The state has two duties where life is concerned – firstly: not to deprive anyone of his or her life; this appears to be the more obvious one. But equally important is the second obligation: to ‘protect’ the life of every person under its control. Any well-functioning democracy considers these two duties to be fundamental and not negotiable.
Where persons in vulnerable situations are involved (like detainees in prison or conscripts in the armed forces), I would put it as follows: the state has a special responsibility to protect the lives of those individuals over whom it exercises a certain degree of control or who find themselves in vulnerable positions, such as prisoners or military conscripts. This special responsibility means that the state should prevent that they are killed by state officials. In addition to this, the state must protect such vulnerable individuals against the use of violence by other people and against suicide.
You don’t have to take my word for this. I have reproduced it, almost word for word, from the human rights bible. The state is always answerable for the loss of life of those in its custody, by suicide or otherwise.
Some cases involving these basics have come up before the European Court of Human Rights in Strasbourg and states that were deemed not to apply these rules rigorously were found responsible for the suicide of persons in their power and under their control; they ended condemned to pay substantial compensation to the survivors of their victims.
Personally, I was part of the court in only one of these cases and my colleagues and I believed there were sufficient factual reasons to let the defendant state off the hook. My, by now irrelevant, view is that we may possibly have been too lenient with Turkey, then in the dock.
In cases of suicides in prison or in the army, the domestic authorities and the courts are bound to establish whether the officials in charge took sufficient precautions to make themselves aware, in a timely fashion, of a risk of suicide and, equally important, whether they took all appropriate preventive measures to avert it. Failure in either of these obligations would render the state responsible for the suicide or attempted suicide.
The fact that suicides are not rare in prisons worldwide is, in itself, a stronger reason for more vigilance and care, rather than a circumstance that, in some weird manner exonerates the authorities. The more frequent deaths in custody are, the more alert, prepared, attentive, proactive and watchful those in charge should be.
The fact that suicides are not rare in prisons worldwide is, in itself, a stronger reason for more vigilance and care- Giovanni Bonello
The court has always factored in the respect for the fundamental rights of all persons, strong or vulnerable, guilty or innocent, weak or powerful, hateful or likeable alike. I have never and nowhere found that the rights of victims of crimes, eloquent as they undoubtedly are and should be, include the death by suicide of the criminal responsible for the victims’ misfortunes.
The court has also held that the oppressive, say arbitrary, restrictions of a prisoner’s right to movement, choice and action that may lead to suicide are not compatible with the fundamental right to life.
The respect due to the prisoner’s or the conscript’s fundamental rights, however, still allows intrusive measures, like searching a prisoner for concealed weapons or poisons that can be used to commit suicide and removing them, including, belts, ties or shoelaces, as also accompanying a prisoner to the bathroom to avoid the possibility of a suicidal detainee jumping to his death.
Again, I have never and nowhere found that anything less than the inhuman treatment of persons who have committed crimes should turn into expectations of a free suite at the Hilton with room service, Jacuzzi and a sea view.
Finally, the state has been found, in cases of suicides of persons under the state’s care, to have a responsibility to protect the life of prisoners by providing effective medical assistance, including psychological support and psychiatric treatment. Failure to do this may trigger the state’s responsibility in a suicide.
In the leading case regarding the suicide of a person under the control of the state – in this case, Russia – the court started off by booming this resounding proclamation of principle: Article 2 of the convention, which safeguards the right to life, ranks as one of the most fundamental provisions of the convention. It ensures one of the basic values of the democratic societies making up the Council of Europe.
The object and purpose of the convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective.
May 14 funerals in a row never cancel that out.
Giovanni Bonello, Former judge at the European Court of Human Rights