Article 2 of the ECHR, the Investigative Obligation and the Shooting of Jean Charles de Menezes

Abstract

In July 2005 Jean Charles de Menezes was shot dead by an elite police firearms unit of the Metropolitan Police. At the time the police (wrongly) suspected that de Menezes was one of the failed London suicide bombers. Article 2 of the European Convention on Human Rights permits the intentional deprivation of life only where the use of lethal force is for a legitimate aim and “absolutely necessary” (as per Article 2(2)). Moreover, it imposes a positive obligation on the state to protect life (as per Article 2(1)). In a previous article in this journal [2008] 4 Web JCLI the author assessed the de Menezes shooting in the light of these two issues and, on balance, found that the killing was not unlawful (Turner, 2008). However, notwithstanding this finding, he went onto question whether the positive duty required some relaxation of Article 2(2) in cases of suicide bombings, reflecting a more general obligation on state authorities to protect life. This second article continues the theme of the first, in that the shooting is assessed on the grounds of its human rights’ compatibility, but from the perspective of another element of the positive obligation of Article 2(1): the procedural duty imposed on state authorities to investigate certain killings. The author finds here that the subsequent inquiries into the de Menezes shooting were lawful. Nevertheless, for the purposes of protecting life, and the continued accountability of state agents (especially those killings for which the police are directly responsible), this element of the positive obligation – the procedural duty – should not be relaxed in the fight against terrorism