An Endeavor Towards More Situational Positive Obligations Stemming from Article 2: Case of Kotilainen and others v. Finland

Elina Pekkarinen is a university instructor and PhD candidate in Tampere University. Her dissertation concerns the contextual interpretation of rights laid down in the European Convention

Introduction

On 17 September 2020, the European Court of Human Rights delivered its judgement in the case of Kotilainen and others v. Finland (application no.62439/12). The ECtHR found that Finland had violated the substantive aspect of Article 2 of the European Convention on Human Rights when the local police refrained from seizing a weapon from a person who subsequently committed a school shooting. The Court was satisfied that the national authorities complied with the requirements emanating from the procedural aspect of Article 2. The rest of the applicants’ complaint, which concerned Articles 5, 6 and 13 of the Convention, was declared manifestly ill-founded.

In Kotilainen and others, the Court emphasised the duty of diligence which poses special obligations to national authorities when they are dealing with matters that include a particularly high risk to life. Moreover, the Court concluded that an obligation to uphold the legislation regulating the lawful possession of firearms does not only require, from the national authorities, that they intervene in activities where the risk to life is imminent, but also in activities that cause concrete suspicions about the compliance of requirements regarding the possession of a firearm.

Facts of the case

The case concerned a shooting in a vocational institute in Kauhajoki, which took place on the 23rd of September 2008. The applicants of the case were 19 relatives of individuals who were killed in the shooting.  The perpetrator, who was a 22-year-old student of the institute, took the lives of nine fellow students and one teacher. After the attack, the perpetrator killed himself. The shooting drew public attention both in Finland and abroad.

In June 2008, the perpetrator sought a license to acquire and carry a weapon at a local police station. In July 2008, the perpetrator sought help for panic and aggression attacks. He met with a psychologist as well as a nurse specialised in depression and was also prescribed medication for treatment of severe depression and panic attacks in August 2008. However, this was not known to the police at the time. After conducting an interview with the perpetrator, the Detective Chief Inspector granted him a permit to acquire a weapon in August 2008.

On Friday the 19 of September 2008, videos where the perpetrator was seen firing a weapon at a shooting range were discovered, as well as a lit grave candle in the proximity of the vocational institute. Moreover, the material posted on the internet included pictures in which the perpetrator was holding a handgun as well as texts in English about war and dying. This information was submitted to the police the same day.

The police officers familiarised themselves with the video material which was published under a pseudonym the perpetrator used. The video postings included only few textual elements without references to school shootings. However, the same pseudonym had also been used in a Finnish social media platform IRC-Galleria as a member of the community ‘Zero Hour: Massacre at Columbine High’. The perpetrator had commented that the movie was ‘entertainment at its best’. In light of the material, several police officers started to suspect that he might be planning on committing a school shooting. They contacted the replacement of the Detective Chief Inspector, as he was off duty that day, and requested permission, which was granted, to temporarily seize the perpetrator’s weapon. However, the police officers failed to reach the perpetrator, as he had left for the weekend to visit his hometown.

On Monday 22 September 2008, the Detective Chief Inspector acquainted himself with the material that was submitted to the police and was told about the observations made earlier. The Detective Chief Inspector called the perpetrator in for an interview the same afternoon.  The perpetrator indicated to the Detective Chief Inspector that the texts were references to the lyrics of a song by a given band.  The perpetrator was given a verbal warning, but the Detective Chief Inspector did not consider it necessary to seize the perpetrator’s gun at the time. After the decision, the police officers sent the Detective Chief Inspector three more IRC-Galleria pages.

On the morning of Tuesday 23September 2008, the shooting took place.  

Criminal proceedings were initiated towards the Detective Chief Inspector who had been responsible for the decisions concerning the licensing of the weapon used by the perpetrator. He was charged with negligent breach of an official duty by the public prosecutor and with the breach of an official duty as well as ten counts of grossly negligent homicide. The applicants also joined the charges brought by the public prosecutor and presented their compensation claims against the state. In the district court, the charges against the applicant were dismissed. However, the Court of Appeal found the Detective Chief Inspector guilty of negligent breach of an official duty, but dismissed other charges brought towards him.  The Supreme Court refused the leave to appeal.

Judgment

In light of the case as a whole, the Court considered the limits of positive obligations posed to the states with regard to right to life, and in more detail, regarding its substantive aspect.

The Court highlighted that an obligation to afford protection against a real and imminent risk of criminal acts emanating from an individual may arise towards members of the public. The obligation to afford general protection to society relates to – using the Court’s own conceptual choice – duty of diligence. (§ 70).  However, in order for a positive obligation to protect the public from a potentially lethal act to arise, it must be established that the authorities failed to take measures which are within the scope of their powers, which, judged reasonably, might have been expected to avoid a given risk (§ 71).

Therefore, the issue before the Court was whether the domestic authorities complied with their duty of diligence in the particular context, i.e. the use of firearms, of the case. The Court emphasised the need for the most careful scrutiny, as in that context, a particularly high risk to life is inherent (§ 84). For the Court, the national authorities had an obligation of special diligence. Accordingly, the national authorities are responsible for determining and upholding requirements for the lawful possession of firearms, and the particularly high level of risk to life relating to their use requires that national authorities intervene with their possession ‘when alerted to facts that give rise to concrete suspicions regarding compliance with such requirements’. (§  85).Furthermore, as the Court itself brought forward, the crucial question was whether there were measures that the national authorities could have taken in order to avoid the risk to life arising from the possible danger that the perpetrator’s internet postings displayed, and in the case of the existence of these measures, whether they would have had a real prospect of altering the outcome or mitigating the harm (§ 87).   

The majority of the Court concluded that seizing the perpetrator’s weapon would not have entailed any significant interference with the competing rights and freedoms enshrined in the Convention and from the viewpoint of the Finnish legislation, the possibility to seize the weapon was available and even considered. As, in the view of the majority of the Court, the possible seizing of the perpetrator’s weapon did not brush upon any other fundamental rights and freedoms, the Court accepted the reasonability of such a measure without further review. However, the Court did not claim that the decision not to seize the firearm would have been causally relevant to the subsequent fatal attack, but emphasised that the finding according to which a seizure of the firearm would have been a reasonable measure must be taken separately.

From the outset of his partly dissenting opinion, Judge Eicke criticised the majority for creating further obligation in relation to the protection of public safety. He disagreed with the majority on the fact that the extension of the existing duty of protection in a case such as the one at hand would be justified or appropriate. He emphasised that the building blocks identified in the Court’s previous case-law in regard to being necessary for the duty of care to arise or for finding a breach thereof, were lacking. Furthermore, Judge Eicke emphasised that there was no legitimate basis for the Court seeking to create a new requirement of diligence, as this might inappropriately extend the scope of Article 2, which overall enshrines one of the basic values inherent in the Convention.

Commentary: giving more refined moral content to Article 2

The European Court of Human Rights has, in its case law, endorsed a view of human rights in which they exist beyond the institutional contexts they are most often invoked in. For the Court, human rights do not play only instrumental value in protecting individuals from unlawful interventions or omissions of the state, but instead the Court has been interested in the moral value of these rights.[1] In this particular case, the Court’s analysis clearly reflects an idea of protecting a moral value embedded in Article 2 of the Convention, id est. the holistic protection of human dignity.   

The majority took as a given that in the circumstances of the case, seizing the perpetrator’s firearm would have been a low threshold measure which would not have interfered with the perpetrator’s fundamental rights. However, in order for the national authorities to be obliged to intervene with the possession of a firearm, they needed to have concrete suspicions about the compliance of requirements set forth in national firearm legislation.

Even though the judgment clearly has a clarifying function regarding the obligations posed to national authorities, there also remains questions which the Court left open. This could potentially hinder the pedagogical force of the judgment as well as the ability to give practical guidance to national authorities in interpreting national law in harmony with the Convention. These questions concern, inter alia, the exchange of information between and within authorities.

Firstly, the Court emphasised that the access to the medical data of persons applying for a permit to acquire a weapon or persons subjected to the re-evaluation of the permit must not be a matter of routine, as disclosure of personal health data may be inconsistent with the guarantees of Article 8 of the Convention. Accordingly, the Court highlighted that the assessment of circumstances whether there is a justifiable and necessary need to obtain medical data must be done on a case by case basis in order for the trust in the health services and the patients’ sense of privacy to be preserved (§ 83).

The Court’s cautious approach on the disclosure of personal health data is admittedly understandable and well-justified as well as illustrative of the fact that the positive obligations with regard to Article 2 are not limitless. However, its relation to duty of diligence appears confusing. The Court reasoned that it cannot be determined if the assessment of whether the perpetrator posed a real and imminent risk at the relevant time might have depended on personal medical information (§ 83). However, it simultaneously held that the context of the case – the question of upholding the permit to acquire a weapon – itself renders persons vulnerable to acts which pose a risk to life (§ 84).  The Court was careful not to extend the obligation to disclose personal health information to other authorities, presumably in an endeavour to refrain from needing to reconcile the absolute right to life with the qualified right to respect for private and family life. However, in its reasoning, the Court left unanswered which precise factors, in the present case, set forth in the national firearm legislation could amount to concrete suspicions and thus give rise to an obligation of due diligence. The tension between the vague reasoning of the Court considering the circumstances in which medical information can be lawfully obtained by the police on the one hand, and the Court’s presumption that guns inherently include a risk to lethal acts on the other, was not addressed in the judgement. Despite the Court’s relatively clear stance on the disclosure of personal health data, the inconsistency in the Court’s argumentation may subject the judgment to misconceptions, namely de facto lowering the threshold of obtaining medical data of private individuals when authorities take measures that relate to the control of dangerous activities.

Secondly, it was discovered during the original pre-trial investigations that another police department had already in 2002 received information that the perpetrator was planning a school shooting. However, this information was not passed on to the police department in charge of granting the perpetrator’s gun license. This fact was overlooked by the Strasbourg Court, which further adds to the opaqueness of the Court’s reasoning and hinders the potential of the case to provide interpretative guidance.

As a whole, the Court left open its conception of what and how much evidence is enough to amount to concrete suspicions about the compliance of requirements for the lawful possession of a firearm. Instead, the Court resorted to a contextual analysis in which it underlined the specific circumstances prevailing in the case.  

The central issue concerning the reasoning of the Court relates to the fact that the Court did not impose any further requirements to the assessment needed in order to decide whether to seize the perpetrator’s weapon. The Court did not criticise the state of Finland for not obtaining the perpetrator’s personal health data nor did it pose a critique on the ineffectual exchange of information between police departments. However, it concluded that, according to Article 2, the authorities have a special duty of diligence which cannot be based on the benefit of hindsight in issues which include a risk of lethal acts (86 – 89 §).

For the majority, the requirements stemming from Article 2 of the Convention regarding duty of diligence entails the assessment of information in a holistic manner. Therefore, an analysis on all facts and factors that are available to the authorities in similar situations must not be reviewed disconnected from each other, but rather taken as a whole. This does not, in my view, widen or change the interpretative continuum the Court has established in its previous case law, namely Mastromatteo v. Italy (application no. 37703/97) and Maiorano and Others v. Italy (application no. 28634/06) with regard to positive obligations imposed on the states under Article 2 of the Convention. 

Rather, because of the situational tone inherent in the Court’s reasoning, the Court strived for – and somewhat achieved – capturing the moral value embedded in Article 2 and aimed to determine the positive obligations throughout this account. However, this approach is hard to separate from the benefit of hindsight, which is also prevalent in the partly dissenting opinion of Judge Eicke. In the present case, the Court did not pose any special, precise requirements that can be utilised in establishing the duty of diligence besides the assessment of the contextual factors of a given case as a whole. In the absence of such requirements, Judge Eicke’s argument against the expansion of the special duty to protect becomes relatively empty.  The Court can be rightly criticised for its lack of opaqueness and confusion its reasoning can give rise to. However, in my opinion, the Court only established that member states have a special duty to protect individuals in their jurisdiction against acts of violence. Thus, the Court’s reasoning does not compromise the meaning and weight Article 2 of the Convention bears by subjecting it to inflation. Rather, in my opinion, the Court invited member states to holistically examine situations, where the duty to protect could potentially be at issue, by acknowledging the particular values enshrined under Article 2.  Put differently, the Court established that the applicability of the positive obligations stemming from the right to life must be viewed in the light of the comprehensive circumstances, which may only be known partially by the state authorities. Therefore, the fundamental message the Court expressed in the present case is that the states have an active duty to also protect individuals from more general threats. Following the Court’s own argumentation, authorities have a moral and legal duty to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk (73 §).  

Conclusion

The Court strived to strengthen the obligation to protect human lives. By referring to values that provide a background for Article 2, it drew a connection between the legal and moral substances the provision reflects.  Despite a certain vagueness, the judgment provides a useful insight to measures which are in place in order to effectively protect human life against threats of a more general nature.


[1] In this connection, see in further detail George Letsas, Strasbourg’s Interpretive Ethic: Lessons for an International Lawyer. The European Journal of International Law 21 (3) 2010, pp. 509 – 541. Available at http://www.ejil.org/pdfs/21/3/2066.pdf

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