McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
38
148. The Court considers that the exceptions delineated in paragraph 2
(art. 2-2) indicate that this provision (art. 2-2) extends to, but is not
concerned exclusively with, intentional killing. As the Commission has
pointed out, the text of Article 2 (art. 2), read as a whole, demonstrates that
paragraph 2 (art. 2-2) does not primarily define instances where it is
permitted intentionally to kill an individual, but describes the situations
where it is permitted to "use force" which may result, as an unintended
outcome, in the deprivation of life. The use of force, however, must be no
more than "absolutely necessary" for the achievement of one of the
purposes set out in sub-paragraphs (a), (b) or (c) (art. 2-2-a, art. 2-2-b, art. 22-c) (see application no. 10044/82, Stewart v. the United Kingdom, 10 July
1984, Decisions and Reports 39, pp. 169-71).
149. In this respect the use of the term "absolutely necessary" in Article 2
para. 2 (art. 2-2) indicates that a stricter and more compelling test of
necessity must be employed from that normally applicable when
determining whether State action is "necessary in a democratic society"
under paragraph 2 of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2)
of the Convention. In particular, the force used must be strictly
proportionate to the achievement of the aims set out in sub-paragraphs 2 (a),
(b) and (c) of Article 2 (art. 2-2-a-b-c).
150. In keeping with the importance of this provision (art. 2) in a
democratic society, the Court must, in making its assessment, subject
deprivations of life to the most careful scrutiny, particularly where
deliberate lethal force is used, taking into consideration not only the actions
of the agents of the State who actually administer the force but also all the
surrounding circumstances including such matters as the planning and
control of the actions under examination.
2. The obligation to protect life in Article 2 para. 1 (art. 2-1)
(a) Compatibility of national law and practice with Article 2 (art. 2) standards
151. The applicants submitted under this head that Article 2 para. 1
(art. 2-1) of the Convention imposed a positive duty on States to "protect"
life. In particular, the national law must strictly control and limit the
circumstances in which a person may be deprived of his life by agents of the
State. The State must also give appropriate training, instructions and
briefing to its soldiers and other agents who may use force and exercise
strict control over any operations which may involve the use of lethal force.
In their view, the relevant domestic law was vague and general and did
not encompass the Article 2 (art. 2) standard of absolute necessity. This in
itself constituted a violation of Article 2 para. 1 (art. 2-1). There was also a
violation of this provision (art. 2-1) in that the law did not require that the
agents of the State be trained in accordance with the strict standards of
Article 2 para. 1 (art. 2-1).