STATE PROTECTION OF LIFE

Transcription

1 Case: Osman v. The United Kingdom STATE PROTECTION OF LIFE ECHR Article: Article 2 The Right to Life Context: The duty on the State to protect life Project group: University of Glasgow A LANDMARK DECISION A.0 RATIONALE: WHY THIS ARTICLE? WHY THIS JUDGMENT? Article 2 ECHR protects the right to life, the most basic human right of all. Generally, Article 2 ECHR is absolute which means, as a basic principle, that a State cannot kill a person. However, the second paragraph of Article 2 ECHR provides three situations where the State is permitted to use lethal force: (i) to defend a person from unlawful violence; (ii) to lawfully arrest a person or to prevent them escaping; (iii) and to quell a riot. In these situations, however, the use of lethal force must be absolutely necessary. In addition to the prohibition on taking life, the State has two positive obligations under Article 2. Positive obligations are things that the State is obliged to do by taking positive action. Firstly, the State must take steps to protect the lives of those who live within its territory and are at risk; and secondly, the State must investigate the circumstances surrounding a death (e.g. a police investigation). In Osman, the Court set out the circumstances when a State should step in and protect an individual from a risk of dying. A.1 BACKGROUND AND FACTS A.1.1 APPLICANTS The case was brought by Mrs Mulkiye Osman and her son, Ahmet Osman. Mr Ali Osman, husband and father of the applicants, was killed by a teacher who had become obsessed with his son, Ahmet. A.1.2 SUMMARY OF FACTS

2 A school teacher, Mr Paget-Lewis, had a history of infatuations. He became obsessed with Ahmet Osman and a series of serious incidents followed, including him throwing a brick through the Osman s house window, smearing dog excrement on their doorstep, and regularly following Ahmet home from school. Eventually, Paget-Lewis was suspended by his school following a psychiatric evaluation. Paget-Lewis then shot both Ahmet Osman and Ali Osman, killing Ali Osman. The applicants claimed there were a series of clear warning signs that Paget-Lewis represented a threat to their family. The police had been alerted to statements made by Paget- Lewis that he intended to commit a murder and to other indications of a disturbed mind. The applicants argued that, by failing to take appropriate steps to protect the lives of Ali and Ahmet Osman from the known danger posed by Paget-Lewis, the authorities had failed to comply with one of their positive obligations under Article 2. The Government, on the other hand, argued that in order to take the necessary steps to protect the Osmans it must have been clear that there was a risk of dying, which was not present in this case. The government therefore argued that the police responded reasonably in light of the knowledge they had at the time of the events. A.1.3 KEY QUESTIONS BEFORE THE COURT The case concerned the question of whether the authorities (the police) ought to have done more in the circumstances to protect the Osman family. Mrs Osman and her son claimed that the police had been informed of all the relevant facts and had promised to protect them, but had failed to do so. The police, however, denied that they had made such a promise, and claimed that sufficient evidence had not been available to arrest the teacher prior to the killings. A.2 COURT RESPONSE TO THE QUESTIONS ASKED The Court acknowledged the difficulties involved in policing modern societies noting that each potential threat must be assessed in light of police priorities and resources available at the time. The Court said the State s positive obligation to protect individuals from risk should not impose an impossible or unfair burden on the police. In order for there to be a violation of Article 2 in these circumstances, the Court said it must be shown that the police knew or should have known that there was a real and immediate risk to the life of the individual and that the authorities failed to take measures to avoid that risk. This question can only be answered in light of all the circumstances of each particular case.

3 The Court decided that there was not a violation of Article 2 as it was not convinced that the police knew or ought to have known that the lives of the Osmans were at real and immediate risk from Paget-Lewis. The police felt that there was not enough evidence to charge Paget- Lewis for a crime or to have him committed to a psychiatric hospital. The Court accepted this and noted that the police could not be criticised for treating Mr Paget-Lewis as innocent until proven guilty. A.3 COURT CONCLUSIONS There was not in these circumstances a violation of the positive obligation due by the State under Article 2 of the Convention. There was not enough evidence in the circumstances for the police to believe that the Osmans were at risk and therefore they were not obliged to take further steps to protect the Osmans. A.4 CONCURRENT OPINIONS AND DISSENTS, IF RELEVANT A.5 COMMENTARY (MAIN PRINCIPLES) The positive obligation to protect life owed under Article 2 will only be violated if it is established that: (i) the authorities knew or ought to have known of the existence of a real and immediate risk to life, and; (ii) that they failed to take adequate measures to avoid that risk. This assessment is made by looking at the specific facts of each case and bearing 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. A.6 EXECUTION OF JUDGMENT: SPECIFIC AND GENERAL MEASURES The Court awarded the applicants 10,000 each to compensate them for their loss of opportunity to have their case considered on the merits by a court. A specified amount was also awarded in part compensation of the legal costs and expenses they incurred in bringing their case to Strasbourg. With respect to general measures (measures taken by the State to remedy the general problem), there was not a violation of Article 2 and thus no measures had to be taken by the State.

4 B EDUCATIONAL ACTIVITIES B.1 ACTIVITY PLAN Introduction: This lesson plan covers three class periods. It also makes reference to the case of Opuz v Turkey which covers the same general principles. Concept / Topic: The positive obligation on the State to protect life; in this case concerning the Police. Learning objectives: - Knowledge - Skills o The pupil will understand that the right to life carries positive obligations on the State. o The pupil will understand how Article 2 is interpreted by the ECtHR in the context of protection of life. o The pupil will understand the considerations the Court must take into account when deciding on whether a State failed to protect life. o The pupil will be able to identify arguments of both sides from a set of facts. o The pupil will be able to effectively communicate an argument. o The pupil will be able to listen to another s point of view. o The pupil will be able to critique an argument and clearly set out reasons why. - Attitude o The pupil will appreciate the importance of Article 2 and its fundamentality. Time Learning activity: Aims / content Method Teacher activities students activities Assignment category Material Day 1 Part 1: Class discussion on general issue WCT Ask the class the following questions: (a) Is it right for a State, e.g. the police, to kill someone? (b) Is a State responsible for the safety of its population? What role do the police have in

5 society? (c) If you are in danger, do you think the State (police, ambulance, fire service) have an obligation to help you? Part 2: Article 2 and what it means Distribute Handout 1 with the text of the Article. Explain the three situations where a State can use lethal force when absolutely necessary. Explain what a positive obligation is and that Article 2 has two. Explain what these are. Part 3: Facts of Osman v UK Distribute Handout 2 which has a time-line of the facts of the case. Carefully tell the story of the Osman family and Mr Paget-Lewis. Homework: consider the following questions and write a paragraph on each. Try to think from the point of view of the Osmans and of the police. Questions: (a) Were the Osmans entitled to police protection considering the circumstances? (b) Were the police obliged to protect the Osmans, especially in light of their other obligations? (c) What more could the police have done? (d) Is there a violation of Article 2? WCT GA IA Handout 1 Handout 2 Day 2 Part 4: Group Exercise both sides of the argument Ask the students to split into groups and consider the questions for homework. Ask the groups to first consider the arguments for the Osmans and then to consider arguments for the United Kingdom. Encourage class discussion afterwards. What did the groups come up with? What are the best arguments? Is it a violation? GA

6 Summarise and identify the key questions before the Court (see above). Part 5: Court decision and reasoning Distribute Handout 3 outlining the Court s decision and reasoning. Compare this to what the students came up with. Ask them if they agree and why. Questions: (a) Where do we draw the line as regards someone being at risk? (b) Is it fair to expect such high levels of attention from the police when they have so many other things to do? Homework: Write a page outlining what they think of the judgment, considering the above questions and the discussion so far. Day 3 Part 6: Group Exercise Opuz v Turkey Yes/No/Maybe Using Handout 4, very simply relay the facts of the case. Ask the class by a show of hands if they think that, based on what they have learnt, there is a violation. Yes/No/Maybe? Ask the class to split into groups. Each group should be comprised of at least one yes, one no and one maybe. Ask them to discuss amongst themselves using the principles from the Osman case and how they apply to this case. Briefly outline the Court decision in Opuz v Turkey. Lead a class discussion on what they thought of it and why they think Opuz was a violation and not Osman. Have any of them changed their minds from their initial show of hands? WCT IA WCT GA Handout 3 Handout 4

7 Part 7: Conclusion and Principles WCT Ask the class to consider the first three questions again. What principles would they draw from the two cases they have learned about? Make a list of their suggestions. Handout 5 Distribute Handout 5 with the principles to be taken from the two cases concerning the Court s interpretation of the positive obligation to protect life under Article 2. Discuss with reference to what the students came up with in their homework. Didactical approach Each education system, school or group has a certain way of organising a learning activity. In order to achieve a certain consistency in all the learning activities, please try to use this frame (being aware of the fact at the same time that the way of preparing a learning activity is culture sensitive.) B.2 MATERIALS Handout 1: The text of Article 2. Handout 2: The facts of the case of Osman v UK. Handout 3: European Court Decision and Reasoning. Handout 4: Summary of the facts and decision in Opuz v Turkey. Handout 5: General Principles to be taken from the cases.

8 B.2 MATERIAL: HANDOUT 1: THE TEXT OF ARTICLE 2 Article 2 The right to life 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 taken for the purpose of quelling a riot or insurrection. Article 2 explained Article 2 protects the right to life, the most basic human right of all. Generally, Article 2 is absolute which means, as a basic principle, that a State cannot kill a person. This is called the negative obligation as the State is prohibited from an action. However, the second paragraph of Article 2 provides three situations where the State is permitted to use lethal force: (i) to defend a person from unlawful violence; (ii) to lawfully arrest a person or to prevent them escaping; (iii) and to quell a riot. In these situations, however, the use of lethal force must be absolutely necessary. The European Court, when deciding if the use of force was absolutely necessary, will look at all the specific circumstances of the case. Could the State forces have used a less severe measure other than lethal force? In addition to the prohibition on taking life, the State has two positive obligations under Article 2. Positive obligations are things that the State is obliged to do by taking positive action. Firstly, the State must take steps to protect the lives of those who live in its territory and are at risk; and secondly, the State must effectively investigate the circumstances surrounding a death (e.g. a police investigation).

9 B.2 MATERIAL: HANDOUT 2: THE FACTS OF THE CASE OF OSMAN V UK Osman v UK Facts The First Applicant was the widow of Mr Ali Osman who was shot dead by Paul Paget-Lewis on the 7 th March The Second Applicant, Ahmet Osman was her son, who had been wounded in the same incident. The case was based on a failure by the police to act on a series of clear warning signs that Mr Paget-Lewis represented a serious threat to the safety of Ahmet Osman and his family. In 1986 the headmaster of Ahmet s school had noticed that one of his teachers, Mr Paget-Lewis had developed an attachment to Ahmet. In January 1987, the mother of another child at the school complained to the school about Mr Paget-Lewis attachment to her own son, Leslie Green. There followed a series of incidents throughout 1987 and Rumours and threats The head teacher interviewed Mr Paget-Lewis, who admitted spreading false rumours about an inappropriate relationship between Ahmet and Leslie Green. He had also made threats against Ahmet. Transfer of school As a result the Osman family requested a move to another school. The matter was reported to the police but it was decided to deal with the matter internally at the school. Eventually Ahmet was transferred to another school, but owing to curriculum difficulties, he had to return 14 days later. Name change and psychiatric report Mr Paget-Lewis then changed his name by deed poll to Paul Ahmet Yildirim Osman. The school wrote to the Inner London Education Authority (ILEA), saying that Paget-Lewis should have been removed from the school as soon as possible. The matter was again reported to the police. It also came out that Mr Paget-Lewis had changed his name before from that of Ronald Potter to the name of a pupil called Paget-Lewis, whom he had taught at another school. The head teacher again wrote to ILEA saying that Paget-Lewis needed medical help. Paget-Lewis was seen by a psychiatrist, who said that he did indeed give cause for concern.

10 Suspension of Paget-Lewis Further incidents continued. A brick was thrown through the window of the Osman house, and on two occasions the tyres of Ali Osman s car were slashed. Mr Paget-Lewis was designated unfit for work, at which point he left the school and he was later suspended from teaching anywhere. The suspension of Mr Paget-Lewis was later lifted and he began working as a supply teacher at another school. Further criminality There was more criminal damage to the Osman house in a series of incidents all of which were reported to the police. The police spoke to Mr Paget-Lewis but there was a dispute as to precisely what he said. A car in which the other boy, Leslie Green, was travelling was then rammed by Mr Paget-Lewis, who explained that it was an accident. The driver of the car told the police that Mr Paget-Lewis had told him that in a few months-time he would be serving a life sentence. The police took a detailed statement from Leslie Green and his family. Leslie Green said that he was frightened to go to school. The matter was further investigated by the police. Arrest warrant ILEA interviewed Mr Paget-Lewis who said that he was in a deeply self-destructive mood. This was passed on to the police. In December 1987, the police then arrived at Mr Paget-Lewis house with the intention of arresting him on suspicion of criminal damage. In January 1988, Mr Paget-Lewis name was put on to the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage. Murder In March 1988, Leslie Green saw Paget-Lewis wearing a black crash helmet near the Osman home. On the 7 th March 1988, Paget-Lewis shot and killed Ali Osman and seriously wounded Ahmet. He then drove to the home of Mr Perkins, the deputy head at Ahmet s school, and seriously wounded Mr Perkins, as well as killing his son. He was later convicted of manslaughter and detained in a secure institution. What happened next? The Osman family commenced proceedings against the Commissioner of Police for the Metropolis. They also commenced proceedings against the psychiatrist who examined Paget- Lewis but later abandoned that action. The case against the police was struck out by the Court of Appeal on the grounds that no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required immunity from legal action. Leave to appeal to the House of Lords was refused.

11 The Osmans applied to the European Court on the basis that, by failing to take appropriate steps to protect the lives of Ali and Ahmet Osman from the known danger posed by Paget- Lewis, the authorities had failed to comply with one of their positive obligations under Article 2. The government, on the other hand, argued that in order to take the necessary steps to protect the Osmans it must have been clear that there was a risk of dying, which was not present in this case. The government therefore argued that the police responded reasonably in light of the knowledge they had at the time of the events.

12 B.2 MATERIAL: HANDOUT 3: EUROPEAN COURT DECISION AND REASONING Osman v UK European Court Decision and Reasoning The Court decided by seventeen votes to three that there was no violation of Article 2, the right to life. The Court s reasoning for this decision was as follows: 1. Key considerations as regards the law 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 protect the lives of those within its jurisdiction. In certain circumstances there is a positive obligation on the authorities to take preventive, operational measures to protect a person whose life is at risk from the criminal acts of another individual. However, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct, and the resources of the authorities, this positive obligation must not impose an impossible or unfair burden on the authorities. Therefore, not every claim of a risk to life means that the authorities must take operational measures to prevent the risk from materialising. Further, the authorities must remember that they must also respect the rights of others when investigating an alleged crime, for example, the right to liberty and right to respect for private life [of Mr Paget-Lewis]. Where there is an allegation that the authorities have violated the abovementioned positive obligation, the European Court must establish two things: (i) If the authorities knew or ought to have known at the time that there was a real and immediate risk to an individual s life, and; (ii) If the authorities failed to take the measures which were within their powers which they should reasonably have taken to avoid that risk to life. These depend totally on the facts of each case. 1. Did the police know or ought to have known that there was a risk to life?

13 The Court said that the Osmans failed to point to any decisive stage in the sequence of events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. Threatening and alarming though Mr Paget-Lewis conduct was, there was no solid evidence that the lives of Ahmet and his family were in danger. 2. Did the authorities fail to take reasonable measures to avoid the risk to life? While the Osmans have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, it cannot be reasonably said that arrest would in fact have worked as there is no guarantee that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it. Further, as noted earlier, the police must perform their duties in a way which is compatible with the rights and freedoms of all individuals. In the circumstances of the present case, they cannot be criticised for attaching weight to the presumption of innocence of Mr Paget-Lewis. Additionally, they cannot be criticised for failing to use powers of arrest, search and seizure because of their reasonably held view that there was not, at the relevant times, enough evidence to suspect Mr Paget-Lewis of taking life. Conclusion The Law: the positive obligation on the authorities to protect life must be balanced with the modern demands of policing and resources; it must be established: (i) if the police knew or ought to have known about a risk to life, and (ii) if the police failed to take the reasonable measures to avoid that risk. Knew or ought to have known?: Paget-Lewis conduct was threatening but no evidence to suggest he was a risk to life. Failure to take reasonable steps?: Arrest at the time would not have guaranteed a conviction; he was innocent until proven guilty.

14 B.2 MATERIAL: HANDOUT 4: SUMMARY OF THE FACTS AND DECISION IN OPUZ V TURKEY Facts Opuz v Turkey The applicant, Opuz, and Mr HO had started living together in They were married in 1995 and had three children. The couple had serious arguments from the beginning of their relationship and eventually were divorced. Between 1995 and 1998 the authorities were aware of a number of incidents of violent behaviour by HO against the applicant and the applicant s mother. Medical reports compiled following those assaults showed that the two women had sustained various injuries. Following the attacks, the applicant and her mother had lodged criminal complaints against HO. In relation to certain incidents, HO was charged with various offences, including making death threats, grievous bodily harm and attempted murder. On each occasion the applicant and her mother thereafter withdrew their complaints against him out of fear. The prosecutions against HO were discontinued on basis that they were not serious enough under domestic law to merit continuing without the victim s involvement; the victim had not been injured so as to miss at least 10 days of work. Nevertheless, given the seriousness of the injuries suffered by the applicant s mother in one incident, proceedings in that regard continued to a trial and HO was convicted and sentenced to three months imprisonment, later commuted to a fine. In October 2001, HO stabbed the applicant; he was charged with knife assault and given a small fine. The applicant s mother requested that HO be detained, maintaining that on previous occasions she and her daughter had been forced to withdraw their complaints against him due to his persistent pressure and death threats. On various occasions, the applicant and her mother filed complaints with the prosecution authorities about HO s harassment. As a result of those complaints, HO was questioned but then released. In March 2002, HO shot and killed the applicant s mother. In March 2008, he was convicted of murder and sentenced to life imprisonment, although he was released pending an appeal. In April 2008, the applicant requested the authorities to take measures to protect her as HO had started to threaten her immediately after his release.

15 In May and November 2008 the applicant s representative informed the court that no measures had been taken in that regard. The court requested an explanation. The authorities thereafter took specific measures to protect the applicant. The applicant claimed that the authorities had failed to safeguard the right to life of her mother under Article 2 ECHR. European Court s decision and reasoning The European Court held unanimously that there was a violation of Article 2 in respect of the applicant s mother. The Court said that the issue of domestic violence was a general problem which concerned all Member States of the Council of Europe and which affected not only women but also men and children, whether directly or indirectly. It was necessary to keep the gravity of the problem in mind when examining the applicant s case. 1. Did the police know or ought to have known of the risk to life? As to whether the domestic authorities knew or ought to have known of the existence of a real and immediate risk to the life of the applicant s mother from the criminal acts of HO, HO had resorted to violence against the applicant from very early on in their relationship. The applicant s mother had intervened in their relationship in order to protect her daughter and had thus become a target for HO. For over seven years, HO had repeatedly committed acts of violence against the two women, causing them serious physical injuries. He had also repeatedly threatened to kill them. The Court held that the offences committed by HO had been sufficiently serious to warrant preventive measures. The victims situation had also been known to the authorities, because they had repeatedly requested the authorities to take action against HO. In the circumstances, the authorities could have foreseen a lethal attack by HO. 2. Did the authorities fail to take reasonable measures to avoid the risk to life? It was therefore necessary for the Court to assess whether the authorities had taken reasonable measures to prevent violence against the applicant and her mother. The continued prosecution when the applicant and her mother had withdrawn their complaints was one such measure. A number of factors have to be considered in deciding to continue a prosecution in the public interest, even if the victims withdrew their complaints. Those factors include: (i) the seriousness of the offence and whether there was a risk of further offences; (ii) the nature of the victim s injuries; (iii) the existence of any continuing threat to the health and safety of the victim or anyone else involved; (iv) the history of the relationship, particularly if there had been any

16 other violence in the past, and; (v) the defendant s criminal history, including any previous convictions involving violence. Given HO s violent behaviour and criminal record, as well as his continuing threats to the health and safety of the victims and the history of violence in the relationship, further violence had not only been possible but also foreseeable. The Court noted that the authorities had not sufficiently considered the above factors in repeatedly deciding to discontinue criminal proceedings against HO. Instead, it appeared that they had decided to refrain from interfering in what they perceived to be a family matter. In terms of the positive obligation to take operational measures to protect the applicant s mother whose life was at risk, the Court held that the authorities should have adopted appropriate, reasonable measures to deal with the gravity of the situation and HO s record of violent attacks. The authorities should have made an assessment of the threat HO posed and taken appropriate steps. The authorities had therefore failed in their positive obligation to protect the right to life of the applicant s mother within the meaning of Article 2 ECHR. Conclusion Knew or ought to have known of the risk to life: yes, HO had threatened to kill and committed violent acts against the two women for years; the women had reported this to the authorities. Failed to take reasonable measures to avoid risk: yes, failed to consider the relevant factors in whether to continue prosecuting HO; failed to take reasonable operational measures to protect the life of the applicant s mother.

17 B.2 MATERIAL: HANDOUT 5: GENERAL PRINCIPLES TO BE TAKEN FROM THE CASES Osman v UK Principles to be taken as regards Article 2 and the positive obligation to protect life 1. Article 2 ECHR imposes a negative obligation on the State to not use lethal force and take life unless it is absolutely necessary for one of three objectives: (i) to defend a person from unlawful violence; (ii) to lawfully arrest a person or to prevent them escaping; (iii) and to quell a riot.. 2. Whether the use of force was absolutely necessary depends on the specific facts of the case. 3. Article 2 further imposes two positive obligations on the State: (i) to protect the lives of those in its jurisdiction, and; (ii) to effectively investigate the circumstances surrounding a death (e.g. a police investigation). 4. The protection of life includes both a protection by law (e.g. an effective criminal system capable of prosecuting and punishing) and the taking of reasonable operational measures to safeguard the life of an individual against the criminal activity of another individual. 5. In establishing if the authorities have failed to protect life, two considerations are paramount: (i) did the authorities know or ought to have known of the risk to life?; (ii) did the authorities fail to take the reasonable operational measures appropriate to avoid the risk to life? 6. What measures are reasonable must take into account the demands of policing a modern society and the resources available, and thus must be place an unfair burden on the authorities. Further, it must be acknowledged that the authorities must protect the rights and freedoms of all individuals, including those under investigation (e.g. presumption of innocence, right to respect for private life).