Investigations under Article 2 of the European Convention on Human Rights right to life Analysis of state procedural obligation after Swedish police officerrsquos use of firearm

with a lethal outcome

Katarina Flygare

Department of Law Thesis 30 HE Public International Law Spring term 2019 Supervisor Mark Klamberg Engelsk titel

3

Abstract

The purpose of this essay is to explore the reach of international law into national law from a Swedish perspective with a focus on the procedural limb under Article 2 right to life of the European Convention on Human Rights The procedural limb as separated from its substantial limb was created by the European Court of Human Rights and is refined from time to time in its case-law This creates an obligation to follow the requirements under international law when conducting the preliminary investigations Investigations where police officers during routine operations used firearms to aim and shoot with a lethal outcome For the legal analysis the material consulted is the applicable case-law European Court of Human Rights As noted by the judges in a joint dissenting opinion of judges Karakas Wojtyczek and Dedov in the case of Armani da Silva v the United Kingdom appl no 587808 ECtHR judgement 30 March 2016 para 4 ldquoSubstantive criminal law by defining specific offences indicate the exact purpose of an investigation into a personrsquos death and in particular determines the specific issue which has to be investigated Therefore the quality of the investigation depends first a foremost on the quality of the substantive law ldquo The conclusion from the analysed investigations shows several shortcomings regarding the standards set by the European Court of Human Rights The absence of a thorough interrogation exploring how the police officer in question reasoned during the circumstances leading up to the incident and which alternatives could have been possible instead is most likely due to the provisions in the Swedish substantive law which puts the responsibility of when it is absolutely necessary to use a firearm with the risk of causing bodily harm or loss of life directly on the individual police officer Nine out of ten shootings were explained and defended by the use of self-defence The findings also indicate a need for more public scrutiny and a better access for next-of-kin and in these cases always with a legal counsel Finally the scope of the Independent Authority is discussed with the aim to learn from the tragic cases what can be done differently in future similar incidents

Abbreviations

Convention States State ECHR The European Convention on Human Rights ECtHR The European Court of Human Rights Grand Chamber GC

7

Introduction

Abstract 3

Abbreviations 5

1 Introduction 9 11 The protection of right to life 9 12 Starting point purpose and research question 11 13 Methodology and material 12 14 Limitations 13 15 Outline 13

2 The European Convention on Human Rights 14 21 The mission ndash the protection of Human Rights 14

211 The substantial limb the accepted use of lethal force 15 212 The procedural limb the obligation to investigate 15 213 The interrelation between the limbs under Article 2 15

22 The means case-law from a plurality 16 221 Impartial judges defending human rights 16 222 Case-law of special interest for this essay 17 223 General implication of case-law on state level 19

23 The nature of the procedural obligation 20 231 Origin form and scope 20 232 The required standards for the investigation 21

24 Resources and development 22 241 Resources from the inside 22 242 Voices from legal scholars 23

3 Implementation in a Swedish context 25 31 General considerations 25 32 The Swedish Police Authority 26

321 The Swedish model for an independent authority 28 322 Legal framework for the use of firearms 29

4 Findings from case study 31 41 Accounts from ten Swedish investigations 31 42 A single case brought to court and public scrutiny 39

421 Actions from the public and newspaper interest 39

422 The procedural limb ndash state investigation 39 423 Public prosecution and judicial proceedings 43

5 Analysis 46 51 The standards for an effective investigation 46

511 Independence 46 512 Adequacy 50 513 Promptness and reasonable expedition 56 514 The participation of the next-of-kin 57 515 Public scrutiny 58

52 Eric Torell and adjudication in Court 60

6 Reflections and Conclusion 61 61 Conclusion 61 62 Reflections 65

Sources 68

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

3

Abstract

The purpose of this essay is to explore the reach of international law into national law from a Swedish perspective with a focus on the procedural limb under Article 2 right to life of the European Convention on Human Rights The procedural limb as separated from its substantial limb was created by the European Court of Human Rights and is refined from time to time in its case-law This creates an obligation to follow the requirements under international law when conducting the preliminary investigations Investigations where police officers during routine operations used firearms to aim and shoot with a lethal outcome For the legal analysis the material consulted is the applicable case-law European Court of Human Rights As noted by the judges in a joint dissenting opinion of judges Karakas Wojtyczek and Dedov in the case of Armani da Silva v the United Kingdom appl no 587808 ECtHR judgement 30 March 2016 para 4 ldquoSubstantive criminal law by defining specific offences indicate the exact purpose of an investigation into a personrsquos death and in particular determines the specific issue which has to be investigated Therefore the quality of the investigation depends first a foremost on the quality of the substantive law ldquo The conclusion from the analysed investigations shows several shortcomings regarding the standards set by the European Court of Human Rights The absence of a thorough interrogation exploring how the police officer in question reasoned during the circumstances leading up to the incident and which alternatives could have been possible instead is most likely due to the provisions in the Swedish substantive law which puts the responsibility of when it is absolutely necessary to use a firearm with the risk of causing bodily harm or loss of life directly on the individual police officer Nine out of ten shootings were explained and defended by the use of self-defence The findings also indicate a need for more public scrutiny and a better access for next-of-kin and in these cases always with a legal counsel Finally the scope of the Independent Authority is discussed with the aim to learn from the tragic cases what can be done differently in future similar incidents

Abbreviations

Convention States State ECHR The European Convention on Human Rights ECtHR The European Court of Human Rights Grand Chamber GC

7

Introduction

Abstract 3

Abbreviations 5

1 Introduction 9 11 The protection of right to life 9 12 Starting point purpose and research question 11 13 Methodology and material 12 14 Limitations 13 15 Outline 13

2 The European Convention on Human Rights 14 21 The mission ndash the protection of Human Rights 14

211 The substantial limb the accepted use of lethal force 15 212 The procedural limb the obligation to investigate 15 213 The interrelation between the limbs under Article 2 15

22 The means case-law from a plurality 16 221 Impartial judges defending human rights 16 222 Case-law of special interest for this essay 17 223 General implication of case-law on state level 19

23 The nature of the procedural obligation 20 231 Origin form and scope 20 232 The required standards for the investigation 21

24 Resources and development 22 241 Resources from the inside 22 242 Voices from legal scholars 23

3 Implementation in a Swedish context 25 31 General considerations 25 32 The Swedish Police Authority 26

321 The Swedish model for an independent authority 28 322 Legal framework for the use of firearms 29

4 Findings from case study 31 41 Accounts from ten Swedish investigations 31 42 A single case brought to court and public scrutiny 39

421 Actions from the public and newspaper interest 39

422 The procedural limb ndash state investigation 39 423 Public prosecution and judicial proceedings 43

5 Analysis 46 51 The standards for an effective investigation 46

511 Independence 46 512 Adequacy 50 513 Promptness and reasonable expedition 56 514 The participation of the next-of-kin 57 515 Public scrutiny 58

52 Eric Torell and adjudication in Court 60

6 Reflections and Conclusion 61 61 Conclusion 61 62 Reflections 65

Sources 68

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

Abbreviations

Convention States State ECHR The European Convention on Human Rights ECtHR The European Court of Human Rights Grand Chamber GC

7

Introduction

Abstract 3

Abbreviations 5

1 Introduction 9 11 The protection of right to life 9 12 Starting point purpose and research question 11 13 Methodology and material 12 14 Limitations 13 15 Outline 13

2 The European Convention on Human Rights 14 21 The mission ndash the protection of Human Rights 14

211 The substantial limb the accepted use of lethal force 15 212 The procedural limb the obligation to investigate 15 213 The interrelation between the limbs under Article 2 15

22 The means case-law from a plurality 16 221 Impartial judges defending human rights 16 222 Case-law of special interest for this essay 17 223 General implication of case-law on state level 19

23 The nature of the procedural obligation 20 231 Origin form and scope 20 232 The required standards for the investigation 21

24 Resources and development 22 241 Resources from the inside 22 242 Voices from legal scholars 23

3 Implementation in a Swedish context 25 31 General considerations 25 32 The Swedish Police Authority 26

321 The Swedish model for an independent authority 28 322 Legal framework for the use of firearms 29

4 Findings from case study 31 41 Accounts from ten Swedish investigations 31 42 A single case brought to court and public scrutiny 39

421 Actions from the public and newspaper interest 39

422 The procedural limb ndash state investigation 39 423 Public prosecution and judicial proceedings 43

5 Analysis 46 51 The standards for an effective investigation 46

511 Independence 46 512 Adequacy 50 513 Promptness and reasonable expedition 56 514 The participation of the next-of-kin 57 515 Public scrutiny 58

52 Eric Torell and adjudication in Court 60

6 Reflections and Conclusion 61 61 Conclusion 61 62 Reflections 65

Sources 68

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

7

Introduction

Abstract 3

Abbreviations 5

1 Introduction 9 11 The protection of right to life 9 12 Starting point purpose and research question 11 13 Methodology and material 12 14 Limitations 13 15 Outline 13

2 The European Convention on Human Rights 14 21 The mission ndash the protection of Human Rights 14

211 The substantial limb the accepted use of lethal force 15 212 The procedural limb the obligation to investigate 15 213 The interrelation between the limbs under Article 2 15

22 The means case-law from a plurality 16 221 Impartial judges defending human rights 16 222 Case-law of special interest for this essay 17 223 General implication of case-law on state level 19

23 The nature of the procedural obligation 20 231 Origin form and scope 20 232 The required standards for the investigation 21

24 Resources and development 22 241 Resources from the inside 22 242 Voices from legal scholars 23

3 Implementation in a Swedish context 25 31 General considerations 25 32 The Swedish Police Authority 26

321 The Swedish model for an independent authority 28 322 Legal framework for the use of firearms 29

4 Findings from case study 31 41 Accounts from ten Swedish investigations 31 42 A single case brought to court and public scrutiny 39

421 Actions from the public and newspaper interest 39

422 The procedural limb ndash state investigation 39 423 Public prosecution and judicial proceedings 43

5 Analysis 46 51 The standards for an effective investigation 46

511 Independence 46 512 Adequacy 50 513 Promptness and reasonable expedition 56 514 The participation of the next-of-kin 57 515 Public scrutiny 58

52 Eric Torell and adjudication in Court 60

6 Reflections and Conclusion 61 61 Conclusion 61 62 Reflections 65

Sources 68

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

422 The procedural limb ndash state investigation 39 423 Public prosecution and judicial proceedings 43

5 Analysis 46 51 The standards for an effective investigation 46

511 Independence 46 512 Adequacy 50 513 Promptness and reasonable expedition 56 514 The participation of the next-of-kin 57 515 Public scrutiny 58

52 Eric Torell and adjudication in Court 60

6 Reflections and Conclusion 61 61 Conclusion 61 62 Reflections 65

Sources 68

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

9

1 Introduction

11 The protection of right to life

In the early morning hours on 2 August 2018 in central Stockholm Eric Torell 1 lost his life at the hands of the police Eric was a twenty-year old man with severe intellectual disabilities could not speak and had visible physical characteristics from a genetic disposition Downs Syndrome He was out walking the streets carrying a toy weapon made of plastic In recent years Sweden has had a growing number of deaths caused by the use of firearms from routine police operations2 In a report from the Swedish Police Authority there were twenty incidents with a deadly outcome caused by the use of police officers discharging their firearms between 2010ndash2018 and as many as six incidents in 20183 Only one case out of the ten incidents included in this essay Eric Torell led to public scrutiny in a judicial process in district Court Under International law and Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)4 the State is required to secure the rights to everyone within its jurisdiction The right to life being one of the most fundamental human rights and only possible to enjoy and exercise other human rights when one is alive enshrines one of the basic values of the democratic societies making up the Council of Europe5 The scope of the

1 K 0150-K3191-18 Eric Torell Stockholms tingsraumltt B 10655-18 Dom meddelad 3 oktober 2019

2 Jurisconsult at Council of EuropeEuropean Court of Human Rights Guide on Article 2 of the

European Convention on Human Rights Right to life updated on 31 December 2019 lt

httpsechrcoeintDocumentsGuide_Art_2_ENGpdfgt High expectance on the states to set

high professional standards with their law-enforcement systems and ensure that law-enforcement

officers meet the requisite criteria In particular when equipping police forces with firearms The

ECtHR distinguish between routine police operations and situations of large-scale terrorist

operations paras 79- 84 3Nationella operativa avdelningen Polismyndigheten Polismyndighetens anvaumlndning av saumlrskilda hjaumllpmedel foumlr varingldsanvaumlndning 25 April 2019 available at lt httpspolisensesiteassetsdokumentovriga_rapporterpolisens-valdshjalpmedel-1990-2018-externpdf gt Due to lack of reporting to the national authority figures from the National Board of forensic medicine are used in this essay there were nine deaths between 2000-2009 and twenty between 2010-2018 p 16(29)

4 Council of Europe European treaty Series ETS No 5 Convention for the Protection of

Human Rights and Fundamental Freedoms 4 November 1950 available atlt

httpswwwcoeintenwebconventionsfull-list-conventionstreaty005gt

5 Mc Cann and Others v the United Kingdom (GC) ECtHR applno 1898491 judgement 27

September 1995 para 147 soldiers killing pedestrians believing they were terrorists with a potential

bomb

10

right to life is wide and encompassing several situations6 As argued by Stephen Skinner7 the overarching significance of the body of law on Article 2 is to outline a set of attributes that a democratic society and within it a democratic state should have according to the understanding of ECtHR This has according to Skinner resulted in an outline of democratic society as a restrained responsible and reflective system Public authorities must not only refrain from arbitrary interference with the rights protected the negative obligation but they also have positive obligations The Swedish legal scholar Dennis Toumlllborg criticize Sweden for lacking in transparency as he claims is the genesis of a democracy governed by law8 Stefan Holgersson as a police officer and scholar discuss in a research report the lack of reflective intitatives regarding inter alia education training of police officers in the Police Authority also being the owner of the problems regarding police officers use of violence and how they act9 The police force and the rule of law in Sweden holds a key position to safeguard the human rights for every individual protected under the ECHR That said policing is indispensable for the effective protection of human rights and a crucial component in the rule of law Policing may unfortunately always include risks for human rights violation10 The regulation and control of policing has traditionally been seen as solely an internal matter for every sovereign state but this was altered by the creation of individual human rights and the international mechanism of human rights protection like the European Court of Human Rights (ECtHR) When it comes to the problem with excessive and unjustified use of force by police and other law enforcement agencies throughout Europe this is reported to be ongoing albeit the ECtHR case-law Violations of European standards is by no means restricted to certain countries The belief is that in recognition of the importance of this issue the use of force by the police is regulated strictly by national and international law11 The ECtHR has repeatedly held that the procedural obligation of the State under Article 2 to conduct a thorough official effective and prompt investigation when individuals have been killed as a result of the use of force cannot be substituted by the payments of damages or criminal of legal entities12

6 Guide on Article 2 supra note 2 7 Stephen Skinner Lethal Force the Right to life and the ECHR- narratives of Death and Democracy Oxford

Hart Publishing 2019 p 167

8 Dennis Toumlllborg I mitt hjaumlrta bor fortfarande en femaringring 1 Raumltts- och vetenskapsteori Goumlteborg

Goumlteborgs Handels och sjoumlfartstidning 2018 p 249 ndash 250

9 Stefan Holgersson Justitieministern ldquoSaumltta haringrt mot haringrtrdquo En studie av polisens anvaumlndning av

varingld och foumlrmaringga att hantera konflikter Center for Advanced Research in Emergency Response

[CARER] Linkoumlping University Electronic Press 2018 lt

httpurnkbseresolveurn=urnnbnseliudiva-153299gt p 129 checked May 15 2020 10 Public Relations Unit European Court of Human Rights Overview 1957-219 ECHR February

2020 lt httpswwwechrcoeintDocumentsStats_violation_1959_2019_ENGpdf gt Checked 16 May 2020 p 8-9 11 Jim Murdock Ralph Rocke The European Convention on Human Rights and Policing A handbook

for police officers and other law enforcement officials Council of Europe Publishing 2013 p 43

12 Armani da Silva v the United Kingdom [GC] ECtHR applno 587808 judgement 30 March 2016

para 285 regarding convictions for institutional failures within the police organization In a joint

11

The ECtHR has confirmed than an action for damages either to provide redress for a death or for a breach of an official obligation during the related investigation is not capable without the benefit of the conclusions of a criminal investigation of making any findings as to the identity of the perpetrators and still less of establishing their responsibility13 The implementation of the ECHR at the national level remains among the main challenges for the realizations of the protection of human rights in all the states under ECHR States are indeed under the duty to secure rights through adopting an adequate legal framework14

12 Starting point purpose and research question

The procedural obligations of the State was first formulated in the context of the use of lethal force by State agents where the ECtHR held that a general probation 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 authorities15 The nature and the scope of the procedural obligations under Article 2 of the ECHR is to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention suppression and punishment of breaches of those provisions16 Through the study of ten Swedish post-death investigations from the use of firearms by police officers this essay will explore the reach of international law into the Swedish legal system The following research questions will be examined

bull How well does Sweden fulfill its procedural obligations under Article 2

after a death caused by the use of firearms by police officer

bull Why is it important from a human rights perspective to examine the

content and scope of the procedural obligations in a Swedish context

bull What is the relation between the procedural limb and the substantial

limb of Article 2

dissenting opinion of judges Karakas Wojtyczek and Devod stressing the requirements from the

ECHR that the criminal law should provide for the punishment of individuals They comment the

present case that criminal liability of legal entities never can replace criminal liability of individuals

arguing that gross negligence on the part of a legal entity always stems from the misconduct of

specific individuals para 8

13 Fountas v Greece ECtHR appl no 5028313 judgement of 3 October 2019 para 19

14 See eg Soumlderman v Sweden [GC] ECtHR appl no 578608 judgement 12 November 2013 para

117 regarding violation of Article 8 for not providing for civil remedies protecting the civil right

secured by the ECHR

15 Mc Cann and Others v the United Kingdom supra note 5 para 161 16 Guide to article 2 supra note 2 124-126 the ECtHR has extended the scope to a variety of situations where and how an individual has sustained life-threatening injuries or died checked 17 May 2020

12

bull What can narrative analysis contribute to the understanding of

international law under the procedural limb of Article 2

13 Methodology and material

Under the traditional approach international law has three sources of law treaties international customary law and general principals of law The ECHR has been incorporated in Swedish law since 1995 The methodology in this study is doctrinal The doctrinal method can be described as the academic discipline dedicated to study law as a normative system limiting its data to legal texts and court decisions The doctrinal method has also been described as a hermeneutic discipline when interpreting texts and arguing a choice between diverging interpretations17 This essay is applying this research tradition focusing on the interpretation of the judgements delivered by the ECtHR when analysing ten Swedish investigations from events after the use of firearms with a lethal outcome Furthermore this essay will be drawing on narrative theory as a conceptual framework inspired by the use of narrative analysis from Stephen Skinner18 and Robert Cover A narrative reading will be used analysing the findings from the investigations As argued by Robert Cover in a normative world law and narrative are inseparably related19 An initial challenge in this essay was to find the number of deaths by the use of firearms shooting for effect from police officers With the search term how often do the police use firearm (hur ofta anvaumlnder polisen skjutvapen) on the website of the Police Authority emerge reference to a Q amp R informing the public when and why police use firearm20 The information does not include the growing number of fatal shootings by the police in the last decade A statistical report over the use of firearms were eventually found on the website of The Swedish Police Authority21 Access to the investigation files was possible by the use of the right to access of public records by law The material was assessed for confidentiality reasons by officials police officers at the Special Investigations Department (Saumlrskilda utredningar SU)22 Some information data directives by prosecutor and statements from questionings were left out For the case Erci Torell all the records have been studied from the preliminary investigation by generosity from next-of-kin

17 M Van Hoecke Legal Doctrine Which Method(s) for What Kind of Discipline in M Van

Hoecke (ed) Methodologies of Legal Research Oxford Hart Publishing 2011 14

18 Skinner Supra note 7 p 3 19 Robert M Cover Forwords and Narrative Harward Law Review 41983 p 4 (1-68) 20 Polismyndigheten Hur ofta anvaumlnder polisen vapenlt httpspolisenseom-polisenpolisens-arbetepolisens-befogenheterhur-ofta-anvander-polisen-skjutvapengt

21 Polismyndigheten Nationella Operativa Avdelningen supra note 3 p 16 (29)

22 Further explained in section 321

12

bull What can narrative analysis contribute to the understanding of

international law under the procedural limb of Article 2

13 Methodology and material

Under the traditional approach international law has three sources of law treaties international customary law and general principals of law The ECHR has been incorporated in Swedish law since 1995 The methodology in this study is doctrinal The doctrinal method can be described as the academic discipline dedicated to study law as a normative system limiting its data to legal texts and court decisions The doctrinal method has also been described as a hermeneutic discipline when interpreting texts and arguing a choice between diverging interpretations17 This essay is applying this research tradition focusing on the interpretation of the judgements delivered by the ECtHR when analysing ten Swedish investigations from events after the use of firearms with a lethal outcome Furthermore this essay will be drawing on narrative theory as a conceptual framework inspired by the use of narrative analysis from Stephen Skinner18 and Robert Cover A narrative reading will be used analysing the findings from the investigations As argued by Robert Cover in a normative world law and narrative are inseparably related19 An initial challenge in this essay was to find the number of deaths by the use of firearms shooting for effect from police officers With the search term how often do the police use firearm (hur ofta anvaumlnder polisen skjutvapen) on the website of the Police Authority emerge reference to a Q amp R informing the public when and why police use firearm20 The information does not include the growing number of fatal shootings by the police in the last decade A statistical report over the use of firearms were eventually found on the website of The Swedish Police Authority21 Access to the investigation files was possible by the use of the right to access of public records by law The material was assessed for confidentiality reasons by officials police officers at the Special Investigations Department (Saumlrskilda utredningar SU)22 Some information data directives by prosecutor and statements from questionings were left out For the case Erci Torell all the records have been studied from the preliminary investigation by generosity from next-of-kin

17 M Van Hoecke Legal Doctrine Which Method(s) for What Kind of Discipline in M Van

Hoecke (ed) Methodologies of Legal Research Oxford Hart Publishing 2011 14

18 Skinner Supra note 7 p 3 19 Robert M Cover Forwords and Narrative Harward Law Review 41983 p 4 (1-68) 20 Polismyndigheten Hur ofta anvaumlnder polisen vapenlt httpspolisenseom-polisenpolisens-arbetepolisens-befogenheterhur-ofta-anvander-polisen-skjutvapengt

21 Polismyndigheten Nationella Operativa Avdelningen supra note 3 p 16 (29)

22 Further explained in section 321

13

14 Limitations

This essay will focus on the procedural obligations and only briefly touch on the substantial limb of Article 2 Due to the time limitations for this essay the case study includes the ten lethal incidents from police shootings aiming to effect during the years 2016-2019 These cases are chosen as the State as the protector of everyonersquos life cannot undo what has been done but an investigation may give next-of-kin a closure There is no way to compensate a person being deliberately deprived of his or her life by a state agent in use of firearm The nature and extent of any subsequent investigation required by the procedural obligation will inevitably depend on the circumstances The investigations into these cases must therefore be of the highest priority when the State on its own motion is fulfilling its obligation The findings from the case study are limited depending on what documents and data are by official rulings considered public documents Disciplinary proceedings are not included in the analysis as these are not included in the investigation files No disciplinary actions were taken against the police officers involved in the shootings by the State in neither of the cases from the study23

15 Outline

The second chapter gives an introduction to the ECHR mission to protect the right to life for everyone the means to enforce the mission introducing the legal reasoning from the ECtHR through its case-law and thoughts from engaging legal scholars The third chapter will give an overview of the Swedish administrative framework the scope and work at the independent authority established to comply with the procedural obligation under Article 2 as well as relevant domestic law regarding the use of firearm The fourth chapter will present accounts from the studied material of nine investigations files from visits at Special Investigation Department (SU) and one complete file received from next-of-kin In each case there will be a section describing the circumstances that led up to the fatal shooting and a section about findings from the post death investigation The fourth chapter will also include brief comments regarding the case Eric that was brought to court In the fifth chapter the findings from the case study are analysed based on relevant ECtHRrsquos case-law The final chapter holds conclusions from the posed research questions in section 12 and also include some reflections

23 Personalansvarsnaumlmnden (PAN) PolismyndighetenThe disciplinary rulings of based on the ten

investigations in the case study were checked by personal visit with officials from the Disciplinary

Board at the National Police Authority for an overview see yearly report for 2019

httpspolisensesiteassetsdokumentpolisens-arsredovisningpan-

verksamhetsrapporterpan-verksamhetsrapport-2019pdf checked May 17 2020

14

2 The European Convention on Human Rights

21 The mission ndash the protection of Human Rights

Article 2 in the ECHR reads as follows Article 2 of the Convention ldquo1 Everyonersquos 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 insurrectionrdquo

As one of the provisions in the ECHR that not only protects the rights to life but also lays down the circumstances under which one can be deprived of it article 2 is ranked as one of the most fundamental provisions in the ECHR and admits of no derogation under Article 15 It also enshrines one of the basic values of the democratic societies making up the Council of Europe24 The obligation of the state to protect the right to life is three-fold and it is divided into positive obligations and negative obligations the former comprising the obligation of the state to investigate deaths that occur under suspicious circumstances States of the ECHR are forbidden from depriving individuals of their lives if not absolutely necessary as it is a fundamental right by which an individual may claim any other right The primary guarantor for the rights contained in the ECHR lies not with the ECtHR but rather in the domestic arena with the domestic courts the legislature and the officials25 In the tragic event that a use of lethal force by police results in a death to any person there is a requirement of an effective investigation The crucial and

24 Mc Cann and Others v the United Kingdom supra note 5 para 147 25 See the European Convention on Human Rights as amended by the protocols entered into force especially article 13 regarding effective remedy before the national court at lt httpswwwechrcoeintDocumentsConvention_ENGpdfgt checked 17 May 2020