Article 2

Question 1

what is the scope?

Answer 1

-everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in execution of a sentence of court following conviction of crime

• deprivation shall not be regarded as inflicted in contravention of this article when it results from force which is no more than absolutely necessary:
  
  • in defence of someone from unlawful force
  • to effect a lawful arrest or prevent escape of person lawfully detained
  • in action taken in quelling riot or insurrection

Question 2

is this an absolute right?

Answer 2

non-derogable, means absolute, can’t be limited or suspended in any circumstance
only applies in peacetime

Question 3

does it only apply in countries territory?

Answer 3

no, also outside territory

ali-skeini

Question 4

what are the issues considered under A.2?

Answer 4

• beginning of life and unborn child
• end of life
• state’s duty to protect life
• state’s duty to make adequate investigation into loss of life

Question 5

beginning of life and unborn child, what is beginning of life?

Answer 5

human life, not animal, ECHR doesn’t clarify what beginning of life is, unwilling to be precise in a definition,
its a matter to be decided on a national level, comes with a margin of appreciation that allows freedom to states to regulate matters on life and death

Question 6

what is margin of appreciation?

Answer 6

the discretion a state has in making rules to comply with ECHR

Question 7

Abortion and the right to life?

Answer 7

X v UK states abortion is not noted in A.2, most states have own laws on abortion
in most EU states, abortion is allowed without restriction up to and between 10 and 14 weeks gestation.

UK- abortion is allowed up to 24 weeks under abortion act but if there’s risk to health, there is no time limit.
malta, san marino do not allow abortions at all.

Question 8

Vo v France and beginning of life

Answer 8

doctors charged with unintentional homicide but acquitted as courts did not consider foetus as a human being entitled to protection but mother rights is entitled to protection, no breach
courts unwilling to be precise in a definition

Question 9

open door and dublin well woman abortion info

Answer 9

2 not for profit organisations neither advocated nor encourages abortion but gave info about options to pregnant women. breached A.10
cases involving abortion invoked A.10 and A.8

Question 10

the end of life?

Answer 10

everyone’s life must be protected,
apart from death penalty, limited circumstances are set out in which person can be deprived of right. UK, death penalty abolished, the end of life

Question 11

suicide and the end of life?

Answer 11

usually falls within margin of appreciation but
lambert v france- domestic authorities to verify whether decision to withdraw treatment is compatible and the Court’s role consists in ascertaining whether state fulfilled poisitive obligation

Question 12

the state’s duty to protect life?

Answer 12

a positive duty under A.2, a number of areas to consider:

• duties of the state, in relation to life-threatening environmental risks
• preventing individuals from violence by others
• preventing suicide by prisoners
• protecting against malpractice
• extradition, expulsion, deportation

Question 13

duties of state in relation to life-threatening environmental risks

Answer 13

does not impose a positive obligation to provide info about this.
however, overlap of A.10 and 8 in Oneryildiz v Turkey
(authorities knew of risk of people living by the rubbish area thus obligation of state to take steps to protect people living near it , failed so breach of A.2)

Question 14

duty in relation to life-threatening environment risks and violation

Answer 14

whilst state enjoys wide margin of appreciation, merely adopting regulations in conformity with EU standards is not enough to meet requirements of convention.
violation can occur by failure to:
– apply regulations strictly
– provide effected populations adequate info on the risks
– hold those responsible to account e.g. criminal prosecutions

Question 15

protection of individuals from violence by others?

Answer 15

usually falls within margin of appreciation
Osman v UK (male teacher developed obsession with a male pupil, asserted killer had been known to be a threat but that insufficient protection was given by police , A.2 can impose duty on public authority to take reasonable steps to protect a person from real and immediate risk to life) stated the UK’s then complete immunity for police was too wide

Question 16

preventation of suicide by prisoners

Answer 16

questions arise on whether and when state has a duty to prevent individuals from committing suicide, may be when individual is in the custody of state wither as prisoners or as patient with mental illness

Question 17

keenan v UK and preventation of suicide by prisoners

Answer 17

applicant’s son was medically monitored in prison by doctor but managed to hang himself.
ECHR stated that prison had done all they could after he started displaying suicidal tendencies e.g they closely monitored him.
therefore no breach of obligation to take steps to prevent suicide

Question 18

state protection against medical malpractice

Answer 18

an argument that deaths resulting from medical malpractice and negligence should involve responsibility of state.

Erickson v Italy- there’s an obligation to establish an effective judicial system for establishing cause of death in hospital and any liability of medical practitioners

Question 19

Powell v UK and state protection against medical malpractice

Answer 19

medical negligence doesn’t breach A.2 so long as state complies with its general duty to protect lives of patients
court has made it clear that ‘mere error or medical negligence’ is not sufficient

Lopes De Sousa v Portugal- appears to limit such claims in health care to cases of denial of life saving treatment caused by systemic issues rather than individual

Question 20

states duty to protect life and extradition, expulsion and deportation

Answer 20

under the convention, no right not to be extradited, expelled or deported from a country of which one is not a national.
however, A.2 can be applied to situations where applicant may suffer in state to which he/she is to be deported .

Question 21

the state’s duty to make an adequate investigation into loss of life

Answer 21

this obligation applies to any unnatural death which occurs in state detention
Jordan v UK- a number of criteria established for an effective investigation that satisfies A.2

Question 22

the right can be infringed if failure of state to investigate death properly

Answer 22

Jordan v UK states that ‘there must be sufficient element of public scrutiny of investigation or results to secure accountability. in all cases, the next of kin of V must be involved in procedure to extent necessary to safeguard legitimate interests.’

Question 23

issues to be considered with respect to A.2,2

Answer 23

• -the use of force, what is necessary
• -in defence of any person from unlawful violence
• -in order to effect a lawful arrest or prevent escape of person lawfully detained
• -in actions lawfully taken for purpose of quelling a riot or insurrection

Question 24

The use of force - what is necessary

Answer 24

no breach of A.2 where death results from use of force that is no more than absolutely necessary.
concerns ascertaining whether excess force has been used.
consideration should be given to all dangers and risks and whether situation was planned and controlled.

Question 25

The use of force - what is necessary -trained

Answer 25

the state must ensure that police and security services that are faced with the situations where use of lethal force is possible must be appropriately trained, instructed and given strict guidance
McCann v UK
(lethal force used by state must be based on “an honest belief which is perceived to be valid at the time but turns out to be mistaken”)

Question 26

The use of force - what is necessary Matzarakis v Greece

Answer 26

action by police where consequence wasn’t fatal

use of lethal force may be justified in certain circumstances but this doesn’t amount to carte blanche (complete freedom to act as one wishes)
unregulated and arbitrary action by state officials is incompatible
found violation of A.2

Question 27

The use of force - what is necessary Finogenov v Russia

Answer 27

often it isn’t the decision to use force thats the violation but the way in which its used

in this case, though there was risk to lives from use of force, “there existed a real, serious, immediate risk of mass human loss and authorities had every reason to believe forced intervention was lesser evil in circumstance”

no violation of A.2

Question 28

In defence of any person from unlawful violence

Answer 28

allows there to be no violation where there is killing which is strictly proportionate to aim of defence of others from unlawful violence
Armani Da Silva v UK , no violation
principle question to be addressed is whether person had an honest and genuine belief that use of force was necessary, belief must also be subjectively reasonable

Question 29

in order to effect a lawful arrest or prevent escape of person lawfully arrested

Answer 29

Nachova v Bulgaria
can only justify putting human life at risk in circumstances of absolute necessity

can be no necessity where its known that person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence
even if failure to use force may result in opportunity to arrest fugitive being lost

Question 30

in action taken for purposes of quelling a riot or insurrection

Answer 30

Stewart v UK - 13 yr old killed by plastic bullet fired by soldier during what military claimed to be serious rioting, found force used was ‘absolutely necessary’, even though he didn’t take part in aggressive action against patrol

Question 31

in action taken for purposes of quelling a riot or insurrection Gulec v Turkey

Answer 31

applicants son killed in spontaneous unauthorised demonstration and attacks on public buildings.
A.2 violated (despite demonstration being far from peaceful) as excessive force was used.

Question 32

2 possible violations of A.2

Answer 32

where action was not absolutely necessary

where investigation following incident has not complied with requirements of A.2