2. The right to life under Article 2 + extraterritorial application of the ECHR

Question 1

Which right is art. 2?

Answer 1

Right to life

Question 2

The Strasbourg Court has determined that art. 2 contains three duties:

Answer 2

1) Duty to safeguard lives
2) Prohibition of intentional killing & exceptions
3) Duty to investigate suspicious deaths

Question 3

What is Negative obligation: Art. 2

Answer 3

Substantive obligation – prohibition of intentional killings by state agents

Question 4

What is Positive obligation in art 2

Answer 4

1) Substantive obligation – duty to protect the right to life (duty to safeguard lives)
2) Procedural obligation – duty to investigate (suspecius deaths)

This obligation contains a state duty to implement legal and administrative rules to protect the right to life, and to establish an efficient legal system where violations of art. 2 are prevented or punished.

Question 5

when is there a duty to investigate:

Answer 5

A duty to effectively, thoroughly, independently, and promptly to investigate when individuals have been killed as a result of the use of force, regardless of whether the alleged perpetrators are state agents or third persons.

Effective official investigation in cases of death and life-threatening injuries
Suspicious circumstances
Alleged negligence

(Khamila Isayeva V Russia)

Question 6

What can you say about Death penalty (contracting states) (exception of art. 2)

Answer 6

The second sentence of Art. 2(1) reserves the rights of Contracting Parties to subject convicted criminals to the death penalty.

However, Protocol 6 abolished the death penalty in peace time and Protocol 13 abolishes it in all circumstances.

Most Contracting Parties have ratified both.

In Al-Saadoon and Mufdhi v United Kingdom, the Court suggested that the second sentence of art. 2 had now been amended by state practice (as mentioned in VCLT art. 31- 33).

Question 7

What can you say about Death penalty (non-contracting states) (exception of art. 2)

Answer 7

Despite the removal of the death penalty from the European landscape, it remains a potentially live issue before the Court due to the possibility to extradition to States outside Europe where the penalty is retained.

If a Contracting Party which has ratified Protocol 6 wishes to extradite an accused to a country where he or she would face judicial execution, there will be a risk of a violation of the Protocol.

Furthermore, Article 2 has a general extraterritorial application, to protect those liable to expulsion, not just from the death penalty, but from any real risk of deliberate/intentional killing.

Question 8

What is the scope of art. 2?

Ilhan v Turkey (almost died)

Answer 8

the court has held that a violation of Art 2 is possible even when no person (however defined) actually dies. The applicant’s brother had been arrested by gendarmes and beaten severely, causing serious head injuries. He was kept under arrest and received no medical treatment for 36 hours. He survived but sustained an apparently permanent loss of function on his left side. The court, citing 3 prior cases, held that it was proper to consider the case notwithstanding the victim’s survival. The court noted that this case and all prior cases where there had been no actual death involved a state’s positive obligation to protect life.

Question 9

What is the scope of art. 2?

Pretty v United Kingdom (no negative aspect of ‘life’)

Answer 9

Court rejected a different kind of extension of the right to life. The application was a woman suffering the advanced stages of motor neurone disease, an untreatable and progressively debilitating condition, leaving her paralysed from the neck down without the power of speech and fed through a tube. She wished to end her life, which was impossible without assistance, and English law made assisting suicide a crime. She claimed that Art 2 gave her a right to “choose whether or not to go on living”. The court rejected the idea that Art 2 included a “negative aspect”.

Question 10

Negative obligation: Prohibitions of intentional
killing by the state

McCann v United Kingdom

Answer 10

The first and most obvious element of a Contracting Party’s obligation under art. 2 is to refrain, through its agents, from deliberate, unjustified killing.

This aspect was considered by the Court in the McCann case, which is the first case discussing art. 2.

McCann v United Kingdom – The case was brought by the relatives of 3 Irish Republican terrorists who had been killed by members of the British security forced in Gibraltar. It was not disputed that the soldiers had intended to shoot and kill the terrorists; according to the briefing which the soldiers had been given, the terrorists had planted a car bomb in a crowded area and were likely to have been carrying a concealed detonator. The respondent state claimed that the facts fell within the ambit of para 2(a) of Art 2: killings resulting from the use of force which was no more than absolutely necessary to defend a number of innocent bystanders from unlawful violence. The court accepted that the soldiers were not to blame, in that they honestly and reasonably believed that it was necessary to shoot the suspects to prevent them from detonating a bomb. However, the court widened the field of scrutiny to look at the security operation in its entirety. The identifies of the 3 members of the terrorist squad were known to the British authorities, and it would have been possible to arrest them as they entered Gibraltar, before there was any risk of their having set a car bomb. The court concluded that it had not been necessary to use lethal force (strict proportionality test) and that the killings amounted to a violation of Art 2.

Shorted = where they thought it was necessary to prevent them from detonating a bomb, where it has not been necessary (could have arrested them instead).

Question 11

Negative obligation: Prohibitions of intentional killing by the state

Makaratzis v Greece

Answer 11

Makaratzis v Greece – similar principles to the majority’s approach operate even where no death occurs.

The applicant, who drove his car through a red traffic light in the centre of Athens was chased by several police cars and motorcycles. When he failed to stop, the police shot at his car, hitting him in the arm, foot, buttock and chest. The Strasbourg court observed that it was only by sheer good luck that the applicant had not been killed, and that Art 2 therefore applied. It was prepared to accept that the use of lethal force had been reasonable in the circumstances, since the police appeared to believe that the applicant was himself armed and dangerous.

However, the court was “struck with the chaotic way in which the firearms were actually used”, with a large number of officers acting erratically and uncontrollably, without a clear chain of command. The court also found that the domestic law, as it then stood, contained insufficient guidance as to the use of firearms by police.

Excessive (overdreven) use of force in all circumstances of the case will result in a finding of violation of article 2.

Question 12

Negative obligation: Prohibitions of intentional killing by the state

Finogenov and others v Russia

Answer 12

Finogenov and others v Russia – A Chechen separatist movement took hundreds of hostages in a theatre. In order to rescue the hostages, Russian security forces pumped an unknown narcotic gas into the main auditorium. After the terrorists lost consciousness under the influence of the gas, the Russian forces killed the terrorists. Moreover, more than 100 hostages died as a result of the gas. This did not breach art. 2 since it was proportionated and the Court accepted some margin of appreciation in the situation. However, the subsequent lack of planning regarding the rescue violated art. 2. The lack of appropriate medical treatments and equipment on the spot and inadequate logistics amounted to a breach of the State’s positive obligations under art. 2.

Question 13

Negative obligation: Prohibitions of intentional killing by the state

Death in custody and forced disappearances

Answer 13

History has shown that, in the absence of safeguards against abuse of power, it is all too easy or the State to cover up its own unlawful violence, particularly when that violence is carried out behind closed doors. The protection afforded by Art 2 would be of no value if a State could avoid international sanction by concealing the evidence of killings caused by its agents.

Where an individual is known to have been taken into custody and subsequently disappears or is found dead, it is logical that a heavy burden should fall on the state to establish an innocent explanation.

Question 14

Negative obligation: Prohibitions of intentional killing by the state

Death in custody and forced disappearances

Timurtas v Turkey (disappearance),

Answer 14

In Timurtas v Turkey (disappearance), the applicant alleged that his son had been taken into custody in 1993 and had subsequently disappeared. The Turkish public prosecutor had decided not to investigate, because it was likely that his son was a member of PKK and that the applicant was unable to substantiate his allegations. A delegation from the Commission travelled to south-east Turkey to take evidence. The applicant was unable to find any
eyewitnesses to testify to the arrest and detention of his son. He did though produce a photocopy of a document purporting to be an army post-operational report recording his son’s arrest. The respondent state disputed the document’s authenticity, claiming that the reference number in truth belonged to another document, but refusing to produce this second document for security reasons.

Given that more than 6.5 years had gone by since the applicant’s son had been arrested and that the respondent State was unable to provide any explanation of what had happened to him, and the body had disappeared, the Court found a violation of Article 2.

Question 15

Negative obligation: Prohibitions of intentional killing by the state

Death in custody and forced
disapperence

Salman v Turkey (death in custody),

Answer 15

In Salman v Turkey (death in custody), the applicant’s husband was arrested in 1992 on suspicion of aiding and abetting Kurdish terrorists. Some hours later, he was taken to the State Hospital and he was declared dead on arrival. After observations, the Court found the respondent State to have violated Article 2. The court observed that where a person was taken into custody in good health and then died, the obligation on the contracting party to provide a satisfactory account was particularly stringent

Question 16

The positive obligation to protect life

LCB v United Kingdom (nuclear)

Answer 16

LCB v United Kingdom (nuclear) – the Court recognized for the first time that the first sentence of Article 2(1) enjoins a Contracting State not only to refrain from unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within their jurisdiction. The obligation entails a duty to put in place a legislative and administrative framework designed to provide effective deterrence against unlawful killing. In addition, an obligation to take action to avert a specific risk to a particular individual’s life may arrive in certain, limited circumstances.
This was an important statement of principle, despite the fact that the applicant was unable to prove either that her father’s service in the Royal Air Force during the UK’s nuclear tests on Christmas Island had been the cause of her childhood leukaemia or that, had the respondent state provided her family with more information about the tests and the possible health consequences, earlier medical intervention would have mitigated her illness.

Question 17

The positive obligation to protect life

Budayeva v Bulgaria (mudslide)

Answer 17

Budayeva v Bulgaria (mudslide) – the positive obligation will extend to natural disasters as well as those from dangerous activities. Case concerned the response of the authorities to known risks of mudslides, which had occurred in the region every year since 1937. Mudslides in 2000 caused considerable devastation, and the first applicant’s husband had been killed when he stayed behind in a block of flats to help his parents in law, and those flats had collapsed. The Strasbourg court identified a string of deficiencies in the response of the authorities to the known risk, and found a violation of Art 2 because of the inadequacy of the defence system and the failure to establish any form of warning system.

Question 18

The positive obligation to protect life

Keenan v United Kingdom (prison suicide)

Answer 18

Keenan v United Kingdom (prison suicide) – the risk to life came from the victim himself, a young man with mental health problems who committed suicide in prison. The Strasbourg court emphasised that prisoners are in a vulnerable position and that the authorities are under a duty to protect them, and noted that this necessity is reflected in English law, where inquests are automatically held following all deaths in custody. The prison administration had acted reasonably to protect him from himself. They knew that he was prone to psychotic flare-ups, and during the periods when he appeared to be suicidal they had placed him on the hospital wing and checked him every 15 minutes. On the day when he killed himself, he had been returned to an ordinary cell because he did not appear to be in any particular trouble.

Question 19

The duty to investigate suspicious deaths

McCann v United Kingdom

Answer 19

For an investigation into alleged unlawful killing by State agents to be effective and to comply with Art 2, it must be carried out by someone who is fully independent of those implicated in the events on the basis of objective evidence.

The Court mentioned for the first time in McCann v United Kingdom that any general legal prohibition of arbitrary killing by state agents would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force by state authorities. Art. 1 states that states have a general duty to “secure to everyone within their jurisdiction the rights and freedoms defined in the convention”, which requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, state agents.

Question 20

The duty to investigate suspicious deaths

Kaya v Turkey

Answer 20

For an investigation into alleged unlawful killing by State agents to be effective and to comply with Art 2, it must be carried out by someone who is fully independent of those implicated in the events on the basis of objective evidence.

Kaya v Turkey – the applicant’s brother was found lying dead and riddled with bullets in a field near his village in south east-Turkey. The respondent state claimed that he was a terrorist who had been killed during a battle with security forces. Witnesses from the village – none of whom, however, were prepared to testify before the commission’s fact-finding delegation – allegedly said that he was an ordinary, unarmed farmer who had been shot by the soldiers without justification or provocation. Only a rudimentary post-mortem had been performed before the body was handed over for burial to the villagers, and the public prosecutor who subsequently took over the inquiry appeared to have accepted without question the military’s version of events, omitting to take statements from witnesses or collect any forensic evidence. In these circumstances, the commission and court, examining the case some years later and hampered by the reluctance of witnesses to come forward, were unable to establish clearly what had taken place or to find for the applicant on his complaint that his brother had been deliberately killed by the soldiers. The Strasbourg court did, however, find a breach of Art 2 on the basis that the domestic investigation into death had been inadequate.

Question 21

The duty to investigate suspicious deaths

Angelova and Iliev case v Bulgaria

Answer 21

Angelova and Iliev case v Bulgaria – Bulgaria had not satisfied its duty to investigate and prosecute those who had committed murder. A 28-year-old man of Roma origin had been attacked by a group of teenagers and fatally stabbed. The initial action of the police was prompt and a number of youths were brought into custody. But the investigation was complicated by
allegations from one of the suspects that the attack had been racially motivated; some of those arrested changed their evidence. The investigation stalled and there was a period of nearly 4 years when nothing happened for which no reasonable explanation could be provided. The positive obligation to investigate, and where appropriate prosecute, require promptness and reasonable expedition especially where the death appeared to follow a racially motivated attack.

Question 22

Right to life - Medical termination of pregnancy and the rights of the unborn child

Answer 22

Unlike Art 4 of the American Convention of HR, which provides that the right to life must be protected “in general, from the moment of conception”, Art 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define “everyone” whose life is protected by the Convention.

o The commission: “everyone” does not include the unborn.
o It also says that it can not exclude the possibility that in certain circumstances the foetus (foster) may enjoy a certain protection under article 2.

Question 23

Medical termination of pregnancy and the rights of the unborn child

X v UK

Answer 23

X v UK – the commission considered an application by a man complaining that his wife had been allowed to have an abortion on health grounds. While it accepted that the potential father could be regarded as the V of a violation of the right to life, it considered that the term everyone as used in the convention could not apply prenatally, but observed that “such application in a rare case – e.g. under Art 6 para 1 – cannot be excluded”. The commission added that the general usage of the term everyone and the context in which it was used in Art 2 of the convention did not include the unborn. As to the term life and, in particular, the beginning of life, the Commission noted a “diverge of thinking on the question of where life begins” and added: “while some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes viable or upon live birth.”

The commission went on to examine whether Art 2 was “to be interpreted: as not covering the foetus at all; as recognising a right to life of the foetus with certain implied limitations; or as recognising an absolute right to life of the foetus”. Although it did not express an opinion on the first two options it categorically ruled out the third interpretation, having regard to the need to protect the mother’s life which could not be separated from that of the unborn child: “The life of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Art 2 were held to cover the foetus and its protection under this Art were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the unborn life of the foetus would be regarded as being of a higher value than the life of the pregnant woman.”

Question 24

Euthanasia (aktiv dødshjælp) and the quality of life

Pretty v UK

Answer 24

Article 2 does not include a “right to die” - concluded in a case, where a person was very sick - but the court refused to consider this proposition (that countries who allows euthanasia will be a breach to the convention)

Pretty v UK – the right to life in Art 2 does not include a right to die. The applicant suffered from an untreatable motor-neurone disease. Her muscles were becoming progressively weaker, so that at the time of the application she was paralysed from the neck down, had virtually no decipherable speech and had to be fed through a tube, although her intellect and capacity to make decisions were unimpaired. Her life expectancy was very poor and the final stages of the disease were expected to be distressing and undignified. She wished her husband to be permitted to assist her suicide without risk of prosecution. The Strasbourg court observed that the consistent emphasis in its case law had been the obligation of the state to protect life. Art 2 was unconcerned with issues to do with the quality of life or self-determination.

Question 25

What are the sates obligation under Duty to safeguard lives art. 2 (1) (protect the right to life)

And when does it apply?

Answer 25

1) Duty to provide a regulatory framework
2) Duty to take preventive operational measures

Applies in the context of any activity

• Healthcare
• Accidents, dangerous activities, etc.
• Criminal acts of another individual
• Domestic violence, attacks in detention
• Self-harm

Question 26

Prohibition of intentional killing art. 2(1) what obligation does a state have?

Answer 26

“No-one shall be deprived of his life intentionally”.

• To refrain from deliberate killing – unintentional killing?
• To plan and manage operations so as to minimise recourse to lethal force
• Positive obligation: regulation defining circumstances of force and firearms
• Extraterritorial application: to refrain from extradition and deportation where there is a risk of deliberate killing
• Evidence and burden of proof: beyond reasonable doubts
  > but what about when the state has exclusive knowledge of the situation?

Question 27

What are the exception to the prohibition of intentional killing? art 2 (2)

Answer 27

“the use of force which is no more than absolutely necessary:”

a) in defence of any person from unlawful violence;
b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Question 28

the exception to the prohibition of intentional killing must be “absolutely necessary” - what can you say about that?

Answer 28

• Strictly proportionate to the achievement of one of the aims in (a)-(c)
• Honest belief on good reasons that the actions were necessary – subjective belief
• Planned and controlled to minimise recourse to lethal force
• Strict assessment where civilian lives are lost
• Tolerant of honest mistakes – if reasonable and
• proportionate use of force
  Planning inadequacies

McCann and Others v UK
Finogenov and Others v Russia

Question 29

Khamila Isayeva V Russia

What did the Court say about the substantive obligation?
What did the Court say about the procedural obligation?

Answer 29

: Case about Burden of proof. Applicant most prove the death.

Question 30

Vo. v. France

Answer 30

Vo. v. France - she went in for check up. 6 months pregnant. Mix up with names. A mix up happened and she got an abortion instead of the check up. France must take responsibility for killing af unborned chilled. Diskussion til hvornår retten til livet begynder = national level.

Question 31

The positive obligation to protect life

Answer 31

• The court has found that the first sentence in article 2 (1) also contains, that the states have to take appropriate steps to safeguard the lives of those within their jurisdiction.
o More cases have demonstrated that the state’s duty to safeguard life is extensive.
o An obligation of this must be construed as applying in the context of any activity, weather public or not, in which the right to life may be at stake.