PARTLY DISSENTING OPINION OF JUDGE EICKE

1. This is a most tragic case and one cannot but have the greatest sympathy for the victims and their families and friends.

2. Unfortunately, however, such tragic events also create a risk of (and perhaps an incentive for) regulatory overreach with the stated aim of achieving yet greater security for everybody (or at least the impression thereof). In particular, there is a danger to seek to devise rules or standards with the benefit of hindsight which would (or might) have prevented the very event from having occurred. To my regret, I have come to the conclusion that, for the reasons set out below, the present judgment does exactly that. It is, in my eyes, an example of such overreach in the form of an undue extension or enlarging of the existing case-law under Article 2 of the Convention. It creates what, in my view, are new requirements on domestic authorities which they, in their endeavour to ensure they comply with the requirements under Article 2, are likely to find difficult to apply “in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action” (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , no. 13178/03, § 53, ECHR 2006 ‑ XI, and Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia , no. 71156/01, § 96, 3 May 2007).

3. While there can be no doubt that firearms are inherently dangerous, it is for this very reason that – at least in Europe – their acquisition, licensing and use is already highly regulated both at domestic level as well as at EU level. Whether as a result of this already existing level of regulation or not, the evidence suggests that the rate of gun homicides in the European Union is at only 0.24 per 100,000 people (0.2 in Finland) as compared with, for example, 4.46 in the United States. [1] It is for this very reason that – at least in Europe – their acquisition, licensing and use is already highly regulated both at domestic level as well as at EU level.

4. It is, therefore, important

(a) on the one hand not to overstate the general risk arising from the use of firearms and, in particular, from the – as in this case – lawful and licensed ownership of firearms; and

(b) on the other hand, to bear in mind that the principles laid down by this Court in its case-law under Article 2 need to be capable of being applied beyond the facts of any one particular case, without, as the majority accept in paragraph 67 of the judgment, imposing “an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources”.

5. In this context, it is perhaps also worth bearing in mind that, while the Grand Chamber in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 147-148, 25 June 2019) did not take a final view on whether driving a car is a “particularly dangerous activity or not” for the purposes of Article 2, there is evidence that, in fact, vehicles and bladed weapons, the former of course also commonly subject to a licensing regime, are increasingly used as weapons in terrorist attacks. [2] As the Court rightly said in Nicolae Virgiliu Tănase (cited above, § 136), “[n]ot every alleged risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising”.

6. The Grand Chamber, in its judgment in Nicolae Virgiliu Tănase (cited above, §§ 134 ‑ 145), has most recently sought to provide an authoritative summary out the different obligations arising under Article 2 on the basis that this provision requires states “not only to refrain from the ‘intentional’ taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction” (ibid., § 134). These are:

(a) “to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life” (described as a “substantive positive obligation”; ibid., § 135);

(b) “to take preventive operational measures to protect an identified individual from another individual (see Osman v. the United Kingdom , 28 October 1998, § 115, Reports of Judgments and Decisions 1998 ‑ VIII) or, in particular circumstances, from himself” (also a “substantive positive obligation”; ibid., § 136); and

(c) “to have in place an effective independent judicial system. Such system may vary according to circumstances. It should, however, be capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (described as a “procedural positive obligation”; ibid., § 137).

7. The issue of “intentional” taking of life by a state agent does not, of course, arise in this case. Consequently, the circumstances of this case fall to be considered by reference to the established obligations under Article 2 as listed above.

8. Having considered the evidence available to the Court in this case, I completely agree with the majority that:

(a) there is no reason to consider that the regulatory framework applicable in the respondent State at the relevant time was deficient in a way that would have justified a finding of a violation of the State’s positive obligations under Article 2 (see paragraph 76 of the judgment);

(b) on the evidence before the Court (as confirmed by the findings of the domestic courts), there was no basis to conclude that there had been a real and immediate risk to life directed at identifiable individuals of which the authorities knew or ought to have known at the relevant time so as to give rise to a “duty of personal protection towards the victims of the subsequent killing, or towards the other students or staff of the school concerned” (see paragraph 81 of the judgment). Like the majority, in this context I would highlight the clear findings of the domestic courts that (i) the licence granted to the perpetrator was issued in compliance with the relevant legislation (see paragraph 77 of the judgment); (ii) there was no evidence of negligence on the part of the Detective Chief Inspector in charge of the initial licensing (ibid.); and (iii) the information available to the local police authority at the time preceding the perpetrator’s criminal act did not give rise to any reason to suspect an actual risk of an attack in the form of a school shooting (see paragraph 78 of the judgment); and.

(c) there has been no violation of the procedural aspect of Article 2 of the Convention (see paragraphs 91 ‑ 98 of the judgment).

9. On the facts of this case, this is where – for me – the analysis should have stopped, leading to an inevitable finding of no violation of Article 2.

10. Unfortunately, the majority went on to create a further obligation, or as the judgment puts it “duty of diligence”, in relation to “the protection of public safety” more generally, over and above the duty to protect an identified individual as laid down in the Court’s Osman jurisprudence (see paragraph 84 of the judgment).

11. The majority seek to justify the creation of this “duty of diligence” (see paragraph 85 of the judgment) by reference to the case-law identified in paragraph 71 of the judgment where it is rightly noted that:

“... the Court has drawn a distinction between cases concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, and those in which the obligation to afford general protection to society was in issue (see Maiorano and Others [ v. Italy , no. 28634/06 ,] § 107, [15 December 2009], and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 247, ECHR 2011). In the latter context, the Court has stressed the duty of diligence incumbent on the State authorities, in dealing with the danger emanating from the potential acts of certain individuals in their charge, to afford general protection of the right to life (see Mastromatteo [ v. Italy [GC], no. 37703/97 ], § 74, [ECHR 2002 ‑ VIII], and Maiorano and Others , [cited above], § 121, ...). Similarly, in a case concerning a police officer who deliberately shot two persons with his police gun while off duty, the Court found a violation of Article 2 on the grounds that the officer had been issued with the gun in breach of the existing domestic legislation governing police weapons and there had been a failure to properly assess his personality in the light of his known history of previous disciplinary offences (see Gorovenky and Bugara v. Ukraine , nos. 36146/05 and 42418/05, § 39, 12 January 2012).”

12. The judgments in Mastromatteo and Maiorano and Others , however, make absolutely clear that they arose in (and are limited to) the very specific context of what the Court referred to as a “duty of care” owed by the State in relation to the adoption and implementation of decisions to grant temporary prison leave or semi-custodial treatment to dangerous prisoners, while they are in the charge of State authorities. In those cases, the Court stressed that the individuals in question were (a) in the custody of the state (in prison) on the basis of what the Court referred to as “[o]ne of the essential functions of a prison sentence [namely] to protect society, for example by preventing a criminal from re-offending and thus causing further harm” (see Mastromatteo , cited above, § 72) and (b) their temporary release for the purposes of “progressive social reintegration” was dependent upon the prisoner having shown that he had been “of good behaviour while in prison and ... his release would not present a danger to society” upon temporary release (ibid.).

13. While the application of this narrow test, based on the “duty of care” owed by the State to “do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge” (ibid., § 74, quoting Osman ) led to a finding of no violation in Mastromatteo , it led to a finding of a violation in Maiorano and Others . The latter finding was based on the Court’s assessment of the balance between the reports of the prisoner’s positive behaviour while in prison weighed against the available adverse information. This included in particular the extremely serious criminal history of the prisoner (including his “ condamnation à perpétuité pour des faits considérés comme étant d’une cruauté exceptionnelle ”) as well as the information/warnings received by the authorities before the murder was committed (including information that he was getting ready to commit murder and other serious offences). The test, however, remained whether the authorities knew or ought to have known of the existence of a real and immediate risk to life.

14. The majority suggest, at the end of paragraph 85 of the judgment, that this “duty of care”/obligation can, without more, be extended to situations where “[a]lthough the perpetrator was not in the charge of State authorities, those authorities are responsible for determining and upholding the requirements for the lawful possession of firearms” solely on the basis of the “particularly high level of risk to life which is inherent in their use”.

15. I am unable to agree that the extension of the existing duty of protection (so as to create an additional “duty of diligence”) in a case such as the present is either justified or appropriate. After all, in the present case, we have none of the building blocks identified in the Court’s case-law as being necessary either for the “duty of care” (as identified by the Court in Maiorano and Others ) to arise or for a finding of a breach thereof: (a) the perpetrator in the present case was not at any time under the control of the state; (b) the need to protect society (so as to warrant prison or otherwise) had not previously been established and was not known; (c) the judgment positively (and rightly in my view) concludes that the authorities did not know and could not reasonably have known of the existence of a real and immediate risk to life posed by the perpetrator whether to identified individuals or generally; and (d) the “warnings” in the present case were nowhere near as specific or serious as in Maiorano and Others (and even less so in the context of a person of no prior finding of risk/threat).

16. The case of Gorovenky and Bugara also does not, in my view, significantly expand the narrow class of cases established in Mastromatteo and Maiorano and Others . In that case, the culprit was a police officer (that is, an agent of the State) who killed two persons with his service gun. The Court there, expressly based its decision, inter alia , on the fact that “the States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems meet the requisite criteria ... In particular, when equipping police forces with firearms, not only must the necessary technical training be given but the selection of agents allowed to carry such firearms must also be subject to particular scrutiny” (see Gorovenky and Bugara , cited above, § 38).

17. In the prison context (especially involving serious criminals) it is understandable that any (early) release into the community would and should be dependent on the prisoner establishing that s/he was of good character (so as to outweigh the risks to society they pose which had already been established by the criminal courts). In this specific context, this Court would – by reference to the right to life under Article 2 – recognise that the state had a “duty of care” when making that assessment at the time of (and during) any temporary release. The Grand Chamber in Murray v. the Netherlands ([GC], no. 10511/10, § 111, 26 April 2016) described this as part of the State’s “positive obligation to protect the public by continuing to detain life prisoners for as long as they remain dangerous”.

18. The same can be said of the duty to set and apply high professional standards within their law-enforcement systems so as to prevent killings by State agents. After all, in both these scenarios the risk emanates/the danger is created by a positive act of the State (undertaken with actual or constructive knowledge of the dangers posed), namely the release of a convicted and known dangerous criminal into society or the provision of a service gun to a police officer without the necessary safeguards. In the context of the latter – again unlike in the present case – this occurred without the requirements expressly laid down in domestic regulations having been followed.

19. By contrast, in my view, Article 2 provides no basis for such an approach in the context of the licensing of firearms (or other potentially dangerous equipment or activities) to persons of, at the relevant time, apparently good character. In the present case, the perpetrator was competently assessed at the relevant time and there is no criticism of that assessment. Even if the assertion in paragraph 88 of the judgment were right that the suspension of this perpetrator’s licence and/or a temporary seizure of his gun “would not have entailed any significant interference with any competing rights under the Convention” (and this will, of course, not necessarily always be the case), it is difficult to see how (and subject to what safeguards) such a licence holder would be able to establish to the authorities that the information (for example, as in this case Internet postings) which led to the temporary seizure/suspension did not, in fact, give rise to a suspicion that he or she poses a threat to the right to life. There is a very real difficulty (and unfairness) in being required to prove a negative in such circumstances.

20. The difficulty with the proposed approach is in my view further highlighted by the fact that the majority:

(a) rightly identified the generic nature of the (Internet) material on which the suspicion had been based and emphasised (see paragraph 80 of the judgment) that “there remains a substantial difference between conduct involving video clips and cryptic postings on the Internet without any specific or even unspecified threats, and the indiscriminate killing of people present at a specific location”; and

(b) endorses again (see paragraph 89 of the judgment) the decision of the Court of Appeal that “it could not be held that the decision not to seize the gun was causally relevant to the subsequent killings”. [3]

21. Finally, the question has to be asked: where does this leave the domestic (police or licensing) authorities who, as a result of this judgment, will from now on have to apply this new “duty of diligence” as set out therein? They will have to do so in the context of the continuing supervision of those who (at the time) are properly and appropriately licensed to carry out a dangerous activity (in this case ownership of a gun) – and do so knowing that the State is likely to be liable in compensation by reference to a breach of Article 2 of the Convention if they are not “sufficiently cautious”. In my view, the present judgment risks leaving those authorities in a true lose-lose situation.

22. While a domestic legislature may, of course, chose to enable national authorities to take a “precautionary measure with a low threshold ... not conditional upon any unlawful conduct” (see paragraph 27 of the judgment), no doubt with its own specific safeguards, there is in my view no legitimate basis for this Court seeking to create such a requirement for the authorities of the forty-seven Contracting Parties to the Convention and certainly not under its Article 2 which is rightly described as “one of the most fundamental provisions in the Convention ... it enshrines one of the basic values of the democratic societies making up the Council of Europe” (see paragraph 65 of the judgment).

APPENDIX

The applicants’ households are the following:

[1] . Alpers, Philip, Amélie Rossetti and Marcus Wilson. 2020. Guns in the European Union: Rate of Gun Homicide per 100,000 People. Sydney School of Public Health, The University of Sydney. GunPolicy.org, 9 June. Accessed 10 September 2020 at: https://www.gunpolicy.org/firearms/compare/347/rate_of_gun_homicide/194 .

[2] See the 2017 report “ Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews ” by David Anderson QC, quoted in the Chamber judgment in Big Brother Watch and Others v. the United Kingdom , nos. 58170/13 and 2 others, § 177, 13 September 2018.

[3] This latter finding is also difficult to reconcile with the decision, under Article 41 (see paragraph 104 of the judgment), to make an award of pecuniary damages in respect of the applicant’s loss of financial support from his mother on the basis “that there is a sufficient causal link between the violation of Article 2 of the Convention in respect of [his] mother and the loss by him of the financial support which he could have obtained from her as a dependant” to justify such an award.