Unlawful Killing or Self Defence? Some Thoughts on the ECHR Decision in Makarova v. United Kingdom

The admissibility decisions of the European Court of Human Rights (ECHR) do not usually attract larger attention. There are, of course, well-known exceptions, such as Banković and Others v. Belgium and Others. The recent decision in Makarová v. the United Kingdom (see here), rendered on 5 July 2018 by a committee composed of three judges, will certainly not become one of these exceptions. Although the decision has made front pages news in the Czech Republic, the country of origin of the applicant, this has more to do with the factual background of the case than with any legal intricacies involved in it. Despite that, the decision, while not necessarily incorrect, has some interesting and possibly controversial aspects that might deserve closer scrutiny.

Facts of the Case

The facts are well-known and largely uncontested. The Czech citizen Zdeněk Makar, a 31-year-old brother of the applicant, was killed in September 2016 in London, where he had been living for 10 years. The person responsible for his death was a 29-year-old UK citizen Raymon Scully. Makar met Scully, who was in the company of younger friends, in a local takeaway restaurant. They had a dispute, after which Makar left the restaurant. Scully and his friends followed him down the street, where Scully attacked the unarmed Makar with a bite lock. According to a witness, “he swung the improvised weapon and struck Mr Makar to the left side of his head, catching him behind the ear and knocking him to the ground where he then struck him at least twice more”. While Mr Makar was dying in the street, Scully and his friends left without providing first aid or calling ambulance.

The trial with Scully took place between 21 March and 3 April 2017 at the Central Criminal Court in London, and involved a jury composed of twelve lay persons. The members of the jury had to decide whether the act committed by Scully was to be qualified as a murder (intentional killing), manslaughter (unintentional killing) or self-defence. They were informed about the legal requirements of these three qualifications. The trial judge also explained to them that Scully’s good character (i.e. lack of previous criminal convictions) could be taken into account when considering the case. On 3 April 2017, the jury delivered a majority verdict concluding that the defendant had acted in self-defence (defending one of his friends). Scully was acquitted of both murder and manslaughter and set free.

The verdict caused outcry in the Czech Republic, where it was interpreted as a sign that in the pre-Brexit UK, the lives of migrant workers from Central Europe were not given much weight. The Czech Ministry of Foreign Affairs issued a diplomatic note, in which it requested the documents related to the case and “assurance that the nationality /…/ had no influence on the judgment”. The Ministry furthermore announced that it would provide assistance to Makar’s sister, Adéla Makarová, in bringing the case to the ECHR. Makarová lodged the application to the Court on 4 September 2017. On 5 July 2018, the Court declared the application manifestly ill-founded and, hence, inadmissible.

ECHR Decision

The application relied on Articles 2 (right to life) and 13 (right to an effective remedy) of the European Convention on Human Rights. With respect to the former, the applicant argued that the UK (i.e. England and Wales) criminal system exhibited structural deficiencies in that: a) the proceedings failed to produce clear reasons for the defendant´s acquittal; b) the UK test for self-defence allowed instances of unlawful killing to go unpunished; c) the UK law did not criminalize intentional omissions to provide first aid. Alternatively, the applicant argued that a proper application of the domestic could not have led the jurors to the conclusion they had reached. With respect to Article 13, the applicant complained about the absence of an appeal against an acquittal by a jury in criminal proceedings.

The Court rejected all these arguments. It concluded that the UK satisfied the procedural obligation under Article 2(1), because: a) the Convention does not require jurors to give reasons for their decision; b) the subjective test of self-defence used in the UK does not violate Article 2;c) Article 2 does not impose a positive obligation to criminalise intentional omissions. As to the alternative argument, the Court repeated that there had been sufficient safeguards against arbitrariness.

With respect to Article 13, the Court simply recalled that this provision only applied where an individual had an arguable claim to be the victim of a violation of a Convention right. Since the Court already found the applicant’s complaint under Article 2 manifestly ill-founded, there was no such arguable claim and the complaint under Article 13 was declared manifestly ill-founded as well.

Is the Manifest Unfoundedness So Manifest?

The decision is not surprising. Nor is it, from a formal point of view, necessarily incorrect. The Court, to a large extent, relied on its previous case-law (or the absence thereof) pertaining to the positive obligations under Article 2, the right to self-defence, the trial by jury and the criminalization of omission. The existence (or non-existence) of this case-law also allowed the Court to deal with the arguments raised in the application in a rather cursory way. One may wonder whether the circumstances of the case and the differences between it and the cases invoked in the decision did not call for a somewhat different approach and whether, as a minimum, the Court should not have been more nuanced in its analysis and also more detailed on some aspects of the case. I will focus on two such aspects.

Criminalization of Omission

The first, a relatively minor one, concerns the criminalization of omission. In the Relevant domestic law and practice section, the Court notes that “/i/n general, criminal liability does not arise under common law in respect of a failure to act so as to prevent or avert harm to other individuals”(par. 16) but that “criminal liability for an omission may be imposed where there is a duty to act”(par. 17). In the Law section, it repeats that “there may be limited circumstances where a defendant may be guilty of manslaughter by omission”but adds that “notwithstanding, there is no precedent in the Court’s case-law to the effect that Article 2 imposes such a positive obligation to criminalise intentional omissions” (par. 33).

The conclusion that Article 2 does not impose an obligation to criminalize omissions may be indeed true. It is however questionable whether this can be established relying only and solely on the absence of precedents in the Court´s case-law.  This is not the first time when the Court uses the formulation (see the Grand Chamber decision in Demopoulos and Others v. Turkey). Yet, and leaving aside the debate about the precedential value of the ECHR decisions, in these other cases, it was just one argument among other, invoked after a thorough discussion of the question at hand. In Makarová, there is no such discussion and, in fact, no other arguments. Nor does the Court provide any references to previous cases in which this or a similar issue would have been discussed (such as the Calvelli and Ciglio v. Italy Case).

This is all the more surprising provided that at least some scholars (see here) argue that the criminalization of omissions in cases, when a legal duty to act exists, has already acquired the status of a general principle of law (under international criminal law). While this argument is open for contention and while it does not necessarily entail that the lack of criminalization of omissions, all the more in case of common crimes, amounts to a human rights violation, one would expect the Court to pay some attention to it or to explain why it does not need to do so. Demonstrating for instance, that there is no common European standard in this area, would be more convincing than just stating that the obligation does not exist merely because the Court has never said it does.

Standards for Self-Defence and for the Trial by Jury

The second, major, aspect relates to the very thrust of the case. After all, the applicant’s main claim was not that Scully could not be held liable for his failure to provide help to Makar, because the UK law did not criminalize omission. Her main claim was that Scully was acquitted, despite the fact that the UK law criminalized both murder and manslaughter.

At this place, it is important to recall that, as readers of the EJILTalk certainly know (but others may not), the ECHR is not a court of the fourth instance. It therefore cannot engage in the substantive review of the case. As the Court itself put it, “it is not /its/function /…/ to deal with errors of fact or law committed by a domestic court, or indeed to question the guilt or innocence of an accused” (par. 35).Its function is to consider whether, again in the Court’s own words, “the criminal trial /or/ the final outcome could be considered to be manifestly arbitrary” (par. 35). In the case at hand, the Court concluded, after a rather brief analysis, that this was not so. This conclusion, however, invites some comments.

The UK, as stated above, uses the subjective test of (putative) self-defence. Under this test, self-defence can be claimed when the person honestly believed in the self-defence situation regardless of whether this belief was objectively reasonable (see par. 248 Armani Da Silva). In his excellent post, Jan Hessbruegge criticized the application of this test in cases involving the responsibility of States for acts of killing done by their agents. The test is for him not problematic in cases involving individual criminal responsibility at the domestic level. Although he focuses on acts done by police agents, who have a special duty to protect the inhabitants, the argument would most probably hold for acts of private individuals, who have no such duty, as well. The argument is not implausible and thus, unsurprisingly, the Court relied on it in Makarová, though without any nuance (simply invoking Armani Da Silva).

The Court also relied on its previous case-law (Saric v. Denmark and Tacquet v. Belgium) when commenting on the lack of the requirement for jurors to give reasons in their decisions. In Tacquet, the Court stated very clearly that “the Convention does not require jurors to give reasons for their decision” (par. 90). It nonetheless added that “the Court’s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused /and indeed the public– par. 90/ to understand why he was found guilty” (par. 93).

In Tacquet, the Court found that this condition was not met, because, inter alia, the jury was provided with imprecise questions to guide its work and the applicant thus “was not afforded safeguards enabling him to understand why he was found guilty” (par. 100). In Makarová, on the contrary, the condition was allegedly met. The jurors were provided with legal guidance and “the applicant could have been in no doubt that the lay jury did not accept that R.S was guilty of murder or manslaughter” (par. 31). It is interesting to note that at this stage, the Court seems to be moving from the Tacquet standard. The focus is no longer on whether the accused and the public could understand why he was or was not found guilty but on whether they could understand that he was or was not found guilty.

Yet, even if the why standard was applied, the outcome would most probably be the same. When assessing the existence of sufficient safeguards against arbitrariness, the Court uses a procedural approach. The mere fact that the jurors are provided with clear legal guidelines, is seen as an adequate guarantee against arbitrariness. This may seem logical, provided that the Court is not there to review the case on its merit and that any criminal law system has to be based on a basic trust in the honesty and integrity of those who decide. One may nonetheless ask whether (at least) in cases involving putative self-defence, the expectations of trust do not go a bit too far.

In these cases, the jury needs to establish whether it believes that the accused believed he was under imminent threat. The latter belief does not need to correspond to any criterion of objective reasonableness, the former does not need to be justified. In cases where the verdict is prima facie at odds with virtually all the available evidence, as in Makarová, the accused and the public may only hope (and believe on their turn) that the jury had valid reasons to reach this verdict and that factors such as the nationality of the victim and the accused did not play any role. Yet, there is no way to verify this and no way to have the verdict challenged. With all these elements assessed together, I am not sure the existence of sufficient safeguards against arbitrariness in the case at hand, and in other similar cases, is so manifest so that it, on itself, does not require almost any justification either.