The Right to Life (Article 2) ECHR

Question 1

What is the fundamental principle of Article 2 of ECHR?

Answer 1

To protect individuals from unlawful killing and other real threats to life.

Question 2

What are the positive and negative obligations of this Article?

Answer 2

(a) to refrain from the taking of life unless this occurs in the narrowly prescribed circumstances recognised in para 2
(b) to investigate suspicious deaths
(c) to take appropriate steps to safeguard the lives of those within its jurisdiction (LCB v UK)

Question 3

What happened in LCB v UK

Answer 3

• Applicant’s father served on christmas island
• Nuclear tests conducted
• ordered to lineup in open, faced away with eyes closed
• Govt. stated the lineup was for protection to eyes and other injury
• Applicant was diagnosed with leukaemia in 1970, argued it was due to father’s presence at christmas island and being exposed to radiation
• States failure to warn parents of possible health risks should amount to breach of Art.2

HELD - not to be a breach of Article 2

Question 4

What happened in ‘McCann (1996)

Answer 4

• First case that death with Article 2 before the ECtHR
• family of three deceased, IRA terror suspects petitioned the ECtHR under breach of Article 2
• SAS soldiers shot them dead on the belief they were reaching for remote detonators to a car bomb
• ECtHR said for there to be no breach under art.2 the use of force must have been “absolutely necessary” and “strictly proportionate”.
• HELD, soldiers not in breach but there was a violation in the control and planning of the operation.

Question 5

Explain the case of Armani Da Silva v UK (2016)

Answer 5

‘good reason’ for an honest belief in the need for force determined subjectively
- Case innocent shot dead by police (suspected terrorist)
- UK authorites conducted investigation, found there to be ‘very serious mistake’ that was avoidable
- Orderred to pay fine and compensation paid to family
HELD - no breach under Article 2 ECHR

Question 6

Explain Gul v Turkey (2000)

Answer 6

Disproportionate response
- police officers fired through door at unknown target
- Believed bolt unlocking was occupant opening fire
HELD - violation of Article 2

Question 7

What happened in Makaratzis v Greece (2004)?

Answer 7

Article 2 can be engaged even where no loss of life

• Car that failed to stop in Athens shot at by police
• Court found firearm use ‘chaotic’, erratic and uncontrollable

Question 8

What did the case of Saso Gorier (2012) establish?

Answer 8

• State responsible for agents outside their official duties, even though it was acknowledged that State did not sanction the actions and incident did not result in death

Question 9

The Court have became more robust on what issue, in which they were previously timid on?

Answer 9

Death in forced disappearance

Question 10

What happened in Timurtas v Turkey (2001)?

Answer 10

Circumstantial evidence can be used to establish violation of Article 2.

• Applicants son went missing after being arrested
• Raised an action under Article 2 that his right to lifr had been breached
• ECHR found violation

Question 11

What happened in Pitsayeva and others v Russia (2014)?

Answer 11

• Families of over thirty individuals claimed that their relatives were abducted in Chechnya
• Russian
  Government denied the allegations
• ECtHR noted that it would be sufficient for relatives to make a prima facie case of abduction, and then the burden of proof would lie on the Government

Question 12

What happened in Mizigarova v Slovakia (2010)?

Answer 12

• Man died whilst in custody by gun shot, but state said it was suicide;
• Whatever happened, the state had failed in its Article 2 obligations to protect life

Question 13

What was estbalished in the ‘Salmom (2002)’ case?

Answer 13

When a person is taken into custody in good health, and then dies, the obligation is on the Contracting Party to provide a sufficient explanation of death

Question 14

As well as refraining from of unlawful killing, the case of ‘LCB v UK’ established what?

Answer 14

• States take positive steps to safeguard the lives of those w/in its jurisdiction

Question 15

What must states have to deter unlawful killing?

Answer 15

Legislative and administrative frameworks.

Question 16

What happened in the case of ‘Osman v UK 1998’?

Answer 16

Controversial case
- Teacher became obsessed with student
- Teacher did numerous things such as;
(i) Spread rumours accusing the student of engaging in sexual activity
(ii) Changed his name to incorporate the surname of the student
- and many more which eventually led to the teacher storming the student house and killing his father and injuring the student
HELD - no breach of Article 2, there was no decisive stage when the police should have known the life of Osman was at risk

Question 17

What happened in ‘Opuz v Turkey 2009’?

Answer 17

ECHR found breach of Article 2
- applicant and mother were seriously assaulted in numerous occasions by applicants spouse(H.O)
- made death threats
- women complained several times to authorities
- man was jailed for small period but upon release killed applicants mother
HELD - ECtHR, breach of article 2, the authorities had failed to protect the women from domestic abuse which led to the death of the applicants mother, despite repeated reports to police from the women

Question 18

What was established in Keenan v UK (2001)?

Answer 18

prisoners are in a vulnerable position and authorities are under a duty to protect them

Question 19

What happened in Reynolds v UK (2012)?

Answer 19

• Man admitted to Council run ‘moving on unit’ after suicidal thoughts
• He was admitted a room in the 6th floor
• the man broke the window of the 6th floor room and fell to death
• insufficient evidence that this was a suicide
• Mother took the case to ECtHR that her sons right to life under art 2 breached
  HELD - breach of article 2

Question 20

What has the Court been reluctant to do in regard to medical treatment under Article 2?

Answer 20

To read a general right to medical treatment in to a State’s obligations.

Question 21

What responsibly does the State have in relation to Article 2?

Answer 21

Positive obligation to protect life.

Question 22

What was established in the ‘Hristozov (2012)’ case?

Answer 22

• refusal to give experimental anti-cancer treatment not an Article 2 violation
• Article 2 cannot be interpreted as requiring access to unauthorised medical products

Question 23

Is medical negligence a violation of Article 2 ECHR?

Answer 23

Generally no, the case of ‘Mehmet 2013’ provided a definition when medical professionals may violate article 2?

Question 24

Medical negligence is usually not deemed a violation of article 2, but when may it be?

Answer 24

• the negligence attributable to that hospital’s staff went beyond a mere error or medical negligence, and;
• the doctors working there were in full awareness of the fact and in breach of their professional obligation, did not take all the measures necessary to keep their patient alive.

Question 25

Do positive obligations extend to natural disasters?

Answer 25

YES

• e.g. mudslides, floods etc..
• Budayeya 2008 established this
• this case there was a failure to establish any adequate defence systems

Question 26

What duty does the State have under Article 2?

Answer 26

To investigate suspicious deaths

• should be some form of official investigation when individuals have been killed as a result of fore by agents of stat
• e.g. McCann v UK

Question 27

What did the case of ‘Budayeya,2008’ establish?

Answer 27

Positive obligation even extends to natural disasters, such as mudslides and other events
- In this case failure to establish an adequate defence system or warning system warranted a breach

Question 28

Under Article 2, what duty does that State have?

Answer 28

Duty to investigate suspicious deaths

• Requires that there should be some form of official investigation when persons killed as result of use of force by agents of state
• eg. McCann v UK

Question 29

What did the judge state in ‘Ramsahai(2008)’?

Answer 29

what is at stake here is nothing less than public confidence in the state’s monopoly on the use of force’

Question 30

What are the four requirements when the State investigates suspicious deaths?

Answer 30

(1) Independent and impartial
(2) Adequate: capable of leading to identification and punishment of those responsible
(3) Reasonable expedition
(4) Public Scrutiny: incl. relatives of victim must have opportunity to become involved

Question 31

What did ‘Gulec v Turkey’ establish?

Answer 31

For investigation to be independent, must be carried out from persons independent from the implicated event.

Question 32

What did ‘Mustafa, 2015’ establish?

Answer 32

that persons conducting investigation must be sufficiently independent of the persons and structures whose responsibility is likely to be engaged’

Question 33

With regards to investigating suspicious deaths, what does ‘Ramsahai(2008)’ relate to?

Answer 33

Adequate investigation
- can often involve
- securing evidence; gathering eyewitness testimony, testing forensic evidence, detailed autopsy
-

Question 34

What is Mikayil (2009) an example of?

Answer 34

Reasonable expedition when conducting investigations
authorities were ‘obliged to act in a prompt and diligent manner in order to try to obtain evidence which would no longer be available

Question 35

What duties (if any) does Article 2 impose on a State with respect to suicide and voluntary euthanasia?

Answer 35

Euthanasia is a matter for national authorities, and the law on assisted suicide varies throughout Europe

Question 36

What was established in ‘Pretty v UK’

Answer 36

No right to die, whether at the hands of a third person or assistance of public authority, can be derived from Article 2 of the Convention