Course 10

Question 1

Are all human rights equal?

Answer 1

• Generations of rights but this idea should be a bit underplayed that all human rights are equal (Vienna Summit 1993). But it can also be dangerous to say that some rights are more fundamental than others because the danger is that, whenever there’s a conflict and there’s a restriction of rights: “oh but that is not an important right”  unwanted consequences.
• But it is clear that some rights will be rights where you cannot deviate, not even in times of emergency and under the convention, some rights can be restricted in normal times. Pretending that there is no difference in human rights would be a bit overstated.

Question 2

Which human right is the most important?

Answer 2

• The right of life:
• “The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights”. The reference is made to the idea of a kind of hierarchy, it is within the metrics of rights, it is for sure the most important one and it is the pre-condition of the enjoyment of other rights.
  
  • That means that special attention needs to be paid to the protection of the right to life and that restrictions to the right of life need to be very strictly construed.

Question 3

What is life?

Answer 3

• Not a matter of the law, but rather philosophy, moral, religion  human rights cannot be viewed only from a legal standpoint.
• Important: when does it start and when does it end –> right to abortion and right to euthanize. It is unclear and the courts do not take a clear stance.

Question 4

What was the case Vo vs. France?

Answer 4

• Pregnant woman goes for an ordinary medical examination, something goes wrong and her pregnancy has to be terminated = forced abortion.
• French court decides: case of involuntary homicide but the French Supreme Court says no and thus no conviction of the doctor. Strasbourg court  Grand Chamber.
  
  • Violation of article 2: right to life?
• Question: when does life start?
  
  • The Treaty does not go into this question and more into the procedure because there is no legal consensus on where life starts.
• Court says: there has been a criminal procedure and it was an effective one. Even though it was not favourable to you, you can still try civil remedies, negligence for example. It is not because the criminal law did not apply that therefore there was not a redress possible under civil law. So the court decided in the end that there are remedies, and therefore it could answer the question that without going into the question whether article 2 (the right to life) applies in terms of life to a foetus.
  
  • Court did not need to get into the question. This happens a lot in abortion cases, where the court does not take a stand and does not provide a clear answer.

Question 5

What is the scope of the protection for states?

Answer 5

• The right to life, the protection of article 2 basically brings about two important sets of obligations:
  1. Negative obligations = non-interference
  2. Positive obligations = duties
• Article 2 is a great demonstration on the development of the positive obligations.

Question 6

What are the positive obligations when it comes to the right of life?

Answer 6

• Principle: prohibition to interfere within a person’s life, without a proper justification = forbidden to kill a person intentionally or unintentionally.
  
  • In exceptional cases they will accept that there is a violation of article 2 even if the violation did not cost the death of a person. But this will depend on the degree, the intensity of the violence, so given de specific circumstances of the case.
  • Example: a police officer hits someone = unlikely that there was a risk/intention to kill someone but when they shoot = they put the life of the person they are pursuing or bystanders in a hot pursuit in danger  it can be argued that art. 2 can be used.
• Use of force: it will have to be scrutinized to see whether that was acceptable under art. 2 if that has lead to a person being killed. Apart from that, there will be the question to be answered whether this violence comes from a state agent or from someone that could be somehow linked/related to the state. If it’s not a state official, there may still be a problem under art. 2 but then under the positive obligations

Question 7

What is the first thing we are going to look at when it comes to the right of life?

Answer 7

• First: we’re going to look at:
  • Is the violence coming from state agents?
  • Not always clear, certainly if there were no eyewitnesses and can depend on circumstances. The court is going to ask a standard “beyond reasonable doubt”: shift in burden of proof but in a balance, the court may take those cases in consideration.
• Difficult issues of forced disappearances: as long as you do not have the victim  very difficult to know what happens, but you can rely on strong indications or presumptions.

Question 8

When can there be violence used?

Answer 8

• Article 2, §2: 3 situations:
  
  1. Violence can be accepted in defence of any person from unlawful violence. This is self-defence, as much as it is defending hostages, protecting third parties etc.
  2. Violence can be accepted within the framework of a lawful arrest or in order to prevent people from escaping. People that are lawfully detained.
  3. Lawful action taken for the purpose of an insurrection or riot.
• These are basic scenario’s: not excuses: factual situation covered by one of the scenario’s –> test of the violence still has to be performed = not sufficient if it is one of the 3 situations.

Question 9

What should we do with extrajudicial killings?

Answer 9

• Lots of discussion because these take place in the context of an armed conflict = laws of war applicable? However, outside the context of laws of war there is case law of the court where, of course, they find that there is no place for extrajudicial killings.
• So basically the use of force can be warranted in one of the three scenarios but it’s a first step.

Question 10

What is the necessity test?

Answer 10

• Second element: was the violence not more strict than necessary = necessity test?
• Often understood as a proportionality test: art. 8-11 but the test in article 2 is of a very different intensity = much stricter because art. 2 is the supreme value of the convention and limits should be constructed narrowly.
• Court: assess whether the use of force was not more than what was strictly and absolutely necessary in the specific case. You also need to take in account the surrounding circumstances:
  
  • Preparation: was the action well prepared? Were they well trained? Where was the control?
  • Protection of bystanders and third parties: were there precautions taken in order to protect the lives of the third persons?

Question 11

What was the Mecan Case?

Answer 11

• Mecan Case v. Northern Ireland:
• IRA terrorism planning an attack in Gibraltar and then intervention by soldiers when he arrived in Gibraltar  was the intervention in line with art. 2?
• Court: soldiers acted violently but they had very good reasons but the court found out that the action was underprepared with various deficiencies. You may wonder if the killing of one of the terrorist was not disproportionate = not strictly necessary.
• Training: the soldiers were trained to kill and there was not as much preparation.
• Case is a good example of how the court digs into a special operation and looks at the factual circumstances of the case and comes out with a conclusion they are not persuaded that in this case it was absolutely necessary to use violence or to use lethal violence.

Question 12

What about policemen and article 2?

Answer 12

• Policeman: always a bit reluctant because it is easy to judge if you do not have boots on the ground because they have to make really important decisions with lots of consequences in a split second. Lawyers should be aware of hindsight bias. But also shows something more fundamental: the importance of training policemen, soldiers and special force teams because you will always have difficult situations.
• The more they are trained, the less risk of improvisation, which could lead to an unwarranted use of lethal force that could have been avoided.
• In Belgium: Committee P: checking the way that the police functions. They understand the need of those training and they are very open to the discussing and very aware of the fact that it is not against the police, that is very important.

Question 13

What about hte death penalty and the right to life?

Answer 13

• If you look at article 2, when it was drafted: the convention did not outlaw the death penalty because still in a lot of European States so it was not outlawed. On the contrary: seen as an acceptable exception to the protection of the right to life but then change of minds.
• Protocol nr. 6: abolishes death penalty except in times of war.
  
  • 46 states have ratified
• Protocol nr. 13 in 2002: death penalty will be outlawed in times of war.
  
  • 43 states have ratified
• Huge success so it can be said that Europe has become a penalty free zone. If you have a look at the Eucha Land case, you will see that whether one could argue that, this protocols, protocols number 6 and 13, should be considered implicit changes of article 2, so that there is a kind of agreement in direct, tacit agreement, to change article number 2.

Question 14

Is the death penalty outlawed by the convention?

Answer 14

• No, not all states have ratified both convention so you cannot just change article 2. Even if it the death penalty is not totally outlawed, it still does not allow states not to respect fundamental rights and freedom.
• Minimum: could only be administered after a fair trial. So even if the death penalty could be accepted under article 2, there might still be an issue under article 3: penalty is considered a punishment that is inhuman or degrading = Soering case: the mere fact of extraditing someone to the US where he risks capital punishment.
• Article 3 is as effective an argument as article 2.

Question 15

What are the positive obligations?

Answer 15

• Positive obligations are not always easy to disconnect from each other: McCann case: if the answer is better preparing your people  that is already in the sphere of positive obligations. 2 categories:

1. Preventive = substantive obligations: obligations to avoid conflict happening, to avoid risks to taking lives.
2. Measures post factum

Question 16

What was the case LCB v. UK?

Answer 16

• Problem for the court in terms of the separation to decide or to assess whether states have been undertaking sufficient actions.
• Someone who suffers from leukaemia and it was proved that there might be a link to her father being exposed to radiations: consequences of not being properly informed? What is striking is that the court accept the argument under article 2. Although the case has a negative outcome for the applicant, it accepts the issue under article 2 which than again is a case of accepting that people that did not die, luckily enough, can invoke under certain circumstances article 2.

Question 17

What was the case Makaratzis vs. Greece?

Answer 17

• Case Makaratzis vs. Greece:
• Dangers caused by a policeman, public authority. Hot pursuit and they start firing.
• Grand Chamber found that what was lacking was a proper, legal framework describing under what circumstance and in which conditions people or policeman can use violence: That is an important issue. States, public authorities may create sometimes dangerous situation, but there should be at least a legal framework.
• So there should be information, a decent framework in both cases.

Question 18

What entails the positive obligation to protect lives?

Answer 18

• Positive obligation to protect lives ⇒ criminal law provisions and law enforcement whenever life is put at risk by a third party. Here again the discussion: when it is intentionally of course criminal law provisions, when it is unintentionally and depending on the circumstances, it can of course be disciplinary provisions, or it can be civil law provisions. That is reasoning that underpins the need to have criminal law or at least provisions that could be put against 3rd parties that put at risks life of persons.

Question 19

What was the case Öneryildiz vs. Turkey?

Answer 19

• Case Öneryildiz vs. Turkey: rubbish that produces a lot of gas that is highly explosive:
• State should take preventive measures to make sure that you do not allow people to live there.
• An explosion happens and people are killed and the court finds that the state had 2 positive obligations:
  
  • Substantive obligations: preventive measures: licencing, imposing obligations on enterprises, information of the public, supervising whether those obligations are respected.
  • Procedural: there should be a correct reply if there is an incident.

Question 20

What was the case Osman and the case Opuz?

Answer 20

• One step further: maybe we need to take preventive measures but only for activities, plants,…
• Also take precise preventive operational measures for dangerous situations.
• Eg. Protect people from dangerous individuals: Osman & Opuz Case.
• Opuz case:
  
  • A man who committed gender-based violence and had a track record. His wife complained about that to the authorities a lot of times but in the end nothing happened.
  • He killed his mother in law and continues to harass his wife. The state here can’t claim that they did not know because they were aware because of those complaints from the wife.

Question 21

How is the awareness in Europe when it comes to gender-based violence?

Answer 21

• Not enough awareness in europe when it comes to gender-based violence and not enough political will to change that. But now article 2 forces public authorities to do that.

Question 22

What are other examples that come under the positive obligation in art. 2?

Answer 22

• Writers: Italian case Roberto Saviano, author of Gomorra, the director of Charlie Hebdo.
• Also other journalists: serious death treats  state has the obligation to protect them against violence. Public authorities should pay due diligence, not just dismiss the case and they have to take the complaint seriously = they are under the obligation to protect individuals.

Question 23

What is the case Mastromatteo v. Italy?

Answer 23

• Prisoners one relief robbed the bank and there were victims. Relatives of the victims said that this was a violation of art. 2 because the state should have known that they were dangerous because they were in prison.
  
  • Getting them temporary relief = violation of art. 2.
• Argument of the Court: if we want to to reinsert prisoners in a daily life than this would give them opportunities that will have some try-outs and this is the try-out. One could not think of this act going to happen, therefore there is no violation of art. 2.

Question 24

Can you extend the protection under article 2 to the whole society?

Answer 24

• Difficult to make general statements: various case law in various direction depending on the precise facts of the case and circumstances.
• In other cases, different conclusions but also other facts.
  
  • Case Mastrommatteo v. Italy:
    
    • There would be different result if there is relief but no proper assessment = when there is an authomatic thing without
  • Case Öneryildiz: protect people against risk of natural hazards
    
    • Case Budayeva v. Russia: similair reasoning here
  • Case Urgenda v. the Netherlands: on climate change

Question 25

What was the case Urgenda ?

Answer 25

• Article 2 and climate change: discussion on the positive obligations under art. 2.
• Question: is climate change a risk to life = to what extend does it justify postiive obligations for states to undertake steps.
  
  • Reference made to Budayeva case and other similar cases before the court.
  • Dutch court goes further than what the Strasbourg court said.
• Dutch court: not in contradiction but it does goes further but not in contradiction with Strasbourg case law.
• And one of the things could be the risk if you have a look at the authorities having obligation to protect citizens against natural hazards, these are very immediate risks and they are confined to a certain area. No answer to the question whether this is a relevant distinction or not.

Question 26

Does Article 2 bring about the obligations to protect individuals against themselves when it comes to suicide?

Answer 26

• Keenan cases and others.
• Difficult because there is something like autonomy if state has to prevent people from committing suicide in all cases. Difficult to take a position in this discussion.
• Case De Donder and De Clippel v. Belgium:
  
  • Person suffering from mental problems and he should be in a specific part of the prison where you cannot commit suicide but there is no place there so you are in the regular part of the prison.
  • Court found that there was a violation of art. 2: always depend on the case. Because being in prison already establishes special duties and people with mental problems: due care should be given to them.

Question 27

What was the case on euthanasia?

Answer 27

• Pretty v. UK: ethical dimension is important here.
• A woman wanted to commit suicide and she was completely paralysed and terminally ill and she wanted her husband to help her but she wanted that he would not be prosecuted. Public prosecutor could not guarantee that the husband would not be prosecuted.
  
  • Questions under art. 2 and article 8.
• Article 2: Court assessed that the right to life does not bring about the right to die = does not entail the negative right not to live.
  
  • In contradiction with eg. Freedom of association: also the negative right to not become a member of association but not the case when it comes to the right to life.
• By prohibiting assisted suicide, there is no violation of article 2.

Question 28

What was the Lambert case?

Answer 28

• A man who was being kept artificially alive. Question was whether this artificial intervention could be stopped: could he be switched off the machine. Family drama because his wife and his siblings said he did not want to live like this and the mother opposed.
• Answer court: Court decided and it goes to the procedural court. Again margin of appreciation and it looks at it from the prospective of procedural justice by saying this treatment could be stopped under French law and that there were sufficient guarantees.
• Strasbourg court found that under the circumstances, the French authorities didn’t violate their positive obligations under the right to life, to protect life, therapy could be stopped. The is when it comes to the positive obligations, preventive measures the framework.