It of course make little sense to have a procedural obligation completely detached from any substantive violation, when the procedural obligation was invented in McCann precisely to make the substantive obligations more effective in practice. The proper remedy for this incongruence is, however, not to limit the procedural duty, but to make the substantive obligations apply broadly as well.
But then we come to how the Court applied the procedural obligation on the facts of Hanan. To make a long story short, it employed a very deferential standard of review, and despite the many problems with how the investigation was conducted its conclusion was that in extraordinary circumstances states had to have a certain degree of latitude and that Germany ultimately did conduct an effective (if imperfect) investigation.
In this regard Hanan is really a sequel to Jaloud. There the Court also noted that the procedural obligation had to be applied more flexibly in the context of an extraterritorial armed conflict, but was more demanding on the merits. The Jaloud Court was significantly split, however, on how the review on the facts should come out – 7 of the 17 judges would have wanted an even more flexible approach on the facts. And that’s precisely what we have in Hanan, and with a unanimous Grand Chamber at that (note that none of the judges who sat in Jaloud also sat in Hanan).
The unanimity of the Hanan Court probably does not reflect the comparative merits of the two cases, but the changing constellation of the bench, how the two cases were argued, and the overarching political context. Broadly speaking, on the question of principle the Court is right – the procedural obligation should indeed be applied flexibly. I am not sure whether the Court is right (let alone unanimously so) in applying this flexible approach to the facts, but this is a point on which I will reserve judgement.
So, bottom line – military or government lawyers working for (or partnering with) an ECHR member state, take note – the applicability of the Article 2 procedural obligation would be very hard to avoid, but it job seekers database can be applied with significant flexibility on the merits. This is, in my view, exactly what the position should be (although I would dispense with the ‘special features’ theatre altogether). Note also that the Court has definitely opened the doors to litigation of armed conflict situations on procedural grounds, even if in Georgia v. Russia no. 2 it wanted to close them on substantive grounds.
The genuinely ingenious new interstate application brought by Ukraine on extraterritorial assassinations. This is precisely the type of case that exposes fully the legal and moral fallacy of the restrictive Bankovic/Georgia v. Russia no. 2 approach. We are talking here about the assassinations of dissidents outside any armed conflict, outside any ‘context of chaos’ – think Litvinenko or the Skripals or Chechen assassins in Berlin, or (intraterritorially) Navalny’s poisoning-by-nerve-agent-on-underwear. The question is simply this: does the ECHR prohibit states parties from sending assassins onto the territories of the other states parties? Yes or no? And if the answer is yes, as it must be, how then can the Court justify saying that the Convention does not apply at all when things get a wee bit more ‘chaotic’? If killing one person is a violation of the right to life, how could killing a hundred or a thousand not be? And so forth.