Article 2 - The Right to Life

morally the most fundamental
1. 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
1. 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
1. 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
1. how far must the state go to satisfy the positive obligation?
  1. we have to be realistic, giving states a margin of appreciation, holding that no one should be intentionally deprived of life
  2. is it right that national law does not impose a duty on others to rescue those in danger of death?
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
1. 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
  1. if the duty is not upheld there is a right to vindication
  2. who has the competence to decide? and how far should states go?
2. the state an go further in its obligations to keep people alive and in some cases this may be against their will
  1. 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
there is a duty to inform people about the risk they are/were exposed to
1. the information is supposed to address particular concerns; this overlaps with Article 8 and the right to respect private life
2. range of duties involves balancing rights and interests of different people
3. 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.
depends on what we want from the state as concerns the protection of the right to life
1. 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
2. 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?
3. 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
R v Secretary of State for the Home Department (2003)
1. highlights principles which underpin Article 2; fundamental duty, effectiveness, positive duties, adequate legal and administrative framework and investigation
2. Effectiveness; relates to interpretation and providing safeguards which are practical and effective
3. Adequate legal and administrative framework; has to be an effective system which provides sanctions and remedies
4. 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
ECtHR refers to procedural and substantive limbs of Article 2
1. substantive limb relates to the duty to secure life and prevent the disproportionate use of force
2. procedural limb refers to the provision of adequate remedies and particularly, the duty to investigate
Scope of Article 2
1. can be invoked in situations of lethal force by police and other state agents, the treatment of prisoners/those in custody, regarding medical treatment
2. problem is to identify the relative significance/weight of the right to life when measured against the rights or others or the states
3. issue of standing gives rise to questions of scope and substance of right to life
  1. 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
    1. 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
    2. Planning and Contol; failure can lead to violation
      1. inadequacies of information
      2. training and techniques used by security forces, eg. SAS shoot to kill (this could be seen as excessive
      3. 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
      4. 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
    3. Honest but mistaken belief
      1. 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
      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
      3. an official may feel a preemptive strike is right for the rights of the larger public
    4. Proving Responsibility
      1. 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
      2. 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
      3. 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
      4. 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
  2. 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
4. not confined to intentional killing
  1. Makaratizis v Greece (2003) individual broke through a police road block, pursued by police and shot (injured)
5. 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
6. 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
Article 2(2)(a) in defence of any person from unlawful violence
1. 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
1. Native v Bulgaria (1987) requirement of 'absolute necessity' is key
Right to Life and McCann
1. 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'
2. 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
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
1. 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
2. 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.
3. 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

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Article 2 - The Right to Life

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