Investigating crime; and ensuring the integrity of the criminal process Page 65 Positive obligations arising under the Convention to investigate allegations of criminal activity in order to protect the rights of individuals As noted in an earlier chapter, in certain circumstances, police officers are under a positive obligation to investigate behaviour which may constitute an offence. This is an aspect of the responsibility to protect individuals from behaviour that may constitute ill-treatment whenever police officers have knowledge of the risk of ill-treatment (or ought to have had such knowledge). 187 A similar responsibility arises under Article 2 to protect the life of individuals from identifiable threats where steps may be reasonably taken, and also under Article 8 when it is necessary to ensure respect for private and family life. The duty to ensure the care and protection of detainees thus extends to taking steps to protect individuals from the threat of violence at the hands of other prisoners, 188 but more importantly, also applies to the taking of reasonable steps to protect vulnerable individuals against the risk of ill-treatment in situations such as when domestic violence is suspected. ■ In Osman v the United Kingdom, the applicant alleged that the police had taken insufficient measures to provide protection in the face of threats of violence from an unstable teacher who had developed an unhealthy attraction for a pupil. On the particular facts of the case (which involved the shooting of the boy and his father by the teacher, the father being killed as a result), the Court eventually considered that the police could not be assumed to have known of any real and immediate risk to the life of the deceased. Nor could it reasonably have been assumed that any action taken by the police would have neutralised any such risk. Consequently, no violation was established in the circumstances. However, the Court confirmed that Article 2 imposed a positive obligation on States to respond effectively in situations where authorities knew (or ought to have known at the time) of ‘the existence of a real and immediate risk to the life of an identified individual or individuals from the 187 PF and EF v the United Kingdom, decision of 23 November 2010 (premeditated sectarian protest lasting two months and designed to intimidate young schoolchildren and their parents: minimum level of severity required to fall within the scope of Article 3 reached, triggering the positive obligation on the part of the police to take preventive action; but in determining whether reasonable steps had been taken, a degree of discretion had to be accorded: here, mindful of the difficulties facing the police in a highly-charged community dispute in Northern Ireland, the applicants had not shown the police had failed to do all that could be reasonably expected of them: inadmissible). 188 Cf Pantea v Romania, judgment of 3 June 2003 at paragraphs 177-196.
The European Convention on Human Rights and Policing Page 66 criminal acts of a third party’ where it can be established ‘that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’. 189 ■ In Opuz v Turkey, the authorities had been aware of incidents of serious violence and threats made by the applicant’s husband against her and her mother, but the authorities had considered the incidents to have been a ‘family matter’ and only one incident had resulted in a successful criminal prosecution before the applicant’s mother had been killed by her husband. Repeated requests by the women for protection had been ignored. The Court ruled that there had been a violation of Article 2 since a lethal attack had not only been possible but even foreseeable in light of the history of violence. The response of the authorities to protecting the applicant had been manifestly inadequate. Crucially, too, the circumstances disclosed a violation of Article 14 taken with Articles 2 and 3 in light of international legal standards supporting the principle that the failure (even when unintentional) to protect women against domestic violence violated the women’s right to equal protection of the law. The passivity shown by the authorities in Turkey created a climate that was conducive to domestic violence, violence that was gender-based, and that in consequence constituted a form of discrimination against women. 190 More recently, the duty to intervene has been extended. Many European States are now affected by trafficking, primarily of women and minors, as countries of origin, transit or destination. The Council of Europe Convention on Action against Trafficking in Human Beings which entered into force in 2008 aims to prevent trafficking, to provide protection to victims of trafficking and to prosecute traffickers. State responsibilities are monitored by the independent Group of Experts on Action against Trafficking in Human Beings (GRETA), with the Committee of the Parties (comprising State representatives) having the authority to adopt recommendations to States on measures which should be taken to implement GRETA’s conclusions. Where victims of human trafficking are held in servitude or in forced or compulsory labour within the meaning of Article 4 of the European Convention on Human Rights, there must be an effective response from criminal justice agencies, including the police. This is an example of a positive obligation arising from the need to ensure that rights are ‘practical and effective’. 189 Osman v the United Kingdom, judgment of 28 October 1998 at paragraphs 116, 199-121. 190 Opuz v Turkey, judgment of 9 June 2009 at paragraphs 184-202.