La competencia ratione temporis del Tribunal Europeo de Derechos Humanos sobre la obligación de investigar (art . 2. derecho a la vida). Teoría y práctica: de De Becker c. Bélgica a Canales Bermejo c. España

Abstract

Since 2009, the European Court of Human Rights has ruled in a number of cases dealing with the nature of the procedural obligation to investigate under Article 2 of the Convention, that is, whether it operates independently of the substantive obligation or not, whether there is a continuing obligation under Article 2 or not and, in particular, the scope of the Court’s temporal jurisdiction. The interpretation provided by the Court in such decisions has introduced a number of new, vague requirements that are not readily incorporated within the general theory on this matter. Moreover, it is by no means easy to identify the arguments upon which these requirements are formally justified. Taking as starting point the general principles of international law concerning the non-retroactivity of treaties, continuing acts and jurisdiction ratione temporis, this article examines and assesses the European Court’s approach on these issues, by conducting an analysis of the following cases: Šilih v. Slovakia (GC), Varnava and others v. Turkey (GC), Antonio Gutiérrez Dorado and Carmen Dorado Ortiz v. Spain, and Janowiec and others v. Russia. A number of other relevant decisions are also taken into account, including the landmark decisions from De Becker v. Belgium and from the more recent case of Canales Bermejo v. Spain.