Art. 2 Flashcards
What obligations arise for the CPs under Art 2? Where are these found?
There is a negative obligation for the authorities to refrain from intentional killing of its people. There is a positive obligation for the authorities to protect the people on its territory and prevent loss of life and if something goes wrong, to conduct an effective investigation. These obligations were emphasized by the Court in the case of Lambert v France.
What is the status of the death penalty within the convention?
Art. 2(1) ECHR does not prohibit the death penalty, however Protocol 6 Art. 2 abolished death penalty in peacetime and Protocol 13 abolished it at all times.
Can a person be extradited/ deported and face the death penalty? Is there any ruling?
If a person is set to be deported to a State where death penalty is available, arrangements have to be made by the sending state to guarantee that the person will not face death penalty or else this may be considered a violation of Art. 2. The case is Al-Saadoon
How can ‘absolutely necessary’ be measured?
In accordance with the article, killing someone without justification is strictly prohibited. ‘Absolutely necessary’ indicates that any force must be proportionate and necessary to the legitimate aim achieved. Para 2 a-c provides for scenarios where use of force may be allowed, however excessive use of force can consist a violation even if no deaths occur.
What happens when someone dies in custody?
There is a heavy burden on the State authorities to prove their innocence and give a meaningful explanation. State authorities are obliged to conduct an effective investigation to solve the death.
Are there any positive obligations to protect life? What?
CPs are obliged to conduct an effective investigation in case this is so required, and they are also obliged to protect their citizens from the unlawful killing of its agents.
CPs have a duty to create a legislative framework to deter against unlawful killing and they must take action to avert a specific risk from one’s life.
How is an investigation effective?
An investigation is considered effective if it is conducted by an independent and impartial body (1) capable of determining whether the use of force was justified (2), and if not, capable of identifying and punishing the wrongdoers (3).
Are unborn children covered by Art. 2?
In accordance with the case of X v UK, unborn children are not covered under Art. 2
Does Art. 2 include a right to die? Where?
No based on the Pretty case, the right to die is not covered under art. 2.
What in Lambert?
The court ruled that CPs not only must refrain from the unlawful killing by its agents, but they must also make sure to protect their citizens lives
What in Hutchinson?
The court ruled that life sentence is not prohibited, however there must be a prospect of release for the prisoner and a possibility for review not more than 25 years after the judgment.
