Article 2 of the European Convention on Human Rights guarantees, subject to some exceptions, that “everyone’s right to life shall be protected by law.” In its substantive manifestation, this means that States are not to deprive individuals of their right to life, and that they must have adequate judicial mechanisms to protect this right against violation by other individuals.
However, the Court’s case law since McCann v UK has also developed a procedural aspect of this right, holding that the obligation to protect the right to life under Article 2 requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State.
In McCaughey and Others v. UK, decided by the ECtHR Court on July 16, the applicants were relatives of individuals killed by security forces in Northern Ireland in 1990 in operations against IRA suspects. They complained of a violation of Article 2, not only in respect of the killings themselves by state agents, but also in respect of the delay of over 21 years in investigating the deaths. Whilst they referred to other procedural defects in the investigatory proceedings, such as the withholding of certain evidence, the Court ruled that only the complaint of delay was admissible, the other complaints being the subject of proceedings pending at domestic level.
As the Court noted, it was established that Article 2 required investigations to begin promptly and to proceed with reasonable expedition, independently of whether any delay actually impacted on the effectiveness of the investigation. This was because a prompt investigation of the use of lethal force was essential in maintaining public confidence in the State’s judicial system. In the present case, the Court identified three key phases in the period of delay. The first was marked by “inordinately long periods of inactivity,” during which some disclosure of evidence was made, and the second was characterised by a series of complex and overlapping domestic judicial review applications. The final stage was brought about by the entry into force of the Human Right Act, which made the Convention rights part of domestic law, leading to further questions of its application to investigations into deaths which occurred before the Act’s passing. The Court stated, at paragraph 138, that there had been a need to postpone the inquest frequently to allow for further judicial actions just to clarify the situation. This demonstrated that the inquest process itself wasn’t structurally capable of providing the applicants with access to an effective investigation. It therefore concluded that the very fact of such delay couldn’t be compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths.
It is notable that the Court criticises the structure of the inquest system itself; at paragraph 143, it stated that that delay in carrying out inquests, in cases of killings by security forces in Northern Ireland, was an “endemic” problem. This suggests that in order to comply with the judgment, the UK authorities will be required to undertake a radical overhaul of the system. The Court also emphasised the urgency of reforms, considering that implementation would have to “involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure…that the procedural requirements of Article 2 are complied with expeditiously.” Yet this seems to be an unavoidable consequence of the Court’s development of a procedural facet of the Convention rights: the finding of a violation will inevitably be inherent in the investigatory system itself, rather than the product of isolated actions.
The Court repeatedly states in its case law that Convention rights must be practical and effective, rather than theoretical and illusory. As it found in the present judgment, a State’s systemic failure to investigate promptly the killing of individuals by security forces would appear to render the right to life very illusory indeed.
Claire Overman has just completed the BCL at the University of Oxford and is a regular contributor to the OxHRH Blog.