Feature | The duty to investigate deaths under human rights law: Part 1

12 July 2010 by

Silih v Slovenia (2009) 49 E.H.R.R. 37 – Read judgment, McCaughey and Quinn’s Application [2010] NICA 13 – Read judgment

This is Part I of Matthew Hill’s feature. Click here for Part II.

A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.

In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.

There is a tension between this case and the leading UK authority, Re McKerr [2004] 1 WLR 807, in which the House of Lords held that under domestic law, Article 2 was not engaged in respect of investigations into deaths that occurred before the commencement of the Human Rights Act 1998 (HRA 1998).

In light of this potential inconsistency, the Northern Ireland Court of Appeal (NICA), in the case of McCaughey and Quinn’s Application [2010] NICA 13, granted the families of two men killed by the British Army during a Provisional IRA attack on a police station in 1990 permission to appeal to the Supreme Court on the question of whether an investigative duty under article 2 is triggered in that case.

Strasbourg: Silih v Slovenia

The majority in Silih v Slovenia

The case of Silih concerned the death of a patient due to alleged medical negligence and delays and procedural failings in the subsequent criminal and civil actions. Importantly for the present purposes, the death occurred in 1994, approximately a year before the Convention became effective in Slovenia, whereas the resulting investigations and litigation took place after that date. The parents of the deceased brought proceedings in Strasbourg on the grounds, inter alia, that the procedural obligation under article 2 to ensure that there was an effective and independent judicial system to determine responsibility for their son’s death had been violated.

The majority of the Court upheld this complaint. It noted that the problem of deciding the Court’s temporal jurisdiction had been considered with varying results in previous cases, notably Blecic v Croatia (2006) 43 E.H.R.R. 48, Moldovan v Romania (2007) 44 E.H.R.R. 16, Balasoiu v Romania (App. no. 37424/97), 2 September 2003, and Kholodova v Russia (App. no. 30651/05), 14 September 2006. After reviewing these cases, the majority held that [159, emphasis added]:

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’ within the meaning of the Blecic judgment. In this sense It can be considered a detachable obligation arising out of article 2 capable of binding the state even when the death took place before the critical date [i.e. the date when the Convention became effective within a signatory state].

On its own, this comment would seemingly mean that any death, no matter how remote in time, would potentially engage the procedural limbs of article 2; to borrow Lord Hoffman’s example from Re McKerr [67], the deaths of the Princes in the Tower could require a state-instigated, effective and independent investigation. However, the majority of the Court, having regard to the principle of legal certainty, held that the investigative obligation in respect of deaths before the “critical date” is “not open-ended”, because [161, 163, emphasis added]:

there must exist a genuine connection between the death and the 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 … 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 the guarantees and the underlying values of the Convention are protected in a real and effective manner.

In effect the majority were seeking to use the requirement for a “genuine connection” as a control mechanism. The connection could be met either through the fact that a large part of the investigation into a death took place (or should have taken place) after the entry into force of the Convention, or by the more nebulous need to protect the underlying values of the Convention.

Dissent in Silih v Slovenia

This requirement for a “genuine connection” was criticised by eight of the seventeen judges that head the case, including six that agreed with the overall conclusion of the majority that article 2 could have retrospective effect in terms of its procedural obligations. In a concurring judgment, Judge Lorenzen stated (it is submitted with considerable force), that [O-I3]:

it is not easy to understand what is meant by the requirements for ‘a genuine connection’ between the death and the entry into force of the Convention in respect of the respondent State … Furthermore the fact that the majority seem ready to accept such a connection, ‘based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner’, appears to confirm that the jurisdictional limits will difficult to identify, if they exist at all. I find it 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.

In Judge Lorenzen’s view there had to be a “clear temporal connection” between the violation of the article and the entry into force of the Convention in order for the Court to have jurisdiction [O-I14]. He held that in the case of Silih there was a sufficiently close temporal connection [O-I15].

Five other judges also concurred with the decision while criticising the requirement for a “genuine connection”. In their view this mechanism had an obvious and harmful effect on legal certainty and weakened the logic of the overall ruling. They argued that there was no need for such an artificial control mechanism as the passage of time would mean that in many cases the Court would, “be led by restrictions of a legal or factual nature to decide … that the State is not under a procedural obligation [to investigate a death]”. Such “restrictions” might be the absence of any “victims” as defined by article 34 ECHR, or a national statute of limitations, or the absence of evidence and witnesses. It would be these factors and not the judicial device of the “genuine connection” that would determine whether or not there was an ongoing article 2 investigative obligation. [O-III1-4]

Two judges dissented from the overall approach of the majority. They distinguished Blecic and preferred the more restrictive line of cases concerning the Court’s jurisdiction. In particular, they held that while the article 2 investigative obligations were “separate and autonomous”, they did not agree with the majority’s view that they were “detachable” from the death to which they related [O-IV4, and O-IV14]:

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, as in the present case, when the relevant authorities of the state are made aware of a credible allegation that the death resulted from the medical 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. Where, as in the present case, the death occurs prior to the date of ratification, no Convention obligation is imposed on the state under article 2 in either its substantive or procedural aspect and the Court has no temporal jurisdiction to examine a complaint of a violation of article 2 in either of its aspects.

The dissenting judges went on to list their concerns at the approach of the majority [O-IV14-17]. They considered that in effect it gave retroactive effect to the Convention, thereby “rendering nugatory the State’s declaration recognising the Court’s competence to receive individual applications” [O-IV14]. This led to two additional problems. First, there would be an inconsistency of approach depending on whether a complaint about a failure to investigate a death was made under article 2 or article 13. Second, despite (and indeed because of) the Court’s requirement for a “genuine connection”, the decision undermined the principle of legal certainty. In particular, the judges highlighted the problem of “omission” cases, where there had been no effective investigation following the death either before or after the State ratified the Convention [O-IV17]:

In such an event, even if a Convention obligation to investigate the death could be held to arise at the moment of ratification, it is difficult to see how the ‘significant proportion test [i.e. that a significant proportion of the investigation either took place or should have taken place after ratification] is to be applied to the facts of any particular case.

It is submitted that this point is particularly pertinent in the context of the “historical” Northern Irish cases to which reference is made below. To give an example, Mr X was killed by state actors, in possible violation of article 2, ten years before the relevant state ratified the Convention (“the critical date”). His death was followed by a wholly inadequate investigation, which finished nine and a half years before the Convention was ratified. Since then, there has been no state-initiated investigation. In these circumstances, how would the Court assess whether or not: “a significant proportion of the procedural steps required by this provision … will have been or ought to have been carried out after the critical date”?

Domestic Authorities

Re McKerr

Re McKerr is the leading UK authority on whether or not article 2 is engaged in domestic law when a death took place prior to the commencement of the HRA 1998. The case concerned the death of Gervaise McKerr, who was shot dead in controversial circumstances by police officers in Northern Ireland in 1982. Mr McKerr’s death is one of several that is alleged to have resulted from a purported “shoot-to-kill” policy operated by members of the security forces. The McKerr family successfully challenged the failure to hold an article 2 compliant investigation into the death at Strasbourg: McKerr v United Kingdom (2002) 34 E.H.R.R. 20. When no further investigation was forthcoming, the family brought domestic proceedings arguing that the continuing failure to investigate violated article 2 and article 6, and hence was unlawful under the HRA 1998.

The House of Lords forcefully rejected the family’s application, holding that the investigative duties arising from article 2 would only be engaged in domestic law where the death itself occurred after the HRA 1998 came into force (thus after October 2000). Their Lordships emphasised the distinction between Treaty obligations under the Convention, and domestic law rights under the statute; although they were expressed in the same terms, they had different sources and took effect from different dates. As the HRA 1998 was not (in general) retrospective, there were no domestic, statutory rights relating to article 2 or article 6 before October 2000. Their Lordships also rejected the notion that the investigative duties under article 2 could be “detached” from the duties to protect life. Lord Rodger held [81]:

“If Parliament had intended the rights under article 2 to be split up, with the Act applying differently to the different aspects, then it would have provided for this expressly. The potential objections are obvious. It would be curious to give a right, under the Act, to an investigation of a killing to which the Act did not apply. If there were to be such a right to an investigation, how far back would it go? Speculation is fruitless: what matters is that Parliament could have made, but did not make, any such transitional provision. The obvious conclusion is that the right to an investigation under the Act is confined to deaths which, having occurred after the commencement of the Act, may be found to be unlawful under the Act. The applicant seeks to contradict the policy of Parliament.”

(See also Re McKerr [22], per Lord Nicholls; and R (Gentle and another) v The Prime Minister and others [2008] UKHL 20 [6], where Lord Bingham held, citing Re McKerr, that: “the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently”.)

Re McCaughey and Quinn’s Application

Re McCaughey and Quinn’s Application, another case arising out of an application for an article 2 compliant investigation into contentious deaths in the Troubles, the applicants sought to argue that Silih rendered Re McKerr bad law. The Northern Ireland Court of Appeal (NICA) held that it was bound to follow the authority of Re McKerr, but granted permission to appeal to the Supreme Court on this point. In doing so, it expressed considerable doubt as to whether the Supreme Court would chose to extend the principles in Silih to domestic law. First, it observed that there was a critical distinction between Slovenia’s ratification of the Convention in international law, and the UK’s incorporation of it into domestic law through the HRA 1998. Second, it drew attention to the greater distance in time involved in the case before it (approximately ten years between the deaths and the incorporation), and those in Silih (approximately one year). Finally, the Court noted that the UK was not a participant in Silih (and hence was not bound by the decision), and that the decision in Re McKerr was not cited to the Strasbourg Court.

Supreme Court next up

NICA’s reservations, strengthened by the strong dissenting opinions in Silih, may well be followed by the Supreme Court. However, the decision will be interesting on a number of levels.

First, NICA was given a list of some 20 other cases in which inquests were yet to be heard in cases of deaths in Northern Ireland involving the security forces; all of these cases (and more) may be affected by the Supreme Court’s ruling.

Second a number of senior judicial figures in recent years have expressed disquiet about the ECHR transgressing onto matters best considered by national courts, with too little understanding of their legal and historical traditions. Given the sharp distinction that their Lordships drew in Re McKerr between international and domestic law and their firm views on the lack of retrospective effect of the HRA 1998, the decision in Silih may prompt further discussion of where the proper limits of Strasbourg’s jurisdiction lie.

Finally, there is a clear conceptual conflict between the majority in Silih on the one hand, and their Lordships in Re McKerr and Lord Bingham in R (Gentle and others) on the other, as to whether or not the investigative duties under article 2 can be “detached”  from the disputed death itself. The Supreme Court will have an opportunity to consider these wider matters; we wait to see whether or not the Justices do so.

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