When Are States (Not) Obliged to Save Citizens' Lives? Discovering the 'Restrictive Triage' which Undermines the Operational Duty under Article 2 ECHR

AuthorJordan Briggs
PositionLLM (LSE) '21. BA in Jurisprudence (University of Oxford) '20
Pages232-271
232
LSE Law Review
Vol. VII
When Are States (Not) Obliged to Save Citizens’ Lives?
Discovering the ‘Restrictive Triage’ which Undermines
the Operational Duty under Article 2 ECHR
Jordan Briggs*
ABSTRACT
According to Article 2 of the European Convention on Human Rights, when states do or
should know that an individual is at a real and immediate risk of death, the state has an
operational duty to take reasonable steps that might be expected to avoid that risk from
materialising. This article explains and analyses interpretations of that duty, both by the
European Court of Human Rights and by UK courts. A persistent inconsistency is found. On
the one hand, judges in both fora h ave repeatedly championed Article 2 as a fundamental right
enshrining a basic value of democratic societies. However, at the same time, a highly restrictive
approach to the operational obligation has been favoured; calibrated first by the European
Court of Human Rights and intensified by UK judges. Consequently, and by analysing a wide
range of European and domestic case law, this article relates that for UK litigants the
obligation’s legal tests now comprise a materially compounding ‘restrictive triage’ of: (1)
‘identifiability’, (2) ‘state knowledge’, and (3) ‘institutional deference’. Accordingly, and
notwithstanding judicial rhetoric, the operational obligation is enforceable in the UK only in
vanishingly few circumstances. This reality is criticised, and three reform suggestions are
proposed to enable the obligation to most effectively minimise avoidable deaths.
* LLM (LSE) '21. BA in Ju risprudence (University of Oxford) '20. The author warmly
thanks Professor Conor Gearty QC for his guidance and enthusiasm whilst supervising
this work.
2021
When Are States (Not) Obliged to Save Citizens’ Lives?
233
INTRODUCTION
Remaining alive should not be taken for granted. All that ever separates
life and death is a single moment of unbearable physiological stress. Such
moments often arise unfores eeably, from public tran sport accidents, freak
meteorological events, attacks from third persons or from the degradation of
our own bodies or minds.
The state’s role in protecting us from such threats is unclear. On the one
hand, the state may not b e the most proximate cause of the threats and,
particularly given the large number of competing drains on state attention a nd
resources, it may anyway be quite incapable of providing complete protection to
all citizens’ lives. On the other hand, if states voluntarily agreed to respect
human rights, and have already-established, pervasive and well-resourced
protective institutions upon which citizens are invited to depend,1 then the state
might reasonably be expected to vindicate its protective promise and extend
assistance to citizens wherever it can.2
Such tensions are reflected in the inconsistent judicial i nterpretation of
Article 2 of the European Convention on Human Rights (ECHR). From the
bald enjoinder that ‘[e]veryone’s right to life shall be protected by law’,3 the
European Court of Human Rights (ECtHR) inferred an ‘operational obligation’
in 2000 requiring states who knew, or ought to have kno wn, of a real and
immediate risk to the life of an identified individual to take positive steps which,
judged reasonably, might have been expected to avoid such a risk from
materialising.4 Thereafter, however, the ECtHR developed a striki ngly Janus-
faced interpretive practice. The ECtHR has often championed Article 2, proudly
extolling that it ‘ranks as one of the most fundamental provisions i n the
Convention’5 and enshrines ‘one of the basic values of the democratic societies
1 Laurens Lavrysen, Human Rights in a Positive State: Rethinking the Rela tionship between Positive
and Negative Obligations under the European Convention on Human Rights (Intersentia 2017) 3.
2 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford
University Press 2008) 1.
3 European Convention on Human Rights (ECHR) art 2(1).
4 Osman v UK (2000) 29 EHRR 245.
5 See Osman [88]; Younger v UK (2003) 36 EHRR 252, para 20; Kotilainen v Finland (2021)
72 EHRR 26, para 65; Tarariyeva v Russia (2009) 48 EHRR 26, para 73.
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LSE Law Review
Vol. VII
making up the Council of Europe’.6 Such statements are not without
foundation. After all, Article 2 has primary place as the fir st substantive right
listed in the ECHR and, along with Article 3, is one of the two ‘absolute rights’
which, when engaged, cannot be overridden in any circumstances.7 Accordingly,
the ECtHR has avowed to subject complaints about loss of life to ‘the most
careful scrutiny’8 and, particularly in cases involving vulnerable wome n,9 stressed
that Article 2’s safeguards must be ‘practical and effective’.10
Yet, even whilst professedly championing Article 2, the ECtHR has
quietly but deliberately limited the operational obligation by taking an avoidably
restrictive view of its legal tests. Importantly, when the operational obligation
descends from the E CtHR into the hands of United Kingdom (UK) judges, the
restrictions only increase. The operational obligation enters the UK jurisdiction
by virtue of the Human Rights Act 1998 (HRA 1998), which requires judges
only to ‘take into account’ ECtHR judgments11 and keep domestic law
‘compatible’ with ECHR law insofar as is possible.12 As will be demonstrated,
UK courts have generally exercised this latitude to further restrict the
operational obligation by increasing the onerousness of its legal tests and
deferentially refusing to impugn decision-makers’ omissions as unlawful.
Accordingly, the central argument of this work is that contrary to Article
2’s normative and judicially re cognised importance, the ECtHR’s and UK
courts’ restrictive interpretations of the operational obligation have produced
materially compounding barriers to its enforcement. These barriers can be
understood as a ‘restrictive triage’, comprising: (1) ‘identifiability’, (2) ‘state
knowledge’, and (3) ‘institutional deference’. Further, even if these barriers are
overcome, the obligation in the UK may entitle claimants only to meagre and
reducible damages. Thus, in place of the readily available and robust obligation
6 Lopes de Sousa Fernandes v Por tugal (2018) 66 EHRR 28, para 164; Mastromatteo v Italy App
no 37703/97 (ECtHR, 24 October 2002) para 67.
7 Natasha Mavronicola, ‘What is a n ‘absolute right’? Deciphering Absoluteness in the
Context of Article 3 of the European Convention on Human Rights’ (2012) 12(4)
Human Rights Law Review 729.
8 Kotilainen (n 5) 84; Banel v Lithuania App no 14326/11 (ECtHR, 24 February 2013) para
67.
9 Tkhelidze v Georgia App no. 33056/17 (ECtHR, 8 July 2021) para 48.
10 Osman (n 4) para 88; Kotilainen (n 5) para 65; Tarariyeva (n 5) para 73.
11 Human Rights Act (HRA) 1998, s 2(1).
12 ibid, s 3(1).

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