İLHAN v. TURKEY JUDGMENT
19
74. The text of Article 2, read as a whole, demonstrates that it covers not
only intentional killing but also the situations where it is permitted to “use
force” which may result, as an unintended outcome, in the deprivation of
life. The deliberate or intended use of lethal force is only one factor,
however, to be taken into account in assessing its necessity. Any use of
force must be no more than “absolutely necessary” for the achievement of
one or more of the purposes set out in sub-paragraphs (a) to (c). This term
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 paragraphs 2 of Articles
8 to 11 of the Convention. Consequently, the force used must be strictly
proportionate to the achievement of the permitted aims (see the McCann
and Others judgment cited above, p. 46, §§ 148-49).
75. The Court recalls that in the present case the force used against
Abdüllatif İlhan was not in the event lethal. This does not exclude an
examination of the applicant's complaints under Article 2. It may be
observed that in three previous cases the Court has examined complaints
under this provision where the alleged victim had not died as a result of the
impugned conduct.
In Osman v. the United Kingdom (judgment of 28 October 1998, Reports
1998-VIII, pp. 3159-63, §§ 115-22), the applicant, Ahmet Osman, had been
shot and seriously injured when a man fired a shotgun at close range at him
and his father. His father had died. The Court concluded on the facts of that
case that the United Kingdom authorities had not failed in any positive
obligation under Article 2 to provide protection of their right to life within
the meaning of the first sentence of Article 2. In the Yaşa case (judgment
cited above, pp. 2436-41, §§ 92-108), the applicant was shot in the street by
an unknown gunman, receiving eight bullet wounds but surviving. The
Court, finding that the authorities had not failed to protect the applicant's
life, held nonetheless that they had failed to comply with the procedural
obligation under Article 2 to conduct an effective investigation into the
attack. In L.C.B. v. the United Kingdom (judgment of 9 June 1998, Reports
1998-III, pp. 1403-04, §§ 36-41), where the applicant, who suffered from
leukaemia, was the daughter of a soldier who had been on Christmas Island
during the United Kingdom's nuclear tests, the Court noted that it was not
suggested that the State had intentionally sought to deprive her of her life
but examined under Article 2 whether the State had done all that could have
been required of it to prevent the applicant's life from being avoidably put at
risk. It found that the State had not failed in this regard.
76. The Court observes that these three cases concerned the positive
obligation on the State to protect the life of the individual from third parties
or from the risk of illness under the first sentence of Article 2 § 1. It
considers, however, that it is only in exceptional circumstances that physical
ill-treatment by State officials which does not result in death may disclose a