2652131
Article 2 - The Right to Life
- morally the most
fundamental
- seen as intrinsic to
human beings, warrants
protection
- seen as intrinsic to
human beings, warrants
protection
- (1) everyone's right 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 (2) deprivation of life shall not be regarded as
inflicted in contravention of this article when it results
from the use of forced which is no more than
absolutely necessary: a) in defence of any person from
unlawful violence; b)) in order to effect a lawful arrest
or to prevent the escape of a person lawfully detained;
c) in action lawfully take for the purpose of quelling a
riot or insurrection
- non derogable
- however can be seen as fragile
as it allows for express
limitations to be placed upon
the right to life
- however can be seen as fragile
as it allows for express
limitations to be placed upon
the right to life
- Article6(1) of the ICCPR enhances the Article; every human
being has inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life
- In the US the right is protected by 'due
process' principles, under the 14th
Amendment of the constitution
- In the US the right is protected by 'due
process' principles, under the 14th
Amendment of the constitution
- the right to life can be seen as a negative
right; but does impose some positive
obligations on the state
- how far must the state go to satisfy
the positive obligation?
- we have to be realistic, giving
states a margin of appreciation,
holding that no one should be
intentionally deprived of life
- is it right that
national law does not
impose a duty on
others to rescue those
in danger of death?
- we have to be realistic, giving
states a margin of appreciation,
holding that no one should be
intentionally deprived of life
- how far must the state go to satisfy
the positive obligation?
- eg. LCB v UK (1998) the court held that the
first stence of Article 2 means the state
should not only refrain from killing and the
unlawful taking of life, but also to take
appropriate steps to safeguard the lives of
those within its jurisdiction
- distinct duties placed on states; (1)
public authorities under s duty not
to take life unless in specified
circumstances (2) some form of
effective legislation
- if the duty is not upheld
there is a right to vindication
- who has the competence
to decide? and how far
should states go?
- if the duty is not upheld
there is a right to vindication
- the state an go further in its
obligations to keep people alive and in
some cases this may be against their
will
- the interpretation brings a principle, regarding the best
interests of the patient and practical importance,
especially where states so not have unlimited resources in
relation to medical treatment
- the interpretation brings a principle, regarding the best
interests of the patient and practical importance,
especially where states so not have unlimited resources in
relation to medical treatment
- distinct duties placed on states; (1)
public authorities under s duty not
to take life unless in specified
circumstances (2) some form of
effective legislation
- there is a duty to inform
people about the risk they
are/were exposed to
- the information is supposed to
address particular concerns; this
overlaps with Article 8 and the
right to respect private life
- range of duties
involves
balancing rights
and interests of
different people
- eg. McGinley and Egan v UK (1999)
servicemen claimed they were
exposed to nuclear radiation, after
nuclear weapon testing, and fell ill;
claimed additional service pensions
and the stress caused by the
unknown level of exposure. Held,
the state should have told them the
level of exposure and any risks
involved.
- the information is supposed to
address particular concerns; this
overlaps with Article 8 and the
right to respect private life
- depends on what we want
from the state as concerns the
protection of the right to life
- in favour of maintaining personal
autonomy, then there is conflict when the
state allows a person to die, regardless of
their beliefs; because the death itself is
thought to be in the best interests of the
person or society as a whole - state action
from this undermines person autonomy
- issues of dignity; does the state
have the right to decide when we
have a life worth living? can they
reduce a life in this way?
- we may feel the state needs to intervene in cases where
an individual is not likely to ever make a rational choice;
this elevates the value of dignity of every one of the
lives of fellow humans - this does not create a right to
life
- in favour of maintaining personal
autonomy, then there is conflict when the
state allows a person to die, regardless of
their beliefs; because the death itself is
thought to be in the best interests of the
person or society as a whole - state action
from this undermines person autonomy
- R v Secretary of State for the Home Department (2003)
- highlights principles which underpin
Article 2; fundamental duty,
effectiveness, positive duties, adequate
legal and administrative framework and
investigation
- Effectiveness; relates to
interpretation and providing
safeguards which are practical and
effective
- Adequate legal and
administrative framework; has
to be an effective system which
provides sanctions and
remedies
- Investigation; McCann v UK (1995) believed on information
that there was to be a bombing in Gibraltar by IRA. The
members were arrested and shot, believing they were
about to detonate - shooting was said to be
disproportionate and also amounted to procedural
planning in the mission
- highlights principles which underpin
Article 2; fundamental duty,
effectiveness, positive duties, adequate
legal and administrative framework and
investigation
- ECtHR refers to procedural and substantive limbs of Article 2
- substantive limb relates to the
duty to secure life and prevent
the disproportionate use of force
- procedural limb refers to
the provision of adequate
remedies and particularly,
the duty to investigate
- substantive limb relates to the
duty to secure life and prevent
the disproportionate use of force
- Scope of Article 2
- can be invoked in situations of
lethal force by police and other
state agents, the treatment of
prisoners/those in custody,
regarding medical treatment
- problem is to identify the
relative significance/weight
of the right to life when
measured against the rights
or others or the states
- issue of standing gives rise
to questions of scope and
substance of right to life
- McCann v UK (1995) violation of
authorities not questioning the
correctness of the intelligence, also why
they weren't arrested before they crossed
the boarder
- dissenting opinion; cannot use
hindsight and should not use it in
judgments. Also tactical advantage
of the suspects, shows they were
entitled to operate within the rule
of law
- Planning and Contol; failure can lead to violation
- inadequacies of
information
- training and techniques used by
security forces, eg. SAS shoot to kill
(this could be seen as excessive
- eg. Andronicou v Cyprus (1997) special forces were armed
with machine guns who were trained to kill. As part of a
domestic incident, man took fiancee as a hostage and
threatened to kill her. The result of the forces led to her
death, negotiation was not possible, however the authorities
should have taken into account that an innocent life may be
endangered using such types of weapons
- Finogenev v Russia (2011)
Moscow hostage crisis;
900 people held at
gunpoint in a theater for
three days
- suicide bombers within
the theatre and
booby-traps. As a rescue,
Russian authorities gassed
the building and went
inside, they then shot the
suicide bombers. most
hostages survived, but 100
died as a result of the gas
- held, the actions were justified due to
the proportion of lives at stake; the
gas was held to be proportionate, as
it was not used indiscriminately and
there was planning and control to a
certain degree.
- issues with article
2; when the medics
arived there was
not enough of them
and the evacutation
was not effective
- suicide bombers within
the theatre and
booby-traps. As a rescue,
Russian authorities gassed
the building and went
inside, they then shot the
suicide bombers. most
hostages survived, but 100
died as a result of the gas
- inadequacies of
information
- Honest but mistaken belief
- lethal force used on
the basis of mistaken
belief, that is
necessary in
self-defence or to save
the lives of others, is
not necessarily a
breach of Article 2
- eg. Bubbins v UK (2005) police shot the
applicants brother, as they believed he was
armed with a hostage; later found out the
firearm was plastic; Held court felt the
information was an honest but mistake belief
- an official may feel a preemptive strike is
right for the rights of the larger public
- lethal force used on
the basis of mistaken
belief, that is
necessary in
self-defence or to save
the lives of others, is
not necessarily a
breach of Article 2
- Proving Responsibility
- prior to 1998 the Commission
investigated and determined
the facts; Courts were not
required to accept the
Commissions findings and in
exceptional cases would not
- today facts are agreed by
the Court; in regards to
Article 2, the facts must be
proved by the applicant
'beyond a reasonable doubt'
- court takes a proactive stance
- court takes a proactive stance
- eg. Orhan v Turkey (2002); Ikincisoy v Turkey
(2004) many cases of turkish troops, which
arrive in villages and people have been stopped
and questioned - arrested and taken away,
never to be seen again
- where does the
burden of proof
lie?
- court grants flexibility whent
there is a deficiency in the
domestic legal framework
- where does the
burden of proof
lie?
- Varanova and Others v Turkey
(2009) Grand Chamber issued
decision that Turkey violated Article
2, Article 3 and Article 5
- Precdent was followed as set out by
the Inter-American Court of Human
Rights and UN Homan Rights
Committee; Silih v Slovenia (2009)
held there was an obligation to
investigate death and the
disappearance
- Precdent was followed as set out by
the Inter-American Court of Human
Rights and UN Homan Rights
Committee; Silih v Slovenia (2009)
held there was an obligation to
investigate death and the
disappearance
- prior to 1998 the Commission
investigated and determined
the facts; Courts were not
required to accept the
Commissions findings and in
exceptional cases would not
- dissenting opinion; cannot use
hindsight and should not use it in
judgments. Also tactical advantage
of the suspects, shows they were
entitled to operate within the rule
of law
- Giuliani and Gaggo v
Italy (2012) police shot
a demonstrator who
appeared to be
attacking them with
lethal intent in context
of political protest;
done in order to
protect innocent
bystanders - therefore
no violation
- McCann v UK (1995) violation of
authorities not questioning the
correctness of the intelligence, also why
they weren't arrested before they crossed
the boarder
- not confined to intentional killing
- Makaratizis v Greece (2003)
individual broke through a
police road block, pursued
by police and shot (injured)
- Makaratizis v Greece (2003)
individual broke through a
police road block, pursued
by police and shot (injured)
- strict test for absolute necessity; more
demanding and imposes a greater
justifying burden on the state, than the
'necessary in democratic society' for
restricting the freedoms in Articles 9-11
- strict scrutiny of justifications; Article
2(2) will only justify lethal force, or
force which threatens a person's life, if
it was 'strictly proportionate' in all
circumstances
- can be invoked in situations of
lethal force by police and other
state agents, the treatment of
prisoners/those in custody,
regarding medical treatment
- Article 2(2)(a) in
defence of any
person from
unlawful
violence
- this includes both actions taken
in self-defence and actions taken
to prevent causing death or injury
to others
- this includes both actions taken
in self-defence and actions taken
to prevent causing death or injury
to others
- Article 2(2)(b) in order to
effect lawful arrest or to
prevent the escape of a
person lawfully detained
- Native v Bulgaria (1987)
requirement of 'absolute
necessity' is key
- Native v Bulgaria (1987)
requirement of 'absolute
necessity' is key
- Right to Life and McCann
- strict test for absolute necessity; demanding
requirement, imposes great justification burden
on the state, than the restrictions on freedoms
within Article 9-11, but it 'necessary in a
democratic society'
- Strict scrutiny of justifications; Article
2(2) only justifies lethal
force/non-lethal force which threatens
a person's life, if it is 'strictly
proportionate' in the circumstances
- strict test for absolute necessity; demanding
requirement, imposes great justification burden
on the state, than the restrictions on freedoms
within Article 9-11, but it 'necessary in a
democratic society'
- Article 2(2)(b) in order to effect
lawful arrest or to prevent the
escape of a person lawfully detained
- then 'absolute necessity' is required
- Nachova v Bulgaria (2006) what is
necessary? Military police shot and killed
two people caught in a bar, who had run
from the police. Held there was a violation
of Article 2, as they did not present a
threat and the way in which lethal force
was applied was not a appropriate, also
the men were of Roma origin
- Wolfgram v Germany (1987)
accepted force was justified,
when heavily armed bank
robbers were involved. One
detonated a grenade while the
police were attempting an
arrest.
- Streletz, Kesslet and Krenz v
Germany (2001) shooting by
border guards was not
justified; trying to stop
people crossing the Berlin
wall, this was not justifiable
as it restricted peoples
freedom of movement
- Nachova v Bulgaria (2006) what is
necessary? Military police shot and killed
two people caught in a bar, who had run
from the police. Held there was a violation
of Article 2, as they did not present a
threat and the way in which lethal force
was applied was not a appropriate, also
the men were of Roma origin
Möchten Sie kostenlos Ihre eigenen Mindmaps mit GoConqr erstellen? Mehr erfahren.