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6.10.2020 11.31 Vierashuoneessa apulaisprofessori Stefan Kirchner: Ensuring Human Safety as a Universal Duty of the State after Kotilainen and others v. Finland

Vierashuoneessa apulaisprofessori Stefan Kirchner: Ensuring Human Safety as a Universal Duty of the State after Kotilainen and others v. Finland

In its judgment of 17 September 2020 in the case of Kotilainen and others v. Finland, the European Court of Human Rights (ECtHR) found that Finland had violated the right to life under Article 2 of the European Convention on Human Rights (ECHR) by failing to take more action to prevent a mass murder. The judgment in hardly brings new obligations but serves as a reminder that human rights are to be realized first and foremost on the local level, something requiring an active state. Taking positive measures to protect human life against threats of a specific or general nature is the duty of the state and all its organs on the national, regional and local levels. None of these findings should be surprising as they are entirely consistent with the earlier case law of the European Court of Human Rights.

In its judgment of 17 September 2020 in the case of Kotilainen and others v. Finland [1] , the European Court of Human Rights (ECtHR) found that Finland had violated the right to life under Article 2 of the European Convention on Human Rights (ECHR) [2] by failing to take more action to prevent a mass murder. The judgment came almost exactly 12 years to the day after the crimes which triggered it, the murder of nine students and one teacher, followed by the perpetrator’s suicide, in a school in Kauhajoki. The 2008 school shooting came less than a year after a similar attack in Jokela. In the 23 September 2008 attack, many more students were injured and the overwhelming majority of victims were women in the 20s. The perpetrator had obtained a gun license only on 7 August 2008 [3] . On 19 September 2008, it was found out that the perpetrator had uploaded videos related to the use of firearms, war and the Columbine High School school massacre [4] , the Detective Chief Inspector learned about this on 20 September 2008 [5] and investigated the issue further on Monday, 22 September 2008 [6] . The later perpetrator was interviewed by the police for 15 minutes on the same day [7] , which would turn out to be the day before the murders. He was only given a verbal warning [8] and was allowed to retain his gun license [9] . At stake in the case before the European Court of Human Rights was the question whether the failure of the police to prevent the murders, despite ample warning signals, amounted to a violation of the right to life under Article 2 ECHR.

Under general rules of international law, a state is responsible for all of its organs [10] . Hence the state would also be responsible under the ECHR for the conduct of individual police officers. The duty of the state under the ECHR is not restricted to the negative dimension of human rights, the obligation to refrain from directly causing harm. In addition, the state has a positive duty to protect human rights. In the case decided now, the ECtHR found that the police’s failure to prevent the school shooting despite being aware of the red flags concerning the shooter amounted to a violation of Article 2 ECHR.

The judgment is noteworthy in that the Court has used this tragic case to explicitly explain the legal origins and the material scope of the duty of the state to take positive action to protect individuals against general, unspecific, threats [11] . The Court does so by analysing its own case law, which allows the ECtHR to place the legal reasoning in a wider context, which strengthens its argument. While judicial precedent is not a primary but only are understood to be “subsidiary means for the determination of rules of law” [12] , international courts have long placed significant emphasis on the role of precedent [13] . While the standing enjoyed by precedent in international law is not on par with the role of precedent under the Common Law doctrine of stare decisis, the role of precedent in the ECtHR’s line of argument is undeniable. It is within the decades of established jurisprudence that the Court has embedded its analysis of the positive duties of the state when it comes to protecting human lives. This positive duty exists with regard to all persons, regardless of the nature, i.e., public or private, of the activity they engage in [14] . While states have a heightened duty to care for those who are involuntarily under their control, such as prisoners, detainees, conscripts in the armed forces or school children in obligatory school systems, the general duty to protect human lives applies under all circumstandes. This requires “the State to adopt and implement a legislative and administrative framework designed to provide effective deterrence against threats to the right to life” [15] . This duty includes not only the obligation to protect specific individuals against specific threats [16] , but is of a general nature. The emphasis on effectiveness, which can be seen in the Kotilainen judgment also is hardly new but reflects the longstanding demand by the European Court of Human Rights that the protection of human rights on the national level has to be effective. This requires not only legislative but also executive measures.

In practice, this means that all authorities have the obligation to take those measures which are within their competence, or, in the words of the ECtHR, “the scope of their powers” [17] and “which, judged reasonably, might have been expected to avoid th[e] risk” [18] in question. This duty is not limited to authorities which are traditionally concerned with questions of safety or security. Rather, taking positive measures to protect human life against threats of a specific or general nature is the duty of the state and all its organs on the national, regional and local levels. None of these findings should be surprising as they are entirely consistent with the earlier case law of the European Court of Human Rights. The obligation imposed on the state is far-reaching but not new. In light of the current COVID-19 pandemic, which poses particular threats to residents of rural and remote regions with limited health care infrastructures, this positive obligation of the state can easily lead to significant challenges. The equal application clause of Article 14 ECHR, however, requires the state to take protective action without discrimination. The same can be said in the context of the reduction of the number of police stations and other state institutions in rural regions. Compliance with international human rights obligations requires positive action, including investments in infrastructure. The judgment in Kotilainen and others v. Finland hardly brings new obligations but serves as a reminder that human rights are to be realized first and foremost on the local level, something requiring an active state.

Stefan Kirchner
Apulaisprofessori, Arktinen keskus, Lapin yliopisto, Rovaniemi

 

[1] European Court of Human Rights, Kotilainen and others v. Finland, Application no. 62439/12, Judgment of 17 September 2020.

[2] European Treaty Series No. 5.

[3] Supra,note 1, paras. 12 and 13.

[4] Ibid., para. 14.

[5] Ibid., para. 15.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Shaw, M. N. (2017). International Law. Cambridge: Cambridge University Press, pp. 594 et seq.

[11] Supra, note 1, paras 65 et seq.

[12] Statute of the International Court of Justice, Article 38 para. 1 lit. d.

[13] Supra, note 10, pp. 81 et seq.

[14] Supra, note 1, para. 66.

[15] Ibid.

[16] Ibid., para. 69.

[17] Ibid., para. 73.

[18] Ibid.

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