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ECHR Ruling on the “Right to Life”

By on September 23, 2020 Categories:

Earlier this month, the European Court of Human Rights ruled that Finnish authorities violated the European Convention on Human Rights by failing to take sufficient steps to prevent a school shooting. (h/t Larry Helfer) From the Registrar of Court’s summary of the facts:

The perpetrator had been given a gun licence by the local police station a few months before the attack. Further to certain Internet postings, including a comment about a film on the Columbine High School massacre “being the best entertainment ever”, he was interviewed the day before the attack by the Detective Chief Inspector of the police station to determine whether he posed a danger to society. The inspector decided that was not the case and there was no need to take his weapon.

The next day, the young man appeared at his school and opened fire, killing nine students and a teacher before killing himself.

Article 2 of the Convention protects “the right to life,” and was the basis of the claim, which was filed by relatives of the shooting victims. It would be an understatement to say that I am no expert in Convention jurisprudence, but it appears that the Court rejected the claim that Finnish authorities failed in their “duty to protect life,” but agreed (6-1) that they failed in their “duty of diligence in the protection of public safety, taking into account the context of the case, that is, the use of firearms and the inherent high level of risk to life.”

Further from the Registrar’s summary:

The crucial question was whether there were measures which the domestic authorities might reasonably have been expected to take to avoid the risk to life from the potential danger the perpetrator’s actions had given an indication of.

The precautionary measure of seizing the gun had been available to the police. It would not have caused any significant interference with any competing rights under the Convention and would not have involved any particularly difficult or delicate balancing exercise. Indeed, the Court of Appeal had said that the gun could have been seized according to domestic law as a low threshold precautionary measure.

The Court thus found that seizing the weapon was a reasonable measure of precaution given the doubts about the perpetrator’s fitness to possess a dangerous firearm. The authorities had thus not observed the special duty of diligence incumbent on them owing to the particularly high level of risk to life inherent in any misconduct involving firearms.

It should go without saying that such reasoning does not translate directly to the United States, given that the Second Amendment (and potentially also the First) does enumerate “competing rights” that could be implicated by an effort to confiscate the guns of someone who had made threats online. Nor does the US Constitution clearly create a governmental duty to protect the “right to life” against threats from other private citizens—hence Justice Blackman’s impassioned dissent in DeShaney.

But there are counter-currents as well. Scholars like Leila Nadya Sadat and Madaline M. George have recently written about U.S. obligations under international law (not the Convention itself) to engage in due diligence in protecting citizens from gun violence. And within the framework of domestic law and politics, scholars and advocates are increasingly emphasizing the constitutional interests (not “just” policy interests) in favor of gun regulation—whether through the “constitutional case for gun control,” or the right not to be shot, or briefs emphasizing the human toll of gun violence.

The ECHR ruling, in short, interestingly demonstrates—though of course does not resolve—debates that are percolating in the US gun debate.