Railway Deaths and Article 2 ECHR

This month, in Zayets v Ukraine, a Chamber of the European Court of Human Rights confirmed that Article 2 ECHR obligations may arise in relation to the hazards created by the ordinary operation of railways. The short judgment comes at a time of coincidental legal changes in England & Wales – for railways and (at least potentially) for investigations into railway deaths. 

The case related to the applicants’ ten year old son, who died on 22 November 2016, when he was struck by a train at an informal railway crossing point near his school. The railway tracks were open and unfenced, albeit were warning signs which said that “walking on the railway is forbidden”. After the fatal incident fences were put up.

The Law, in Summary

The Court’s judgment summarises the relevant Article 2 ECHR law in its very short §25. In doing so it elides the distinction between the general duty to have systems to minimise risks to life, and the operational duty to take reasonable steps in relation to a particular real and immediate risk to life:

“The general principles concerning the positive obligation of the State to protect life in a life-threatening situation were summarised in Kalender v. Turkey (no. 4314/02, §§ 42, 43 and 49, 15 December 2009), Binişan v. Romania (no. 39438/05, §§ 71-73, 20 May 2014) and Prilutskiy v. Ukraine (no. 40429/08, §§ 30-33, 26 February 2015). More specifically, whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and sufficient control that the risk is reduced to a reasonable minimum. If damage nevertheless arises, it will only amount to a breach of the State’s positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events.

For such an obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

The Court also underlined that the positive obligation is not to be interpreted in such a way as to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources (see, for example, Ciechońska v. Poland, no. 19776/04, § 64, 14 June 2011).”

This paragraph is problematic because it suggests that to engage the general duty it is necessary for the authorities to have actual or constructive knowledge of a real and immediate risk to life. This requirement, part of the operational duty, has generally not been held to form part of the general duty (see, for example, the consideration by Hill J in Patton [2022] EWHC 1377 (Admin) at §105-107). Rather, the general duty is – as its name suggests – general and applies to states even absent a real and immediate risk to the life of a particular individual. 

Risks and the Railway

The perhaps inadvertent elision of the two duties may be because the Court’s application of the law to the case quickly shifts to an apparent focus on the operational duty:

“… the Court notes that it has not been disputed by the parties that regulations existed to guarantee the safety of railway transport. Even though the applicants considered those regulations inappropriate to address the specific risk to life arising from the informal crossing point itself, there is nothing to suggest that the fatal accident occurred because of a lack of legislative and administrative measures or their non-implementation. In the instant case, the Court’s analysis will thus be limited to an examination of the adequacy of the practical measures used to prevent the death of the applicants’ son in a life-threatening situation related to a high-risk State activity, such as railway transport….”  (emphasis added)

In a subsequent paragraph the Court emphasises, given the incident took place close to a school, that states “have more compelling responsibility towards members of the public who have to live with very real dangers…” (§27).

On the facts, the Court held that the local authorities were actually aware of the risk to life caused by the railway (§27). Although some steps had been taken to address the risks these did not include physical barriers (until after the fatal incident). The fact that the barriers were subsequently erected made it clear that were “effective measure without diverting the State’s resources to an excessive degree” (§28). 

In conclusion the Court held that:

“… the domestic authorities failed to take in a timely manner the most appropriate and available measure which could have protected the life of the applicants’ son in the life-threatening situation. The State thus failed in its positive obligation to prevent his premature death, in violation of Article 2 of the Convention.” (emphasis added)

Procedural Breach and Remedies

The Court also found that, notwithstanding various ongoing criminal, disciplinary, and investigative proceedings, there had been a violation of the Article 2 procedural duties. After setting out the various investigative failures the Court (at §29) found that the investigation(s) “fell short of even the basic requirements of effectiveness, in violation of Article 2 of the Convention”. 

By way of remedy for the substantive and procedural breaches, the Court awarded the applicants €24,000 in non-pecuniary damages, and €842 in pecuniary damages for the cost of their son’s memorial. For those reading the judgment in England & Wales it is worth bearing in mind that ECtHR judgments on quantum take into account the “local economic circumstances”: see Practice Direction on Just Satisfaction Claims §14. This includes, e.g., IMF data which calculates GDP per capita in Ukraine to be about a tenth of that in the UK.

Finally, notwithstanding a request from the parents for an indication of remedial measures, the Court left it to the Council of Ministers to supervise the state’s implementation of its judgment.

Potential Implications

Zayets is a case of a type that might usually be resolved at the national level rather than finding its way to Strasbourg. There are, nonetheless, some points of note from the sad case.

First, the judgment confirms that the operation of railways constitutes a “high-risk State activity” the regulation of which falls within the scope of Article 2 ECHR. The European Court has previously found a violation of Article 2 ECHR in the context of a railway accident in Kalender v Türkiye (2009) albeit the reasoning in that case is somewhat conclusory. 

The question of the scope of rights is a distinct one from whether, as a matter of national law, an entity which operates a railway is a “public authority” in terms of s.6 of the Human Rights Act 1998. Previously, in Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB), the High Court concluded that Network Rail (responsible for the railway infrastructure) was not a public authority. However, this question is ripe for re-examination considering ongoing rail nationalisation in this country by Great British Railways.

Second, the judgment indicates the low causation threshold in Article 2 cases, in circumstances where safeguarding steps have not been taken. The Court was satisfied that railway fences could have protected the young boy’s life and that that was sufficient. It did not require the applicants to show that fences would have done do. This echoes Cevrioğlu v Turkey (2016) in which the Court held at §69, in the context of a construction-related death, that 

“…proper implementation of an inspection mechanism would undoubtedly have increased the possibility of identifying and remedying the failings which were responsible for the death of the applicant’s son. By failing to adopt any inspection measures whatsoever, the State thus failed to fulfil its obligations under Article 2 of the Convention…” (emphasis added)

The standard applied, in both cases, was one of possibility not probability.

Finally, as with any right to life case, these issues may well arise in the Coroner’s Court. There, an arguable breach of Article 2 ECHR has significant consequences for the Coroner’s investigation. Moreover, if the Public Office (Accountability) Bill becomes law, there will be public funding for legal representation for families in all cases involving public authorities as interested persons. There are clear prospects for more complex, and more heavily contested, railway-related inquests.