STRASBOURG'S U-TURN ON INDEPENDENCE AS PART OF AN EFFECTIVE INVESTIGATION UNDER ARTICLE 2

Extract

AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunç and Fecire Tunç (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunç that the issue of independence under Article 2 was addressed head-on.