It had already been stressed that at the very beginning of developing the concept of positive procedural obligations deriving from article 2 of the Convention, it was constructed on the basis of article 2 read together with article 1 (which guarantees securing the rights and freedoms set in Convention to everyone within the jurisdiction of State-Party). Naturally, with further development of ECHR case-law, the Court found that state’s positive procedural obligations derive from the very essence of article 2 of the Convention itself, leading to dividing alleged violations of article 2 into material and procedural sphere.
As to article 13 of the Convention, it should be mentioned that together with articles 2 and 3 it creates common positive procedural obligations, which fulfills the standards set within the material sphere of these rights. The basic positive obligation is to prevent the violations of rights set in articles 2 and 3.5
As to the article 13 itself, it states that: Everyone whose rights and freedoms as set forth in the Convention are violated shall have an
57 Ibidem, § 97.
5 M. balcerzak, Prawo do skutecznego środka prawnego, b. gronowska, T. Jasudowicz, M. balcerzak, M. Lubiszewski, R. Mizerski, Prawa człowieka i ich ochrona, Toruń 2010, p. 342.
effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
The right to effective remedy has strictly procedural character and it’s not an autonomous right within the meaning of the Convention.
It always has to be used with other rights or freedoms set in the Convention.
Together with articles 2 and 3 it creates a procedural support to material protection of the right to life and prohibition of torture, inhuman or degrading treatment or punishment. In Ergi v. Turkey, the Court decided that the Commission recalled its finding that the absence of any adequate and effective investigation into the killing of Havva Ergi constituted a breach of article 2 of the Convention. Since this matter also underlay the applicant’s complaints under article 13 of the Convention, the Court found it unnecessary to examine them separately.59
Also, the Court recalled that article 13 of the Convention guarantees the availability at the national level of a remedy to enforced the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of article 13 is to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although states are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities of the respondent state.60
State’s positive procedural obligations deriving from article 2 read together with article 13 of the Convention are definitely broader than mere obligation to conduct an effective official investigation capable of finding the responsible and bringing them to justice.
59 ECHR judgment Ergi v. Turkey, 28.7.1998, appl. no. 23818/94, § 93.
60 Ibidem, § 96.
As the ECHR stated that the nature of the right which the authorities were alleged to have violated in the instant case, one of the most fundamental in the scheme of the Convention, must have implications for the nature of the remedies which must be guaranteed for the benefit of the relatives of the victim. In particular, the notion of an effective remedy for the purposes of article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure. Seen in these terms the requirements of article 13 are broader than a Contracting State’s procedural obligation under article 2 to conduct an effective investigation.61
The above clearly shows that state’s positive procedural obligation in this respect also entails the necessity of proper compensation and guaranteeing the effective remedy within domestic legal system also to the relatives of the deceased. This was clearly underlined by the Court in case of Mahmut Kaya v. Turkey. ECHR recalled that article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this article is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent state. Article 13 also requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the
61 Ibidem, § 98.
deprivation of life and including effective access for the complainant to the investigation procedure.62
5. Summary
The main aim of this article wasn’t, by any means, to exhaustively present all the issues concerning procedural limb of article 2 of the Convention, but to present some of the most important procedural aspects of positive obligations deriving from article 2.
In Court’s view, article 2 constructs one of the most fundamental guarantees – the right to life. As it was stressed in this article it is not enough to merely protect the right to life. It also requires undertaking positive procedural actions. The practical and effective protection of right to life should be – first of all – based on legal and procedural guarantees within the legal system of a State-Party. That is the reason why states should, by all means, concern on practical (and procedural) guarantees within their legal systems.
It is important to stress that the procedural positive obligations within article 2 are still developing, which was proven by Strasbourg case-law. It is also crucial that States-Parties to the Convention are aware of those obligations and that they would satisfy the requirements stressed by the Court.
62 ECHR judgment Mahmut Kaya v. Turkey, 28.3.2000, appl. no. 22535/93, § 124.
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Zobowiązania pozytywne państwa dotyczące art. 2 EKPC.