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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 31 The positive obligation to protect life One of the elements of the right to life includes a positive obligation on the police to seek to protect life. The duty to protect life does not impose an absolute obligation on the State to prevent all loss of life. It is not an obligation of result, but of means. Article 2 of the Convention requires that the police take feasible operational steps within their power to avert a real and immediate threat to life that they are, or should be, aware of. 73 This is a two-stage test: (i) is there a real and immediate threat to life that the police are or should be aware of? (ii) if yes, did they take feasible operational steps to avert it? The obligation is to be applied subject to (i) the unpredictability of human conduct and (ii) the need for the police to act within the confines of Article 5 (right to liberty and security of person) and Article 6 of the Convention (right to a fair trial). This obligation can arise in the context of any police activity. For example, if a public event is known to police to be at risk of attack from others, the police are under an obligation to take feasible steps to prevent such an attack. If, during a public event, persons are being attacked by others, police must take feasible steps to stop this. This may require that the police use force, even lethal force, if this is absolutely necessary. ■ In Van Colle v the United Kingdom, the European Court of Human Rights clarified that the protective obligation is not lower or different in the event that the risk was as a result of action taken by the State. The applicants’ son had been asked by police to give evidence against a suspect in a criminal case. The suspect subsequently murdered him. The applicants claimed that, as any threat to their son’s life was a consequence of his agreeing to be a witness in criminal proceedings, the threshold for the applicability of the protective obligation was lower than the usual ‘real and immediate’ one. The Court disagreed, stating that ‘in other cases concerning prior threats by third parties ending in the killing of another individual, the fact that the deceased may have been in a category of person who may have been particularly vulnerable was but one of the relevant circumstances of the case to be assessed, in the light of all the circumstances, in order to’ assess whether there is a real and immediate threat. 74 73 Osman v the United Kingdom, judgment of 28 October 1998. 74 Van Colle v the United Kingdom, judgment of 13 November 2012 at paragraph 91.

The European Convention on Human Rights and Policing Page 32 A key issue is what exactly is a public authority required to do, if there is a real and immediate threat. There is no definitive answer, and the issues to be considered include: (i) the options available; (ii) the legal framework in the country concerned; (iii) the internal regulations and policies of the police and other relevant agencies; (iv) the conduct of the individual concerned; (v) the resource implications of the available courses of action; and (vi) the role and profile of the individual. The positive obligation to carry out an effective investigation into the loss of life In the event that a use of force by police or other agents of the State results in death to any person, Article 2 requires that there be an independent and effective investigation. This requirement has five separate components: independence, effectiveness, promptness, public scrutiny and family involvement. 75 ‘The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility …’ 76 In addition, the ‘investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible (…)’. 77 Where a death results from use of force by police, the investigation must be carried out by someone independent of the police. 78 This is necessary in order to maintain ‘public confidence in the state’s monopoly on the use of force’. 79 Police may only take any investigative steps that are immediately necessary to preserve evidence. For example, if a person has been killed as a result of use of force by police, police officers may only take steps to preserve the scene, etc., so that evidential opportunities are not lost. The investigation must be prompt, effective, transparent and must involve the family of the deceased to the extent necessary for its members to protect their interests. The requirement of promptness does not mean that there is a defined timescale, but that the investigation must be carried out as quickly as is feasible. The requirement 75 See, for example, Jacobs, White and Ovey, The European Convention on Human Rights, OUP 2010, 5 th edition at pages 156 to 162. 76 Nachova and Others v Bulgaria, judgment of 6 July 2005 at paragraph 110. 77 Nachova and Others v Bulgaria, judgment of 6 July 2005 at paragraph 113. 78 Ramsahai v the Netherlands, judgment of 15 May 2007. 79 Ramsahai v the Netherlands, judgment of 15 May 2007 at paragraph 325.