Article 2 Flashcards
What is Article 2 ECHR
the right to life
Paragraph 1
No one shall be deprived of their right to life
Except where they are convicted a crime for which deprivation of life is the legal penalty
Paragraph 2
Exceptions
Where force used is no more than necessary, and state is either
1) defending a person from unlawful violence
2) effecting lawful arrest or preventing escape of lawful detainee
3) lawfully quelling a riot
What level of interpretation does this right receive
Strict
Authority for strict interpretation
McCann v UK
How have state obligations under Article 2 developed
Common law
Obligations
1) negative
2) positive
3) procedural
What is the negative duty
State must refrain from using lethal force
Negative duty in reference to capital punishment
Means that states should not use capital punishment
Prohibited by Protocol 13 of the ECHR - even in times of war or national emergency
Requirements of negative obligation
1) adequate legal framework surrounding use of lethal force
2) training and vetting of state agents
Authority and example for legal framework
Giuliani and Gaggio v Italy
Adequate legal framework could include clear guidelines on when to carry a firearm
Authority for vetting
Makaratzis v Greece - man ran red light and was shot at. Insufficient guidelines for Greek police and lack of training. Clear violation of Article 2 as includes near-death situations.
Requirements of a lawful exception to Article 2
Absolutely necessary
One of the three mentioned situations
Proportionate
Authority for proportionality and necessity
McCann
Armani Da Silva v UK
State agent’s honest and genuine belief that lethal force was required can make it necessary, but must be reasonable in circumstances
How does negative duty apply to death in custody
Where individual goes into custody fine but dies in custody - state responsible unless they can give good reason
Authority for deaths in custody
Anguelova v Bulgaria
How does negative duty apply to dissapearances
Presumption of death and state responsibility, unless they can prove otherwise
How does negative duty apply to arrest techniques
If arrest techniques hasten their death, state responsible
What is the positive duty
State must protect the lives of their citizens
Authority for positive duty
LCB v UK
Two requirements of positive duty
1) legal framework that deters unlawful killing
2) reasonable preventative measures where the authorities know or ought to have known of a real and immediate risk to an individual’s life
Authority for framework
Oneryildiz v Turkey
Authority for preventative measures
Osman v UK
Example of preventative measures
Opuz v Turkey
Authorities knew about a domestic abuser. Only took victim statements. He eventually killed his wife. Insufficient measures taken to protect her
How does the positive duty apply to medical care
Medical care must be available to those who need it and sufficient to save their lives, similarly, those in custody must be given the care they require
Authority for medical care
Lopes De Sousa Fernandez v Portugal - general duty to provide adequate medical care for those who need it, standards of hospital etc.
How does the positive duty apply to natural disasters
If authorities are aware of risk of disaster and resultant risk to life, they must take measures. Particular emphasis on notification
How does the positive duty apply to self-harm
Must take measures to protect those vulnerable to self-harm from themselves
Authority for self-harm
Keenan v UK - man put in solitary confinement despite history of mental illness. Hung himself. Violation
What is the procedural duty
State must investigate suspicious deaths, as to prevent arbitrary use of lethal force by state agents
What does this duty require
An adequate investigation, not a certain conclusion
How is adequacy judged
Circumstantially
Authority for adequacy
Kaya v Turkey
Features that suggest inadequacy
1) delay in starting
2) periods of inactivity
3) not contacting kin
Requirements of effective investigation
1) prompt
2) sufficiently independent
3) based on objective evidence
4) reasonable
Example of investigation
Congoz v Turkey - government killed 17 people. Could not prove necessity and investigation as subject to delay and lacked reasonableness. Violation of negative and procedural
Case for strength of Article 2
Oneryildiz v Turkey - methane explosion. State violated as vague awareness. Broad right and relatively strong
Case for weakness of Article 2
Osman v UK - authorities knew teacher was obsessed with one pupil and acted weird. Did nothing. Not violation. Weak
Conclusion
Answer the question
