unvalued death’.73 The actions and attitudes of the state actors disregard the principles set out within Article 2(1) of the ECHR. As the ECtHR pointed out in Kilic v Turkey (2000),74 which concerned the killing of journalist Kemal Kilic, all the protections that are in place are irrelevant if they are undermined by those that are tasked with implementing them, the state actors. Kilic illustrated the limitations of law and the need for state actors to adopt and adhere to a rights-based approach in theory

70 R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner (2008). This view was upheld by the Supreme Court in R (Smith) v Secretary of State for Defence (2010), paras 79, 105, 195 and 198. 71 Smith and Others v the Ministry of Defence (2013), paras 63, 68 and 147. 72 V Guliev, ‘Moratoriy na smertnuiu kazn’ prezhdevremenen’ (‘The moratorium on the death penalty is premature’), Nezavisimaya Gazeta, 21 December 1996, quoted in B Bowring, Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Routledge, 2013) 188. 73 ibid. 74 Kilic v Turkey (2000) paras 70–76.

82 Duty to Protect Life and practice. The ECtHR is to be commended for pointing this out, but it missed a prime opportunity to address the systematic practice of serious human rights violations by state actors that allegedly existed in Turkey at the time. The applicant claimed that: there existed in Turkey an officially tolerated practice of violating Articles 2 and 13 of the Convention, which aggravated the breaches of which he had been a victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches of these provisions, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human rights violations as well as a denial of remedies.75

The Court responded by stating that ‘having regard to its findings under Article 2 and 13 … [it] does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities’.76 The question is when is a good time? In Kilic, the ECtHR found the state guilty on all counts claimed under Article 2, and there were examples of similar violations in other cases. A case where no violation was found would be inappropriate, as would a case where there was no evidence of similar violations elsewhere. Notably, the ECtHR did not deem such an investigation outside its jurisdiction; instead it did ‘not find it necessary’. This is the difference between cannot and will not. Effectively the Court was saying (as it did with cases concerning NI and Russia) that it did not want to have to deal with such a politically charged issue. Instead it focuses on the individual cases before it; where it can give the state a rap on the knuckles, placate the relatives with compensation and hope that things will change. The ECtHR chose the role of a reactive court (unlike its Inter-American counterpart), but in strong cases (like Kilic) that is unsatisfactory and undermines the effective protection of Article 2 of the ECHR. The ECtHR is starting to address this with the development of the pilot judgment procedure. This is where the Court selects a test case with a view to achieving a solution that extends beyond the selected case to cover all similar cases raising the same issue.77 The remit of the Court and its powers are so limited that it makes it difficult for an effective impact to be made, particularly with regard to less compliant states (eg Turkey and Russia). Yet the Court should be seizing every opportunity to use the powers that it does have to the maximum of its ability and jurisdiction. This exemplifies how it was failing to do so; the pilot judgment procedure only remedies this to an extent.

75

ibid, para 94. ibid, para 95. 77 ECtHR, ‘The Pilot-judgment Procedure’ (ECtHR, 2009). 76

Extra-territorial Scope of Article 2 83 III. EXTRA-TERRITORIAL SCOPE OF ARTICLE 2

What is meant by the maximum of the ECtHR’s jurisdiction needs exploring, particularly in relation to times of conflict when unrest can transcend political borders. It has been stated that: obligations under the ECHR do not operate in a free-standing sense, simply in relation to the acts or omissions of State Parties wherever they occur. Rather, State responsibility is engaged only if the situation in question falls within the State’s jurisdiction.78

This reflects Article 1 of the ECHR, which provides that ‘the HCPs shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the ECHR’, but what equates to jurisdiction? It is accepted that jurisdiction extends to a state’s internationally recognised territory; ie ‘the spatial sphere within which a state’s sovereignty is normally manifested’.79 Thus the ECHR (including Article 2) must be adhered to within the territory of each Member State of the CoE.80 However, does the ECHR then not have extra-territorial application? The ECHR’s reference to the concept of ‘within their jurisdiction’, rather than ‘within their territory’, implied that ECHR HCPs could be obliged to secure ECHR-based rights outside their territory.81 The ECHR’s judicial bodies agree. This first emerged in Hess v UK (1975), where the ECommHR ruled that, ‘a State is under certain circumstances responsible under the ECHR for the actions of its authorities outside its territory’.82 It was developed that the ECHR can apply outside of Europe in certain exceptional circumstances. Bankovic v Belgium (2001)83 established that effective control through military occupation and ‘the exercise of all or some public powers’ could be enough to extend a state’s jurisdiction.84 Al-Skeini v UK (2011) reduced the requirement to prove effective control to involve a military action, as opposed to military occupation.85 78 R Wilde, ‘The “Legal Space” or “Escape Juridique” of the ECHR: Is it Relevant to Extraterritorial State Action?’ (2005) European Human Rights Law Review 115. 79 E Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (Martinus Nijhoff Publishers, 2006) 66. 80 It is now a condition of accession to the CoE that all Member States must ratify the ECHR. 81 C Ryngaert, ‘Clarifying the Extra-Territorial Application of the ECHR’ (2012) 28(74) Utrecht Journal of International and European Law 57; R Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the ECHR’ in F Coomans and M Kamminga (eds) Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 88–90. 82 Hess v UK (1975) 72. 83 Bankovic and Others v Belgium and Others (2001). This examined the bombing of a radio station building during the Kosovo crisis in April 1999. 16 people were killed and 16 others were seriously injured. The victims’ relatives argued that ‘anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may be committed or its consequences felt, is thereby brought within the jurisdiction of that State’. The ECtHR found no jurisdictional link between the persons who were victims of the act complained of and the respondent states. It reasoned that ‘The ECHR was not designed to be applied throughout the world, even in respect of the conduct of Contracting States’. 84 ibid, paras 71 and 80; Drozd and Janousek v France and Spain (1992) paras 84–90; Cyprus v Turkey (2001) paras 75–81. 85 Al-Skeini and Others v UK (2011) paras 138–40; Bankovic and Others v Belgium and Others (2001) paras 71 and 80.

84 Duty to Protect Life The reasoning for placing a limit on the extra-territorial application of the ECHR was provided in Issa v Turkey (2004), where the ECtHR stated that ‘Article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory’.86 The applicant must provide evidence that a state has effective control.87 It is insufficient to claim this on the basis of a personal viewpoint. Issa confirms that the effective control exercised does not have to be lawful.88 It is also ‘not necessary to determine whether the HCP actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory’.89 It is sufficient to show ‘overall control of the area’.90 Chiragov and Others v Armenia (2015) elaborated that effective control also includes a situation where ‘an administration survives by virtue of the military, political, financial and other support’ of another.91 [A state may] be held accountable for [a] violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State.92

This was supported in Öcalan v Turkey (2003), where the ECtHR accepted that the PKK leader, Abdullah Öcalan, was under the effective control of the Turkish authorities as soon as he was arrested on an aircraft in Kenya.93 This is confirmed in Al-Skeini with the concept of a ‘state agent authority model’, which is when a state, ‘through its agents, exercises control and authority over an individual, and thus jurisdiction’.94 It focuses on the intensity of control which the CoE states’ official agents exercise over individuals. In Al-Saadoon and Mufdhi v UK (2010)95 and Othman (Abu Qatada) v UK (2012),96 the obligation on states to protect the rights of individuals within their jurisdiction extended to prohibiting the extradition of foreign nationals, if the extradition potentially violates the individual’s human rights. This applies even if the state to which they will be extradited is not an HCP to the ECHR. Furthermore, there is evidence to suggest that a state owes a

86

Issa and Others v Turkey (2004) para 71. Hussein v Albania and Other States (2006). 88 Issa and Others v Turkey (2004) para 69; Loizidou v Turkey (1995) para 62. 89 Issa, para 70; Loizidou v Turkey (1996) para 56. 90 Issa, para 70. 91 Chiragov and Others v Armenia (2015) para 186. 92 Issa, para 71; M v Denmark (1992), 193; Illich Sanchez Ramirez v France (1996), 155. 93 Öcalan v Turkey (2003) para 93; M Schaefer, ‘Al-Skeini and the Elusive Parameters of Extrerritorial Jurisdiction’ (2011) 5 European Human Rights Law Review 566, 571. 94 Al-Skeini and Others v UK (2011) paras 137 and 149. This considered the fatal shooting of five Iraqi civilians during British patrol operations and the killing of one Iraqi civilian at a British army base in Basra, Iraq during 2003. It found that ‘the UK, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over the individuals killed in the course of such operations, so as to establish a jurisdictional link between the deceased and the UK’. 95 Al-Saadoon and Mufdhi v UK (2010). 96 Othman (Abu Qatada) v UK (2012). 87

Conclusion 85 duty of care to its own soldiers operating in a third state.97 Where the right to life is concerned, states that ratified the ECHR (ie all members of the CoE) must protect this right within their de jure and de facto jurisdictions. A previously outstanding question was whether the extra-territorial scope of the ECHR differed for negative and positive obligations.98 In Pisari v Republic of Moldova and Russia (2015) the ECtHR found that the state in de facto control (Russia) had responsibility for the actions of its actors for both negative and positive obligations.99 This case fell short of confirming the obligations of Moldova (the state under de jure control). In Mozer v Republic of Moldova and Russia (2016), the ECtHR clarified that: even though it did not have effective control over the Transdniestrian region. Moldova’s obligation under Article 1 of the Convention ‘to secure to everyone within [its] jurisdiction the [Convention] rights and freedoms’, was, however, limited in the circumstances to a positive obligation to take the diplomatic, economic, judicial or other measures that were both in its power to take and in accordance with international law.100

What the applicants, legal teams and the ECtHR should bear in mind is that Article 2 does have extra-territorial scope. This is an important development for three of the case studies. It opens the possibility of victims pursuing claims against Spain, for its killings on French soil,101 against the UK, for its operations in Ireland and Gibraltar,102 and against Turkey for alleged violations of the right to life against PKK combatants in northern Iraq,103 or for the killing of three Kurdish activists in Paris.104

IV. CONCLUSION

This chapter has set out the additional duties contained within the positive obligation to protect life—the duty to adequately plan operations; and the duty to protect against real and immediate risks. The discussions surrounding these 97 Perevedentsevy v Russia (2014) para 94; R (on the Application of Smith) v Oxfordshire Assistant Deputy Coroner (2008); R (Smith) v Secretary of State for Defence (2010), paras 79, 105, 195 and 198; Smith and Others v the Ministry of Defence (2013), paras 63, 68 and 147. 98 Schaefer (n 93), 579; M Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law 121, 132. 99 Pisari v Republic of Moldova and Russia (2015) para 60. A Moldovan national was shot dead by a Russian solider at a peacekeeping checkpoint in Moldova. 100 Mozer v Republic of Moldova and Russia (2016) para 100. 101 J Darnton, ‘Basque conflict spills over into France’, New York Times, 24 December 1983. 102 S Dunn et al, ‘Cross Border Co-operation in Ireland’ (CPDS, 2002) 13–15; McCann v UK (1995). 103 ‘Turkish MPs back attacks in Iraq’, BBC News, 18 October 2007; ‘Turkey invades northern Iraq’, The Economist, 28 February 2008; S Issa and I Yezdani, ‘Turkey invades Iraq after Kurdish rebel kills 26 Turkish soldiers’, The Miami Herald, 19 October 2011; ‘Iraq tells Turkey to stop pursuing Kurdish rebels over border’, Reuters, 2 October 2012; ‘Turkey air strikes as Kurd activists’ bodies are returned’, BBC News, 16 January 2013. 104 M de la Baume, ‘Man charged in deaths of 3 Kurds in Paris’, The New York Times, 21 January 2013.

86 Duty to Protect Life obligations showed that the requirements contained within are not immediately obvious from the text of Article 2. To remedy this, the provisions included in the recommended guidelines should elaborate on what is required in planning an operation, and expand upon what is required to protect against real and immediate risks to life. An example of how this could be achieved is set out in the Appendix. Such clarity assists with a state’s understanding of its duties under Article 2, which guides these duties from theory to practice. This chapter has also clarified that the ECHR has some extra-territorial scope, which is particularly relevant during times of conflict, when unrest can transcend political borders. In addition, this chapter has called on the ECtHR to be more proactive in challenging suspected systematic violations of Article 2. As guardian of the ECHR, it is important that the ECtHR tackles any violation of Article 2 to the best of its ability. To focus on individual violations and not meaningfully tackle suspected widespread violations makes a mockery of the ECHR, at best. At worst, it enables breaches of Article 2 to proliferate, costing lives in the process. In times of conflict, when systematic violations are most likely, such costs are high.105 This chapter has also confirmed that Article 2 has extra-territorial scope where an HCP exercises effective control. This included scenarios of administrative control and state agency authority. In such instances, the duties of the HCP with de jure, but not de facto control were limited to positive obligations, while the duties of the HCP with de facto, but not de jure control extended to positive and negative obligations. These are important developments. They confirm that use of force that transcends political borders is not immune to Article 2. As illustrated by the case studies, such scenarios are not unheard of during times of conflict.

105

See Ch 10.

6 Enforced Disappearances

E

NFORCED DISAPPEARANCE IS a phenomenon that is distinct from extrajudicial killings.1 The circumstances surrounding an enforced disappearance are often unknown for a continuous or indefinite period.2 This distinction is reflected in the ECtHR’s jurisprudence concerning the time limits for lodging applications in relation to enforced disappearances. Yet, the ECHR does not contain a specific right not to be subjected to enforced disappearance. This right is subsumed within the rights to life (Article 2), to be free from torture, inhuman or degrading treatment (Article 3), to liberty and security of person (Article 5), and to a fair trial (Article 6).3 The particular circumstance of each case determines the applicability of these Articles. Relatives of the disappeared also have standing under Article 3, being subjected to degrading treatment due to the prolonged suffering caused by the absence of news about the fate of their loved ones.4 Where Article 2 is concerned, it needs to be made clearer that enforced disappearances are prohibited. This is comprehensively set out in the International Convention for Protection of All Persons from Enforced Disappearances 2006 (ICED). The PACE is in favour of using the ICED as an authority for dealing with enforced disappearances in Europe,5 but this Convention received a lukewarm response from the international community. It has 96 signatories, but only 56 ratifications.6 Within the CoE, the ICED has 35 signatories and 20 ratifications, out of a potential 47.7 Thereby, 74% of the CoE publicly voiced support for the principles set out in the ICED, but only 43% are bound by the obligations contained within it.8 The ratifying states do not include the greatest perpetrators of enforced

1

Heliodoro Portugal v Panama (2008) paras 31–39. Varnava and Others v Turkey (2009) para 194. 3 J Rehman, International Human Rights Law (Longman, 2010) 855; P Dijkstra et al, ‘Enforced Disappearances as Continuing Violations’ (AILC, 2002) 19–22. 4 Varnava and Others v Turkey (2009) paras 93–107; Aslakhanova and Others v Russia (2012) para 64. 5 PACE, ‘Resolution 1463 (2005)—Enforced Disappearances’, 3 October 2005, para 9. 6 UN, ‘ICED’, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16& chapter=4&lang=en. 7 There are 47 Member States of the CoE: CoE, ‘47 Member States’, www.coe.int/en/web/ portal/47-members-states. 8 ibid. 2

88 Enforced Disappearances disappearances in Europe—Turkey and Russia. Ratifying the treaty would expose them to further criticism and impose obligations that cannot be guaranteed under those states’ current regimes. The reluctance of other CoE Member States to ratify is less understandable. It could be a belief that the ECHR is sufficient to deal with enforced disappearances, or that the highlighted deficiencies9 of the ICED justify a complete rejection of the convention. It could also be that the ICED is in its youth. There has been an increase in the number of signatures and ratifications yearon-year since the Convention entered into force in 2010. Irrespective, the European states would benefit from clarification of their obligations regarding enforced disappearances that were read into Article 2 by the ECtHR. The reasons for this are three-fold. First, the HCPs to the ECHR contain a mix of common law and civil law systems. Considering the four case studies—the UK and Ireland, as common law systems, are accustomed to referring to case law for clarification of the codified law. Chechnya, France, Spain, Russia and Turkey, as civil law systems, more commonly rely upon codified principles. Codified guidelines set an approach that all HCPs are familiar with. Second (as the cases concerning Turkey illustrate),10 by failing to directly deal with enforced disappearances, this element of an application brought to the ECtHR gets overlooked in favour of other codified issues. Consequently, systematic practices (eg enforced disappearances) are unaddressed. Third, the ECtHR is not bound by the ICED or the work of the UN Committee on Enforced Disappearances. It is entitled to pick and choose the aspects that it wishes to rely upon, but the ECtHR is hesitant to use international law as a main authority in its judgments. The PACE suggested introducing a European Convention for the Protection of all Persons from Enforced Disappearance.11 Yet, the silence that followed this suggestion indicates that the creation of such a treaty is a long way off, if at all. An alternative (and more feasible) option is to piggyback off the already existing ECHR. By providing codified guidance attached to the Court’s operational manual (the ECHR) there can be no question as to its applicability to the work of the ECtHR or the expectations placed on states. Enforced disappearances should be awarded distinct consideration in the ECHR and the jurisprudential principles relating to this issue should be clearly set out in guidelines. Using the system that exists and one that was accepted by all Member States of the CoE, the best way to address this is to include a provision dedicated to enforced disappearance in the proposed guidelines. Addressing the phenomenon in guidelines connected to Article 2 of the ECHR is appropriate, as enforced disappearances often result in actual or presumed death. This is particularly relevant to times of conflict, as shown in the four case studies. This chapter considers the various elements that should be considered when formulating the proposed provision.

9

PACE, ‘Resolution 1868 (2012)’, 9 March 2012, para 6. Ersöz v Turkey (1995); Kurt v Turkey (1998); Dijkstra (n 3) 27. 11 PACE (n 9). 10

The Evolving Concept of Enforced Disappearances 89 I. THE EVOLVING CONCEPT OF ENFORCED DISAPPEARANCES

Hitler’s Nacht und Nebel Erlass12 is the first recorded instance of an enforced disappearance policy.13 This decree directed that those in the German occupied territories involved in activities that intended to undermine the security of German troops were brought to Germany ‘by night and fog’ for trial by special courts. This bypassed the military procedure and the IHL provisions that govern the treatment of prisoners.14 Another stark example is the kidnap, torture, execution and sea burial of 30 reformists by a US-trained death squad in Guatemala during the early years of the Guatemalan Civil War 1960–96.15 However, it was not until occurrences in Chile during the 1970s that enforced disappearances were recognised as a human rights issue.16 During this period the concerns of Chilean human rights lawyers were raised when some of their prisoner clients disappeared, even though they were recorded as being in the custody of the Chilean security forces.17 Since this development, enforced disappearances were recorded in countries such as Argentina, El Salvador, the Philippines, Sri Lanka and Syria.18 In Europe there is evidence of enforced disappearances in the four case studies. In NI and the Basque country there is evidence of enforced disappearances of portrayed state sympathisers by rebel groups. There are 18 known cases of disappearances as a result of the conflict in NI, all of whom are suspected of having been murdered and secretly buried by Republican paramilitaries.19 These cases went largely uninvestigated until the enactment of the NI (Location of Victims’ Remains) Act 1999 and Ireland’s Criminal Justice (Location of Victims’ Remains) Act 1999. This legislation facilitates information to be passed through an intermediary in the form of the Independent Commission for the Location of Victims’ Remains. The information passed to the Commission is inadmissible in any criminal proceedings and is to be used for the sole purpose of locating the disappeared. Similarly, no forensic examination can be made of any bodies found as a result of information supplied.20 In the Basque conflict, ETA was involved in a number of kidnappings of (what it viewed as) state sympathisers. There was a period

12

Nacht und Nebel Erlass (‘Night and Fog Directive’), 7 December 1941. M Boot et al, ‘Article 7 (Crimes against Humanity)’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court—Observers’ Notes Article by Article (Hart Publishing, 2008) 221; AI, ‘No Impunity for Enforced Disappearances’ (AI, 2011) 1. 14 Nacht und Nebel Erlass, 7 December 1941. 15 G Grandin, ‘The Unholy Trinity: Death Squads, Disappearances and Torture—From Latin America to Iraq’, 11 December 2007. 16 J Zalaquett, ‘The Emergence of “Disappearances” as a Normative Issue’ in CB Walling and S Waltz (ed), ‘Human Rights: From Practice to Policy—Proceedings of a Research Workshop Gerald R Ford School of Public Policy University of Michigan October 2010’ (University of Michigan, 2011) 1. 17 ibid. 18 HRAHIHS, ‘Enforced Disappearances’, http://humanrightshistory.umich.edu/problems/disappearances/; ECCHR, ‘Implementation of the Convention against Enforced Disappearance in Germany’, www.ecchr.de/index.php/enforced-disappearance.html. 19 The Disappeared of NI, ‘About’, http://thedisappearedni.co.uk/about/. 20 s 4, NI (Location of Victims’ Remains) Act 1999. 13

90 Enforced Disappearances when the individuals could be categorised as disappeared, but those kidnapped were eventually released, dead or alive. In these two conflicts, there is evidence that the state failed in its Article 2 duty to effectively investigate these suspicious deaths. To date there is no evidence of collusion or state involvement concerning enforced disappearances in NI. However, there is one alleged case of state involvement in the enforced disappearance of ETA member Jon Anza. The victim was a recognised ETA member who spent 20 years in prison for the murder of retired police officer Leopoldo García Martín on 17 January 1981. Anza was released from prison in 2002 and settled in France. He rejoined ETA in 2005 and went missing on 18 April 2009 on his way to an ETA meeting. There was no trace of him until his body appeared in a morgue in Toulouse, France on 11 March 2010. The circumstances surrounding his disappearance and death are unclear, but allegations were made that the French and Spanish authorities were involved.21 A significant but undefined number disappeared, presumed dead at the hands of state actors, during the Turkish-Kurdish conflict. The Turkish authorities provided little assistance in investigating the whereabouts of the disappeared. Many family members reported a ‘wall of silence’ in response to their requests for information and investigation.22 In Chechnya it is estimated that between 3,000 and 5,000 people disappeared, most presumed dead.23 The blame for these disappearances lies mainly with Russian forces that often rounded up Chechens during purges and at checkpoints. The Russian authorities were reluctant to take responsibility for these disappearances and made little attempt to investigate such cases.24 The Chechen military carried out similar operations, though this subject is ‘taboo’ in Chechnya, with the Chechen authorities refusing to acknowledge or take responsibility for such incidents.25 Reflecting that the ECHR is directly applicable only to state actors, this chapter focuses on the state’s obligations in relation to enforced disappearances.

II. DEFINING ENFORCED DISAPPEARANCES

The ECHR does not confer an express right not to be subjected to enforced disappearances, nor does it include a definition of enforced disappearance. Unlike in the Inter-American system,26 there is no European convention on enforced 21 G Mujika, ‘Un cuerpo policial español habría enterrado a Jon Anza en suelo francés’, Gara, 2 October 2009; J Rodríguez, ‘ETA delató a Jon Anza’, El País, 12 March 2010. 22 D Jones, ‘Turkish Kurds still search for disappeared’, Deutsche Welle, 3 October 2012. 23 D Newman, ‘Chechnya’s long wait for the disappeared to return’, BBC News, 17 July 2011. 24 Bazorkina v Russia (2006); Baysayeva v Russia (2007). 25 Newman (n 23). 26 The Inter-American human rights system has its own Inter-American Convention on Forced Disappearance of Persons 1994. Art II states that enforced disappearance is ‘considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the State or by persons or groups of person acting with the authorisation, support or acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom

Defining Enforced Disappearances 91 disappearances. The PACE suggested the creation of such a convention,27 but in the meantime it attempted to establish a European stance on enforced disappearances. Resolution 1463 defines enforced disappearances as a ‘deprivation of liberty, refusal to acknowledge the deprivation of liberty or concealment of the fate and the whereabouts of the disappeared person and the placing of the person outside the protection of the law’.28 This Resolution is considered a persuasive authority by the ECtHR. The ECtHR relies upon more sophisticated definitions contained in other international instruments to determine whether an enforced disappearance has taken place. In Aslakhanova v Russia (2012)29 the ECtHR considered the disappearance of eight males in Grozny, Chechnya, between March 2002 and July 2004. The ECtHR relied on Resolution 1463 to determine the obligations of the state in relation to enforced disappearances, but on international instruments to define this crime.30 The definition most often relied upon is set out in Article 2 of the ICED: for the purposes of this Convention, enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

This is similar to the definitions contained within the Preamble of the UN Declaration on the Protection of all Persons from Enforced Disappearance 1992 and Article II of the Inter-American Convention on Forced Disappearance of Persons 1994. Article 7(2)(i) of the Rome Statute of the International Criminal Court 1998 (Rome Statute) includes some additional stipulations: enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by the refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. [Emphasis added.]31

Article 7(2)(i) also describes the widespread or systematic practice of enforced disappearance as a crime against humanity.32 This brings such practice within the purview of the International Criminal Court and makes it ius cogens. The PACE supports such a position, stating that there should be an ‘extension of the

or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.’ 27

PACE (n 9). PACE (n 5) para 1. 29 Aslakhanova and Others v Russia (2012). 30 ibid, paras 60–64. 31 Art 7(2)(i), Rome Statute. 32 ibid. 28

92 Enforced Disappearances principle of universal jurisdiction to all acts of enforced disappearance’.33 From these definitions it is determined that an ‘enforced disappearance’ requires an element of arbitrary detention, concealed information and state involvement.34 The following sub-sections assess the different elements that should be considered when formulating the definition of enforced disappearances.

A. Perpetrators Traditionally, the application of the ECHR is limited to the acts and omissions of state actors. Articles 32 and 35(3)(a) provide that compatibility ratione personae requires the alleged violation of the ECHR to be committed by a Contracting State or to be in some way attributable to it. Applications will be declared incompatible on this ground if: the applicant lacks standing as regards Article 34;35 the applicant is unable to show that he or she is a victim of the alleged violation;36 the application is brought against an individual;37 the application is brought against a State that has not ratified the ECHR38 or directly against an international organisation which has not acceded to the ECHR;39 and/or 5) the complaint involves a Protocol to the Convention which the respondent State has not ratified.40 1) 2) 3) 4)

Yet, as the NI and Basque conflicts demonstrate, the perpetrators of enforced disappearances are not limited to state actors. Arguments were made in favour of extending the enforced disappearance definition to include actions by actors with no link to the state.41 The PACE supported this position by providing that an essential element for effectively dealing with enforced disappearances is to include a definition that is wide enough to cover enforced disappearances ‘committed by non-State actors, such as paramilitary groups, death squads, rebel fighters or organised criminal groups’.42

33 PACE, ‘Resolution 1031 (1994): On the Honouring of Commitments Entered into by Member States when Joining the CoE’, 14 April 1994, para 10.3.2. 34 L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011) 229. 35 Municipal Section of Antilly v France (1999); Dösemealti Belediyesi v Turkey (2010); Moretti and Benedetti v Italy (2010). 36 CoE, ‘Practical Guide on Admissibility Criteria’ (CoE, 2011) 35. 37 X v UK (1981); Durini v Italy (1994). 38 ES v Germany (1995). 39 Stephens v Cyrpus, Turkey and the UN (2008). 40 Horsham v UK (1996); De Saedeleer v Belgium (2007) para 68. 41 M Nowak, ‘Civil and Political Rights, Including the Questions of Disappearances and Summary Executions’, 8 January 2002, para 73; GA/SHC/3872, ‘Third Committee Approves Draft Resolution Concerning Convention on Enforced Disappearances’, 13 November 2006; T Florath, ‘The Protection Against Enforced Disappearance in Armed Conflict’ (ICHR, 2011) 47–51. 42 PACE (n 33) para 10.1.1.

Defining Enforced Disappearances 93 Such perpetrators are not to be granted impunity. Instead, in the context of Article 2, it is the role of the state to: 1) put legal frameworks in place to criminalise such practice;43 2) take reasonable proactive steps when it becomes aware of a real and immediate risk from state and non-state actors;44 and 3) investigate suspicious deaths and hold the perpetrators, whether state or nonstate actors, to account.45

B. Victim Status As provided in Article 34 of the ECHR, ‘the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the HCP or the rights set forth in the Convention or the Protocols’. This requires that the victim is directly affected by the alleged act or omission at issue.46 Acknowledging that this is not possible in cases concerning a death where the direct victim is not alive to bring a case, cases may be brought by indirect victims. For this to occur there must be a personal and specific link between the direct victim and the applicant; usually the applicant must be the next-of-kin or legal partner.47 This is particularly relevant in relation to enforced disappearances. This stipulation may be provided for within the ECtHR’s jurisprudence when discussing Article 2 more generally. Yet it is essential that ‘family members of the disappeared persons should be recognised as independent victims of the enforced disappearance’.48 Article 24(1) of the ICED provides an example of what this could look like. It states that ‘for the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance’.49 In comparison with the ECHR’s indirect victim threshold of the applicant needing to be a family member or legal partner, the ‘any individual’ stipulation of Article 24(1) of the ICED is a step too far. Additionally, Article 24(2) of ICED provides a ‘right to know the truth’. This was raised by the applicant in a disappearance case, Varnava v Turkey (2009),50 where it was found that ‘the silence of the authorities of the respondent State in face

43 McCann v UK (1995) para 192 and 193; LCB v UK (1998) para 36; Makaratzis v Greece (2004) para 60; Doswald-Beck (n 34) 162. 44 Osman v UK (2000) para 116; Mahmut Kaya v Turkey (2000) para 86; LCB v UK (1998); Oneryildiz v Turkey (2005). 45 Kilic v Turkey (2000) paras 70–76. 46 Amuur v France (1996) para 36. 47 McCann v UK (1995); Yasa v Turkey (1998) para 66; Cakici v Turkey (1999) para 98–99. 48 PACE (n 33) para 10.2. 49 Art 24(1), ICED. 50 Varnava and Others v Turkey (2009) para 220.

94 Enforced Disappearances of the real concerns of the relatives could only be categorised as inhuman treatment’.51 The ECtHR did not expressly recognise a right to know the truth. The ECtHR accepted the ‘right to truth’ in other cases.52 The ECtHR also indirectly promoted the right to truth by demanding that an effective investigation is conducted in relation to suspicious deaths, including enforced disappearances. Furthermore, an essential element of protection against enforced disappearances is that family members are ‘granted a “right to the truth”, ie a right to be informed of the fate of their disappeared relatives’.53

C. Absolute Prohibition Enforced disappearances (individual, and widespread or systematic practices) are absolutely prohibited. It is noted that ‘legal mechanisms are rendered ineffective with the realisation of any individual being swept off the street and being brutalised without apparent reason’.54 Therefore, it is important to have every possible safeguard in place to prevent even the possibility of an enforced disappearance, starting with the express determination that such an act is prohibited in all circumstances. Article 2(2) allows for use of force in limited circumstances, which can lead to a justified killing. However, even in cases where the use of force may be justified, abducting the victim and denying their family information about the person’s whereabouts is never permitted. Nor is the use of ‘any form of incommunicado detention and of any secret places of detention’ allowed.55 This links to the PACE’s suggestion to clarify that ‘no superior order or instruction of any public authority may be invoked to justify an act of enforced disappearance’.56 Article 5 of the ICED provides that ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance’.57 Article 15(2) of the ECHR takes the simpler approach of stating that there should be ‘no derogation’.58 The outcome of both provisions is similar in practice, but the more direct and legally sophisticated wording of Article 15(2) is favoured for the purposes of a European definition. As too is the broader definition of deprivation of liberty provided by Article 2 of the ICED. Unlike Article 7(2)(i) of the Rome

51

ibid, para 202. El-Marsri v The Former Yugoslav Republic of Macedonia (2012) para 191; Janowiec and Others v Russia (2013) para 9 of the Joint Partly Dissenting Opinion of Judges Ziemele, De Gaetano, Laffranque and Keller. 53 PACE (n 33) para 10.2. 54 Rehman (n 3) 855. 55 PACE (n 33) para 10.4.1. 56 ibid, para 10.3.4. 57 Art 5, ICED. 58 Art 15(2), ECHR. 52

Defining Enforced Disappearances 95 Statute, which sets out express forms of deprivation of liberty, the inclusion of the broader term ‘any other form’ of deprivation of liberty as provided by Article 2 of the ICED is preferable.

D. Addressing Systematic Issues The ECtHR prefers to consider widespread or systematic practices on an individual basis, as exemplified by the mass violations of Article 2 involving enforced disappearances in the Turkish-Kurdish and Chechen conflicts.59 One of the aims of the recommendations made in Chapter 10 is to move the ECtHR away from this timid approach. This will help to create a more cohesive partnership between the ECHR and international law. There are examples where international instruments are used as an additional safeguard or persuasive authority by the ECtHR.60 Article 15(1) of the ECHR provides that derogating measures should not be inconsistent with ‘other obligations under international law’, and the ECtHR frequently uses international instruments to clarify definitions and obligations under the ECHR.61 However, the ECtHR’s approach in this regard was reserved. On the occasions when international law was referenced in cases of enforced disappearance (eg the ICED and Article 7(2)(i) of the Rome Statute), it offered clarification of a definition not provided for within the European system. It is not used in any substantial way within the ECtHR’s analysis. The ECtHR mentions the relevant parts of international law under the section ‘Relevant International Law and Practice’, simply regurgitating the exact wording of the international provisions and jurisprudence. The ECtHR then moves on to its analysis of the complaint without further consideration of the stated international law.62 That is except on the occasions when the ECtHR uncharacteristically chooses to engage in judicial activism beyond that facilitated by the ECHR. For example, in Er v Turkey (2012),63 Article 21 of ICED and Article 11 of the Declaration on the Protection of all Persons from Enforced Disappearances 1992 were used to clarify that: all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability to fully exercise their rights are assured.64

59 Varnava and Others v Turkey (2009); Meryem Celik and Others v Turkey (2013); Aslakhanova and Others v Russia (2012). 60 Aslakhanova and Others v Russia (2012) paras 60–64. 61 ibid. 62 ibid; Meryem Celik and Others v Turkey (2013); Aslakhanova and Others v Russia (2012). 63 Er and Others v Turkey (2012). 64 ibid, para 154.

96 Enforced Disappearances International law is used as an ‘aid for interpretation’,65 as ‘support’66 or as ‘a source of inspiration’67 by the ECtHR. This is because the former ECommHR and the ECtHR are ‘reluctant to grant too much weight to international sources and rarely [find] them to be dispositive of the cases before them’.68 This is unlike the IACtHR, which regularly incorporates relevant international laws and practice into its analysis.69 In cases such as enforced disappearances where the ECHR is under-developed, the ECtHR should not be so reserved in incorporating relevant international laws and practices into its analysis. It should adopt an approach more akin to that adopted in Er where required. Second, when confronted with systematic violations (such as enforced disappearances in Turkey and Russia), the ECtHR has always opted to take an individualistic approach. There were occasions when the Court acknowledged that a ‘phenomenon’ exists, but it failed to convey this in its final judgments.70 The findings of a violation of Article 2 led to the payment of compensation and, on occasion a statement of regret,71 but the ECtHR failed to challenge the systematic failings of the state. This includes enforced disappearances directly attributable to the state and those that occurred due to the state’s failing to act to prevent or investigate disappearances by non-state actors. Consequently, the systematic element72 of this practice is unaddressed, leading to impunity and the space in which enforced disappearances can continue. The PACE called for this to be remedied.73 The ECtHR should take a more activist approach (like the IACtHR) by providing binding recommendations for change in its judgments.74 This was done to an extent in the Article 3 pilot judgment of Ananyev v Russia (2012).75 After finding Russia in violation of Articles 3 and 13 by detaining suspects pending trial in inhuman and degrading cell conditions without recourse to effective complaint mechanisms or compensation, the ECtHR suggested a number of practical reforms that should take place within Russia’s detention centres and judicial system. However, the same is yet to be done in relation to an Article 2 case. There are issues concerning enforcement of these recommendations. The CoE Commissioner for Human Rights has the ability to make recommendations following country visits. By encouraging a similar response from the ECtHR, these two different institutions complement each other and provide a stronger impetus for change.

65 M Forowicz, The Reception of International Law in the ECtHR (OUP, 2010) 165, 168, 186, 188, 200, 202, 206 and 222. 66 ibid, 92. 67 ibid, 168 and 329. 68 ibid, 384–85. 69 Bámaca-Velásquez v Guatemala (2000). 70 Baysayeva v Russia (2007) para 119. 71 Aydin v Turkey (2001); Siddik Yasa v Turkey (2002). 72 This is that the crimes, such as enforced disappearances, are part of a state policy. 73 PACE (n 33) para 10.3. 74 Bámaca-Velásquez v Guatemala (2000) where the IACtHR ordered the respondent state to investigate the crimes and publicly disseminate the results of such investigation and punish those responsible. 75 Ananyev and Others v Russia (2012).

Defining Enforced Disappearances 97 That is particularly true since the ECtHR has the duty and resources to consider the evidence before it in more depth than a Commissioner is able to do from a few days’ visit. Within these recommendations the ECtHR should have the ability to suggest that an investigation is conducted by an independent body, such as the Commissioner for Human Rights or a specially created European sub-committee. The investigations and resulting country reports compiled by the Inter-American Commission on Human Rights (IACommHR) put an end to disappearances in Argentina and under the Anastasio Somoza dictatorship in Nicaragua.76 The ECommHR had its own success in this regard, exposing the gross violations against Kurds in south-east Turkey with its investigations during the 1990s.77 The Commissioner for Human Rights has to some extent continued the work of the abolished ECommHR. The Commissioner conducts country visits and reports his or her findings to the CoM,78 which along with the PACE is tasked with monitoring Member States’ compliance with the ECHR.79 The Commissioner reports that his office is now carrying out more targeted country visits focused on specific topics.80 It should be open to the ECtHR to make recommendations for a Commissioner’s visit to investigate the possibility of systematic practices of human rights violations. The Commissioner considered enforced disappearances and made recommendations more generally,81 but systematic violations of Article 2 (eg enforced disappearances) are unaddressed within investigations into individual states.82 The PACE is in favour of increased cooperation between the two bodies. Resolution 1031 states that there should be a ‘strong mechanism to monitor the respect of the State’s obligations’ in relation to enforced disappearances and that there should also be a ‘mechanism for urgent interventions in some cases’.83 This approach is not without its challenges. The Commissioner requires permission from a state to visit its jurisdiction for the purpose of conducting an investigation. Such requests for permission can be ignored or denied, meaning that the visit does not take place. This is an issue that the UN Working Group on Enforced or Involuntary Disappearances has had with Russia since putting in a formal request to visit in 2006.84 76 F González, ‘The Experience of the Inter-American Human Rights System’ (2009) 40 Victoria University of Wellington Law Review 103, 108–09. 77 P Leach et al, ‘International Human Rights and Fact-finding: An Analysis of the Fact-finding Missions Conducted by the ECommHR and ECtHR’ (HRSJRI, London Metropolitan University, February 2009). 78 CoE, ‘Commissioner on Human Rights: Country Monitoring’, www.coe.int/en/web/ commissioner/country-monitoring. 79 CoE, ‘About the CoM’, www.coe.int/T/CM/aboutCM_en.asp. 80 ibid. 81 CoE Commissioner for Human Rights, ‘Missing Persons and Victims of Enforced Disappearance in Europe’ (CoE, 2016). 82 CoE, ‘Commissioner on Human Rights: Thematic Work’, www.coe.int/en/web/commissioner/ thematic-work. 83 PACE (n 33) para 10.6. 84 CoE Commissioner for Human Rights, ‘Missing Persons and Victims of Enforced Disappearance in Europe’ (CoE, 2016) 21.

98 Enforced Disappearances Furthermore, Article 36(3) of the ECHR provides that ‘in all cases before a Chamber or the Grand Chamber, the Commissioner for Human Rights may submit written comments and take part in hearings’. This offers a prime opportunity for greater cooperation between the various organs of the European human rights system in tackling gross systematic violations, particularly in relation to the right to life in times of conflict when such violations are common. This was incorporated into the ECtHR’s reasoning to some extent. In the disappearance cases Turluyeva v Russia (2013)85 and Aslakhanova and Others v Russia (2013) a 2011 report on Russia by the Commissioner for Human Rights was used to demonstrate that despite the implementation of positive steps aimed at improving daily life in Russia, the most serious issues remained relating to ‘counter-terrorism measures, abductions, disappearances and ill-treatment, combating impunity and the situation of human rights defenders’.86 Despite all the country reports on Turkey and Russia87 and the number of enforced disappearance cases against these countries, these are the only two occasions when the Commissioner’s reports were mentioned in the ECtHR’s ruling. This under-utilisation of the partnership between the ECtHR and Commissioner on Human Rights should be addressed.

E. Intention Article 7(2)(i) of the Rome Statute stipulates that ‘the intention’ must be to remove disappeared persons from the protection of the law ‘for a prolonged period of time’. This requirement is too restrictive, as it omits situations where an enforced disappearance comes about due to a decision made in the heat of the moment by the perpetrator. For example, it is possible that during a purge, the aim was to detain the victim for a prolonged period of time, but not to remove any trace of the victim. It could arise that a chain of events led to the death of the victim and that the perpetrators wished to cover up the death by denying the family information. This may not have been the intention at the time the victim was detained. Such cases, under the Rome Statute definition, fall outside the scope of enforced disappearances. The Rome Statute definition is also aimed at dealing with widespread or systematic enforced disappearances. Such disappearances should be covered by the ECHR, but not at the expense of individual cases. Furthermore, the Rome Statute requirement that the intention must be to remove protection ‘for a prolonged period of time’ is too strict. It omits situations where enforced disappearances were carried out with the intention of providing time to cover up evidence or guarantee impunity. Therefore, an approach similar to Article 2 of the ICED is more appropriate in a European context—the actions must place ‘such a person 85

Turluyeva v Russia (2013). ibid, para 70; Aslakhanova and Others v Russia (2013) para 74. 87 CoE, ‘Commissioner on Human Rights: Country Monitoring by Country’, www.coe.int/en/web/ commissioner/country-monitoring-by-country. 86

Defining Enforced Disappearances 99 outside the protection of the law’, without the additional requirement to prove intention or a prolonged time frame.

F. Continuing Violation Temporal jurisdiction is the ‘jurisdiction of a court of law over a proposed action in relation to the passage of time’.88 A court can have temporal jurisdiction on the basis that the petition was lodged within the prescribed time limitations, or can lose temporal jurisdiction because the deadline for litigation of the particular action has expired. If a proposed action is out of time, it has lost ratione temporis. This is relevant to enforced disappearances which, depending on the circumstances, can be categorised as a continuing violation.89 A continuing violation is ‘the breach of an international obligation by an act of a subject of international law extending in time and causing a duration or continuance in time of that breach’.90 This type of violation raises questions as to when the six-month time limit91 for lodging a claim in Strasbourg starts, and as to the admissibility of complaints which concern events that date from before the ratification of the ECHR, or recognition of the right of individual petition by the relevant state.92 The first step in determining the applicability of the ECHR and jurisdiction of the ECtHR is whether the respondent state is a HCP to the Convention. All 47 countries in the CoE are HCPs to the ECHR and all future Member States of the CoE are expected to ratify the ECHR.93 Prior to the enforcement of Protocol No 11 of the ECHR, the temporal jurisdiction of the ECtHR regarding each HCP was defined by the date that the state accepted the jurisdiction of the Court and the right to individual application.94 Using Varnava as an example: Turkey was accordingly bound by the provisions of the Convention from 18 May 1954 [when it ratified the Convention]. However, its acceptance of the right of individual petition was limited to facts taking place after the date of the declaration to that effect on 28 January 1987. When the old Court ceased to function in 1998, this Court’s jurisdiction

88 US Legal, ‘Definition: Jurisdiction Ratione Temporis’, http://definitions.uslegal.com/j/ jurisdiction-ratione-temporis/. 89 Dijkstra (n 3), 5. 90 J Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation: Selected Problems’ (1996) 66(1) British Yearbook of International Law 415. 91 This is to be reduced to four months under Art 4 of Protocol No 15 to the ECHR 1950, which was adopted by the PACE on 26 April 2013 and is pending enforcement. 92 Under Art 35(1) of the ECHR, ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.’ The admissible time limit for the ECtHR was reduced from six to four months by Protocol No 15 of the ECHR: Art 4, Protocol No 15 to the ECHR, 24 July 2013. 93 PACE (n 33). 94 Protocol No 11 of the ECHR requires all current and future HCP to the ECHR to accept the right to individual petition: Art 1, Protocol No 11 to the ECHR, 11 May 1994.

100 Enforced Disappearances became obligatory and ran from the acceptance by a Contracting State of the right of individual petition. It follows that the Court is not competent to examine any complaints raised by these applicants against Turkey in so far as the alleged violations are based on facts having occurred before 28 January 1987.95

In the context of Article 2, complaints about deaths which occurred before the date of acceptance of the right of individual petition by the respondent state fall outside the ECtHR’s temporal jurisdiction.96 An issue arises in determining the temporal jurisdiction where the facts relied on fall partly within and partly outside the period of the ECtHR’s competence, especially where procedural obligations (eg the duty to investigate) are engaged. It was ruled in early cases that the Court lacked jurisdiction ratione temporis to deal with alleged procedural violations, even when the impugned proceedings continued after the ratification of the Convention.97 The ECtHR is now of the opinion that: the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent ‘interference’ … In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.98

The ECtHR’s revised stance has filtered down to a domestic level. For example, the UK initially rejected Article 2 cases dealing with pre-HRA acts or omissions (eg Re McKerr (2004)).99 However, in Re McCaughey (2011) the UK’s Supreme Court accepted the applicability of the HRA to inquests into pre-HRA killings.100 Compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended. The critical date is: the date of the entry into force of the Convention with respect to that Party or, as the case may be, prior to the entry into force of Protocol No 11, before the date on which the respondent Party recognised the right of individual petition, when this recognition was optional.101

This is relevant when considering the admissibility of violations of Article 2 within conflicts which pre-date the ECHR or its ratification by the respondent state. Silih v Slovenia (2009) mentions two limitations to be considered: first, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal 95 Varnava and Others v Turkey (2009) para 133; Cankocak v Turkey (2001) para 26; Demades v Turkey (2008) para 21. 96 ibid, para 134. 97 Moldovan and Others v Romania (No 1) (2005). 98 Silih v Slovenia (2009) para 159. 99 Re McKerr [2004]. 100 Re McCaughey and Ancor (2011). 101 Silih v Slovenia (2009) para 140.

Defining Enforced Disappearances 101 jurisdiction. Second, there must exist a genuine connection between the death and entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision—which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of death and holding those responsible to account—will have been or ought to have been carried out after the critical date. However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that guarantees and the underlying values of the Convention are protected in a real and effective manner.102

The findings of the 9–8 majority of the Court raise a number of issues. First, it is unclear whether the intention of the ECtHR was to limit jurisdiction ratione temporis to ‘cases where the death occurred only shortly before the critical date and the proceedings evolved over the intervening period and mostly occurred afterwards’.103 The ‘genuine connection’ test ‘in practice considers whether there were any investigative steps pending or ongoing after the date of ratification’.104 The introduction of a ‘genuine connection’ faced criticism within the Court itself. Lorenzen J stated in his dissent that it was ‘incompatible with the declared intention to respect the principle of legal certainty to define the Court’s temporal jurisdiction in such a vague and far-reaching way’.105 In his opinion, a ‘genuine connection’ should be replaced with the requirement that there be a ‘clear temporal connection’ between the violation of Article 2 and the entry into force of the ECHR in order for the ECtHR to have jurisdiction.106 In agreement with Lorenzen J’s assertions about Silih, the UK Supreme Court heavily criticised the ‘less than clear prescription for all circumstances in which a sufficient connection is to be recognised’.107 Lord Hope stated that ‘only the most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered in para 163 of its judgment in Silih as clear’.108 Janowiec v Russia (2013) addressed this criticism by clarifying that: for a ‘genuine connection’ to be established, both criteria must be satisfied: the period of time between the death as the triggering event and the entry into force of the Convention must have been reasonably short, and a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force.109

Janowiec also introduced the ‘Convention values’ test for extraordinary situations that do not satisfy the ‘genuine connection’ test. This is ‘where the need to ensure the real and effective protection of the guarantees and the underlying values of the 102

ibid, para 162–63. K Reid, A Practitioner’s Guide to the ECHR (Sweet & Maxwell, 2011) 737. 104 ibid. 105 Silih v Slovenia (2009), concurring opinion of Judge Lorenzen. 106 ibid. 107 Re McCaughey and Ancor (2011), para 117. 108 ibid, para 73. 109 Janowiec and Others v Russia (2013) para 148. 103

102 Enforced Disappearances Convention would constitute a sufficient basis for recognising the existence of a connection’.110 It means that: the required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments.111

Unlike the ‘genuine connection’ test, the ‘Convention values’ test cannot be applied to events that occurred prior to 4 November 1950. This is the date when the ECHR was adopted.112 Second, if temporal jurisdiction does extend to actions prior to ratification of the Convention and its optional clauses, how far back should it be allowed to go?113 Should a time limit be placed upon it? If so, how should such a limit be determined? Or should it have the potential to extend indefinitely depending on the circumstances of the case? Logistics (eg gathering evidence, securing witnesses and identifying perpetrators) provide a natural time limit to the retrospectivity of the temporal jurisdiction. In Janowiec the ECtHR drew a line, stating that an obligation cannot be imposed further back than 10 years before the trigger creating a ‘genuine connection’ and/or a state’s ratification of the ECHR.114 Guiterrez Dorado and Dorado Ortiz v Spain (2012) offers the basis for this: applicants cannot wait indefinitely before bringing an application before it. Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness.115

Third, the Silih precedent is too confusing and the ECtHR should not be afraid to follow international jurisprudence.116 For example, in Electricity Company of Sofia (1939), the Permanent Court of International Justice (PICJ) held that ‘it is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to that situation or fact.’117 The PICJ’s case Right of Passage (1960) provides further guidance, finding a: distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.118 110

ibid, para 149. ibid, para 150. 112 ibid, para 151. 113 Reid (n 132), 737. 114 Janowiec and Others v Russia (2013) paras 142–44. 115 Gutierrez Dorado and Dorado Ortiz v Spain (2012) para 37. 116 E Bjorge, ‘Right for the Wrong Reasons: Silih v Slovenia and Jurisdition Ratione Temporis in the EtCHR’ (2012) 83(1) British Yearbook of International Law 115, 135–36. 117 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) 64. 118 Right of Passage (Portugal/India) (1960) 33 and 35. 111

Defining Enforced Disappearances 103 Thus the ECtHR should not look at whether ‘the facts and situations arising before the critical date … [led] to the court in issue having jurisdiction’ (as required by Silih), but look at whether they were the ‘source of the dispute’.119 Fourth, it is questionable whether the substantive and procedural obligations of Article 2 should be detachable as: the procedural obligation, if any, imposed on a State under Article 2 arises in principle at the moment when a death occurs at the hands of agents of a State or … when the relevant authorities of the State are made aware of a credible allegation that the death resulted from … [an abuse or negligence] on the part of the authorities. Although the obligation is an autonomous one, in the sense that it is not dependent on the existence of a substantive violation of Article 2, it is an obligation which not only derives from the death but is integrally linked with it.120

This is true up to a point, as you cannot investigate a crime before it has happened. Yet, such an approach would remove the ability of the ECtHR to consider any ongoing procedural violations of Article 2 for a death that occurred before the ratification of the ECHR. This differs from the above approach of considering the source of the dispute (the ongoing procedural violation), not only the moment when the death occurred. Also, the majority opinions in Silih and subsequent cases (eg Varnava and Janowiec) confirm that the procedural obligation ‘evolved into a separate and autonomous duty’.121 Therefore, ‘although it is triggered by the facts concerning the substantive aspect of Article 2, it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date’.122 Fifth, regarding enforced disappearances specifically, the test set out in Silih becomes irrelevant. If the date of the enforced disappearance falls before the date of acceptance of the right of individual petitions by the respondent state, the substantive violation evades the Court’s temporal jurisdiction. Given the unique uncertainty that is involved in disappearance cases, the procedural obligation is of a continuing nature and has the potential to persist as long as the fate of the disappeared is unaccounted for.123 The ECtHR’s acceptance of this exception first emerged in De Becker (1962).124 The applicant claimed that his conviction deprived him of certain human rights for life; the ECtHR agreed. It held that, given the continuing violation, the six-month limitation period did not apply. This approach was introduced by the ECtHR in relation to enforced disappearances in Cyprus v Turkey (2001).125 This considered the 1,491 Greek-Cypriots allegedly detained by Turkey during the Turkish military operations of 1974 and who remained 119

Bjorge (n 116) 128. Silih v Slovenia (2009), joint dissenting opinion of Judges Bratza and Türmen. Janowiec and Others v Russia (2013), 132; Silih v Slovenia (2009) para 159; Varnava and Others v Turkey (2009) 138. 122 Janowiec and Others v Russia (2013) 132; Silih v Slovenia (2009) para 159; Varnava and Others v Turkey (2009) para 138. 123 Varnava and Others v Turkey (2009). 124 De Becker v Belgium (1962). 125 Cyprus v Turkey (2001). 120 121

104 Enforced Disappearances unaccounted for. By accepting enforced disappearance as a continuing violation, the six-month rule does not apply until the date when the situation ended. That is the date from when the fate of the victim is known or when a legal determination was made that the victim is presumed dead. The ECtHR’s current stance on suspicious disappearances is summarised by its comments in Varnava (also related to the disappearances during the Cypriot-Turkish conflict): a disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability, in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred. This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. It cannot therefore be said that a disappearance is, simply, an ‘instantaneous’ act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for.126

The ECtHR also provided that not all of the Article 2 claim is necessarily inadmissible where the predicted date of death occurs before the entry into the force of the ECHR, but there is a continuing failure to investigate after the entry into force of the ECHR. In Jelic v Croatia (2014)127 the ECtHR considered the disappearance and eventual confirmed killing of the applicant’s husband. The victim was abducted from the family home in Sisak, Croatia by armed men on 15 November 1991. His body was found three months later on the banks of the local river. Investigative measures did not produce any tangible results until September 1999. Croatia did not ratify the ECHR until 1997. As the death took place between November 1991 and February 1992 (before the ECHR was enforced in Croatia), the substantive complaint under Article 2 was ruled inadmissible. The complaint about inadequate investigations was deemed admissible, as a significant part of the investigations took place post-ratification of the ECHR.128 This confirms that the ‘ongoing failure to provide the requisite investigation will be regarded as a continuing violation’, even in situations where the ‘death may, eventually, be presumed’.129 It follows from this that the ECtHR has jurisdiction if the complaint relates to a continuing violation that started before the date of ratification or recognition of the right to individual petition, but persists post-ratification. For example, continuing violations that started before Russia’s ratification of the ECHR in May 1998 or Turkey’s acceptance of individual petition in January 1987 would be admissible, if the violation continued after those ratification dates.130 The ECtHR was unsympathetic towards cases where fear preventing the reporting of an incident is at play, a common issue in relation to unjustified killings and 126

Varnava and Others v Turkey (2009) para 148; Janowiec and Others v Russia (2013) para 134. Jelic v Croatia (2014). ibid, paras 59–67. 129 Varnava and Others v Turkey (2009) para 148. 130 Cyprus v Turkey (2001). 127 128

Defining Enforced Disappearances 105 the threat thereof. In Odabasi v Turkey (1994)131 the Kurdish applicant was taken into custody and threatened by Turkish state actors that he would be killed if he did not co-operate with the Turkish authorities. The applicant reported the threats to the Ministry of Justice, who resolved that there was no basis for further action. Less than a year after his complaints to the authorities the applicant was arrested and charged with assisting and sheltering members of the PKK. Regarding the earlier threat against his life, the applicant delayed his application to the then ECommHR until 18 months after the alleged threat was made and eight months after the conclusion of the domestic investigation. Therefore, the application fell outside the then time limit of six months. The applicant claimed that ‘the threat to which he was exposed gave rise to a situation of continuing violation or, alternatively, that he did not apply earlier through fear’.132 Finding against the applicant, the ECommHR ruled that the basis of the complaint was a ‘specific incident’ and that the complaint did not concern a continuing violation of the ECHR.133 Nor was the ECommHR satisfied that it was ‘established that there were other circumstances which prevented the applicant from observing the time-limit laid down’.134 To summarise: when a complaint is based on a specific incident, such as a death threat in order to persuade someone to cooperate, this could not be referred to as a continuing violation of rights under the Convention. With a ‘specific incident’ is meant an event which occurred in isolation from other events. Hereby is meant that the position in which the victim is placed represents a violation of its rights which clearly dates from the past (ie instantaneous violations). Any resulting effects, such as fear that seeking judicial remedies would constitute a risk to loss of life, are considered to be separate from the event itself and therefore not considered to be a continuing violation.135

Additionally, complaints linked to a specific date or event cannot be categorised as a continuing violation. In McDaid v UK (1996)136 relatives of those killed on ‘Bloody Sunday’ alleged that the failure of the state to effectively investigate the deaths constituted a continuing breach of Article 2’s duty to investigate any suspicious death. This was in addition to bringing a claim that the state was responsible for the deaths. The ECommHR found that: the concept of a ‘continuing situation’ refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicants victims. Since the applicants’ complaints have as their source specific events which occurred on identifiable dates, they cannot be construed as a ‘continuing situation’ for the purposes of the six months rule. While the Commission does not doubt that the events of ‘Bloody Sunday’ continue to have serious repercussions on the applicants’ lives, this however can be said 131

Odabasi v Turkey (1994).

132 ibid. 133 ibid. 134 ibid. 135 136

Dijkstra (n 3) 24. McDaid and Others v UK (1996).

106 Enforced Disappearances of any individual who has undergone a traumatic incident in the past. The fact that an event has significant consequences over time does not itself constitute a continuing situation.137

Cases concerning the Turkish-Kurdish conflict have generally been lodged within the set time limit.138 Two cases where the specified time limit was exceeded further clarified the boundaries of the concept of a continued violation. In Kurt v Turkey (1998),139 the ECtHR did not query the continuing nature of the enforced disappearance. It is proposed that this is because Turkey did not call it into question in the early stages of the case. This implies that any issues with the timeliness of an application must be raised by the respondent state at the admissibility stage. In Ersöz v Turkey (1995),140 claims were made against the Turkish authorities concerning a list of incidents including murder, disappearance and abduction. These incidents and the threat of further similar occurrences were argued to be continuing and as a result the time limit did not apply. The ECommHR, finding in favour of the applicants, ruled that the complaints were founded on a period of violations and consequently could be considered a continuing situation.141 The above elements (drawing heavily from the ICED) provide a good basis for creating a European definition of an enforced disappearance. The PACE’s Resolution 1031 should also be considered, where it was stated that enforced disappearances should be recognised as a ‘continuing crime, as long as the perpetrators continue to conceal the fate of the disappeared person and the facts remain unclarified’.142 This should result in the ‘non-application of statutory limitation periods to enforced disappearances’.143

III. PROTECTION BY LAW

There is significant cross-over between protecting against unjustified killings and protecting against enforced disappearances. There are also some distinctions that need to be addressed. First, given the larger issues at play, the planning of operations in enforced disappearance cases is currently not viewed as important.144 This was held in Orhan v Turkey (2002),145 which concerned village destruction, detention, disappearance and ineffective investigations. The ECtHR (presuming that the victims who had disappeared for eight years were dead) was satisfied that enough evidence existed to determine that unjustified killings had occurred at the

137 ibid. 138

Dijkstra (n 3) 27. Kurt v Turkey (1998). 140 Ersöz v Turkey (1995). 141 ibid, para iii. 142 PACE (n 33) para 10.3.3. 143 ibid. 144 Orhan v Turkey (2002) para 349. 145 ibid. 139

Protection by Law 107 hands of state actors and it did not need to consider whether the operations were adequately planned.146 On the one hand, this eases the burden to prove that an enforced disappearance occurred. On the other, it leaves a key issue unaddressed. Adequate planning of operations helps to provide a safeguard against enforced disappearances. If military operations are inadequately planned and the result is an enforced disappearance, the issue must be dealt with to prevent similar situations in the future. The first steps in achieving this are for the ECtHR to rule on the exact violation that occurred and for the CoM and PACE to supervise the required changes to policy. Second (additional to domestic homicide laws), adequate protection against enforced disappearances requires effective laws criminalising abduction and/or kidnap. The importance of this being an express requirement becomes clear when comparing the status of abduction law in the four case studies. In NI, abduction legislation is limited to the Child Abduction and Custody Act 1985 and the Child Abduction (NI) Order 1985. These make it a criminal offence in NI for any person to take or send a child out of the UK without the consent of any other person who has parental responsibility for the child.147 This legislation covers the abduction of a person up to 18 years of age;148 it fails to deal with adult abduction. Provision is made for the crime of kidnapping in the common law. D (1984) defined kidnapping as ‘the taking or carrying away of one person by another, by force or fraud, without the consent of the person taken or carried away and without lawful excuse. It must involve an attack on or loss of that person’s liberty’.149 This definition faced criticism due to its wide terms and requirement for both force/ fraud and lack of consent.150 Sections 16 and 17 of Ireland’s Non-Fatal Offences Against the Person Act 1997 criminalise abduction of a child under 16 years of age by a parent or other persons. Section 28(1)(c) of the 1997 Act abolishes the common law offence of kidnapping. Instead this is criminalised under section 15 of the 1997 Act: a person shall be guilty of the offence of false imprisonment who intentionally or recklessly–– a) takes or detains, or b) causes to be taken or detained, or c) otherwise restricts the personal liberty of, another without that other’s consent.

A person is said to act without the consent of another ‘if the person obtains the other’s consent by force or threat of force, or by deception causing the other to believe that he or she is under legal compulsion to consent’.151 146

ibid, para 349. s 3(5), Child Abduction (NI) Order 1985. 148 DHSSPS, ‘Co-operating to Safeguard Children’ (DHSSPS, 2003) para 2.1. 149 D (1984). 150 LC, ‘Consultation Paper No 200—Simplification of Criminal Law: Kidnapping—A Consultation Paper’ (LC, 2011) 3–4. 151 s 15(2), Non-Fatal Offences Against the Person Act 1997. 147

108 Enforced Disappearances Articles 163–68 of the Spanish Penal Code 1995 criminalise illegal detention and kidnapping.152 These provisions do not define these crimes or what constitutes lack of consent. Unlike other jurisdictions, Article 166 of the Spanish Penal Code carries a higher penalty for those who do ‘not declare the whereabouts of the person detained’.153 This is appropriate for added protection against enforced disappearances. Sections 224(1) to 224(5)(2) of the Criminal Code of the French Republic 1994 criminalise abduction and illegal restraint. This is defined as ‘the arrest, abduction, detention or imprisonment of a person without an order from an established authority and outside the cases provided by law’.154 Article 80 of the Criminal Code of the Republic of Turkey 2004 criminalises: kidnap or shelter or transfer of person(s) from one place to another unlawfully and by force, threat or violence or misconduct of power or by executing acts of enticement or taking advantage of control power on helpless persons to force them to work or serve for others or to send them away where he is treated almost like a slave.

Where the victim is under 18 years of age, accomplices are liable even if they ‘did not execute the acts causing offence’.155 Kidnap which concerns family law issues (ie taking a child under 16 years of age without force or threat) is criminalised in Article 234 of the Turkish Criminal Code. The Russian Criminal Code criminalises abduction and illegal deprivation of liberty. It fails to define these crimes or what constitutes consent, but does stipulate that they carry greater sentences when they result from the ‘use of violence with danger for human life and health’ or from the ‘use of weapons or objects used as weapons’.156 Each jurisdiction has its own approach to dealing with abduction and kidnap. This is permitted under the principle of subsidiarity. However, an exploration of these domestic laws demonstrates gaps that exist. The omission of a basic definition (eg in Russian law) creates uncertainty and the potential for any lacuna that exists to thrive. This illustrates a need for clarification to force states to give greater consideration to the sorts of conduct that should be criminalised. Often consideration of the gravity of enforced disappearance compared to other forms of kidnap or abduction is lost. Article 166 of the Spanish Penal Code exemplifies how to tackle this, but it is not the perfect solution. The lack of express criminalisation and definition of state kidnap or enforced disappearances, at a domestic and European level, is a problem. Enforced disappearance should be dealt with as a separate crime on the basis that the deciding element for whether an incident constitutes the crimes of abduction or kidnap is consent. Yet, when it comes to state security it is accepted that consent is no longer a factor. Even in 152

Organic Law 10/1995, 23 November 1995.

153 ibid. 154

Art 224(1), Criminal Code of the French Republic 1994. Art 80(3), Criminal Code of the Republic of Turkey 2004. 156 Arts 126(2)(c), 126(2)(d), 127(2)(c) and 127(2)(d), Federal Law No 64-FZ of June 13, 1996 on the Enforcement of the Criminal Code of the Russian Federation. 155

Duty to Investigate Enforced Disappearances 109 a situation where a suspect voluntarily presents at a police station to help with inquiries, once they are in state custody and the state has a continued interest for the purposes of security, the suspect has no choice as to whether or when they are released. The issue becomes whether the detention can be justified. Thus justification, not consent, is the main consideration for determining whether an incident of state detention constitutes an enforced disappearance and is therefore unlawful. Consequently, using the definitions for abduction and kidnap to also cover enforced disappearances is inappropriate. There is the additional challenge that determining whether something is justifiable, is subjective. It falls to the relevant laws to provide guidance, but this guidance is lacking. The PACE is in favour of making it clear that enforced disappearances are absolutely prohibited and that this act should be criminalised in domestic laws.157 It also suggested compulsory preventative measures. These include ‘the establishment of an official and generally accessible up-to-date register of all detainees, and of centralised registers of all places of detention’,158 ‘procedures for the release of all detainees in a manner permitting reliable verification’159 and ‘appropriate training of law-enforcement and prison staff and lawyers’.160

IV. DUTY TO INVESTIGATE ENFORCED DISAPPEARANCES

Article 35(1) of the ECHR provides that the ECtHR may only deal with a complaint ‘after all the domestic remedies have been exhausted’. Jurisprudence of the ECtHR expanded what this means in practice—that applicants must follow all domestic avenues of investigation before turning to the ECtHR. It is the state’s responsibility to offer effective domestic remedies; this includes an obligation to investigate suspicious deaths (eg enforced disappearances) whether believed to be at the hands of state or non-state actors.161 Chapter 8 outlines what constitutes an ‘effective’ domestic remedy. This chapter focuses on the elements which are unique to the duty to investigate enforced disappearances. In Kurt, the Court refused to consider the alleged violation of Article 2 based on the lack of investigation into the victim’s disappearance because it was not proven that the applicant’s son was dead.162 The ECtHR has departed from this over time and has become more open to presuming death in the absence of a body163 and to accepting that a violation of Article 2 does not only occur because of killing, but

157

PACE (n 33) para 10.3.1. ibid, para 10.4.4. 159 ibid, para 10.4.5. 160 ibid, para 10.4.6. 161 Kilic v Turkey (2000) paras 70–76. 162 Kurt v Turkey (1998) para 108. 163 Timurtas v Turkey (2000); Tas v Turkey (2000); Akdeniz and Others v Turkey (2001); Bazorkina v Russia (2006); Baysayeva v Russia (2007). 158

110 Enforced Disappearances also due to inadequate protection of life.164 The Court confirmed that the state is under an obligation to investigate an enforced disappearance, irrespective of whether there is a body or not. In Varnava the Court provided that: where disappearances in life-threatening circumstances are concerned, the procedural obligation to investigate can hardly come to an end on discovery of the body or presumption of death; this merely casts light on one aspect of the fate of the missing person. An obligation to account for the disappearance and death, and to identify and prosecute any perpetrator of unlawful acts in that connection will generally remain.165

In Betayev and Betayeva v Russia (2008)166 the ECtHR sets the precedent that regarding disappearances, if investigative measures are to produce meaningful results, they should be ‘taken immediately after the crime was reported to the authorities’.167 Otherwise, delays ‘not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime’.168 In Betayev, a five-day delay between the crime being reported and the launching of a state investigation was deemed to be a violation of Article 2.169 The crime in question was the kidnapping of the applicants’ sons during a purge of their home in Goyty, Chechnya, by suspected Russian agents. The state’s investigation was stalled shortly after launching the investigation and was only restarted after a complaint was lodged with the Russian government. This contributed to the violation of Article 2.170 The need to make these requirements clearer is apparent, given the shortcomings of criminal investigations that are common in relation to enforced disappearances. These can include: delays in the opening of the proceedings and in the taking of essential steps; lengthy periods of inactivity; failure to take vital investigative steps, especially those aimed at the identification and questioning of the military and security officers who could have witnessed or participated in the abduction; failure to involve the military prosecutors even where there was sufficient evidence of the servicemen’s involvement in the crimes; inability to trace vehicles, their provenance and passage through military roadblocks; belated granting of victim status to relatives; and failure to ensure public scrutiny by informing the next of kin of the important investigative steps and by granting them access to the results of the investigation.171

164

Doswald-Beck (n 34) 233. Varnava and Others v Turkey (2009) para 145. 166 Betayev and Betayeva v Russia (2008). 167 ibid, para 87. 168 ibid, para 87. 169 ibid, para 85. 170 ibid, para 85. 171 Aslakhanova and Others v Russia (2013) para 173. 165

The Standard and Burden of Proof 111 A starting point for the wording of such a requirement is Article 12 of the ICED: 1) Each State Party shall ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation. Appropriate steps shall be taken, where necessary, to ensure that the complainant, witnesses, relatives of the disappeared person and their defence counsel, as well as persons participating in the investigation, are protected against all ill-treatment or intimidation as a consequence of the complaint or any evidence given. 2) Where there are reasonable grounds for believing that a person has been subjected to an enforced disappearance, the authorities referred to in paragraph 1 of this article shall undertake an investigation, even if there has been no formal complaint. 3) Each State Party shall ensure that the authorities referred to in paragraph 1 of this article: a) Have the necessary powers and resources to conduct the investigation effectively, including access to the documentation and other information relevant to their investigation; b) Have access, if necessary with the prior authorisation of a judicial authority, which shall rule promptly on the matter, to any place of detention or any other place where there are reasonable grounds to believe that the disappeared person may be present. 4) Each State Party shall take the necessary measures to prevent and sanction acts that hinder the conduct of an investigation. It shall ensure in particular that persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation.

Each of these elements is supported by the PACE, which made some additional comments about amnesties, using appropriate tribunals and reparations.172

V. THE STANDARD AND BURDEN OF PROOF

The standard of proof adopted by the ECtHR is ‘beyond reasonable doubt’,173 but this concept remains undefined in the European context. It is not a standard imposed by the ECHR. It was applied to deal with the issue in Ireland v UK (1978) and the ECtHR chose ‘not to adapt the standard of proof in individual applicant cases, and has automatically applied it’.174 This is reflected in the consequence

172

PACE (n 33) paras 10.3.5–10.3.8, 10.4.2 and 10.5; PACE (n 9). Giuliani and Gaggio v Italy (2011) para 181. 174 M Moschel, ‘Is the ECtHR’s Case Law On Anti-Roma Violence “Beyond Reasonable Doubt”?’ (2012) 12(3) Human Rights Law Review 479, 486. 173

112 Enforced Disappearances that there is also a lack of consensus as to what exactly it means. The dissenting decision by Bonello J in the discrimination case Anguelova v Bulgaria (2002) explains that this is because it is the ECtHR’s discretion as to what satisfies this standard.175 The only indication that the ECtHR gave is that this standard ‘should not be interpreted as requiring such a high degree of probability as in a criminal trial’ and that it is the Court’s practice to ‘allow flexibility, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved’.176 This required the Court’s resistance against ‘suggestions to establish rigid evidentiary rules’ and adhering ‘to the principle of free assessment of all evidence’.177 The Court also attempted to justify its position by reasoning that ‘proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact’.178 There are situations where it is nearly impossible to prove beyond reasonable doubt that a violation of Article 2 has occurred, even with the latter qualification. The current burden of proof creates ‘insurmountable obstacles to establishing’ a case.179 This is particularly true regarding enforced disappearances, where a body is often missing, to prove that a death took place. Furthermore, cover-ups and tampering with evidence are common, making it difficult to pin responsibility on the perpetrator. Proposals were made to introduce the balance of probabilities standard, which provides that once a prima facie case is made out, international practice supported shifting the burden of proof on to the state.180 Initially the ECtHR made no concession for such cases under Article 2. Instead, the Court dealt with the claims under Articles 3 and/or 5 of the ECHR.181 Regarding Article 3, where an individual is taken into custody in good health but is found to be injured at the time of release, it falls to the state to provide a plausible explanation of how the injuries were caused.182 Article 5 imposes an obligation on the state to account for the whereabouts of any person who was placed under the control of the authorities and placed in detention.183 For example Kurt, which concerned the disappearance of Mrs Koceri Kurt’s son, Üzeyir Kurt, during a twoday operation in their village of Agilli in November 1993; he was unaccounted for for four-and-a-half years. The facts of Kurt were disputed. Mrs Kurt maintained that the last time she saw Üzeyir was in a beaten state surrounded by

175

Anguelova v Bulgaria (2002), Judge Bonello’s dissenting judgment paras 9–11. Nachova and Others v Bulgaria (2004) para 166. 177 ibid. 178 ibid. 179 ibid, para 140. 180 ibid, para 141. 181 Kurt v Turkey (1998). 182 Tomasi v France (1992) paras 108–11; Ribitsch v Austria (1995) para 34; Selmouni v France (1999) para 87. 183 Kurt v Turkey (1998) para 124. 176

The Standard and Burden of Proof 113 urkish forces.184 The Turkish authorities alleged that Üzeyir was kidnapped by T the PKK.185 The ECtHR concluded that in relation to the Article 2 claim there was no ‘concrete evidence’ that ‘would lead it to conclude that [Üzeyir] was, beyond reasonable doubt, killed by the authorities either while in detention in the village or at some subsequent stage’.186 Consequently, there was not enough evidence to substantiate the applicant’s Article 2 claim, but the failure of the state to account for the victim’s disappearance violated Articles 3 and 5. Kurt reflected the attitude of the ECtHR towards Article 2 cases concerning enforced disappearances until 2000, which was two-fold. First, it had to be proven beyond reasonable doubt that a death occurred. Second, this burden lay with the applicant. The ECtHR’s earlier evidential demands for right to life claims concerning enforced disappearances differed significantly from the approach of the more experienced IACtHR. This is evident in Velasquez Rodriguez (1988),187 which concerned the disappearance of a student who was believed to have been in the custody of the Honduras authorities, a claim disputed by the state. The IACommHR ruled that the accused government: in principle, should bear the burden of proving the facts underlying its petition. The Commission’s argument relies upon the proposition that the policy of disappearances, supported or tolerated by the government, is designed to conceal and destroy evidence of disappearances. When the existence of such a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared. [Emphasis added.]188

Furthermore, in Godinez Cruz v Honduras (1989),189 which related to the disappearance of a school teacher who was last seen in the custody of state agents, the IACtHR ruled that: in cases of forced disappearances of human beings, circumstantial evidence on which a judicial presumption is based is especially valid. This is evidence which is used in every judicial system and which may be the only means available, when human rights violations imply the use of State power for the destruction of direct evidence in an attempt at total impunity.190

The Honduras authorities were found to have violated the victim’s right to life, on the basis of circumstantial evidence which proved that: 1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; 184

ibid, paras 14–18. ibid, para 28. 186 ibid, para 107. 187 Velasquez Rodriguez (1988). 188 ibid, paras 123–24. 189 Godinez Cruz v Honduras (1989) paras 155–56 and 198. 190 ibid, para 155. 185

114 Enforced Disappearances 2) the circumstances surrounding the disappearance … coincide with those of that practice; and 3) the government of Honduras failed to guarantee human rights affected by that practice.191

The ECtHR’s approach pre-2000 was also contrary to that advocated by the UN. This is exemplified by Mojica v Dominican Republic (1994).192 This considered the four-year disappearance of a well-known labour leader who was previously subjected to death threats from state agents. The Committee ruled that the respondent state’s failure to take measures to prevent and investigate the disappearance constituted a violation of the victim’s right to life. This ruling was reached due to the circumstances of the case, which included consideration of the fact that ‘the victim’s life was previously threatened by military officers’.193 The Inter-American and UN approaches exposed the weaknesses of the earlier approach of the ECtHR. The ‘value of the IACtHR’s holding is significant because it lowers the burden of proof for an individual to establish that a forced disappearance occurred. This lowering of the evidentiary burden increases the likelihood of success on the merits’.194 As the repetitive cases regarding enforced disappearances grew (particularly concerning Turkey and Russia), it became apparent that the applications being lodged were not related to isolated incidents. The ECtHR did not go as far as its Inter-American counterpart in acknowledging that this might be due to the existence of a policy or practice of enforced disappearance, but it did set a new precedent of lowering the standard of proof in such cases. While the ECtHR’s revised approach may not have been robust enough to tackle the heart of the issue, it did pave the way for accountability that was otherwise impossible under the Kurt standard of proof.

A. Lowering the Standard of Proof Timurtas v Turkey (2000)195 was the first step taken by the ECtHR towards challenging the impunity that can surround enforced disappearances. The applicant alleged that the last sighting of his son was in the custody of the Turkish authorities. The applicant was struggling to get official statements from witnesses to corroborate this allegation, suggesting that witnesses were being intimidated by the state. The state denied the allegations. There was no account of the applicant’s son for six-and-a-half years. In its judgment the ECtHR acknowledged the precedent

191

ibid, para 156. Mojica v Dominican Republic (1994). 193 ibid, para 5.6. 194 GS Sethi, ‘The ECtHR’s Jurisprudence on Issues of Forced Disappearances’ (2001) 8(3) Human Rights Brief 29, 30. 195 Timurtas v Turkey (2000). 192

The Standard and Burden of Proof 115 that was set for preferring to deal with such claims under Articles 3 and 5 of the ECHR, while in the same breath extending consideration to Article 2. This was done by moving away from the requirement of ‘concrete evidence’ required by Kurt towards a more contextual approach. The ECtHR found that whether: the failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody.196

The term ‘requisite standard of proof ’ is vague and the ECtHR only provides guidance by using a comparison of Kurt and Timurtas as a yardstick. The first consideration is the period of time that has elapsed since the person was placed in detention. In other words, the more time that passed ‘without news of the detained person, the greater the likelihood that he or she has died’.197 The four-and-a-half years without word of the applicant’s son in Kurt were insufficient time to lead to a presumption of death, while six-and-a-half years in Timurtas were sufficient. The second consideration is whether or not the applicant had initially been receiving updates on their relative’s whereabouts. In Timurtas, the applicant was initially able to obtain some news of his son, but after a period of time was told to stop making enquiries.198 Third, it should be considered what form of custody the victim experienced. In Kurt the applicant’s son was seen surrounded by state forces, but in Timurtas the applicant’s son was taken to a place of detention. In the latter case there was no question regarding whether the victim was detained and was the responsibility of the state.199 Finally, the level of interest in the victim is relevant. In Kurt the victim was a person under suspicion by the authorities (which was not uncommon for any Kurd living in south-east Turkey), but in Timurtas the victim was wanted by the authorities for his alleged PKK activities.200 Consequently, it was ruled that Article 2 was not engaged in Kurt, but in Timurtas the applicant’s son ‘must be presumed dead following an unacknowledged detention by the security forces … [for which] the responsibility of the respondent State for his death is engaged’.201 Furthermore, in Timurtas, as a result of lowering the burden of proof: noting that the authorities have not provided any explanation as to what occurred after [the victim’s] apprehension and that they do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability of his death is 196

ibid, para 82. ibid, para 83. 198 ibid, para 84. 199 ibid, para 85. 200 ibid, para 85. 201 ibid, para 86. 197

116 Enforced Disappearances attributable to the respondent State. Accordingly, there has been a violation of Article 2 on that account.202

Timurtas is significant, as it indicated a move towards the more appropriate contextual assessment of such cases, as advocated by the Inter-American system. Furthermore, the Timurtas factors set a burden of proof that is ‘still very high and is not an adequate response to the crime of [en]forced disappearances’.203 These criticisms have to some extent been addressed since then. It was not long after the Timurtas judgment that the ECtHR sensibly reconfigured its evidential threshold for engaging Article 2 in enforced disappearance cases and provided set guidance for what it requires in relation to the requisite standard of proof. Taş v Turkey (2000)204 confirmed the factors that must be considered in determining whether the victim of an enforced disappearance can be presumed dead, thereby engaging Article 2. These are: 1. the period of time which has elapsed since the person was placed in detention and how much time has gone by without any news of the detained person; 2. the lack of documentary evidence as to where the missing person was detained; 3. the inability of the government to provide a satisfactory and plausible explanation as to what happened that person; and 4. the specific context in which an unacknowledged detention is likely to be life-threatening.205 Mr Beşir Taş alleged that his son Muhsin Taş had disappeared, believed to be dead, after being apprehended by the Turkish security forces in Cizre, south-east Turkey, on 14 October 1993. The Turkish government contested that Muhsin acted as an informant during his detention and escaped during clashes with the PKK in the mountains. It argued that the alleged escape meant that Muhsin was no longer its responsibility and it had no duty to prove he was alive or provide an explanation for his whereabouts. The ECtHR found a violation of Article 2, as a significant amount of time had passed without any news of Muhsin—there were no custody or medical records reflecting Muhsin’s detention, despite the initial detention being acknowledged by the government; the government failed to provide a satisfactory and plausible explanation as to what happened to Muhsin; and there was a general lack of accountability in Article 2 cases concerning south-eastern Turkey.206 Taş opened Turkey up to a scrutiny that had not been possible under the

202

ibid, para 86. Sethi (n 194) 31. Taş v Turkey (2000). 205 ibid, paras 64–67. 206 ibid, paras 64–67. 203 204

The Standard and Burden of Proof 117 ‘concrete evidence’ requirement of Kurt. Er v Turkey (2012),207 drawing from other international provisions,208 added that: all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability to fully exercise their rights are assured. [Emphasis added.]209

Ertak v Turkey (2000)210 clarified that in situations where ‘concrete evidence’ is not attainable, the ‘requisite standard of proof ’ constitutes ‘the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact’.211 Mr Ismail Ertak’s son, Mehmet Ertak, went missing on the way home from work at a Turkish checkpoint at Bakimevi, south-east Turkey. A witness reported sharing a cell with Mehmet and claimed that Mehmet was tortured. The Turkish government acknowledged arrests at the time that Mehmet went missing, but denied he was one of those detained. The ECommHR conducted its own investigation and drew strong inferences from the witness statements gathered. The ECtHR agreed, and ruled that the Turkish government’s failure to account for the fate of Mehmet (who was believed to have been in custody at the time of his disappearance) indicated something was amiss. This removed the requirement to provide ‘concrete evidence’ that the victim was in state custody at the time of their disappearance, something which can be difficult to gather when faced with uncooperative state authorities. As Ertak shows, this is particularly relevant in relation to enforced disappearances in Turkey where unacknowledged detention was common.212 The Ertak approach enabled the ECtHR to challenge the impunity that often flourishes with state denial and concealed or destroyed evidence. The cases concerning disappearances in Chechnya developed this further: it has been sufficient to establish that the victims were taken by security forces where family members and other witnesses have put forward generally consistent accounts identifying the perpetrators as dressed, and acting, as State armed forces, with military methods of operation and carrying out official actions such as verifying identities, as well as being able to travel freely at night through official road blocks.213

Despite the important developments of Taş and Ertak, the ECtHR stopped short of imposing an obligation on Turkey to provide an explanation, which would fully

207

Er and Others v Turkey (2012). 11, Declaration on the Protection of all Persons from Enforced Disappearances 1992; Art 21, ICED. 209 Er and Others v Turkey (2012) para 72; Suheyla Aydin v Turkey (2005) para 154. 210 Ertak v Turkey (2000). 211 ibid, para 80. 212 Orhan v Turkey (2002); Ipek v Turkey (2004). 213 Reid (n 103) 754. 208 Art

118 Enforced Disappearances shift the burden of proof in the case of enforced disappearances. Taş retained that the burden lay with the applicant to raise the fact that there was a lack of explanation (eg providing evidence of the lack of records available). This outstanding issue was remedied by the ECtHR’s jurisprudence related to enforced disappearances in Chechnya.

B. Shifting the Burden of Proof In Bazorkina v Russia (2006)214 Mrs Fatima Sergeyevna Bazorkina last saw her son, Khadzhi-Murat Aslanbekovich Yandiyev, on a news broadcast showing him being detained on a bus by Russian troops in Alkhan-Kala (or Yermolovka), Chechnya on 2 February 2000. He had not been heard from since, and the Russian authorities denied his detention. The ECtHR acknowledged that it is: sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny. [Emphasis added.]215

With that in mind, and finding in favour of Mrs Bazorkina, the ECtHR emphasised that ‘detained persons are in a vulnerable position and the authorities are under a duty to protect them’. Consequently, the Court adapted its approach regarding Article 3 to Article 2 in 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 a detained individual is particularly stringent where that individual dies or disappears thereafter.216

This represents a definite shift of the burden of proof to the state authorities, as opposed to the merely implied shift in Taş.217 As the ECtHR summarised: 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. [Emphasis added.]218

214

Bazorkina v Russia (2006). ibid, para 107. ibid, para 104. 217 Taş v Turkey (2000) paras 64–67. 218 Bazorkina v Russia (2006) para 105. 215 216

The Standard and Burden of Proof 119 Moreover, Varnava considered the burden of proof during international conflicts. This challenged the disappearances of Greek-Cypriots during the Turkish military operations in Northern Cyprus in 1974. The ECtHR commented that: a zone of international conflict where two armies are engaged in acts of war per se places those present in a situation of danger and threat to life. Circumstances will frequently be such that the events in issue lie wholly, or in large part, within the exclusive knowledge of the military forces in the field, and it would not be realistic to expect applicants to provide more than minimal information placing their relative in the area of risk. [Emphasis added.]219

A further consideration in relation to contextualising the burden of proof in enforced disappearance cases is that ‘the conduct of the parties when evidence is being obtained has to be taken into account’.220 Similarly, in Baysayeva v Russia (2007), where Mrs Asmart Baysayeva’s husband, Shakhid Baysayev, went missing during a sweeping operation (zachistka) in Podgornoye, Chechnya: the Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of ‘disappearances’ is well known in Chechnya … the Court agrees with the applicant that, in the context of the conflict in Chechnya, when a person is detained by unidentified servicemen without any subsequent acknowledgement of detention, this can be regarded as life-threatening.221

The ECtHR’s reference to the ‘phenomenon of “disappearances”’ is one of the rare occasions where the Court referred to the existence of a systematic problem. The developments in these cases provided additional protection in situations where the state authorities are being obstructive or are in denial. The developments since Taş rightly shifted the burden of proof in enforced disappearance cases from the applicant to the respondent state. This helped address the lack of accountability and impunity that previously flourished due to the ECtHR’s demand for ‘concrete evidence’, which was usually unattainable due to lack of state compliance. The latter cases set a precedent whereby the ECtHR can presume that the missing person is dead if he or she was last seen in the custody of the state authorities in situations of violence.222 These developments represent a necessary reconfiguring of the duties imposed by Article 2. However, they are not set out clearly enough within the ECHR to enable effective application in practice. Instead, by relying on principles hidden in jurisprudence, the new demands are only clarified after the fact and are not considered from a practical and preventative standpoint. It also implies that the principles are individualistic and not applicable to enforced disappearance cases more generally. The differing approaches of civil and common law systems are relevant. Therefore, there is a 219

Varnava and Others v Turkey (2008) para 130. Bazorkina v Russia (2006) para 105. 221 Baysayeva v Russia (2007) para 119. 222 Doswald-Beck (n 34) 232. 220

120 Enforced Disappearances need to place these principles in a clear and relatable manner for all HCPs. No example is provided within other international instruments related to enforced disappearances for what such a provision would look like. The definition of an enforced disappearance: should not include a subjective element, which would be too difficult to prove in practice. The inherent difficulties in proving an enforced disappearance should be met by the creation of a rebuttable presumption against the responsible State official involved.223

VI. CONCLUSION

Enforced disappearances are gross violations of Article 2 that are all too common practice during times of conflict. It is vital that all available steps are taken to prevent, protect against and remedy such disregard for human life. Without such action, there is the risk of encouraging an ‘out of sight, out of mind’ approach to Article 2. This chapter has set out ways to actively combat this risk. It has clarified the definition of an enforced disappearance and the special requirements that must be considered when dealing with this issue. These include ensuring that enforced disappearances are absolutely prohibited in law; that they are effectively investigated; and that dispensations are given regarding the standard and burden of proof when appropriate. The chapter has identified what the proposed guidelines should contain: express acknowledgement of the right not to be subjected to an enforced disappearance, a definition of an enforced disappearance, the requirement to protect against enforced disappearances by law, the requirement to effectively investigate enforced disappearances, and clarification that the burden of proof lies with the state. The wording of these provisions (set out in the Appendix) draws from the ICED, Resolution 1031 of the PACE and the ECtHR jurisprudence rulings in Bazorkina, Baysayeva, Betayev and Betayeva, Er, Tas, and Varnava. This chapter has also analysed the attitudes within the ECtHR when dealing with enforced disappearances. It has identified that the ECtHR should engage more with other international laws and practice in its legal analysis, similar to the approach it adopted in Er; challenge the systematic failings of the state regarding enforced disappearances; challenge the domestic laws related to enforced disappearances and make recommendations for improvement; and cooperate more with other CoE bodies. All of these working together would send a clear message that the enforced disappearances in Europe have not gone unnoticed and that such activity will not be tolerated.

223

PACE (n 33) para 10.1.2.

7 Duty to Investigate Suspicious Deaths

H

UMAN RIGHTS TREATIES (including the ECHR) ‘do not spell out a duty to investigate a loss of life’.1 The aim of the ECHR is ‘to secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR’. The ECtHR reasoned that ‘by implication … there should be some form of effective official investigation when individuals were killed as a result of the use of force by, inter alios, agents of the State’.2 This scrutiny extends to all stages of an operation, not only immediately prior to the death of an individual.3 Over time, this obligation extended to include any suspicious death.4 It is ‘not confined to cases where it was established that the killing was caused by an agent of the State’.5 A state may be held responsible for ‘a failure of prevention where a risk of death materialises in connection with the activities of the public authorities or in the framework of public policy’.6 Where the application was inadmissible, ‘this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has died in suspicious circumstances’.7 Therefore, where it is not clear who caused the death, or where there is an indication that the state failed in its duty to reasonably protect the victim from a known threat, the state is obliged to investigate such a death in the interests of ‘due diligence’.8 The ECtHR explained that: the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.9

What is meant by accountability, and the special relationship between the right to life and the right to an effective remedy (Article 13 of the ECHR), are 1

L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011) 184. McCann v UK (1995) para 161; Kaya v Turkey (1998) para 91; Isayeva v Russia (2005) para 209. 3 J Chevalier-Watts, ‘Effective Investigations under Article 2 of the ECHR: Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21 (3) European Journal of International Law 701, 706. 4 Ergi v Turkey (1998) para 82; Shanaghan v UK (2001); Oneryildiz v Turkey (2005) para 91. 5 Ergi v Turkey (1998) para 82. 6 JF Akandji-Kombe, Positive Obligations Under the European Convention on Human Rights (CoE, 2007) 24. 7 ROD v Croatia (2008), s 1. 8 Doswald-Beck (n 1) 188. 9 Anguelova v Bulgaria (2002) para 137; Jasinskis v Latvia (2010) para 72. 2

122 Duty to Investigate Suspicious Deaths discussed in Chapter 8. The present chapter considers the positive duty to investigate suspicious deaths in the context of European conflicts. This is the time when this duty is most vulnerable and subject to neglect; though the findings of this chapter can be applied to suspicious deaths outside of conflict scenarios. This chapter discusses the minimum requirements of this duty, as understood from the ECtHR’s jurisprudence. These are that the investigation is: of the state’s own motion; of an appropriate purpose; commenced promptly; reasonably expedited; thorough; independent and impartial; and subject to public scrutiny. This chapter also highlights certain aspects that are lacking adequate protection within the CoE. It identifies ways the CoE would benefit from incorporating other internationally recognised standards (eg the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions 1989 (1989 Principles),10 the Model Autopsy Protocol in the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions 1999 (Minnesota Protocol), and the ICED). Each of these considerations should be included in the proposed guidelines as exemplified in the Appendix. As the requirement to investigate is not exclusive to Article 2, there is cross-over with other provisions of the ECHR. These are Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial), 13 (right to an effective remedy) and 34 (individual applications—formerly Article 25(1)).

I. ESTABLISHING MINIMUM REQUIREMENTS FOR AN ARTICLE 2 INVESTIGATION

The ECtHR has broadly stated that state investigations, must be ‘effective’11 and ‘official’.12 It has also clarified that the investigation 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.13

McCann v UK (1995)14 introduced the idea of a duty to effectively investigate suspicious deaths, but the ECtHR did not deem it necessary ‘to decide what form such an investigation should take and under what conditions it should be conducted’.15 In McCann a public inquest into the killing of three suspected terrorists in Gibraltar prima facie appeared reasonable and thorough, but the inquest

10 E/1989/65 (1989), ‘Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions’, 24 May 1989. 11 Jelic v Croatia (2014) para 63. 12 McCann v UK (1995) para 161. 13 Ali and Ayse Duran v Turkey (2008) para 61. 14 McCann v UK (1995). 15 ibid, para 162.

Establishing Minimum Requirements for an Article 2 Investigation 123 faced criticism from the applicants for its lack of independence and selective evidence.16 The ECtHR ruled that it ‘does not consider that the alleged various shortcomings in the inquest proceedings … substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings’.17 The ECtHR adopted a ‘pragmatic approach’ to the enforcement of the duty to investigate, by not enforcing too heavy a burden and being ‘cautious not to undermine a State’s sovereign powers’.18 This was reflected in the subsequent Hugh Jordan v UK (2001).19 Hugh Jordan related to the killing of the applicant’s son, Pearse Jordan, by an officer of the Royal Ulster Constabulary (RUC) on 25 November 1992. Jordan’s car was pursued by the RUC and rammed to a halt. Pearse emerged from the car and was shot three times. No guns, ammunition, explosives, masks or gloves were found in the car and Jordan was unarmed. An RUC investigation, consisting of forensic examinations and witness interviews, was carried out and concluded in May 1993. The investigation was sent to the DPP, who directed no prosecution on 16 November 1993, due to a lack of evidence. The report was then sent to the Independent Commission for Police Complaints (ICPC), which informed the family on 31 August 1994 that it agreed with the DPP that the evidence was insufficient to warrant the preferment of criminal charges against the police officers concerned. The coroner was notified of this decision on 29 November 1994, but decided to hold an inquest into the killing. The applicant alleged that the investigations were not Article 2-compliant. The ECtHR agreed, and listed a number of elements which must be present to constitute an effective investigation. The Court also qualified that these elements did not equate to a list of what is required to satisfy the Article 2 duty to investigate across the board, but were related to what was required in that particular case. The Court stated that these elements were ‘not an obligation of result, but of means’.20 It is observed that: an audit of the cases as a whole reveals a picture which does little to further the underlying rationale of the ECtHR’s decision—the need for an investigation capable of determining whether there was a substantive violation of Article 2 or not. Rather the cases tend to continue a pattern of litigation, forum bouncing, and denial of investigation.21

Yet while the ECtHR may be hesitant to acknowledge it, cases such as Hugh Jordan created a set of principles that could be interpreted as the minimum requirements of the Article 2 duty to investigate. This does not mean that the ECtHR

16

ibid, para 157. ibid, para 163. 18 Chevalier-Watts (n 3) 704. 19 Hugh Jordan v UK (2001). 20 ibid, para 107. 21 C Bell and J Keenan, ‘Lost on the Way Home? The Right to Life in NI’ (2005) 32(1) Journal of Law and Society 68, 85. 17

124 Duty to Investigate Suspicious Deaths could not go further. For example, in the disappearance case Bámaca-Velásquez v Guatemala (2000), the IACommHR made it clear what was expected of a state and the purpose of an investigation. It recommended that Guatemala: conduct a prompt, impartial and effective investigation into the facts denounced in order to record in detail, in a duly authenticated official report, the specific circumstances in which the crimes against Mr Bámaca occurred and the responsibility for the violations committed, so as to inform the wife of Mr Bámaca, Jennifer Harbury, and the other members of his family about his fate and the whereabouts of his remains.22

This guidance can (and should) be used to determine what the minimum requirements are where the procedural obligation to conduct an effective investigation into suspicious deaths is concerned. The ECtHR’s hesitancy in clarifying what constitutes an effective investigation is driven by the fear that it would lead to burdensome reinvestigations and contravene the principle of subsidiarity. This is easily countered. If states are aware of what this duty entails in the first place, a checklist can be created to provide guidance for what should and should not be done in conducting investigations. This assists with reducing the need for reinvestigations. Lack of codified guidance makes it easy for a state to ignore or to plead ignorance of its Article 2 obligations. Codified guidance informs the state of the minimum requirements for an Article 2-compliant investigation, something which it is required to conduct by virtue of being an HCP to the ECHR— a membership that it willingly signed up to. These set a yardstick by which to judge adherence; reflecting the principle of subsidiarity it is up to each individual state as to how these are implemented. As long as the implementation meets the minimum standards, the applicant has no case and the ECtHR will exonerate the state authorities. The subsequent sections consider what these minimum standards are.

II. STATE’S OWN MOTION

The ECtHR rules that where the relevant national authorities are aware of the death of a victim in suspicious circumstances, they are required to ‘carry out an effective official investigation on their own motion’.23 The state authorities ‘cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures’.24 The ‘mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the [ECHR] to carry out an effective investigation 22

Bámaca-Velásquez v Guatemala (2000) 16. McCann v UK (1995) para 173; McKerr v UK (2001) para 111; Hugh Jordan v UK (2001) para 105; Kelly and Others v UK (2001) para 94; Shanaghan v UK (2001) para 88; Avsar v Turkey (2001) para 393; Orhan v Turkey (2002) para 334; Akhmadova and Akhmadov v Russia (2008) para 78; Sultygov and Others v Russia (2014) para 379. 24 Ilhan v Turkey (2000) para 63; Jelic v Croatia (2014) para 66. 23

Purpose of the Investigation 125 into the circumstances surrounding the death’.25 In Ergi v Turkey (1998), a factfinding mission by the ECommHR found that the applicant’s claims of ineffective investigations into the death of his sister from live ammunition during a Turkish military operation in their village of Gisgis/Kesentas was well-founded; the ECtHR agreed.26 The Court further ruled that while such an obligation can be burdensome, ‘neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into the deaths arising out of clashes involving the security forces’.27 In fact, there is particular need for the state to investigate cases where the ‘circumstances are in many respects unclear’.28 This is particularly true where the facts are disputed, or in the case of enforced disappearance. Within the four case studies there were complaints of the state not acting of its own motion to initiate and efficiently progress investigations.

III. PURPOSE OF THE INVESTIGATION

Significant issues in the four case studies regarding lack of independence, ineffective investigations, existence of collusion, ineffective remedies and impunity, illustrate that investigations (when conducted) do not always adhere to their required purpose. On occasion the purpose is intentionally and systematically ignored by the respective states. Drawing from the Chechen example, Chechnya’s own Deputy Prosecutor made a damning report about the general failings in investigations within the region. He warned: the investigative authorities fail to carry out urgent investigative actions and organise proper cooperation with the operational services in order to solve crimes. In fact, top-ranking officials of the Investigative Committee have no departmental control over criminal investigations. No concrete steps are taken to eliminate the violations identified by the agencies of the prosecutor’s office. The perpetrators are not held accountable. There are instances where crimes of abductions have actually been concealed by the investigators of the [Investigative Committee] … As a result of delayed initiation of criminal proceedings and the inactive and passive nature of investigations, the perpetrators flee and the whereabouts of the affected [abducted] persons are not established.29

The purpose of an investigation is to secure ‘the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the 25

Ergi v Turkey (1998) para 82. ibid, paras 24–45 and 82–86. 27 ibid, para 85. 28 ibid, para 85. 29 Extract from a letter dated March 2011 from the Deputy Prosecutor of the Chechen Republic to the head of the non-governmental organisation Committee Against Torture, Igor Kalyapin; Aslakhanova and Others v Russia (2012) para 84. 26

126 Duty to Investigate Suspicious Deaths force used was or was not justified in a particular set of circumstances’.30 It is the ‘effective’ element of Article 13, in conjunction with Article 2, that necessitates ‘in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure’.31 The Inter-American Paniagua Morales et al (1998) case indicates that the more long-term purpose of the duty to investigate is to assist with preventing future violations by combating impunity, which ‘fosters chronic recidivism of human rights violations and total defencelessness of victims and their relatives’.32 Supporting this, the ECtHR stated that Article 2 investigations should aim to ensure that ‘any breaches of that right were repressed and punished’.33 To fulfil its purpose, an investigation must honour the rule of law, be transparent and provide effective accountability.34 There are wide discussions on what the rule of law means. At its core it is understood ‘that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’.35 The criminal law remedies available must also be capable of altering the course of an investigation.36 It is insufficient to offer the possibility of lodging a disciplinary complaint against the state official involved. The nature and degree of scrutiny depends on the circumstances of each individual case. In cases where the facts are undisputed, such an investigation amounts to little more than a mere formality; whereas disputed or suspicious cases require additional scrutiny.37 The 1989 Principles add that ‘the purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death’.38 The Minnesota Protocol elaborates that: the broad purpose of an inquiry is to discover the truth about events leading to the suspicious death of a victim. To fulfil this purpose, those conducting the inquiry shall, at minimum, seek: a) To identify the victim; b) To recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible; c) To identify possible witnesses and obtain statements from them concerning the death;

30

Kaya v Turkey (1998) para 87. paras 106–07; Aksoy v Turkey (1996) para 98; Aydin v Turkey (1997) para 103; Orhan v Turkey (2002) para 383; Kukayev v Russia (2007) para 117. 32 Paniagua Morales et al (1998) para 173. 33 Armani da Silva v UK, para 230. 34 Avsar v Turkey (2001). 35 T Bingham, The Rule of Law (Penguin Books, 2010) 37. 36 Sirin Yilmaz v Turkey (2004) para 86. 37 Velikova v Bulgaria (2000) para 80. 38 E/1989/65 (n 10) principle 9. 31 ibid,

Prompt Commencement of Investigations 127 d) To determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; e) To distinguish between natural death, accidental death, suicide and homicide; f) To identify and apprehend the person(s) involved in the death; g) To bring the suspected perpetrator(s) before a competent court established by law.39

IV. PROMPT COMMENCEMENT OF INVESTIGATIONS

ECtHR jurisprudence has established that investigations must commence promptly. What constitutes prompt commencement depends on the context of the case, but generally the ECtHR has clarified that it applies to the commencement of evidence-gathering. On occasion, prompt evidence-gathering was not adhered to in the four case studies. For example, the seven-year delay between the killing and on-site inspection of the crime scene in Mentese v Turkey (2005),40 and the five-month delay between the reporting of a disappearance and the initiation of an investigation in Aslakhanova v Russia (2012)41 were deemed incompatible with Article 2. Though not investigated by the ECtHR, it is likely that the initial lack of investigation into the BVE’s and GAL’s killings would also be contrary to Article 2. Regarding the NI Troubles, case delays played a significant role. However, they were predominantly at the inquest stage (initial investigation stage). Much depends on the circumstances of each case. Investigations of enforced disappearances must be ‘taken immediately after the crime was reported to the authorities’,42 and a delay of a matter of days can constitute a violation of Article 2.43 In Musayev v Russia (2007) an investigation that was opened one month after the killings was found to be ‘in itself … an unacceptable delay when dealing with dozens of civilians’ deaths’.44 This case concerned the killing of dozens of Grozny residents in February 2000 in a part of Grozny that was under full Russian control. This implies that the ECtHR demands a more expeditious investigation when it is involves a potential gross Article 2 violation perpetrated by state actors, though not necessarily as part of state policy. The need for extra urgency in investigating disappearances is understandable, given that there is still the chance that the potential victim is alive. Yet, the different approach for group and individual killings is harder to justify. Consequently, the ECtHR is too lenient when it comes to the speed of investigation for individual

39 E/ST/CSDHA/.12 ‘United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions’ (1999) s III.B. 40 Mentese and Others v Turkey (2005) para 54. 41 Aslakhanova and Others v Russia (2012) paras 11–12. 42 Betayev and Betayeva v Russia (2008) para 87; Orhan v Turkey (2002) para 336, where the ECtHR stated that the need for promptness was especially important when allegations of disappearances in detention are made. 43 Betayev and Betayeva v Russia (2008) para 85. 44 ibid, para 160.

128 Duty to Investigate Suspicious Deaths claims. Taking NI as an example, many individual claims were made. When assessed as a whole these indicated a wider, unaddressed disregard for human life on the part of state actors.45 Much debate exists around whether this was part of state policy. Irrespective, state actors were operating freely without repercussions, due to tolerance of delayed and ineffective investigations. This in turn risked further loss of life. A more restrictive approach should be taken in relation to repetitive cases concerning individual killings. When judged as a whole, these individual cases indicate a similar disregard for life, as that which is evident in cases of group killings. The requirement for prompt commencement of investigations extends to prompt re-commencement of adjourned investigations. In Hugh Jordan the inquest proceedings were adjourned on 16 January 1995 to allow the DPP to reconsider the decision not to prosecute. The DPP’s negative decision was communicated on 14 February 1995, but the inquest was not scheduled to resume until 12 June 1995.46 The four-month delay in recommencement was found to have contributed to an unreasonable delay that was incompatible with Article 2. This is linked to the requirement that investigations should be conducted with reasonable expedition. The applicant did contribute significantly to the delays, by challenging the lack of legal aid and non-disclosure of witness statements. However, these judicial reviews were deemed reasonable, as the applicant should be able to make use of the legal remedies available to challenge the inquest procedures. It was unreasonable that the challenges leading to the adjournments resulted from difficulties facing relatives participating in inquest procedures. The ECtHR stated that: if long adjournments are regarded as justified in the interests of procedural fairness to the victim’s family, it calls into question whether the inquest system was at the relevant time structurally capable of providing for both speed and effective access for the deceased’s family.47

Thus, reasonable reasons for a delay in promptly commencing investigations must be given.

V. REASONABLE EXPEDITION OF INVESTIGATIONS

An investigation must be carried out with reasonable expedition.48 This is regarded as ‘essential in maintaining public confidence’ in a state’s ‘adherence to

45

Hugh Jordan v UK (2001); Shanaghan v UK (2001); McKerr v UK (2001). Hugh Jordan v UK (2001) 136. 47 ibid, para 138. 48 Mahmut Kaya v Turkey (2000) para 107; McKerr v UK (2001) para 114; Kelly and Others v UK (2001) para 97; Hugh Jordan v UK (2001) para 108; Shanaghan v UK (2001) para 91; Avsar v Turkey (2001) para 395; McShane v UK (2002) para 97; Finucane v UK (2003) para 70; Ipek v Turkey (2004) para 171; Ahmet Ozkan and Others v Turkey (2004) para 313. 46

Reasonable Expedition of Investigations 129 the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts’.49 It is also linked to the practical consideration that ‘with the passing of time, it becomes more and more difficult to gather evidence from which to determine the cause of death’.50 The ECtHR has given no indication of what constitutes reasonable expedition, implying that it is determined by the facts of each case. From a circumstantial (as opposed to numerical) perspective, the Court commented on a number of excuses that came before it in an attempt to justify delays. These provide some indication of when a delay is understood to be justified and when it is not. A number of common complaints that impede the investigation process emerged through a study of the four case studies. These include: 1) undue delays in initiating investigations; 2) cover-ups including getting rid of evidence;51 3) ineffective investigations evidenced by the lack of records and failure to act on all evidence, such as interviewing key witnesses and verifying all information;52 and 4) lack of coordination between investigators.53 There are certain aspects of the experiences of Chechnya, NI and Turkey that are worth in-depth discussion.

A. Excessive Delays In the Chechen case, the ECtHR highlighted delays in the opening of proceedings and the taking of essential steps, lengthy periods of inactivity, and belated granting of victim status to the relatives.54 The ‘combination of these factors had rendered the criminal investigations ineffective’;55 thus a combination of factors must be present to satisfy the requirement to conduct an investigation with reasonable expedition. This is not overly troublesome, as a combination of factors is usually present. Such a stipulation may be contrary to the purposes of the duty to 49

McKerr v UK (2001) para 114. Slimani v Turkey (2004) para 32. 51 AF Ünsal, Mazlumder (Turkey) interviewed 9 September 2013; J Stevens, ‘Stevens Enquiry 3: Overview and Recommendations’, 17 April 2003, para 3.4; ‘World; Europe Spain’s state-sponsored death squads’, BBC News, 29 July 1998. 52 Shanaghan v UK (2001); McKerr v UK (2001); Hugh Jordan v UK (2001); Meryem Celik and Others v Turkey (2013) para 68; Cakici v Turkey (1998) para 105; Ipek v Turkey (2004) paras 172–77; Tahsin Acar v Turkey (2004) para 233; Isayeva, Yusupova and Bazayeva v Russia (2005) 224; Y Milashina, ‘Bastrykin’s Humiliation: Putin fires chief Chechnya Investigator for doing his job’, The Interpretor, 18 December 2013; HRW, ‘Russia: Joint Letter to President Medvedev regarding Human Rights Situation in the North Caucasus’, 20 April 2011; M Elder, ‘Chechen president takes charge of activist’s murder inquiry’, The Telegraph, 16 July 2009. 53 Buldan v Turkey (2004) para 89. 54 Aslakhanova and Others v Russia (2012). 55 ibid para 123. 50

130 Duty to Investigate Suspicious Deaths thoroughly investigate a suspicious death. It should be clear that extensive violations of a particular element of an investigation can constitute a violation, without the need for a violation of combining factors. Taking Article 6 of the ECHR (right to a fair trial) cases as an example, this right contains a number of components, such as the right to: a) b) c) d) e)

be informed promptly of the nature and cause of the accusation; have adequate time and facilities to prepare a defence; legal assistance; examine witnesses; or have an interpreter.56

Not all of these components must be violated for the ECtHR to find a violation of Article 6. If a defendant was given legal assistance, but was not informed promptly of the nature and causes of the accusation, this would constitute a violation of the defendant’s fair trial rights. Consequently, the ECtHR should consider clarifying that not all components of the duty to investigate identified by this chapter need to be violated, for Article 2 to be contravened. Deaths in NI that are unexpected or unexplained must be investigated by the Coroners Service for NI (CSNI). Such deaths may be the result of violence, accident, negligence, any cause other than natural illness or disease, or other circumstances that may require investigation.57 Coroners are barristers or solicitors appointed by the Lord Chancellor. The CSNI is led by a High Court judge and its remit extends to all of NI. It is legislated for by the Coroners Act (NI) 1959 and the Coroners (Practice and Procedure) Rules (NI) 1963.58 The purpose of a CSNI investigation is to determine: 1) who the deceased was; 2) how, when and where the deceased came to his or her death; and 3) the particulars required to register a death.59 To achieve this, the coroner has the power to order a post mortem examination and to obtain witness statements and medical records.60 The coroner can also hold an inquest, with or without a jury.61 In its investigations the standard of proof required is typically on the balance of probabilities.62

56

Art 6(3), ECHR 1950. Act (NI) 1959; Public Record Office of NI, ‘About the Coroners’ Service’, www.proni. gov.uk/index/search_the_archives/proninames/about_the_coroners__service.htm. 58 This was moderately amended by the Coroners (Practice and Procedure) (Amendment) Rules (NI) 2002 and Coroners (Practice and Procedure) (Amendment) Rules (NI) 2008. 59 r 15, Coroners (Practice and Procedure) Rules (NI) 1963. 60 NICTS, ‘The Coroners’, www.courtsni.gov.uk/en-GB/Services/Coroners/the_Coroners/Pages/ coroners_coroners.aspx. 61 s 13, Coroners Act (NI) 1959. 62 Medical Protection, ‘Inquests’, www.medicalprotection.org/uk/northern-ireland-factsheets/ inquests. 57 Coroners

Reasonable Expedition of Investigations 131 Inquests during the Troubles were plagued by delays for reasons ranging from non-disclosure of evidence,63 to delays in investigation,64 to suspected collusion.65 In Hugh Jordan, a delay of 25 months between Pearse’s death and the commencement of the inquest was found incompatible with Article 2.66 The four-and-half year delay concerning the inquest into Patrick Shanaghan’s death,67 and the 10-year delay of the inquest into Pat Finucane’s death, were also deemed incompatible,68 with the UK admitting that the delay in Finucane’s inquiry was excessive.69 Despite these experiences and the ECtHR’s findings, the ECtHR gave no indication of what is an acceptable timescale for conducting an investigation. This is understandable, given that an assessment of whether a delay is ECHR compatible depends on whether the delay is justified. This was clarified in Hugh Jordan, where the ECtHR implied that things might be different if an explanation had ‘been forthcoming for this delay’.70 The ECtHR does not clarify whether any explanation will suffice, or if the explanation must denote some form of reasonableness or absolute necessity. The precedent of the ECtHR indicates that all decisions which potentially lead to a violation are to be subject to some form of assessment. The question arises as to what test should be applied. Article 2(2) provides that the test for whether the use of force is justified is absolute necessity. Yet in relation to positive obligations (eg the duty to investigate suspicious deaths), the ECtHR indicated that the test is one of reasonableness. As such, states must take ‘all reasonable steps to investigate’ [emphasis added].71 The coroner has more than 70 pending inquests related to the Troubles, which were adjourned awaiting conclusion.72 It was claimed that the hearings were being deliberately delayed to conceal the truth,73 implying that state actors unlawfully 63 Hugh Jordan v UK (2001) para 136; ‘Sean Brown murder: Inquest postponed indefinitely’, BBC News, 12 February 2015. 64 Shanaghan v UK (2001) para 28. 65 Finucane v UK (2003). 66 Hugh Jordan v UK (2001) para 136. 67 Shanaghan v UK (2001) para 119. Patrick Shanaghan, a suspected (but never charged) member of the IRA, was killed by a masked gunman on his way to work on 12 August 1991. The loyalist paramilitary group, the UFF, later claimed responsibility for the murder. The RUC had known of a threat to Shanaghan’s life from loyalists. The ECtHR left determining who was responsible for Shanaghan’s death up to the domestic authorities. The Court in focusing on the state’s duty to investigate found a violation of Art 2 due to delays, lack of public scrutiny and non-disclosure of evidence during domestic investigations. 68 Finucane v UK (2003). Pat Finucane, a solicitor involved in a number of high-profile cases concerning the NI conflict, was shot dead at his home by two masked men on 12 February 1989. It was not until 17 April 2003 that the Stevens Inquiry reported that Pat Finucane’s murder could have been prevented, that the RUC’s investigation could have resulted in an early arrest and detection of the killers, and that there was evidence of collusion. 69 ibid, para 64. 70 Hugh Jordan v UK (2001) para 136. 71 McCaughey and Others v UK (2013), concurring opinion of Judge Kalaydjieva. 72 I Cobain, ‘“Delay, delay, delay”: NI Troubles inquests still outstanding’, The Guardian, 13 April 2014. 73 ibid.

132 Duty to Investigate Suspicious Deaths carried out or were complicit in the killings. This raises questions as to whether the coroner is sufficiently independent to conduct such investigations. It could be more an issue of resources, than independence. However, the ECtHR found that this is not a sufficient defence for the purposes of Article 2. The Court stated that ‘there are different avenues to ensure Convention rights, and even if the State failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means’.74 Kalaydjieva J further added that irrespective of the ‘deficiency or “complexity” of the existing domestic procedures’, the respondent state must take ‘all reasonable steps to investigate with a view to establishing the facts of their own motion’.75 That the UK government was aware of the deficiencies that existed for many years and did not address these issues was an example of how it failed to take reasonable steps.76

B. Sheer Volume of Deaths In Turkey, where there were a significant number of killings at one time, the Public Prosecutors (PP—who are in charge of investigations) attempted to use the sheer volume of cases awaiting investigation as justification for delays. In Mahmut Kaya v Turkey (2000) Dr Hasan Kaya (treated demonstrators injured in clashes with state forces) and lawyer Metin Can (represented suspected members of the PKK) disappeared on 21 February 1993 following death threats.77 Their two bodies were found six days later. An investigation was launched on 27 February 1993 and by 28 April 1995 it came to a stalemate, after the state forces claimed that they were unable to locate the two main suspects. During this time there were significant delays in obtaining witness statements, and long periods of inactivity.78 The Turkish authorities argued that they could not be expected to deal with in excess of 500 investigations at any one time. The ECtHR has an obligation to challenge bad faith and a lack of political will, which poses an obstacle to adherence to Convention rights. The ECtHR expressed its appreciation of the difficulties, but continued that ‘where there are serious allegations of misconduct and infliction of unlawful harm implicating State security officers, it is incumbent on the authorities to respond actively and with reasonable expedition’.79 Thus, having to investigate a large number of cases simultaneously is not an excuse for investigations to be ineffective and subject to excessive delays.

74

Saso Gorgiev v the Former Yugoslav Republic of Macedonia (2012) 44. McCaughey and Others v UK (2013), concurring opinion of Judge Kalaydjieva. 76 ibid. 77 Mahmut Kaya v Turkey (2000). 78 ibid, para 106. 79 ibid, para 107. 75

Thorough Investigation 133 C. Violent Context States have excused delays on the basis that investigations taking place in the context of violence face significant difficulties.80 The ECtHR takes into account that ongoing violence can impede the search for conclusive evidence81 and that there ‘may be obstacles or difficulties which prevent progress in an investigation in a particular situation’.82 It has also stated that ‘circumstances of that nature cannot relieve the authorities of their obligations under Article 2 to carry out an investigation’;83 the reasoning being that to do otherwise ‘would exacerbate still further the climate of impunity and insecurity in the region and thus create a vicious circle’.84 This approach is supported by Philip Alston, the former UN Rapporteur on Extrajudicial, Summary or Arbitrary Executions, who stated that: it is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate—this would eviscerate the non-derogable character of the right to life—but they may affect the modalities or particulars of the investigation.85

In Yasa v Turkey (1998) the ECtHR clarified that it is not sufficient (for the purposes of Article 2) that an investigation is pending. The applicant in this case was the nephew of Hasim Yasa, who believed that his uncle was killed by state agents on 14 June 1993 for selling the pro-Kurdish paper Özgür Gündem. More than five years after Hasim’s killing the government reasoned that the investigations were still pending, but it failed to provide evidence showing that the investigations were progressing. The last investigative step that the ECtHR was aware of was a ballistics report on 21 June 1993. The Court found this unacceptable, indicating that an investigation must actually be progressing to satisfy the requirement of reasonable expedition.86

VI. THOROUGH INVESTIGATION

The ECtHR stated that an ‘investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements’.87 It continued that ‘failing to follow an obvious line of inquiry undermines the investigations’ 80 Yasa v Turkey (1998); McKerr v UK (2001); Ahmet Ozkan and Others v Turkey (2004); Isayeva, Yusupova and Bazayeva v Russia (2005) para 212; Khashiyev and Akayeva v Russia (2005) para 155. 81 Yasa v Turkey (1998) para 104; Sirin Yilmaz v Turkey (2004) para 85. 82 McKerr v UK (2001) para 114. 83 Yasa v Turkey (1998) para 104. 84 ibid. 85 E/CN.4/2006/53, ‘Report of the Special Rapporteur, Philip Alston’, 8 March 2006, para 36. 86 Yasa v Turkey (1998) para 104; Tanrikulu v Turkey (1999) para 109; Sirin Yilmaz v Turkey (2004) para 79; Mentese and Others v Turkey (2005) para 55. 87 Kolevi v Bulgaria (2009) para 201; Armani da Silva v UK (2016) para 234.

134 Duty to Investigate Suspicious Deaths ability to establish the circumstances of the case and the person responsible’, and an investigation with these failings is ineffective.88 This includes attempts which are ‘half-hearted and dilatory’.89 State authorities must take: 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.90

This is also reflected in the Minnesota Protocol: one of the most important aspects of a thorough and impartial investigation … is the collection and analysis of evidence. It is essential to recover and preserve physical evidence, and to interview potential witnesses so that the circumstances surrounding a suspicious death can be clarified.91

The Protocol further suggests that avenues to investigate should include: a) What evidence is there, if any, that the death was premeditated and intentional, rather than accidental? Is there any evidence of torture? b) What weapon or means was used and in what manner? c) How many persons were involved in the death? d) What other crime, if any, and the exact details thereof, was committed during or associated with the death? e) What was the relationship between the suspected perpetrator(s) and the victim prior to the death? f) Was the victim a member of any political, religious, ethnic or social group(s), and could this have been a motive for the death?92

The mere existence of these actions is insufficient; they also must be effective. The ECtHR was reticent to clarify what equates to an effective autopsy, forensic examination or eye-witness testimony. It has cast a wide net, stating that ‘any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard’.93 Yet certain traits become clear by considering the ineffective practices exposed within the ECtHR’s jurisprudence, particularly regarding the Turkish-Kurdish conflict.

A. Autopsies and Forensic Examinations An autopsy is the examination of a dead body for the purposes of establishing the cause of death.94 Forensic examinations involve using scientific techniques 88 ibid. 89

Acar and Others v Turkey (2005) para 91. Hugh Jordan v UK (2001) para 107. 91 E/ST/CSDHA/.12 (n 39), s III.C. 92 ibid. 93 Ramsahai and Others v Netherlands (2007) para 324. 94 R Hanzlick, Death Investigation: Systems and Procedures (CRC Press, 2016) 8. 90

Thorough Investigation 135 to clarify whether a crime was committed, to determine who is responsible, and to corroborate evidence.95 Autopsies can expose the truth—for example, in the killing of Mikel Zabalza, a Basque youth who disappeared after being taken into custody by the Spanish Guardia Civil in December 1985. His body was retrieved from a river several days after he had gone missing. His hands were cuffed behind his back. The Spanish officials claimed that he escaped and jumped in the river, but the autopsy showed that he died before entering the river.96 However, failings in relation to autopsies and forensic examinations are common where conflicts are concerned, as exemplified in the case studies. Thus, any potential violation of Article 2 remains unaddressed, risking replication as a result. Between 1960 and 2013 at least nine people died (either during or after custody) from injuries received while being interrogated by Spanish authorities about Basque activities.97 The Spanish authorities failed to conduct any investigations (including autopsies and forensic examinations) into these deaths. In Chechnya a forensic expert bureau has operated in the country since 2002 (three years after the start of the first Russian-Chechen conflict). The bureau was unable to carry out autopsies until March 2008 (after the worst of the conflict).98 The Deputy Head of the Chechnya Investigative Committee reported that this was due to the weakness of the local forensic laboratories and the uncertain legal framework for differentiating between the competence of military and civil investigators.99 This resulted in a failure to carry out appropriate autopsies, forensic reports or ballistics reports,100 or a delay in doing so.101 In NI the appropriate forensic examinations were usually conducted in relation to killings during the Troubles,102 meaning the issue during this period was not whether or how autopsy and forensic examinations were conducted. The problem was the cover-ups that followed for the purposes of protecting the state agents involved.103 For example, the UK government refused to make autopsy reports public. Also, until recently, the coroner’s duty to establish ‘how’ a victim died was

95 B Caddy and P Cobb, ‘Forensic Science’ in PC White (ed), Crime Scene to Court: The Essentials of Forensic Science (Royal Society of Chemistry, 2004) 8–9. 96 R Clark, Negotiating with ETA: Obstacles to Peace in the Basque Country, 1975–1988 (University of Nevada Press, 1990) 66. 97 M Carmena et al, ‘Base Report on Human Rights Violations in the Basque Country Case (1960–2013)’ (OSGPSH, 2013) 7–12; Basque Peace Process, ‘It has been really hard again’, www. basquepeaceprocess.info/?p=1875. 98 Aslakhanova and Others v Russia (2012) para 200. 99 S Pashayev, ‘Problems of Investigating Cases Which Have Become the Subject of Review by the ECtHR’ (2010) 2(8) Vestnik Sledstvennogo Komiteta RF; Aslakhanova and Others v Russia (2012) para 81. 100 Estamirov v Russia (2006) para 91; Khashiyev and Akayeva v Russia (2005) para 163; Musayeva and Others v Russia (2007) para 91; Tangiyeva v Russia (2007) para 92; Zubayrayev v Russia (2008) para 99. 101 Akhmadova and Sadulayeva v Russia (2007) para 101. 102 Hugh Jordan v UK (2001) para 119. 103 R Murray, State Violence: NI 1969–1997 (Mercier Press, 1998), ch VI.

136 Duty to Investigate Suspicious Deaths narrowly interpreted and limited to establishing the cause of death.104 The coroner was not allowed to express any opinion on criminal or civil liability.105 As a result, ‘the [coroner’s] inquest played no useful role in the identification or prosecution of any criminal offences and consequently fell short of the standard requirement required by Article 2’.106 This is contrary to the system that exists in England and Wales,107 which is usually mirrored in NI. This was recognised by the NI Court of Appeal in Middleton (2004)108 and Jordan (2004).109 Subsequently, the inquest system has to allow some process whereby the hearing contributes towards the identification and prosecution of offences. Part of this requirement is that: where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of NI or the law of any other country or territory, the coroner must as soon as practicable send to the Director a written report of the circumstances.110

However, it remains the case that the coroner in NI cannot declare who was responsible for a death. Section 13 of the Coroners Act (NI) 1959 provides that a coroner ‘may hold an inquest’ [emphasis added], making it a discretionary power. Yet, following the enactment of the HRA, this is no longer the case. As Lord Bingham ruled in Middleton,111 ‘in the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the State will discharge its procedural investigative obligation under Article 2’.112 This does not require an inquest to occur in the case of every unexplained death. The experience during the Turkish-Kurdish conflict provides the starkest examples of inadequate autopsies and forensic examinations. In Kaya v Turkey (1998)113 the autopsy and forensic examinations in relation to the killing of Kurdish farmer, Mehmet Kaya, by state forces on 25 March 1993 were called into question. Autopsy and forensic examinations were conducted directly after the incident, at the scene of the death. The ECommHR and ECtHR found the autopsy report to be ‘defective and incomplete’ and the forensic examinations to be ‘insufficient’.114 This judgment was made on the basis of a number of omissions. For one, the autopsy was conducted on site, which hindered a t horough

104

rr 15 and 16, Coroners (Practice and Procedure) Rules (NI) 1963. r 16, ibid. F Doherty and P Mageean, ‘Investigating Lethal Force Deaths in NI: The Application of Article 2 of the ECHR’ (NIHRC, February 2006) 21. 107 Coroners Act 1988; Coroners Rules 1984. 108 R (Middleton) v West Somerset Coroner (2004) para 16. 109 In the Matter of an Application by Hugh Jordan for Judicial Review (2004) para 25; Hugh Jordan v UK (2001) paras 110–11. 110 Art 35(3), Justice (NI) Act 2002. 111 R (Middleton) v West Somerset Coroner (2004). 112 ibid, para 47. 113 Kaya v Turkey (1998). 114 ibid, paras 41 and 89. 105 106

Thorough Investigation 137 examination. The Turkish government attempted to commend the PP and Dr Dogru for ‘courageously’ conducting an on-the-spot autopsy.115 The ECtHR acknowledged the difficulties in conducting such an examination in an area prone to violence,116 but it continued that in such a case the official in charge should have requested that the body be flown to a safer location to allow more detailed analysis.117 The autopsy report omitted important facts, such as the number of bullet wounds and the entrance/exit points of the bullets.118 A further issue in Kaya was that the autopsy report was not made available to the next-of-kin, despite a request from the victim’s brother.119 The identity of the victim was unknown at the time of the autopsy. Photos were taken as part of the autopsy report in an attempt to identify the body, but these photos were irretrievable.120 The forensic examination was found to be insufficient, as no tests for fingerprints or gunpowder traces on the deceased’s clothes or body were made at the scene. The body was also handed over to the villagers after the initial and only examinations were completed. This was despite the outlined gaps in the examinations and the fact that the body remained unidentified at that point. The Turkish authorities took for granted that the victim was a PKK militant and did not consider it ‘necessary to examine seriously the possibility that he was killed in circumstances engaging the responsibility of the security forces’.121 The ECtHR ruled that: it cannot be maintained that the perfunctory autopsy performed or the findings recorded in the report could lay the basis for an effective follow-up investigation or indeed satisfy even the minimum requirements of an investigation into a clear-cut case of lawful killing since they left too many critical questions unanswered.122

The accumulation of serious deficiencies was found to constitute a violation of the Article 2 procedural duty to thoroughly investigate a suspicious death.123 Yet, the Court did not clarify what the minimum requirements of an investigation were. Kaya provides some indication of what constitutes a thorough investigation— an autopsy that is effective and complete, and a forensic examination that is sufficient. With details lacking, what this means in practice depends on each individual case. Drawing from Kaya, at minimum the autopsy report and forensic examination must provide a basis for an effective follow-up investigation and must answer all the critical questions. This includes accurate and thorough details of any wounds to the body and a fingerprint and ballistics test of the body.

115

ibid, para 82. ibid, para 89. ibid, para 89. 118 ibid, para 41. 119 ibid, para 18. 120 ibid, para 34. 121 ibid, para 41. 122 ibid, para 89. 123 ibid, para 92. 116 117

138 Duty to Investigate Suspicious Deaths In Tanrikulu v Turkey (1999), the ECtHR stated that it was ‘regrettable that no forensic specialist was involved and that no full autopsy was performed’.124 In Salman v Turkey (2000) it indicated that an autopsy should provide ‘where appropriate … a complete and accurate record of possible signs of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death’.125 The ECtHR refrained from stipulating that the involvement of a forensic specialist and full autopsy is a compulsory requirement to satisfy a thorough investigation. Yet, in the interests of ensuring a thorough investigation is conducted, this is required. Unless these minimum stipulations are clearly set out, the state has an opportunity to feign ignorance, as was proven to be an issue particularly in Turkey. The insufficiencies analysed in Gül v Turkey (2000) provide further support that, at minimum, forensic evidence should include complete ballistic reports (including photographs and fingerprint tests). Turkey was reprimanded as: there was no attempt to find the bullet allegedly fired by Mehmet Gül at the police officers, which was their primary justification for shooting him. There was no proper recording of the alleged finding of two guns and a spent cartridge inside the flat, which was also relied on by the police in justifying their actions. The references in the police statements on this point were vague and inconsistent, rendering it impossible to identify which officer had found each weapon. No photograph was taken of the weapons at the alleged location. While a test was carried out on the Browning weapon to show that it had been recently fired, there was no testing of Mehmet Gül’s hands for traces that would link him with the gun. Nor was the gun tested for prints.126

Further guidance on what constitutes a thorough autopsy and forensic examination can be drawn from the Minnesota Protocol, which lists in detail the different procedures that should be followed. The extent of detail provided by the Minnesota Protocol goes beyond that demanded of the ECHR, which is aimed at setting a minimum level of protection. The Minnesota Protocol does offer an example of the minimum protections alluded to, but not elaborated on, by the ECtHR. This is to the detriment of promoting protection of the duty to thoroughly investigate suspicious deaths. Thus, a more direct approach should be taken within a European context. Using the protections highlighted in the Minnesota Protocol as an example, it states that ‘the prosecutor(s) and medical investigators should have the right of access to the scene where the body is found’,127 and that a ‘system for co-ordination between the medical and non-medical investigators (eg law enforcement agencies) should be established’.128 This is followed by a number of detailed steps that investigators must take when dealing with a body. These include photographing 124

Tanrikulu v Turkey (1999) para 106. Salman v Turkey (2000) para 105. Gül v Turkey (2000) 89. 127 E/ST/CSDHA/.12 (n 39), s IV.B.1. 128 ibid. 125 126

Thorough Investigation 139 the body, recording details of the body’s condition, conducting forensic examinations, recording the identities of witnesses, and ensuring evidence is adequately handled and stored.129 Listing the steps is too much information for a generalised Convention which sets out minimum standards, as opposed to aspirational standards. Nevertheless, it is helpful and should be taken into account by other CoE bodies when providing advice to states on how to execute the ECtHR’s judgments. This was allowed for as the PACE and the CoM confirmed their support for using the Minnesota Protocol to harmonise medico-legal autopsy rules.130 The PACE and CoM should ensure that the Protocol is sufficiently referenced in their advice to states. In terms of the actual autopsy the Minnesota Protocol includes important steps such as ensuring everything is recorded in full within an official report; that adequate photographs are taken; that extensive tests are carried out; and that body parts are appropriately dealt with.131 It states that a thorough, prompt and impartial investigation ‘shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses. The investigation shall distinguish between natural death, accidental death, suicide and homicide’.132 A further consideration is the independence and impartiality of those conducting the investigation. The ECtHR dealt with cases where lack of independence and partiality in conducting autopsies and forensic examinations is clear. The Court criticised these failings,133 but it did not expressly demand that an independent commission of inquiry or similar procedure was pursued in such situations. The Minnesota Protocol provides clear guidance as to what is expected of an independent commission of inquiry: factors that support a belief that the government was involved in the execution, and that should trigger the creation of a special impartial investigation commission include: a) Where the political views, religious or ethnic affiliation, or social status of the victim give rise to a suspicion of government involvement or complicity in the death because of any one or combination of the following factors: i) Where the victim was last seen alive in police custody or detention; ii) Where the modus operandi is recognisably attributable to governmentsponsored death squads; iii) Where persons in the government or associated with the government have attempted to obstruct or delay the investigation of the execution; iv) Where the physical or testimonial evidence essential to the investigation becomes unavailable. 129 ibid.

130 PACE, ‘Recommendation 1159 (1991) of the PACE on the Harmonisation of Autopsy Rules’, 29 June 1991; CoM, ‘Recommendation No R (99) 3 of the CoM to Member States on the Harmonisation of Medico-Legal Autopsy Rules’, 2 February 1999. 131 E/ST/CSDHA/.12 (n 39), s IV.B.2. 132 E/1989/65 (n 10) principles 9–13. 133 Tanrikulu v Turkey (1999).

140 Duty to Investigate Suspicious Deaths b) As set out in paragraph 11 of the Principles, an independent commission of inquiry or similar procedure should also be established where a routine investigation is inadequate for the following reasons: i) The lack of expertise; or ii) The lack of impartiality; or iii) The importance of the matter; or iv) The apparent existence of a pattern of abuse; or v) Complaints from the family of the victim about the above inadequacies or other substantial reasons.134

The use of the Minnesota Protocol as additional guidance is supported by PACE and the CoM.135

B. Public Inquiries The independent commission of inquiry advocated by the Minnesota Protocol could be realised in the form of a public inquiry. Each of the jurisdictions regarding the four case studies has the ability to hold public inquiries,136 but the exercise of this power is rare. The only public inquiries held involved the NI and TurkishKurdish conflicts. That is despite the UN calling for Russia to establish ‘a national broad-based and independent commission of inquiry’ into the Chechen conflict, with a view to bringing perpetrators to justice and preventing impunity.137 In the UK, there is the possibility of more in-depth inquiries, by virtue of the Tribunals of Inquiry (Evidence) Act 1921, the Inquiries Act 2005 (which repealled the 1921 Act) and (specific to NI) section 44 of the Police (NI) Act 1998. The establishment of these inquiries depends on the government’s political will, but once set up, they are supposed to be independent of the Westminster Parliament.138 In order to conduct its work, the Inquiry can compel the attendance of witnesses and the production of documents.139 Since 2005 this requirement can be revoked, if that is seen to be in the public interest.140 This development faced criticism;

134

E E/ST/CSDHA/.12 (n 39), s IV.D.1. PACE (n 130); CoM (n 130). The Chechen, NI and Turkish-Kurdish conflicts and public inquiries are discussed in detail in this sub-section. For the Basque conflict, Art 76(1) of the Spanish Constitution 1978 established that the ‘Congress and the Senate and, when appropriate, both Houses jointly, may appoint fact-finding committee on any matter of public interest’. There is the ability within the French system for public inquiries to be conducted by a specially created parliamentary Enquiry Commission (Les Commissions d’Enquete), which is given broad investigative powers. 137 C/CN.4/RES/2000/58, ‘The Situation in the Republic of Chechnya of the Russia Federation’, 25 April 2000. 138 O Gay, ‘The Inquiries Act 2005’, SN/PC/06410, 3 September 2012, 4. 139 ss 1 and 2, Tribunals of Inquiry (Evidence) Act 1921; s 21, Inquiries Act 2005. 140 s 21(5), Inquiries Act 2005. 135

136

Thorough Investigation 141 it is viewed as a way for the state to escape scrutiny.141 The task of a tribunal of inquiry is: to investigate certain allegations or events with a view to producing an authoritative account of the facts, attributing responsibility or blame where it is necessary to do so. Tribunals of inquiry do not make decisions as to what action should be taken in the light of their findings of fact, but they may make recommendations for such action. The chairman is normally a senior judge, assisted by one or two additional members or expert assessors.142

Inquiries relating to the Troubles include the Saville Inquiry,143 the inquiry into the death of Rosemary Nelson,144 and the De Silva Inquiry.145 Each of these faced some form of criticism pertaining to a violation of Article 2’s procedural obligation (eg the delays involved, the expense, or the non-involvement of the victims’ next-of-kin).146 In Ireland, public inquiries are referred to as tribunals. They are provided for using the British law and the Tribunals of Inquiry (Evidence) Act 1921 (which remained in force post-independence). In 2004 the option of a Commission of Investigation was introduced. Compared to tribunals, this is a less expensive and faster method of investigation for matters of urgent public concern.147 It is similar to the non-statutory ad hoc inquiries in NI as the Commission sets its

141 O Bowcott, ‘Pat Finucane’s family denounce report as a “sham”’, The Guardian, 12 December 2012. 142 A Bradley and K Ewing, Constitutional and Administrative Law (Longman, 2002) 683. 143 The Saville Inquiry was ordered under the Tribunals of Inquiry (Evidence) Act 1921. It was set up on 29 January 1998, concluded in June 2010 and cost £192 million. The Inquiry looked into the events surrounding a civil rights march in Derry/Londonderry on 30 January 1972, otherwise known as Bloody Sunday, when 13 people were killed and 13 injured, one fatally. It found that the deaths and injuries were the responsibility of the British Army and were unjustified: Lord Saville, Report of the Bloody Sunday Inquiry (SO, 2010). 144 This inquiry was ordered under s 44 of the Police (NI) Act 1998 to investigate the killing of solicitor Rosemary Nelson on 15 March 1999. The inquiry, which cost £46.5 million, was appointed on 16 November 2004 and concluded on 23 May 2011. It found no evidence that state agencies (the RUC, British Army or MI5) directly facilitated her murder, but could not exclude the possibility that individual members had helped the perpetrators. It found that the actions of state agents helped legitimise her as a target in the eyes of Loyalist paramilitaries. This included the RUC leaking information about her, the RUC publicly abusing her and the failure of state agencies to protect her against threats: M Morland, The Rosemary Nelson Inquiry Report (SO, 2011). 145 The de Silva Inquiry investigated the killing of solicitor Pat Finucane on 12 February 1989. It was to be set up in September 2004, but was delayed until 12 October 2011. The Inquiry concluded on 12 December 2012. The Inquiry found that the state agencies (RUC and British Army) had not done enough to protect Finucane against known threats. It also concluded that three members of Loyalist paramilitaries, two of whom were and one who was to become, agents of the state, were responsible for Finucane’s murder. Furthermore, the state propaganda initiatives were found to legitimise Finucane as a potential target for Loyalist paramilitaries. However, Finucane’s family criticised the report as a ‘sham’ and suppression of the truth in which they were given no opportunity to participate: D de Silva, The Report of the Patrick Finucane Review (SO, 2012); Bowcott (n 141). 146 Gay (n 138) 5; Bowcott (n 141). 147 Commissions of Investigation Act 2004.

142 Duty to Investigate Suspicious Deaths own terms of reference and the cooperation regarding evidence is voluntary. The Irish Prime Minister (Taoiseach) also has the power to order an Independent Commission of Inquiry. Both of these latter mechanisms were utilised regarding the Dublin and Monaghan bombings in 1974, which killed 33 people and injured approximately 258.148 The Commission of Inquiry is used as a pre-cursor to a Commission of Investigation or tribunal. The Hamilton/Barron Reports of the Independent Commission of Inquiry considered the facts and raised questions. These were then considered by the Commission of Investigation.149 Independent Commissions have been used to investigate individual deaths and smaller bombings linked to the Troubles.150 The conduct of these inquiries has not faced any significant criticism, but their limited jurisdiction poses a persistent problem when trying to obtain key documents from the UK government.151 Any such Commission does not have the power to conduct investigations (including directly interviewing witnesses outside of Ireland), or to compel the disclosure of evidence in the hands of the UK government or its agents. In such instances the Commission has to rely on the cooperation of the authorities of the relevant jurisdiction. Representatives of the UN called for public inquiries into the activities of Turkish forces in the south-east of Turkey.152 The only public inquiry in relation to the Turkish-Kurdish conflict was the Commission of Inquiry into the Susurluk scandal. This examined the existence of collusion between state actors (including the Turkish death squad JITEM, Turkish extremists and PKK members) which resulted in an unknown number of unjustified killings. The conclusion of the inquiry was predictable and limited, as key witnesses were not obliged to testify, the Commission of Inquiry’s intended fact-finding missions were halted and a number of pro-government Commissioners resigned. The Commission did find that excessive immunity was granted to public officials, but only four officials were implicated, two of whom were dead.153 The ECtHR intentionally avoids imposing explicit demands on how obligations are fulfilled in the interests of the principle of subsidiarity. If a public inquiry satisfied all of the elements required of a thorough investigation, it is possible that this form of inquiry could be used as the main investigation mechanism.

148 JCJEDWR, ‘Final Report on the Report of the Independent Commission of Inquiry into the Dublin and Monaghan Bombings’ (March 2004); JCJEDWR, ‘Final Report on the Report of the Independent Commission of Inquiry into the Dublin Bombings of 1972 and 1973’ (February 2005); P MacEntee, ‘Commission of Investigation into the Dublin and Monaghan Bombings of 1974’ (March 2007). 149 ibid. 150 JCJEDWR, ‘Final Report on the Report of the Independent Commission of Inquiry into the Murder of Seamus Ludlow’ (March 2006); JCJEDWR, ‘Final Report on the Report of the Independent Commission of Inquiry into the Bombing of Kay’s Tavern, Dundalk’ (November 2006). 151 Oireachtas, Sub-Committee Report on the Barron Report (Oireachtas, 2004) 21. 152 HRW, ‘Turkey: No Justice for Airstrike Victims’, 27 December 2012, www.hrw.org/news/ 2012/12/27/turkey-no-justice-airstrike-victims. 153 B Maddy-Weitzman, Middle East Contemporary Survey, Vol 21 (Moshe Dayan Centre, 1999) 722.

Thorough Investigation 143 C. Witness Statements A further issue is a failure on behalf of the investigators to take witness statements. A witness statement is ‘an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime’.154 The lack of investigations into the BVE’s and GAL’s killings and deaths of alleged Basque sympathisers in Spanish custody implies that insufficient action was taken by the Spanish authorities to obtain witness statements. The same can be said of the French authorities regarding killings that took place on French soil. In the Chechen conflict the Russian authorities commonly failed to identify and question witnesses,155 or delayed the process of doing so. In Bayasayeva v Russia (2007) it took three months to interview the applicant, four years to interview the local residents and over five years to interview the Russian servicemen.156 The Russian authorities also failed to raise pertinent questions when taking witness statements. A trend developed where the legal teams for the relatives obtained witness statements that should be taken by the Russian authorities. These statements were presented to the Russian authorities, who then failed to act on the information.157 In Aslakhanova Russia was found to have failed ‘to take vital investigative steps, especially those aimed at the identification and questioning of the military and security officers who could have witnessed or participated in the abduction’.158 Generally witness statements were appropriately taken regarding killings related to the NI Troubles.159 The issue was the selective way in which the statements were used during inquests and criminal proceedings. In essence: the duty to take reasonable steps to protect life has been wrongly interpreted in NI to include blanket anonymity of security personnel. A request for anonymity will be granted for security force personnel that have to appear at legacy inquests. This will be farcical anonymity as the person’s name will already be in the public domain, but it means that steps cannot be taken to investigate further. It will not be possible to see if that particular person has been involved in similar killings or if there is evidence of this person’s actions being part of a modus operandi.160

This contributed to cover-ups, particularly concerning cases that were the responsibility of the UK. 154 Prosecutor v Blaškić, No IT-95-14-A, International Criminal Tribunal for the Former Yugoslavia, 26 September 2000, para 15. 155 Goncharuk v Russia (2007); Khamila Isayeva v Russia (2008); Makhauri v Russia (2007). 156 Baysayeva v Russia (2007); Estamirov v Russia (2006), where it took more than three years to gather the witness statements; Tangiyeva v Russia (2007), where it took more than four years to gather the witness statements; Musayev and others v Russia (2007), where it took up to nine months to gather the witness statements; Akhmadova and Sadulayeva v Russia (2007), where it took three years to gather the witness statements. Akhmadova and Sadulayeva v Russia (2007) para 101. 157 Aslakhanova and Others v Russia (2012) paras 36–37. 158 ibid, para 123. 159 Hugh Jordan v UK (2001) para 118. 160 D Holder, CAJ (NI), interviewed 1 August 2014.

144 Duty to Investigate Suspicious Deaths It is the Turkish-Kurdish cases (and the significant failings by the state in these cases) that provide the most assistance in developing the European guidance on witness statements. In Ergi v Turkey (1998),161 Havva Ergi and her young daughter were killed during an ambush by the Turkish forces on the village of Gigis (Kesentas) on 29 September 1993. It transpired that (despite claims to the contrary) the PP did not conduct any interviews of family members, villagers or military personnel.162 The PP alleged that he did not need to investigate further, as there were no elements contradicting the incident report of the Turkish gendarmerie that concluded that Havva Ergi was killed by fire from the PKK.163 It transpired that the gendarmerie’s report was drafted by a commander who was not present during the clash. The PP did not see it as his job to investigate the surrounding circumstances to inform the report’s conclusion, as the deceased’s relatives had not alerted him to any suspicion of wrongdoing by the Turkish security forces.164 The ECtHR rejected this reasoning. It found the actions and inaction of the Turkish authorities did not constitute a thorough and effective investigation in line with Article 2. The implication from Ergi is that an effective investigation involves investigators following every available line of inquiry. This includes investigators acting of their own motion to interview witnesses and file their statements. Also investigators should consider the surrounding circumstances, to corroborate official reports of the incident. Where the surrounding circumstances of the case indicate that state involvement is not beyond the realms of possibility—that the state forces might be implicated in a killing—the ECtHR found it unacceptable that a state would conduct an investigation in such a way that does not allow for that very possibility.165 This was established in Yasa, which concerned the killing of a pro-Kurdish n ewspaper seller in Diyarbakir on 14 June 1993. The Turkish investigatory authorities excluded from the outset the possibility that state agents were implicated in the killing. The PP considered the killing a settling of scores between non-state armed organisations, and the Turkish government found the killing to be the result of ‘terrorist’ activity.166 The failure of any state authority to investigate an alternative perpetrator (including state actors) was found to be a violation of Article 2. This implied that there must be some evidence to suggest that state involvement is a possibility.167 Around the time of Yasa, the Susurluk report was in the public domain, which exposed collusion between the state and ex-PKK members. The ECtHR put the latter requirement into clearer language in Ogur v Turkey (1999).168

161

Ergi v Turkey (1998). ibid, para 42. 163 ibid, para 83. 164 ibid. 165 Yasa v Turkey (1998) paras 106 and 107. 166 ibid, para 105. 167 ibid, para 106. 168 Ogur v Turkey (1999). 162

Thorough Investigation 145 It stated that in order for an investigation to be thorough, a ‘serious attempt to identify the person’ responsible for the killing had to be made,169 in this case the person who fired the fatal shot that killed Musa Ogur during a security operation at a mining company in south-east Turkey. In the Mahmut Kaya disappearance case, the ECtHR found that significant delays in seeking statements from witnesses did not meet the requirements of a thorough investigation. In this case there was a delay of six months between obtaining a more detailed statement from a key witness and an order from the National Security Court Prosecutor to do so. This was then followed by inactivity.170 The ECtHR acknowledged the difficulties that faced investigators in the south-east of Turkey, but ruled that ‘where there are serious allegations of misconduct and infliction of unlawful harm implicating State security officers, it is incumbent on the authorities to respond actively and with reasonable expedition’.171 The negative impact of the lapse of time on securing witnesses and confirmation that this constituted a key violation in relation to investigations were evidenced in Varnava v Turkey (2008).172 This concerned the disappearance of nine Greek-Cypriots during Turkey’s 1974 military operations in Cyprus. Thus investigators must act promptly and be active in obtaining witness statements. Hugh Jordan confirmed that it is appropriate to take action to remove possible witnesses from situations where public safety needs to be considered (eg highway safety). It also established that the state’s duty concerning civilian witnesses is fulfilled by making genuine attempts to look for, find and involve such witnesses. The state cannot be held responsible for a civilian witness’s decision to not come forward.173 Aside from these clarifications, the ECtHR does not elaborate as to what is expected of witness statements; for example, who and what should be recorded. The Minnesota Protocol elaborates that: (a) Investigators should identify and interview all potential witnesses to the crime, including: (i) Suspects; (ii) Relatives and friends of the victim; (iii) Persons who knew the victim; (iv) Individuals residing or located in the area of the crime; (v) Persons who knew or had knowledge of the suspects; (vi) Persons who may have observed either the crime, the scene, the victim or the suspects in the week prior to the execution; (vii) Persons having knowledge of possible motives; (b) Interviews should take place as soon as possible and should be written and/or taped. All tapes should be transcribed and maintained;

169

ibid, para 90. Mahumt Kaya v Turkey (2000) para 106. ibid, para 107. 172 Varnava and Others v Turkey (2008) para 96. 173 Hugh Jordan v UK (2001) para 118. 170 171

146 Duty to Investigate Suspicious Deaths (c) Witnesses should be interviewed individually, and assurance should be given that any possible means of protecting their safety before, during and after the proceedings will be used, if necessary.174

VII. INDEPENDENT AND IMPARTIAL INVESTIGATIONS

Investigations must be independent and impartial. This obligation can be divided into two categories—the investigation itself and, where appropriate, the trial. The latter comes from Article 6(1) of the ECHR, which requires that ‘an independent and impartial tribunal [is] established by law’ to carefully scrutinise whether a violation of the ECHR occurred.175 Such a tribunal is also required to deter and prevent violations of the ECHR, including Article 2.176 It is questioned whether the special courts and trials without jury used in the four case studies satisfy these requirements.177 This book focuses on the independence of the investigation, a requirement that was introduced by the ECommHR. The ECommHR stated that the obligation to protect the right to life under Article 2 ‘includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a State may receive public and independent scrutiny’.178 This was confirmed by the ECtHR,179 but it is the phrasing in the inadmissible Kamalak v Turkey (2013)180 case that is of interest. The ECtHR recalled ‘that an independent and impartial investigation capable of leading to the establishment of facts and the liability of those responsible has, in the Court’s case-law, been considered as an obligation inherent in Article 2’.181 174

E/ST/CSDHA/.12 (n 39), s C.4. Armani da Silva v UK (2016) para 239. 176 ibid. 177 On the courts used in the Basque country: J Sunderland, ‘Setting an Example? CounterTerrorism Measures in Spain’ (HRW, January 2005), 17; P Hamilos, ‘Judge Baltasar Garzón’, The Guardian, 6 March 2008. For the courts used in regarding the Chechen conflict: The Committee Against Torture, ‘Chechen Supreme Court Judge disqualifies self because of pressure from “a person identifying himself as the Minister of the Interior for the Chechen Republic”’, 11 November 2013, www.pytkam. net/mass-media.news/1036/pg7. On the courts in NI: D Walsh, Use and Abuse of Emergency Legislation in NI (Civil Liberties Trust, 1993) 94; Lord Diplock, Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in NI (SO, 1972) paras 61–92; B Dickson, The ECHR and the Conflict in NI (OUP, 2010), 208; Joseph Kavanagh v Ireland (2001) para 10.2. On the courts used in the Turkish-Kurdish conflict: Ergin v Turkey (No 6) (2006) paras 43–44; Kilic v Turkey (2000) paras 70–76; Türkiye Cumhuriyeti Avrupa Birligi Bakanligi, ‘Dgm’lerin Yerine 18 Agir Ceza Mahkemesi (Instead of DGM 18 Heavy Penal Court)’, 2 July 2004, www.abgs.gov.tr/index.php?p=36335&l=1. Art 145(1), Constitution of the Republic of Turkey 1982; Law No 1632, Military Criminal Code, 22 May 1930; Sections 9–14, Law No 353 on the Foundation of Criminal Procedures at Military Courts of October 1963 (revised in October 2006). 178 McCann and Others v UK (1994) 79.193. 179 Baysultanova and Others v Russia (2013) para 92; Hugh Jordan v UK (2001) paras 105–09; Esmukhambetov and Others v Russia (2011) paras 115–18; Umarova and Others v Russia (2012) paras 84–88. 180 Kamalak v Turkey (2013). 181 ibid, para 31. 175

Independent and Impartial Investigations 147 The inclusion of the requirement for states to conduct an independent and impartial investigation within Article 2’s duty to investigate a suspicious death is intended to ensure that the investigation conducted is effective, not ‘theoretical and illusory’.182 Article 2 claims focus on there being a fault (either an act or omission) on behalf of the state that led to a threat to life or death, or prevented accountability. This safeguard assists with reducing the risk of cover-ups, impunity and future violations. An independent and impartial investigator should have no interest in conducting a botched investigation. For cases where the impartiality and independence of an investigator is called into question: the nature and degree of scrutiny which satisfies this minimum threshold must, in the Commission’s view, depend on the circumstances of the particular case. There may be cases where the facts surrounding a deprivation of life are clear and undisputed and the subsequent inquisitorial examination may legitimately be reduced to a minimum formality. But equally there may be other cases where a victim dies in circumstances which are unclear, in which event the lack of any effective procedure to investigate the cause of the deprivation of life could by itself raise an issue under Article 2 of the Convention.183

The higher threshold of scrutiny for contested cases is welcomed. Such cases are prevalent during times of unrest and conflict and there are occasions when the lack of clarity is intentionally created by state actors to enable impunity. An exploration of the ECtHR’s jurisprudence offers a number of principles that are required for an investigation to be ECHR compatible, but it does not provide a succinct list of what is needed to satisfy an independent and impartial investigation. This is to create an obligation that is not so restrictive that it is useless in practice, and to honour the principle of subsidiarity. There is evidence of lack of independence in the four case studies. In the Basque conflict, the state authorities failed to thoroughly investigate all state killings.184 These include those during covert operations by the BVE and GAL, and the individual actions of Spanish police officers.185 Those killings that were investigated were subject to undue delays.186 When combined with the statesponsored origins of the BVE and GAL, this suggests a lack of independence. In Chechnya, the Russian authorities ignore the requirement for investigations to be independent and impartial by generally failing to take critical investigative steps, despite evidence of foul play being submitted by the applicants. For example, in Baysultanova v Russia (2013), which concerned the disappearance of Beslan Baysultanov, the ECtHR ‘observed that there is no indication that a number of crucial investigative steps were ever taken’.187 The Russian investigators failed to 182

Khashiyev and Akayeva v Russia (2005) para 177. McCann and Others v UK (1994) 79.193. 184 I Urizar, Behatokia interviewed 8 January 2015; D Albin, ‘El Gobierno criminaliza a las víctimas del terrorismo de Estado’, Público, 18 September 2014. 185 ibid. 186 ibid. 187 Baysultanova and Others v Russia (2013) para 97. 183

148 Duty to Investigate Suspicious Deaths act on information brought by the applicant that could lead to the identification and interviewing of a suspect. The investigators also failed to make ‘any genuine attempt’ to verify information of the victim’s detention.188 The NI and Turkish-Kurdish cases offer the most insight into what is required of an independent investigation. Ogur shows that it is unacceptable for the investigating officer to be subordinate to the chain of command being investigated, for the institution in charge of the investigation to be linked to the individuals being investigated, or for statements to be tampered with. In this case, members of the tribunal who opposed the favoured decision were simply replaced.189 Therefore, for an investigation to be deemed independent it is ‘necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events’.190 There must not only be a ‘lack of hierarchical or institutional connection, but also a practical independence’.191 In McKerr v UK (2001)192 and Hugh Jordan the ECtHR found that the investigation into RUC officers’ behaviour was conducted by RUC officers and overseen by the RUC Chief Constable. The Court acknowledged that there were independent elements, such as the ICPC could require the RUC Chief Constable to refer the investigating report to the DPP for a decision on prosecution or for the DPP to initiate disciplinary proceedings. Yet this did not sufficiently negate that the investigation was conducted by police officers connected with those under investigation.193 The independence of the DPP was also called into question. The DPP’s office faced criticism for its reluctance to launch criminal proceedings against state actors.194 This was exposed by the Bennett Committee in 1979. This Committee considered more than 1,600 formal complaints of assault and battery that was lodged against the RUC. Many of the complaints were corroborated by independent medical evidence, but not a single RUC officer was charged or convicted. The DPP’s response was that there was not enough evidence to prosecute. [it] is strange, therefore, that [the DPP] has been willing to prefer charges against ‘terrorist’ suspects in cases where the only evidence against them is the word of an RUC officer but has consistently refused to prefer charges against an RUC officer where the evidence consists of the word of a suspect and independent medical testimony.195

188 ibid. 189

Ogur v Turkey (1999) para 91. Gülec v Turkey (1998) para 82; Ogur v Turkey (1999) para 91; Isayeva, Yusupova and Bazayeva v Russia (2005) para 210. 191 Ergi v Turkey (1998) paras 83–84; Hugh Jordan v UK (2001) para 120; McKerr v UK (2001) para 128; Isayeva, Yusupova and Bazayeva v Russia (2005) para 210; Armani da Silva v UK (2016) para 232. 192 McKerr v UK (2001). 193 ibid, para 128; Hugh Jordan v UK (2001) para 120. 194 The DPP for NI is tasked with reviewing any case where the circumstances of a death appear to involve a criminal offence: Justice (NI) Act 2002. 195 D Walsh, ‘Arrest and Interrogation’ in A Jenkins (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1988) 43. 190

Independent and Impartial Investigations 149 It was a case of the DPP ‘bending, consciously or unconsciously, to the wishes of the government in allowing the RUC a free hand’.196 The current problem of the PSNI investigating allegations against the RUC is that there is ‘institutional continuity’ between the two police forces.197 This shows the need for investigations to be independent and impartial at all levels, from initial investigations through to the tribunal stage.

A. Independent Complaints Mechanism The experience in NI supports the argument for some form of truly independent mechanism to hold the various investigation bodies to account. One suggestion is to have independent complaints mechanisms for the judiciary, police and military. This requires that the persons responsible for and carrying out the investigation are independent from those implicated in the events.198 This means that they should be practically independent, with no hierarchical or institutional connection.199 Looking at the complaints mechanisms that are applicable in the four case studies, this requirement is not being adequately delivered across the board. In the four case studies, keeping the national judiciaries in check usually falls to fellow members of the judiciary,200 with the exception of NI that has the Criminal Cases Review Commission (CCRC).201 The CCRC is an independent public body set up to review possible miscarriages of justice in the criminal courts of England, Wales and NI and to refer appropriate cases to the appeals courts.202 It was not set up until March 1997, towards the end of the conflict. There are no independent mechanisms within the Spanish or French justice systems to oversee police investigations203 or the actions of the respective armies. In France’s case, any complaints against the French police are often met with counter-claims against the original claimant: that the claimant insulted or assaulted a police officer.204 The lack of effective complaint mechanisms extends 196 ibid. 197

Holder (n 160). Gülec v Turkey (1998) para 82; Ogur v Turkey (1999) para 91; Isayeva, Yusupova and Bazayeva v Russia (2005) para 210. 199 Ergi v Turkey (1998) paras 83–84; Hugh Jordan v UK (2001) para 120; McKerr v UK (2001) para 128; Isayeva, Yusupova and Bazayeva v Russia (2005) para 210. 200 The GCPJ is a judicial body tasked with overseeing and inspecting the activities of Spanish judges and courts since 1978. It is made up of 20 members, consisting of a mix of judges and lawyers. Since 1964, the IGJS has supervised the French civil and criminal courts (excluding the Court of Cassation) and all of the departments and bodies under the responsibility of the French Ministry for Justice and Freedoms. It is headed by the General Inspector, a high-ranking judge. There are no separate bodies in Chechnya, Ireland, Russia or Turkey that oversee the work of the courts. Miscarriages of justice in these jurisdictions are usually dealt with by the appellate courts. 201 Part II, Criminal Appeal Act 1995. 202 CCRC, ‘About the CCRC’, www.justice.gov.uk/about/criminal-cases-review-commission. 203 Sunderland (n 177). 204 AI, ‘Police Abuse Goes Unchecked in France’, 2 April 2009, www.amnesty.org/en/press-releases/ 2009/04/france-police-above-law-20090402/. 198

150 Duty to Investigate Suspicious Deaths to Chechnya, but in select cases the Russian criminal courts have played a role in questioning the actions of the Russian military in Chechnya. This is not common practice.205 There are no independent mechanisms within the Turkish justice or military system to deal with complaints. Legislation was passed in 2013 by the Turkish Parliament to create an Ombudsman’s Office and a separate national human rights institution. Amnesty International voiced concern that these mechanisms will lack independence.206 Also the Turkish government has yet to fulfil its promise of a police complaints procedure.207 There is no, nor was there, any independent oversight for complaints against army personnel in the UK (including NI).208 This was the same for police complaints in the whole of the UK until 1977.209 The Police Act 1970 established procedures for recording and investigating complaints in NI, but RUC officers continued to investigate their colleagues.210 It was not until the publication of the Black Committee’s recommendations that an independent mechanism was introduced to NI. Since September 1977 independent mechanisms were in place to handle complaints against the RUC, and now, the PSNI. The Police Complaints Board (PCB) operated from 1977 to 1988. During that time the PCB’s remit was limited to reviewing completed investigations and recommending that officers be charged with a criminal offence to the RUC Deputy Chief Constable. During the PCB’s tenure, the Deputy Chief Constable did not impose any of the recommended charges211 and the PCB overturned ‘less than one per cent of the cases it reviewed’.212 The PCB was replaced by the ICPC in 1988.213 This was an independent body that dealt with referrals related to a complaint against the police under investigation by a police officer, or where the Chief Constable or Secretary of State suspected that a criminal offence may have been committed by a police officer. Where the conduct of an RUC officer resulted in a death or serious injury, the ICPC was required to supervise the investigation into the complaint.214 It had to approve the appointment of any police officer to the investigation and it could require any police officer to be replaced.215 Any reports concerning the investigation had to be submitted to the ICPC and Chief Constable. In turn the ICPC issued a statement determining whether the investigation was satisfactorily conducted and specifying

205 206

N Kovalev, ‘Trial by Jury in Russian Military Courts’ (2008) 8 JPIPSS, para 31. AI, ‘Turkey’ in AI, Annual Report 2013: The State of the World’s Human Rights (AI, 2013).

207 ibid. 208

Doherty (n 106) 19. D Glass, Towards Greater Public Confidence: A Personal Review of the Current Police Complaints System for England and Wales (IPCC, March 2014) 4. 210 A Mulcahy, Policing NI: Conflict, Legitimacy and Reform (Routledge, 2013) 36. 211 ibid. 212 R Weitzer, Policing Under Fire: Ethnic Conflict and Police-Community Relations in NI (SUNY Press, 1995) 188. 213 Police (NI) Order 1987. 214 Art 9(1)(a) Police (NI) Order 1987. 215 Art 9(5)(b), ibid. 209

Public Scrutiny 151 any defects.216 The ICPC was to be notified of any disciplinary proceedings217 and could make disciplinary recommendations.218 If the ICPC felt that a police officer should be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the investigation report.219 The strong relationship between the ICPC and the Chief Constable was criticised by the ECtHR and found to be an insufficient safeguard.220 The ICPC was replaced by the Police Ombudsman for NI (PONI) on 1 October 2000.221 This is a fully independent office, which is a move away from police officers being investigated by police officers. Investigations of the police saw a significant overhaul since the end of the Troubles, but questions continue around the independence of the individuals who fulfilled these roles at different stages.222

VIII. PUBLIC SCRUTINY

Public confidence is one of the main criteria for judging whether an investigation is effective.223 To achieve this there must be sufficient public scrutiny of the investigation and its results.224 The reasoning is that public scrutiny provides a procedural safeguard.225 In order for it to be effective, it must be offered in theory and practice.226 McKerr established that the degree of public scrutiny required may vary from case to case.227 Yet in all cases the next-of-kin of the victim must be involved in the procedure ‘to the extent necessary to safeguard his or her legitimate interests’.228 This does not equate to an automatic requirement that families should have access to police files or any information that they demand, or that they are kept informed throughout the investigation.229 The disclosure of such information may involve sensitive issues with possible prejudicial effects to private individuals or other investigations.230 This requirement is satisfied as long as the public or the victim’s relatives are provided with access at ‘other stages of the available procedures’.231

216

Art 9(8), ibid. Arts 10(5), 11(6) and 11(7), ibid. Arts 13(1) and 13(3), ibid. 219 Art 12(2), ibid. 220 Hugh Jordan v UK (2001) para 120. 221 Pt VII, Police (NI) Act 1998. 222 L Clarke, ‘Police Ombudsman won’t step down despite severe criticism in leaked report’, Belfast Telegraph, 16 August 2011. 223 McKerr v UK (2001) para 114. 224 McCann v UK (1995) para 159. 225 ibid. 226 Shanaghan v UK (2001) para 92; Ogur v Turkey (1999) para 92; Isayeva v Russia (2005) para 214. 227 McKerr v UK (2001) para 115. 228 ibid. 229 Hugh Jordan v UK (2001) para 122–24. 230 ibid, para 121. 231 ibid, para 121. 217 218

152 Duty to Investigate Suspicious Deaths It does not have to involve the scrutiny of the wider public, unlike the right to a public hearing provided for by Article 6(1) of the ECHR. ECtHR jurisprudence confirms that at the very least, the next-of-kin: 1) must be informed of a decision regarding prosecution;232 2) cannot be prohibited outright from access to the investigation and court documents;233 and 3) must be given the opportunity to tell the court of their version of events.234 This reflects Principle 16 of the 1989 Principles: families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of the death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.235

These Principles provide the additional stipulation that: a written report shall be made within a reasonable period of time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on the findings of fact and on applicable law. The report shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The government shall, within a reasonable time, either reply to the report of the investigation, or indicate the steps to be taken in response to it.236

Specific examples of how the principle of public scrutiny is disregarded by state actors can be drawn from three of the case studies. Concerning access to information in the Chechen conflict, Article 161 of the Code of Criminal Procedure of the Russian Federation 2002 prohibits the disclosure of information from the preliminary investigation file. Information may only be divulged with the permission of the prosecutor or the investigator, in so far as it does not prejudice the investigation. Information about the private lives of parties to criminal proceedings can be divulged only with the parties’ permission. This enabled the Russian authorities to refuse to disclose documents without explanation, leaving the relatives of the victims in the dark.237

232

Gülec v Turkey (1998) para 82. Ogur v Turkey (1999) para 92. 234 Gül v Turkey (2000) para 93. 235 E/1989/65 (n 10) Principle 16. 236 ibid, Principle 17. 237 Imakayeva v Russia (2006) para 202; Akhmadova and Sadulayeva v Russia (2007) para 93. 233

Public Scrutiny 153 In NI, initially the DPP was viewed as not being under an obligation to furnish reasons for his decision on whether or not to prosecute.238 This was on the basis that some reasons can lead to an assumption of guilt, a threat to personal security or a threat to national security.239 This is contrary to the practice in England and Wales. The ECtHR criticised the DPP for not providing reasons and called for an obligation to give reasons to be imposed in relation to a controversial incident involving the use of lethal force. This is to promote public confidence and to permit the family of a victim to have access to information that may be crucial in any legal challenge.240 The enactment of the HRA also caused a rethinking of how section 8 of the Coroners Act (NI) 1959 is interpreted. This requires the police to inform the coroner when a body is found or a death occurs, together with information that the police are ‘able to obtain concerning the finding of the body or concerning the death’.241 Pre-HRA, this provision was given a limited interpretation, with the RUC being able to determine what was relevant and irrelevant. However, post-2000: as a matter of sensible public administration it seems essential that the Coroner should have the material obtained by the police so that he [or she], the Coroner, can decide what witnesses to call and to investigate the matter generally.242

While the coroner has the power to summon witnesses,243 rule 9(2) of the Coroners (Practice and Procedure) Rules (NI) 1963 did not say that a person suspected of causing a death was compelled to appear as a witness at an inquest. The incompatibility of this with Article 2 of the ECHR was exposed in Hugh Jordan.244 It is also contrary to Principle 10 of the 1989 Principles, which states that, the investigative authorities: have the authority to oblige officials allegedly involved in any such executions to appear and testify. The same shall apply to any witness. To this end, they shall be entitled to issue summonses to witnesses, including the officials allegedly involved and to demand the production of evidence.245

Consequently, a person suspected or charged with causing a death is now a compellable witness at the inquest into the death. This is with the condition that the compellable witness may decline to answer any question tending to incriminate him or herself, and his or her spouse.246 This does not reflect the compellability of any witness as provided for in the 1989 Principles, but it is a step in the right direction. 238 R v DPP ex p Patricia Manning and Elizabeth Manning (2000); Re an Application by David Adams for Judicial Review (2001). 239 Hugh Jordan v UK (2001) para 82. 240 ibid, para 123. 241 s 8, Coroners Act (NI) 1959. 242 Peach v Commissioner of Police of the Metropolis (1986), 138. 243 s 17, Coroners Act (NI) 1959. 244 Hugh Jordan v UK (2001) para 127. 245 E/1989/65 (n 10) Principle 10. 246 Coroners (Practice and Procedure) (Amendment) Rules (NI) 2002, Explanatory Note.

154 Duty to Investigate Suspicious Deaths Turkey was criticised for the lack and inaccessibility of information for nextof-kin.247 The state authorities also turned to dishonest tactics in an attempt to detract from these shortcomings. This includes focusing on the character of the victim (as opposed to the killing)248 and charging suspects for murder without any evidential link.249

IX. CONCLUSION

Suspicious deaths do occur, particularly during times of conflict. They may be the result of a violation of Article 2, or they may not. In both scenarios it is important to establish why and how the death occurred, and if possible by whom. This is to enable steps to be taken to prevent or reduce the risk of similar deaths in the future. The ECtHR acknowledges the benefits of having the full picture and as such interpreted that Article 2 contained a procedural obligation to investigate suspicious deaths. This chapter shows that the ECtHR jurisprudence concerning investigations and Article 2 is fairly well developed, but that consideration should be given to additional elements found in the 1989 Principles, Minnesota Protocol and ICED. Bringing these different sources together this chapter confirmed that from a conflict standpoint, Article 2’s duty to investigate suspicious deaths requires that: —— the state must act of its own motion; —— the purpose of the investigation must be to secure the accountability of agents of the state; —— the investigations must be commenced promptly; —— the investigations must be conducted with reasonable expediency; the investigations must be thorough; —— the investigations must be independent and impartial; and —— the investigations must be subject to public scrutiny (including that of the next-of-kin). In the interests of clarity, these different requirements should be included in the proposed guidelines. How these should be enumerated is set out in the Appendix. In the interests of robust protection, this chapter also concludes that the PACE and the CoM should adequately reference the Minnesota Protocol in their advice on how to ensure and deliver an adequate Article 2 investigation.

247

Adali v Turkey (2005). Koku v Turkey (2005) para 155. 249 Kilic v Turkey (2000) para 48. 248

8 Right to an Effective Remedy and Article 2 of the ECHR

T

HE NEED FOR a remedy arises where the state has not complied with the ECHR (including Article 2). This may be due to design on the part of the state, or to a confluence of factors beyond the state’s control.1 It may also be due to the faulty architecture of the treaty.2 Each of these reasons is relevant in conflict situations. As demonstrated by the four case studies, there have been occasions when state actors have intentionally coordinated cover-ups, or engaged in collusion, at times due to administrative practice. There are examples where the state has appeared to be struggling to cope with the gravity of the violations. The lack of clarity surrounding the requirements of the obligations concerning Article 2 has also contributed to non-compliance. This chapter assesses the right to an effective remedy (Article 13 of the ECHR) and provides recommendations on how to improve adherence to this provision, in conjunction with Article 2. Under the principle of subsidiarity, when a violation of the ECHR occurs, the duty to provide redress for victims rests with the offending state.3 The ECtHR only becomes involved when the state fails to fulfil this requirement and only to provide a binding judgment on the actions that the state should take to remedy the situation.4 The aim is to offer restitution in kind (restitutio in integrum), which requires ‘the removal of consequences of the breach and the re-establishment of the situation, which would in all probability have existed if the wrongful act had not been committed’.5 This is not always possible or desirable (eg cases where a death or life-changing injury occurred), and compensation or damages are offered.6 A declaratory judgment that a breach occurred can also offer redress.7

1 P Leach et al, Responding to Systematic Human Rights Violations: An Analysis of ‘Pilot-judgments’ of the ECtHR and Their Impact at National Level (Intersentia, 2010) 4. 2 M Byres, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press, 1993) 183. 3 Art 13, ECHR. 4 Art 46(1), ECHR. 5 M Martinot et al, The Competence of the ECtHR to Order Restitutio in Integrum and Specific Orders as Remedial Measures in the Case 46221/99 (AILC, 2000) 8. 6 ibid. 7 ibid.

156 Right to an Effective Remedy and Article 2 of the ECHR This chapter considers the remedies that are and should be available when the right to life was violated. In assessing the ECtHR’s jurisprudence, it analyses what is expected of an effective remedy, and the options available when such a remedy is not provided by a state. It considers the situation at a domestic and European level. It discusses the domestic remedies available—compensation, disciplinary sanctions, prosecutions, re-investigation, and revocation or amendment of laws. The failure to deliver or safeguard these remedies is prevalent during times of conflict. As evidenced by the four case studies, the uncertainty created by such a scenario can cause disruption to normal legal procedures, and the gravity of the violations can be difficult to deal with.

I. WHAT IS THE RIGHT TO AN EFFECTIVE REMEDY?

Article 13 safeguards the right to an effective remedy, stating that ‘everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation was committed by persons acting in an official capacity.’8 The purpose of Article 13 is to ‘guarantee the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.’9 The effect of this provision is: to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision.10

The scope of Article 13 varies depending on the nature of the applicant’s complaint under the ECHR;11 it is ‘context dependent’.12 The remedy ‘must be “effective” in practice as well as in law, in particular its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities of the respondent State’.13 To be effective, the remedy must be accessible; capable of providing redress in respect of their complaints; and offer reasonable prospects of success.14 Where it is alleged that a state has not fulfilled its Article 13 obligations, a claim can be made to that effect with the ECtHR. Such cases are common regarding the lack of remedies available for violations of Article 2 during times of conflict.

8

Art 13, ECHR. Orhan v Turkey (2002) para 383. 10 ibid; Akhmadova and Akhmadov v Russia (2008) para 103. 11 Akhmadova and Akhmadov v Russia (2008) para 103. 12 D Harris, Harris, O’Boyle and Warbrick (OUP, 2009) 769. 13 Orhan v Turkey (2002) para 383; Aksoy v Turkey (1996) para 95; Aydin v Turkey (1997) para 103; Kaya v Turkey (1998) para 89. 14 CoE, ‘Practical Guide on Admissibility Criteria’ (CoE, 2011) 17. 9

What is the Right to an Effective Remedy? 157 Certain prerequisites must be present for an applicant’s Article 13 claim to be admissible. First, the individual must have an ‘arguable claim’ to being the victim of a violation of a Convention right, such as Article 2.15 The claim only has to be arguable—the applicant does not have to prove beyond reasonable doubt that agents of the state carried out, or were otherwise implicated in, a killing.16 An arguable Article 13 claim can also emerge from the actions of non-state actors where ‘there is no avenue to effectively review the governmental policy which has led to interference with the right by the non-State actor’ or in ‘the absence of an effective remedy in private law against the non-State actor’.17 In such cases the state is responsible due to its collusion with the non-state actor or through its omissions that enabled the wrong by non-state actors to occur. Second, all domestic remedies must be exhausted.18 This latter prerequisite is of particular consequence in situations where there is conflict, when the lines may be blurred as to whether all domestic remedies were exhausted.

A. Exhaustion of Domestic Remedies The ECtHR ‘may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law’.19 The requirement to exhaust domestic remedies ‘is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the [ECtHR]’.20 On the assumption that the domestic legal order provides an effective remedy for violations of Convention rights, the ECtHR is intended to be only a subsidiary to the national systems safeguarding human rights.21 This honours the principle of subsidiarity and assists with limiting premature cases before the ECtHR. The exhaustion rule is described as ‘one that is golden rather than cast in stone’.22 This is particularly relevant regarding Article 2. Initially the exhaustion rule applied to Article 2 cases in the same manner as cases concerning other provisions of the ECHR. This required applicants to apply to the civil courts for findings of unlawful conduct and for an award of damages. The only exception was cases concerning alleged administrative practice,23

15 Bitiyeva and Others v Russia (2009) para 121; Akhmadova and Akhmadov v Russia (2008) para 103. 16 Nuray Sen v Turkey (No 2) (2004) para 192. 17 A Clapham, Human Rights Obligations of Non-State Actors (OUP, 2006) 9.1.13. 18 Art 35(1), ECHR. 19 ibid. 20 Schenk v Germany (2007), ‘General Considerations’. 21 ibid; A, B and C v Ireland (2010) para 142. 22 CoE (n 14) 16. 23 Aksoy v Turkey (1996) para 52.

158 Right to an Effective Remedy and Article 2 of the ECHR to avoid states ‘buying off ’ applicants.24 Donnelly v UK (1975)25 provides an example of how such prerequisites could hinder justice: it is almost always fatal to an applicant’s case that he or she has started civil legal proceedings in the domestic legal system. If these have resulted in the award of compensation (whether through settlement or judgment) the applicant will usually be deemed to have already received just satisfaction. If the proceedings have not yet been concluded domestic remedies will be deemed to have not yet been exhausted.26

In earlier Article 2 cases, the ECtHR did not examine further complaints where the family of a victim accepted civil damages. Nor did the Court view it as its role to establish the facts and liability for alleged unlawful acts. The ECtHR has become more receptive to examining whether an effective criminal investigation occurred.27 This became particularly important regarding the Chechen and Turkish-Kurdish cases. i. Exceptions to the Rule The lack of genuine investigations by state investigators, active discouragement of those attempting to pursue remedies by state actors, an official attitude of legal unaccountability towards state actions or omissions, and a lack of prosecutions against state actors for alleged violations of the right to life, all made it impossible to identify perpetrators.28 There are cases where the HCP has been adamant that effective remedies exist, but the applicants oppose this. For example, the Turkish government has insisted that there are no problems regarding effective remedies, that it conducts investigations and pursues criminal prosecution.29 The Russian government has also claimed that domestic remedies are available to victims of the Chechen conflicts, but that the applicants are unwilling to use them. These domestic remedies include giving applicants victim status. This affords procedural rights in criminal proceedings, and enables appeals and applications for compensation.30 These remedies exist within both domestic legal systems, but deficiencies within the investigations and the delays that follow (with no tangible results) mean that they are purely theoretical.31 The ECtHR has stated that ‘in the absence of the results of the criminal investigation, any other possible remedy becomes inaccessible in practice’.32 Thus a combination of effective criminal and civil domestic 24

K Reid, A Practitioner’s Guide to the ECHR (Sweet & Maxwell, 2011) 737. Donnelly and Others v UK (1975). 26 B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 146. 27 McKerr v UK (2001) paras 116–21. 28 Abubkara Amirov and Aïzan Amirova v Russian Federation (2009) para 6.1. 29 Mahmut Kaya v Turkey (2000) para 122; Kilic v Turkey (2000) para 89. 30 Sasita Israilova and Others v Russia (2010) para 134. 31 Mahmut Kaya v Turkey (2000) para 122; Kilic v Turkey (2000) para 89; Sasita Israilova and Others v Russia (2010) para 134. 32 Sultygov and Others v Russia (2014) paras 469–70; Akhmatov and Others v Russia (2014) para 244; Pitsayeva and Others v Russia (2014) para 481; Dzhabrailov and Others v Russia (2014) para 330; Dovletukayev and Others v Russia (2013) para 241; Kukayev v Russia (2007) para 117. 25

What is the Right to an Effective Remedy? 159 remedies must be available, with an effective criminal investigation as a must. This cements the link between Articles 2 and 13. Whether the domestic remedies are effective becomes a defining factor for whether otherwise inadmissible cases can become admissible. The ECtHR emphasised that: the application of the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. It is further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies.33

Stemming from this two exceptions to the exhaustion rule were developed, via the introduction of cases concerning the internal conflicts in southeast Turkey and Chechnya to the ECtHR’s agenda. First, where victims are vulnerable due to state control, the onus is on public prosecutors to find facts, identify perpetrators and bring prosecutions. Such victims cannot protect themselves from the power of the state, due to their situation (eg they are in state custody or detention).34 Vulnerable victims can join such criminal proceedings as civil parties, but if the proceedings are rendered ineffective by defects in the investigation, an application can be brought to the ECtHR.35 Second, there is ‘no obligation [on the applicant] to have recourse to remedies which are inadequate or ineffective’.36 The exhaustion of remedies rule is ‘inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities was shown to exist, and is of such a nature as to make proceedings futile or ineffective’.37 The deciding factor for whether these special circumstances apply is whether these circumstances hinder an effective investigation. If the answer is yes, the ECtHR has jurisdiction to consider the case, irrespective of whether the domestic remedies available are exhausted. These two concessions are not immediately obvious within the ECHR.

33 Estamirov and Others v Russia (2006) para 74; Akdivar and Others v Turkey (1996) para 69; Aksoy v Turkey (1996) paras 53–54. 34 A Timmer, ‘A Quiet Revolution: Vulnerability in the ECtHR’ in M Albertson and A Grear, Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate Publishing, 2014) ch 9. 35 McKerr v UK (2001) paras 117–21. 36 Akdivar and Others v Turkey (1996) para 67; Khashiyev and Akayeva v Russia (2005) paras 116–17; Isayeva and Others v Russia (2005) paras 152–53. 37 Ireland v UK (1978) para 159; Akdivar and Others v Turkey (1996) para 67; Khashiyev and Akayeva v Russia (2005) paras 116–17; Isayeva and Others v Russia (2005) paras 152–53.

160 Right to an Effective Remedy and Article 2 of the ECHR II. THE SPECIAL RELATIONSHIP BETWEEN THE DUTY TO INVESTIGATE SUSPICIOUS DEATHS AND THE RIGHT TO AN EFFECTIVE REMEDY

As Article 2 case law developed and the prevalence of ineffective investigations became more apparent (particularly during times of conflict) the European judicial bodies had to consider the relationship between Articles 2 and 13 of the ECHR. The main issue was reaching a consensus on whether the procedural obligation of Article 2 to investigate suspicious deaths and the right to an effective remedy under Article 13 were two separate entities. Although there is no doubt that they are connected, they have different purposes. In other words, ‘the overlap [between Articles 2 and 13] is considerable, even if it is not complete’.38 An Article 2 investigation aims to establish what happened with a view to assigning accountability and ensuring that a similar violation does not happen in the future. This is for the benefit of the wider community, though it can lead to the identification of the perpetrator(s) in an individual case, thus providing a link to Article 13. The idea of redress, which is provided for in Article 13, is an individualistic concept. It has the purpose of returning the victim(s) to the position they were in before they were wronged. This can involve an element of investigation which leads to a cross-over with Article 2, but it can be wider than this to include: compensation; disciplinary sanctions; prosecutions; and reform of legislation. This distinction is supported in the ECtHR’s jurisprudence. The Court found that ‘the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation into the disappearance of a person at the hands of the authorities’.39 According to the ECtHR, the procedural protection of the right to life in Article 2 has the limited aim of securing: the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the force used was or was not justified in a particular set of circumstances.40

This obligation also extends to force used by non-state actors. The ECtHR does not clarify what it means by ‘accountability’, other than that it is with a view to establishing whether these acts and omissions can be justified in a particular set of circumstances.41 The lack of a clear definition is not surprising, as ‘accountability is a far-from consensual concept’42 that is ‘not static’. It is ‘used in many contexts’.43 It is broadly understood to mean ‘being held to account’ through looking

38 E Brems, ‘Procedural Protection: An Examination of Procedural Safeguards Read into Substantive Convention Rights’, in E Brems and J Gerards, Shaping Rights in the ECHR: The Role of the ECtHR in Determining the Scope of Human Rights (CUP, 2014) 157. 39 Orhan v Turkey (2002) para 384; Kilic v Turkey (2000) para 93. 40 Kaya v Turkey (1998) para 87. 41 ibid para 87; Gülec v Turkey (1998) para 78. 42 S Mainwaring and C Welna, Democratic Accountability in Latin America (OUP, 2003) 6. 43 ibid.

The Special Relationship between the Duty to Investigate Suspicious Deaths 161 at individual responsibility, the public interest and institutional checks and balances.44 This broad definition is reflected in the ECtHR’s contextual approach. It is the ‘effective’ element of Article 13, in conjunction with Article 2, that entails ‘in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure’.45 This is exemplified in the ECtHR’s statement that: in circumstances where … the criminal investigation into suspicious deaths was ineffective in that it lacked sufficient objectivity and thoroughness, and where the effectiveness of any other remedy that may have existed, including the civil remedies suggested by the government, was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention.46

This is in addition to a violation of Article 2. Consequently, there is a clear partnership between Articles 2 and 13, in terms of requiring effective redress for a violation of Article 2.

A. The ECtHR’s Struggle with the Special Relationship The European judicial bodies struggled to grapple with the special relationship and the distinct roles that Articles 2 and 13 have. For example, ‘in early caselaw of the Convention bodies, Article 13 of the ECHR did not receive a lot of attention’.47 This is reflected in the earlier Article 2 cases, where the ECommHR and the Chambers of the ECtHR found that there was no separation between the two articles; thus when a violation of Article 2 was found, there was no need to consider Article 13 as a separate issue.48 These findings were opposed by the Grand Chamber of the ECtHR, which ruled that the two articles should be dealt with separately.49 This was justified on the ground that the Article 13 obligation to conduct an effective criminal investigation is ‘stricter’ than the Article 2 investigatory obligation.50 Additionally, it must be established whether the remedies other than an effective investigation (eg compensation) are available in theory and practice;51 at which point it becomes an Article 13 (as opposed to Article 2) 44 R Mulgan, ‘Accountability: An Ever-Expanding Concept?’ (2000) 78(3) Public Administration 555, 571. 45 Kaya v Turkey (1998) paras 106–07; Aksoy v Turkey (1996) para 98; Aydin v Turkey (1997) para 103; Orhan v Turkey (2002) para 383; Kukayev v Russia (2007) para 117. 46 Isayeva v Russia (2005) para 229. 47 M Kuijer, ‘Effective Remedies as a Fundamental Right’, Seminar on Human Rights and Access to Justice in the EU, Escuela Judicial Espanol and European Judicial Training Network Barcelona, 28–29 April 2014, 3. 48 Kaya v Turkey (1998) para 52; Ergi v Turkey (1998) para 98; Yasa v Turkey (1998) para 115; Öneryildz v Turkey (2004) paras 153–55. 49 ibid. 50 Yasa v Turkey (1998) para 115. 51 Öneryildz v Turkey (2004) paras 153–55.

162 Right to an Effective Remedy and Article 2 of the ECHR issue. Despite this distinction, different cases experienced different outcomes. These are identified as: 1) there is a violation of the Article 2 procedural obligation and of Article 13;52 2) there is a violation of the Article 2 procedural obligation, but not of Article 13;53 or 3) there is a violation of the procedural obligation of Article 2 and Article 13 is not regarded as a separate issue.54 These different approaches are not unique to these two provisions, and can arise in any case where violations from separate provisions are alleged. It became apparent that a violation of Article 2, but not Article 13, can be found by looking at whether the civil proceedings are ECHR-compliant.55 Using a comparison between NI and Turkey, the former’s civil proceedings were deemed compliant, as they were independent of the criminal proceedings. The same could not be said for Turkey, as the Turkish PP’s fact-finding function was essential to any attempt to engage in civil proceedings. On that basis Turkey was frequently found to be in violation of Articles 2 and 13.56 The ECtHR pinpointed that if an award of compensation is not enforceable, it becomes a violation of both Articles 2 and 13.57 In order to determine whether Article 2 and Article 13 have been violated, it is necessary to assess whether a state’s criminal and civil procedures satisfy both provisions. The ECtHR reached the conclusion in non-conflict-related cases that there is no separate issue to be dealt with where a violation of the procedural obligation of Article 2 has been determined. In such cases, a declaration of only an Article 2 violation is sufficient. This is regrettable. The ECtHR, as the principal guardian of the ECHR, has a duty to give both of the relevant articles due consideration. If admissible submissions are put forward by the applicants concerning Article 13, they should be considered. Otherwise this sends a confused message about the separate roles and obligations of each Article. It may be that no violation of Article 13 is found, but it should at least be analysed. It is warned that: the reason for this position is not political. It may be a form of judicial economy—an economy of effort, avoiding issues that might be seen as controversial. It may be that the

52 Tanrikulu v Turkey (1999) paras 63 and 119; Mahmut Kaya v Turkey (2000) para 126; Timurtas v Turkey (2000); Akkoc v Turkey (2000) para 105; Tas v Turkey (2000) para 93; Isayeva, Yusupova and Bazayeva v Russia (2005) para 239; Khashiyev and Akayeva v Russia (2005) para 186; Luluyev v Russia (2006) para 140; Baysayeva v Russia (2007) para 158; Akhmadova and Sadulayeva v Russia (2007) para 128; Alikhadzhiyeva v Russia (2007) para 95; Musayeva and Others v Russia (2007) para 175; Kukayev v Russia (2007) para 118. 53 McKerr v UK (2001) para 176; Hugh Jordan v UK (2001) para 65; Kelly and Others v UK (2001) para 159; Shanaghan v UK (2001) para 140; McShane v UK (2002) para 146; Paul and Audrey Edwards v UK (2002) para 101. 54 Nachova and Others v Bulgaria (2004) para 146; Nesibe Haran v Turkey (2005) para 91; R amsahai and Others v the Netherlands (2007) para 438; Tarariyev v Russia (2006) para 103; Ramsahai and Others v the Netherlands (2005) para 363; Feyzi Yildirim v Turkey (2007) para 96; Brecknell v UK (2007) para 84; Kosumova v Russia (2014) para 98. 55 McKerr v UK (2001) paras 172–76. 56 Tanrikulu v Turkey (1999) paras 63 and 119; Mahmut Kaya v Turkey (2000) para 126; Timurtas v Turkey (2000); Akkoc v Turkey (2000) para 105; Tas v Turkey (2000) para 93. 57 Paul and Audrey Edwards v UK (2002) para 101.

Domestic Remedies 163 Court’s goal is to determine whether there has been a violation of the ECHR. Once it has determined that, what difference does it make if it is one violation or 25? Or it could be due to displacement activity. This is where the Court decides that when they have heard the evidence that there is clearly a violation, but instead of addressing the issue at the heart of the violation they think that could be a little tricky, so they find a less controversial violation.58

The ECtHR’s jurisprudence has a key role to play in understanding the ECHR and guiding states’ implementation of its obligations. The opportunity to do so is limited, as the Court can only deal with what is brought before it. Therefore, it should seize every opportunity. No further violations may be uncovered, but the judgments could nevertheless serve as valuable precedents. It was suggested by some ECtHR’s judges that Article 13 ‘should be considered more thoroughly’.59 The ECtHR should take the necessary steps (including considering the merits of all admissible Article 13 claims) to eradicate any remaining confusion over the special relationship between Articles 2 and 13.

III. DOMESTIC REMEDIES

Under the principle of subsidiarity, the primary source of redress is to be domestic remedies. Domestic remedies can be divided into civil and criminal—a criminal penalty is harsher than a civil sanction.60 Civil remedies are designed to return the victims to the position they were in before they were wronged. They include compensatory damages, injunctions, court orders, or a declaratory judgment.61 Criminal sanctions aim to use punishment ‘to bring about certain human behaviour which the legislator considers to be desirable’.62 They include imprisonment and fines.63 A criminal sanction ‘should be harsh enough to convince citizens not to commit the crime, but not so harsh as to make judges and juries reluctant to convict those accused of the crime’.64 Despite these differences, civil and criminal remedies work in partnership. Civil remedies are ‘procedures and sanctions, specified by civil statutes and regulations, used to prevent or reduce criminal problems and incivilities’.65 Both remedies ‘serve the purpose of prevention by deterrence’.66 This partnership is relevant to violations of Article 2, particularly during times of conflict, when impunity is prevalent and any form of deterrent is crucial.

58

F Hampson, School of Law, University of Essex, interviewed 11 July 2014. W v UK (1987), dissenting judgment of Judges Pinheiro Farinha and De Meyer; Kudla v Poland (2000) paras 147–49. 60 B Melton, The Law (Infobase Publishing, 2010) 68. 61 Legal Information Institute, ‘Remedy’, www.law.cornell.edu/wex/remedy. 62 H Kelsen, General Theory of Law and State (The Lawbook Exchange Ltd, 2009) 50. 63 Melton (n 59) 128. 64 ibid, 68. 65 LG Mazerolle and J Roehl, ‘Civil Remedies and Crime Prevention: An Introduction’ (1998) 9 Crime Prevention Studies 1. 66 Kelsen (n 61) 50. 59

164 Right to an Effective Remedy and Article 2 of the ECHR IV. REMEDIES PROVIDED BY THE ECHR

Where remedies are not offered or are ineffective at a domestic level the ECtHR can step in, primarily by ordering just satisfaction. This is incorporated into Article 41 of the ECHR: if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the HCP concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

Just satisfaction is monetary in form and is only awarded for suffering that is experienced due to a declared violation. It includes: pecuniary damage; non-pecuniary damage; and costs/expenses. Pecuniary damage is the compensation ‘for both loss actually suffered (damnum emergens) and loss, or diminished gain, to be expected in the future (lucrum cessans)’.67 Non-pecuniary damage is ‘intended to provide financial compensation for non-material harm, for example mental or physical suffering’.68 Costs/expenses are the reimbursement of the costs and expenses incurred by the applicant at the domestic and European level in trying to prevent the violation from occurring, or in trying to obtain redress.69 On rare occasions the ECtHR can also order restitution of property, the release of a person unlawfully detained, or, when capital punishment was used in Europe, removal of a person from death row.70 Honouring the principle of subsidiarity, the ECtHR operates under the precept that it is ‘not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46’.71 Article 46(1) provides that states must abide by the final judgment of the ECtHR ‘in any case to which they are parties’. The duty to supervise the execution of the ECtHR’s judgments is placed on the CoM by Articles 46(2) and 46(5). The remaining two provisions of Article 46 state that: 3) If the CoM considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee. 4) If the CoM considers that a HCP refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

67 CoE, ‘Just Satisfaction’, www.coe.int/t/dghl/monitoring/execution/Themes/Satisfaction_ equitable/Article_41/Intro_en.asp. 68 ibid. 69 ibid. 70 P Leach, Taking a Case to the ECtHR (OUP, 2005) 405–07. 71 Broniowski v Poland (2004) para 193.

Remedies Provided by the ECHR 165 There is an over-reliance on subsidiarity, particularly concerning conflict scenarios where the violations are grave and repetitive indicating that the respondent state has no intention of changing its ways. The Court accepts that individual measures and ‘general measures at [a] national level are undoubtedly called for [in cases of systematic violations] … which must take into account the many people affected’.72 This is reflected by the introduction of the pilot judgment procedure and the ECtHR’s increasing acknowledgment that systematic violations are occurring and need to be addressed. Article 46 places an obligation on the respondent state: not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the CoM, the general and/or, if appropriate individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects. Furthermore, subject to monitoring by the CoM, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.73

The ECtHR struck a balance between ensuring effective remedies that have a practical impact and honouring the principle of subsidiarity. Individual measures apply to the individual applicant and are required ‘if the violation continues to have adverse effects which have not been offset by the just satisfaction awarded’.74 Similar to just satisfaction, they are aimed at returning the individual to the position before the violation.75 General measures apply more broadly and are aimed at preventing further similar violations that are sometimes difficult to define and implement.76 The process involves the national authorities making a detailed examination of the causes of the violation. For example, if it was caused by domestic legislation or the lack of legislation, the law must be reformed. Or if it is a problem of judicial practice, this needs to be reconfigured.77 The ECtHR decides what form of measures need to be taken, and how the execution of the judgment is monitored and enforced by the CoM within the CoE.78

A. The Supervision of the Execution of the ECtHR’s Judgments The process for supervising the execution of the ECtHR’s judgments is that the CoM (assisted by the Department for the Execution of the ECtHR judgments 72

ibid, para 193. Scozzari and Giunta v Italy (2000) para 249. 74 CoE, ‘Just Satisfaction’, www.coe.int/t/dghl/monitoring/execution/Themes/Satisfaction_ equitable/Article_41/Intro_en.asp. 75 CoM, ‘Supervision of the Execution of Judgments of the ECtHR: Annual Report 2007’ (CoE, April 2008) 16. 76 ibid; CoE, ‘General Measures: Information from Cases Closed’, www.coe.int/t/dghl/monitoring/ execution/Documents/MGindex_en.asp. 77 CoE, ‘General Measures: Information from Cases Closed’, www.coe.int/t/dghl/monitoring/ execution/Documents/MGindex_en.asp. 78 Arts 46(2) and 46(5), ECHR 1950. 73

166 Right to an Effective Remedy and Article 2 of the ECHR (DEECHR)) ensures continuous supervision of the execution of the Court’s judgments and decisions. Cases remain under the CoM’s supervision until the required measures are taken, then the supervision is closed by a final resolution. This involves the CoM monitoring the respondent state’s action plans and closing action report. During this time applicants, non-governmental organisations and national institutions can submit communications on the state’s progress or lack thereof. There are two tracks of supervision—standard procedure and enhanced procedure. The standard procedure is monitored primarily by the DEECHR and the enhanced procedure is the responsibility of the CoM, which can conduct debates on these special cases. Systematic violations, significant delays and pilot judgments are usually subject to the enhanced procedure. The DEECHR also provides legal expertise, roundtables and training programmes, which are financed through the Human Rights Trust Fund. This was set up in March 2008 and is voluntarily financed by HCPs for the purpose of enhancing the execution of judgments.79 Where there is insufficient progress the CoM can make recommendations and interim resolutions to assist execution. These recommendations would usually comment on the measures adopted to date and pinpoint areas that require further action. The CoM can also refer the case back to the ECtHR using Articles 46(3) and 46(4). These measures, particularly Article 46(4), are under-utilised. The PACE also has a role to play. It has the power to ‘conduct probes into new human rights violations’, ‘inspire new national laws’, ‘request legal opinions on laws and constitutions of Members States’, and ‘sanction Member States by recommending expulsion or suspension’.80 The PACE considered the human rights situations in the four case studies,81 though there is a notable political aspect to how it deals with each state. The CoE Commissioner for Human Rights is an additional avenue for encouraging compliance with the execution of judgments. The Commissioner is an independent institution within the CoE mandated to, inter alia, foster effective observance of human rights and assist HCPs in the implementation of human rights standards, identify possible shortcomings in the law and practice concerning human rights, and provide advice.82 The Commissioner conducted visits to the jurisdictions concerning the four case studies, particularly focusing on Turkey and Russia. 79 CoE, ‘The Human Rights Trust Fund’, www.coe.int/t/dghl/humanrightstrustfund/default_en.asp; CoM, Supervision of the Execution of Judgments of the ECtHR: Annual Report 2007 (CoE, 2008) 16. 80 CoE, ‘The Powers of the Assembly’, http://website-pace.net/en_GB/web/apce/powers. 81 PACE, ‘Recommendation 599 (1975): Situation in Spain’, 2 October 1975; PACE, ‘Resolution 985 (1992): Situation of Human Rights in Turkey’, 30 June 1992; PACE, ‘Recommendation 1201 (1999): The Conflict in Chechnya’, 4 November 1999; PACE, ‘Recommendation 1444 (2000): The Conflict in Chechnya’, 27 January 2000; PACE, ‘Resolution 1389 (2004): The CoE and the Conflict in NI’, 7 September 2004; PACE, ‘Resolution 1381 (2004): Implementation of Decisions of the ECtHR by Turkey’, 22 June 2004. 82 CoE, ‘Commissioner for Human Rights: Mandate’, www.coe.int/en/web/commissioner/mandate.

Types of Remedy 167 V. TYPES OF REMEDY

The main types of remedies available are compensation and damages, disciplinary sanctions, prosecutions, re-investigation and legislative reforms. The four case studies illustrate how ensuring these remedies are effective can be particularly challenging during times of conflict. This has a negative impact on states’ adherence to their obligations under Articles 2 and 13—to tackle unjustified killings and provide effective redress to the victims. The four case studies also provide examples of the measures (if any) that were taken to counter these challenges.

A. Compensation and Damages Compensation and damages are civil sanctions. There is no right to compensation within the ECHR (except in Article 5(5) of the ECHR), but it is viewed as an element of providing an effective remedy.83 It is warned that: using civil statutes to get at hard-to-reach criminal behaviour will not by itself solve most crime problems. Some types of crime are simply not susceptible to civil sanctions; other crimes can be prevented only with a combination of criminal prosecution, civil remedies, and still other responses such as enforcement of municipal health and safety codes, or administrative action by State and local regulatory agencies.84

The ECtHR found that compensation (or at least the possibility of seeking compensation) for the damage sustained is a required component of an effective remedy, but cannot be the only remedy.85 With reference to Article 2: an action of damages, either to provide redress for the death or for the breach of official duty during the investigation, is not capable, without the benefit of the conclusions of a criminal investigation, of making any findings as the identity of the perpetrators and still less of establishing their responsibility.86

This is true for unjustified killings due to a state’s acts or omissions, particularly during times of conflict when it is difficult to obtain and implement remedies. The ECtHR further ruled that civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of state agents does not resolve the issue of effective remedies in the context of claims brought under Article 2. Applicants are ‘not obliged’ to pursue the civil remedies available. Furthermore: a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints 83

McGlinchey v UK (2003). P Finn, Using Civil Remedies for Criminal Behaviour: Rationale, Case Studies and Constitutional Issues (DIANE Publishing, 1994) 6. 85 Gäfgen v Germany (2010) paras 118–19. 86 Jelic v Croatia (2014) para 64; Akhmadova and Sadulayeva v Russia (2007) para 78; Khashiyev and Akayeva v Russia (2005) paras 119–21; Estamirov and Others v Russia (2006) para 77. 84

168 Right to an Effective Remedy and Article 2 of the ECHR under those Articles, an applicant would be required to exhaust an action leading only to an award of damages.87

In the past, mixed messages were conveyed by the ECtHR finding that if applicants went to the civil courts and were awarded compensation, they lost their victim status before the European system.88 Civil actions play a role in easing the pain and suffering of families and, where appropriate, contribute towards a state’s fulfilment of its Article 13 obligations. Despite the limitations of civil remedies, ‘you will find that using civil remedies offers significant benefits’.89 As the four case studies show, this commitment can be lacking, particularly during times of conflict. i. Withholding Compensation at a Domestic Level Each of the jurisdictions explored by this book provides for damages against wrongful acts by the state.90 Yet in Spain, Russia, the UK and Turkey the approach to paying damages in practice was different. Spanish aid programmes for the victims of terrorism were in place since 1988.91 In 1999 it was announced that these aid programmes would be extended to damages for those who suffered physical and mental injury resulting in death or serious, permanent or semi- permanent incapacity during acts of terrorism or acts perpetrated by the members of armed bands, including the BVE and GAL.92 This is enacted in the Basque Law on the Recognition and Reparation for Victims of Terrorism 4/200893 and Spanish Act 29/2011 on the Recognition and Integral Protection of Victims of Terrorism.94 These laws were criticised, as: only a small number of deaths are acknowledged and compensated under these laws. Others that reasonably apply for a remedy under these laws are denied compensation. 87

Estamirov and Others v Russia (2006) para 77; Yasa v Turkey (1998) para 74. Kelly and Others v UK (2001) paras 107 and 110. 89 Finn (n 83) 6. 90 For the Basque Conflict: Arts 109–15 of the Spanish Criminal Code 1995; Arts 7(2) and 121, Spanish Civil Code 2009; Art 133(8) of the French Criminal Code; Art 706(3) of the French Code of Criminal Procedure 2000. For the Chechen conflict: Arts 52 and 53 of the Russian Constitution; Arts 151, 1069, 1070, 1099 and 1101 of the Civil Code of the Russian Federation 1996. For the NI conflict: Law Reform (Miscellaneous Provisions) Act 1947 (NI); Fatal Accidents (NI) Act 1977; Criminal Injuries Compensation (NI) Order 2002; Garda Síochána (Compensation) Act 1941; the Garda Síochána (Compensation) (Amendment) Act 1945; Arts 48 and 49 of the Civil Liability Act 1961; s 6, Criminal Justice Act 1993. For the Turkish-Kurdish conflict: Art 125(7) of the Art 41, Law No 818, Turkish Code of Obligations of 22 April 1926; Constitution of the Republic of Turkey 1982; s 13 of Law No 2577 of 6 January 1982; Art 25, Law No 4721 of the Turkish Civil Code 2001; Law No 6098, Turkish Code of Obligations of 4 February 2011. 91 Decree 221/1988 of 4 August 1988, as amended in 1991, 1993 and 1995; Decree 107/2000 of 13 June 2000; Decree 214/2002 of 24 September 2000; Decree 313/2002 of 30 December 2002; Law 4/2008 of 19 June 2008. 92 AI, ‘Spain: A Briefing on Human Rights Concerns in Relation to the Basque Peace Process’, June 1999, p 10. 93 Basque Law on the Recognition and Reparation for Victims of Terrorism 4/2008, 19 June 2008. 94 Spanish Act 29/2011 on the Recognition and Integral Protection of Victims of Terrorism, 22 September 2011. This replaces Spanish Act 32/1999 on the Solidarity with Victims of Terrorism, 8 October 1999. 88

Types of Remedy 169 the basis for the denial is insulting. The State denies contributing to their deaths. It is claimed that the victims are members of ETA. These claims are based on pure conjecture, with no confirmation that the victims belonged to any armed group. The result is that the victims who have been killed as a result of State acts and omissions are blamed for their deaths. Their relatives also face questions over their own political activities.95

There were successes before the Spanish courts. Following the conviction of 12 state officials for GAL’s operations (including former Spanish Interior Minister Jose Luis Barrionuevo Peña, Spanish police officers and ministry officials), the families of all 28 recognised victims and Segundo Marey (a businessman who was mistakenly kidnapped and released) received monetary compensation from the state.96 However: according to the Egiari Zor Foundation, which has conducted research into this issue, there are at least 55 victims of unjustified State killings who have been denied compensation on the unfounded basis that the victims were members of ETA. This has meant that there are at least 55 deaths that the State is denying responsibility for, despite evidence of State involvement.97

No Article 2 claim came before the ECtHR regarding these state killings. The ECtHR was not a form of appeal considered at the time, but lawyers have not ruled out bringing cases in the future.98 Questions of impunity remain in relation to the changes to Peña’s convictions and the early release of those that were imprisoned. Claimants experienced excessive and prohibitive delays regarding civil cases for Russia’s actions in Chechnya.99 For example, on 26 March 2002 the seventh applicant in Kaykharova v Russia (2013)100 brought civil proceedings against the Russian government claiming non-pecuniary damage caused as the result of the abduction and killing of his wife by state agents. By the time of the ECtHR’s judgment (more than 10 years later), there was still no information about the outcome of the civil proceedings.101 Regarding the Troubles in NI, the UK voluntarily paying compensation to victims’ families was considered,102 and successful civil court cases were not uncommon.103 A range of victim-based services were also introduced (eg the Victims and Survivors Service (VSS);104 the Commission 95 I Urizar, Behatokia interviewed 8 January 2015; D Albin, ‘El Gobierno criminaliza a las víctimas del terrorismo de Estado’, 18 September 2014. 96 R Alonso and F Reinares, ‘Terrorism, Human Rights and Law Enforcement in Spain’, in M Ranstorp and P Wilkinson (eds), Terrorism and Human Rights (Routledge, 2013) 258. 97 Urizar (n 94); Albin (n 94). 98 Urizar (n 94). 99 Kaykharova and Others v Russia (2013) para 95. 100 ibid. 101 ibid, Judgment of 1 August 2013, para 95. 102 D McKittrick, ‘Cost of the Troubles: £40m for victims’ compensation, £170m for inquiries’, The Independent, 24 January 2009. 103 H McDonald, ‘Six men’s families compensated for delayed Troubles killings inquests’, The Guardian, 20 May 2014. 104 The VSS is a governmental body established in April 2012 under the Superannuation (Victims and Survivors Service Limited) Order (NI) 2012 tasked with: 1) reviewing the needs of the individual victims and survivors and 2) allocating resources to organisations that provide services and support to victims and survivors.

170 Right to an Effective Remedy and Article 2 of the ECHR for Victims and Survivors (CVS);105 and the Compensation Agency (which was later replaced by the Criminal Injuries Compensation Scheme (CICS)).106 With the exception of the Compensation Agency, these assertions of state responsibility at a domestic level only took root post-conflict. Regarding the Turkish-Kurdish conflict, potential claimants find it impossible to claim compensation because the civil proceedings cannot be initiated until the criminal proceedings are complete.107 Turkish investigations and criminal proceedings are subject to excessive delays. There were moves to address this, such as the Compensation of Losses Resulting from Terrorism and from Measures Taken Against Terrorism Act 2004. This new law makes provision for receiving compensation for ‘damage resulting from injury, physical disability and death and expenditure incurred for medical treatment and funeral expenses’.108 The ECtHR accepted this as an effective domestic remedy.109 There are two potential issues with this law, given the culture of intimidation and impunity within Turkey. First, the requirement that applicants must apply for compensation within 60 days of the date on which knowledge was obtained of the incident causing damage and, in any event, within one year of the impugned incident.110 Given the lack of trust towards state bodies within the Kurdish community in Turkey and the trauma that flows from incidents such as unlawful killings, this is a relatively short period of time for relatives to be in the emotional position to apply for compensation. Accepting compensation can be viewed as acceptance of what has happened.111 Similar to the mourning process, acceptance can take time. There can also be a stigma attached to accepting compensation—a sense that the payment is a pay-off without justice, which to some equates to complicity in the state’s actions. Second, compensation is awarded on the basis that the applicants accept a friendly settlement. This can rule out the possibility of pursuing criminal proceedings and contributes to the culture of impunity that surrounds the Turkish-Kurdish conflict.112 The reason for these failings could be a lack of resources, as during times of conflict law enforcement and judicial bodies are often stretched. It could also

105 The CVS aims to promote the interests of victims and survivors. This public body was established in May 2008 under the Victims and Survivors (NI) Order 2006, as amended by the Commission for Victims and Survivors Act (NI) 2008. 106 The CICS is a branch of the NI DoJ, formerly known as the Compensation Agency. The former agency was established in the 1970s before it was replaced by the Scheme on 1 April 2013. 107 Aktas v Turkey (2003) para 260. 108 s 7, Law No 5233, Law on Compensation for Losses resulting from Terrorism and the Fight Against Terrorism’, 14 July 2004. 109 Icyer v Turkey (2006) paras 77 and 82. 110 ibid, para 48. 111 R Bowker, Palestinian Refugees: Mythology, Identity, and the Search for Peace (Lynne Rienner Publishers, 2003) 106; P Misselwitz and T Rieniets, City of Collision: Jerusalem and the Principles of Conflict Urbanism (Walter de Gruyter, 2006) 237. 112 H Öndül, IHOP in Turkey interviewed 9 September 2013; anonymous lawyer in Turkey interviewed 10 September 2013.

Types of Remedy 171 be that the state is using the confusion that usually comes with conflict to avoid admitting responsibility for certain acts or omissions. The ECtHR stated that this is not acceptable.113

B. Disciplinary Sanctions There must be a ‘deterrent effect’ within the domestic judicial system with the aim of preventing violations of Article 2.114 The ECtHR ruled that ‘where State agents have been charged with offences involving ill-treatment, it is important that they should be suspended from duty while being investigated or tried and should be dismissed if convicted’.115 This principle extends to cases where a state agent was charged with grave crimes and provides guidance as to the least that is expected in such cases.116 Regarding the imposition of punishments, the ECtHR acknowledged that it is not its job to ‘address issues of domestic law concerning criminal responsibility, or to deliver guilty or not guilty verdicts’ and that it grants ‘substantial deference to the national courts in the choice of appropriate sanctions’.117 The ECtHR also confirmed that it must exercise ‘a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed’.118 Otherwise, ‘the State’s duty to carry out an effective investigation would lose much of its meaning’,119 thereby interweaving the processes of investigation and redress. This illustrates the special relationship between Articles 2 and 13. For example, in Ali and Ayse Duran v Turkey (2008)120 four police officers were found guilty of torturing a man to death eight years previously, and sentenced to three years’ imprisonment. The four defendants were dismissed from service and not imprisoned. The ECtHR found that merely dismissing the police officers was not proportionate to the gravity of the offence and that the ordered punishment should be imposed. This led the ECtHR to conclude that ‘while there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences … to go unpunished’.121 Thus, where a punishment is imposed by the national courts and is justifiable it should be implemented.

113

Mahmut Kaya v Turkey (2000) para 107. Ali and Ayse Duran v Turkey (2008) para 62. 115 Gäfgen v Germany (2010) para 125; Abdülsamet Yaman v Turkey (2004) para 55; Nikolova and Velichkova v Bulgaria (2007) para 63; Ali and Ayse Duran v Turkey (2008) para 64. 116 Abdülsamet Yaman v Turkey (2004) para 55; Ali and Ayse Duran v Turkey (2008) para 64. 117 Ali and Ayse Duran v Turkey (2008) para 66; Gäfgen v Germany (2010) para 123. 118 Ali and Ayse Duran v Turkey (2008) para 66; Gäfgen v Germany (2010) para 123; Armani da Silva v UK (2016) para 285. 119 Gäfgen v Germany (2010) para 123. 120 Ali and Ayse Duran v Turkey (2008). 121 ibid, para 61. 114

172 Right to an Effective Remedy and Article 2 of the ECHR Some form of accountability is important, particularly during times of conflict when impunity is rife and adherence to Article 2 is improbable (as shown by the four case studies). The right to life is a core right from which other rights emerge. It is viewed as ‘one of the most fundamental provisions in the ECHR’.122 Therefore, robust responses are needed towards unlawful, particularly criminal, taking of life. Once a life is lost there is no going back. To leave this unaddressed sends a message that unlawful killings are acceptable.

C. Prosecutions The available criminal law remedies must be capable of altering the course of an investigation.123 There are occasions where the outcome of an investigation appears to be pre-determined. The ECtHR requires that an investigation is sufficiently independent and thorough to lead to an honest account of what happened. The question arises whether it is enough to offer the possibility of lodging a disciplinary complaint against the state official involved, or whether there is a duty to prosecute. The term ‘criminal-law remedy’124 was portrayed as willingness by the ECtHR to assume a right to have certain serious violations of the right to life prosecuted.125 Ress J favours the deterrence rationale, leaving it to the state to choose between strict disciplinary measures and protection of the criminal law against unintentional homicide.126 In consideration of the ECtHR’s findings, ‘it seems that there is no unanimity within the Court as to whether there is an individual right to criminal justice’.127 Assessing other jurisprudence, there is truth in this conclusion. In Perez v France (2004) the ECtHR ruled that: the Convention does not confer any right, as demanded by the applicant, to ‘private revenge’ or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a ‘good reputation’. In any event, the waiver of such a right must be established, where appropriate, in an unequivocal manner.128

The eviction case Sandra Jankovic v Croatia (2009) further clarifies that a victim must be offered the possibility of pursuing prosecution (subject to the circumstances of the case), but is not guaranteed prosecution.129 The ECtHR stated that 122

McCann v UK (1995) paras 147 and 150. Sirin Yilmaz v Turkey (2004) para 86. 124 Vo v France (2004) para 87. 125 A Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP, 2009) 149. 126 Vo v France (2004), Dissenting Opinion of Judge Ress, paras 1, 2 and 9. 127 Seibert-Fohr (n 124) 149. 128 Perez v France (2004) para 70. 129 Sandra Jankovic v Croatia (2009) para 50. 123

Types of Remedy 173 ‘there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, [but] the national courts should not under any circumstances be prepared to allow offences concerning violent deaths to go unpunished’.130 In other words, a lack of prosecution or conviction will not be decisive, as long as the authorities took reasonable steps to secure the relevant evidence,131 avoided unduly delays132 and refrained from enabling the perpetrator to escape accountability.133 Therefore, a victim does not have a right to prosecution. The reason may be that a prosecution is not always appropriate, as not all breaches of human rights equate to a criminal offence. There may be a lack of evidence, even in cases where all reasonable steps were taken to amass the evidence in good faith.134 It may be that the complaint relates to an event too far back in time. The wisdom of imposing a duty to prosecute is questionable. National legal regimes are imbalanced and history shows that ECtHR judgments make little difference to prosecution rates. The counter-argument is that the role of the ECtHR is to offer individual protection against human rights violations, create a reasonable level of protection of human rights for everyone in Europe, create awareness on a state level of (structural) shortcomings in the domestic system of human rights protection and remove blind spots.135 It would not be fulfilling this role if it avoided unpopular issues or promoted immunity from prosecution. References are made to the requirement on the state to not only offer payment of compensation for violations, but to do ‘enough to prosecute and punish those responsible’ [emphasis added].136 This does not necessarily create a duty to prosecute, but is a further confirmation of the duty on states to offer the possibility of prosecution. It could be that there is a right to prosecution in certain extreme cases, as alluded to in Vo v France (2004).137 This is something that the ECtHR has yet to clarify. This lack of clarification highlights why the Court should be more proactive with the cases that offer an opportunity for confirmation on a pressing issue. Such opportunities are dictated by the case law and as a result can be few and far between.

130 Jelic v Croatia (2014) para 76; Oneryildiz v Turkey (2004) para 96; Okkali v Turkey (2006) para 65; Turkmen v Turkey (2006) para 51. 131 Gulec v Turkey (1998) para 79; Tanrikulu v Turkey (2000) paras 104–07; Gul v Turkey (2002) para 89; Nikolova and Velichkova v Bulgaria (2009) paras 78–84; Makaratzis v Greece (2004) para 76; Perk v Turkey (2006) para 79; Mahmut Kaya v Turkey (2000) para 89; Ogur v Turkey (1999) para 89; Nachova v Bulgaria (2005) para 116. 132 Fatma Kacar v Turkey (2005) para 79. 133 Nachova and Others v Bulgaria (2004) para 119. 134 Armani da Silva v UK (2016) para 284. 135 J Gerards and A Terlouw, ‘Solutions for the ECtHR: The Amicus Curiae Project’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 166. 136 Gäfgen v Germany (2010) para 119; Esmukhambetov and Others v Russia (2011) para 107; Vladimir Romanov v Russia (2008) para 78; Savin v Ukraine (2012) para 52; Mikhalkova and Others v Ukraine (2011) para 31; Shishkin v Russia (2011) para 93; Kopylov v Russia (2010) para 130; Vladimir Fedorov v Russia (2009) para 52. 137 Vo v France (2004) para 87.

174 Right to an Effective Remedy and Article 2 of the ECHR i. Impunity Article 13 in conjunction with Article 2 demands ‘in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure’.138 Irrespective of the circumstances, state authorities cannot be relieved of their obligations under Article 2 to carry out an investigation, ‘as otherwise that would exacerbate still further the climate of impunity and insecurity … and thus create a vicious circle’.139 The ECtHR was referring to the persistent and widespread violence in the south-east of Turkey, but the message is clear—impunity is not permitted under any circumstances. The duty on states to at least offer the possibility of prosecution does not always transfer into practice, which can lead to impunity. Impunity is ‘the absence or inadequacy of penalties and/or compensation for massive and grave violations of the human rights of individuals or groups’.140 It: is not necessarily a lack of penalties, but may also be a question of penalties which are inadequate given the seriousness of the violations they cover, as regards both the punishment itself and compensation for the resulting injury to the victims.141

Impunity is prevalent during times of conflict when cover-ups, collusion, ineffective investigations and lack of investigations are common, as demonstrated by the four case studies. Concerning the Basque conflict, many suspected state killings are still unaccounted for.142 For example, Basque activists believe that those responsible for the death of ETA member Jon Anza were state actors and are enjoying impunity as a result.143 There are questions over whether the pardoning of former Spanish Interior Minister José Barrionuevo Peña, his former Deputy Rafael Vera and former Civil Governor Julian Sancristobal and the early release of those convicted for GAL’s crimes, were decisions made in good faith.144 In the NI conflict the insufficient legal system and ineffective investigations prevented the conviction of state actors. Or where a conviction succeeded, the sentence was reduced (indicating bias 138 Kaya v Turkey (1998) para 106–07; Aksoy v Turkey (1996) para 98; Aydin v Turkey (1997) para 103; Orhan v Turkey (2002) para 383; Kukayev v Russia (2007) para 117. 139 Yasa v Turkey (1998) para 104. 140 E/CN.4/Sub.2/1997/8, El Hadji Guissé, ‘Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights)’, 27 June 1997, para 20. 141 E/CN.4/Sub.2/1995/19, El Hadji Guissé, ‘Interim Report on Opposition to the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights)’, 27 June 1995, para 16. 142 Urizar (n 94); Albin (n 94). 143 G Mujika, ‘Un cuerpo policial español habría enterrado a Jon Anza en suelo francés’, 2 October 2009; J Rodríguez, ‘ETA delató a Jon Anza’, El País, 12 March 2010. 144 ‘“Dirty-war” ex-minister to be denied pardon’, Expaticia, 17 November 2004.

Types of Remedy 175 in favour of state actors) and the perpetrator was permitted to continue serving as a law enforcer post-imprisonment.145 As explained: a very complicated and complex system exists in NI. There are attempts at every single level to mitigate the possibility that a State actor will be convicted. The result is that a truth slowly drips out, but it is usually obstructed.146

The same can be said about the Chechen and Turkish-Kurdish experiences.147 In Chechnya the investigators were accused of not respecting the requirement to investigate abuses committed by army servicemen and members of the police, both in peacetime and during conflict.148 This was facilitated by the continued existence of the statute of limitations.149 Consequently prosecutions are significantly lacking,150 which led to a call for the CoM to bring an Article 46(4) claim to the ECtHR. For example, in Isayeva, Yusupova and Bazayeva v Russia (2005),151 the suspected perpetrators were named152 but they never faced criminal investigations. Instead, at least one was promoted within the military.153 In Isigova v Russia (2008) the suspected perpetrators and their commanders were identified, but the investigations were repeatedly suspended as they were unable to identify the perpetrator or ensure his participation in the proceedings. The ECtHR found that the failure to charge the suspected perpetrators exemplified ‘the negligence of the prosecuting authorities in handling the investigation and their reluctance to pursue it’.154 Until the 2000s the Law on Judging of Government Officials 1913 was in place in Turkey. This required permission of the leading state official to bring a case. This law was removed, but the practice of not prosecuting continues.155 The impact is reflected in the prosecution figures. Of the 23,203 Turkish state actors indicted between January 2003 and June 2007, only 16.9 per cent were convicted.156 145 R v Thain (1985); Re an Application by Jean McBride for Leave to Apply for Judicial Review and in the Matter of a Decision of the Minister of State for the Armed Forces (2003); A Jennings, ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990) 122. 146 D Holder, CAJ (NI), interviewed 1 August 2014; CAJ, The Apparatus of Impunity? (CAJ, 2015). 147 IFHR, Chechnya—Terror and Impunity: A Planned System (IFHR, 2002); T Lokshina, Killing with Impunity in Chechnya (HRW, 2009); HRW, Time for Justice: Ending Impunity for Killings and Disappearances in 1990s Turkey (HRW, 2012). 148 Khashiyev and Akayeva v Russia (2005) para 108; Isayeva v Russia (2005) para 144. 149 CoM, Supervision of the Execution of Judgments of the ECtHR: Annual Report 2012 (CoE, April 2013) 74. 150 DH-DD(2012)730, ‘Communication from a NGO (EHRAC) (30/07/2012) in the Case of Zara Isayeva Against Russian Federation (Application No 57950/00)’, 22 August 2012, para 68. 151 Isayeva, Yusupova and Bazayeva v Russia (2005). 152 J Lapitskaya, ‘ECHR, Russia and Chechnya: Two is Not Company and Three is Definitely a Crowd’ (2011) 43 NYU Journal of International Law and Politics 479, 528. 153 B Bowring, School of Law, Birkbeck, University of London interviewed 10 July 2014. 154 Isigova and Others v Russia (2008) para 109. 155 Öndül (n 111). 156 Calculations made on the basis of figures provided by the Turkish government: CoM, ‘Interim Resolution CM/ResDH (2008) 69’, 18 September 2008.

176 Right to an Effective Remedy and Article 2 of the ECHR Lawyers in Turkey also report that where prosecutions are successful, the punishment is set at the lowest level, with the defendant released and able to return to their role, or even promoted.157

D. Re-investigation A re-investigation is the process by which a case (that was ineffectively investigated) is reopened, in the hope that it will be conducted effectively due to the passing of time and the use of new investigators. Re-investigations of previously ineffective investigations occurred within the four case studies. This is not a straightforward remedy. Re-investigations arise due to continued pressure from relatives of the victims with the support of the media, or a nudge from the ECtHR and CoM. States and the domestic judiciaries are hesitant to launch re-investigations for ineffective investigations. Why is not always clear, but it may be because an element of bad faith exists and state actors are attempting to continue to cover up their wrongdoing. It may also be a resource issue; some states are struggling to deal with current investigations, without having to reopen historical investigations. This is of particular consideration when a trend of ineffective investigations exists and setting such a precedent could open the floodgates. It can also be that due to the ineptness of the initial investigation, the evidence does not exist for an investigation to be reopened and conducted effectively. In the Basque conflict, delayed statements of two senior police officers convicted for their involvement in GAL in the 1980s (who originally had refused to divulge any information about others who were involved), combined with a determined investigation by journalists, led to a reinvestigation. Subsequently various State officials and law enforcement members were convicted for GAL’s existence and conduct.158 A number of reforms leading to the reopening of investigations regarding the Chechen conflict resulted from the ECtHR’s ruling in Khashiyev v Russia (2005),159 the Article 3 case Mikheyev v Russia (2006)160 and the CoM’s enhanced supervision of the execution of these judgments. These reinvestigations are facilitated by Article 125(1) of the Code of Criminal Procedure of the Russian Federation 2001: the resolutions of the inquirer, the investigator and the public prosecutor on the refusal of the institution of a criminal case or in the termination of the criminal case and their other decisions and actions (lack of action), which may inflict a damage upon the constitutional rights and freedoms of the participants in the criminal court proceedings or may interfere with the citizens’ access to the administration of justice, may be appealed against within the district court at the place of conducting the preliminary inquisition.

157

Öndül (n 111); anonymous lawyer (n 111). Expaticia (n 143). 159 Khashiyev and Akayeva v Russia (2005). 160 Mikheyev v Russia (2006). 158

Types of Remedy 177 Investigations were reopened; a Special Investigative Unit (SIU) for Russian actions in Chechnya was set up; investigators and prosecutors now operate separately; and victims can claim compensation for delays.161 These reforms are not without issue. The CoM accepts that the separation of investigators and prosecutors and the offer of compensation are now provided for within domestic law, but doubts whether they exist in practice.162 The SIU also faced criticism for its lack of action and coordination.163 The lack of sufficient evidence to enable an effective re-investigation continues, as a culture of destroying archives and evidence, and a failure to take action around a suspected disappearance, persist.164 Where investigations were reopened, they were closed again without an effective investigation taking place. For example, the Russian investigators closed the re-investigation into the bombardment of the Chechen village of Katyr-Yurt on 4–5 February 2000 in which many civilians died. They found that the state agents acted in an ECHR-compliant manner, despite the investigators failing to query the findings of the Russian military experts, examine the contradictions in evidence or adequately establish the circumstances surrounding the bombardment.165 Article 125 of the Russian Code of Criminal Procedure is prevented from reaching its full potential. The Russian courts dismiss the applicants’ complaints on procedural grounds and avoid an examination of the merits. The Russian judiciary is also confused as to whether the Article 125 procedure is appropriate for implementing the ECtHR’s decisions.166 The continued existence of the statute of limitations law means that the excessive delays in investigation help facilitate impunity,167 which also leads to a dearth of prosecutions.168 Concerning the Troubles in NI, it was pressure from victims’ families that led to a public inquiry into Bloody Sunday.169 Pressure from the ECtHR’s jurisprudence170 and the CoM’s follow-up led to the creation of the Historical Enquiries Team (HET).171 There are still outstanding issues, with continued delays

161 CoM, Supervision of the Execution of Judgments of the ECtHR: Annual Report 2009 (CoE, 2010) 103; CoM, Supervision of the Execution of Judgments of the ECtHR: Annual Report 2010 (CoE, 2011) 113. 162 ibid; CoM, ‘Interim Resolution (2011) 292’, 2 December 2011. 163 Extract from a letter dated March 2011 from the Deputy Prosecutor of the Chechen Republic to the head of the non-governmental organisation Committee Against Torture, Mr Kalyapin: Aslakhanova and Others v Russia (2012) para 84. 164 CoM (n 148) 74; Khashiyev and Akayeva v Russia (2005); Isayeva v Russia (2005); Abuyeva and Others v Russia (2010). 165 DH-DD(2014)984, ‘Communication from the Applicants’ Representatives (01/07/2014) in the Cases of Isayeva and Abuyeva and Others v Russian Federation (Khashiyev Group) (Application Nos 57950/00 and 27065/05), 22 August 2014. 166 DH-DD(2013)491, ‘Communication from NGOs (RJI, EHRAC, CIP and Memorial) (18/04/2013) in the Khashiyev Group of Cases Against Russian Federation (Application No 57942/00), 2 May 2013, pp 3–4. 167 CoM (n 148) 74. 168 DH-DD(2012)730, ‘Communication from a NGO (EHRAC)’ (2012) para 68. 169 G Wright, ‘The Bloody Sunday Inquiry’, The Guardian, 9 June 2010. 170 McKerr v UK (2001); Hugh Jordan v UK (2001); Shanaghan v UK (2001); McShane v UK (2002). 171 CoM, ‘Interim Resolution CM/ResDH (2009) 44’, 19 March 2009.

178 Right to an Effective Remedy and Article 2 of the ECHR for inquests concerning the deaths of Jordan, McKerr and others.172 The HET was found to be non-compliant with Article 2 due to the inconsistencies and lack of independence that emerged during its investigations.173 It is a ‘lottery whether or not the HET case is dealt with successfully … it depends on the staff doing the research’.174 The ‘institutional continuity’ of the HET, which is a unit of the PSNI, means it should not be investigating any legacy cases. This includes the actions of the military, because from 1977, all army representatives operating in NI were subordinate to the RUC.175 The fact that the CoM eventually signed off the HET process,176 despite these fundamental faults, provides one example of the CoM’s failings. There is also regression. The HET was abolished at the end of 2014 and replaced by the more restricted Legacy Investigation Branch (LIB), mainly due to funding issues.177 Consequently: we have seen a quiet roll back of some of the individual measures once they have been agreed. The HET was signed off by the CoM as complete, yet since 2007/2008 there has been a concerted effort to limit its powers. Not a single one of its investigations which exposed State involvement was referred for further investigations … On the one hand, the government exploits the limitations that exist within the mechanism. For example the inquest legislation has not been updated to require a majority, as opposed to unanimous, verdict. The police have been allowed to continue to refuse to disclose documents or to require ridiculous processes. On the other hand, the government set up a new body, but leaves it under-resourced, which prevents it from doing its job. For example, the Police Ombudsman’s Office requires £1.1 million to conduct its next legacy cases. It was only offered £0.4 million, an amount that has since been withdrawn. The Office has also seen £750,000 worth of other cuts to its budget. Economic constraints can be argued, but the DOJ has found the money to pay £135 million on hearing loss claims, £65 million of which was legal fees. This puts that argument in perspective. … The UK is savvy and playing the system. It puts forward mechanisms, but after the dust settles those mechanisms are quietly undermined or rolled back.178

There are questions around whether the closing of the HET is part of a political move to maintain the alleged cover-up surrounding the 1980s cases that

172 ibid; DD(2011)1139, ‘Communication from the Government of the UK in the McKerr Group of Cases Against the UK’, 15 November 2011; Re Three Applications by Hugh Jordan for Judicial Review (2014). 173 HMIC, ‘Inspection of the PSNI HET’ (HMIC, 2013), 28; P Lundy, ‘Can the Past be Policed? Lessons from the HET NI’ (2009) 11 Law and Social Challenges 109. 174 P Lundy, ‘HET: Evaluating Its Successes and Failures’, Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014. 175 Holder (n 145); CAJ (n 145) 17–24. 176 CoM (n 170). 177 D McAleese, ‘Police service faces drastic change as cuts spell end for Historical Enquiries Team’, The Belfast Telegraph, 1 October 2014. 178 Holder (n 145); CAJ (n 145) 25–30.

Types of Remedy 179 were at the heart of the controversial Stalker report.179 The establishment of a Historical Investigations Unit (HIU) was agreed in the Stormont House Agreement of 23 December 2014. This is a new independent body that will ‘take forward investigations into outstanding Troubles-related deaths’.180 Its focus will be on the ‘outstanding cases from the HET process, and the legacy work of the Police Ombudsman’.181 It is to be overseen by the NI Policing Board and is to complete its work within five years.182 A date for the HIU’s establishment will depend on when the required legislation is passed. It was estimated that this would take at least 18 months;183 the HIU remained an unexecuted plan in March 2017. The HIU is to be Article 2 compliant,184 but it will not include the LIB’s inquests. This means that where the LIB’s cases are concerned the police will continue to be investigating the police. Therefore, lack of independence remains an issue. In an attempt to counteract this, a safeguard is in place that if there is any suggestion that the police committed a crime, the case has to be passed to the PONI. The Turkish government made a number of important reforms at the operations and prosecutions stages, which should positively impact on Turkey’s conduct during the investigations stage. Special training, new regulations and circulars were deployed to law enforcers, public officials and members of the judiciary on the need to adopt a human rights-based approach.185 The number of prosecutions rose and complaint bodies were established.186 These measures may exist in law, but they are not translating into practice.187 For example, the zero-tolerance policy towards ineffective investigations and ill-treatment is not implemented in practice.188 The figures show a different story from that promoted by the Turkish government. Prosecutions rose, in terms of prosecutions taking place. However prosecutions do not necessarily lead to convictions. Looking at the 23,203 state actors indicted between January 2003 and June 2007, only 16.9% were convicted.189

E. Reform of Legislation Domestic legislation is constantly evolving. It is cautioned that ‘the best way for a State to help to insulate itself from violating Article 13 … [is to] effectively

179 P Hillyard, question posed at Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014; J Ware, ‘NI: No more answers’, Prospect Magazine, 16 October 2014. 180 ‘Stormont House Agreement’, 23 December 2014, para 30. 181 ibid. 182 ibid, paras 38 and 40. 183 ‘George Hamilton: HIU “two years away”’, BBC News, 1 February 2015. 184 ‘Stormont House Agreement’, 23 December 2014, para 31. 185 CoM (n 155). 186 ibid. 187 ibid. 188 ibid. 189 Calculations made on the basis of figures provided by the Turkish government; CoM (n 155).

180 Right to an Effective Remedy and Article 2 of the ECHR incorporate the Convention into domestic law’.190 This involves revoking outdated laws, amending current laws and introducing new laws. Within conflict scenarios, wrongful acts can take place within the confines of domestic law, or due to lacunae that exist within domestic laws. Therefore there is often the need for further legal evolution. The state can have a vested interest in maintaining existing laws or the lacunae that exist, as they facilitate the policies which lead to the wrongful acts. It can be difficult to get the offending laws revoked or amended on the state’s own initiative. It can also be difficult to introduce new Article 2compliant laws. It has taken significant pressure from the ECtHR and the CoM for legislative change to occur. At times the ECtHR was not as direct in its condemnation of domestic laws as it should have been. In Turkey’s case, encouragement came from the conditions set out in its bid for accession to the EU, which remains pending. Concerning the Basque conflict and the laws governing Article 2 compliance, the issue is the covert acts and omissions of state agents, not the existing legislation. A number of significant changes in Russian law (with the aim of making the domestic laws Article 2-compliant) can be attributed to the growing pressure from the various CoE bodies. These bodies were losing patience with the repetitive cases against Russia for its acts and omissions during the Chechen conflicts. In the Khashiyev group of cases the ECtHR found Russia liable for the killings and ineffective investigations conducted.191 Consequently, the legal framework was amended, the security forces received human rights training and special compensation frameworks were set up.192 Federal Law No 73-FZ was introduced, setting out the basic principles of Russia’s forensic examination activities.193 These priciples include ‘lawfulness, observance of human and civil rights and freedoms as well as rights of legal entities, independence of the expert, objectiveness, comprehensiveness and the completeness of examinations conducted with the use of modern scientific and technical achievements’.194 The CoM accepted that these changes occurred, but remains sceptical that they had any practical impact.195 In response to the Article 2 incompatibilities exposed in McShane v UK (2002),196 a number of new measures were legislated for to provide for Article 2-compliant inquests in NI. Section 35(3) of the Justice (NI) Act 2002 codifies the duty on the Coroner to write to the DPP for NI if an inquest finds that a criminal offence was potentially committed. The UK government reports that this mechanism is used in practice and the CoM is satisfied that this measure is 190

Harris (n 12) 765. Khashiyev and Akayeva v Russia (2005); Isayeva v Russia (2005); Batayev and Others v Russia (2010). 192 CoM (2007) (n 78) 34; CoM (n 160) 103. 193 Federal Law No 73-FZ, ‘On State Forensic Examination Activities in the Russian Federation’, 25 November 2013. 194 DH-DD(2014)892, ‘Action Plan (24/07/2014): Russian Federation’, 31 July 2014, pp 5–6. 195 CoM (2009) (n 160) 103; CoM (2010) (n 160), 113; CoM (n 161). 196 McShane v UK (2002). This case concerned the killing of Dermot McShane during a riot in Derry/Londonderry on 12 July 1996. 191

Conclusion 181 working. The CoM remains concerned that not enough is being done to address the undue delays experienced by inquests,197 but it does not indicate whether this could or should be achieved through legislative reform.198 The Turkish government introduced a number of important reforms at the operations and prosecutions stages.199 Spurred on by the incompatibilities exposed in Erdogan v Turkey (2007),200 the Law on the Duties and Legal Powers of Police was amended on 2 June 2007 to include guidelines on proportionate force for law enforcers.201 The Turkish authorities also announced that a Regulation on Operations of Security Directorate was introduced on 16 November 2001, which provides instructions for proper conduct in operations. The Article 3 case Abdullah Yasa v Turkey (2013)202 indicates that these new laws are not adhered to in practice. Instead, less-lethal force is being used in a lethal manner, which resulted in the CoM calling for new teargas regulations to be introduced.203

VI. CONCLUSION

An effective remedy has its limitations. The aim to return the victim to the position they were in previously is rarely achieved in practice. The stress and injustice of a violation happening in the first place leave their mark. When the violation results in a death, no remedy is adequate. Nevertheless, imposing some form of effective remedy is important. It sends a clear message that a violation occurred, the victim was wronged and the violator has a responsibility to right that wrong as best they can. It imposes consequences for the violation, with a view to acting as a deterrent to future violators. It encourages change in such a way as to prevent similar violations in the future. This chapter has considered Article 13 of the ECHR (the right to an effective remedy) from the perspective of the right to life, particularly during times of conflict when violations of these two rights are prevalent. It has identified that effective domestic remedies can include compensation, disciplinary proceedings, prosecution, re-investigation and reform of legislation. An effective remedy is achieved through providing a combination of remedies; there is no right to a particular individual remedy. An exploration of the four case studies identified ways in which Article 13, in conjunction with Article 2, is violated and the CoE 197

McCaughey and Others v UK (2013). CoM (n 155); CoM, ‘Supervision of the Execution of Judgments of the ECtHR: Annual Report 2013’ (CoE, 2014) 73. 199 CoM (n 155). 200 Erdogan v Turkey (2006). This case considered the killing of five persons suspected of membership of the extreme left-wing armed movement Dev-Sol (Revolutionary Left) that sympathised with the Kurdish cause during a state operation on 12 July 1991: M Gunter, Historical Dictionary of the Kurds (Scarecrow Press, 2010) 82. 201 CoM (2007) (n 78) 39. 202 Abdullah Yasa and Others v Turkey (2013). 203 CoM (n 148) 71. 198

182 Right to an Effective Remedy and Article 2 of the ECHR bodies’ attempts to deal with this. It confirmed that these violations are facilitated by a state failing to provide a remedy in the first place, due to intent or lack of capacity. Eradicating (or at least lessening) these difficulties requires provisions within the proposed guidelines addressing what equates to an effective remedy, the application of the rule of exhaustion of domestic remedies, disciplinary proceedings and the duty to consider the possibility of prosecution. The proposed wording is provided in the Appendix. The ECtHR should also ensure that its judgments are clear, consistent and non-contradictory; clarify its stance in relation to amnesties and the duty to prosecute; and consider fully all arguable violations in any particular case.

9 Special Challenges

T

HE FOUR CASE studies expose a number of special challenges that affect the effective implementation and enforcement of the obligations contained within Article 2. Such challenges are common during times of conflict and leave Article 2 particularly vulnerable to violation. These challenges are the existence of collusion, the presence of intimidation, the use of statutes of limitations, and the utilisation of amnesties and pardons. These challenges can arise due to bureaucratic ineptitude, or intentional bad faith.1 This chapter considers each of these challenges in turn and highlights how the ECtHR must be particularly strict when such challenges arise.

I. INTIMIDATION

There are examples from the four case studies of witnesses and victims’ relatives seeking the truth being intimidated. This can hinder the possibility of a thorough investigation. Such intimidation includes frightening witnesses, victims’ relatives or justice campaigners with a view to ending or obstructing an investigation or legal case. It also involves verbal or physical threats or attacks against the person being targeted, their family, friends or colleagues. Article 34 of the ECHR provides that: the Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the HCPs of the rights set forth in the Convention or the Protocols thereto. The HCPs undertake not to hinder in any way the effective exercise of this right. [Emphasis added.]

This provision replaces the (former) Article 25(1) of the ECHR, which dealt with complaints before the (now abolished) ECommHR. Considering Article 25(1), the ECtHR found that this covered ‘not only direct coercion and flagrant acts of intimidation of applicants or potential applicants or their families or legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy’.2 The particular

1 2

F Hampson, School of Law at University of Essex, interviewed 11 July 2014. Kurt v Turkey (1998) para 160; Tanrikulu v Turkey (1999) para 130.

184 Special Challenges circumstances at issue and the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities, must be taken into account when determining if contact between the authorities and the applicant (or potential applicant) are incompatible with the ECHR.3 A finding of intimidation depends on whether the applicant is actually intimidated by the actions or threats. In Imakayeva v Russia (2006), the applicant was questioned by the Russian authorities about her application before the ECtHR. As she did not refer to any particular threats or other attempts to dissuade her from applying to the Court, this did not constitute a violation of the ECHR.4 Claims of intimidation must be corroborated;5 ‘extremely vague and unspecific’ statements from the claimant as the sole evidence are insufficient.6 To ensure full protection against intimidation, these principles should be extended to all individuals facing intimidation; not only complainants to the ECtHR. Intimidation can involve threats to life, which engage Article 2. Cases of intimidation towards applicants and witnesses arise in each of the four case studies. Both state and non-state actors can be the sources of intimidation. The focus of the ECHR is on the actions and inactions of state actors, but there is a duty upon a state to protect those in its territory from the threats of non-state actors.7 In the four case studies, intimidation tactics were used to deter relatives from seeking the truth and to deter witnesses from stepping forward to assist in that quest. Often such tactics had fatal consequences. Incommunicado detention has commonly been used by Spain8 and France9 to intimidate those viewed as actively sympathetic to the Basque cause. Torture was common practice against Basque prisoners and has proved fatal for some.10 Intimidation and threats to life were used by the Russian forces to deter individuals from lodging a complaint with the ECtHR, regarding Russia’s actions during the Chechen conflict.11 For example, the applicant in Imakayeva argued that her husband’s enforced disappearance was linked to his application to the ECtHR.12 Furthermore, relatives who pushed for an effective investigation into a death were subject to intimidation (eg Akhmadova and Sadulayeva v Russia (2007)).13 The source of such threats was the Russian authorities. These threats were made against 3

Kurt v Turkey (1998) para 160. Imakayeva v Russia (2006) para 202. 5 Goncharuk v Russia (2007) para 94; Arzu Akhmadova and Others v Russia (2009); Medova v Russia (2009); Israilova v Russia (2013) para 96. 6 Khatuyeva v Russia (2010) para 104. 7 See Ch 5. 8 Art 520(1), Spanish Code of Criminal Procedure 1882; Art 520(1), Spanish Code of Criminal Procedure 1882; Art 509, Spanish Code of Criminal Procedure 1882; Organic Law 15/2003 of 25 November 2003; Organic Law 15/2003 of 25 November 2003; J Sunderland, ‘Setting an Example? Counter-Terrorism Measures in Spain’ (HRW, January 2005) 19. 9 Arts 63(4) and 706(88), French Code of Criminal Procedure 1994; Vosgien v France (2013). 10 Basque Peace Process, ‘It has been really hard again’, www.basquepeaceprocess.info/?p=1875. 11 Imakayeva v Russia (2006); Bitiyeva and X v Russia (2007) paras 59–66. 12 Imakayeva v Russia (2006) para 202. 13 Akhmadova and Sadulayeva v Russia (2007) para 93. 4

Intimidation 185 witnesses to intimidate them into submission.14 Threats from Chechen officials were also made against activists, journalists and lawyers working to expose the truth.15 The Russian authorities also failed to investigate the disappearances or murders that often followed these threats.16 During the Troubles in NI, common complaints against the UK regarding intimidation involved indirect threats,17 excessive use of the stop and search powers and the use of internment.18 It is alleged that intimidation continues to exist with covert military units (eg MRF) reported to still be running surveillance and search operations against suspected IRA members.19 These intimidation tactics have proved to be fatal in some cases, as exemplified by the fatalities that occurred at checkpoints, in state custody and at the hands of the MRF. It was reported that the Turkish authorities question applicants and their relatives on their applications to the ECommHR and ECtHR. The ECtHR found this practice to be a ‘form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition’.20 In Demiray v Turkey (2000), applicants and their family members were placed in custody in an attempt to intimidate the complainant to drop their case.21 These are definite violations of Articles 5 and 6, but the threats made must be life-threatening to constitute a violation of Article 2. The facts in Acar v Turkey (2005) suggest that applicants were threatened by state actors.22 Kaya illustrates claims that witnesses were frightened of the security forces and the intimidation they would be subjected to if they spoke out publically about what they witnessed.23 These threats are not direct violations of Article 2, but given Turkey’s history of disappearances and deaths in custody, such threats could be interpreted as life-threatening. Persons who allegedly supported pro-Kurdish views (eg newspaper sellers,24 teachers,25 journalists,26 lawyers27 and politicians28) also reported intimidation to a life-threatening degree. 14 AI, AI

Report 2012: The State of the World’s Human Rights (AI, 2012) 282. Harding, ‘Chechen president threatened murdered campaigner, human rights group alleges’, The Guardian, 16 July 2009. 16 J Lapitskaya, ‘ECHR, Russia and Chechnya: Two is Not Company and Three is Definitely a Crowd’ (2011) 43 NYU Journal of International Law and Politics 479, 503. 17 M Morland, The Rosemary Nelson Inquiry Report (SO, 2011) 108–12. 18 Civil Authorities (Special Powers) Acts (NI) 1922–43; Detention of Terrorists (NI) Order 1972; ss 10(1) and 10(3), NI (Emergency Provisions) Act 1973; s 12(1), NI (Emergency Provisions) Act 1973; s 41(3), Terrorism Act 2000; B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 58–60. 19 H McDonald, ‘Special forces intimidating republicans in NI, say dissidents’ The Guardian, 21 February 2010. 20 Kurt v Turkey (1998) para 160; Akdeniz and Others v Turkey (2001) para 119; Salman v Turkey (2000) para 130. 21 Demiray v Turkey (2000) para 59. 22 Acar and Others v Turkey (2005) para 52; Tanis and Others v Turkey (2005) para 189. 23 Kaya v Turkey (1998) para 18; Seker v Turkey (2006) para 57. 24 Yasa v Turkey (1998) para 31. 25 Akkoc v Turkey (2000) para 73. 26 Dink v Turkey (2010). 27 Anonymous lawyer in Turkey interviewed 10 September 2013; DA Nejbir, ‘From Political Execution to Undefined Imprisonment Sentences: The Situation of the Kurdish and Turkish Lawyers in Turkey’ in ‘Challenging the Oppression of Lawyers in Times of Conflict: Conference Report’ (Human Rights Centre, School of Law, Queen’s University Belfast, 13 November 2013) 65–89. 28 Koku v Turkey (2005) para 15. 15 L

186 Special Challenges The state is under a duty to address threats to life, within reason. This is not expressly set out by the ECHR or in the ECtHR jurisprudence. Given the level of intimidation of applicants and witnesses in the four case studies, a more direct approach is required. The 1989 Principles provide an example of what this could look like: complainants, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation. Those potentially implicated in extra-legal, arbitrary or summary executions shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as over those conducting investigations.29

The Minnesota Protocol provides additional indications of how protection of witnesses can be achieved: if the commission concludes that there is a reasonable fear of persecution, harassment, or harm to any witness or prospective witness, the commission may find it advisable: (i) (ii) (iii) (iv)

To hear the evidence in camera; To keep the identity of the informant or witness confidential; To use only such evidence as will not present a risk of identifying the witness; To take any other appropriate measures.30

II. COLLUSION

There is no definitive definition of collusion.31 Collusion has ‘many faces. They ranged from explicit and wilful cooperation to more passive wait-and-see attitudes and other forms of “let-it-happen” by ignoring or looking the other way and keeping a discrete, if not wilfully malicious silence’.32 The favoured definition is that collusion involves: ‘i) agreements, arrangements or actions intended to achieve unlawful, improper, fraudulent or underhand objectives, and ii) deliberately turning a blind eye or deliberately ignoring improper or unlawful activity’.33 This broad definition enables collusion to be applied to state acts or omissions that directly or indirectly contributed to a killing. It also covers collusion between state actors, and between non-state actors and state actors: [the] army and police forces must not act collusively by ignoring or turning a blind eye to the wrongful acts of their servants or agents or supplying information to assist them

29 E/1989/65 (1989), ‘Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions’, 24 May 1989, Principle 15. 30 E/ST/CSDHA/.12 ‘United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions’ (1999), s IV.D.9.b. 31 D de Silva, The Report of the Patrick Finucane Review (SO, 2012) para 1.23. 32 A Lüdtke, Everyday Life in Mass Dictatorship: Collusion and Evasion (Palgrave Macmillan, 2015) Ch 1. 33 de Silva (n 31) para 1.30.

Collusion 187 in their wrongful acts or encouraging them to commit wrongful acts. Any lesser definition would have the effect of condoning, or even encouraging, State involvement in crimes, thereby shattering all public confidence in these important agencies.34

The covert nature of collusion makes it difficult to prove, and allegations of collusion are generally rejected by the state. Yet there is evidence of collusion in the four case studies.

A. Collusion Leading to Deaths In the Basque country, the conviction of two senior Spanish police officers in the late 1980s for the recruitment and funding of GAL exposed state involvement in the death squad tasked with disposing of ETA. The extent of the state’s involvement was not apparent until these two senior officers (who originally refused to give any information about others involved) began to talk. A judicial inquiry followed in 1994, and the subsequent Supreme Court trial concluded with the sentencing of nine former police and ministry officials for coordinating GAL’s operations.35 The Spanish Interior Minister José Barrionuevo Peña and his Deputy Rafael Vera were also tried and convicted as directors of GAL.36 The Ministers always denied their involvement and were pardoned, but the fact remained that GAL was secretly funded and recruited by the state.37 Collusion was alleged regarding the killing of journalists and lawyers accused of attacking the Russian and Chechen governments both during and post-conflict. These killings were carried out by unknown perpetrators. These allegations were made regarding the killings of journalist Anna Politkovskaya,38 lawyer Stanislav Markelov, journalist Anastasia Baburova39 and human rights activist Natalya Estemirova.40 There is no concrete evidence for these allegations, but previous threats on their lives from the respective state actors placed such a scenario within the realms of possibility.41 There is evidence of inter-state collusion regarding the disappearances of Chechens during the conflict. Up to 2009 Russia was held responsible for unjustified executions, torture and enforced disappearances, including a failure to investigate these crimes, in over 115 rulings by the ECtHR. Yet using a sample of 33 of these cases, not a single perpetrator was convicted, even

34

P Cory, ‘Cory Collusion Inquiry Report: Pat Finucane’ (SO, 2004) para 1.39. Europe Spain’s state-sponsored death squads’, BBC News, 29 July 1998; J Tuckman, ‘Ex-Minister Found Guilty in Spain’, Associated Press, 29 July 1998. 36 ‘“Dirty-war” ex-minister to be denied pardon’, Expaticia, 17 November 2004. 37 ibid. 38 CPJ, ‘Anna Politkovskaya: Novaya Gazeta, 7 October 2006, in Moscow, Russia’, http://cpj.org/ killed/2006/anna-politkovskaya.php. 39 L Harding, ‘Chechen president threatened murdered campaigner’, The Guardian, 16 July 2009. 40 ibid. 41 ibid; CPJ (n 38). 35 ‘World:

188 Special Challenges in cases where it is known who the perpetrator was.42 This implies that Russia is exercising indirect collusion by deliberately turning a blind eye to these crimes, which were likely perpetrated by Russian agents. Allegations of collusion are common in relation to the NI Troubles, particularly between Loyalist paramilitaries and state actors. Independent inquiries found that collusion did exist in terms of ‘wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder’.43 It is unclear whether the collusion that existed was ‘restricted to a small number of members of the security forces and [was] neither widespread nor institutionalised’44 or whether it was systemic and institutionalised. The examples that came to light (eg killings of Pat Finucane,45 Robert Hamill,46 Rosemary Nelson47 and Billy Wright,48 and the Dublin/Monaghan bombings),49 indicate that collusion was widespread amongst the RUC, British Army and intelligence organisations (eg MRF, Special Reconnaissance Unit (SRU); and Force Research Unit (FRU)). The killings of Chief Superintendent Harry Breen and Superintendent Bob Buchanan indicated collusion between the Provisional IRA and the Gardaí.50 However, the official investigations discovered no evidence to affirm the allegations that collusion reached a government level.51 The public inquiries report that collusion directly linked to the killings may be possible, but only on the part of rogue members of the security forces.52 This is contested by journalistic investigators.53 Yet all investigators agree that a key issue was the lack of action from the state to deal with known threats and information leaks to paramilitaries.54 Allegations of collusion were made in the context of the Turkish-Kurdish conflict. Conclusive evidence of collusion between the Turkish government, the Turkish armed forces and PKK-linked organised criminals emerged from the

42 HRW, ‘“Who Will Tell Me What Happened to My Son?” Russia’s Implementation of ECtHR Judgments on Chechnya’ (HRW, 2009). 43 J Stevens, ‘Stevens Enquiry 3: Overview and Recommendations’, 17 April 2003, para 4.7. 44 J Stevens, ‘Stevens Enquiry 1’, 17 May 1990, para 41. 45 P Cory, Cory Collusion Inquiry Report: Pat Finucane (SO, 2004) para 1.293. 46 Robert Hamill was killed in Portadown on 27 April 1997 after being set upon by a crowd of 20–30 people while walking home with two others after a night out. The RUC were accused of not doing enough to protect the victims: P Cory, Cory Collusion Inquiry Report: Robert Hamill (SO, 2004) paras 2.248–2.252. 47 Cory (n 45) para 4.197. 48 Billy Wright, a member of various Loyalist paramilitary groups, was shot dead by fellow prisoners on 27 December 1997: P Cory, ‘Cory Collusion Report: Billy Wright’ (SO, 2004) para 3.223. 49 JCJEDWR, ‘Interim Report on the Report of the Independent Commission for Inquiry into the Dublin and Monaghan Bombings’ (December 2003) 288. 50 P Cory, Cory Collusion Report: Chief Superintendent Breen and Superintendent Buchanan (SO, 2004) para 2.162. 51 de Silva (n 31) para 25.33. 52 ibid, paras 11.110–11.113; Morland (n 17) 465. 53 T Geraghty, The Irish War: The Hidden Conflict Between the IRA and British Intelligence (JHU Press, 1998); A Cadwallader, Lethal Allies: British Collusion in Ireland (Mercier Press, 2013). 54 Morland (n 17) 465; de Silva (n 31) paras 11.110–11.113; Geraghty (n 53); Cadwallader (n 53).

Collusion 189 Susurluk scandal.55 This scandal was exposed following a car crash on 3 N ovember 1996 involving the Deputy Chief of Istanbul Police Department, a Kurdish Member of Parliament and a member of the Grey Wolves (Bozkurtlar).56 The crash exposed cooperation between the opposing groups. It transpired that the (then) Deputy Prime Minister Tansu Ciller tasked the Special Operations Department (Özel harekat Dairesi—ÖHD) with crippling the PKK and assassinating its leader, Abdullah Öcalan. A number of assassinations assisted by collusion took place as a result, primarily through the JITEM (a group consisting of state actors and ex-PKK members).57 Thus the Turkish State had direct involvement in the killings. The JITEM did not directly clash with the PKK, but it is allegedly responsible for the killings and disappearances by unknown perpetrators that were prominent in the 1990s.58

B. Collusion Leading to Ineffective Investigations There is reason to believe that evidence cover-ups occurred regarding the NI Troubles. This includes: the destruction of evidence (eg a fire in the room being used by the Stevens Inquiry in January 1990),59 a failure to conduct effective initial investigations, and a refusal to disclose important evidence.60 Such events led to ineffective investigations. There are allegations that the Turkish authorities actively obstructed investigations to reduce the likelihood of finding the real perpetrators, indicating the presence of collusion. This obstruction has included intentionally destroying evidence, limiting the terms of the investigation and charging suspects with no connection to the crime.61 The ECtHR criticised Turkey for not investigating collusion.62 There are an increasing number of prosecutions concerning unsolved murders in the 1990s. Yet the number of prosecutions does not equate to the number of murders by unknown perpetrators. Many of the cases brought were plagued by delays or were transferred to the (arguably biased) military courts.63 This contributes to why Turkey has one of the highest caseloads before the ECtHR.64 55 M Duvakli, ‘JITEM behind Anter and Aydin murders, claims Kurdish group’, Today’s Zaman, 1 March 2009; E Kilic,‘Anter cinayetinde sadece JITEM degil PKK da var’, Sabah, 26 October 2008. 56 The Grey Wolves are a Turkish ultra-nationalist and neo-fascist youth movement that strongly opposes the PKK. 57 Duvakli (n 55); Kilic (n 55). 58 A Sik, ‘Firat’in ötesi: ÖHD, ÖKK, JITEM, Ergenekon …’, Habervesaire, 24 March 2009. 59 Stevens (n 43) para 3.4. 60 ibid, para 4.7; ‘Sean Brown murder: Inquest postponed indefinitely’, BBC News, 12 February 2015; CAJ, ‘The Apparatus of Impunity? Human Rights Violations and the NI Conflict’ (CAJ, 2015) 7–16. 61 H Öndül, IHOP (Turkey) interviewed 9 September 2013; anonymous (n 27); Kilic v Turkey (2000) para 58. 62 Kilic v Turkey (2000) para 82. 63 Sik (n 58); Ö Cebe, ‘PKK itirafcisi Toka’ya tahliye’, Radikal, 20 January 2006; F Aslan, ‘Albay Temizöz davasi basladi’, Hürriyet, 26 August 2014. 64 M Duvakli, ‘JITEM’s illegal actions cost Turkey a fortune’, Today’s Zaman, 27 August 2008.

190 Special Challenges C. Use of Informants A further aspect of collusion is establishing when a state should have to reveal its sources of information. This is primarily an Article 6 issue, but it can have implications for the thoroughness of investigations regarding suspicious killings (as provided for by Article 2). For example, a state may seek to use an informant’s evidence to corroborate the state’s argument that a victim posed a threat and the killing was justified. The use of informants is particularly evident in the NI context (eg ‘supergrass trials’)65 and in the Turkish-Kurdish conflict (where neighbours were ordered to spy on each other).66 The use of informants was extensively discussed in the inadmissible Hass v Germany (2005).67 The ECtHR found there is no need to expose the source of evidence, even if it means that the other party does not have an opportunity to examine the witness. This applies as long as ‘relevant and sufficient reasons’ are adduced for keeping secret the witnesses’ identities and that a sufficient ‘counterbalance’ is offered for the disadvantage faced by the other party.68 Furthermore, the evidence must be corroborated by further items of evidence.69 This allows the state to operate covert operations for the purposes of national security, but it is not an absolute and unlimited concession. This concession should be offered with extreme caution, as the collapse of the supergrass trials in NI illustrates. In these trials, information from informants was used as key evidence in a number of the Troubles-related murders by paramilitaries, but the trials collapsed after the presiding judge refused to believe that the informants were telling the truth. On the one hand, this provides an example of good practice on behalf of the tribunal. On the other, it exposes the risk of using and relying on informant evidence.70 In order for an investigation to be compliant with Article 2, any allegation or evidence of collusion must be investigated.71 The ECtHR fell short of making this a direct obligation and expressly stating that collusion constitutes a violation of Article 2. In order to effectively protect the right to life the prohibition of collusion needs to be set out in clearer terms than currently offered by the Court. It needs to be made clear that the state has an obligation to punish and eradicate collusion, to avoid a vicious circle. Ensuring state compliance will be difficult, given the covert nature of collusion. Also the fact that there will be a lack of political will, due to a

65 H McDonald, ‘Belfast “supergrass” trial judge clears a dozen loyalists of terror charges’, The Guardian, 22 February 2012. 66 R Aras, The Formation of Kurdishness in Turkey: Political Violence, Fear and Pain (Routledge, 2013) 103; AF Ünsal, Mazlumder (Turkey), interviewed 9 September 2013. 67 Hass v Germany (2005). 68 ibid, 2. 69 ibid, 2. 70 McDonald (n 65). 71 Kilic v Turkey (2000) para 82.

Statute of Limitations 191 state’s vested interest in collusion. Yet the presence of bad faith should not deter the ECtHR from taking a strong line and promoting good practice.

III. STATUTE OF LIMITATIONS

A statute of limitation is ‘a specified period after the commission of a crime within which the State must either bring a prosecution or forgo punishing the crime. Once the limitation period has run, prosecution is barred’.72 The rationale behind supporting a legal system with a statute of limitations is that: the desire for retribution within victims and society lessens over a period of time;73 the passage of time causes evidence to deteriorate, making it difficult to carry out a proper trial as a result;74 and punishing crimes after a long period of time will only have a nominal effect, but will be costly.75 Alternatively ‘statutes of limitations no longer serve a legitimate purpose, at least for serious offences, but they continue to cause failures of justice and should therefore be abolished or greatly curtailed’.76 The international community established the customary norm that statutes of limitation should not apply to war crimes in international armed conflict (IAC) and non-international armed conflict (NIAC).77 There is: little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events, since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity.78

The ECtHR also indicated that consideration of whether a statute of limitation is compliant with the ECHR should include looking at the ‘seriousness of the crimes, the large number of persons affected and the relevant legal standards applicable to such situations in modern-day democracies’.79 The implication is that statutes of limitation are not prohibited, except in the context of war crimes and crimes

72 P Robinson and M Cahill, Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve (OUP, 2005) 58. 73 ibid; T Roehrig, The Prosecution of Former Military Leaders in Newly Democratic Nations (McFarland, 2002) 20. 74 ibid, 59. 75 ibid. 76 ibid, 60. 77 The UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968 and the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes 1974 establish this in law, but these Conventions are not ratified by all the relevant States. Its customary nature is confirmed in ICRC, Customary International Humanitarian Law (CUP, 2009), rule 160. 78 Aslakhanova and Others v Russia (2012) para 237; Brecknell v UK (2007) para 69; Videla Case (1994) para 827; Mengistu and Others (1995) para 828; Hass and Priebke (1997). 79 Aslakhanova and Others v Russia (2012) para 237; Association 21 December 1989 and Others v Romania (2011) para 194.

192 Special Challenges against humanity. The surrounding circumstances of the case and the public interest in prosecution must be taken into account. This stance is not clear from the current text of Article 2 of the ECHR and should be codified. The need to do so is clear, when looking at the different approaches in the four case studies. It is pertinent for the purposes of challenging impunity (which is common in the context of conflicts) and ensuring that unlawful killings are not allowed to continue. Regarding the Basque conflict, the statute of limitations is set at 20 years for murder and 15 years for manslaughter in Spain.80 There is no statute of limitations for genocide, crimes against humanity, offences against the person in armed conflict, and deaths as the result of terrorism.81 In France, a limitation period on crimes is applied.82 It is set at 10 years for murder. This can be suspended during investigations, which resets the starting point.83 The limitation period does not extend to crimes against humanity.84 In the Chechen case, under Article 78 of the Criminal Code of the Russian Federation 1996: a person cannot be held liable for a crime after 10 years in the case of a serious crime (punishable by up to ten years’ imprisonment) and after fifteen years in the case of a grave crime (punishable by prison terms exceeding ten years’ imprisonment). Time starts to run from the date of the crime and stops running on the judgment of the trial court. If the person escapes justice, the time does not start to run until the person is found. The applicability of time-limits in cases of crimes punishable by a life sentence or the death penalty is decided individually by the trial court. No time-limits are applicable to crimes against peace and humanity.85

The ECtHR found the application of this law to be contrary to Article 2 regarding enforced disappearances committed prior to 2007 in Chechnya, and the termination of pending investigations into abductions solely on the grounds that the time-limit expired.86 There are no statutes of limitation against murder or manslaughter in Ireland or the UK. Thus in relation to the NI Troubles, they do not exist. In Turkey there is a limitation of 20 years on serious crimes (eg murder).87 The PPs were also criticised for imposing delays, which resulted in the statute of limitations applying, removing the possibility of prosecution.88 A small number of new PPs did push for prosecution, but where these succeeded, the case was moved to trial in a district with less liberal leanings. This reduced family involvement (given the distance and expense of travelling) and meant that criminal proceedings were being brought before an unsympathetic court.89

80

Arts 131(1), 138 and 139, Criminal Code of Spain, Organic Act 10/1995. Art 131(4), ibid. 82 Art 112(2)(4), Criminal Code of the French Republic 1994. 83 Art 7, Code of Criminal Procedure of the French Republic 2000. 84 Arts 213(3) and 213(5), Criminal Code of the French Republic 1994. 85 Aslakhanova and Others v Russia (2012) para 45. 86 ibid, para 237; Association 21 December 1989 and Others v Romania (2011) para 194. 87 Art 102, Criminal Code of the Republic of Turkey 1991. 88 Öndül (n 61); anonymous (n 27). 89 Anonymous (n 27). 81

Amnesties and Pardons 193 The Chechen and Turkish-Kurdish cases provide clear examples of perpetrators evading accountability, due to limitation periods. The ECtHR’s stance is insufficient and would benefit from additional guidance. For example, Article 8 of the ICED: 1) A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings: a) is of long duration and is proportionate to the extreme seriousness of this offence; b) commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. 2) Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.

An additional point that is not covered by the ECtHR or other sources of international law is when should the statute of limitations period commence? Article 44 of the Constitution of the Republic of Poland 1997 provides that where a crime is not investigated for political reasons, the limitation period should not commence until the reasons for the lack of investigation cease. This would be useful in the context of the four case studies, where significant delays in investigating are common and are blamed on the confusion and pressure on resources that arise during unrest. The ECtHR clearly stated that unrest cannot absolve state actors of their obligations under Article 2.90 Yet given that unrest can persist for decades and little may be done to address the barriers to investigation during this time, enabling the limitation period to run out (as seen in the Turkish-Kurdish conflict), an additional comment regarding the starting point for a statute of limitation would be useful.

IV. AMNESTIES AND PARDONS

Typically, penal processes are created to provide retribution or deterrence.91 They can also be a form of pedagogical performance, national reconciliation or exculpation.92 There are situations (including in the four case studies) where amnesties were offered, disabling these functions. An amnesty is the ‘process by which States exercise their sovereign right to mercy by extinguishing criminal or civil liability for past crimes’.93 Amnesty refers to the legal measures that have the effect of: a) prospectively barring criminal prosecution and, in some cases, civil actions against certain individuals or categories of individuals in respect of specified criminal conduct committed before the amnesty’s adoption; or 90

Mahmut Kaya v Turkey (2000) para 107. Henman, ‘Conceptualising Access to Justice and Victims’ Rights in International Sentencing’ (2004) 13 Social and Legal Studies 27, 29. 92 ibid. 93 K McEvoy and L Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’ (2012) 39(3) Journal of Law and Society 410, 413. 91 R

194 Special Challenges b) retroactively nullifying legal liability previously established.94

An amnesty is distinct from a pardon,95 official immunity96 a state’s failure to prosecute and a state’s failure to enact laws that prohibit crimes.97 Blanket amnesties: exempt broad categories of serious human rights offenders from prosecution and/or civil liability without the beneficiaries’ having to satisfy preconditions, including those aimed at ensuring full disclosure of what they know about crimes covered by the amnesty, on an individual basis.98

There is ‘so far no international treaty [which] explicitly prohibits the granting of amnesty in respect of grave breaches of fundamental human rights’.99 Nevertheless, there was movement in the direction of prohibiting amnesties where grave violations of human rights are concerned.100 Within IHL, common Article 49 of the Geneva Conventions 1949 states that: each HCP shall [be] under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Article 4 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968101 provides that statutory limitations are prohibited in relation to war crimes and crimes against humanity, and ‘where they exist, such limitations shall be abolished’. The message is indirect, but clear—amnesties are not permitted during IAC in instances of grave breaches, such as ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property’.102 IHL allows the authorities in power to ‘to grant the broadest possible amnesty to persons who have participated in the NIAC, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’.103 It remains silent on whether such amnesties would be permitted for grave crimes committed during a NIAC.

94 UNOHCHR, Rule-of-law

Tools for Post-conflict Societies: Amnesties (UN, 2009) 5. A pardon is an official act that exempts a convicted criminal or criminals from serving his or her sentence, in whole or in part, without expunging the underlying conviction: ibid. 96 An official immunity shields the defined public officials from the exercise of a foreign state’s jurisdiction, but does not provide him or her with impunity: ibid. 97 ibid. 98 ibid, 8. 99 Margus v Croatia (2014) para 131. 100 UNOHCHR (n 94) p11–20. 101 Of the jurisdictions relevant to the four case studies, only Russia ratified this treaty, on 22 April 1969. 102 Art 50, Geneva Conventions 1949. 103 Art 6, Additional Protocol II to the Geneva Conventions Relating to the Protection of Victims of NIACs 1977. 95

Amnesties and Pardons 195 The UN expressed concern for the use of amnesties, as they ‘may prevent the appropriate investigation and punishment of the perpetrators of past human rights violations, undermine efforts to establish respect for human rights, and constitute an impediment to efforts undertaken to consolidate democracy’.104 It continued that ‘amnesties should not be granted to those who commit violations of IHL and IHRL that constitute serious crimes’.105 The UN system discourages, but does not prohibit amnesties. That is except in relation to serious crimes (eg war crimes, crimes against humanity, genocide, or torture in all contexts). This is broader than IHL, which applies this exception only during an IAC. In an Inter-American context, where non-derogable rights are concerned, amnesty laws violate the American Convention on Human Rights.106 This is on the basis that: all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognised by IHRL.107

The IACtHR’s reasoning recently shifted towards the IHL approach—that amnesties may be permissible on the conclusion of hostilities even in NIACs to assist with paving ‘the way to a return to peace’.108 The Court follows this with the clarification that amnesties cannot be used in instances of war crimes or crimes against humanity.109 The ECtHR was not asked to directly rule on amnesties within Europe, but it made a number of general comments on the issue. It read into Article 2 of the ECHR a duty to investigate, but not to prosecute.110 Thus amnesty laws which prevent an effective investigation contravene Article 2, but the use of amnesties is not necessarily prohibited.111 For example, amnesties that coexist with or encourage truth recovery may be possible in cases where prosecutions could result. 104 CCPR/C/79/Add 78, ‘Concluding Observations of the CCPR: Lebanon’, 1 April 1997, para 12; HRI/GEN/1/Rev 1, ‘CCPR General Comment 20: Article 7’, 10 March 1992, para 15; CCPR/CO/71/ HRV, ‘Concluding Observations of the CCPR—Croatia’, 30 April 2001, para 11; CCPR/C/21/Rev 1/Add 13, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on State Parties to the Covenant’, 26 May 2004, para 18. 105 E/C.N4/2002/102, ‘Resolution 2002/79’, 25 April 2002; E/C.N4/RES/2003/72, ‘Resolution 2003/72’, 25 April 2003; E/CN.4/RES/2004/72, ‘Resolution 2004/72’, 21 April 2004; E/CN.4/ RES/2005/81, ‘Resolution 2005/81’, 21 April 2005. 106 Case 10.287 (El Salvador) (1992); OEA/Ser L/11.85 Doc 28 rev, ‘Report on the Situation of Human Rights in El Salvador’, 1 June 1994; Case 10.480 (El Salvador) (1999); Barrios Altos v Peru (2001) para 41. 107 Barrios Altos v Peru (2001) para 41; Anzualdo Castro v Peru (2009) para 182; Gelman v Uruguay (2011) paras 184, 189–214; 225–29. 108 The Massacres of El Mozote and Nearby Places v El Salvador (2012) paras 283–85. 109 ibid, para 286. 110 McEvoy (n 93) 420. 111 ibid.

196 Special Challenges European jurisprudence is inconsistent on the issue. The ECommHR ruled in Dujardin v France (1991) that amnesty laws are at the discretion of the state. The Commission was considering the attack of a gendarmerie brigade in New Caledonia on 22 April 1988 and the French law adopted later that year, which established an amnesty for offences other than murder committed before 20 August 1988. It found that: the State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected.112

The amnesty must be exceptional, necessary, in the public interest, must respect the right to protection of life and to truth and must not impede investigations.113 This is contrary to what the ECtHR said in Abdülsamet Yamana v Turkey (2004): where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance for the purposes of an ‘effective remedy’ that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible.114

It also excludes partial amnesties, where the suspension of a prison sentence would constitute ‘virtual impunity’ despite the conviction.115 In Ould Dah v France (2009) the ECtHR moved to less definite language, to the effect that ‘an amnesty is generally incompatible with the duty incumbent on the States to investigate such acts’.116 The use of ‘generally’ implies that there are exceptions to the rule. In this case it was found that the amnesty law was created ‘specifically with a view to preventing [the perpetrator] from being prosecuted’.117 It was not part of a reconciliation process. This case also concerned torture, the prohibition of which ‘occupies a prominent place in all international instruments relating to the protection of human rights and enshrines one of the basic values of democratic societies’.118 These two factors led to the discussion that implied amnesty laws were incompatible with the ECHR in this case.119 Before permitting an amnesty, the Court considers whether a reconciliation process is in place.120

112 Dujardin v France (1991); CoE, Yearbook of the ECHR: Volume 34 (1991) (Martinus Nijhoff Publishers, 1994) 121–22. 113 L Mallinder, ‘Dealing with the Past: Prosecutions and Amnesties’, Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014. 114 Abdülsamet Yaman v Turkey (2004) para 55; Ali and Ayse Duran v Turkey (2008) para 69. 115 ibid. 116 Ould Dah v France (2009), 16. 117 ibid. 118 ibid. 119 Mallinder (n 113). 120 ibid.

Amnesties and Pardons 197 The contradiction in the ECtHR doctrine becomes overtly apparent with two cases. In Association ‘21 December 1989’ v Romania (2012) the finding in Ould Dah was reiterated—‘an amnesty is generally incompatible with the duty incumbent on the States to investigate acts of torture and to combat impunity for international crimes’.121 The Court upheld the Dujardin ruling that amnesty laws are at the discretion of the state, in Tarbuk v Croatia (2012).122 This may not be a contradiction, but rather the ECtHR distinguishing Article 3 amnesties from amnesties concerning other human rights.123 This reflects the absolute nature of the right to freedom from torture, and its status as an international crime. A further consideration identified is whether the amnesties were enacted regarding acts that took place decades prior to a state’s ratification of the ECHR. In Gutierrez Dorado and Dorado Ortiz v Spain (2012)124 the ECtHR was asked to consider the Amnesty Law 1977 and its implications for acts that took place during the massacres of 1936, 43 years before Spain’s ratification of the ECHR. This law granted immunity from prosecution to everyone who had committed any offence for political reasons prior to 15 December 1976. The ECtHR found that the applicants’ complaint was ‘introduced out of time and must be rejected’.125 These distinctions are negated by Margus v Croatia (2014).126 Here the ECtHR ruled that: granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State’s obligations under Articles 2 and 3 of the Convention since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed by … Articles 2 and 3 of the Convention and render illusory the guarantees in respect of an individual’s right to life and the right not to be ill-treated. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective.127

The Court appears to extend its intolerance of amnesties beyond Articles 2 and 3 of the ECHR, stating that: while the present case does not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No 7 [the right not to be tried or punished twice], the Court reiterates that the Convention and its Protocols must be read as a whole, and interpreted in such as a way as to promote internal consistency and harmony between their various provisions. Therefore, the guarantees under Article 4 of Protocol

121

Association 21 December 1989 and Others v Romania (2011) para 144. Tarbuk v Croatia (2012) para 50. 123 Mallinder (n 113). 124 Guiterrez Dorado and Dorado Ortiz v Spain (2012). 125 ibid, para 42. 126 Margus v Croatia (2014). 127 ibid, para 126; Adülsamet Yaman v Turkey (2004) para 55; Okkali v Turkey (2006) para 76; Yesil and Sevim v Turkey (2007) para 38. 122

198 Special Challenges No 7 and State’s obligations under Articles 2 and 3 of the Convention should be regarded as parts of a whole.128

Yet, in the same case, the ECtHR backtracks from this position on the basis that the ECHR and its Protocols ‘cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part’.129 Exploring the various standpoints of other international laws (which are increasingly in favour of only prohibiting amnesties for grave breaches of fundamental human rights), the ECtHR arrived at the ambiguous conclusion: in the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court’s reasoning referred to the applicant’s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.130

The ECtHR implies that it is open to the idea of amnesties in particular circumstances, which contradicts its earlier statement within Margus that amnesties should not be permitted. This is further supported by the ECtHR’s finding that an erroneous application of the amnesty law occurred; it was not concerned with the fact that the amnesty law existed in the first place.131 Further confusion arises as to whether the ECtHR is referring to all forms of amnesty here. For example, does it include amnesties for decommissioning of weapons? Or is it limited to the type of amnesty discussed in this case, which is prohibiting the prosecution of criminal acts committed during a specific period? There are two issues here. The first is with the development of the ECtHR’s reasoning within Margus. It is important that the ECtHR considers all aspects before formulating an opinion and it is commended for directly considering other sources of international law. However, the ECtHR must do so appropriately, which it fails to achieve in Margus. It is nonsensical to make a solid declaration on the standing of the ECHR and then turn to different standards of international law for support; it is unsurprising that this resulted in a confused conclusion. The analysis of other sources should take place in partnership with the assessment of the ECHR. The ECtHR should make clear declarations as to which of these sources are appropriate and which are not in a European context, before reaching a conclusion that is clear enough to create a stable precedent. Instead, observers are 128

ibid, para 128. ibid, para 129. 130 ibid, para 139. 131 ibid, para 76. 129

Amnesties and Pardons 199 left unsure whether amnesties are permitted in certain circumstances (the general approach) or absolutely prohibited (the approach that the ECtHR initially indicated that it favoured). Once again, the ECtHR’s weak approach on contentious issues with detrimental consequences is apparent. The inconsistent reasoning in Margus may be symptomatic of a general defect in the ECtHR’s jurisprudence. There is no clear answer as to whether amnesties are permitted within Europe, and if so, under what circumstances. In Margus the ECtHR attempted to avoid the issue, stating that developing a general stance on amnesties is not relevant for that individual case. This case was dealing with a particular kind of amnesty, but that does not mean that the opportunity cannot be seized to widen the discussion, to the Court’s stance on amnesties more generally. Such a discussion is relevant, as it would be related to the wider context of the individual case. It would also be better from a jurisprudential perspective to offer a clear obiter dicta stance on amnesties more generally, than the contradictory ruling that eventually emerged. This is relevant from the standpoint that a contradictory ruling creates confusion for its service-users, which is detrimental to the ECtHR’s aim of promoting and protecting human rights within Europe. Unless states know what they should and should not be doing, how can they take the necessary steps to protect and promote human rights, particularly the right to life? From a victim’s point of view, if it is not clear what constitutes a violation of the ECHR, how can he or she be expected to know when their rights were violated? From the ECtHR’s perspective, how can it uphold the ECHR if it is not sure of the exact obligations contained within it? The poor legal reasoning and inconsistent jurisprudence is causing the ECtHR’s legitimacy to slip, which affects its impact.132 The ECtHR lacks ‘the power of the purse and the sword, so legitimacy is an essential asset to secure the necessary cooperation and compliance’.133 In other words, ‘clear and flawless reasoning assists the acceptance of the Court’s jurisprudence’.134 A certain element of predictability is also crucial for national courts135 as: the legitimacy of judicial rulings is guarded by the principles of consistency, legal certainty and predictability. Legal certainty is vital if national courts are expected to follow and apply Strasbourg case law and to do so without the fear that it will be easily overturned.136

Therefore, ‘precedent should not be departed from without good reason’;137 this would ‘make [the ECtHR] look too much like a political organ that is motivated by expediency rather than by principle’.138 Furthermore, focusing on constructive 132 J Fraser, ‘Conclusion: The ECHR as a Common European Endeavour’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 193. 133 T Zwart, ‘More Human Rights Than Court: Why the Legitimacy of the ECtHR Is In Need of Repair and How It Can Be Done’ in ibid, 81. 134 W Thomassen, ‘The Vital Relationship Between the ECtHR and National Courts’ in ibid, 101. 135 ibid. 136 Fraser (n 132) 198. 137 ibid. 138 Zwart (n 133), 85.

200 Special Challenges dialogue between national courts and the ECtHR during contentious cases saves time and resources, thus providing a more effective way of dealing with repetitive cases.139 There is insufficient clarity within the ECtHR’s judgments to say with authority that these translations equate to a precedent set by the Court. The ECtHR should consider its stance on amnesties and be clear what this is as it moves forward. If the ECHR is to allow amnesties, it must specify precisely under what narrow circumstances, and what additional conditions must be required. More generally, the ECtHR should take more care with its judgments and ensure that they are clear, consistent and non-contradictory. The requirement for such clarity is confirmed by considering the differing approaches to amnesty across Europe, particularly when the crimes subject to amnesty occur during times of conflict.

A. The Differing Approaches to Amnesties and Pardons at a Domestic Level In Spain, while the Amnesty Law 1977 still applies, there is no legal provision for amnesties within the Constitution or Criminal Code. However, a royal pardon is provided for.140 In France the Parliament has the power to introduce an amnesty.141 There were calls for the French and Spanish authorities to offer amnesties to ETA prisoners, but these were not heeded.142 For the actions of state actors (eg GAL) no official amnesty was provided. The Spanish and French authorities were accused of turning a blind eye to abuses from their security forces.143 Where convictions resulted, there is evidence that partial amnesties or pardons occurred. The convictions of the former Spanish Interior Minister, José Barrionuevo Peña (as head of GAL), his former Deputy Rafael Vera and former Civil Governor Julian Sancristobal, led to a form of pardon. All three were sentenced to 10 years’ imprisonment and 12 years of absolute disqualification from holding public office.144 After one year’s imprisonment and an appeal, Vera and Peña (who always denied the charges) were pardoned.145 Vera was re-convicted for the lesser charge of embezzling public funds to support GAL, but his superior was given a full pardon.146 It is accepted that GAL was state-funded and operated as a

139 K Dzehtsiarou and N O’Meara, ‘Advisory Jurisdiction and the ECtHR: A Magic Bullet for Dialogue and Docket-control?’ (2014) 34(3) Legal Studies 444, 457–62. 140 Arts 62(i) and 102(3), Constitution of Spain 1978; Art 130(1)(4), Organic Act 10/1995 on the Criminal Code of 23 November 1995. 141 Art 34(1), Constitution of the Fifth Republic of France 1958. 142 R Clark, Negotiating with ETA: Obstacles to Peace in the Basque Country, 1975–1988 (University of Nevada Press, 1990) 237; ‘ETA prisoners accept “legal channels” for release’, Expatica, 28 December 2013. 143 AI, ‘France: Police Above the Law?’, 2 April 2009; AI, Spain: Adding Insult to Injury: The Effective Impunity of Police Officers in Cases of Torture and Other Ill-Treatment (AI, 2007). 144 ‘World: Europe Ex-minister jailed in “dirty war” scandal’, BBC News, 29 July 1998. 145 Expaticia (n 36). 146 ibid.

Amnesties and Pardons 201 covert state body, making it difficult to accept that the Minister in charge at that time had no input. This raises the question of whether the appellant court was acting without bias or political motive. In addition, the state actors who had their convictions upheld for their activities within GAL were released from prison early under the indulto system, a form of pardon.147 Article 71(n) of the Constitution of the Russian Federation 1993 and Article 64(16) of the Constitution of the Chechen Republic 2003 allow for the possibility of an amnesty or pardon. The Russian Federation, with the support of the Chechen Parliament, decides whether to grant an amnesty in Chechnya. A law was introduced in 2003 offering amnesties in respect of criminal acts committed by the participants to the Chechen conflict on both sides between December 1993 and June 2003.148 In 2006 the amnesty period was extended from 5 December 1999 to 23 September 2006.149 These amnesty laws do not apply to grievous crimes (eg murder). Instead, in such cases all the Russian army servicemen prosecuted for crimes against civilians in Chechnya were given conditional sentences.150 Russia argued that amnesties do not free perpetrators from their compensatory obligations and justifies amnesties as a necessary move in the interests of peace.151 The ECtHR remains silent on the matter, despite having had several opportunities to at least provide obiter dicta comments. Amnesties within the UK system can be granted by executive policy, executive decree and statute.152 In NI, section 4 of the NI Arms Decommissioning Act 1997 offered an amnesty for those who decommissioned their firearms, ammunition and explosives used during the Troubles. Overseen by the Independent International Commission on Decommissioning, this scheme ran from 26 August 1997 to 9 February 2010.153 The On the Runs Scheme (OTR) could be viewed as an amnesty, but it was not categorised as such by the UK government and Lady Justice Hallett who reviewed the scheme.154 As part of the OTR, a secret review was carried out regarding individuals from NI who were wanted by the police in connection with crimes that occurred during the Troubles. This extended to ‘anyone suspected of, but not charged with, paramilitary offences committed before the GFA’ and ‘those who had been charged with offences but who had escaped’.155 Following this review letters were issued to those selected. These stated that there were no warrants for their arrest and that they were not wanted for arrest,

147

I Urizar, Behatokia interviewed 8 January 2015. Decree No 4124-III of 6 June 2003. 149 Resolution of the State Duma of the Russian Federation No 3498-4, 22 September 2006. 150 Khashiyev and Akayeva v Russia (2005) para 72. 151 DH-DD(2013)935, ‘Action Plan (14/08/2013): Russian Federation’, 6 September 2013, p 4. 152 L Mallinder, ‘The Belfast Guidelines on Amnesty and Accountability’ (TJI, 2013) 56. 153 s 2, The NI Arms Decommissioning Act 1997 (Amnesty Period) Order 2009. 154 G McKevitt, ‘On the Runs—Hallett Review and key questions’, BBC News, 17 July 2014; Lady Justice Hallett, ‘The Hallett Review’ (Crown, 2014) para 10.3. 155 BBC News, ‘OTR letters: Tony Blair says NI peace process could have collapsed without scheme’, BBC News, 10 February 2015. 148

202 Special Challenges questioning or charging by the police in NI, or elsewhere.156 The OTR faced much criticism.157 The Westminster’s NI Affair Committee concluded that the scheme was not ‘actually illegal’, but recommended that the letters had no legal effect.158 There were also a number of partial amnesties in relation to NI. For example, the release of politically motivated prisoners imprisoned on the island of Ireland linked to paramilitary groups on ceasefire159 at the time of the GFA.160 The eligible prisoners were those imprisoned before 10 April 1998 (the date of the GFA), and a cap was placed on their sentence.161 Prisoners sentenced to five or more years were to be released after serving one-third of their sentence. Those sentenced to life were to serve terms comparable to a prisoner not sentenced to terrorist-related crimes minus one-third, if they were not considered a danger to the public or associated with any live organisation.162 A cut-off date of June 2000 was set, and all eligible prisoners still incarcerated were released. This equated to a two-year cap on the sentence of these prisoners.163 This provision did not extend to those not convicted or convicted but not in prison, at the time the scheme commenced;164 the OTR was used instead.165 Article 87 of the Constitution of the Republic of Turkey 1982 allows for the possibility of amnesties and pardons, but since 2001 this requires the approval of three-fifths of the Turkish Grand National Assembly.166 Amnesties or pardons for convicted terrorists are prohibited in Turkey.167 Law No 4616 provides that in cases where no judgment has been given, a trial or judgment may be postponed for five years for offences committed before 23 April 1999 and carry a maximum sentence of less than 10 years’ imprisonment.168 This provision was amended to exclude serious crimes, such as torture.169 The Turkish authorities

156

McKevitt (n 154). BBC News (n 155). 158 NI Affairs Committee, ‘The Administrative Scheme for “On-the-Runs”’, 24 March 2015, Conclusions and Recommendations. 159 These are groups that declared a suspension to all forms of violent acts. At the time of the Good Friday Agreement these included the UDA, the UVF, the LVF, the IRA and the INLA. It did not extend to members of the CIRA, the Real IRA, the RHD or the OV as they were not on ceasefire at the time of the GFA: M Melaugh, ‘Violence: Loyalist and Republican Paramilitary Groups’, http://cain.ulst.ac.uk/ issues/violence/paramilitary.htm. 160 K McEvoy, ‘Prisoners, the Agreement, and the Political Character of the NI Conflict’ (1999) 22 Fordham International Law Journal 1539. 161 DPI, ‘The Good Friday Agreement—Prisoner Release Processes’ (DPI, August 2013) 12. 162 ss 3–9, NI (Sentences) Act 1998; Criminal Justice (Release of Prisoners) Act 1998. 163 DPI (n 161), 12; C Bell, ‘Dealing with the Past in NI’ (2002) 26(4) Fordham International Law Journal 1095, 1112. 164 Bell (n 163) 1112. 165 McKevitt (n 154). 166 Art 87, Constitution of the Republic of Turkey, as amended on 17 October 2001. 167 Art 1, Law No 5218 of 14 July 2004. 168 Law No 4616, Law on Conditional Release, Suspension of Trial and Punishment for (Certain) Crimes Committed until 23 April 1999’ of 21 December 2001. 169 ibid, Art 5. 157

Conclusion 203 circumnavigated this by charging state authorities with ill-treatment (as opposed to torture), which is not subject to the exclusion. The ECtHR found Law No 4616 to equate to a partial amnesty. This violates Article 2 as it enables convicted state agents to enjoy ‘virtual impunity despite their conviction’.170

V. CONCLUSION

The ECtHR must give particular consideration to the existence of collusion, the presence of intimidation, the use of statute of limitations, and the utilisation of amnesties and pardons. These challenges are most common during times of conflict. If left unchecked, they create a culture of non-transparency and injustice that leaves Article 2 vulnerable to violation. It should be made clearer that collusion and intimidation are absolutely prohibited. This can be facilitated by inserting provisions to that effect in the proposed guidelines. Provisions should also be included that confirm the ECHR’s standing on the use of statute of limitations, and the use of amnesties and pardons. The suggested wording of these provisions is set out in the Appendix. Furthermore, the ECtHR should take more care with its judgments and ensure that they are clear, consistent and non-contradictory.

170

Ali and Ayse Duran v Turkey (2008) para 69.

10 CoE Bodies and Protecting Life

R

ESPECT FOR HUMAN rights is ‘nowadays not so much a matter of having international standards, but rather questions of compliance with those standards’.1 Through ratifying the ECHR (a voluntary commitment to be bound by the obligations contained within), the HCPs are legally prohibited from non-compliance with Article 2 (and other provisions of the ECHR). The four case studies illustrate that a state’s ‘compliance with human rights in good faith’ cannot be relied upon.2 The role of the CoE bodies is to promote compliance with the ECHR and address issues that encourage or enable non-compliance. The ECtHR’s job is to ‘ensure the observance of the engagements undertaken by the HCPs in the Convention and the Protocols thereto’.3 This includes Article 2. This function is restricted by the principle of subsidiarity,4 which requires that the national authorities (especially the courts) ‘protect the rights laid down in the ECHR’.5 Thus the ECtHR’s supervision is designed to be supplementary and subsidiary to the protection of rights and freedoms under national legal systems, but it should not be a barrier. The role of the ECtHR: is to interpret an international treaty providing for the collective guarantee of human rights, the treaty thus based on the primordial and crucial assumption that all the Contracting Parties agree that, in principle, the protection of human rights is not an issue that is purely a matter for domestic concern. Hence, embodied in the ECHR is an express acknowledgment of certain common values that all Member States share as regards minimum guarantees of human dignity and protection.6

This requires the ECtHR to intervene when a state steps out of line. The ECtHR makes a judgment, the CoM supervises the execution of that judgment,7 and 1 Council on Foreign Relations, ‘The David A Morse Lecture with Michelle Bachelet’, 25 September 2008. 2 H Keller and C Heri, ‘Enforced Disappearances and the ECtHR’ (2014) 12(4) Journal of International Criminal Justice 735, 746. 3 Art 19, ECHR. 4 Art 5, Treaty of the European Union 1992. 5 Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002) 70. 6 R Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14(3) Human Rights Law Review 1, 7. 7 Arts 46(2) and 46(5), ECHR.

Lack of Cooperation 205 the PACE and Commissioner on Human Rights monitor developments (or lack thereof).8 These mechanisms are not operating to their full capacity and do not always deal with issues appropriately. The four case studies illustrate that this is particularly relevant for conflict-related Article 2 cases, though the recommendations made in this chapter can be extended to better protect the rights set out in the ECHR as a whole. This chapter identifies five challenges facing the CoE bodies in fulfilling their duty to guarantee the ECHR, including the right to life. These are: states not cooperating with the ECtHR; a failure by the ECtHR to adequately address systematic violations; an inappropriate use of compensation by the ECtHR; a failure to address the politicisation of the CoE bodies; and a lack of awareness of the ECHR. If left unaddressed, these issues can contribute to or enable a state’s non-compliance with the ECHR. This chapter offers recommendations for tackling these issues with the knowledge that legal measures and external inputs have limitations; real compliance requires states to respect, promote and protect the ECHR in practice at a domestic level.

I. LACK OF COOPERATION

Facts are ‘indispensable for the determination’ of whether an HCP has complied with the ECHR or not.9 There are instances where states fail to cooperate with the ECtHR, which hinders the ability to establish the facts and compromises the case. Article 38 of the ECHR attempts to tackle such situations. It states that ‘the Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the HCP concerned shall furnish all necessary facilities’. Taken in partnership with Article 34 of the ECHR, which states that ‘the HCPs [should] undertake not to hinder in any way the effective exercise’ of the right to individual petitions to the ECtHR, the Court found that ‘States should furnish all the necessary facilities to make possible a proper and effective examination of applications’.10 This obligation requires that HCPs: furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on a government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as

8 CoE, ‘The Powers of the Assembly’, http://website-pace.net/en_GB/web/apce/powers; CoE, ‘Commissioner for Human Rights: Mandate’, www.coe.int/en/web/commissioner/mandate. 9 P Leach et al, International Human Rights and Fact-Finding: An Analysis of the Fact-Finding Missions Conducted by the ECommHR and ECtHR (HRSJRI, 2009) 45. 10 Tanrikulu v Turkey (1999) para 70; Velikova v Bulgaria (2000); Sultygov and Others v Russia (2014) para 472.

206 CoE Bodies and Protecting Life to the well-foundedness of the allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38.11

In effect ‘where it is the non-disclosure by the government of crucial documents in their exclusive possession that is preventing the Court from establishing the facts’, the burden of proof shifts from the applicant to the respondent.12 Satisfactory explanations for non-disclosure could be confidentiality or security considerations, but this must be to the extent that the ECtHR is satisfied ‘that there existed reasonable and solid grounds for treating the documents in question as secret or confidential’.13 Despite these obligations on states, drawing from the four case studies, there is a distinct lack of cooperation during times of conflict. This contributes to a violation of the procedural obligation to investigate suspicious deaths. It poses a double challenge for the ECtHR: on the one hand, receiving enough evidence to make an informed judgment, and on the other, holding states to account for lack of cooperation. There are two ways the ECtHR can tackle these challenges more effectively: adopting a more consistent application of Article 38 of the ECHR, and conducting more fact-finding missions.

A. Consistent Application of Article 38 of the ECHR The ECtHR ‘has not been shy’ when recording a state’s lack of cooperation and violations of Article 38.14 However, three of the case studies show that the ECtHR is inconsistent in its application of this provision.15 Regarding the Troubles in NI, there is no Article 38 claim against the UK. Evidence is emerging in Article 3 cases that ‘the UK succeeded in persuading the ECtHR to absolve it of the “special stigma” of a finding of torture by not disclosing relevant evidence and by taking a position that was directly contradicted by its own, internal advice’.16 The ECtHR was allegedly deceived by the UK, making an Article 38 ruling unnecessary. Yet in Ireland v UK (1978) the ECtHR was aware of the UK’s failure to cooperate fully with the ECommHR. Instead of tackling the issue, the Court stated that ‘it was regrettable that the UK government did not always afford [the ECommHR] the assistance desirable’.17 O’Donoghue J criticised his colleagues for showing

11 Sultygov and Others v Russia (2014) para 472; Medova v Russia (2009) para 76; Timurtas v Turkey (2000) paras 66 and 70. 12 Akkum v Turkey (2005) para 211. 13 Janowiec and Others v Russia (2013) para 205. 14 D Harris et al, Harris, O’Boyle and Warbrick: Law of the ECHR (OUP, 2009) 147. 15 There are no cases before the ECtHR concerning the right to life regarding the Basque conflict. Consequently, an assertion cannot be made on the Court’s application of Article 38 concerning this conflict. 16 AI, ‘UK/Ireland: Landmark “hooded men” torture case should be re-opened’, 24 November 2014. 17 Ireland v UK (1978–80) para 148.

Lack of Cooperation 207 ‘nothing even approaching disapproval’ towards the UK’s behaviour, and warned that it would prevent inter-state cases in the future.18 His predictions proved accurate.19 Russia’s failure to disclose the entire contents of investigation files to relatives has become a trend.20 The ECtHR requested Russia to produce the relevant documents capable of rebutting an applicant’s allegations of state involvement in a killing or disappearance. Russia attempted to appease the Court’s requests in a number of ways. First, it alleged that the requested information contains ‘military secrets’,21 or that its non-disclosure was in the interests of ‘national security’.22 The ECtHR confirmed in A v UK (2009), which concerns the right to a fair trial (Article 6 of the ECHR),23 that these excuses have limits. There must be a balance between protecting national security and interfering with an individual’s human rights. Second, Russia on occasion relies on Article 161 of the Russian Code of Criminal Procedure 2001 (eg Article 2 cases Imakayeva v Russia (2006) and Taysumov and Others v Russia (2009)).24 This provision provides that ‘the data of the preliminary inquisition shall not be divulged’25 except: with the permission of the Public Prosecutor, the investigator and the inquirer, and only in that volume, in which they recognise this as admissible, if such divulgence does not contradict the interests of the preliminary inquisition and is not connected with a violation of the rights and lawful interests of the participants in the criminal court proceedings. The divulgence of the data on the private life of the participants in the criminal court proceedings without their consent shall be inadmissible.26

The ECtHR disregards Article 161 as ‘insufficient to justify refusal’.27 Nevertheless, the Court is yet to declare the existence of this provision as incompatible with the ECHR and to suggest its revocation. It maintains that Article 161 does not preclude the disclosure of investigation files, but rather sets out the procedure for and limits to such disclosure.28 Third, where Russia does supply information, it is inadequate and full of discrepancies (eg Dzhamayeva and Others v Russia (2009) and Taysumov and Others v Russia (2009)).29 Fourth, Russia denies responsibility and makes uncorroborated claims that non-state actors are to blame. For example, in Mezhidov v Russia (2008) the Russian authorities claimed that it was illegal fighters who 18

ibid, Separate Opinion of Judge O’Donoghue. B Dickson, The ECHR and the Conflict in NI (OUP, 2010) 68. Imakayeva v Russia (2006) para 202; Akhmadova and Sadulayeva v Russia (2007) para 93. 21 Akhmadova and Sadulayeva v Russia (2007), at para 89; Sultygov and Others v Russia (2014) para 471. 22 Khatsiyeva and Others v Russia (2008) para 123. 23 A and Others v UK (2009) para 220. 24 Taysumov and Others v Russia (2009) para 131; Imakayeva v Russia (2006) para 123. 25 Art 161(1), Russian Code of Criminal Procedure 2001. 26 Art 161(3), ibid. 27 Taysumov and Others v Russia (2009) para 131; Imakayeva v Russia (2006) para 123. 28 Musikhanova and Others v Russia (2008) para 107. 29 Dzhamayeva and Others v Russia (2009) para 92; Taysumov and Others v Russia (2009) para 92. 19 20

208 CoE Bodies and Protecting Life had attacked the Chechen village of Znamenskoye on 5 October 1999, killing the applicant’s civilian relatives. Russia did not corroborate its ‘version of events with any documentary evidence, and even failed to give more detailed explanations in this respect’.30 Commendably, the ECtHR is not deterred by the lack of compliance. Instead it draws from the facts it has before it to make a determination.31 However, the result is usually that Russia is found to be in violation of Article 2, not Article 38. The ECtHR adopted a mixed approach to Russia’s refusal to cooperate in Article 2 investigations. On the one hand, the Court ruled that the incomplete nature of certain documents did not prevent it from examining the application, particularly where the surrounding circumstances indicate state involvement. Consequently, Russia did not fail to comply with Article 38.32 On the other hand: in a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merit stages.33

Similar to Russia, lack of cooperation from the Turkish state authorities has been common in Article 2 cases before the ECtHR. This is exemplified by the need for fact-finding missions. Yet there are few occasions when Turkey is found to have violated Article 2 and Article 38. Turkey was found in violation of Article 38 when it did not provide sufficient reasoning for imposing security restrictions on witnesses crucial to the Article 2 claims in Aktas v Turkey (2003).34 The ECtHR highlighted the ‘importance of respondent governments cooperating in Convention proceedings’.35 There are six Article 2 cases where the ECtHR discovered that a number of documents mentioned within the Turkish government’s evidence were never presented to the Court.36 The government did not advance any explanation to account for the failure to submit these documents. Consequently, the ECtHR found a violation of Article 38. In addition to this common compliant, the Public Prosecutor and judges of the related domestic cases refused to meet with the ECommHR. Also the Turkish government refused to identify or summon police officers related to the Article 2 claims being investigated by the Commission. 30

Mezhidov v Russia (2008) para 59. Arapkhanovy v Russia (2013) para 118; Taysumov and Others v Russia (2009) para 85; Isayeva, Yusupova and Bazayeva v Russia (2005) para 177. 32 Sultygov and Others v Russia (2014) para 474; Gakayeva and Others v Russia (2013) para 389; Khatsiyeva and Others v Russia (2008) para 168. 33 Sasita Israilova and Others v Russia (2010) para 143; Taysumov and Others v Russia (2009) para 130; Musikhanova and Others v Russia (2008) para 108; Akhmadov and Others v Russia (2008) para 151; Akhiyadova v Russia (2008) para 110; Kukayev v Russia (2007) para 123; Tanrikulu v Turkey (1999) para 71. 34 Aktas v Turkey (2003) para 346. 35 ibid. 36 Akkum and Others v Turkey (2005) para 190; Yasin Ates v Turkey (2005) para 87; Kismir v Turkey (2005) para 80; Koku v Turkey (2005) para 109; Togcu v Turkey (2005) para 87; Süheyla Aydin v Turkey (2005) para 143. 31

Lack of Cooperation 209 As a result Turkey was found to have violated Article 38 in Süheyla Aydin v Turkey (2005).37 It is unclear how the Court chooses when to adopt which approach. It could be that the judgments follow a chronological pattern, indicating a shift in precedent. Or it could be that one judicial panel decided to focus on different issues from other panels.38 There is no defining difference in the surrounding circumstances of each case. Therefore a differential approach to Article 38 is not obviously justified, if at all. Consistency and clear reasoning in Article 38 rulings is important. It helps to ensure that states take the resulting judgment seriously, which can also positively impact adherence to the ECHR more generally.

B. Fact-finding Missions In instances where there is a lack of cooperation or the facts are disputed, there are a number of options available to assist the ECtHR expose the truth. The Court can appoint experts, request third-party interventions and seek the opinions of other CoE bodies or international human rights bodies. The ECtHR is increasingly relying upon these various sources.39 Another option available is for the ECtHR to conduct its own fact-finding mission.40 This is where the Court sends its own investigators to conduct interviews and gather evidence in an attempt to establish what happened. It can involve a fact-finding hearing41 or on-the-spot investigation.42 These are used ‘where there are fundamental disputes between the parties, which cannot be resolved by considering documentary evidence only’.43 They are created at the Court’s discretion, which can be prompted by a request from the parties or on the Court’s own motion without a need for either party to consent.44 Approximately 95 fact-finding missions have been conducted by the former ECommHR and the ECtHR.45 From an Article 2 perspective, a number were conducted in Turkey concerning the Turkish-Kurdish conflict, some to the point of the ECommHR acting as a court of first instance.46 None were conducted in Chechnya, despite similar issues arising. In fact, the ECtHR’s fact-finding missions have ‘steadily diminished over the years’.47 Fact-finding missions are only 37

Süheyla Aydin v Turkey (2005) paras 140–43. F Hampson, School of Law at University of Essex, interviewed 11 July 2014. 39 Harris (n 14) 144. 40 This function was conducted by the former ECommHR, until its abolition with the enactment of Protocol No 11 to the ECHR in 1998. 41 A formal hearing process where witnesses give evidence before a delegation of the Court and are subject to a process of examination and cross-examination: Leach (n 9) 10. 42 This is a fact-finding mission that does not involve a formal hearing process. It often involves inspections or prisons or other places of detention: ibid. 43 ibid, 9. 44 ibid, 34. 45 Harris (n 14) 145. 46 Leach (n 9) 32. 47 Harris (n 14) 144. 38

210 CoE Bodies and Protecting Life used where it is thought that it could assist in a determination about substantive violations of Articles 2 or 3, which was not a problem in the Chechen cases.48 The issue in the Chechen cases was establishing the detail of what happened—who is responsible, where the body is, which institution was responsible.49 There is now a presumption against such missions.50 The appropriateness of this is questioned51 as ‘fact-finding is ascribed significance in terms of narrative, exposure, education, advocacy and legitimacy. In-country fact-finding can also serve to assert international authority in times of conflict, bringing a visible presence, and official contacts with government and security officials’.52 One challenge facing the ECtHR’s fact-finding missions is the amount of resources required.53 When weighed against the number of cases concerning Chechnya before the ECtHR, the expenditure of the required resources would be justified, as ‘more fact-finding would lead to more accountability with clearer findings and clearer conclusions about responsibility’.54 More factual information could also reduce the length of cases and might open up the possibility of a pilot judgment. This would assist with reducing the Court’s caseload overall. However, ‘any finding of a systematic violation must be based on facts. It should not be assumed that because A was unlawfully killed by the State, that it was the same for B, C and D.’55 A further challenge is that the fact-finding body will not have local knowledge. For example: the violations in southeastern Turkey were all over that region and concerned a lot of different kinds of violations. The population gets to know the significance of things. For example, white Renaults were known as the car driven by undercover Turkish police. The ECommHR did not know the significance of the things that the locals took for granted and had become part of a pattern. … Therefore, if the host State would not co-operate, or if it could or would not compel the relevant local authorities to co-operate, there is no point in carrying out fact-finding because it would not be capable of delivering the goods. The issue is not are conditions perfect. The issue is, are they good enough to make it worthwhile? There is reason to believe that it would not be worthwhile in relation to the Chechen cases.56

There is no obvious solution to this issue. A mitigating factor is for the ECtHR to take into account third party interventions and NGO reports, but the Court should not over-rely on these sources.57 48

Leach (n 9).

49 ibid. 50

ibid, 43. Bowring, School of Law, Birkbeck, University of London interviewed 10 July 2014; P Leach, EHRAC, School of Law, Middlesex University interviewed 11 July 2014. 52 Dinsmore, Forced Movement and International Human Rights Law: A Case-Study of the ECHR in Turkey (QUB, 2012) 250. 53 Harris (n 14) 144. 54 Leach (n 51). 55 Hampson (n 38). 56 ibid. 57 ibid. 51 B

Lack of Cooperation 211 There is less need for fact-finding missions now that the ECtHR is open to drawing inferences from the state’s failures to cooperate in certain circumstances.58 This can apply in cases of ‘non-disclosure of documents, the non-attendance of witnesses and the provision of insufficiently plausible explanations in respect of particular aspects of the case’.59 However, it is difficult to draw inferences when there is little to no evidence, as in many of the disappearance cases in Chechnya and Turkey. From an evidential perspective, heavily relying on inferences when accusing the state of unlawful killings is questionable. It is: one thing to infer that the State has not investigated properly. This is often the case or it is evident that the State has not handed over the investigation file. But it is another to use the inadequate investigation to infer that the State was responsible for the unlawful killing itself.60

It is important for the ECtHR to not draw inferences or presume the fact ‘of State wrongdoing where the totality of the evidence does not warrant that finding’.61 Is this an effective way to prevent similar violations in the future? If the root cause is not challenged and the individual perpetrators are not held accountable, it is unlikely that the ECtHR’s ruling will have an impact at a grass-roots level.62 This enables non-compliance to flourish. On the one hand, it is better to expose the failings on behalf of the state wherever possible, even if it does not provide all the answers. Realistically the Court cannot conduct a fact-finding mission in every case. Fact-finding missions have their limitations (eg witnesses and production of documents are not compellable).63 On the other hand, a failure to engage in such missions raises the question of whether the ECtHR is doing enough to promote the ethos of the ECHR (the purposes of Articles 2 and 13 specifically) by settling for a less intrusive option in nearly all cases. The ECtHR should be more open to fact-finding missions, particularly in extreme cases (eg Chechnya). Establishing the facts of what happened enables more effective use of measures and assists with ensuring that similar violations do not occur in the future. Yet honouring the principle of subsidiarity, factfinding missions should be the exception rather than the rule.64 To maintain a selective approach which takes into account the resource constraints, the Court could adopt a test case approach (similar to the pilot judgment procedure). The selection of cases could be guided by: the nature or seriousness of the case; the shortcomings of the national system in establishing the facts; the prospects of a successful fact-finding mission; the passage of time; the time and cost required; and the pedagogical function.65 58

Harris (n 14) 144. Leach (n 9) 21. Hampson (n 38). 61 M Smith, ‘The Adjudicatory Fact-finding Tools of the ECtHR’ (2009) 2 European Human Rights Law Review 206, 228. 62 Hampson (n 38). 63 Harris (n 14) 146. 64 Leach (n 9) 44. 65 ibid, 37–43. 59 60

212 CoE Bodies and Protecting Life II. SYSTEMATIC VIOLATIONS

There is no strict definition of a ‘systematic’ violation. A former ECtHR judge understands that: human rights abuses and the related events, situations and claims might be termed ‘structural’ or ‘systematic’ when they are embedded in social fabrics, political economy and government practices, are implemented by social policies and legislative acton or are determined by major forms of group discrimination. The amount of structural violation, counted in terms of the number of respective claims, cases, or breaches, results in the ‘scale’ or proportion of actual harm inflicted. Although structural violation tends to be large in scale, there is no conceptual identity between the two dimensions.66

The CoM indicates that such violations can be identified by looking at repetitive cases that come before the ECtHR.67 Systematic violations are often the result of an administrative practice; that is acts or omissions ordered by state officials and conducted on a wide scale: those which can affect many thousands of people … sometimes occur because of deficiencies in a State’s legislation, but more frequently they are caused by a diverse range of factors, including a State’s poor administrative practice, the prevalent judicial and legal cultures, budgetary deficits and an absence of sufficient political will to resolve the issue.68

Systematic violations are the epitome of non-compliance and need to be adequately addressed. [proving that a state is] systematically failing to comply with its Convention obligations is extremely difficult. It requires a lot of hard evidence. Suggestions that the State is failing in its obligations can be easily defeated by the State showing that it is making its best effort to prevent abuses of rights or that the failings, even if widespread, are at the level of low or middle management. If these efforts and failings are not out of line with best practice elsewhere in Europe, the enforcement bodies in Strasbourg will be loath to condemn them as inadequate. It will always be very difficult for an applicant to prove that there was ‘official tolerance’ of ill-treatment at a high level of government.69

Predictably, the existence of systematic violations (and the suggestion that they are part of an administrative practice) is strongly contested by state representatives when the issue is raised. The existence of a systematic violation indicates a state that is unable to control its own affairs. Finding acts and omissions to be incompatible with the ECHR (specifically Article 2) is tantamount to saying that the state is intentionally disregarding its obligations and duties concerning the

66 P Jambrek, ‘Individual and Collective Security in the Balkans’ in CoE, Societies in Conflict: The Contribution of Law and Democracy to Conflict Resolution (CoE, 2000) 10. 67 CoM, ‘Resolution Res(2004)3’, 12 May 2004. 68 Leach et al, Responding to Systematic Human Rights Violations: An Analysis of ‘Pilot-judgments’ of the ECtHR and Their Impact at National Level (Intersentia, 2010) 1. 69 Dickson (n 19) 146.

Systematic Violations 213 right to life. For years, the ECtHR was hesitant to deal with evident systematic violations. Despite the vast number of repetitive rulings related to conflict scenarios (particularly against Turkey and Russia), the Court stopped short of determining that there were systematic violations. The former ECommHR and the ECtHR generally have insisted on dealing with individual cases as an isolated incidents. This is with the exception of interstate cases, where they are more open to accepting that systematic violations occurred.70 This is on the basis that these bodies are ‘incompetent to examine an in abstracto issue under Article 25 [of the ECHR]71 distinct from its effects upon the individual’.72 For example, in Donnelly v UK (1975)73 the ECommHR was asked to consider whether a systematic administrative pattern which permitted and encouraged brutality existed within NI. By stating that they agreed that the competency of the ECommHR and ECtHR did not stretch to in abstracto matters, the applicants countered the ECommHR’s established stance. They argued that to claim that violations were systematic and that the ECHR bodies should look into this further was not in abstracto. The applicants proved themselves to be (and were accepted as) direct victims of the violations. Thus it was ‘inconsistent with the purposes of the Convention not to allow an individual applicant who otherwise met the requirements … to raise the issue of a widespread practice of violations of the Convention within his own country’.74 The ECommHR agreed that: neither Article 25 [now Article 34], nor any other provisions in the Convention … prevent an individual applicant from raising before the Commission a complaint in respect of an alleged administrative practice in breach of the Convention provided that he [or she] brings prima facie evidence of such a practice and of his [or her] being a victim of it.75

Donnelly was deemed inadmissible, as some applicants failed to exhaust the domestic remedies available and others were satisfactorily remedied by compensation for their ill-treatment. Consequently, the ECommHR did not have to consider the claim of administrative systematic violations any further. Any subsequent consideration of this matter was rejected due to insufficient evidence that the violation formed an administrative practice.76 Thus initially, where the European judicial bodies had the opportunity to consider systematic violations they avoided the subject. Examples from the Chechen, NI and Turkish-Kurdish

70 J Lapitskaya, ‘ECHR, Russia and Chechnya: Two is Not Company and Three is Definitely a Crowd’ (2011) 43 International Law and Politics 479, 542; Leach (n 51); Hampson (n 38). 71 Former Art 25 of the ECHR, now Art 34 of the ECHR. 72 K Boyle and H Hannum, ‘Individual Applications Under the ECHR and the Concept of Administrative Practice: The Donnelly Case’ (1974) 68 American Journal of International Law 440, 445. 73 Donnelly v UK (1975). 74 Boyle (n 72) 446. 75 Donnelly v UK (1975) 146. 76 B Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge, 2008) 95.

214 CoE Bodies and Protecting Life conflicts illustrate this. Potential systematic violations regarding the Basque conflict have not been brought before the ECtHR. The ECtHR was not a form of appeal which was known (or attractive) to the Basque community at the time these cases came to light.77

A. Missed Opportunities to Consider Systematic Violations—NI The earliest available opportunities for the ECtHR to consider systematic violations of Article 2 were provided by the NI conflict. It is alleged that ‘a number of factors combine to exclude mere coincidence and indicate that a shoot-to-kill policy operated in NI during particular periods’, namely 1977–78 and 1982–85.78 It became an implied policy through a lack of ‘dissent from on high’.79 The state forces took the lead from the lack of prosecutions that followed Bloody Sunday and the ‘unlimited licence to kill’80 that was created by the ‘shoot first, ask questions later’ policy set by the domestic courts in the AG for NI’s Reference No 1 (1977).81 This considered the fatal shooting of Patrick McElhone on 7 August 1974. McElhone was unarmed and shot as he ran away from an army foot patrol in South Armagh. The soldier who fired the fatal shot knew that McElhone was unarmed, but honestly believed him to be a member of the IRA. MacDermott J found there was no evidence to prove that the soldier intended to kill or seriously injure McElhone, and he was acquitted of murder.82 A majority of the Court of Criminal Appeal83 and House of Lords84 agreed. The Stalker Inquiry, which investigated a series of killings of unarmed victims by the RUC during November and December 1982, reported that: I never did find evidence of a shoot-to-kill policy as such. There was no written instruction, nothing pinned up on a noticeboard. But there was a clear understanding on the part of the men whose job it was to pull the trigger that that was what was expected of them.85

The British government adamantly denies this and actively refutes any attempts to investigate it further (eg Stalker was removed as chair of his inquiry). It was also

77

I Urizar, Behatokia interviewed 8 January 2015. A Jennings, ‘Shoot to Kill: The Final Courts of Justice’ in A Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990) 123. 79 ibid. 80 ibid, 108–10. 81 AG for NI’s Reference No 1 (1976). 82 R v Jones (1975). 83 AG for NI’s Reference No 1 (1976). 84 AG for NI’s Reference No 1 (1977). 85 The Times, 9 February 1988. 78

Systematic Violations 215 something the ECtHR avoided considering. In Hugh Jordan, which looked at the RUC’s killing of an unarmed driver, the ECtHR was: not prepared to conduct, on the basis largely of statistical information and selective evidence, an analysis of incidents over the past 30 years with a view to establishing whether they disclose a practice by security forces of using disproportionate force.86

The Court added that ‘this would go far beyond the scope of the present application’,87 implying that it may be willing to consider such an analysis if certain evidence and circumstances were presented. Yet, the Court’s initial response was to not avail of potential opportunities to explore systematic violations of Article 2.

B. Blatantly Ignoring the Issue of Systematic Violations—Turkey Mahmut Kaya v Turkey (2000) considered the disappearance of Hasan Kaya and Metin Can.88 The relatives of the victims alleged that violations of Articles 2, 3 and 13 of the ECHR were tolerated in Turkey. It was also claimed that a pattern of denial existed on the part of the Turkish authorities against allegations of serious human rights violations and provision of remedies. The ECtHR found it unnecessary to determine whether Turkey’s failings exposed in Mahmut Kaya were part of a practice adopted by the authorities as it had found in the applicant’s favour that violations of Articles 2, 3 and 13 had occurred.89 This would be an understandable position if no violation had been found by the ECtHR, as that would indicate that there was nothing to investigate. However, there were clear failings on behalf of Turkey in this particular case, which it was reprimanded for.90 This was also not the only case of its kind to be brought before the ECtHR against Turkey.91 At no point did the ECtHR indicate in its judgment that it believed such an investigation to be outside its remit. It was also not for the lack of opportunity, as the applicant’s request in Mahmut Kaya provided such a possibility. It was a case of the ECtHR not wanting to investigate such allegations: the Court made some strange decisions … The Court’s threshold was meaninglessly high for the applications submitted for murders by unknown perpetrators from the 1990’s onwards … This led to the Court rejecting hundreds of applications submitted by the relatives of the murdered Kurdish journalists, politicians and activities on the grounds of the six month time limit, non-exhaustion of domestic remedies or applicants not providing sufficient evidence of State involvement. This approach of the Court was said to be technical and legal. However, in the view of human rights lawyers and academics in

86

Hugh Jordan v UK (2001) para 114.

87 ibid. 88

Mahmut Kaya v Turkey (2000). ibid, pparas 127–28. 90 ibid, paras 109, 119 and 126. 91 ibid, para 127. 89

216 CoE Bodies and Protecting Life Turkey, it was a political decision. The Court could have taken a more liberal approach and put more pressure on Turkish government. The Court should have extended its judgment about State involvement in human rights violations and its negligence in the southeast of Turkey as being administrative practice. Only this approach would have prevented many human rights violations in this region, therefore saving many lives.92

Why the ECtHR took this restrictive approach is unclear. It could be due to resource issues. The Court was dealing with a heavy caseload93 and the consideration of such a claim would require direct investigation by the European human rights mechanisms. This equates to time, money and staff. It could be the lack of political appetite for such a consideration. Such an investigation involves looking at the core of a state’s policy. Such a move could be interpreted as the Court becoming too active. Alternatively, it is the Court’s role to determine whether a state’s actions are compatible with the ECHR.94 The ECtHR is failing in its role if it does not consider possible violations of the ECHR that come to its attention. Also it is the state’s responsibility to act in a way which is compatible with the ECHR; if it is upholding this obligation then there is nothing to worry about. Another argument is that the ECtHR is already struggling to enforce its judgments. The success of the impact of the Court’s judgments hinges on how cooperative a state is. A state is less likely to cooperate if it feels under direct attack. The current approach of the ECtHR, by insisting on only dealing with the individual cases before it, enables the state to blame ‘bad apples’ within the system. This softer approach keeps the state on side. It may also embarrass the state into addressing issues that go to the heart of its policies, but these systematic issues will never be directly dealt with using this approach. This raises questions as to whether such an approach will have any effective impact on challenging the systematic violations that exist. Turkey is not a revered HCP to the ECHR and Member State of the CoE, but it is still linked to the system. The ECtHR taking a stronger line against a government in individual cases can be passed off as a minor glitch in the system that can be addressed with a little tweaking. To declare that systematic violations are occurring indicates a significant failing at a domestic and regional level. The ECtHR is ‘reluctant to take such a bold step, since a finding of “administrative practice” would amount to a finding that a State is deliberately violating human rights’.95 It calls into question how effective the human rights system as a whole is, if gross systematic violations are able to occur and continue. Nevertheless, the existence of systematic violations are Europe’s worst-kept secret. Is it not better to tackle the

92

S Efe, HRAA (Turkey) and former employee of the ECtHR, interviewed 10 October 2013. ‘High Level Conference on the Future of the ECtHR: Brighton Declaration’, 19–20 April 2012, para 16; Lord Woolf, ‘Review of the Working Methods of the ECtHR’, December 2005, p8. 94 E Myjer, ‘Why Much of the Criticism of the ECtHR is Unfounded’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar Publishing, 2013) 51. 95 Bowring (n 76) 96. 93 CoE,

Systematic Violations 217 issue head-on in the hope of reform, than for the ECtHR to be complicit through failing to take robust and direct action?

C. Emergence of the Pilot Judgment System—Russia Initially the ECtHR refused to consider the Chechen cases against Russia as anything other than individual applications.96 The practice of systematic violations equating to administrative practice was argued in Isayeva v Russia (2005),97 but was ignored by the ECtHR.98 This changed in 2012 when the ECtHR amended its approach regarding Chechen cases. In Aslakhanova v Russia (2012)99 it found that the violations ‘must be characterised as resulting from systematic problems at the national level, for which there is no effective domestic remedy. It affects core human rights and requires the prompt implementation of comprehensive and complex measures’.100 This development (an example of a quasi-pilot judgment) is a direct impact of the introduction of the pilot judgment system.101 The growing backlog of applications and inadequate available resources forced the CoE’s hand. Repetitive cases, which account for approximately 60 per cent of the Court’s annual judgments, are due to structural issues in the domestic legal systems.102 These structural issues (which prevent the rapid execution of judgments) enabled applications to be made where the Court already found a violation of the Convention and where well-established case law exists.103 The various CoE bodies had to come up with a way to deal with the ‘structural dysfunction in the operation of [the domestic] legal systems’104 because ‘for as long as the number of incoming cases obviously exceed[ed] the number of outgoing cases, the backlog [would] continue to grow and there [would] come a point at which the system [would become] asphyxiated’.105 Thus Protocol 14 of the ECHR was enacted.106 This incorporates the pilot judgment system107 into the ECHR and confirms the role of the CoM, as provided by Article 46 of the ECHR.108

96 ibid. 97

Isayeva v Russia (2005). Bowring (n 76) 96. 99 Aslakhanova and Others v Russia (2012). 100 ibid, para 217; Sultygov and Others v Russia (2014) para 390. 101 ibid. 102 CoE, Protocol 14—The Reform of the ECtHR (CoE, 2010) 1. 103 ibid, 3. 104 L Wildhaber, ‘A Constitutional Future for the ECtHR?’ (2002) 23 Human Rights Law Journal 161, 164. 105 ECtHR, ‘Documentation: A Further Fundamental Reform for a Court in Crisis’ (2000) 21 Human Rights Law Journal 90. 106 Protocol No 14 to the ECHR, Amending the Control System of the Convention, 13 May 2004. The Protocol entered into force on 1 June 2010. 107 ECtHR, ‘Rules of Court’, 1 July 2014, rule 61. 108 Art 46, ECHR, as amended by Protocol No 14 to the ECHR, Amending the Control System of the Convention, 13 May 2004. 98

218 CoE Bodies and Protecting Life D. Pilot Judgment Procedure Rule 61 of the Rules of the ECtHR, as amended by Protocol No 14, provides for the pilot judgment procedure: the Court may initiate a pilot judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systematic problem or other similar dysfunction which has given rise or may give rise to similar applications.109

Thus, when the ECtHR receives a significant number of applications deriving from the same root cause, it may decide to select one or more of them for priority treatment. By assessing this one case the Court seeks to achieve a solution that extends beyond the selected case, to cover all similar cases raising the same issue.110 The pilot judgment seeks to: —— determine whether a violation has occurred; —— identify the root of the violation in a national context; —— give clear indications to the government as to how it can eliminate the root cause; and —— bring about a settlement, if not create a domestic remedy, capable of dealing with similar issues.111 This is with the view to the respondent state finding a ‘holistic solution to the problem’.112 i. Pilot Judgment Cases From its inception, this new system proved successful. The first pilot case, Broniowski v Poland (2004),113 marked the first time the ECtHR: held in the operative part of its judgment that the violation found originated in a systematic problem and that general remedies were to be taken in respect of a similarly affected class of citizens as the claimant in the judgment. While recognising the discretion in principle of the State to determine the appropriate remedial measures, the Court explicitly requested the State to take general measures that were such as to remedy the systematic defect.114

109

ECtHR, ‘Rules of Court’, 1 July 2014, rule 61(1). ECtHR, ‘The Pilot-judgment Procedure’ (ECtHR, 2009). 111 ibid. 112 Leach (n 68) 11. 113 Broniowski v Poland (2004). This case involved Art 1 of Protocol No 1 (right to peaceful enjoyment of property). 114 W Vandenhole, ‘Execution of Judgments’ in P Lemmens and W Vandenhole (eds) Protocol No 14 and the Reform of the ECtHR (Intersentia, 2005) 110. 110

Systematic Violations 219 The Broniowski ruling led to new domestic legislation in Poland and the settlement of similar pending cases.115 Poland is not renowned for defying the ECtHR’s judgments, unlike Russia and Turkey (especially where conflict-related issues are concerned). In Ananyev v Russia (2012)116 Russia was found in violation of Articles 3 and 13 for detaining suspects pending trial in inhuman and degrading cell conditions, without recourse to effective complaint mechanisms or compensation. The ECtHR suggested a number of practical reforms for Russia’s detention centres and judicial system. The Court imposed a binding six-month time frame to resolve the problem, with a condition that the 250 similar pending cases were settled within 12 months. Additionally, the Court refused to adjourn pending cases, hoping that it would force Russia to take action. Russia made significant reforms that appear to reflect the demands of the ECtHR. However, there are still issues to be resolved, and the six-month time-frame was not adhered to.117 Time will tell whether these reforms are implemented in practice. Previous experience shows that it can be one thing in theory and another in practice. Officially, a pilot judgment has yet to be brought concerning the right to life. Yet, Hugh Jordan, McKerr v UK (2001),118 Kelly and Others v UK (2001)119 and Shanaghan v UK (2001)120 serve as early pilot judgments. They led the way in confirming the obligations a state is subjected to concerning the investigation of suspicious deaths. After a prolonged period of ignored suspicious deaths or questionable inquiries, these cases sent a message to the UK and other European states that more was required to effectively investigate suspicious deaths and provided guidance on how to achieve this. From a practical perspective these cases contributed to the creation of the HET;121 an admittedly defective body, but a promising development. As well as full pilot judgments, the ECtHR issues quasi-pilot judgments (eg Aslakhanova and other judgments addressing systematic violations).122 Quasi-pilot judgments are distinguished, as they are not described as pilot judgments by the ECtHR. They identify a systematic violation and require that the state takes the appropriate measures, but do not prescribe general measures in the operative part of the judgment. Also other similar cases are not usually adjourned.123 Other judgments addressing systematic violations are ‘rather indeterminate’,

115

ECtHR (n 110). Ananyev and Others v Russia (2012). 117 DH-DD(2014)580, ‘Action Plan (30/04/2014): Russian Federation’, 5 May 2014; DH-DD(2014)44, ‘Communication from a NGO (Public Verdict Foundation) (07/10/2013) in the Case of Ananyev and Others Against Russian Federation (Application No 42525/07)’, 10 January 2014. 118 McKerr v UK (2001). 119 Kelly and Others v UK (2001). 120 Shanaghan v UK (2001). 121 CoM, Supervision of the Execution of Judgments of the ECtHR: Annual Report 2009 (CoE, 2010). 122 Leach (n 68) 25. 123 ibid. 116

220 CoE Bodies and Protecting Life but raise the need for holistic measures to be taken without explicit reference to Article 46 of the ECHR.124 Each of these three tiers is welcomed. ii. Pros and Cons of the Pilot Judgment Procedure Pilot judgments achieve the balance between demanding practical change for the benefit of all (not just the individual applicant) and the principle of subsidiarity. The procedure to a certain extent ‘signals a move closer to acknowledging the collective nature of some human rights issues’.125 This could be particularly beneficial for Article 2 conflict-related cases, when the ECtHR tends to only fully consider claims related to one substantial right. Nevertheless, the pilot judgment procedure is not the cure for systematic violations. A number of weaknesses exist: —— it may leave the remaining applicants in an uncertain position and vulnerable to long delays while a resolution is agreed and delivered;126 —— the freezing of all other related cases may risk delaying, as opposed to speeding up, the full implementation of the ECHR;127 —— basing certain complex systematic problems on a single case may not reveal the different aspects of the systematic problem involved;128 —— following a pilot judgment, applicants will have to revert to the domestic courts, where they cannot be assured of obtaining effective redress and may experience considerable delays;129 and —— a question mark remains over how the CoM can ensure a rapid execution of pilot judgments and guarantee that the new measures implemented constitute a genuine effective remedy.130 It is a mechanism which is ‘future-orientated’ and representative of the Court’s ‘persuasive function’.131 The ECtHR should be careful that the movement towards dealing with systematic violations does not go too far and lead the Court to ignore individual violations. As a violation must now equate to a ‘significant disadvantage’ for it to be admissible,132 this warning becomes particularly relevant. This should not impact

124

ibid, 26. Leach (n 68), 2. 126 ibid, 30; P Leach, ‘Beyond the Bug River: A New Dawn for the Redress before the ECtHR?’ (2005) 2 European Human Rights Law Review 148, 162. 127 ibid, 30; CLAHR, ‘Implementation of Judgments of the ECtHR: Rapporteur Mr Erik Jurgens’ (PACE, 18 September 2006). 128 C Paraskeva, The Relationship Between the Domestic Implementation of the ECHR and the Ongoing Reforms of the ECtHR (With a Case Study on Cyprus and Turkey) (Intersentia, 2010) 104. 129 Leach (n 68) 31. 130 ibid. 131 ibid; V Colandrea, ‘On the Power of the ECtHR to Order Specific Non-monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases’ (2007) 2 Human Rights Law Review 409; Leach (n 126) 162. 132 Art 35(3)(b), ECHR. 125

Systematic Violations 221 on Article 2 cases, given the gravity of what is at stake—life itself. Safeguards are in place to ensure that cases are not excluded if they are not ‘duly considered by a domestic tribunal’133—ie potential violations of the procedural obligation to investigate suspicious deaths under Article 2. Excluded instances include where there is already established ECtHR case law on the issue and when the ECtHR and the CoM have already addressed the problem by acknowledging that it is systematic.134 The ECtHR should be aware that: pilot judgments may be a way of dealing with a legal question which affects many people (practice in a particular sense) but it cannot deal with practice in operation, because you cannot assume that C, D & E were tortured, just because B was.135

There are doubts over the frequency with which such a system can be engaged. The pilot judgment procedure: is too particular … In order to recognise the need for such a judgment, the Court has to have in front of it a large number of cases raising the same issues at the same time. That means that all of a sudden you would have to get scores and scores of cases that the police opened fire when they were not justified in doing so, or the domestic system failed to recognise that the killings were targeted against a particular group. Is there any situation in which that happens?136

This is a valid criticism, but the growing number of pilot judgments shows that it is not insurmountable. Arguably, the increasing role of the ECtHR in executing its judgments limits the state’s discretion and usurps the supervisory role of the CoM.137 However, this is a positive thing. A pilot judgment does not remove discretion entirely. It remains the state’s decision as to how the recommendations are implemented. The pilot judgment provides guidance for the CoM, enabling it to do its job more efficiently. A further criticism of the pilot judgment procedure is that the general application of the pilot judgment procedure is ‘counterproductive’ and the appropriate conditions or favourable environment will not always exist.138 The real test of this procedure will be whether those states which are responsible for the crippling workload of the Court will comply, such as with Ananyev.139

133

Fedotov v Moldova (2011) para 26. Buyse, ‘Significantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35(3)(b) ECHR’ in B McGonigle Lehy et al (eds), Liber Amicorum for Leo Zwaak (Intersentia 2013) 116. 135 Hampson (n 38). 136 ibid. 137 T Zwart, ‘More Human Rights Than Court: Why the Legitimacy of the ECtHR Is In Need of Repair and How It Can Be Done’ in S Flogaitis et al (eds), The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar Publishing, 2013) 86. 138 L Garlicki, ‘Broniowski and After: On the Dual Nature of Pilot-judgments’ in L Caflisch and L Wildhaber (eds), Liber Amicorum Luzius Wildhaber: Human Rights, Strasbourg Views (Kehl/NP Engel, 2007) 191. 139 Ananyev and Others v Russia (2012). 134 A

222 CoE Bodies and Protecting Life iii. Impact of the Pilot Judgment Procedure Significant strides were made in reducing the ECtHR’s backlog.140 First, it is due to the ECtHR operating more efficiently. Second, it is a reflection of state compliance at that particular time.141 Turkey dropped from second to fourth place in the number of applications pending before the ECtHR between 2010 and 2014.142 However, with the collapse of the PKK ceasefire and a general deterioration of human rights protection within Turkey,143 it rose to second place in 2016.144 Russia dropped from first to third place in the number of applications pending before the ECtHR between 2010 and 2014,145 dropping further to fourth place in 2016.146 This could be an indicator of the success of the ECHR reforms.147 Third, in some instances it is led by applicants’ frustrations. Discussions with lawyers in Turkey during 2013 highlighted that they were boycotting the ECtHR because of frustration with the system. One lawyer commented that he: last took a case to the ECtHR in 2004; this was for the last time. The ECtHR takes too long, on average the simplest of cases takes six to seven years. The decisions that the ECtHR reaches do nothing to cover or shelter the victims, their families or the loss experienced. The compensation is not enough to cover all losses. For example in Dr Hasan Kaya’s case his family got £15,000 in compensation. He was only 27 years old with a family to support, this was too little. For some cases the ECtHR orders a re-trial, but this is ineffective in practice. For example, in Turkey more than 30 cases were wrapped into one case. Most of the perpetrators died or their identities had been changed so they were untraceable, meaning that there was no one to be re-tried before the domestic court. For these reasons I am no longer in favour of taking cases to the ECtHR.148

In 2011 on average it took the ECtHR 37 months to communicate a case. If ‘this were a national legal system the ECtHR would in all likelihood have to qualify this as a structural or systematic problem’.149 The Court needs to address this. Promptness is easily achieved if the Court so wished. It demonstrated that it can deal with some cases within a matter of months.150 Russia experienced a similar decline in applications,151 but lawyers acting on behalf of applicants did not

140

D Spielmann, ‘ECtHR Press Conference: President Dean Spielmann’, 30 January 2014.

141 ibid.

142 CoE, 50 Years of Activity: The ECtHR Some Facts and Figures (CoE, 2010) 4; CoE, The ECHR in Facts and Figures: 2014 (CoE, 2015) 3. 143 HRW, World Report 2016: Turkey (HRW, 2016). 144 CoE, The ECHR in Facts and Figures: 2016 (CoE, 2017) 3. 145 CoE (2010) (n 142) 4; CoE (2015) (n 142) 3. 146 CoE (n 144) 3. 147 ibid. 148 Anonymous lawyer in Turkey interviewed 10 September 2013. 149 L Wildhaber, ‘Criticism and Case-overload: Comments on the Future of the ECtHR’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 14. 150 Leach (n 51). 151 D Speilmann, ‘ECtHR Press Conference: President Dean Spielmann’, 30 January 2014.

Systematic Violations 223 itness any frustration towards the ECtHR in the Chechen cases. The ECHR w ‘is still a revolutionary system in that an individual can take their government to Court and get a binding judgment. It is significant for the applicants to take Russia to court over Chechnya’.152 There are barriers that may have an impact such as ‘people being threatened or killed because they are applicants’ or difficulties in ‘accessing legal services’.153 Civil society representatives question the impact of the CoE’s measures on delivering positive and guaranteed practical change at a domestic level more generally.154 Introducing a monitoring system is one way to address this issue and maintain pressure on states to deliver real change.155 This would be modelled on the UN Universal Periodic Review or the periodic state reports required by treatymonitoring bodies. Substantial fines (significantly greater than the default interest that applies to the non-payment of just satisfaction),156 punitive damages or suspension from the CoE for persistent non-compliance are other possibilities.157 This approach should be considered with caution given that ‘the success of the ECtHR to date is largely due to the fact that the Court has not demanded too much from States and has kept the cost of compliance low’.158 The pilot judgment procedure has its limitations, but it is a welcomed addition to the ECtHR’s options. It improved compliance with a number of the Court’s judgments. Based on the limited success it has achieved in a short space of time, the pilot-judgment procedure (including quasi-pilot judgments and other pilotjudgments) should be used where possible in Article 2 cases. This is to provide the necessary guidance to the domestic authorities on how to improve adherence to the ECHR, and to the CoM on how to supervise the reforms. Pilot judgments do not necessarily ensure compliance. Experience from previous non-pilot judgments shows that domestic reforms, while delivered on paper, are not necessarily implemented in practice.159 The focus of the pilot judgments should be guidance, from which compliance will follow. However, in a politicised environment and 152

Leach (n 51).

153 ibid. 154

Leach (n 126) 162; Leach (n 68) 31. ibid; E Lambert-Abdelgawad, ‘Le Protocole 14 et l’Exécution des Arrêts de la Court Européenne des Droits de l’Homme’ in G Cohen-Jonathan and JF Flauss, La Réforme du Systéme de Contrôle Contentieux de la Convention Européene des Droits de l’Homme (Droit et Justice, 2005) 102. 156 The ECtHR sets a time-limit for any payments of just satisfaction that need to be made. The time-limit is at the Court’s discretion, but it is normally three months from the date on which the judgment becomes final and binding, If the time-limit is exceeded, the Court will order default interest to be paid. This is normally a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points: ‘Practice Directions: Just Satisfaction Claims’ (CoE Rules of Court, 1 July 2014) para 25. 157 G van Oven and M Kuijer, quoted in J Gerards and A Terlouw, ‘Solutions for the ECtHR: The Amicus Curiae Project’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 174–75. 158 N Krisch, Beyond Constitutionalism, The Pluralist Structure of Post-national Law (OUP, 2010) 144–45. 159 CoM (2010) (n 121) 103; CoM, ‘Supervision of the Execution of Judgments of the ECtHR: Annual Report 2010’ (CoE, 2011) 113; CoM, ‘Interim Resolution (2011) 292’, 2 December 2011. 155

224 CoE Bodies and Protecting Life one where there is a lack of awareness of the ECHR at a domestic level, pilot judgments can only be expected to achieve so much.

III. USE OF COMPENSATION

An applicant’s request for compensation is often refused by the ECtHR ‘on the basis that the declaration [that a violation of the ECHR] itself is “sufficient” just satisfaction’.160 Yet, in Article 2 cases (particularly during times of conflict) the ECtHR over-relied on compensation as a form of remedy. Consequently, money is paid and nothing changes, which enables non-compliance with Article 2 to continue unabated. There are complaints that when compensation is awarded it is insufficient, making the effort of bringing a case to the ECtHR doubly pointless. Additionally, there is a lack of consistency and transparency in the amount of damages awarded by the ECtHR.

A. Overuse of Compensation Over-reliance on compensation occurs where compensation is awarded, no additional action is taken by the Court and, consequently, no real change occurs at a domestic level to address the heart of the issue. For example regarding the Chechen conflict, Russia offers the compensation ordered by the Court as a means of pacifying applicants, while its agents continue to enforce laws and act in ways which exacerbate the root problem.161 Generally compensation that is ordered by the ECtHR is paid, though there can be delays.162 The Court’s rulings are binding, but this is surprising, as paying compensation is accepting that a wrong was done. It appears that the state believes that paying compensation deters any further action or remedial requirements. Thus, the compliance is ‘low quality compliance’.163 The ECtHR inadvertently encourages this thinking. For years the ECtHR failed to acknowledge (or attempt to address) its overuse of compensation: for a long time, the Court did not pay particular attention to the execution of its judgments by way of general and/or individual measures. As far as reparation for the victim(s) of a violation was concerned, it used to hold that the finding of a violation constituted in itself sufficient just satisfaction, or it awarded an amount of money by way of just satisfaction.164

160

P Leach, Taking a Case to the ECtHR (OUP, 2005) 398. Lapitskaya (n 70) 480. 162 CoM, ‘Supervision of the Execution of Judgments of the ECtHR: Annual Report 2007’ (CoE, 2008) 10. 163 F Ní Aoláin, ‘Article 2 and Beyond: Understanding How We Got Here, and Charting the Future’, Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014. 164 Vandenhole (n 114) 106. 161

Use of Compensation 225 Introducing the pilot judgment procedure, and the innovative recommendations that followed, has helped to tackle the overuse of compensation. Adopting the IACtHR’s approach of ordering alternative remedies (eg public apology or setting up trust funds) could also assist.165 However, the non-compliance concerning Cyprus v Turkey (2014),166 the ECtHR having ordered Turkey to pay Cyprus €90 million in compensation for the 1970s conflict, will challenge the status quo. B. Awarding Insufficient Compensation Many lawyers acting for Kurdish clients now refuse to bring cases to the ECtHR. They believe that the compensation awarded is not enough (particularly since it has significantly reduced in recent years) and that no real change follows. For example, £10,000 was awarded to the widow and children of farmer Abdülmenaf Kaya,167 £15,000 to the family of Doctor Hasan Kaya168 and approximately £5,000 for the deaths of Zara Adamovna Isayeva’s young son and three nieces.169 On average in disappearance cases a life is valued at €30,000 (approximately £23,800). These awards are not only low, but the disappearances continue. Applicants, lawyers and witnesses can be subject to intimidation for bringing a case to the ECtHR, which makes the restricted monetary redress less justifiable. Additionally, the damages awarded by the ECtHR are relatively low compared with damages awarded by the domestic courts. This is ‘probably due to a prevailing view that the primary remedy in Strasbourg is the finding of a violation of the Convention itself ’.170 However, compensation can offer vital monetary support to the victim’s family. Thus, compensation does little to remedy the situation, but a declaration that a violation took place can do less.

C. Lack of Consistency and Transparency with Compensation Awarded The ECtHR faced criticism for its lack of consistency and transparency as to how it arrives at the final figure for just satisfaction.171 The ECtHR was unlikely to take account of principles or scales of assessment used by domestic courts, or to adopt specific means of calculating damages. Instead it applied general principles with an inconsistent result.172 For example, on occasion ‘the awards for very serious breaches (loss of life or torture) were lower than awards for lesser breaches (loss of liberty or freedom of expression)’.173 Intending to improve transparency and to 165

Leach (n 51). Cyprus v Turkey (2014). Kaya v Turkey (1998) para 122. 168 Mahmut Kaya v Turkey (2000) para 138. 169 Isayeva v Russia (2005) para 240. 170 Leach (n 160) 398. 171 ibid; Harris (n 14) 155. 172 ibid, 398. 173 Harris (n 14) 156. 166 167

226 CoE Bodies and Protecting Life inject consistency, the Article 41 Unit was established within the Registry of the ECtHR. The Article 41 Unit advises ‘the Chambers [of the ECtHR] on the appropriate level of awards in similar cases’ and adopts ‘a series of detailed tables setting out a method of calculation of non-pecuniary damage in respect of each article of the ECHR’.174 It calculates a minimum and maximum award for each Article and provides guidance on what should be taken into account. For example, the award for substantive breaches of Article 2 will be higher than that for procedural violations. The seriousness of the facts and the degree of the relationship between the applicant and the victim will be taken into account, as will the standard of living in the respondent state.175 This is with the understanding that the final sum remains within the discretion of the ECtHR. The ECtHR is reluctant to make this guidance public, as it could lead to further disputes, if applicants believe the sum awarded does not correlate with the Article 41 Unit’s guidance.176 Publication of this guidance would assist the applicants to decide whether it is worth taking a case to the ECtHR and the risks that can come with that, particularly for Article 2 conflict-related cases. As the four case studies show, taking an application can be dangerous.

IV. POLITICISATION

The CoE is made up of states and is consequently a political body. This politicisation extends to its human rights bodies. The ECtHR consists of 47 judges (one for each HCP)177 who serve a non-renewable term of nine years.178 The relevant state selects three candidates and the PACE decides by a majority vote who to elect.179 There are safeguards in place such as: —— the national selection procedure must be fair and transparent;180 —— the judges must be of ‘high moral character’;181 —— the judges must either possess the qualifications required for appointment to high judicial office in their own state or be jurisconsults of recognised competence;182 —— the judges must act independently;183 and —— the judge’s term is limited.184 174

ibid, 155–56. ibid, 156. 176 ibid, 156. 177 Art 20, ECHR. 178 Art 23(1), ECHR. 179 Art 22, ECHR. 180 CoE, ‘Election of Judges’, http://website-pace.net/en_GB/web/as-jur/echr-judges-election. 181 Art 21(1), ECHR. 182 ibid. 183 Art 21(2), ECHR. 184 Art 23(1), ECHR. 175

Politicisation 227 Yet the process is political from start to finish. The CoM comprises of the Foreign Affairs Ministers from the CoE Member States, or their permanent diplomatic representatives. It is ‘a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europe-wide responses to such challenges are formulated’.185 Each CoM member has one vote.186 The PACE consists of representatives from each CoE Member State. The number of members (and votes) is dictated by the size of the country.187 Politicisation can influence the decisions and actions of these bodies. This can have a negative impact on the fulfilment of the CoE’s duty to protect and promote compliance with the ECHR.

A. ECtHR Politics led to the ECtHR dealing with different states in different ways. The ECtHR is accused of ‘show[ing] a double standard and demand[ing] more from low-reputation States’.188 The ECtHR: can increase its reputation by taking calculated risks. When it issues costly judgments, it risks noncompliance but gains reputation if the State complies … When the Court’s reputation increases, it can issue costlier judgments and maintain the same minimal risk of non-compliance … Therefore, the Court will not direct its costliest judgments against high-reputation States [such as the UK] and will issue costlier judgments against lowreputation States [such as Russia and Turkey].189

Yet, the ECtHR is gaining confidence in its role. The timing of Protocol No 14’s enforcement is also a factor. The Court was relatively young and inexperienced when dealing with the earlier NI cases. It was more mature when dealing with the later Turkish and Russian conflict cases. Furthermore, the caseload against Turkey and Russia is heavier. The Court’s decisions can be political: the ECtHR is not purely legal, it can be easily affected and influenced by politics. This is seen in the conflict cases related to NI, Russia and Turkey. I think it comes from external pressures. I have personally observed this from the Turkish officials … Most if not all of the judges are coming from a State background. They were formally employed by the government as a diplomat, professor etc. They are not independentminded. The ECtHR judges have very good connections with their government and they 185

CoE, ‘About the CoM’, www.coe.int/T/CM/aboutCM_en.asp. ‘Parliamentary Representation’, http://website-pace.net/web/apce/parliamentaryrepresentation. 187 ibid. 188 S Dothan, ‘Judicial Tactics in the ECtHR’ (2011) 12(1) Chicago Journal of International Law 115, 142. 189 ibid. 186 CoE,

228 CoE Bodies and Protecting Life are appointed by the government. The Court also does not hesitate to employ former government civil servants as its legal officers. In the Turkish section, often these former civil servants do not have a human rights background. How can we be sure that the Turkish judges and Turkish legal section is totally independent, impartial and objective when we consider all these facts? … For example, while I was at the ECtHR from 2001 to 2002, the second judge of the Turkish government was called ‘Mr Opposition’, that means that he opposed every kind of decision taken against Turkey and he tried to influence the Court as well, as much as he could.190

This is not always the case. For example, Kovler J (a former Russian judge) nearly always voted against Russia.191 It is conceded that: out of the 47 ECtHR judges there have been only 10 to 15 real judges, in particular those who give separate opinions. These judges exercise their own judgment and help to develop and enrich the ECHR. Some appointments are questionable, although the PACE has been seeking to improve the process of nomination and election.192

i. Challenging the ECtHR’s Politicisation There are a number of ways to challenge the ECtHR’s politicisation. The pilotjudgment system is a bonus as it increases the ECtHR’s authority to determine where states are failing. To an extent, it de-politicises ‘the process of “enforcement” by making it the responsibility of the “judicial arm” of the CoE, rather than that of the CoM, a political entity’.193 This de-politicisation is limited, as the ECtHR can be political. It is also possible that by focusing on general measures, the ECtHR’s ‘function is becoming blurred with that of a Constitutional Court, and that, in prescribing how domestic law should be amended to make it Conventioncompliant, the Court is straying into the jurisdiction of sovereign States and possibly over-reaching its powers’.194 A better balance between the roles of the judicial and political bodies of the CoE is required. The CoM is selective in how it enforces the ECtHR’s judgments, which ‘indicates that the process has become overly politicised’.195 By ‘following a “managerial approach”, the nature of cooperation between the domestic authorities and the Court is clearly crucial to successfully negotiating a solution to the problem’.196 To achieve increased cooperation, the array of reformist suggestions are worth considering (eg involving national parliaments in preparing and

190

Efe (n 92). Bowring (n 51). 192 ibid. 193 Leach (n 68) 33. 194 ibid, 33. 195 ibid, 32. 196 ibid, 33. 191

Politicisation 229 executing ECtHR judgments; making the ECtHR a cooperative partner of the national courts; or enabling states to lodge advisory opinions with the ECtHR).197 Additionally a solution to bias exclude the national judge from deciding a case related to his or her own legal system, similar to the Inter-American system.198

B. CoM The execution of judgments (which is the CoM’s responsibility) can be a prolonged process. It can also be difficult to get issues on the agenda of the CoM. This could be due to the number of cases that the CoM is faced with, but politics can also play a role.199 Considering NI’s experience: there are strengths to the CoE system. It has forced the UK’s hand to actually deal with issues, but ever since, what the UK has done is play the weaknesses. For example, in terms of enforcement the cases are drawn out and there is still not a satisfactory resolution. The CAJ has managed to get NI on the agenda over the last few months with a fresh declaration from the CoM on the NI cases in July 2014 … but this was the first time the CoM has pronounced these cases since 2009.200

It is warned that: a degree of priority may be given to the bigger stock of cases, from the likes of Turkey and Russia, which are much more recent. Yet it should not be forgotten how powerful a State like the UK is at an international level. If the UK is allowed to get away with not properly investigating human rights violations, that will have a knock-on effect with other jurisdictions believing that they are able to get away with not adhering to the judgments against them.201

i. Developing the Use of Article 46(4) of the ECHR Article 46(4) of the ECHR is under-utilised by the CoM; in fact it has never been used. The Article provides that: if the CoM considers that a HCP refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee,

197 Zwart (n 137) 72; van Oven (n 157) 178; A Sajó, ‘An All-European Conversation: Promoting a Common Understanding of European Human Rights’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 190; K Dzehtsiarou and N O’Mara, ‘Advisory Jurisdiction and the ECtHR: A Magic Bullet for Dialogue and Docket-control?’ (2014) 34(3) Legal Studies 444. 198 van Oven (n 157) 163. 199 D Holder, CAJ (NI), interviewed 1 August 2014. 200 ibid. 201 ibid.

230 CoE Bodies and Protecting Life refer to the Court the question whether that Party has failed to fulfil its obligation under Paragraph 1.

Requests were made for this procedure to be utilised, but all were met with silence from the CoM. For example, the European Human Rights Advocacy Centre (EHRAC) and the Memorial Centre for Human Rights (Memorial) called on the CoM to lodge Article 46(4) proceedings against Russia concerning Isayeva and Abuyeva v Russia (2010),202 which both relate to the Russian bombardment of the Chechen village Katyr-Yurt in February 2000. Such an action is only permitted in exceptional circumstances.203 The EHRAC and Memorial argue that these cases satisfy ‘this pre-condition of exceptionality due, not only to the scale and gravity of the violations found by the Court but also, critically, due to the systematic and continuing nature of these violations’.204 They believe that these cases ‘reveal structural and systematic problems that are well-known and long-standing’,205 and consequently ‘there is an almost complete absence of prosecutions resulting in the continuing impunity of the perpetrators’.206 The non-execution of the judgments also ‘undermines the credibility of the ECtHR and the ECHR system itself ’.207 This call was made in July 2012, yet in March 2017 the CoM remained unresponsive. The Article 46(4) procedure (adopted as part of Protocol No 14 in June 2010) is still young. It is too early to judge whether it is under-utilised or not. It is believed that the CoM has no foreseeable intention of using it as there is ‘no peer pressure or political will to encourage the use of Article 46(4)’.208 Thus ‘why bother with a debate and implementation process if these mechanisms are not going to be used’?209 The CoM is content making interim resolutions and recommendations. This softer approach offers guidance (and on occasion strong statements of encouragement), but the overall message (whether true or not) is that the state is cooperating on some level. Experience shows that: the optimal way for an international organisation to secure compliance is to treat the matter as a problem for cooperative resolution, through managerial methods, rather than resorting to the application of sanctions and determining the matter as one to be solved through ‘enforcement’.210

Returning the case to the ECtHR is a harder line and implies the state is uncooperative, impossible to negotiate with and has no regard for the ECHR. 202

Abuyeva and Others v Russia (2010). 11(2), Rules of the CoM for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements, 10 May 2006. 204 DH-DD(2012)730, ‘Communication from a NGO (EHRAC) (30/07/2012) in the Case of Zara Isayeva Against Russian Federation (Application No 57950/00)’, 22 August 2012, para 52. 205 ibid, para 68. 206 ibid, para 68. 207 ibid, para 68. 208 Leach (n 51). 209 ibid. 210 Leach (n 68) 32. 203 Rule

Politicisation 231 The CoM is a political body and its decisions depend on the individual states’ relationship with the offending state. This makes the required two-thirds majority vote difficult to achieve in reality. Also, to refer the case back to the ECtHR could be viewed as the CoM admitting defeat. This calls into question the CoM’s role in protecting and promoting the ECHR. As a guardian of the ECHR the CoM’s focus should be promoting adherence to the ECHR, not safeguarding its own position. Sometimes this requires consideration of the bigger picture and taking some pain for long-term gain. To achieve this wider outlook continued engagement with civil society is encouraged.211 The CoM should also be mindful that Article 46(4) was agreed to by their governments. Therefore, in cases where violations are systematic and the recommended reforms are not implemented, action is required; one of the available actions is an Article 46(4) case.

C. PACE The PACE is more attentive to the violations of some states than others. Regarding the four case studies, its focus was on the human rights abuses in Turkey and Russia.212 The Basque conflict was only considered at the end of Franco’s era in 1975213 and the NI Troubles were only considered post-conflict, with that consideration ongoing.214 The political aspect of the PACE may have played a role. This exposes the limitations of such a measure. Despite the number of systematic violations in Turkey, it was never threatened with suspension or expulsion from one or all of the CoE bodies. Russia had a number of its PACE rights suspended on 10 April 2014 due to its illegal annexation of Crimea,215 but these actions were not taken regarding its policies and conduct in Chechnya. i. Improved Use of the PACE’s Available Mechanisms Greater consideration of expulsion or suspension from one or all of the CoE bodies is one way of encouraging compliance regarding systematic violations. Despite a state’s disdain for being told what to do, it is beneficial to maintain CoE membership.216 There is a question mark over whether this applies to Russia: there were two separate phases with Russia. Initially, they may not have been hostile towards the CoE, but they probably had little idea of the extent and depth of the changes 211

Bowring (n 51). ‘Resolution 985 (1992): Situation of Human Rights in Turkey’, 30 June 1992; PACE, ‘Recommendation 1201 (1999): The Conflict in Chechnya’, 4 November 1999; PACE, ‘Recommendation 1444 (2000): The Conflict in Chechnya’, 27 January 2000; PACE, ‘Resolution 1381 (2004): Implementation of Decisions of the ECtHR by Turkey’, 22 June 2004. 213 PACE, ‘Recommendation 599 (1975): Situation in Spain’, 2 October 1975. 214 PACE, ‘Resolution 1389 (2004): The CoE and the Conflict in NI’, 7 September 2004. 215 PACE, ‘Resolution 1990 (2014)—Reconsideration on Substantive Grounds of the Previously Ratified Credentials of the Russian Delegation’, 10 April 2014. 216 Leach (n 51). 212 PACE,

232 CoE Bodies and Protecting Life needed to both law and practice. That was likely the case at the time of ratifying the ECHR. Subsequently, the mood has changed and Russia is now at best indifferent and possibly hostile to international judicial accountability. At present, Russia pays any just satisfaction and costs awarded, but does not address general measures. This is not just true in isolated cases. That suggests that the problem is one of political unwillingness.217

Other CoE Members appear to believe that ‘it is better to have Russia inside, than out’.218 Therefore, an obligation should be imposed on members of the PACE to bring a Strasbourg dimension back to the national parliament.219 This makes it clear that members of the PACE have a dual function: that they represent their own state within the CoE, and that they represent the CoE within their own state, thereby creating ‘a Strasbourg constituency at the national level’ where they would be expected to exert pressure in their own national Parliament for any delays or failures in giving effect to the ECtHR’s judgments.220

D. CoE Commissioner on Human Rights The Commissioner on Human Rights is an independent office within the CoE that is held by an individual for a non-renewable term of six years.221 That does not mean it is free from political influence. The Commissioner’s election is political— elected by the PACE using majority vote from a list of three candidates drawn up by the CoM.222 The Commissioner’s impartiality is also driven by the individual holding the office. Regarding the four case studies, the thoroughness of the former Commissioner Alvaro Gil-Robles’ report on Spain and the Basque country is questionable, as no evidence of ill-treatment during detention was found, nor were the BVE or GAL discussed.223 In contrast, his reports on Russia,224 the UK225

217

Hampson (n 38).

218 ibid. 219 ibid. 220 ibid. 221

Arts 2 and 11, CoM Resolution (99) 50, 7 May 1999. Art 9, ibid. 223 CommDH(2001)2, ‘Report of Mr Alvaro Gil-Robles, Commissioner for Human Rights: Spain and Basque Country’, 9 March 2001. 224 CommDH(1991)1, ‘Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights: Russian Federation’, 10 December 1999; CommDH(2000)1, ‘Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights: Russian Federation’, 1 March 2000; CommDH(2001)3, ‘Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights: Russian Federation’, 14 March 2001; CommDH(2003)5, ‘Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights: Russian Federation’, 4 March 2003; CommDH(2006)4, ‘Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights: Chechen Republic of the Russian Federation’, 15 March 2006; CommDH(2009)36, ‘Report of Thomas Hammarberg, Commissioner for Human Rights: Russian Federation’, 24 November 2009; CommDH(2011)21, ‘Report of Thomas Hammarberg, Commissioner for Human Rights: Russian Federation’, 6 September 2011. 225 CommDH(2005)6, ‘Report of Mr Alvaro Gil-Robles, Commissioner for Human Rights: UK’, 8 June 2005. 222

Politicisation 233 and Turkey226 identified common failings. Was this due to a lack of evidence at the time of the investigations, or did the Commissioner’s Spanish nationality prejudice his investigations? Additionally, examining the sections of the reports relevant to Article 2, the Commissioner tended to confirm the findings of the ECtHR, as opposed to uncovering violations that had not come before Strasbourg. This applies additional pressure in the hope that the judgments will be executed, which is welcomed. It indicates an element of coordination between the Commissioner and other CoE bodies. It also exposes the limitations of the Commissioner’s role. i. Developing the Commissioner’s on Human Rights Office The Commissioner on Human Rights’ office has limited resources and can only conduct short visits to countries.227 Its access can also be restricted, which is a barrier to exposing new truths. This illustrates how politics can be obstructive, though generally the Commissioner is well-respected among states and is allowed to operate freely.228 This would be assisted by introducing more sub-roles within the CoE system, such as creating thematic commissioners related to persistent Article 2 issues (eg unjustified killings and enforced disappearances), similar to the UN Special Rapporteur system229 or Inter-American system.230 These thematic commissioners would be overseen by the CoE Commissioner. Or using a system that is already in place, a Committee could be established to deal with such issues; similar to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.231 It is questionable whether the political

226 CommDH(2001)14, ‘Report of Mr Alvaro Gil-Robles, Commissioner for Human Rights: Turkey’, 12 December 2001; CommDH(2003)15, ‘Report of Mr Alvaro Gil-Robles, Commissioner for Human Rights: Turkey’, 19 December 2003; CommDH(2009)30, ‘Report by Thomas Hammarberg, Commissioner for Human Rights of the CoE: Turkey’, 1 October 2009; CommDH(2011)25, ‘Report by Thomas Hammarberg, Commissioner for Human Rights of the CoE: Turkey’, 12 July 2011; CommDH(2012)2, ‘Report by Thomas Hammarberg, Commissioner for Human Rights of the CoE: Turkey’, 10 January 2012. 227 Leach (n 51); N Muiznieks, ‘Keynote Address: CoE Commissioner for Human Rights’, Conference: Transitional Justice in the Context of ECHR Obligations: The Right to Life and Dealing with the Past, Transitional Justice Institute, Ulster University, 6 November 2014. 228 G De Beco, Human Rights Monitoring Mechanisms of the CoE (Routledge, 2012) 27. 229 Within the UN system Special Rapporteurs are independent experts that conduct investigations related to a particular country or thematic mandate. This involves conducting fact-finding missions, making statements and submitting reports to the UN: UN, ‘UN News Centre’, www.un.org/apps/news/ html/SpecialRapporteurs.asp. 230 The Commissioners who form the IACommHR are assigned certain countries and/or themes for which they are responsible. Their role is to promote respect for human rights and act as a consultative body within these areas. This is achieved through making country visits and issuing reports, which include recommendations on how to improve adherence to and protection of human rights: OAS, ‘Composition’, www.oas.org/en/iachr/mandate/composition.asp#tab3. 231 This Committee organises visits to places of detention to assess how persons deprived of their liberty are treated. After each visit the Committee sends a detailed report to the state concerned, which includes findings and recommendations. The state is asked to provide a detailed response and the dialogue continues: CoE, ‘Preventing Ill-treatment of Persons Deprived of their Liberty in Europe’, www. cpt.coe.int/en/about.htm.

234 CoE Bodies and Protecting Life will exists for such developments, whether the resources are available, and whether it is too much to ask states to respond to a multiplicity of bodies.232 The proposals are worth considering, as more focus and greater exposure of violations are fundamental to encouraging compliance.233 Acknowledging the transient nature of the Commissioner’s office, mechanisms which operate under the umbrella of the Commissioner’s office should be in place. Thus it does not matter who the Commissioner is. One suggestion is for the Commissioner’s office to: facilitate discussions between various national police officers, forensic scientists, judges, members of the military, military lawyers etc. This would offer a forum for meeting each other and sharing experiences with nothing formally recorded. The aim would be to encourage these national bodies to share information and to absorb evidence of what others have done as good practice.234

ii. Improving Cooperation The Commissioner is in the best position to facilitate cooperation between the CoE’s bodies. Article 36(3) of the ECHR allows the Commissioner to make third party interventions to the ECtHR. Prior to the entry into force of Protocol No 14 on 1 June 2010, an intervention had to be invited by the President of the ECtHR. Since 1 June 2010 the Commissioner can submit an intervention of his or her own initiative. This power was engaged, but is not commonly used. There were no interventions regarding the right to life during internal conflicts.235 The Commissioner is also able to attend CoM and PACE meetings to provide advice and guidance. These meetings are confidential, which makes it difficult to judge the Commissioner’s effectiveness in this role. The Commissioner should utilise the office’s powers and influence at every opportunity. In the context of this book, the office’s aim should be to promote better practice in relation to protecting life during conflict.

V. LACK OF AWARENESS

States cannot comply with provisions that they are not aware of. It has taken time for applicants (and the ECtHR) to grasp the ECHR’s role in protecting human

232

Leach (n 51).

234

Hampson (n 38).

233 ibid.

235 CommDH(2007)18

‘Mamaskhlisi v Georgia and Russia, Application No 29999/04’, 16 August 2007; CommDH(201)9, ‘14 Applications Concerning the Netherlands and Greece’, 9 November 2009; CommDH(2010)22, ‘MSS v Belgium and Greece’, 3 May 2010; CommDH(2011)37, ‘The Centre for Legal Resources on Behalf of Valetin Cãmpeanu v Romania’, 18 October 2011.

Lack of Awareness 235 rights, including the right to life and its duty to investigate. Reflecting on the early years of applying the ECHR in NI: the Convention was still being handled very tentatively [by the ECtHR] regardless of the origins of the cases brought there for consideration, but there was also some clumsiness on the part of the applicants and their legal advisors … early applications … seem to have failed largely because the claims were not formulated and managed carefully enough.236

As the ECtHR gained confidence and the lawyers gained experience, there was some improvement. Since the creation of the ECHR (in 1950) and the ECtHR (in 1959), opportunities, expertise and resources have spread to individuals, communities and states that were previously isolated or unaccustomed to actively engaging rights-based options. The end of the Cold War and the disintegration of the Soviet bloc played a significant role.237 First, membership of the ECtHR and support for its work increased, especially since 1990.238 Second, ratification of the ECHR is now a prerequisite for membership of both the CoE239 and the EU.240 More than 800 million people have recourse to the ECtHR241 and dialogue has developed to include protection of human rights and fundamental freedoms.242 Furthermore, growing globalisation, expansion of the internet and the social media revolution played a role in increasing engagement with human rights in general.243 Yet, a notable lack of awareness of how the ECHR relates to the actions of state actors remains. Following jurisprudence from the ECtHR highlighting the need for increased awareness in three of case studies (Chechnya, NI and the Turkish-Kurdish conflict) steps were taken in an attempt to resolve this. Training programmes for law enforcers and members of the judiciary now operate within each of the jurisdictions.244 Also the special status of the ECHR and the requirement to consider the ECtHR’s jurisprudence within domestic case law is officially recognised.245 Issues 236

Dickson (n 19) 23 and 51. Alec Stone Sweet and Helen Keller, ‘The Reception of the ECHR in National Legal Orders’ (2008) 89 Faculty Scholarship Series 13. 238 ibid. 239 Art 3, Statute of the Council of Europe 1949; CoE, ‘Warsaw Declaration’, 17 May 2005. 240 Art 6, Consolidated Version of the Treaty on European Union 2010. 241 Stone Sweet (n 237) 13. 242 Legality of the Threat or Use of Nuclear Weapons (1996), dissenting opinion of Judge Weeramantry, 493; M Doyle and AM Gardner, ‘Introduction: Human Rights and International Order’ in J Coicaud et al, The Globalization of Human Rights (UN University Press, 2003) 3; E Hafner-Burton and K Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’ (2005) 110(5) American Journal of Sociology 1373. 243 S Hick et al (eds), Human Rights and the Internet (Palgrave Macmillian, 2000); B Ki-Moon, ‘Secretary-General’s Message: 2011’, 10 December 2011. 244 CoM, ‘Interim Resolution CM/ResDH (2008) 69’, 18 September 2008; CoM (n 162) 34; CoM (n 121) 103. 245 Russian Supreme Court Regulation No 5, 10 October 2003 on the Application by Courts of General Jurisdiction of the Generally-Recognised Principles and Norms of International Law and the International Treaties of the Russian Federation; Russian Constitutional Judgment of 5 February 2007, No 2-P; Turkish Constitutional Court, 2013/2187, Judgment of 19 December 2013, para 41; s 2(1), HRA 1998; s 2(1), ECHR Act 2003; 237

236 CoE Bodies and Protecting Life remain in the Chechen and Turkish contexts. Doubts persist as to whether the training is being applied in practice within Turkey and Russia.246 The domestic courts also continue to resist using the ECHR and the Court’s jurisprudence. For example, Turkey is a monist state,247 but it has historically adopted ‘a strict dualist view on the role of Strasbourg case law in the Turkish legal system’.248 There were indications that Turkey was beginning to adhere to its monist roots. The Turkish courts mentioned in 2013 that the ECHR had prominence over domestic law in the case of conflict.249 This reflected how the financial cost of ignoring international law at a domestic level had become too great.250 However, Turkey’s suspension of the ECHR in 2016 indicates a move in the opposite direction.251 In the Russian context, the ECHR continues to be disregarded in practice and is under-used by the judiciary.252 The under-use within the national courts is due to a lack of awareness, which was fuelled by a lack of motivation. Consequently: lawyers are reluctant to argue ECtHR case law as often … judges do not take such arguments into consideration. On the other hand, judges claim that they do not apply the Convention because advocates do not raise such arguments in cases before them.253

As agreed in the Brighton Declaration 2012,254 the solution requires national bodies to take their responsibility to protect human rights more seriously255 and for there to be more education at all levels regarding the ECHR and its a pplication.256 Improved cooperation between national authorities and organs of the CoE is required. It is ‘time to replace the ideology of confrontation between the ECtHR and states with the ideology of cooperation’.257

246 CoM (n 121) 103; CoM (2011) (n 159) 113; CoM, ‘Interim Resolution’ (n 159); CoM, ‘Interim Resolution CM/ResDH(2011)292’, 2 December 2011. 247 Art 90, Constitution of the Republic of Turkey 1982, as amended. 248 B Cali, ‘Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law’, EJIL: Talk, 29 January 2014. 249 ibid. 250 ibid. 251 J Ensor and Z Weise, ‘Turkey suspends ECHR amid fears of further crackdown’, The Telegraph, 21 July 2016. 252 A Burkov, ‘How to Improve the Results of a Reluctant Player: The Case of Russia and the ECHR’ in S Flogaitis et al (eds), The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Egar, 2013) 155. 253 ibid. 254 Brighton Declaration, 20 April 2012, para 15. 255 van Oven (n 157) 175. 256 J Fraser, ‘Conclusion: The ECHR as a Common European Endeavour’ in S Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 207. 257 Kanstantsin Dzehtsiarou, ‘Interaction Between the ECtHR and Member States: European Consensus, Advisory Opinions and the Question of Legitimacy’, in Spyridon Flogaitis et al (eds), The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013) 117.

Conclusion 237 VI. CONCLUSION

Given the fundamental nature of Article 2 of the ECHR, the need for HCPs to comply with this provision is obvious. Given also that HCPs knowingly and voluntarily ratify the ECHR, the obligations to which it bound itself should come as no surprise. However, transferring this into practice is not simple, and often compliance does not come naturally. This is where the CoE bodies should step in. Yet the ECtHR, the CoM, the PACE and the CoE Commissioner on Human Rights are not operating to their full capacity as guardians of the ECHR (including Article 2). This is particularly true in relation to tackling states’ lack of cooperation with the ECtHR, as well as systematic violations, the imbalance that exists when awarding compensation, the politicisation that can affect their functioning and the lack of awareness of the ECHR at a domestic level. There a number of steps that can be taken to address these issues: —— —— —— —— —— —— ——

—— —— —— —— —— —— —— ——

—— ——

The ECtHR should apply the ECHR, particularly Article 38, consistently. The ECtHR should be more open to undertaking fact-finding missions. The ECtHR should deal with cases more quickly. The work of the Article 41 Unit should be continued and developed. The ECtHR should publicise the Article 41 Unit’s guidance. The ECtHR should not become over-reliant on compensation. The ECtHR should continue to exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed. The pilot judgment system, including quasi-pilot judgments and other judgments dealing with systematic violations, should be used where possible. The power conferred by Article 46(4) of the ECHR should be utilised. The Office of the Commissioner on Human Rights should utilise its power to intervene in cases before the ECtHR where appropriate. The Commissioner on Human Rights should consider facilitating a forum for shared experience and good practice between national state bodies. The various CoE bodies should cooperate, debate and communicate where possible to assist with promoting the ECHR and encouraging compliance. The PACE should consider imposing an obligation on members of the PACE to bring a Strasbourg dimension back to the national Parliaments. The CoE bodies should not be swayed by political leanings, at the expense of adequately promoting and protecting the ECHR. The CoE bodies should continue to support an exception to the exhaustion of domestic remedies rule in conflict situations when the right to life is under threat. The CoE should consider introducing thematic commissioners or a thematic Committee related to Article 2 issues. The CoE bodies and national authorities should better cooperate for the purpose of raising awareness of the ECHR and its jurisprudence at a domestic level.

238 CoE Bodies and Protecting Life All of these suggestions are made with the understanding that the principle of subsidiarity exists for a reason and that legal measures can provide only so much protection and practical impact. National bodies must take their responsibility to comply more seriously. This includes finding a resolution to the violations that are occurring.258 However, that does not mean that efforts should not be made to strengthen the European human rights system. As a former President of the ECtHR stated: what is needed is … to work within [the system], to make it more effective and, in doing so, ensure that 60 years after it came into effect, the Convention becomes not a dead letter, but the vital and living instrument it was always supposed to be.259

258

Hampson (n 38). Bratza, ‘Living Instrument or Dead Letter—The Future of the ECHR’ (2014) 2 European Human Rights Law Review 116, 128. 259 N

Appendix Guidelines for the Right to Life in Europe This Appendix provides a summary of the proposed guidelines. Justification for the creation of these guidelines and an explanation for the particular wording are provided within the preceding chapters. The guidelines are divided into sections, which correlate with the chapter in which they are discussed. The wording of the guidelines is an adaptation of what is understood to be the scope of the right to life in a European context. The guidelines include clarification of what the CoE has reached consensus on, with reference to the wording of the ECHR and the jurisprudence of the ECtHR. They also include suggestions of what the European stance should be on issues where the ECHR and ECtHR has not reached consensus. These suggestions are based on extracts from the 1989 Principles, the Minnesota Protocol, the ICED and the Constitution of the Republic of Poland 1997. Suggestions over which the CoE has not reached consensus are highlighted in italics.

CHAPTER 3 DUTY TO REFRAIN FROM UNJUSTIFIED KILLING

Guideline 1 1) No one shall be arbitrarily killed. 2) The death penalty is prohibited under all circumstances.

Guideline 2 1) Article 2(2) does not define instances where it is permitted to intentionally kill an individual, but describes the situations where it is permitted to “use force” which may result in the deprivation of life. The use of force is only justified when it satisfies at least one of the three scenarios set out in Article 2(2) of this Convention. These are: 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; and/or

240 Appendix

2) 3)

4)

5)

6)

7)

8)

c) in action lawfully taken for the purpose of quelling a riot or insurrection. A riot is acts of violence which cause widespread disruption to the status quo. An insurrection is a violent uprising against an authority or Government. This requirement extends to the intentional and unintentional threat to life or limb. It includes lethal and less-lethal methods of force. The force used must be no more than absolutely necessary, reasonable, and proportionate. This requires that: a) the force used is strictly proportionate to the achievement of permitted aims; b) the individual that force is used against must pose a threat to life or limb; c) the individual that force is used against must be suspected of having committed or threaten to commit a violent offence; d) the force used must be a last resort, there must be no other way to safeguard innocent lives; and e) those using force must give a prior warning that force will be used. The use of force take into account all of the surrounding circumstances. This requires considering inter alia: a) the general context of the operation; b) the orders given; c) the information supplied to agents in the field; d) the links between the agents in the field and the hierarchy; e) the conduct of operations; f) the type and extent of force was appropriate in the circumstances; g) the intention or aim behind the use of force; and h) the operational plans and whether there was time to consider other means. Preparation and control of operations must be conducted in a way which minimises, to the greatest extent possible, recourse to lethal force. Ample opportunity must be given to plan the reaction. The typical steps are: a) issuing a warning; b) the use of less-lethal force (eg rubber bullets, plastic bullets, CS gas and water cannons); and c) the use of live ammunition. Which step(s) are taken is determined by the surrounding circumstances. A killing may be justified 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. Steps must be taken to protect the lives of those in a vulnerable position, such as those in the military and those in state custody. The authorities must provide satisfactory and convincing explanations for any change to their physical or mental health while the individual was in a vulnerable position. It must be proved beyond reasonable doubt that the use of force is absolutely necessary, reasonable and proportionate. Inferences can be drawn in

Appendix 241 situations where the state refuses to provide a sufficient explanation or the explanation provided fails to fit within Article 2(2).

CHAPTERS 4 AND 5 DUTY TO PROTECT LIFE

Guideline 3 1) Everyone’s life shall be protected by law. 2) Domestic laws related to the right to life must provide a sufficient level of protection “by law” that is required in present-day democratic societies in Europe. They must accurately and adequately reflect Article 2 of the ECHR. 3) Adequate and effective legal and administrative frameworks that are specific, clear and detailed must be in place. This includes a framework of adequate and effective safeguards against arbitrariness, abuse of force, and avoidable accident which may pose any risk to life. This requires implementing prevention, suppression and punishment measures which deter offences linked to the right to life such as: a) effective criminal provisions that prohibit homicide and excessive use of force; b) implementing clear and effective regulations and guidelines for the use of force; and c) ensuring that state agents are supervised and effectively controlled. 4) Adequate and effective steps must be taken to prevent avoidable deaths. This requires inter alia: a) effectively planning operations; b) ensuring the appropriate lines of communication are used; and c) ensuring agents using force are effectively trained. This includes training on the relevant regulations and on the pre-eminence of respect for human life as a fundamental value.

Guideline 4 1) Operations must be effectively and adequately planned. This requires that the police operations are planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses. It also requires all feasible precautions in the choice of means and methods of a security operation to be taken. This includes the planning of rescue and evacuation operations, such as information exchange, prompt evacuation, coordination, appropriate medical treatment, adequate logistics, and access to equipment.

242 Appendix 2) These requirements extend to actual loss of life and threats to life. All feasible precautions must be taken in the choice of means and methods of a security operation with a view to avoiding or, in any event, minimising incidental loss of civilian life. 3) It is enough to show insufficient planning from the authorities to violate Article 2 of this Convention. It is not required to demonstrate an inappropriate legal framework or excessive use of force by the agent performing the operation.

Guideline 5 1) The HCP must take proactive action when there is a real and immediate risk to life, of which the state knew or ought to have known, towards an identified individual or individuals from the criminal acts of a third party. These steps must have a real prospect of altering the outcome or mitigating the harm potentially caused by the criminal acts of others. 2) Steps must be taken to do all that could reasonably be expected to avoid a risk to life. This requires considering: a) whether the victim was threatened in a real and immediate way; b) whether the authorities knew or ought to have known of the threat; and c) whether the authorities took reasonable measures to counter the risk. 3) The steps that must be taken include: a) establishing public order; b) implementing a legal framework; c) the authorities committing to uphold the law; and d) holding those who violate the right to life of others accountable. 4) Article 2 must not be interpreted in such a way as to impose on authorities an impossible or disproportionate burden, but the state must do all that is reasonably expected of them to avoid the risk. This must be considered relative to the situation under scrutiny and how it has developed. Consideration must be given to 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.

CHAPTER 6 ENFORCED DISAPPEARANCES

Guideline 6 1) No one shall be subjected to an enforced disappearance. 2) No derogation from this prohibition shall be allowed.

Appendix 243 Guideline 7 Enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the state, by persons or groups of person acting with the authorisation, support or acquiescence of the state, and/or by a political organisation, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Guideline 8 1) For the purposes of Article 2 of this Convention, in situations of enforced disappearance a “victim” means the disappeared person or a family member who has suffered harm as the direct result of an enforced disappearance. 2) Each victim has the right to the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each HCP shall take the appropriate measures in this regard.

Guideline 9 1) The necessary measures shall be taken by the HCP to ensure that an enforced disappearance constitutes an offence under its criminal law. 2) These measures include introducing legislation that criminalises and absolutely prohibits enforced disappearances, the use of any form of incommunicado detention and of any secret places of detention.

Guideline 10 1) The HCP shall protect persons in its custody from an enforced disappearance. These measures include, but are not limited to: a) establishing an official and generally accessible up-to-date register of all detainees, and of centralised registers of all places of detention; b) introducing procedures for the release of all detainees in a manner permitting reliable verification; and c) establishing appropriate training of law-enforcement and prison staff and lawyers. 2) The HCP is under a duty to take preventative measures against any real and immediate risk of an enforced disappearance, from state and non-state actors.

244 Appendix Guideline 11 1) Effective investigations shall be conducted into the disappearance and death of any individual in suspicious circumstances. 2) Measures shall be taken to safeguard against impunity for an enforced disappearance. 3) These measures include, but are not limited to: a) effectively investigating any complaint of an enforced disappearance. An effective investigation is one that is prompt, impartial and thorough; b) a prompt investigation. A prompt investigation is one that is initiated immediately after the crime was reported to the authorities or the authorities became aware of the crime. The authorities, on becoming aware of an enforced disappearance, shall undertake an investigation even if there is no formal complaint; and c) investigations that seek to identify and prosecute any perpetrator of an enforced disappearance.

Guideline 12 1) The burden of proving the fate of an enforced disappeared person lies with the HCP where the events in issue lie wholly, or in large part, within the exclusive knowledge of the state authorities. 2) A plausible explanation must be provided for the fate of the enforced disappeared person. 3) A reliable verification for any claim that the enforced disappeared person was released must be provided. Reliable verification must also be provided that the enforced disappeared person was released in conditions in which their physical integrity and ability to fully exercise their rights are assured.

Guideline 13 1) In the absence of a body and concrete evidence, a determination of the fate of the disappeared person will be made on the basis of sufficient circumstantial evidence. 2) A presumption of death may be determined if there is the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact to that effect. 3) The requisite standard of proof depends on: a) the period of time which has elapsed since the person was placed in detention and how much time has gone by without any news of the detained person;

Appendix 245 b) the lack of documentary evidence as to where the missing person had been detained; c) the inability of the HCP to provide satisfactory and plausible explanation as to what happened that person; d) the conduct of the parties when evidence is being obtained; and e) the specific context in which an unacknowledged detention is likely to be life-threatening.

CHAPTER 7 DUTY TO INVESTIGATE SUSPICIOUS DEATHS

Guideline 14 1) Exhaustive, independent and impartial investigations shall be conducted into all suspicious deaths. All reasonable measures shall be taken to deliver this. 2) The investigations shall honour the rule of law, be transparent and provide effective accountability. 3) The investigators responsible for and carrying out an investigation must be independent from those implicated in the events being investigated. The independence must be practical, there should be no hierarchical or institutional connection between the investigators and those being investigated. 4) The purpose of the investigations shall be to identify and bring to justice those responsible for the death, and to discover the truth about events leading to the suspicious death of a victim. To fulfil this purpose, those conducting the inquiry shall, at minimum, seek: a) to identify the victim; b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible; c) to identify possible witnesses and obtain statements from them concerning the death; d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; e) to distinguish between natural death, accidental death, suicide and homicide; f) to identify and apprehend the person(s) involved in the death; and g) to bring the suspected perpetrator(s) before a competent court established by law.

Guideline 15 The HCP shall act on its own motion. It shall not leave it to the initiative of the next-of-kin to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.

246 Appendix Guideline 16 1) Investigations are to be conducted with reasonable expedition. This includes that evidence gathering and the initiation of investigations commence and, in the case of adjournment, re-commence promptly. The circumstances of the individual case determine what is prompt. More expedience is expected in the cases of enforced disappearances. 2) Investigations must progress. 3) Investigations must provide for verdicts or contribute towards the identification and prosecution of offences. This confers a right on the victim to the possibility of pursuing prosecution, but it does not guarantee a right to prosecution as the outcome. 4) Investigators must coordinate and share all relevant information. 5) An explanation for any delay to investigations must be given. Only those delays that are absolutely necessary will be permissible. 6) Reasons must be given for non-prosecution.

Guideline 17 1) The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. 2) Investigators must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia: a) eye witness testimony; b) forensic evidence which includes complete ballistic reports, photographs and fingerprint tests; c) where appropriate, an autopsy which provides a complete and accurate record of ill-treatment and injury and an objective analysis of clinical findings, including the cause of death; and d) maintaining investigative offices and procedures to undertake inquiries. 3) Investigators shall ensure that physical evidence is recovered and preserved. This includes: a) Photographing the body as it is found and after it has been moved; b) Recording the body position and condition, including body warmth or coolness, lividity and rigidity; c) Protecting the deceased’s hands, e.g. with paper bags; d) Noting the ambient temperature. In cases where the time of death is an issue, rectal temperature should be recorded and any insects present should be collected for forensic entomological study. Which procedure is applicable will depend on the length of the apparent post-mortem interval; e) Examining the scene for blood, as this may be useful in identifying suspects; f) Recording the identities of all persons at the scene;

Appendix 247

4)

5)

6) 7)

8)

g) Obtaining information from scene witnesses, including those who last saw the decedent alive, and when, where and under what circumstances. Interview any emergency medical personnel who may have had contact with the body; h) Obtaining identification of the body and other pertinent information from friends or relatives. Obtain the deceased’s medical history from his or her physician(s) and hospital charts, including any previous surgery, alcohol or drug use, suicide attempts and habits; i) Placing the body in a body pouch or its equivalent. Save this pouch after the body has been removed from it; j) Storing the body in a secure refrigerated location so that tampering with the body and its evidence cannot occur; k) Making sure that projectiles, guns, knives and other weapons are available for examination by the responsible medical personnel; l) Obtaining admission or blood specimens and any X-rays, and review and summarise hospital records, if the decedent was hospitalised prior to death; m) Becoming familiar with the types of torture or violence that are prevalent in that country or locale, before beginning the autopsy. Medical and non-medical investigators shall have the right of access to the scene where the body is found. The medical personnel should be notified immediately to assure that no alteration of the body has occurred. If access to the scene was denied, if the body was altered or if information was withheld, this should be stated in the investigator’s report. A system for co-ordination between the medical and non-medical investigators should be established. This should address such issues as how the prosecutor will be notified and who will be in charge of the scene. Investigators’ reports must provide a basis for an effective follow-up investigation and answer critical questions. The body of the deceased person shall not be disposed of until an adequate autopsy is conducted by a physician, who shall, if possible, be an expert in forensic pathology. Those conducting the autopsy shall have the right of access to all investigative data, to the place where the body was discovered, and to the place where the death is thought to have occurred. If the body has been buried and it later appears that an investigation is required, the body shall be promptly and competently exhumed for an autopsy. If skeletal remains are discovered, they should be carefully exhumed and studied according to systematic anthropological techniques. The body of the deceased shall be available to those conducting the autopsy for a sufficient amount of time to enable a thorough investigation to be carried out. The autopsy shall, at a minimum, attempt to establish the identity of the deceased and the cause and manner of death. The time and place of death shall also be determined to the extent possible. Detailed colour photographs of the deceased shall be included in the autopsy report in order to document and

248 Appendix s upport the findings of the investigation. The autopsy report must describe any and all injuries to the deceased including any evidence of torture. 9) The investigation shall distinguish between natural death, accidental death, suicide and homicide. 10) Investigators must investigate the surrounding circumstances of a crime to corroborate official reports of the incident. This includes investigators acting of their own motion to interview and file witness statements. 11) Investigators must make genuine attempts to find and involve witnesses in the investigations. This includes the requirements that: a) investigators should identify and interview all potential witnesses to the crime, including: i) suspects; ii) relatives and friends of the victim; iii) persons who knew the victim; iv) individuals residing or located in the area of the crime; v) persons who knew or had knowledge of the suspects; vi) persons who may have observed either the crime, the scene, the victim or the suspects in the week prior to the execution; and vii) persons having knowledge of possible motives. b) interviews should take place as soon as possible and should be written and/ or taped. All tapes should be transcribed and maintained; c) witnesses should be interviewed individually, and assurance should be given that any possible means of protecting their safety before, during and after the proceedings will be used, if necessary; d) investigators are not responsible for a witness’ decision to not come forward; and e) investigations must allow for the possibility of state involvement in a crime. Where there are serious allegations of misconduct and infliction of unlawful harm implicating state security officers, it is incumbent on the authorities to respond actively and with reasonable expedition.

Guideline 18 1) The HCP shall pursue investigations through an independent commission of inquiry or similar procedure. In cases: a) in which the established investigative procedures are inadequate because of lack of expertise or impartiality; b) in which the established investigative procedures are inadequate because of the importance of the matter; c) in which the established investigative procedures are inadequate because of the apparent existence of a pattern of abuse; and/or

Appendix 249 d) where there are complaints from the family of the victim about these inadequacies or other substantial reasons. —— Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles. 2) Factors that support a belief that the state was involved in the execution, and that should trigger the creation of a special impartial investigation commission include: a) Where the political views, religious or ethnic affiliation, or social status of the victim give rise to a suspicion of state involvement or complicity in the death because of any one or combination of the following factors: i) where the victim was last seen alive in police custody or detention; ii) where the modus operandi is recognisably attributable to state-sponsored death squads; iii) where persons in the Government or associated with the state have attempted to obstruct or delay the investigation of the execution; and/or iv) where the physical or testimonial evidence essential to the investigation becomes unavailable. b) An independent commission of inquiry or similar procedure should also be established where a routine investigation is inadequate for the following reasons: i) the lack of expertise; ii) the lack of impartiality; iii) the importance of the matter; iv) the apparent existence of a pattern of abuse; and/or v) complaints from the family of the victim about the above inadequacies or other substantial reasons.

Guideline 19 Investigations must have a sufficient element of public scrutiny. At minimum the next-of-kin of the victim must be involved in the investigations procedure to the extent necessary to safeguard his or her legitimate interests. The next-of-kin: a) has the right to insist that a medical or other qualified representative is present at the autopsy; b) shall be informed immediately when the identity of a deceased person has been determined; c) must be informed of any decisions regarding prosecution;

250 Appendix d) cannot be prohibited outright from access to the investigation and court documents; e) must be given the opportunity to tell the court of their version of events; f) must be notified of the outcome of the investigation. This shall include a written report that will be made within a reasonable period of time on the methods and findings of the investigation; and g) shall have the body of the deceased returned to them upon completion of the investigations.

Guideline 20 1) Investigations must be pursued through an independent commission of inquiry or similar procedure: a) in cases which the established investigative procedures are inadequate because of lack of expertise or impartiality; b) because of the importance of the matter; c) because of the apparent existence of a pattern of abuse; and/or d) where there are complaints from the family of the victim about these inadequacies or other substantial reasons. 2) Members of such a commission must be impartial, competent and independent individuals. In particular, they shall be independent of any institution, agency or person that may be a subject of the inquiry. 3) The commission must have: a) the authority to obtain all information necessary to the inquiry; and b) independent powers to investigate. 4) The commission’s recommendations shall be binding. 5) Complainants and witnesses to the commission must be protected against intimidation. 6) Any attempt to hinder the commission’s work must be effectively addressed. 7) An independent complaints mechanism should be in place to consider complaints against the judiciary, police and military. The independence must be practical. There should be no hierarchical or institutional connection between the investigators and those being investigated.

CHAPTER 8 RIGHT TO AN EFFECTIVE REMEDY AND THE RIGHT TO LIFE

Guideline 21 The exhaustion of remedies rule is inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the state authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective.

Appendix 251 Guideline 22 1) Where vulnerable victims (such as those in state custody, detention or control) are concerned, the onus is on investigators to find facts, identify perpetrators and bring prosecutions. 2) A HCP’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assaults might be rendered illusory if, in respect of complaints under those Articles, an applicant would be required to pursue an action leading only to an award of damages. 3) An action of damages, either to provide redress for the death or for the breach of official duty during the investigation, is not capable, without the benefit of the conclusions of a criminal investigation, of making any findings as the identity of the perpetrators and still less of establishing their responsibility.

Guideline 23 1) Article 13, in conjunction with Article 2, requires in addition to the payment of compensation, where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure. 2) Where state agents have been charged with offences involving ill-treatment, they should be suspended from duty while being investigated or tried and should be dismissed if convicted. 3) There is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, but the national courts should not under any circumstances be prepared to allow offences concerning violent deaths to go unpunished. Therefore, the Convention does not require state-assisted prosecution. It does require that the victim has the possibility to pursue the prosecution of the perpetrators.

CHAPTER 9 SPECIAL CONSIDERATIONS

Guideline 24 1) Complainants, witnesses, those conducting the investigation, legal representatives and their families shall be protected from violence, threats of violence or any other form of intimidation. This includes direct coercion and flagrant acts of intimidation. 2) The particular circumstances at issue and the vulnerability of the individual and his or her susceptibility to influence exerted by the state

252 Appendix

3) 4)

5)

6)

authorities, must be taken into account when determining if contact between the authorities and the applicant or potential applicant are incompatible with the Convention. For actions to be deemed intimidation, the individual must be actually intimidated by the actions or threats. Those potentially implicated in a suspicious or unlawful death shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as over those conducting investigations. If there is a reasonable fear of persecution, harassment, or harm to any witness or prospective witness, it may be advisable: a) to hear the evidence in camera; b) to keep the identity of the informant or witness confidential; c) to use only such evidence as will not present a risk of identifying the witness; and d) to take any other appropriate measures. The use of anonymous informants is permitted where it can be justified with relevant and sufficient reasons. This is with the understanding that: a) a counterbalance must be offered for the disadvantage faced by other parties; b) the informant’s evidence from an anonymous informer is not decisive for a conviction; and c) the informant’s evidence is corroborated by further items of evidence.

Guideline 25 1) Collusion is prohibited. 2) The HCP must ensure that any allegation of collusion is effectively investigated. 3) The HCP must take measures to punish and eradicate collusion.

Guideline 26 1) Where a statute of limitations in respect of a crime applies all the necessary measures shall be taken to ensure that the term of limitation for criminal proceedings: a) is of a long duration and is proportionate to the extreme seriousness of the offence. Consideration will be given to: i) the seriousness of the crime; ii) the number of people affected; iii) the public interest; and iv) the relevant legal standards applicable to such situations in modernday democracies.

Appendix 253 b) concerning enforced disappearances, commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. c) regarding actions connected with offences committed by, or by order of, public officials and which have not been prosecuted for political reasons, shall be extended for the period during which such reasons existed. 2) Victims of a crime shall have the right to an effective remedy during the term of limitation. 3) Statutes of limitation against war crimes and/or crimes against humanity are prohibited.

Guideline 27 An amnesty is generally incompatible with the duty incumbent on the HCP to investigate such acts. Amnesties can only be used where they: a) are exceptional; b) are necessary; c) are in the public interest and respect the right to protection of life and to truth, d) do not impede investigations; e) take place as part of a reconciliation process; and f) are not used against serious crimes, such as crimes against humanity, war crimes, genocide and torture.

CHAPTER 10 SYSTEMATIC VIOLATIONS

Guideline 28 Neither Article 34, nor any other provisions in the Convention, prevents an individual applicant from raising before the Court a complaint in respect of an alleged administrative practice in breach of the Convention provided that he or she brings prima facie evidence of such a practice and of his or her being a victim of it.

Guideline 29 Reflecting Article 15(2) of the ECHR, derogation from the principles set out in these guidelines is not permitted, except in respect of deaths resulting from lawful acts of war. If exceptions arise they are subject to the principles of IHL, ICL and the non-derogable rights set out within this Convention.

254

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256 Select Bibliography Eva Brems and Janneke Gerards, Shaping Rights in the ECHR: The Role of the ECtHR in Determining the Scope of Human Rights (CUP, 2014). Simon Bronitt et al (eds), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012). Edith Brown-Weiss and Harold Jacobson (eds), Engaging Countries: Strengthening Compliance with International Accords (MIT Press, 2000). Laurence Burgorgue-Larsen and Amaya Ubeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (OUP, 2011). Michael Byres, Custom, Power and the Power of Rules: International Relations and Customary International Law (CUP, 1993). C Anne Cadwallader, Lethal Allies: British Collusion in Ireland (Mercier Press, 2013). Lucius Caflisch et al (eds), Human Rights—Strasbourg Views: Liber Amicorum Luzius Wildhaber (Kehl, 2007). Peter Cane and Herbert Kritzer, The Oxford Handbook of Empirical Legal Research (OUP, 2010). Abram Chayes and Antonia Chayes, The New Sovereignty (Harvard University Press, 1998). Jonas Christoffersen and Mikael Madsen, The ECtHR Between Law and Politics (OUP, 2011). Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP, 2006). Robert Clark, The Basques: The Franco Years and Beyond (University of Nevada Press, 1979). ——, Negotiating with ETA: Obstacles to Peace in the Basque Country, 1975–1988 (University of Nevada Press, 1990). Samy Cohen (ed), Democracies at War Against Terrorism (Palgrave Macmillian, 2008). Gérard Cohen-Jonathan and Jean-François Flauss, La Réforme du Systéme de Contrôle Contentieux de la Convention Européene des Droits de l’Homme (Droit et Justice, 2005). Jean-Marc Coicaud et al, The Globalization of Human Rights (United Nations University Press, 2003). Fons Coomans and Menno Kamminga (eds) Extraterritorial Application of Human Rights Treaties (Intersentia, 2004). David Cortright and George Lopez (eds), Smart Sanctions: Targeting Economic Statecraft (Rowman and Littlefield, 2002). CoE, Yearbook of the ECHR: Volume 34 (1991) (Martinus Nijhoff Publishers, 1994). CoE, Societies in Conflict: The Contribution of Law and Democracy to Conflict Resolution (CoE, 2000). Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (CUP, 2010). D Gauthier De Beco, Human Rights Monitoring Mechanisms of the CoE (Routledge, 2012). Brice Dickson, The ECHR and the Conflict in NI (OUP, 2010). Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011). CJM Drake, Terrorists’ Target Selection (Palgrave Macmillan, 1998). John Dunlop, Russia Confronts Chechnya: Roots of a Separatist Conflict (CUP, 1998).

Select Bibliography 257 E Ben Emmerson et al, Human Rights and Criminal Justice (Sweet and Maxwell, 2007). Nader Entessar, Kurdish Ethnonationalism (Lynne Rienner Publishers, 1992). F Ulrich Fastenrath and Bruno Simma, From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP, 2011). Andrew Finkel, Turkey: What Everyone Needs to Know (OUP, 2012). Peter Finn, Using Civil Remedies for Criminal Behaviour: Rationale, Case Studies and Constitutional Issues (DIANE Publishing, 1994). Dieter Fleck, The Handbook of International Humanitarian Law (OUP, 2008). Spyridon Flogaitis et al, The ECtHR and Its Discontents: Turning Criticism into Strength (Edward Elgar, 2013). Barry Flynn, Pawns in the Game: Irish Hunger Strikes 1912–1981 (Collins Press, 2011). Magdalena Forowicz, The Reception of International Law in the ECtHR (OUP, 2010). Chava Frankfort-Nachmias and David Nachmias, Research Methods in the Social Sciences (Worth Publishers, 2008). Lon Fuller, The Morality of Law (Yale University Press, 1969). G Tony Geraghty, The Irish War: The Hidden Conflict Between the IRA and British Intelligence (JHU Press, 1998). Emma Gilligan, Terror in Chechnya (Princeton University Press, 2010). Barney Glaser, Basics of Grounded Theory Analysis: Emergence vs Forcing (Sociology Press, 1992). Barney Glaser and Anselm Strauss, The Discovery of Grounded Theory: Strategies of Qualitative Research (Aldine, 1967). Thomas Goltz, Chechnya Diary: A War Correspondent’s Story of Surviving the War in Chechnya (Thomas Dunne Books, 2003). Michael Gunter, Historical Dictionary of the Kurds (Scarecrow Press, 2010). Harold Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research (CUP, 1946). H Randy Hanzlick, Death Investigation: Systems and Procedures (CRC Press, 2006). Andrew Harding and Esin Örücü, Comparative Law in the 21st Century (Kluwer Academic Publishers, 2002). David Harris and Stephen Livingstone, The Inter-American System of Human Rights (Clarendon Press, 1998). David Harris et al, Harris, O’Boyle and Warbrick: Law of the ECHR (OUP, 2009). David Harris et al, Law of the ECHR (OUP, 2014). Colin Harvey (ed), Human Rights in the Community: Rights as Agents of Change (Hart Publishing, 2005). Michael Haynes and Rumy Husan, A Century of State Murder? Death and Policy in Twentieth Century Russia (Pluto Press, 2003).

258 Select Bibliography Marianne Heiberg et al (eds), Terror, Insurgency and the State: Ending Protracted Conflicts (University of Pennsylvania Press, 2007). Peter Henner, Human Rights and the Alien Tort Statute: Law, History and Analysis (American Bar Association, 2009). Steven Hick et al, Human Rights and the Internet (Palgrave Macmillan, 2000). Peter Hodgkinson and Andrew Rutherford, Capital Punishment: Global Issues and Prospects (Waterside Press, 1996). Roger Hood, The Death Penalty: A World-Wide Perspective (Clarendon, 1996). I ICRC, Customary International Humanitarian Law (CUP, 2009). J Anthony Jennings (ed), Justice Under Fire: The Abuse of Civil Liberties in NI (Pluto Press, 1990). K Hans Kelsen, General Theory of Law and State (Lawbook Exchange, 2009). Anatoly Kovler et al, ‘Dialogues Between Judges’ (ECtHR, 2008). Jerome Kirk and Marc Miller, Reliability and Validity in Qualitative Research (Sage, 1986). Nico Krisch, Beyond Constitutionalism, The Pluralist Structure of Post-national Law (OUP, 2010). Mark Kurlansky, The Basque History of the World (Vintage, 2000). L Philip Leach, Taking a Case to the ECtHR (OUP, 2005). Philip Leach et al, Responding to Systematic Human Rights Violations: An Analysis of ‘Pilot-judgments’ of the ECtHR and Their Impact at National Level (Intersentia, 2010). Nicky Lee and Sila Lee, The Parenting Book (Alpha International, 2009). Paul Lemmens and Wouter Vandenhole (eds), Protocol No 14 and the Reform of the ECtHR (Intersentia, 2005). David Lovell and Igor Primoratz (eds), Protecting Civilians During Violent Conflict: Theoretical and Practical Issues for the 21st Century (Ashgate Publishing, 2013). Alf Lüdtke (ed), Everyday Life in Mass Dictatorship: Collusion and Evasion (Palgrave Macmillan, 2016). M Jeremy MacClancy, Expressing Identities in the Basque Arena (Oxford, 2007). Ronald Macdonald and Herbert Petzold, The European System For the Protection of Human Rights (Kluwer Academic Publishers, 1993). Scott Mainwaring and Christopher Welna, Democratic Accountability in Latin America (OUP, 2003). Frederic Maitland and Herbert Fisher, The Constitutional History of England: A Course of Lectures (Lawbook Exchange, 1908). Aliza Marcus, Blood and Belief (New York University Press, 2007).

Select Bibliography 259 Christopher Marsh and Nikolas Gvosdev, Civil Society and the Search for Justice in Russia (Lexington Books, 2002). Bertrand Mathieu, The Right to Life in European Constitutional and International Case Law (CoE, 2006). ———, Europeans and Their Rights: The Right to Life in European Constitutional and Conventional Case Law (CoE, 2006). Brianne McGonigle-Lehy et al (eds), Liber Amicorum for Leo Zwaak (Intersentia 2013). Kevin McKiernan, The Kurds: A People in Search of their Homeland (St Martin’s Press, 2006). David McKittrick and David McVea, Making Sense of the Troubles: A History of the NI Conflict (Penguin, 2001). David McKittrick et al, Lost Lives (Mainstream Publishing, 2007). David McKittrick et al, Lost Lives: The Stories of the Men, Women and Children Who Died as a Result of the NI Troubles (Mainstream Publishing, 2012). Buckner Melton, The Law (Infobase Publishing, 2010). Nils Melzer, Targeted Killing in International Law (OUP, 2008). Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (Martinus Nijhoff Publishers, 2006). Philipp Misselwitz and Tim Rieniets, City of Collision: Jerusalem and the Principles of Conflict Urbanism (Walter de Gruyter, 2006). Daniel Moeckli et al, International Human Rights Law (OUP, 2010). Ed Moloney, Voices From the Grave: Two Men’s War in Ireland (Faber and Faber, 2010). Caroline Morris and Cian Murphy, Getting a PhD in Law (Hart Publishing, 2011). Belinda Morrissey, When Women Kill: Questions of Agency and Subjectivity (Routledge, 2003). John Morison et al, Judges, Transition and Human Rights (OUP, 2007). Aogan Mulcahy, Policing NI: Conflict, Legitimacy and Reform (Routledge, 2013). Paul Murphy, Allah’s Angels: Chechen Women in War (Naval Institute Press, 2011). N Denise Natali, The Kurds and the State: Evolving National Identity in Iraq, Turkey and Iran (Syracuse University Press, 2005). Fionnuala Ní Aoláin, The Politics of Force: Conflict Management and State Violence in NI (Blackstaff Press, 2000). Martinus Nijhoff, Travaux Préparatoires (Document H (61) 4, 1975–1985). O Abdullah Öcalan, Prison Writings: The PKK and the Kurdish Question in the 21st Century (TMP Distribution, 2011). ———, War and Peace in Kurdistan (Transmedia Publishing, 2011). ———, The Road Map to Negotiations: Prison Writings III (AK Press Distributions, 2012). Marco Odello and Sofia Cavandoli (ed), Emerging Areas of Human Rights in the 21st Century: The Role of the Universal Declaration of Human Rights (Routledge, 2012). RM Önok, ‘Criminal Law’ in Tugrul Ansay and Don Wallace (eds), Introduction to Turkish Law (Kluwer Law International, 2011). David Ormerod et al, Smith and Hogan’s Criminal Law (OUP, 2011).

260 Select Bibliography Robert Orttung and Andrei Makarychev, National Counter-terrorism Strategies (IOS Press, 2006). Ali Kemal Özcan, Turkey’s Kurds: A Theoretical Analysis of the PKK and Abdullah Ocalan (Taylor and Francis, 2012). P Costas Paraskeva, The Relationship Between the Domestic Implementation of the ECHR and the Ongoing Reforms of the ECtHR (With a Case Study on Cyprus and Turkey) (Intersentia, 2010). Michael Patton, Qualitative Research and Evaluation Methods (Sage Publications, 2002). Anna Politkovskaya, A Dirty War: A Russian Reporter in Chechnya (Harvill Press, 2001). ——, A Small Corner of Hell: Dispatches from Chechnya (University of Chicago Press, 2007). R Bernadette Rainey, Human Rights Concentrate (OUP, 2012). Magnus Ranstorp and Paul Wilkinson (ed), Terrorism and Human Rights (Routledge, 2013). Javaid Rehman, International Human Rights Law (Longman, 2010). Karen Reid, A Practitioner’s Guide to the ECHR (Thomson Sweet & Maxwell, 2011). Paul Robinson and Michael Cahill, Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve (OUP, 2005). Terence Roehrig, The Prosecution of Former Military Leaders in Newly Democratic Nations (McFarland, 2002). David Romano, The Kurdish Nationalist Movement: Opportunity, Mobilization and Identity (CUP, 2006). John Russell, Chechnya: Russia’s ‘War on Terror’ (Routledge, 2007). S Michael Schmitt and Jelena Pejic, International Law and Armed Conflict: Exploring the Faultlines—Essays in Honour of Yoram Dinstein (Martinus Nijhoff Publishers, 2007). Phil Scraton, Power, Conflict and Criminalisation (Routledge, 2007). Anja Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP, 2009). Asne Seierstand, The Angel of Grozny: Life Inside Chechnya (Virago, 2009). Letizia Seminara, Les Effets des Arrêts de la Cour Interaméricaine des Droits de l’Homme (Droit et Justice Collection, 2009). Peter Shirlow, Abandoning Historical Conflict? Former Paramilitary Prisoners and Political Reconciliation in NI (Manchester University Press, 2010). Richard Shultz and Andrea Dew, Insurgents, Terrorists and Militias: The Warriors of Contemporary Combat (Columbia University Press, 2013). Emma Sinclair-Webb, Closing Ranks Against Accountability: Barriers to Tackling Police Violence in Turkey (HRW, 2008). Sebastian Smith, Allah’s Mountains: The Battle for Chechnya (Tauris Parke Paperbacks, 2009). Marie Smyth and Gillian Robinson, Researching Violently Divided Societies: Ethical and Mythological Issues (United Nations University Press, 2001).

Select Bibliography 261 Marie Smyth and Emma Williamson, Researchers and Their ‘Subjects’: Ethics, Power, Knowledge and Consent (Policy Press, 2004). Peter Squires and Peter Kennison, Shooting to Kill: Policing, Firearms and Armed Response (John Wiley and Sons, 2010). Henry Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (OUP, 2008). Jesse Stellato (ed), Not in Our Name; American Antiwar Speeches, 1846 to Present (Penn State Press, 2012). Nikolas Stürchler, The Threat of Force in International Law (CUP, 2007). Malcom Sutton, An Index of Deaths from the Conflict in Ireland 1969–1993 (Beyond the Pale Publications, 1994). Janusz Symonides, Human Rights: Concept and Standards (UNESCO, 2000). ——, Human Rights: International Protection, Monitoring, Enforcement (UNESCO, 2003). T Adrian Tomer et al, Existential and Spiritual Issues in Death Attitudes (Psychology Press, 2013). Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court— Observers’ Notes Article by Article (Hart Publishing, 2008). Eduard Tumanov, Kommentarii k Federalnomu Zakonu ob Oruzhii [‘Commentaries to the Federal Law on Weapons’] (Moscow, 2010). William Twining, ‘Globalisation and Comparative Law’ in Esin Örücü and David Nelken, Comparative Law: A Handbook (Hart Publishing, 2007). U UK Ministry of Defence, The Manual of The Law of Armed Conflict (OUP, 2004). Ali Usul, Democracy In Turkey: The Impact of EU Political Conditionality (Taylor and Francis, 2010). W Nicholas Walliman, Research Methods: The Basics (Routledge, 2011). Dermot Walsh, Use and Abuse of Emergency Legislation in NI (Civil Liberties Trust, 1993). Cameron Watson, Modern Basque History: Eighteenth Century to the Present (Centre for Basque Studies, 2003). ——, Basque Nationalism and Political Violence: The Ideological and Intellectual Origins of ETA (Center for Basque Studies, 2007). Brown Weiss and Jacobson (eds), Engaging Countries: Strengthening Compliance with International Accords (MIT Press, 2000). Ronald Weitzer, Policing Under Fire: Ethnic Conflict and Police-Community Relations in NI (SUNY Press, 1995). Jonathan Weiler, Human Rights in Russia: A Darker Side of Reform (Lynne Rienner Publishers, 2004). Peter White (ed), Crime Scene to Court: The Essentials of Forensic Science (Royal Society of Chemistry, 2004). Robin White and Clare Ovey, Jacobs, White and Ovey: The ECHR (OUP, 2010). Elizabeth Wicks, The Right To Life and Conflicting Interests (OUP, 2010).

262 Select Bibliography Robin Wilson, The NI Experience of Conflict and Agreement: A Model for Export? (Manchester University Press, 2010). Paddy Woodworth, The Basque Country: A Cultural History (Signal Books, 2010). X Dimitirs Xenos, The Positive Obligations of the State Under the ECHR (Routledge, 2011). Y Kerim Yildiz, The Kurds in Turkey: EU Accession and Human Rights (Pluto Press, 2005). Kerim Yildiz and Susan Breau, The Kurdish Conflict: International Humanitarian Law and Post-Conflict Mechanisms (Taylor and Francis, 2010).

JOURNAL ARTICLES A William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The ECtHR in Chechnya’ (2005) 16(4) European Journal of International Law 741. Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic Implementation of European Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter’ (2014) 25(1) The European Journal of International Law 205. B Christine Bell, ‘Dealing with the Past in NI’ (2002) 26(4) Fordham International Law Journal 1095. Christine Bell and Johanna Keenan, ‘Lost on the Way Home? The Right to Life in NI’ (2005) 32(1) Journal of Law and Society 68. Elspeth Berry, ‘The Extra Territorial Reach of the ECHR’ (2006) 12(4) European Public Law 629. Eirik Bjorge, ‘Right for the Wrong Reasons: Silih v Slovenia and Jurisdiction Ratione Temporis in the ECtHR’ (2012) 83(1) British Yearbook of International Law 115. Kevin Boyle and Hurst Hannum, ‘Individual Applications Under the ECHR and the Concept of Administrative Practice: The Donnelly Case’ (1974) 68 American Journal of International Law 440. Nicolas Bratza, ‘Living Instrument or Dead Letter—The Future of the ECHR’ (2014) 2 European Human Rights Law Review 116. Martin van Bruinessen, ‘Turkey’s Death Squads’ (1996) 26 Middle East Report 20 Cara Buckley, ‘The ECHR and the Right to Life in Turkey’ (2001) 1(1) Human Rights Law Review 35. C Juliet Chevalier-Watts, ‘Effective Investigations under Article 2 of the ECHR: Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21(3) European Journal of International Law 701. Andrew Clapham, ‘Human Rights Obligations of Non-State Actors in Conflict Situations’ (2006) 88 (863) International Review of the Red Cross 491.

Select Bibliography 263 Valerio Colandrea, ‘On the Power of the ECtHR to Order Specific Non-monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases’ (2007) 2 Human Rights Law Review 409. D Shai Dothan, ‘Judicial Tactics in the ECtHR’ (2011) 12(1) Chicago Journal of International Law 115. George Downs et al, ‘Is the Good News About Compliance Good News About Cooperation?’ (1996) 50(3) International Organisation 379. Kanstantsin Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the ECHR’ (2011) 12(10) German Law Journal 1730. ———, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the ECtHR’ (2011) Public Law 534. Kanstantsin Dzehtsiarou and Noreen O’Meara, ‘Advisory Jurisdiction and the ECtHR: A Magic Bullet for Dialogue and Docket-control?’ (2014) 34(3) Legal Studies 444. E ECtHR, ‘Documentation: A Further Fundamental Reform for a Court in Crisis’ (2000) 21 Human Rights Law Journal 90. G Alan Gewirth, ‘Are There Any Absolute Rights?’ (1981) 31 The Philosophical Quarterly 1. Felipe González, ‘The Experience of the Inter-American Human Rights System’ (2009) 40 Victoria University of Wellington Law Review 103. Lorraine Green-Mazerolle and Jan Roehl, ‘Civil Remedies and Crime Prevention: An Introduction’ (1998) 9 Crime Prevention Studies 1. Vladimir Guliev, ‘Moratoriy na smertnuiu kazn’ prezhdevremenen’ [‘The moratorium on the death penalty is premature’], Nezavisimaya Gazeta, 21 December 1996. H Emilie Hafner-Burton and Kiyoteru Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’ (2005) 110(5) American Journal of Sociology 1373. Richard Hare, ‘The Presidential Address: Principles’ (1972–1973) 73 Proceedings of the Aristotelian Society New Series 1. Oona Hathaway et al, ‘Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law’ (2012) 96 Minnesota Law Review 1883. Jean-Marie Henckaerts, ‘A Study On Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87(857) International Review of the Red Cross 175. Ralph Henman, ‘Conceptualising Access to Justice and Victims’ Rights in International Sentencing’ (2004) 13 Social and Legal Studies 27. Noelle Higgins, ‘The Regulation of Armed Non-State Actors: Promoting the Application of the Laws of War to Conflicts Involving National Liberation Movements’ (2009) 17(1) Human Rights Brief 12.

264 Select Bibliography J Leonard Jason-Llody, ‘Plastic Bullets on the Mainland’ (1990) 140 New Law Journal 1492. K Harold Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181. ———, ‘Review Essay: Why do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599. Nikolai Kovalev, ‘Trial by Jury in Russian Military Courts’ (2008) 8 Journal of Power Institutions in Post-Soviet Societies. L Julia Lapitskaya, ‘ECHR, Russia and Chechnya: Two is Not Company and Three is Definitely a Crowd’ (2011) 43 International Law and Politics 479. Philip Leach, ‘Beyond the Bug River: A New Dawn for the Redress before the ECtHR?’ (2005) 2 European Human Rights Law Review 148. ——, ‘The Chechen Conflict: Analysing the Oversight of the ECtHR’ (2008) 6 European Human Rights Law Review 732. Loukis Loucaides, ‘Determining the Extra-territorial Effect of the ECHR: Facts, Jurisprudence and the Bankovic Case’ (2006) 4 European Human Rights Law Review 391 Patricia Lundy, ‘Can the Past be Policed? Lessons from the Historical Enquiries Team NI’ (2009) 11 Law and Social Challenges 109. M Paul Mahoney, ‘The Relationship between the Strasbourg and the National Courts’ (2014) 130 Law Quarterly Review 568. Giuseppe Martinico, ‘Is the ECHR Going to Be “Supreme”? A Comparative-Constitutional Overview of ECHR and EU Law Before National Courts’, (2012) 23(2) European Journal of International Law 401. Natasa Mavronicola, ‘What is an “Absolute Right”? Deciphering Absoluteness in the Context of Article 3 of the ECHR’ (2012) 12(4), Human Rights Law Review 723. Kieran McEvoy, ‘Prisoners, the Agreement, and the Political Character of the NI Conflict’ (1999) 22 Fordham International Law Journal 1539. Kieran McEvoy and Louise Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’ (2012) 39(3) Journal of Law and Society 410. Francesco Messineo, ‘Things Could Only Get Better: Al-Jedda Beyond Behrami’ (2011) 50(3) Military Law and the Law of War Review 321. Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23(1) European Journal of International Law 121. Mathias Moschel, ‘Is the ECtHR Case Law On Anti-Roma Violence “Beyond Reasonable Doubt”?’ (2012) 12(3) Human Rights Law Review 479. Alastair Mowbray, ‘Duties of Investigation Under ECHR’ (2002) 51(2) International Comparative Law Quarterly 437. ——, ‘Protocol 14 to the ECHR and Recent Strasbourg Cases’ (2004) 4(2) Human Rights Law Review 331. Josef Mrázek, ‘Armed Conflicts and the Use of Force’ (2010) 1 Czech Yearbook of Public and Private International Law 87.

Select Bibliography 265 Richard Mulgan, ‘“Accountability”: An Ever-Expanding Concept?’ (2000) 78(3) Public Administration 555. Raymond Murray, State Violence: NI 1969–1997 (Mercier Press, 1998). N Fionnuala Ní Aolaín, ‘The Evolving Jurisprudence of the ECHR Concerning the Right to Life’ (2001) 19 Netherlands Quarterly of Human Rights 21. P Said Pashayev, ‘Problems of Investigating Cases Which Have Become the Subject of Review by the European Court’ (2010) 2(8) Vestnik Sledstvennogo Komiteta RF. Joost Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation: Selected Problems”’ (1996) 66(1) British Yearbook of International Law 415. R Marny Requa and Gordan Anthony, ‘Coroners, Controversial Deaths, and NI’s Past Conflict’ (2008) Public Law 443. Bernard Roberston, ‘Baton Rounds in Great Britain’ (1991) 140 New Law Journal 340. Eric Roxstrom et al, ‘The NATO Bombing Case (Bankovic et al v Belgium et al) and the Limits of Western Human Rights Protection’ (2005) 23 Boston University International Law Journal 55. Cedric Ryngaert, ‘Clarifying the Extra-Territorial Application of the ECHR’ (2012) 28(74) Merkourios Utrecht Journal of International and European Law 57. S Sergey Sayapin, ‘The International Committee of the Red Cross and International Human Rights Law’ (2009) 9(1) Human Rights Law Review 95. Max Schaefer, ‘Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction’ (2011) 5 European Human Rights Law Review 566. Beth Simmons, ‘International Law and State Behaviour: Commitment and Compliance in International Monetary Affairs’ (2000) 94(4) American Political Science Review 819. Gobind Singh Sethi, ‘The ECtHR Jurisprudence on Issues of Forced Disappearances’ (2001) 8(3) Human Rights Brief 29. Stephen Skinner, ‘Deference, Proportionality and the Margin of Appreciation in Lethal Force Case Law Under Article 2 ECHR’ (2014) European Human Rights Law Review 32. Ann-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503. John Smith, ‘The Right to Life and the Right to Kill in Law’ (1994) 144 New Law Journal 354 Matthew Smith, ‘The Adjudicatory Fact-finding Tools of the ECtHR’ (2009) 2 European Human Rights Law Review 206. Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14(3) Human Rights Law Review 1. Alec Stone-Sweet and Helen Keller, ‘Assessing the Impact of the ECHR on National Legal Systems’ (2008) 88 Faculty Scholarship Series 676. ——, ‘The Reception of the ECHR in National Legal Orders’ (2008) 89 Faculty Scholarship Series 13.

266 Select Bibliography T Andrew Tickell, ‘Dismantling the Iron Cage: The Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the ECtHR’ (2011) 12(10) German Law Review 1786. W Ralph Wilde, ‘The “Legal Space” or “Escape Juridique” of the ECHR: Is it Relevant to Extraterritorial State Action?’ (2005) European Human Rights Law Review 115. Luzius Wildhaber, ‘A Constitutional Future for the ECtHR?’ (2002) 23 Human Rights Law Journal 161.

Index amnesties 193–200 blanket amnesties 194 differing approaches to amnesties at a domestic level 200–203 partial amnesties 196, 202 prohibition of 194, 195, 196, 197, 198, 199 proposed guidelines 253 Amnesty International 150 Article 41 Unit 226 autopsies 134, 135, 136, 137, 138, 139 Basque conflict amnesties and pardons 200–201 collusion 187 compensation and damages 168–9 cooperation between French and Spanish security forces 57 enforced disappearances 89, 90 ETA assassinations 79–80 impunity 174 lack of independence in investigations 147 re-investigations 176 targeted killings 29–30 Batallón Vasco Español (BVE) 29, 30 Bennett Committee 148 Black Committee 150 blanket amnesties 194 Brighton Declaration 236 CCRC 149 Chechen conflict access to information 152 amnesties and pardons 201 autopsies 135 collusion 187–8 compensation and damages 169 duty to adequately plan operations 76–7 enforced disappearances 90, 118, 119 forensic examinations 135 impunity 175 intimidation 184–5 lack of independence in investigations 147–8 reform of legislation 180 re-investigations 176–7 rubber bullets, use of 41–2 Russia’s failure to adequately protect armed forces 80, 81 statute of limitation 192

systematic violations 217 targeted killings 32–3 teargas, use of 47–9 unjustified killings 35–6 witness statements 143 Chile enforced disappearances 89 collusion 186–7, 190–91 definition 186 informants, use of 190 leading to deaths 187–9 leading to ineffective investigations 189 proposed guidelines 252 CoM see Committee of Ministers Commissioner for Human Rights 166, 232 developing the role of 233–4 facilitating cooperation between the CoE’s bodies 97, 98, 234 politicisation of 232–3 proposed guidelines 237 Committee of Ministers (CoM) composition of 227 developing the use of Article 46(4) procedure 229–31 politicisation of 229 comparative law 3 compensation and damages 167–71, 224 Article 41 Unit 226 awarding insufficient compensation 225 lack of consistency and transparency 225–6 over-reliance on 224–5 core rights 12 Coroners Service for NI (CSNI) 130 Criminal Cases Review Commission (CCRC) 149 CSNI 130 de Silva Inquiry 141 death penalty Russia 60 Spain 58 Turkey 67 detention 29 torture and/or ill-treatment 29 disciplinary sanctions 171–2 duty to investigate suspicious deaths 121, 154 independent and impartial investigations 146–9 independent and impartial tribunal 146

268 Index independent complaints mechanisms 149–51 minimum requirements 122, 123, 124 prompt commencement of investigations 127–8 proposed guidelines 122, 154, 245–50 public scrutiny 151–4 purpose of the investigation 125–7 reasonable expedition of investigations 128–9 excessive delays 129–32 investigations taking place in the context of violence 133 sheer volume of cases awaiting investigation 132 right to an effective remedy, and relationship between 160–63 state’s own motion to investigate 124–5 thoroughness of investigations 133–4 autopsies 134, 135, 136, 137, 138, 139 forensic examinations 134, 135, 136, 137, 138, 139 public inquiries 140–42 witness statements 143–6 duty to protect right to life duty to adequately plan operations 73–4, 77 Chechen conflict 76–7 Northern Ireland Troubles 74–5 Turkish-Kurdish conflict 75–6 duty to protect against real and immediate risks to life 77–82 proposed guidelines 86, 241–2 duty to protect right to life, by law Basque conflict cooperation between French and Spanish security forces 57 French law 59 Spanish law 57–9 Chechen conflict 60 Chechen law 60 Russian law 60, 61 culture of respect for the law 71, 73 ECtHR’s approach to domestic laws 69–70, 71, 72 extent of the duty 54 implementing adequate legal and administrative frameworks 71 criminal law provisions 54–5 regulations 55–6 Northern Ireland Troubles Irish law 66–7 NI legal system 61, 62–6 positive obligation 53 proposed guidelines 71, 241 states’ approach to legislation 56 limitations 56, 57 Turkish-Kurdish conflict Turkish law 67–9

duty to refrain from an unjustified killing ‘absolutely necessary’ test 26–8 subjective nature of 50 detention 29 torture and/or ill-treatment 29 effecting a lawful arrest or preventing escape 33–6 improving the enforceability mechanisms 51 margin of appreciation 49–50, 51 negative obligation on States 24 test applied to a negative violation 24–6 proportionality 23, 32 subjective nature of the principle of 50 proposed guidelines 51, 52, 239–41 quelling a riot or insurrection 37 definition of ‘insurrection’ 38–9 definition of ‘riot’ 37–8 live ammunition, use of 39–40 methods of force used 37 plastic bullets, use of 41, 42, 43, 44, 45 rubber bullets, use of 41, 42, 43 teargas, use of 45–9 water cannon, use of 49 targeted killings 29–33 ECHR see European Convention on Human Rights ECtHR see European Court of Human Rights Egiari Zor Foundation 169 EHRAC 230 enforced disappearances 87 applicable rights 87 burden of proof 112, 113, 114 shifting the burden 118–20 continuing violation 99, 103–4, 106 definition of 91–2, 106 absolute prohibition 94–5 intention 98–9 perpetrators 92–3 victim status 93–4 duty to investigate 109–11 effective laws, requirement for 107–9 evolving concept of 89–90 ICED 87–8, 91 international laws and practices need to incorporate 95, 96, 120 need for clarification of obligations 88 planning of operations 106–7 preventative measures 109 proposed guidelines 88, 120, 242–5 ‘right to truth’ 93–4 standard of proof 111–12, 113, 114 lowering the standard 114–17 systematic practices 95, 96, 97, 98 temporal jurisdiction 99–106

Index 269 European Convention on Human Rights (ECHR) 1 extra-territorial scope of 83–5, 86 lack of awareness of 234–5, 236 improving awareness 235, 236, 237 European Court of Human Rights (ECtHR) composition of 226 narrow focus of 51 political nature of 36, 50, 77, 227–8 challenging the ECtHR’s politicisation 228–9 proposed guidelines 237 role of 204 states’ lack of cooperation with the ECtHR 205–6 consistent approach to Article 38 rulings, need for 206–9 drawing inferences from 211 fact-finding missions 209–11 systematic violations of Article 2 need to be more proactive 86 European Human Rights Advocacy Centre (EHRAC) 230 fact-finding missions 209–11 Federal Security Service (Russian Federation) (FSB) 32 Finucane, P. 31, 79, 131, 188 forensic examinations 134, 135, 136, 137, 138, 139 France enforced disappearances, laws on 108 statute of limitation 192 see also Basque conflict FSB 32 Good Friday (Belfast) Agreement 1998 (GFA) 34 Grupos Antiterroristas de Liberación (GAL) 29, 30 Guatemalan Civil War 89 Historical Enquiries Team (HET) 177–8 Historical Investigations Unit (HIU) 179 Hitler, A. enforced disappearance policy 89 Honduras enforced disappearances 113–14 Human Rights Trust Fund 166 IACommHR 97 ICED 87–8, 91 ICPC 123 impunity 174–6 independent and impartial investigations 146–9 independent and impartial tribunals 146

Independent Commission for Police Complaints (ICPC) 123 independent complaints mechanisms 149–51 informants proposed guidelines 252 use of 190 Inter-American Commission on Human Rights (IACommHR) 97 Inter-American Court of Human Rights 36 International Convention for Protection of All Persons from Enforced Disappearances 2006 (ICED) 87–8, 91 intimidation 183–6 corroboration 184 proposed guidelines 251–2 Jandarma Istihbarat ve Terörle Mücadele (JITEM) 31, 189 just satisfaction 164 Kurdish Workers Party (PKK) 31 live ammunition use of 39–40 Memorial Centre for Human Rights 230 Military Reaction Force (MRF) 30, 31 Minnesota Protocol 126, 134, 138, 139, 140, 145–6, 154, 186 MRF 30, 31 negative obligations 15 Northern Ireland abduction and kidnapping, laws on 107 Northern Ireland (NI) Troubles access to information 153 amnesties 201–2 arrests 33–4 autopsies 135 collusion 188, 189 compellable witnesses 153 compensation and damages 169–70 coroners’ inquests 135–6 duty to adequately plan operations 74–5 enforced disappearances 89, 90 forensic examinations 135 impunity 174–5 informants, use of 190 intimidation 185 lack of independence in investigations 148–9 plastic bullets, use of 42, 43, 44 police complaints 150–51 public inquiries 140–42 reform of legislation 180–81 re-investigations 177–9 rubber bullets, use of 42, 43

270 Index suspicious deaths, investigations of 130, 131, 132 systematic violations 214–15 targeted killings 30–31 witness statements 143 Öcalan, A. 84, 189 On the Runs Scheme (OTR) 201–2 PACE see Parliamentary Asssembly of the Council of Europe Panorama 30 Parliamentary Asssembly of the Council of Europe (PACE) composition of 227 consideration of expulsion or suspension from CoE bodies 231–2 politicisation of 166, 231 proposed guidelines 237 partial amnesties 196, 202 Peña, J. L. B. 169, 174, 187, 200 pilot judgment procedure 82, 217, 218, 228 benefits of 220, 221 impact of 222–4 pilot cases 218–19 quasi-pilot judgments 219 weaknesses of 220, 221 PKK 31 plastic bullets use of 41, 42, 43, 44, 45 Politkovskaya, A. 32, 79, 187 positive obligations 15 procedural obligations 15 substantive obligations 15 procedural obligations 15 proposed guidelines on Article 2 2, 239 amnesties 253 collusion 252 duty to investigate suspicious deaths 245–50 duty to protect right to life 241–2 duty to refrain from unjustified killing 239–41 enforced disappearances 242–5 informants, use of 252 intimidation 251–2 justification for 17, 18 clarity 18–20 lack of awareness 20–21 principle of subsidiarity 21–2 obligations of the state 1–2 proposed guardian for, ECtHR as 17–18 right to an effective remedy 250–51 statutes of limitations 252–3 systematic violations 253 prosecutions 172–3 public inquiries 140–42 public scrutiny 151–4

qualitative research 2 quasi-pilot judgments 219 quelling a riot or insurrection 37 definition of ‘insurrection’ 38–9 definition of ‘riot’ 37–8 live ammunition, use of 39–40 methods of force used 37 plastic bullets, use of 41, 42, 43, 44, 45 rubber bullets, use of 41, 42, 43 teargas, use of 45–9 water cannon, use of 49 re-investigations 176–9 remedies 155 compensation and damages 167–71, 224–6 disciplinary sanctions 171–2 domestic remedies civil remedies 163 criminal sanctions 163 prevention by deterrence 163 primary source of redress, as 163 duty to investigate suspicious deaths and the right to an effective remedy relationship between 160–63 ECtHR remedies 164 general measures 165 individual measures 165 just satisfaction 164 supervision of the execution of the ECtHR’s judgments 164, 165–6 systematic violations 165 importance of 181 impunity 174–6 limitations 181 proposed guidelines 182, 250–51 prosecutions 172–3 reform of legislation 179–81 re-investigations 176–9 right to an effective remedy 156, 181 effectiveness of domestic remedies 158–9 exhaustion of domestic remedies 157–8 prerequisites for claims to the ECtHR 157 states’ obligations 155 research challenges 8 conflict-related case studies international human rights law (IHRL), application of 3, 4 international humanitarian law (IHL), application of 3, 4 justification for 3, 4–7 states’ view of oppositions’ actions as acts of terrorism 3 data analysis 8–9 key issues 10 methodology 2–3, 7, 8, 9

Index 271 research subjects 7 sources 7–8 right to life Article 2 of the ECHR 14 derogation 16 obligations 15–16 scope of 14 use of force 16 core right, as 12 origins of 12–13 scope of 13 Royal Ulster Constabulary (RUC) 123, 148 rubber bullets use of 41, 42, 43 RUC 123, 148 Russia abduction and kidnapping, laws on 108 death penalty 60 see also Chechen conflict Saville Inquiry 141 Society of Endangered Peoples 33 Spain death penalty 58 enforced disappearances, laws on 108 statute of limitation 192 see also Basque conflict Stalker report 179, 214 statutes of limitation 191–3 proposed guidelines 252–3 Stevens Inquiry 31 substantive obligations 15 systematic violations Chechen conflict 217 contested by state representatives 212–13 defining 212 ECtHR need to be more proactive 86 remedies 165 enforced disappearances 95, 96, 97, 98 inter-state cases 213 NI Troubles 214–15 pilot judgment procedure 82, 217, 218, 228 benefits of 220, 221 impact of 222–4 pilot cases 218–19 quasi-pilot judgments 219 weaknesses of 220, 221 proposed guidelines 253

proving 212 Turkish-Kurdish conflict 215–17 targeted killings 29–33 teargas use of 45–9 Turkey abduction and kidnapping, laws on 108 amnesties and pardons 202–3 death penalty 67 reforms of investigations 179 Turkish-Kurdish conflict access to information 154 autopsies 136, 137, 138 collusion 188, 189 compensation and damages 170–71 duty to adequately plan operations 75–6 enforced disappearances 90, 114, 115, 116, 117 forensic examinations 136, 137, 138 impunity 175–6 intimidation 185 lack of independence in investigations 148 public inquiries 142 reform of legislation 181 riots and demonstrations live ammunition, use of 40 plastic bullets, use of 41 teargas, use of 45–6 statute of limitation 192 systematic violations 215–17 targeted killings 31–2 unjustified killings 34–5 witness statements 144, 145 Ulster Freedom Fighters (UFF) 31 UN Committee on Enforced Disappearances 88 UN Working Group on Enforced or Involuntary Disappearances 97 use of force graduated system for the various types of force 23–4 justification for 16, 23 see also duty to refrain from an unjustified killing water cannon use of 49 witness statements 143–6

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