On 4 September 2009, Colonel K. at the command of the Provincial Reconstruction Team in Kunduz ordered an airstrike on a group of individuals believed to be insurgents. Mr Abdul Hanan, an Afghan national, who lost his two sons in the airstrike, filed a complaint before the European Court of Human Rights (ECtHR) against the Federal Republic of Germany. The applicant alleged that domestic authorities had failed to carry out an effective investigation into the event in accordance with Article 2 of the European Convention on Human Rights, hereafter the Convention. Specifically, the authorities in charge of the investigation in Afghanistan lacked the necessary independence from those involved in the incident, failed to take sufficient evidence to assess the circumstances of the event, did not conduct the investigation with sufficient expedition, and did not sufficiently involve the applicant in the procedure as to ensure the protection of his legitimate interest. Relying on Article 13 of the Convention, the applicant also complained that he had no effective domestic remedy to challenge the decision of the German Federal prosecutor to discontinue the criminal investigation into the suspects.

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Jurisdiction

Relying on Güzelyurtlu v. Cyprus and Turkey, the ECtHR found that the institution of a domestic criminal investigation or proceeding concerning a death which has occurred outside the jurisdiction of the State is in itself sufficient to establish a jurisdictional link between the State and the victim’s relative who bring proceedings before the Court. The Court noted that, since Germany retained exclusive jurisdiction over its troops in Afghanistan with respect to serious crimes and it was obliged under both international and domestic law to institute a criminal investigation into the airstrike at issue, as it concerned the alleged responsibility of members of the German armed forced for international crimes, there was a sufficient jurisdictional link for the purposes of Article 1 of the Convention in this relation to the State duty to investigate the airstrike at issue under Article 2.

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Duty to investigate

The Court considered it appropriate to examine the complaint solely under the procedural aspects of Article 2 and offered a thorough assessment of the standards of investigation under the Convention. It observed that there is no substantive normative conflict in respect of the requirements of an effective investigation between the rules of international humanitarian law and Article 2. While reiterating that the procedural obligations must be applied realistically taking into consideration the challenges of conducting an investigation in an area of active hostilities, it considered that an effective investigation must be adequate, thorough and impartial. Furthermore, it must be carried out promptly by independent authority, and, lastly, be accessible to the victims.

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With respect to the applicant’s claim, the Court concluded that no violations of the procedural obligations had occurred. Even though the ECtHR concurred with the applicant that “it would have been preferable, in terms of independence, if the initial on-site assessment had not been done exclusively by members of PRT Kunduz” and the colonel who ordered the air strike had not been involved in the investigation, it found that Germany had ultimately conducted an effective investigation. In this respect, the Court noted that the overall responsibility lied with the civilian prosecution authorities, who also reviewed evidence that could have not been tampered with, including audio recording and the applicant’s submissions of 9 June 2010 and of 7 July 2010. Insofar as the applicant alleged a lack of thoroughness and promptness of the investigation by the civilian prosecution authorities in Germany, the ECtHR considered that Federal Prosecutor General did not have legal powers to undertake investigative measures in Afghanistan and, owing to the special circumstances of the case, the fact that the investigation remained at the preliminary investigation stage for about six months did not affect its effectiveness.

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