Right to life (Art. 2) + Extraterritorial application of the ECHR

Question 1

What are the duties imposed on the State by Art. 2?

Answer 1

Three duties; two of substantial character and one of procedural character

1) The duty to protect the right to life (positive substantive)
2) The duty to refrain from taking lives (negative substantive)
3) Duty to effectively investigate suspicious deaths within its jurisdiction (procedural + positive)

Question 2

What does negative obligation entail?

Answer 2

Duty upon States to refrain from depriving anyone of their life, save in the limited circumstances prescribed by Art. 2, second limb

Question 3

Is the death penalty allowed under Art. 2?

Answer 3

Second sentence reserves the right for States to subject convicted criminals to the death penalty if prescribed by law

P13 abolished the death penalty in all circumstances, but protocols are only legally binding for States who have ratified them - all countries except Azerbaijan and Russia have ratified P13), but new member states cannot be expected if they allow for capital punishment

Question 4

Amendment of Art. 2 through state practice?

Answer 4

Al - Sadoon and Mufdi v UK
The Court suggested that the right to impose the death penalty has been amended by state practice (no judicial killings since 1996)

Question 5

Extradition cases under Art. 2

Answer 5

State must refrain from extraditing or deporting a person to a country where is a real risk of intentional killing

Question 6

What does the substantive positive obligation entail?

Answer 6

A duty to protect lives against other private individuals (substantive)
- duty to implement legal and administrative rules to protect the right to life and to establish a sufficient legal system where crimes against the right to life are prevented or prosecuted

Question 7

What does the procedural positive obligation entail?

Answer 7

A duty to conduct an effective, thorough and independent investigation into suspicious deaths
- no matter if suspects are state agents or private individuals

Question 8

Temporal scope of substantive duties under Art. 2, i.e., how far back can the State be held accountable for violations of Art. 2 ?

Answer 8

Critical date = time of ratification in the State

In order for the State to be held accountable, the violation must happen AFTER the critical date

Violations that have happened BEFORE critical date are only relevant if they violation continues after critical date or if it’s relevant for the subsequent situation

Question 9

Temporal scope of procedural duty under Art. 2?

Answer 9

Falls within temporal scope, i.e., State is obligated to investigate suspicious deaths that have happened BEFORE critical date, IF there is a genuine connection between death and ratification OR investigation is necessary for effective protection of Convention values

Question 10

What does the “Genuine Connection” - test entail?

Answer 10

Presupposes that two criteria are met;

1) time lapse between death and critical date (ratification) must not exceed 10 years
2) the majority of the investigation has to take place AFTER critical date

Question 11

What does the “Convention Values” - test entail?

Answer 11

Triggering event must be more serious than an ordinary criminal offence and must amount to a negation of the very foundation of the Convention, i.e., war crimes, genocide ect.

Court has previously held that if the crime predate the Convention, that came into existence (1950), the Contracting State cannot be held responsible for not investigating the crime after the critical date, even if the crime is sufficiently severe

Question 12

Scope of Art. 2?

Answer 12

Near death - cases
Court has held that Art. 2 is applicable in cases where there is no death, but State fail to offer sufficient treatment to life threatening injuries (positive obligation)

Question 13

Does the Scope of Art. 2 entail a negative aspect of the right to life, i.e., a right to die?

Answer 13

No - Pretty v UK.
Applicant was terminally ill and wished to end her life, but needed her husbands assistance to do so. She wanted to make sure her husband would not get punished for participating in assisted suicide, which was illegal under domestic law. Applicant claimed that Art. 2 secured the right to choose to end ones life. The Court rejected that a right to die could be derived from the article

Question 14

What does Art. 2 negative obligation entail?

Answer 14

Prohibits the State from intentional killing

This means that State must plan military and other operations to minimize the need for use of lethal force.

McCann v UK
Complaint was brought by the relatives of 3 dead members of terrorist group IRA, who had been killed by British Forces in Gibraltar. The Government did not dispute that the soldiers had planned to shoot and kill the terrorists, seeing as the soldiers had been told that they had planted a bomb in a crowded area and were carrying a concealed detonator. Therefore, the Government claimed that the situation fell within Art. 2, §2 (a) as the use of force had been necessary to protect others from unlawful violence The Court accepted that the soldiers could not have acted different in the situation they were in, as they believed bystanders were in danger. But the Court decided to look at the operation altogether. The IRA members were already known by the British Authorities when they entered Gibraltar and could therefore have arrested them upon entering the country. By means of a strict proportionality test and found that it had actually not been necessary to use lethal force to prevent the terrorists from posing a threat to public safety. Violation of Art. 2

Question 15

Is the State responsible for death in custody and forced disappearances?

Answer 15

Yes, part of negative obligation.
Effective protection of the right to life presupposes that State is held accountable for suspicious deaths occurring while in State custody.
State will have to provide satisfactory explanation for death to avoid violation of Art. 2

Question 16

Is part of the States positive obligation (substantive) a duty to implement protective measures?

Answer 16

Yes, “everyones right to life shall be protected by law”.

Obligation includes duty to prevent situations in opposition to Art. 2 from materializing (from state agents, private individuals, dangerous work environments)

Question 17

What does duty to implement protective measures entail?

Answer 17

State must do all that can reasonably be expected to avoid a “real and immediate” risk to life that they “know or ought to have known about”

Osman v UK.
Applicants were the family of the deceased, who was shot dead by his teacher.
The Court noted that Art. 2 may impose a positive obligation on the State to protect individuals against the crimes of other individuals. However, the State can only be expected to prevent crimes where they “knew or ought to have know” a “real and immediate” risk to the life of an identified person.
The Court held that even though the police had been alerted several times about the killers disturbing behavior towards the deceased, they did not have any reason to believe that the family lives were at risk.
No violation of Art. 2

Question 18

Does the positive obligation entail protection from self-harm of people in State care?

Answer 18

Yes, but if the State has taken reasonable preventive steps to secure the persons life, they cannot be held responsible.

Question 19

Does the positive obligation include responsibility for hunger strikes in prison?

Answer 19

State is not obligated to release the prisoner who is on hunger strike, but must provide him with medical assistance if needed.

Question 20

Does Art. 2 contain any exceptions to the prohibition on intentional killings?

Answer 20

Art. 2 is not an absolute right.

§2 contains an exhaustive list of situations where the deprivation of life is NOT in violation of Art. 2:
a) in defense of any person from unlawful violence

b) in order to effect a lawful arrest or to prevent escape of people lawfully detained
c) in action lawfully taken for the purpose of quelling a riot or insurrection

Question 21

What are the requirements under Art. 2, §2?

Answer 21

Situation must fall within one of the grounds listed in §2

Must be absolutely necessary

• proportionality assessment of aim and action
• action planned and controlled in order to minimize the use of lethal force (McCann v UK)
• subjective belief of good reasons by state

Question 22

What does the procedural duty entail?

Answer 22

Duty derived trough case law.

A duty to officiate an effective, official investigation in cases of death or life - threatening injuries

Question 23

What are the requirements to an “effective” investigation?

Answer 23

Effective presupposes:

• Independent (from the people involved)
• prompt (cannot carry on for years and years)
• public (scrutiny of State actions)

Question 24

What did the case Khamilla Isayeva v Russia concern?

Answer 24

The Russian army abducted local men in Chechnya. His wife, the applicant, sought information and assistance from the Russian Government, which she did not receive. One of the men were found shot dead in a river, but the applicants husband was still missing. The Russian authorities eventually began a criminal investigation into the disappearance, which took 6 years. The applicant believed that the Russian Government had killed her husband.
The Court stated that the b burden of proof lies upon the Government, as the missing person was last seen in their detention. The Court also found that the applicants husband should be presumed dead and that the State had breached it’s negative obligation under Art. 2, as it had failed to provide a satisfactory explanation of the husbands whereabouts, i.e., not been able to prove beyond reasonable doubt that they had not killed him.
The State had also breached it’s procedural obligation, as the investigation was carried out be the very same state officials who were also involved in the incident, the investigation was very lengthy and closed from the public and was ultimately unsuccessful.
Violation of Art. 2

Question 25

What are the procedural requirements regarding sanctions for murder?

Answer 25

The procedural requirements are different for intentional killings and unintentional killings

Intentional killings
- State must impose a criminal sanction on those responsible

Unintentional killings
- minimum requirement is a civil remedy that affords the family some sort of compensation, but no requirement of criminal sanctions being imposed on those responsible

Question 26

What are some of the specific issues rising under Art. 2?

Answer 26

Right to life on an unborn child

Right to die

Question 27

Right to life of an unborn child under Art. 2?

Answer 27

Art. 2 is silent on the topic.

The issue relates to the question of when life begins (at conception, at a certain stage of pregnancy, after birth) and the Court has left the issue to be answered by Member States, as the subject is treated very different across states, i.e., there is a lack of European Consensus

Question 28

Right to life of an unborn child under Art. 2?

Answer 28

Art. 2 is silent on the topic.

The issue relates to the question of when life begins (at conception, at a certain stage of pregnancy, after birth) and the Court has left the issue to be answered by Member States, as the subject is treated very different across states, i.e., there is a lack of European Consensus

Vo v France.
Woman suffered miscarriage due to being subjected to the wrong medical procedure at hospital. The woman demanded that criminal sanctions be imposed on the State and claimed a breach of Art. 2. The Court refrained from ruling on the subject and left the issue to be solved by the French state.

Question 29

Right to die under Art. 2?

Answer 29

No, such a right cannot be derived from Art. 2 (Pretty v UK).
Assisted suicide is a sensitive issue lacking European Consensus.
Member states must decide for themselves if they want to allow it under domestic law or not

Question 30

Protection from environmental disasters under Art. 2?

Answer 30

The Court has generally not hesitated to invoke Art. 2 on cases of deadly environmental disasters, IF
the disaster was foreseeable and at risk of occurring at a place of human inhabitation

Question 31

What does Budayeva v Russia concern?

Answer 31

Deaths resulting from environmental disaster.

Mudslide killed 8 people. The mudslides had happened before. The applicants claimed that the State had breached it’s positive obligation under Art. 2, due to having failed to implement any evacuation plan and also it’s procedural obligation by not having investigated the deaths effectively.
Area of wide margin of appreciation (environmental issues), but the State is nonetheless obligated to take preventive measures.
By failing to do so the Government had breached it’s positive obligation (substantive) to safeguard lives. Government had also failed it’s procedural duty (procedural) to carry out an effective investigation, as it had failed to identity the reason for the mudslide and how it could be prevented from happening again.

Question 32

Does the State have a responsibility for climate change Art. 2?

Answer 32

No.

No cases before the ECHR have succeeded in holding the Government responsible under Art. 2 for climate change.

Question 33

What does Art. 1 of the Convention state?

Answer 33

States must secure Convention rights “within their jurisdiction”

Question 34

What is the main rule regarding territorial application of the ECHR

Answer 34

Main rule - principle of territoriality

Question 35

What did the Bankovic case state regarding States jurisdiction?

Answer 35

Landmark case.

Court stated that the main rule regarding jurisdiction is that it’s only confined to states own territory.
Extraterritorial jurisdiction is therefor the exception, which imposes an obligation on States to secure Convention rights outside their own territory.

The case was filed against Belgium and 16 other states.

The case concerned the bombing of a building in Serbia by missiles launched from NATO - aircraft, which caused the death of several people. Applicants were the family of the deceased and they claimed a breach of Art. 2
The question was whether the applicants were capable of coming within the jurisdiction of one of the 16 states.

The Court stated that Art. 1 must be interpreted so that the jurisdictional competence of the states is primarily territorial (in accordance with ordinary meaning of “jurisdiction”). The possibly of extraterritorial application of Art. 2 is not excluded, but is limited by the state’s territorial rights of the other relevant state.

The application was declared inadmissible due to the complaint not falling within any of the Respondents States jurisdictions.

The Court stated that Art. 1 reflects the ordinary and essentially territorial notion of jurisdiction. Extraterritorial jurisdiction IS the exception and requires special justification in the specific circumstances of each case.

Question 36

What can engage extraterritorial jurisdiction?

Answer 36

Effective control over foreign territory
or
Authority and control over individual applicants in foreign territory

Question 37

What is extraterritorial jurisdiction due to effective control over foreign territory based on?

Answer 37

Effective control over the area (any where in the world)

Rule is necessary in order to avoid legal vacuum where people are left without protection

Question 38

Examples of a State exercising “effective control” over foreign territory?

Answer 38

During armed conflict where member state has occupied foreign territory

Occupying State will be responsible for both their own soldiers, but also actions of foreign soldiers in the territory

If member state exercises economic, political support and thereby gaining influence on foreign territory

Question 39

What is the scope of extraterritorial jurisdiction due to effective control over foreign territory?

Answer 39

The States jurisdiction extends to everyone within their territory and to the entire range of Convention rights

Question 40

What does extraterritorial jurisdiction due to authority and control over applicants entail?

Answer 40

Acts of diplomatic and consular agents - control over individuals and their property abroad

Question 41

When can a State be held accountable for acts of State agents in foreign territory?

Answer 41

If they use force over individuals abroad

Question 42

When can a State be held responsible for acts of private individuals in foreign territory?

Answer 42

When they violate the rights of other individuals and their national state is consenting to the acts

Question 43

What is the scope of extraterritorial jurisdiction due to authority and control over individual applicants?

Answer 43

The States jurisdiction only extends to that one person and only for the convention rights relevant for the situation of the individual

Question 44

What is the role of the territorial state when a member state has effective control over the territory?

Answer 44

Territorial state does not loose its jurisdiction

Both states have jurisdiction, even though the territorial state does not currently exercise control over it’s own territory

Question 45

What is the extent of obligations on the Member States?

Answer 45

Depends on the jurisdiction:

Territorial jurisdiction - all rights and freedoms

Extraterritorial jurisdiction : effective control - all rights and freedoms within the controlled territory

Extraterritorial jurisdiction: control over individuals in foreign territory - only rights relevant to the specific situation