Positive obligations under article 2: Right to life

CEUeTDCollection

Although the first occurrence of the positive obligations regarding the prevention from crime took place within the framework of the right to respect for the private and family life and consisted of the duty to adopt legislation, it did not take long until the Court, in its judgments and decisions, extended the range, scope and content of positive obligations. Positive duties for the states were established in the context of right to life, prohibition of torture and, recently, prohibition of slavery and forced labor. A further step forward was the expansion of the substance of the positive duties to other necessary measures beyond the adoption of legislation. These developments are going to be discussed separately in the following sections of Chapter II.

CEUeTDCollection

applicant and of his father, in a case of manslaughter, led to a violation of the right to life under Article 2. Although the manslaughter did not occur as a result of actions of state authorities, the applicant contended that their failure to undertake protective and prevent

illegal and

deliber those

within or the

efficien

d its rimary duty to secure the right to life by putting in place effective criminal-law enforcement machinery for the prevention, suppression and sanctioning of breaches of

ive measures amounted to a violation of Article 2 of the Convention, since the police had supposedly been notified on a number of occasions on the risk and had warning signals that the manslaughter was going to occur.

In the Courts’ judgment, it was firstly noted that the first sentence of Article 2 paragraph 1 obliged the states authorities not only to refrain from killing in an

ate manner, but also “to take appropriate steps to safeguard the lives of its jurisdiction”.⁸⁵ In examining the concrete measures to be undertaken f

t protection of the right to life, the Court pointed out to the following:

“It is common ground that the State’s obligation in this respect extends beyon p

provisions to deter the commission of offences against the person backed up by law-such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.”⁸⁶

In the cited reasoning of the Court, there are three distinctive positive obligations recognized. The first is the duty to enact the necessary legislation, or in the Court’s words

“effective criminal-law provisions”⁸⁷, to protect the right to life guaranteed by Article 2⁸⁸. The second one is the duty to put into place efficient law-enforcement machinery for

85 Ibid, paragraph 115 of the judgment. The Court cited this formulation from the case of L.C.B. v. the United Kingdom (judgment of 9 June 1998) where it first occurred, concerning the possible effect of the applicant’s father exposure to radiation to the applicant’s subsequent leukemia and the potential duty of the state to protect the applicant.

86 Ibid, paragraph 115 of the judgment

87 Ibid.

88 The positive duty to enact legislation for criminalizing acts of individuals that lead to violations of the rights of other individuals was introduced in X and Y v. the Netherlands, in respect to Article 8

CEUeTDCollection

the deterrence, repression and punishment of breeches of the established criminal law provisions. However, thirdly and very significantly, the Court went further to stipulate that the states have also the duty “to take preventive operational measures” for the protection of a person from the danger to his life occurring from criminalized behavior of another person. Having in mind that in the context of X and Y v. the Netherlands, the only positive obligation recognized was the duty to adopt measures, introducing an obligation to undertake preventive operational measures is a big step forward in the direction of affording protection to everyone within the state’s jurisdiction from becoming a victim of unlawful attacks to their life.

Certainly, this lastly mentioned obligation (to take preventive operational measures) was not absolute or unconditioned, since the Court itself posed its limitations and conditions in the judgment. In the Osman case, the Court clarified that States can be in violation of this duty when the state authorities know or have the possibility to know of the existing “real and immediate risk to the life”⁸⁹ of an individual and they do not undertake any measures to protect his/her life. Thus, there is a double threshold for triggering this positive duty of the state: on one hand a requirement for the level of foreseeability of the risk (knowledge or possibility of knowledge of the authorities); on the other hand, the quality of the threat (real and immediate risk). The Court took into account the unpredictability of human behavior and limited resources of the states, to conclude that this positive duty should be understood in a manner which does not impose

“an impossible or disproportionate burden on the authorities”⁹⁰. This was reaffirmed in other occasions where the duties to undertake measures occurred before the Court. In the

89 Ibid, paragraph 116 of the judgment

90 Ibid

CEUeTDCollection

Mastromatteo case⁹¹, where the applicant contended that granting the prison leave to habitual offenders led to a breach of the positive obligation of the state to protect the life of his s

they investigated the extent of the risk to his life after the threats (Kılıç v.

Turkey

on, who was killed by those persons, it was clearly pointed out that the positive obligations under Article 2 did not mean that the state is under the duty “to prevent every possibility of violence”⁹².

Although under the circumstances of the Osman case no violation of Article 2 was found, the effects of what was established with this judgment have shown to be far-reaching. The circumstances under which the Court has found a violation of the positive obligations under Article 2 include, for example, the failure of the authorities to protect the life of a person in custody sharing a cell with another dangerous person (Paul and Audrey Edwards v. United Kingdom⁹³) or the situation where authorities had not undertaken measures of protection of the life of a journalist who had been receiving life threats, nor had

94). It is to be expected that the position of the Court will be reaffirmed in other cases where the prevention of threat to life by criminal acts of individuals will be the issue at stake.

It can be argued that the positive duties of the state related to the protection of the right to life from criminal acts of other individuals correspond to several aspects of the position of individuals subjected to criminal acts threatening the life of the person. It is plausible that a right to protection from such criminal act emerges for the persons under the jurisdiction of the member states, although the Court does not explicitly mention such

91 Mastromatteo v. Italy (application No. 37703/97,judgment as of October 24, 2002)

92 Ibid, paragraph 68 of the judgment

93 Application No. 46477, judgment as of March 14, 2002

94 Application No. 22492/93, judgment as of March 28, 2000

CEUeTDCollection

a right. However, the right to require protection from the state authorities when put in such circumstances is at present limited to situations where the police and the other authorities can possibly react, without this putting a disproportionate burden on them. It is reasonable to believe that the Court will not go beyond this reasonable limitation of the duties to establish a more comprehensive right to protection from crime.