“In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so.”
Collins J in (Bennett) v HM Coroner for Inner London 
Last week, the European Court of Human Rights (ECtHR or Court) handed down its judgment in the case of Armani da Silva v UK. The case was brought by Patricia da Silva, the cousin of Jean Charles de Menezes, a young Brazilian electrician living in Tulse Hill who was killed by Metropolitan Police Specialist Firearm Officers at Stockwell tube station on July 22 2005. The killing came in the wake of the 7/7 bombings, in which 52 had people lost their lives, and the attempted 21/7 attacks, in which a number of bombs were discovered on public transport by police, having failed to detonate. Jean Charles de Menezes lived at 17 Scotia Road; Hussain Osman, one of the 21/7 suspects, lived at number 21. Both properties used the same doorway to access the street. In the course of a surveillance and containment operation Jean Charles was mistaken for Hussain Osman – “it would be worth someone else having a look,” said one officer. By the time forces trained in conducting armed stops had arrived, a ‘Code Red’ had been declared, and Jean Charles had taken a bus to Stockwell tube station. Shortly after he entered a train and sat down, officers ‘Charlie 2’ and ‘Charlie 12’ discharged 7 bullets into his head and ended his life. His death was one of the 58 fatal police shootings that have taken place between 1990 and 2015. Not one of the officers responsible has been convicted.
The Court found that Jean Charles de Menezes’ right to life under Article 2 of the European Convention on Human Rights (ECHR or Convention) had not been violated. de Menezes’ family stated that they were “deeply disappointed” by the judgment. Although many have derided the Court for failing to find that Jean Charles was unlawfully killed, this wasn’t the question that the Court was asked to consider. Rather, it had been asked whether or not the the UK had “conduct[ed] an effective investigation into the shooting of Mr de Menezes which was capable of identifying and – if appropriate – punishing those responsible”. Such investigations are required by the Convention when a public official is implicated in a person’s death.
Patricia da Silva’s argument was that the failure to prosecute any individual police officer meant that the UK hadn’t fulfilled this obligation. She argued that this was in part because the threshold for prosecution in England is too high, and in part because English law in circumstances like these only requires an officer to hold a subjectively reasonable belief that a use of force is required, and for the force subsequently used to be proportionate. With regard to the threshold for prosecution, the Court found that this lay within the UK’s “margin of appreciation”. Recognising that not all countries who have signed the ECHR will have the same approach to certain issues, such as abortion or assisted dying, the Court grants national authorities a margin of appreciation on certain matters. That means that it won’t dictate to a country what its stance on a particular issue should be. The threshold for prosecution, which in the UK requires the prospect of conviction by a jury to be “more likely than not”, is one such issue. On the topic of subjectively reasonable belief, the Court found that English law is broadly similar to its own approach. Essentially, it agreed that if a police officer believes that a person poses a threat which requires the use of lethal force, and that belief is subjectively reasonable, then even if it turns out that the officer was mistaken about the threat, they will still have a defence under the law. We know of which races and gender those perceived threats are most likely to be.
Some have wondered if the current political climate has anything to do with the Court’s failure to find a violation. In the national press, the Court and Convention are frequently slated as “a charter for criminals”; the meddling of unelected foreign judges in the UK’s sovereign political affairs. In the coalition government, the Conservatives produced a paper that contemplated withdrawing from the ECHR altogether. Their 2015 manifesto included a commitment to “scrapping” the Human Rights Act, which gives the Convention effect in our domestic law, and curtailing the role of the Court. And that is not to mention the EU referendum. Although the Court and Convention were established by a body called the Council of Europe, and are not organs of the European Union, which has its own Court of Justice and Charter of Fundamental Rights, they are frequently confused by people across the political spectrum. Should the country vote to remain in the EU, many are concerned that measures to scrap the Human Rights Act and weaken the link between the UK and the Court will be implemented to appease the Conservatives’ Eurosceptic wing. On the other hand, should Britain vote to leave the EU, this may strengthen the hand of those who call for increased isolationism and withdrawal from the ECHR. Relations between the Court and the UK are, to put it lightly, strained.
A lot of this will seem like minutiae. Two people fired several bullets with the blessing of the state. One man lost his life because his skin was brown enough to mark him as a would-be suicide bomber. Eleven years, several court hearings, and numerous administrative reviews later, no individual is held responsible. Many see this ruling as a failure of the ECHR. But we should examine the detail of this judgment so that we may better understand the nature of this outcome. The failure in this case lies outside of the scope of this single judgment. Or rather, it reveals on the part of many a misplaced faith in the promise of our human rights institutions. The Court cannot decide on questions that are not open to it; in this instance, whether Jean Charles was unlawfully killed, as many would like it to. The Court cannot depart from its existing case-law or doctrine without justification. Despite Europe’s claims to democracy and the rule of law, the Court is not an apolitical entity detached from its surrounding political environment, it is influenced both by national politics and supra-national power struggles.
More importantly, the Court cannot remedy exceptions that are written into the fabric of the ECHR and its own case-law. The Convention allows, for example, for the indefinite detention of people with insecure immigration status. The Court recognises immigration control (and the ensuing violence of European borders) as a legitimate aim in restricting a person’s human right to privacy and a family life. The Court does not inevitably categorise practices such as forced medication, or incarceration on mental health grounds, as unjustifiable in all circumstances. The ECHR does not regard custodial sentencing as controversial at all. Nor does the Court consider it inhuman and degrading to deport a person with a chronic illness to a place where medical provision is so poor that they will suffer horribly and possibly die, as is starkly illuminated by the case of Abdel Kader Bensaid. The Court accepts “the State’s monopoly on the use of force” and the right to life contains a number of circumstances in which your own government can legitimately kill you.
Despite these gaps, these human rights laws have also helped hold police to account. For example, a young black woman who had been detained after her drink was spiked won £37,000 in compensation from the Metropolitan police when they had unlawfully strip-searched her and cut off her bra, and broadcast the images throughout the police station. It was a human rights challenge that established that public officials have a positive duty to take steps to protect people’s lives when they are at risk; a precedent that many have used to challenge police failings to protect women from domestic violence. It was the Court that ruled that holding a man in mental distress in a police cell for over 72 hours due to a lack of available psychiatric bed space amounted to inhuman and degrading treatment. It was the very same obligation to investigate under the right to life that was at issue in da Silva’s argument which meant that the family of Zahid Mubarek could secure a full inquest to find out how he came to be placed by prison authorities in a cell with a known white supremacist who subsequently murdered him.
At face value, human rights laws should guarantee universal protection from the state’s violent excesses. But we cannot take the law at its own word. Our anger at Jean Charles de Menezes’ murder and racist state violence is justified. But struggles for redress must extend beyond human rights institutions, whose value is primarily instrumental. From police brutality at home, to military interventions overseas, moral wrongdoing and illegality do not always match up. The da Silva case is a sober and important reminder that the law is not inevitably a road that leads to justice.
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Gracie Mae Bradley is a full time human rights worker and sometime writer. She tweets at @GracieMaybe
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