Two weeks after the London public transport bombings of 7 July 2005, British law enforcement mistook the Brazilian electrician Jean Charles de Menezes for another suicide bomber. As he entered a subway carriage, specialist firearms officers killed him with a series of head shots in the mistaken belief that he was about to set off a bomb. The government’s Independent Police Complaints Commission determined that de Menezes was killed due to “very serious mistakes” that were avoidable. The London Metropolitan Police was prosecuted under the Health and Safety Act 1974 and convicted to pay a GBP 175,000 fine. Compensation claims by the family were settled through an ex gratia payment.
However, de Menezes’ family still brought the case to the European Court of Human Rights since none of the individual officers implicated in the killing were prosecuted. In Armani da Silva v. United Kingdom, the Court’s Grand Chamber has just held that the United Kingdom did not fail to uphold its procedural obligation under the right to life (Art. 2 ECHR) to effectively investigate the de Menezes shooting and prosecute the individual officers involved.
One of the central legal points of the judgment concerns the standards that human rights law establishes for handling killings in putative self-defence, where an attack exists only according to the mistaken belief of the law enforcement officer using force against the presumed attacker. Arguably, the Armani da Silva judgment got the standards wrong.
The prevailing hybrid subjective/objective test
For criminal cases involving putative self-defence, many common law jurisdictions, including the United States, employ a hybrid test that combines a subjective and an objective element. The defendant has to have an honest, if mistaken, belief in the self-defence situation and that belief must have been objectively reasonable under the circumstances. Forming somewhat of an exception, English criminal law establishes an entirely subjective test. Self-defence can be claimed where the defender honestly believed in the self-defence situation: it is immaterial if that belief is unreasonable (see R v Gladstone Williams). Some legal scholars consider this more permissive test to be irreconcilable with the ECHR, at least to the extent that it allows law enforcement agents to escape prosecution for killings based on a mistaken and unreasonable belief in self-defence (see e.g. Fiona Leverick, Is English Self-Defence Law incompatible with art 2 of the ECHR? [347 Criminal Law Review 2002, at 361]).
The applicant in Armani da Silva argued exactly that, contending that:
“the investigating authorities were unable to assess whether the use of force was justified because they were precluded from considering whether [the implicated officers’] apparently honest belief that the use of force was necessary was also a reasonable one” (see Armani Da Silva, para. 243).
In its previous jurisprudence on putative self-defence, the European Court had endorsed the hybrid subjective/objective test that requires an honest and reasonable belief. The leading case of McCann v. United Kingdom concerned IRA members, who were shot dead by security forces acting with the mistaken belief that they were about to trigger a deadly bomb. In McCann, the ECtHR Grand Chamber indicated that lethal force used by state agents in self-defence or defence of others must be based on “an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken” (McCann, para. 200, emphasis added). In later judgments, the Court clarified that the assessment could not be done in an ex post-facto “detached reflection”, but that an ex-ante perspective had to be taken based on the situation as it presented itself to the officers “in the heat of the moment” (Andronicou and Constantinou v. Cyprus, para. 192). The same standards are essentially also followed by the Inter-American and African human rights commissions (see here [para. 180] and here [para. 116]).
The subjective test of Armani da Silva
In Armani da Silva, the Grand Chamber watered down the objective tenet of the McCann test (although it claimed that it did not). Firstly, it indicated that the “existence of ‘good reasons’ should be determined subjectively” (para. 245). Moreover, it suggested that it never regarded “reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held” (para. 246). Accordingly it frames the test to assess killings in putative self-defence now as follows (para. 248):
“It can therefore be elicited from the Court’s case-law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (that is, it was not based on subjective good reasons), it is likely that the Court would have difficulty accepting that it was honestly and genuinely held.”
Having thus moved to a strongly subjective test, the Court took no objection to the subjective approach of English Criminal Law, finding in para. 252 that it “cannot be said that the test applied in England and Wales is significantly different from the standard applied by the [European] Court.”
The subjective test endorsed by the majority in Armani Da Silva is inappropriate for purposes of determining state responsibility under international human rights law. This approach would allow states to escape responsibility, even where their agents use defensive force with negligence or gross negligence, believing in an attack without any good reason. Take, for instance, a case where police officers shoot a suspect whom they honestly suspect to constitute a lethal threat, because they hold strong racial prejudices towards people of a certain ethnicity and unreasonably consider them to be inherently dangerous. In practice, a subjective test also places victims trying to hold states responsible for human rights violations at an unfair disadvantage. Victims would have to show that the police officers involved did not have a particular state of mind (honest belief in an attack), rather than only having to show that the objective circumstances prevailing at the time rendered their belief unreasonable.
The Court seeks to temper these problems by maintaining “subjectively good reasons” as a factor to determine the honesty of the belief. But what does this mean? Police officers who honestly believe that a killing is necessary for purposes of self-defence will also subjectively consider to have good reasons for their belief (e.g. in the mind of racially prejudiced officers, racial prejudice is a good reason for making decisions). Perhaps the Court merely engages here in verbal acrobatics in an attempt to show that English law is not so different after all from its own approach. However, the judgment’s language clearly confuses the personal dimension of perspective (subjective mind-set of the officer involved vs. the (fictional) perception of an objective reasonable officer) with the temporal dimension (ex-ante perspective in the heat of the moment vs. detached reflection ex post-facto).
Mixing up state responsibility and the state’s duty to ensure individual responsibility
The Court’s “strained reasoning” may have avoided holding against the U.K. in yet another politically sensitive case. However, it was not necessary to reinterpret and weaken the McCann test to reconcile English criminal law with the European Court’s own approach on putative self-defence. This is because two different questions should have been distinguished:
- whether the state should be held responsible for mistaken killings that officers carry out based on an unreasonable belief in self-defence, and
- whether the state has a further duty to hold the individual officers involved criminally responsible, particularly if their unreasonable belief only amounts to simple negligence.
The standard applicable to (2) does not have to be the same as for (1). In fact, a state would have good reason not to prosecute an officer who negligently, but honestly, misperceives a situation as requiring self-defence. After all, that officer has no intention to commit a crime. For this very reason, the subjective test also prevails in international criminal law with regards to putative self-defence (see United States v. Krupp et al, p. 148).
The European Court’s own jurisprudence also holds that States have no obligation to prosecute in cases of negligent killings (see Calvelli and Ciglio v. Italy, para. 51). A duty to prosecute exists only where deaths result from grossly negligent or reckless behaviour of officials (see Öneryildiz v. Turkey, para. 93). Applying these standards to putative self-defence, the Armani da Silva Court could have considered that killings based on an honest, but unreasonable and mistaken, belief in self-defence only trigger an obligation to prosecute if the officers’ appreciation of the situation was so devoid of good reason that their conduct must be considered reckless or grossly negligent. Incidentally, English criminal law would live up to this test. It criminalizes grossly negligent manslaughter, so that a killing in putative self-defence caused by gross negligence could be prosecuted (see John C. Smith, The use of force in public or private defence and Article 2 ECHR [958 Criminal Law Review 2002, at 961]).
The objective test of the dissenting opinion
It is worth noting that the dissenting opinion of Judges Karakas, Wojtyczek and Dedov in Armani da Silva also walks away from McCann – but in the opposite direction. According to their dissent (para. 5) “[f]orce used in putative self-defence is never absolutely necessary” as the text of Article 2 ECHR on the right to life would require. Determinative would therefore only be the actual situation as it presents itself post-facto.
This approach is not convincing either. Firstly, the textual requirement of “absolute necessity” can also be interpreted from an ex ante view point of a reasonable observer placed in the position of the officer in question. Furthermore, as wisely observed in the McCann judgment (para. 200), requiring an actual attack “would impose an unrealistic burden on the state and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.” If police officers could only take defensive action when absolutely certain about the existence of an attack, their defensive response would often come too late. They or others may have already been killed or injured by the time they have fully verified the facts.
In addition, police officers who have good reason to believe that persons are at risk of violence have a human rights duty to defend these victims. Therefore, they should not be held responsible for a human rights violation if it turns out, in hindsight, that these good reasons did not conform to reality. International law must not establish inherently contradictory duties of conduct.
Finally, even hindsight can often not determine whether a lethal threat truly existed or not. Was the attacker actually willing to pull the trigger or only bluffing when he was shot? If the attacker is dead or invokes his right to remain silent, one will never know.
Unlike the majority, the Armani da Silva dissenters make at least a distinction between the state’s own responsibility and its duty to prosecute individual officers. They temper the implications of their strict line on putative self-defence by recognising that the “requirement of criminalisation does not mean that any use of force which is not absolutely necessary has to entail criminal liability” (para. 5 of the dissent). Nevertheless, they still consider the subjective test of English Criminal Law to be deficient, taking the view (id.) that:
“national criminal law on putative self-defence is compliant with Article 2 if it provides for two cumulative conditions for exemption from criminal liability: a subjective one (an honest belief which subsequently turns out to be mistaken or, in other words, actual error as to factual circumstances) and an objective one (existence of good reasons for which the belief is perceived to be valid at the time or, in other words, the existence of objective grounds justifying the error).”