Deprivation of life during arrest or to prevent escape

The first sentence of Article 2 of the Convention obliges the State not only to refrain from intentionally depriving life or depriving life through the use of force that is not proportionate to the legitimate aims referred to in paragraphs 2(a) and 2(c) but also to take reasonable steps to protect the life of those within its jurisdiction.

  • Yuriy Illarionovich Shchokin v. Ukraine, Para 35;
  • L.C.B. v. the UK, Para 36;
  • Keenan v. the UK, Para 89

Only paragraphs 2(a) and 2(c) of Article 2 of the Convention establish that cases of intentional violence (unlawful violence, riots, or insurrection) are grounds justifying the use of lethal force. However, the principle of strict proportionality laid down in Article 2 of the Convention cannot be interpreted outside the main purpose of the article, which is to protect the right to life.

  • Nachova and Others v. Bulgaria [GC], Paras 67-70, 103

It is undisputed that the victims committed a crime and were fatally wounded during their arrest. However: 1) the victims were serving short prison sentences for non-violent crimes; 2) they escaped without using violence, merely leaving the prison yard; 3) they were unarmed and therefore posed no danger to the officers involved in their arrest or to other individuals; 4) they had previously been convicted of criminal offences, but they had never been convicted of violent crimes; 5) as a result, their escape did not involve a risk of serious harm.

  • Nachova and Others v. Bulgaria [GC], Para 95, 102, 106-108

The lawfulness of the aim of a lawful detention, considered from the perspective of the need to protect life as a fundamental value, cannot justify the use of measures that threaten a person’s life in cases where the detainee has committed a non-violent offence and does not pose a threat to third parties. Any other approach would be incompatible with the fundamental principles of democratic societies.

  • UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
  • Nachova and Others v. Bulgaria [GC], Paras 67-70, 103;
  • Makaratzis v. Greece [GC], Para 59;
  • Öcalan v. Turkey, Paras 162-175

Article 2(2) of the Convention does not define situations in which intentional killings are permissible, but it does indicate cases in which the use of force that may result in the unintentional loss of life is permissible. The use of the phrase ‘absolutely necessary’ suggests that the test of necessity must be applied more strictly and rigorously than is usually the case when determining whether State intervention is necessary in a democratic society under Article 8(2) and Article 11(2) of the Convention. In particular, the use of force must be strictly proportionate to the objectives set out in Article 2(2)(a), (b) and (c) of the Convention. In accordance with this principle, national legislation governing detention must make the use of firearms subject to a careful assessment of the situation (in particular the nature of the offence committed by the fugitive) and the threat he poses.

  • Soare and Others v. Romania, Para 130

Despite the absence of State responsibility for the death of the applicants’ brother, the competent authorities were found to be at fault for the inadequate organisation of the operation to apprehend Mr Celniku, namely for failing to exercise due care to minimise the risk to the lives of all those involved in the incident. The Court therefore found that there had been negligence for the police officers.

  • Celniku v. Greece

The applicants’ brother was killed by a police officer during his arrest. Despite being ordered to raise his hands, the applicants’ brother struck the police officer on the arm, resulting in a shot being fired and the applicants’ brother dying at the scene under the following circumstances: 1) the police officer approached Mr Celniku contrary to the orders of a senior police officer. He held his gun so close that Mr Celniku was able to reach it. The police officer therefore provoked the subsequent events himself; 2) the manner in which the police operation unfolded was inexcusable. The operation had been planned by police officers, who were required to take all possible precautions with the utmost diligence. Therefore, there was a violation of Article 2 of the Convention in procedural terms.

  • Celniku v. Greece

The investigation of the incident was inadequate. In particular, the investigator did not examine the possibility that the victim may have been killed as a result of excessive use of force by the police officer accidentally and/or as a result of the intense fear felt by the police officer, and did not examine evidence that could have confirmed these hypotheses. The Court unfortunately has no evidence to support or completely refute the applicants’ arguments that the victim was killed as a result of the use of force that was more than absolutely necessary.

  • Mihaylova and Malinova v. Bulgaria, Para 58