by Mariana Alvim, PhD candidate and member of CIDP

▪

Brief description of the Case

The present case[i] concerned the death of Mr. Soares Campos’s son who was swept out to sea while taking part in a gathering related to Praxe[ii] in a beach in Portugal.

Mr. Soares Campos (hereafter “applicant” or “claimant”) lodged an application with the European Court of Human Rights (hereafter “Court” or “ECtHR”) on the 27 May 2016.

The applicant based his complain on the procedural aspect of Article 2 of the European Convention on Human Rights (hereafter “ECHR” or “Convention”), sustaining that there was not an effective investigation capable of establishing the circumstances of his son’s death.

The claimant also grounded his complain in a substantive aspect of Article 2 of the Convention, declaring that his son’s death had been caused by the lack of a legal framework regulating Praxe activities in the Portuguese Universities.

The Facts

The applicant’s son, a 21 years old university student, was taking part in an annual gathering related to Praxe on Meco beach in Setúbal on the night of 14 December 2013. He was caught unaware and was swept out to sea by a large wave together with other six students, and only one of them managed to get back to the beach and survived.

On the morning of 15 December 2013 the body of the claimant’s son was found and on 16 December 2013 the public prosecutor’s office opened a criminal investigation to determine the circumstances of the tragedy.

Over the following days, the bodies of the other five victims were found and autopsies were performed. The public prosecutor decided to make the case file confidential having in attention the widespread media coverage of the case.

On 5 February 2014, the only survivor of this tragedy gave evidence as a witness and told the investigators that the claimant’s son had stood up suddenly because he was cold and at that moment had been struck by a wave and all the other students had then ended up in the water.

On 25 February 2014 the applicant and other parents of victims lodged a criminal complaint against the only survivor and a person or persons unknown for negligent homicide and endangering the lives of others, asserting that at the time of the incident the victims had been standing blindfolded with their backs to the sea as part of a hazing challenge led by the only survivor of the accident.

On 28 July 2014 the public prosecutor’s office discontinued the case and the applicant, as well as the parents of the other victims, appealed against that decision and requested the opening of a judicial investigation and, as a result, the investigation was opened in October 2014 and the only survivor was charged.

On 4 March 2015 the Criminal Investigation Court issued a decision not to send the case for trial upholding the discontinuance decision.

The claimant appealed again and the Court of Appeal found that the victims were adults and that there was no evidence to suggest that they had been deprived of their personal autonomy during the weekend in question.

On 29 December 2015 the claimant brought a civil action for compensation against the only survivor and the Training and Cultural Events Cooperative, seeking 150,000 Euros in damages.

On 27 May 2016 the applicant lodged an application with the Court after exhausting all the domestic remedies, according to Article 35 (1) of the ECHR[iii].

The Law

There should not be any doubt that Article 2 of the ECHR[iv] protects “everyone’s” right to “life” and that “life” here means human life. As the Court underlined in Case McCann and others v. the United Kingdom: “Article 2 ranks as one of the most fundamental provisions in the Convention – indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention [the prohibition of torture], it also enshrines one of the basic values of the democratic societies making up the Council of Europe.”[v] And because of this, the Court establishes that “its provisions must be strictly construed.”[vi]

Article 2 of the ECHR contains two fundamental elements, reflected in its two paragraphs: a general obligation to protect the right to life “by law” (§1), and a prohibition of deprivation of life delimited by a list of exceptions (§2).

In fact, under Article 2 the right itself must be “protected by law” and this gives additional weight to the right because while States are not generally required to incorporate the Convention into their domestic law, as far as the right to life is concerned, they must, at least, have laws in place which, in various contexts, protect that right to an extent that reflects substantively the Convention standards. And ‘Law’ means, in this context, the requiring rules that are accessible, and reasonably, precise and foreseeable in their application, as the Court clarifies in the jurisprudence.[vii]

The second paragraph of Article 2 of the ECHR allows for exceptions to the right to life only when this is “absolutely necessary” for one of the aims set out in sub-paragraphs (2) (a) to (c). This clearly means, as the Court said in the McCann case, “a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2.”[viii]

Furthermore, Article 2 of the Convention establishes negative and positive obligations for the States. Negative obligations in the sense that “the State must refrain from causing death voluntarily and irregularly”,[ix] and positive obligations in two senses: first, the State must adopt all necessary measures to protect people’s lives against third parties and also, in some cases, against themselves; second, in face of allegations of violation of the right to life the authorities must carry out objective, effective and prompt inquiries, involving the victims’ relatives or the victims themselves, in order to identify and punish the responsible(s).

In this circumstance, the Court confirms the existence of a procedural aspect of the referred disposition that imposes a ‘positive obligation’ on States to investigate deaths that may have occurred in violation of this article.[x] As the Court mentioned in the present case, any deficiency in the investigation weakens its ability to establish the cause of death or the responsibilities, and may lead to the conclusion that it does not meet the standards provided in Article 2 of the Convention.[xi]

The question of an effective investigation is therefore linked to other issue under the Convention: the right to an ‘effective remedy’ under Article 13. Article 13 of the ECHR stipulates that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A similar provision, based in Article 13 of the ECHR, is to be found in Article 47 of the Charter of Fundamental Rights of the European Union (hereafter “Charter”): “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”. We should note, however, that the protection offered by the Charter is more extensive since it guarantees the right to an effective remedy before a Court.

But the primary aim of both Article 13 of the ECHR and Article 47 of the Charter is to increase judicial protection offered to individuals who wish to complain about an alleged violation of their human rights. In that sense, the right to an effective remedy is an essential pre-condition for an effective human rights policy and, particularly, for an effective protection of the right to life.

In addition, Article 13 of the ECHR has a ‘close affinity’ with Article 35 (1) of the Convention once the Court may only deal with the matter after all domestic remedies have been exhausted.

Furthermore, it is important to recall that the Court identifies three main principles that the investigation should respect. The first one is the need for those responsible for the investigation to be independent of those involved or likely to be involved.[xii] The second one is that the investigation must be accessible to the family of the victim to the extent necessary to safeguard their legitimate interests, and the public should also be able to exercise sufficient scrutiny over the investigation.[xiii] The third one is an implicit requirement of promptness and due diligence in the investigation context[xiv], and as the Court reiterates in the case Paul and Audrey Edwards v. The United Kingdom: “(…) it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family (…).”[xv]

The Charter of Fundamental Rights of the European Union

The Charter[xvi], that has the same legal value as the Treaties[xvii], establishes the fundamental right to life in Article 2 that provides in paragraph one that “Everyone has the right to life”. This paragraph is based on the first sentence of Article 2(1) of the ECHR, which reads as follows: “Everyone’s right to life shall be protected by law”.

The second paragraph of Article 2 of the Charter stipulates that “no one shall be condemned to the death penalty, or executed” but we should note that this provision has to be interpreted having in attention Article 1 of Protocol No 6 to the ECHR, which reads as follows: “The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.”[xviii]

We should have also in consideration Article 52(3) of the Charter that provides as follows: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

In this circumstance, the provisions of Article 2 of the Charter have the same meaning and the same scope as Article 2 of ECHR and respective protocols. Therefore, the ‘negative’ definitions appearing in the ECHR must be regarded as also forming part of the Charter as it happens with Article 2(2) of the ECHR[xix] and Article 2 of Protocol No 6 to the ECHR.[xx]

Nevertheless in December 2014 the Court of Justice of the European Union[xxi] rejected the draft accession agreement that would have enabled the European Union to accede to the ECHR[xxii] on the grounds of its incompatibility with the EU’s constitutional structure[xxiii], we should have in mind that Article 6(3) of the Treaty on European Union says that: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”

Conclusions of the Court

After assessing all the steps taken during the investigation conducted following the death of the six students, the Court concluded that the subsequent urgent measures could have been ordered straight away by the public prosecutor’s office as soon as it learned of the incident.

Firstly, the house where the victims had been staying should have been secured and access barred to all persons not connected with the investigation, in order to prevent evidence from being interfered with or lost, and the cleaning of the apartment on 9 January 2014 should have been prevented. The Court underlined the fact that the only survivor of the tragedy, as well as his relatives, the victims’ families and third parties had had unrestricted access to the house.

Secondly, the Court sustained that the inspection of the scene of an incident should normally be carried out as soon as possible what didn’t happen in the present case once the forensic examination of the house had not taken place until 11 February 2014. In this context, the Court acknowledges that the items in the house and on Meco beach could have potentially contained important and sensitive information relating to the persons concerned and should have been placed under seal for investigative purposes to prevent any interference.

Thirdly, the clothes worn by the only survivor on the night of the tragedy, as well as his computer, should have been seized immediately and subjected to forensic examination but this did not occurred until 7 March 2014.

Fourthly, a reconstruction of the events on the beach with the participation of the only survivor should have been carried out as soon as possible after the events but it did not take place until 14 February 2014.

Fifthly, the authorities had not immediately taken witness statements from the people present in the area, including the neighbours and the people in charge of the house where the victims had been staying. Those people had not given evidence until 8 and 10 February 2014, a month and a half after the events.

Sixthly, the investigation had not started in formally until it had been taken over by the public prosecutor’s office at the Almada District Court, over a month after the events.

The Court considered that the present application raised the issue of ‘praxe’ at Universities and its monitoring by the State. The Court points out that unlike hazing within the armed forces, hazing activities at University were performed by students on other students and not by agents of the State or under the control of the State.

The Court recognizes that nevertheless Praxe was not prohibited or regulated in domestic law, any abuse, whether or not it occurred in the context of a hazing challenge, was punishable by law. Thus, the Constitution enshrined the principle of human dignity and prohibited torture and inhuman or degrading treatment[xxiv], and any offence endangering a person’s life, physical or psychological integrity, or private life, was punishable under the criminal law, including by prison sentences of up to 25 years.[xxv] Any act of violence or physical or psychological force against other students, including in the context of praxe activities, was also a disciplinary offence punishable by a penalty ranging from a warning to expulsion.[xxvi] Lastly, Universities and higher education establishments could be held responsible for any material and moral damage caused on their premises.[xxvii]

Although acknowledging the unquestionable tragic nature of the present case, the Court did not find it established that the State had failed in its positive obligation to adopt all necessary measures to protect people’s lives, concluding that there was not a violation of the substantive aspect of Article 2 of the ECHR.

However, the Court decided that there was still a violation of Article 2 of the ECHR once it imposes a ‘positive obligation’ on States to investigate deaths that may have occurred in violation of this same disposition.

Therefore, the Court concluded that the criminal investigation into the circumstances of the death of the applicant’s son had not satisfied the procedural aspect of Article 2 of the ECHR and held that Portugal was to pay the applicant 13,000 euros in respect of non-pecuniary damage and 7,118.51 euros in respect of costs and expenses.

Final Notes

I would like to leave you with three final notes.

The first note is that, as we had the chance to see in the present case, the procedural requirement to investigate the circumstances of a death is distinct from the substantive requirement for the State to adopt all necessary measures to protect people’s lives, and there can be a violation of one without a violation of the other.[xxviii]

The second note is that the positive obligation to investigate arising from Article 2 of the ECHR consists in an obligation of means and not of result so the investigation must make it possible to identify and – if that is the case – to punish the responsible(s).[xxix] In this context, the task of the Court is rather to verify, having in attention the procedure as a whole, whether and to what extent the domestic authorities have submitted the case to the scrupulous examination required by Article 2 of the Convention.[xxx]

The third one is that, as stated by the Court, “the obligations of the State under Article 2 cannot be satisfied merely by awarding damages”, which is the main outcome in civil proceedings and often the only available domestic outcome in cases in which a financial settlement is offered by the State. By contrast, under Articles 2 and 13 of the Convention, in addition to the payment of compensation, where appropriate, there should be “a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure”[xxxi] and Portugal clearly failed to accomplish this fundamental procedural requirement.

[i] Judgement from the third section of the ECtHR, 14 January 2020, Application no 30878/16.

[ii] The Portuguese term ‘praxe’ describes the whole of student traditions in Universities that include hazing activities like initiation rituals that freshmen students are subjected to.

[iii] Article 35 (1) of the Convention provides as follows: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.

[iv] Article 2 of the ECHR provides as follows: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

[v] Judgement of the Grand Chamber of the ECtHR, McCann and others v. the United Kingdom, 27 September 1995, Application no 18984/91, §147, with reference to the judgement of the ECtHR, Soering v. the United Kingdom, 7 July 1989, Application no 14038/88, §88.

[vi] Judgement of the Grand Chamber of the ECtHR, McCann and others v. the United Kingdom, 27 September 1995, Application no 18984/91, §147.

[vii] Judgment of the ECtHR, Sunday Times v. the United Kingdom (I), 26 April 1979, Application no 6538/74, §49.

[viii] Judgment of the Grand Chamber of the ECtHR, McCann and others v. the United Kingdom, 27 September 1995, Application no 18984/91, §149.

[ix] See Ireneu Cabral BARRETO, A Convenção Europeia dos Direitos do Homem, 5.ª Ed., 2015, p.81.

[x] In the judgment of the Grand Chamber of the ECtHR, McCann and others v. the United Kingdom, 27 September 1995, Application no 18984/91, §161, the Court stated, for the first time, this procedural aspect in a case concerning killings by agents of the State, in the following terms: “The Court confines itself to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State”.

[xi] Judgements of the Grand Chamber of the ECtHR, Al-Skeini and others v. The United Kingdom, 7 July 2011, Application no 55721/07, §166, and Giuliani and Gaggio v. Italy, 24 March 2011, Application no 23458/02, § 301.

[xii] This presupposes the absence of a hierarchical or institutional link and also a concrete independence, as noted in the judgement of the ECtHR, Anguelova v. Bulgaria, 13 June 2002, Application no 38361/97, §138.

[xiii] Judgement of the ECtHR, Hugh Jordan v. The United Kingdom, 4 August 2001, Application no 24746/94, §109.

[xiv] Judgement of the Grand Chamber of the ECtHR, Al-Skeini and others v. The United Kingdom, 7 July 2011, Application no 55721/07.

[xv] Judgement of the ECtHR, Paul and Audrey Edwards v. The United Kingdom, 14 June 2002, Application no 46477/99, §86.

[xvi] See Mariana Canotilho, Alessandra Silveira (Coord.), Carta dos Direitos Fundamentais da União Europeia Comentada, , Almedina, 2013, and António VITORINO, Carta dos Direitos Fundamentais da União Europeia, Principia, 2002.

[xvii] Article 6(1) of the Treaty on European Union establishes that: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”

[xviii] According to the explanations relating to the Charter that were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter. They have been updated under the responsibility of the Praesidium, in the light of the drafting adjustments made to the text of the Charter by that Convention and of further developments of Union law. Although they do not have the status of law, they are a valuable tool of interpretation, intended to clarify the provisions of the Charter. The explanations are published in the Official Journal C 303 of 14.12.2007, pages 17-35.

[xix] “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

[xx] “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”

[xxi] Opinion 2/13 (Accession of the European Union to the ECHR), of 18 December 2014, C: 2014, p.2454.

[xxii] Article 6(2) of the Treaty on European Union provides as follows: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.”

[xxiii] About the accession and arguing that the European Union needs external human rights scrutiny, see Turkuler Isiksel, “European Exceptionalism and the EU’s accession to the ECHR”, Jean Monnet Working Paper 4/16, available here: http://www.jeanmonnetprogram.org/wp-content/uploads/JMWP-04-Isiksel.pdf (27.01.2020)

[xxiv] Article 1 of the Constitution establishes the principle of human dignity and Article 25 prohibits torture and inhuman and degrading treatment.

[xxv] The Portuguese Penal Code punishes any act which goes against the physical and moral integrity of the person (Articles 143 to 149), the threat (Article 153), the coercion (Article 154), the attack on the honour (Articles 180 to 184), violation of privacy (Articles 190 to 198), failure to assist a person in danger (Article 200), endangering the life of others and failure to assist a person in danger (Article 138), homicide (Articles 131 to 133 and 137), sexual abuse and violence (Articles 163 to 177). Fines and prison sentence may be applied depending on the circumstances of each case (Articles 41 and 47).

[xxvi] Article 76 (2) of the Constitution establishes the statutory, scientific, educational, administrative and financial autonomy of Universities.

[xxvii] The Court gives the example of two decisions issued by the National Supreme Court ordering two higher education establishments, in 2009 and 2013, to pay damages for the abuse of a student and for the death of another student as a result of hazing activities within their institutions.

[xxviii] In the judgement of the ECtHR, Kaya v. Turkey, 19 February 1998, Application no 158/1996/777/978, the Court found no violation of the substantive requirements of Article 2 but a violation of its procedural requirements.

[xxix] Judgements of the Grand Chamber of the ECtHR, Giuliani and Gaggio, 24 March 2011, Application no 23458/02, § 301, and Mustafa Tunç and Fecire Tunç v. Turkey, 14 April 2015, Application no 24014/05, §172.

[xxx] Judgement of the Grand Chamber of the ECtHR, Armani Da Silva v. the United Kingdom, 30 March 2016, Application no 5878/08, § 257.

[xxxi] See, for example, judgements of the ECtHR Labita v. Italy, 6 April 2000, Application no 26772/95, § 131, Kelly and others v. The United Kingdom, 14 May 2002, Application no 30054/96, §105, Isayev v. Russia, 21 June 2011, Application no 43368/04, § 186-187, Anguelova v. Bulgaria, 13 June 2002, Application no 38361/97, §161, Mahmut Kaya v. Turkey, 28 March 2000, Application no 22535/93, § 107, judgement of the Grand Chamber of the ECtHR El-Masri v. “the former Yugoslav Republic of Macedonia”, 13 December 2012, Application no 39630/09, § 255.