Obligation to Respect Human Rights
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
A positive duty to ensure that the rights in the rest of the ECHR are respected.
Key principles of human rights law
States have an obligation to protect people from human rights violations;
Obligation particularly applies to the most vulnerable and must be complied with without discrimination;
Any serious human rights abuses must always be investigated effectively.
Duty to investigate
There must be an effective official investigation into deaths and alleged violations resulting from the use of force. This investigative obligation is known as the ‘procedural aspect’ of Article 2 and 3 (and 4 and 8).
Purpose of an investigation
“… to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility…
Purpose of an investigation
“…not only the actions of the state agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the state complied with its obligation…”.
Independent investigation of law enforcement officials
It is necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. This requires a lack of hierarchical or institutional connection as well as a practical independence.”
In both Article 2 and 3 cases: although the inquiry should be transparent the degree of public scrutiny may vary from case to case,
it is necessary in all cases for the victim or his or her next of kin to be involved to the extent required to safeguard their legitimate interests.
Duty to investigate: Article 3
“…the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.”
Independent investigations: Article 3
Where an individual raises an arguable claim that he or she has been ill-treated by the police or other agents of the state unlawfully there must be an effective official investigation.
The investigation should be capable of leading to the identification and punishment of those responsible.
Injured in custody
If victims provide evidence that they were injured at the time of release from custody but healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation.
Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process.
Law enforcement officials failures
To protect individuals from violations and to investigate effectively allegations made by vulnerable or abused groups:
Prisoners and others detained
Lesbian, gay, bisexual and transgendered people
Women and those subject to domestic violence or sexual assault
People with disabilities
Victims of trafficking