Chapter 8: ECHR Articles 2 and 3

Question 1

1. Introduction

Answer 1

One of the hallmarks of a free society is protection of the rights of its citizens to go about their daily lives free from unwarranted state interference. This protection covers a variety of areas including the right to privacy and the right to speak one’s own mind, as embodied in articles 8 and
10 of the ECHR, respectively.

Question 2

Other Rights within ECHR

Answer 2

However, there are other rights contained in the ECHR which, if violated, can have an even more
profound impact on an individual, for example: the right to life (article 2); and the right not to be
subject to torture or inhuman and degrading treatment (article 3). The right not to be arbitrarily
detained (article 5) will be considered in the next chapter

Question 3

Incorporated into UK Domestic Law

Answer 3

It will be recalled that these articles of the Convention, alongside the other protections in articles 1
to 12, and 14 of the ECHR, have been incorporated into UK domestic law by the HRA 1998. In enforcing rights, the courts also have a duty to take into account the decisions and jurisprudence of the ECtHR (s 2(1) HRA).

Question 4

2 Article 2 ECHR: The right to life

Answer 4

Article 2 provides as follows:
(a) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.

Question 5

Deprivation of life

Answer 5

(b) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(i) in defence of any person from unlawful violence
(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
(iii) in action lawfully taken for the purpose of quelling a riot or insurrection

(Note that, as originally drafted, article 2 allowed for the death penalty. All signatory states to the
Convention have, however, subsequently abolished this sanction.)

Question 6

2.1 Limits to article 2

Answer 6

Article 2 is one of the most fundamental rights in the Convention, and the contracting states are
not permitted to derogate from it under article 15. The ECtHR has found that, along with article 3, it embodies one of the basic values of the contracting states and, as such, its provisions must be strictly construed. (These principles were established in cases such as Giulani and Gaggio v Italy, and McCann and Others v UK.)

Question 7

Not an absolute right

Answer 7

Notwithstanding the fundamental nature of article 2, it is not an ‘absolute right’ in the way that article 3 is. You will have noted that the wording of article 2(2) specifically includes limits on the right to life, which allow the state to take life for what might loosely be termed exceptional ‘law
enforcement purposes’.

Question 8

No more than absolutely necessary & proportionate

Answer 8

However, if the state takes a life, for example because this was required to defend another person from unlawful violence, the state must demonstrate that its use of force was ‘no more than absolutely necessary’. In other words, it must show that the degree of force used against person
A was proportionate to achieve the legitimate aim of protecting person B.

Question 9

Key case: McCann, Farrell and Savage v UK (1996) 21 EHRR 97

Answer 9

This is one of the leading Strasbourg cases on article 2. It provides guidance on the nature, scope and limits of the state’s obligations under article 2.

Question 10

State’s ‘negative’ obligation

Answer 10

The case concerns the state’s ‘negative’ obligation to refrain from killing, and also the investigative duty on the state to fully investigate cases of killing by state agents. Note that the ECtHR has found this duty to be an inherent part of article 2.

Question 11

Death on the Rock’ case

Answer 11

Often known as the ‘Death on the Rock’ case (after a TV documentary on the subject), it was brought by the relatives of three alleged IRA members who were shot dead in Gibraltar by members of the British security forces (the SAS)

Question 12

Proportionate Response

Answer 12

The killings had been carried out with little in the way of a warning to the deceased, and there
was no apparent effort to capture them alive. The UK government’s position was that its intelligence agents believed that the three suspects were about to detonate a bomb, which could have caused serious loss of life. Therefore, it claimed that the killings were a proportionate
response to the perceived security risk.

Question 13

No violation found

Answer 13

The ECtHR found no violation of article 2 in relation to the shooting by the frontline SAS soldiers
themselves. It accepted that the soldiers honestly believed, in the light of the information that they
had been given, that it was necessary to shoot the suspects. The actions which the soldiers took,
in obedience to superior orders, were thus perceived as absolutely necessary in order to safeguard innocent lives.

Question 14

Did find violation by UK

Answer 14

However, the court did find a violation by the UK in relation to the lack of care exercised in the
control and organisation of the overall security operation. This obligation, which the UK had
breached, was framed as the duty of command, control and training. This managerial obligation
required the state to be in a position to judge when to apply the use of deadly force and to have
mechanisms in place to avoid such force when it is not strictly required.

Question 15

2.2 Investigative duty

Answer 15

Article 2 has been interpreted as imposing a duty on the state to investigate all situations in
which the state directly takes a life. The rationale for this lies in the fact that it is primarily the responsibility of states themselves to investigate and remedy human rights breaches. If the state
carries out a proper investigation, then there will be no need to invoke the article in this respect.

Question 16

Effective official investigation

Answer 16

The obligation to protect the right to life under this provision, read in conjunction with the
State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, 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 alios, agents of the state

Question 17

Violations of Article 2

Answer 17

Jordan v UK (2001) 37 EHRR 52, McKerr v UK (2002) 34 EHRR 553, Kelly & Others v UK, Judgment of 4 May 2001, and Shanaghan v UK (2001) 11 BHRC 1 are all cases in which the ECtHR found violations of article 2 on the ground that the inquests held into killings by security forces in Northern Ireland were flawed. (These cases were decided under both articles 2 and 6 - the right to a fair and effective legal process.)

Question 18

Al-Skeini v UK [2011] 53 EHRR 18

Answer 18

The ECtHR found that the procedural, investigatory element of article 2 extended extra-territorially so that the UK was required to investigate the deaths of six Iraqi civilians killed in 2003 (in Iraq) in circumstances involving British soldiers

Question 19

Jurisdiction applied under HRA

Answer 19

As seen in a previous chapter, jurisdiction applied under the HRA as UK military forces had sufficient control
over the territory at the time these deaths occurred.

Question 20

Armani Da Silva v UK (2016) 63 EHRR 12

Answer 20

Concerned the notorious killing in July 2005 of the
Brazilian citizen, Jean Charles de Menezes, in Stockwell underground station. Ultimately the
Grand Chamber found that the decision not to prosecute individual officers was because of insufficient evidence as to criminal liability rather than because the UK state had failed in its
obligation to fully investigate all aspects of the fatal shooting.

Question 21

2.2.1 Investigative duty: Third parties

Answer 21

In situations where a death has been caused by a third party, rather than by state agents, there will also be a duty to investigate. R (Amin) v Secretary of State for the Home Department [2003]
UKHL 51 is an instructive case on these points.

Question 22

Feltham Young Offenders’ Institution, Zahid Mubarek

Answer 22

An inmate of Feltham Young Offenders’ Institution, Zahid Mubarek, was murdered by his cellmate (a known violent racist) for racially motivated reasons. The House of Lords emphasised the
importance of the state’s duty to protect life, particularly of those involuntarily in custody. (This relates to the ‘positive duty’, discussed later in this chapter.)

Question 23

2.2.1 Investigative duty: Third parties

Answer 23

The Home Office declined to hold a full public enquiry on the basis that there had been a prison investigation, an enquiry by the Commission for Racial Equality, and a criminal trial. Their lordships re-stated the importance of the state’s obligation under article 2 to investigate deaths involving agents of the state

Question 24

Irreducible Core

Answer 24

They pointed out that, while there was no single template for such investigations, there was an
irreducible core at the heart of the article 2 duty: the investigation must be public, independent
and involve the full participation of the family. Such an investigation had not taken place in this
case and this was therefore seen to represent a violation of article 2.

Question 25

2.3 Positive obligation under article 2

Answer 25

As previously noted, article 2 can also impose a positive obligation on the State to protect or preserve life.
In its most basic form this positive obligation requires states to have criminal justice systems that punish and deter homicide. You will recall, from an earlier chapter, the case of X and Y v The Netherlands [1986] 8 EHRR 235, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The
respondent state was held to have breached its positive obligation under article 8.

Question 26

Operational obligation

Answer 26

However, it can also include an operational obligation on states to take preventative measures to
protect individuals when their life is at risk from other individuals or from suicide.

Question 27

Obligation not as broad as it sounds

Answer 27

This obligation is not as broad as it sounds, as liability will only attach to state authorities if they
knew, or ought to have known, that there was a real and immediate risk to life but failed to take
appropriate measures. You will recall that this was the test laid down by the ECtHR in Osman v UK (2000) 29 EHRR 245.

Question 28

NHS Trust A v M; NHS Trust B v H [2001] 1 All ER 801

Answer 28

In NHS Trust A v M; NHS Trust B v H [2001] 1 All ER 801, for instance, the Family Division of the High
Court held that the withdrawal of treatment (through hydration and nutrition) to M, a patient in a persistent vegetative state, would not constitute a breach of article 2. The state was not considered to be under an obligation to prolong M’s life in a situation where the prognosis was so
poor

Question 29

Assisted suicide

Answer 29

It is also interesting to note the impact of this aspect of the article on the contentious issue of
assisted suicide, most notably in the case of R (on application of Pretty) v DPP, [2001] UKHL 61,
and the subsequent Strasbourg case, Pretty v UK (2002) 35 EHRR 1. In such cases the courts have
to apply a balance between the wishes of the person not to have to die in circumstances that may
be ‘inhuman and degrading’ (in article 3 terms) and the state’s obligation to do what is reasonable to preserve life.

Question 30

2.3.1 Rabone

Negligent Treatment

Answer 30

The degree to which doctors and NHS Trusts might be responsible under the positive duty under
article 2 for ‘negligent’ treatment, leading to the death of a patient, was considered in the case of
Rabone v Pennine Care NHS Trust [2012] UKSC 2

Question 31

High Court & Court of Appeal

Answer 31

Both the High Court and the Court of Appeal had held that the NHS Trust was not under a positive obligation to take reasonable steps to prevent a patient from committing suicide when
being released from a psychiatric hospital on home leave. In reaching this conclusion, reliance
was placed on the fact that the patient was not formally detained under the Mental Health Act 1983 at the time of her suicide.

Question 32

Supreme Court

Answer 32

On appeal, the Supreme Court overturned this finding. It held that the trust had assumed responsibility and control over the patient, who had been admitted when facing a real and immediate risk of suicide. It found that the Trust should have detained the patient under the Mental Health Act 1983 when she was insisting on leaving the hospital, as there was a real risk
that she would take her life when allowed home. The Trust had therefore failed to take reasonable steps to prevent the real and immediate risk of suicide in breach of article 2.

Question 33

3 Article 3 ECHR

Answer 33

Article 3 provides that:
Prohibition of torture
No one shall be subject to torture or to inhuman or degrading treatment or punishment.

Question 34

Absolute Right

Answer 34

Article 3 of the ECHR is an absolute right in that it permits no derogation and is expressed unequivocally. Indeed, if there is one right which is recognised throughout the democratic world as an absolute right, it is the prohibition against torture.

Question 35

Both negative and positive duties on public authorities.

Answer 35

It is clear that the article imposes both negative and positive duties on public authorities. As noted above, the negative duty that is imposed by the article is an absolute one: ‘no one shall be subject to torture or to inhuman or degrading treatment or punishment’.

Question 36

Positive Duty is not absolute

Answer 36

The positive duty is, however, not absolute, and this is discussed and explained below.

Question 37

Limits to Article 3

Answer 37

The wording of article 3 tells us nothing specific about what amounts to inhuman and degrading treatment and/or torture. It is important to note, though, that these are seen to apply to two distinct levels of ill-treatment and abuse.

Question 38

Serious ill-treatment or neglect falls within its scope

Answer 38

Whilst it is difficult to define all of the circumstances that will engage article 3, it is clear that the standard of what constitutes ‘inhuman and degrading treatment’ is set at a high level. Only
serious ill-treatment or neglect falls within its scope, so this must attain a minimum level of severity. Assessment of that minimum is relative as it depends on all the circumstances of the
case.

Question 39

R (B) v Responsible Medical Officer,
Broadmoor Hospital [2005] EWHC 1936 Admin.

Answer 39

Relevant factors are the nature and context of the treatment, the manner of its execution, its duration, and its physical and mental effects, including, where relevant, its impact on the health of the person involved, both positive and negative –

Question 40

3.1 ‘Torture’: A higher threshold

Answer 40

‘Torture’, on the other hand, is an aggravated, deliberate and cruel form of treatment or punishment. The approach taken in Ireland v UK confirms this basic distinction between ‘torture’ and ‘inhuman or degrading treatment or punishment’.

Question 41

ECtHR held that:

Answer 41

It was the intention that the Convention with its distinction between torture and inhuman treatment should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering

Question 42

Key case: Ireland v UK (1979-80) 2 EHRR 25

Five Techniques

Answer 42

The programme, which was clearly planned and authorised, was known as the ‘Five Techniques’.
These included practices such as wall-standing (being made to stand inches from a wall for anything up to 20 hours with limbs outstretched), sleep deprivation, subjection to intense noise, hooding, and withholding of food.

Question 43

Council of Europe’s Commission on Human Rights

Answer 43

The case was first considered by the Council of Europe’s Commission on Human Rights (a nondeterminative, non-judicial body that is now defunct), which concluded that these combined
techniques did amount to ‘torture’. The UK government accepted these findings and promptly
denounced the earlier practices.

Question 44

Merely a case of inhumane and degrading treatment

Answer 44

Following the Commission’s decision, somewhat surprisingly, the ECtHR later concluded that this
was ‘merely’ a case of inhuman or degrading treatment, indicating perhaps a reluctance to
classify psychological techniques as torture.

Question 45

Breaking of individual will: Torture?

Answer 45

Some of the minority tried to address this by arguing that any activity that aims at breaking an individual’s will should be classified as torture, whether it involves actual pain or mere discomfort. This was not approved by the majority, however

Question 46

Ireland v UK (No. 2) [2018] ECHR 247

Answer 46

The principle from Ireland v UK, that ‘torture‘ should be regarded as qualitatively different, is uncontroversial. It arose from a desire to preserve the relative stigma of ‘torture’. However, the
exact dividing line between the two article 3 concepts that was adopted in the case has come in
for considerable criticism.

Question 47

3.1.1 ‘Torture’

Aksoy v Turkey (1997) 23 EHRR 553

Answer 47

A comparative but more violent case was Aksoy v Turkey (1997) 23 EHRR 553 in which the applicant was stripped naked, strung up with his arms tied together behind his back and had
electrodes attached to his genitals. Water was thrown over him and he was beaten at 2.5-hour intervals for four days. The ECtHR considered that this form of deliberately inflicted treatment was of such a cruel nature that it amounted to torture.

Question 48

Aydin v Turkey, (1998) 25 EHRR 251

Answer 48

Similarly, in Aydin v Turkey, (1998) 25 EHRR 251 the complainant was raped, beaten, stripped and
sprayed with high pressure water, while in custody. The ECtHR found that this clearly amounted
to torture. It said that, even if the rape had not occurred, there was a possibility that it would still
have amounted to torture.

Question 49

3.1.2 ‘Inhuman and degrading treatment’

Lesser form of article 3

Answer 49

As discussed above the scope of the ‘lesser’ form of article 3 abuse is wider but this makes it more
difficult to chart with precision. At the lower end of the spectrum, prison conditions have proved one area where attempts to raise an article 3 violation have been made in the domestic context.

Question 50

Napier v The Scottish Ministers [2005] 1 SC 307

Answer 50

The applicant was detained in HM Prison, Barlinnie in Glasgow. He complained about the lack of toilet facilities and the small size of the cell, which exacerbated his facial eczema.

Question 51

Napier v The Scottish Ministers [2005] 1 SC 307

Answer 51

The court held that the conditions of detention endured by the applicant and their effect on his
physical health amounted to degrading treatment and were a violation of article 3. While it was impractical to move him and all the other prisoners enduring similar conditions to a different
prison, the applicant was entitled to have his case for removal considered on an individual basis.

Question 52

R (Spinks) v Secretary of State for the Home Department, [2005] EWCA Civ 275

Answer 52

The appellant
was a mandatory life sentence prisoner who had been convicted of murder. He was diagnosed
with cancer of the colon and was receiving medication from the healthcare centre at the prison.

Question 53

Court of Appeal

Answer 53

He alleged that the Secretary of State’s failure to release him on compassionate grounds
interfered with his attendance for chemotherapy at hospital and attendance at a hospice for counselling and therefore amounted to a breach of article 3. The Court of Appeal stated that, to show a breach, the conduct on the part of the state must be of a serious and wholly unacceptable kind. The threshold had not been reached in its view in this case.

Question 54

3.2 Positive obligation - article 3

Answer 54

In R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 it was held that article 3 imposes a positive duty on public authorities to take action to prevent individuals being
subjected to torture and/or inhuman and degrading treatment or punishment at the hands of others

Question 55

The Court of Appeal held in R (Bagdanavicius) v Secretary of State for the Home Department [2004] 1 WLR 1207

Answer 55

Unlike the negative obligation, the article 3 positive obligation is not absolute. The Court of
Appeal held in R (Bagdanavicius) v Secretary of State for the Home Department [2004] 1 WLR
1207 that: a claimant may […] be able to establish an Article 3 claim if he can show that the authorities
there know or ought to know of particular circumstances likely to expose him to risk of Article 3 ill-treatment. The approach that has begun to emerge therefore reflects the approach which has been taken in relation to article 2.

Question 56

3.2.1 Soering

Answer 56

The unusual case of Soering v UK (1989) 11 EHRR 439 specifically concerned the Convention concept of the positive obligation.

Question 57

Soering v UK (1989) 11 EHRR 439

Answer 57

Soering, a German national, was in the custody of the UK and faced extradition to the USA on a (capital) murder charge. The prosecuting authorities in Virginia made it clear they would seek the death penalty. Soering sought to challenge his extradition on the ground that it would be a breach of the UK’s positive obligation as a Convention state to remove an individual to a jurisdiction where there was a ‘real risk’ he would suffer treatment contrary to the Convention

Question 58

Soering v UK (1989) 11 EHRR 439

Answer 58

At that time, capital punishment was not yet outlawed under the Convention – it remained one of the recognised exceptions in article 2. Soering could not therefore argue that removal to face
possible death in Virginia was a breach of the article 2 positive obligation. Instead, he successfully argued that the manner in which the process of capital punishment was carried out in the USA would violate article 3, as it constituted inhuman or degrading treatment. This was in relation to the very protracted process, where inmates could be stuck on ‘death row’ for many years. This was seen to produce a debilitating psychological condition, the so-called ‘death row phenomenon’.

Question 59

3.2.2 Chahal

Answer 59

While Soering concerned the obligations imposed on the UK authorities in relation to extradition,
Chahal v UK (1997) 23 EHRR 413 dealt with the application of the same obligations in relation to
deportation. Chahal was an activist for the cause of Sikh separatism in India who was in the custody of the UK. The UK wanted to deport him to India because of his alleged criminal behaviour while in India, and the Indian government had indicated he would be welcomed back and treated properly.

Question 60

Chahal

Answer 60

Chahal successfully argued that, while there would be no officially sanctioned action against him, he would be at ‘real risk’ of mistreatment by rogue elements within the Punjab Police, and that their official status (even if their action was not ‘officially’ sanctioned) would mean that the state would not intervene to protect him.

Question 61

Non-state actors

Answer 61

The case therefore extended the principle in Soering to apply to situations where non-state
actors represented the possible cause of the article 3 mistreatment.

Question 62

3.2.3 Further contexts

Answer 62

The positive obligation on states under article 3 extends to cases where individuals claim that
their removal from the territory would cause a significant deterioration in their physical or mental
health due to not having access to the same standards of medication and healthcare in their
home countries as they do in their host state.

Question 63

ECtHR’s decision in Paposhvili v Belgium [2017] Imm AR 867, in AM (Zimbabwe) [2020] UKSC 17:

Answer 63

The Supreme Court confirmed that the UK’s obligation not to deport an applicant on medical grounds would apply where there were: substantial grounds for believing that the applicant, while not at imminent risk of dying, would face a real risk in the receiving country of being exposed either to a serious, rapid and irreversible decline in health resulting in intense suffering, or to a significant reduction in life
expectancy

Question 64

Vinter and Others v UK [2016] ECRR 1

Answer 64

The ECtHR found that ‘whole life orders’ which meant that the applicants could never be released from prison (other than on
compassionate grounds at the discretion of the Home Secretary) amounted to inhuman and degrading treatment under article 3

Question 65

Attorney-General’s Reference (No 69 of 2013) [2014] EWCA Crim 188

Answer 65

The Court of Appeal has
held that the whole-life tariff regime is compatible with article 3. This hinges on a clear difference of opinion between the courts with regard to the clarity of the relevant provision enabling release in exceptional circumstances.

Question 66

3.3 Investigative duty under article 3

Answer 66

In DSD and NBV v Commissioner of the Metropolis [2018] UKSC 11 the Supreme Court found that there had been a breach of the police’s obligation to conduct an effective investigation into the crimes committed by the former taxi-driver, John Worboys. This was seen as part of the failure to prevent the violation of the two claimants’ article 3 rights by Worboys. The court’s view was unanimous, but it was notable that some of the justices differed in
their view on the nature of the obligation owed

Question 67

Lord Kerr Judgement

Answer 67

Giving the main judgment, noted the difference in the positions in the law of tort, where a common law duty to investigate is not imposed on the police, and the law pertaining to the
ECHR. His view, shared by Lady Hale and Lord Neuberger, was that an operational duty to
conduct a proper investigation fell upon the police. Lord Hughes was more restrictive in his view,
however, considering that only structural or systemic failings by the police should attract liability under the Convention.

Question 68

4 Summary

Article 2 protects the right to life:

Answer 68

• Article 2 is limited by the specified circumstances in article 2(2)(a) to (c).
• The use of lethal force must be ‘no more than absolutely necessary’ (article 2(2)).
• Article 2 provides for negative (McCann, Farrell and Savage) and positive obligations (Osman v UK) and, in either case, there is a secondary obligation to investigate deaths where the state is involved (McCann; Amin).

Question 69

Article 3 protects the right not to be subject to torture or to inhuman or degrading treatment or
punishment.

Answer 69

• Article 3 is an absolute right in respect of the state’s negative obligations. Whether treatment meets the respective thresholds for torture or inhuman degrading treatment will
  depend upon its nature, severity and effects (Ireland v UK; R(B)).
• Article 3 also places a positive duty on the state (Soering; Chahal), and an investigative duty (DSD and NBV).