Police Violence and How to Fight It, in Particular When Racially Motivated: The Example of the European Court of Human Rights.

• Author: Rietiker, Daniel

1. INTRODUCTION

   Police violence is a widespread, global issue. It concerns the United States as much as it does Europe and other parts of the world. According to an Amnesty International report published in 2015, hundreds of men and women are killed by police each year across the United States. (1) Even though some cases--like the fatal shooting of Michael Brown in Ferguson, Missouri--receive national attention, there are countless more across the country involving Hispanic and Indigenous individuals that do not. (2) This Article explores the impact of this issue in Europe and how racially motivated violence has been treated by the European Court of Human Rights (ECtHR).

   The EctHR was established in reaction to the atrocities committed in World War II. (3) The ECtHR decides cases on the basis of the European Convention on Human Rights (ECHR), adopted on November 4, 1950, and entered into force on September 3, 1953. (4) In the years since its inception, the ECtHR has established itself as a key player in the protection of human rights in Europe. It is sometimes referred to as the "Conscious of Europe," (5) an institution established by States which are, as the Preamble of the ECHR expresses, "like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law." (6) Forty-seven Member States of the Council of Europe, the mother organization of the ECtHR, are currently under its jurisdiction. (7)

   The jurisdiction of the ECtHR is broad and encompasses all the allegations of violations of human rights enshrined in the ECHR and having caused by one or several of the forty-seven Member States. The binding nature of the ECHR is recalled in Article 1, according to which the States Parties "shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." One of the cornerstones of the ECHR system is the right to individual application within the meaning of Article 34. (8) This direct access to an independent judicial body, which is qualified to examine allegations of human rights abuses, is unique in the world and is open to 800 million people. (9) Before a case can be examined on the merits, it has to be declared "admissible," (10) that is, comply with a series of formal criteria, such as the prior exhaustion of local (national) remedies. (11)

   This Article examines police violence, one of the fields where the ECtHR's case law is voluminous, imposing significant limits on the freedom of parties to the ECHR. Part I covers the "substantial" duties imposed by the ECHR, namely the guarantees against arbitrary and disproportionate use of force, mainly deriving from the right to life. (12) Various issues will be covered, such as the required standard of domestic law, the regulatory frameworks and training of police officers, the planning and control of the use of lethal force, and the permitted exceptions to the right to life. (13) Another significant guarantee in this field is the prohibition of torture, and inhumane and degrading treatment. (14)

   Part II deals with the "procedural" limb of Articles 2 and 3, such as the duty of the State authorities to investigate the cause of death or ill-treatment allegedly inflicted by police officers. (15) Part III considers the guarantees against violence on racial grounds in light of Article 14, which prohibits discrimination. (16) It is well known that many incidents of police brutality are racially motivated. While African American men are disproportionately impacted by police violence in the United States, the Roma minority is the population that suffers discrimination and violence within the Member States of Central Europe. (17) This Article will focus on this marginalized population and its treatment by police.

2. GUARANTEES AGAINST ARBITRARY OR DISPROPORTIONATE USE OF FORCE

   1. Right to Life: Article 2 of the ECHR

      1. General Considerations

         The first right that is relevant in the context of police violence is the right to life, the most basic human right of all. (18) Article 2 of the ECHR states:

      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 defen[se] 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. (19)

         Its fundamental nature is recognized by the fact that Article 2 is one of the few ECHR guarantees that cannot generally be derogated from in time of war or other public emergencies in accordance with Article 15. (20) Together with the prohibition of torture and inhuman and degrading treatment within the meaning of Article 3, the right to life "enshrines one of the basic values of the democratic societies making up the Council of Europe." (21) As a result, the circumstances in which the deprivation of life may be justified under Article 2, for instance in self-defense, must be "strictly construed." (22) Article 2 is applicable to both intentional and unintentional killings. (23) It is also noteworthy to observe that Article 2 may come into play even when a person whose right to life was allegedly breached did not die, if the behavior of the State agents put the applicant's life at serious risk. (24)

         The first sentence of Article 2, section 1 indicates that "everyone's right to life shall be protected by law." (25) In L.C.B. v. United Kingdom, (26) the ECtHR held that this establishes a positive obligation for States Parties to take "appropriate steps to safeguard the lives of those within their jurisdiction." (27) From this derives a "primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against their person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions." (28) The "legal and administrative framework" mentioned above requires the adoption of laws prohibiting the taking of life, and calls for the regulation of the conduct of the police and other State agents or private individuals, as well as of activities or situations that might involve a risk to life. (29)

      2. Standard of Domestic Law, Regulatory Frameworks, and Training

         Article 2 imposes certain minimal standards of domestic law and regulatory frameworks on state parties. Police and other security forces and operations must be authorized under national law and sufficiently regulated, providing the adequate and effective safeguards. (30) In Nachova v. Bulgaria, (31) which will be discussed further below, (32) the authorities decided not to bring charges against a military officer who had shot dead two fleeing soldiers, reasoning that the use of force regulations had been complied with. The ECtHR held that the legal framework was fundamentally deficient, failing to provide the right to life protection "by law," because it was lawful to shoot any fugitive who did not surrender immediately in response to an oral warning and a warning shot in the air, despite not giving consideration to the fact that the two men committed non-violent offenses and did not pose a threat to the arresting officers. (33)

         In Makaratzis v. Greece, the framework in place was considered "slender," consisting of a general prohibition without any detailed provisions regulating the use of weapons or guidelines for the planning and control of police operations. (34) The lack of proper structure, channels of communication, and guidelines prompted in that case for a largely uncontrolled car chase, where officers fired volleys of shots with pistols and machine guns. The failure to put in place an adequate legislative and administrative framework with safeguards to avoid risk to life breached the standard required by Article 2. (35)

         In another case, the lack of clear rules regarding the use of weapons by the police and insufficient training led to a violation of Article 2, section 2 of the ECHR. An officer disobeyed his superior when he approached a violent and armed suspect, placing himself at risk, and then drew his weapon, which then misfired, with fatal consequences, in a struggle with the suspect. (36)

         State agents must be adequately trained to react with the degree of caution to be expected of law enforcement officers in a democratic society. (37) Overreaction was, amongst other things, a factor in finding a violation in McCann v. the United Kingdom, (38) where the suspects were shot repeatedly at close range. (39) In the case of Simsek v. Turkey, (40) the ECtHR observed the lack of centralized command and adequate training of the officers involved. (41) In this case, officers fired on a crowd killing fifteen to seventeen people and injuring 276 others without first having recourse to less life-threatening methods. (42) The ECtHR came to a similar conclusion in the case of Oktem v. Turkey, (43) where it criticized the training and response of officers faced with an alleged violent mob situation, who, instead of waiting for support, launched an ill-considered attempt to arrest suspects alleging, in vague terms, that they had to open fire to save their lives. (44)

      3. Planning and Control of the Use of Lethal Force

         Article 2 prohibits the deprivation of life unless justified by any of the exceptions permitted by its text. (45) A state may be liable under this provision not only for the conduct of its agents who actually kill a person, but also for those who are responsible for an operation that may threaten life if it not planned or managed by the authorities "so as to minimize, to...