Article 2 ECHR: The Right to Life Flashcards
What obligations does Article 3 generate for the states?
(i) Obligation not to take life save for the reasons explicitly enumerated in Article 2 ECHR (Substantive Dimension)
(ii) Obligation to take steps to prevent loss of life
(iii) Duty to carry out an effective investigation into the circumstances surrounding the death of an individual (Procedural Dimension)
Article 2 ECHR does not confer a right to die or to enlist the aid of another in bringing about one’s death e.g.,
R (Nicklinson) v Ministry of Justice [2014] UKSC 38
It also does not confer a right to life to a foetus. Therefore, abortions do not violate Article 2 ECHR on the basis that they interfered with the right to life of the foetus
Intentional Deprivation of Life by a state agent
(i) States will be liable for deaths caused by police officers and state officials unless they come within the requirements of Article 2(2) ECHR. The state must be able to demonstrate that deprivation of life was ‘absolutely necessary’ in the circumstances
(ii) States must have in place a regulatory or administrative framework defining the limited circumstances in which law-enforcement officials may use force
McCann and others v United Kingdom (1995) case from PowerPoint
Positive Duty of the state to safeguard life
Circumstances that will give rise to this duty:
(i) Protection of (witness) identity
(ii) Protection of those in the care of the state (for instance, a secure hospital or prison)
(iii) Protection of members of the armed forces
(iv) Protection of individuals known to be at risk for loss of life (for instance victims of domestic violence)
In which circumstances will the state be found in violation of Article 2 ECHR for failing to protect the victim?
Osman v United Kingdom (1997) at [115-116]: “The authorities knew or ought to have known at the time of the existence of a real and immediate risk of life of an identified individual or individuals […] and they failed to take measures within the scope of their powers which judges reasonably, might have been expected to avoid that risk”
Knew or ought to have known:
“Stupidity, lack of imagination and inertia” do not afford an excuse to the national authority
Chief Constable of the Hertfordshire Police v Van Colle [2008] UKHL 50: The court should endeavour to place itself in the position of the police officer and “assess events as they unfolded through his eyes” per Lord Bingham at [32]
L v B case
Duty to carry out an effective investigation - When is an investigation effective?
To be considered effective for the purposes of Article 2, especially where the loss of life was caused by state agents, an investigation must be:
(i) Independent (institutional and hierarchical independence between investigator and accused public official)
(ii) Prompt and carried out with reasonable expedition
(iii) The investigating authorities must properly assess whether the use of force was justified
(iv) The investigation must identify and - if appropriate - punish those responsible
(v) There must be public scrutiny
(vi) Involvement of the next of kin is required
Armani Da Silva v the United Kingdom (2016): where the applicant’s relative was killed by police in error. The Court found that the investigation into the death was effective even though the perpetrators were not punished. The Court noted that: [page 11 quote]
Article 2 ECHR and healthcare
MHS Trust A v M [2001] Fam 348: The family court was asked to determine whether it was a violation of Article 2 ECHR to withdraw feeding from patients in a permanent vegetative state
The family court responded that Article 2 imposed a positive obligation to give treatment where that is in the best interests of the patient - but not where it would be futile. Discontinuing treatment would not be an intentional deprivation of life under Article 2, when withdrawing treatment was in line with a respected body of medical opinion
Charles Gard and Others against the United Kingdom (2017) - decision on admissibility: “Concerning access to experimental treatment, or treatment which is not usually authorised, the Court has previously considered that the positive obligations under Article 2 may include the duty to put in place an appropriate legal framework, for instance regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives. […] Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way” [77-78]
Article 2 ECHR in the context of Military Operations Abroad
Article 1 ECHR: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention
Does this concept of jurisdiction include military operations abroad? Does the Convention have ‘extraterritorial’ effect, namely does it protect individuals outside the territory of the UK and, if so, when?
Al-Skeini and others v United Kingdom (2011): The applicants were relatives of Iraqi civilians killed in Southern Iraq by British Armed Forces during the occupation of Souther Iraq. Did they fall under the UK’S jurisdiction, i.e., was the UK responsible under Article 2 ECHR for their deaths? - “Jurisdiction is presumed to be exercised normally throughout the state’s territory. But, under exceptional circumstances it can apply extraterritorially” [131]
The Court went on to identify 3 such exceptional circumstances:
(i) State agent authority and control (e.g., diplomatic staff working overseas)
(ii) When there exists ‘Effective Control’ over an area. This will be the case where a contracting party to the Convention exercises some or all of the public powers ordinarily exercised by the government of that area
(iii) Where the contracting party to the Convention detains a foreign national overseas and holds them in a facility controlled by them
Do British troops or active servicemen and women abroad also fall within the UK’s jurisdiction for the purposes of the Convention?
Yes, the duty imposed under HRA 1998 s6, also applies to soldiers and active service persons
Smith and others v Ministry of Defence [2013] UKSC 41: “It is plain, especially when one thinks of the way the armed forces operate, that authority and control is exercised by the state throughout the chain of command from the very top all the way down to men and women operating in the front line. Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the state’s behalf. They are all brought within the state’s article 1 jurisdiction by the application of the same general principle” per Lord Hope at [52]
The ‘extraterritorial’ effect of the ECHR has not been warmly received by the government
Article 2 ECHR in the context of counter-terrorism
Tagayeva and Others v Russia (2017):
In this case, Russia found in violation of Article 2 for:
(i) Failing to take preventative steps to avert or minimise the terrorist attack
(ii) Carrying out an ineffective investigation
(iii) Being deficient in the planning of the rescue operation
(iv) Not establishing clear framework for when lethal force could be used
