Topic 2: Articles 2 & 3 Flashcards
What is the nature of A.2 generally?
A.2 (right to life). A clealry qualified right that expressly allows for the death penalty as a criminal sanction.
2(2) contains 3 further exceptions. The ‘no more than absolutely necessary’ test is stricter than that provided for in Arts 8 and 10.
What were the facts in McCann v UK?
In 1988 British and Spanish forces gained intelligence that 3 people linked to the IRA planned to conduct a car bombing in central Gibraltar. On the day that the forces believed this to be planned for, it was found that one suspect had drove across the border from Spain into Gibraltar and the two others had walked into Gibraltar. The car was left in the city centre. A precursory inspection by an expert revealed that the aerial seemed unusual and so the decision was taken to arrest the suspects. They were followed by the SAS in plain clothes (two suspects together and one individually). Believing that a suspect was about to push a detonator the SAS shot him dead. Both other suspects made ‘suspicious movements’ as arrest was attempted and were also shot dead. It transpired that the subjects had nothing on them or in the car, but a bomb was later found in another car, and so it appeared that they were in the process of carrying out a bombing but had not managed to get the car into the country yet.
How are alleged unlawful deaths under A.2 analysed?
McCann v UK
On the issue of qualification under A.34 a dead victim’s family will qualify as an exception.
A 2 recognised as the most important convention right and therefore exceptions must be interpreted strictly. A 2(2) ‘absolutely necessary’ stricter than ‘necessary’ in 8(2) and 10(2).
Framework: (1) had the operation been properly planned? The judgment shows that this will be hard to apply on the facts. By a majority of 1 judge the court found that there were defects in the planning, such as not stopping the suspects from entering, not inspecting the car more thoroughly, and not training the SAS better to use less deadly force. The dissenting judges, including the president, disagreed completely, citing the dangerousness of the IRA and futility of arrest at the border with no evidence. (2) A state agent test – consider whether those who perpetrated the killing satisfied A.2(2) in their own belief. The GC was unanimous on this point: agents can satisfy it ‘based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.’ On basis of what SAS knew this was satisfied. Both elemments are separate so either amounts to a breach of the ECHR. Under (2), state responsible for actions of ground forces.
How has McCann been interpreted in subsequent cases?
Andronicou & Constantinou v Cyprus (1997) - hostage standoff in which A was known to have at least 2 guns. A and his hostage were killed when specialist unit returned fire after first officer entering building was shot. GC was unanimous that (2) was satsfied. By a majority of (1) the court found that the operation had also been properly planned, despite no abmulances, emergency crews, and the use of automatic weapons. control had been passed to a specialist unit that was instructed ony to shoot if their own lives or that of the hostage was at risk.
Ergi v Turkey (PKK case) - Intel gathered that the PKK would be in a village engaging in terror activity. An ambush was planned in which E’s sister (a villager) was shot dead in the ensuing shootout. It could not be determined who by. GC agreed that the operation was improperly planned and developed limb (1) of McCann: the planning must expressly account for the need to minimise any risk to civilians.
What are the limits on the right to life?
Pretty v UK - P wanted to end life to avoid painful death that woud come from failure of lungs in MND. P asked DPP for confirmation that H would not be prosecuted for assisting and went to SC upon refusal. After permitted interventions from TP’s the chamber decided that the clear language of A 2 was positive and did not confer a right to die.
Vo v France - the issue was whether the unborn are protected by A.2, since the word ‘everyone’ is not defined. The SC had tried for decades to avoid this issue. V pursued criminal prosecution for doctor who negligently removed foetus when she was 6 months pregnant, when French prosecutors said that the unborn are not humans, V argued this was a failue to protect A.2.
The CG found that there was no consensus on this issue across the 47 MS’s, nor any legal/scientific consensus on when human life begins. On this basis, the SC invoked the margin of appreciation doctrine allowing individual states to decide for themselves when life begins. No breach of A.2 was found and again the SC avoided coming to a firm position on the issue.
Lambert and Others v France - end of life care for those in a permanent vegetative state. L was victim of serious motorbike accident and parties involved in his care disagreed on how to go forward. External doctors consulted, injunction obtained preventing them from withrawing care, highest French court (court of Cassation) reachced on issue, which agreed with withdrawal. GC found no European consensus so again thought there was a MoA amongst member states individually. Given all the precationary masures taken the decision clearly fell within the acceptable margin.
What is the background on use of the death penalty amongst ECHR states?
In the decades following 1950 MSs began phasing out/getting rid of the death penalty.
Protocol 6 made in 1983 bans the use of the death penalty in peacetime and 46 member states (not Russia) have ratified this.
Protocol 13 provides for a complete ban of the death penalty in those states that wish to ratify it. 44 states have ratified it since 2003 (not Russia, Azerbaijan or Armenia – which has signed but not ratified). In practice, no ECHR state since the 1990s has executed anyone, so the Council of Europe sees itself as death penalty free.
Many of the changes in this area of law have come through protocols so the Strasbourg Court is reluctant to change the law itself.
Al-Saadoon and Mufdhi v UK - UK had breached A 3 but not A 2 in handing over 2 Iraqi nationals believed to have been involved in war crimes. New Iraqi Government maintaind the death penalty. SC thought that number of signatories to protocol 13 was ‘strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances.’ ‘Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty’ (cf. Soering).
Does A 2 encompass a duty to provide effective policing measures?
Osman v UK - teacher obsessed with O shot O’s father dead, shot a teacher and injured O. SC formed the ‘Osman test’: that the authorities knew 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 from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” (A balance between risk and resources). Accordingly, there was no breach, no way to know teacher would act in that way.
Opuz v Turkey - O’s husband was seriously violent towards her. Several times O complained to the police who did virtually nothing. O and her mother decided to move away, H caught them, killed O’s mother and seriously injured O, who argued to the SC that her history and circumstances satisfied the Osman test. The SC agreed.
What ancillary duty arises out of the McCann case?
A duty to conduct effective official investigations into killings is implied into A 2 ‘when individuals have been killed as a result of the use of force by, inter alios, agents of the state.’ The public inquest in Gibraltar satisfied this.
How has the ancillary duty arising out of the McCann case been interpreted?
Cyprus v Turkey - (Second interstate case) (following an invasion, the Cypriot Government could identify around 1500 people that had disappeared in the north). SC held that duty to investigate can arise ‘upon proof of an arguable claim that an individual who was last seen in the custody of the state, subsequently disappeared in a context which may be considered life-threatening.’
Kelly & Others v UK - codifies the previous law and sets out 4 broad elements required by an effective investigation:
(1) Investigators must be independent of any party involved (not satisfied in Kelly – the NI police investigated a lethal shooting by the SAS on members of the IRA following an attack on a village police station), there must be institutional independence. (2) The investigation must be effective, using all forensic skills and appropriate expertise required for the particular killing. (3) The investigation must begin promptly after the killing and be completed within a reasonable time. (4) The investigation must be open and transparent, participation by others must be allowed if desired.
When has the A 2(2)(a) justification been relied on?
(a) (Absolutely necessary in) Defence of any person from unlawful violence
McCann (A.2(2) relied on by the UK and SC upheld this on the basis of what the SAS knew).
When has the A 2(2)(b) justification been relied on?
(b) In order to effect a lawful arrest/prevent escape of a person lawfully detained.
Nachova and Others v Bulgaria - 4 officers armed with kalashnikovs and handguns sent to arrest 2 men who had abandoned compulsory military service. They were shot after allegedly a verbal wrning and warning shot. Both dies with numerous bullet wounds to back. SC articulated a complete prohibition on the use of firearms in arresting non-violent criminals. The killing was unlawful, creating a significant limitation.
In no circumstances can it be ‘absolutely necessary’ to use potentially lethal firearms in the arrest of a person suspected of a non-violent offence who is not known to pose any threat physically. This is so even where the opportunity to arrest the fugitive might be lost. (GC)
When has the A 2(2)(c) justification been relied on?
(c) Action taken lawfully to quell a riot/insurrection
Gulec v Turkey - A major riot was occurring and the state officials had only an armoured vehicle armed with machine guns, they opened fire into the air. A 15 year old who was allegedly coming home from school was hit by shrapnel and died.
The SC accepted that on the facts the riot was a serious incident under A.2(2)(c) but the force used had to be ‘absolutely necessary’ which requires consideration of proportionality. The force used was disproportionate.
What are the ECtHR authorities on A.3 torture?
Ireland v UK (first IS case to recive judgment)
Aksoy v Turkey
Aydin v Turkey
Selmouni v France
Outline the ECtHR’s interpretation of the meaning of torture using the facts of relevant cases.
Ireland v UK - a number of IRA suspects were interrogated in depth with 5 techniques: wall standing, hooding, noise subjection, sleep deprivation and deprivation of food and water. A different combination of techniques was used on different suspects. Upon referral to the SC it was found that the 5 techniques were inhuman but not torture (by a majority), the court thought that the ECHR iintended to establish special stigma to ‘deliberate inhuman treatment causing very serious and cruel suffering’ (torture). But the IT was a practice, not a one-off.
Aksoy v Turkey - (first judgment of SC in which torture found). A suspectetd member of PKK, stripped naked, beaten, hosed and subject to ‘Palestinian hanging’ which led to paralysis in both arms. Facts fell within the Ireland v UK definition.
Aydin v Turkey - 17 y/o who had allegedly helped PKK claimed she was striped, beaten, sprayed, and allegedly raped by someone in uniform. SC held that rape of a detainee by an official of the state amounts to torture.
Selmouni v France - S was a suspected member of a high-level organised criminal gang. He was arrested by the French police and alleged that during 3 days of detention he was beaten with a bat, urinated over and anally raped with a bat (although there was insufficient evidence to prove this on the facts)). Case went to the GC post-2011: ‘certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.’ the treatment, even without proof of the rape, wa torture. It seems that the SC post-Selmouni still looks for very serious mal-treatment but will be potentially more willing to find torture, yet there has been no big increase in the number of torture cases.
What are the various things that can amount to A.3 inhuman treatment?
Physical violence Mental suffering Conditions of detention Extradition/deportation Medical care
