Right to life - article 2

Question 1

what does s1 of article 2 say?

Answer 1

everyone’s right6 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 2

what does s2 of article 2 say?

Answer 2

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

Question 3

what are the situations where deprivation of life is not in breach of article 2 as long is it results from the use of force which is no more than absolutely necessary?

Answer 3

• in defence of any person from unlawful violence
• in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
• in action lawfully taken for the purpose of quelling a riot or insurrection

Question 4

what are the different obligations under article 2?

Answer 4

negative
positive
procedural

Question 5

what is the negative obligation?

Answer 5

duty on state agents to refrain from taking life

Question 6

what is recognised as deprivation of life under the negative obligation?

Answer 6

• intentional deprivation of life
• can apply where the deprivation of life is unintended outcome - Ogur v Turkey
• endangerment of life by state agent = the individual does not die but the force used, by its very nature, seriously endangered the life of the victim - Makaratizis v Greece [2004]

Question 7

what happened in Ogur v Turkey?

Answer 7

victim killed by a bullet fired by security forces which hit his neck
security forces claimed it was a warning shot and had not intended to kill the victim
even if it was a warning shot it was badly executed to amount to gross negligence and recognised as deprivation of life

Question 8

gwhat happened in Makaratizis v Greece [2004]?

Answer 8

greek police fired erratically at the driver in a car chase
applicant did not die but had a number of bullet wounds
he could rely on article 2 because the conduct was by its very nature likely to put his life at risk

Question 9

what are the two factors used to determine absolute necessity of force in terms of the exceptions to the prohibition on the deprivation or endangerment of life?

Answer 9

• actions of the state agents who apply the force
• planning and control of the actions under examination

Question 10

how does actions of the state agents who apply the force determine absolute necessity?

Answer 10

subjective test = honest belief, even if mistaken, that the force was absolutely necessary
objective test = for good reasons

Question 11

how does planning and control of the actions under examination determine absolute necessity?

Answer 11

• careful scrutiny of whether the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force or incidental loss of life
• court looks at context and how the situation developed

Question 12

what are relevant factors to the assessment of planning and control of the actions under examination?

Answer 12

• training of forces in use of firearms
• clear guidance and criteria on use of firearms
• conduct of hostage negotiations etc

Question 13

what is the positive obligation under article 2?

Answer 13

positive duty on the state to protect life
obligation on public authorities to actively take steps to protect the lives of people

Question 14

what should be in place with the positive obligation?

Answer 14

general regulatory framework

Question 15

what is a general regulatory framework?

Answer 15

• are there effective criminal law provisions in place to deter the commission of life threatening acts?
• are these measures backed up by law enforcement machinery? - police, prisons, criminal courts

Question 16

what was the test set out in Osman v United Kingdom for the positive obligation under article 2? (stage 1 and 2)

Answer 16

stage 1 = did the authorities know or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals?
stage 2 = did the authorities take measures within the scope of their powers which, judged reasonably might have been expected to avoid that risk?

Question 17

what is the procedural obligation imposed by article 2?

Answer 17

the duty to investigate deaths

Question 18

when is the duty to investigate death triggered?

Answer 18

1. duty to investigate is parasitic on establishing an arguable case that the public authority has breached its positive or negative obligation
2. duty to investigate in the absence of any grounds for suspecting a breach of the positive or negative obligation by public authorities

Question 19

what are the standards of an effective investigation?

Answer 19

• initiative
• independence
• adequacy
• promptness and reasonable expedition
• public scrutiny
• involvement of next of kin

Question 20

apply the principles of absolute necessity to exception a )in defence of any person from unlawful violence

Answer 20

stage agents = honest and reasonable belief that the force used was necessary to protect him or others from immediate unlawful violence
planning operation = operation must be planned and controlled by the authorities so as to minimise, to the greatest extent possible , recourse to lethal force

Question 21

apply the principles of absolutely necessity to exception b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

Answer 21

state agents = honest and reasonable beliefthat the person to be arrestedposes a threat to life or limband issuspected of having committed a violent offence.
Even if the person poses a threat to life or limb, force should only be used that is designed to immobilise, rather than being designed to kill (i.e. shooting at legs).
planning operation = Theoperation must also beplanned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.
Need for clear legal and regulatory framework for use of firearms that depends on assessment of the nature of the offence and threat posed

Question 22

apply the principles of absolute necessity to exception c) in action lawfully taken for the purposes of quelling a riot or insurrection

Answer 22

state agents = honest and reasonable belief that the violent conduct of those involved in the riot or insurrection poses a risk to life or limb.
planning operation = Theoperation must also beplanned and controlledby the authorities, so as to minimise, to the greatest extent possible, recourse to lethal force.
Agents should be provided with suitable equipment designed to quell a riot or insurrection