Article 2

Question 1

What is article 2?

Answer 1

The right to life

Question 2

What does article 2(1) state?

Answer 2

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally.

Question 3

what does article 2(2a,b,c) state?

Answer 3

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
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 taken for the purpose of quelling a riot or insurrection

Question 4

what is an absolute right?

Answer 4

it cannot be derogated from in peacetime.

Question 5

what is the burden of proof?

Answer 5

Beyond all reasonable doubt that the state was responsible for the victims death

Question 6

What is the ECHR view on abortion and the beginning and end of life?

Answer 6

The ECHR does not include a clause that protects life from the moment of conception, and in several cases, the ECHR has avoided defining when life begins because of a lack of consensus amongst the states.

Question 7

Evans v UK 2006

Answer 7

The ECtHR gave a wide margin of appreciation to the UK to regulate the use of frozen embryos without the consent of the father

Question 8

Paton v UK 1979

Answer 8

The Commission on Human Rights decided that there cannot be an absolute right to life for a foetus as this would undermine the absolute right to life of the mother

Question 9

Right to die

Answer 9

Only a small number number of states allow assisted dying in their domestic law. Th UK does not.

Question 10

Pretty v UK 2002

Answer 10

She had MND and she asked the court for permission to allow her husband to assist her suicide without being charged with a criminal offence. She argued article 2 gave her the right to die as well as the right to life. ECHR held it does not.

Question 11

What are positive obligations?

Answer 11

the ECtHR places obligations on member states to take positive steps to prevent violations of the convention. This ensures the ECHR is effective and has expanded its protection of rights to include protection from private individuals as well as state officials. It realises that states should not have an unrealistic burden when they are not directly responsible for a life that has been taken.

Question 12

What is meant by ‘duty to protect’?

Answer 12

This obligation is on the state to refrain from taking a life and also take steps to safeguard lives. The Osman Test was developed from the case of Osman v UK 1998. When deciding whether there is a duty on the state to protect, 3 factors are taken into consideration:
- knows or ought to have known at the time
- of the existence of a real and immediate risk to life of an identifiable individual and
- failed to take reasonable measures to avoid the risk

Question 13

What is the state reasonably expected to protect?

Answer 13

Domestic violence, individuals held in custody, investigating deaths

Question 14

how does article 2 cover negligence?

Answer 14

The accountability of state agents use of lethal force and when deaths have occurred, is governed by the common law

Question 15

Can you sue the police in negligence for failure to protect?

Answer 15

No.

Question 16

Van Colle v Chief Constable of Hertfordshire

Answer 16

A prosecution witness to a theft case was threatened and then murdered by the defendant shortly before the trial. The HOL said there was no violation of article 2.

Question 17

Mitchell v Glasgow City Council 2009

Answer 17

The victim complained to the local authority about his neighbour. The local authority met the neighbour and warned him about his behaviour, but then he went on to murder the victim. It was claimed that there was a violation of article as the local authority knew about the danger to the victim. The HOL held there was no violation.

Question 18

R v Secretary of State for the Home Department 2003

Answer 18

An Asian prisoner was killed by his cellmate who was convicted of murder, however there was inquest into the death. This was held to be a violation of article 2

Question 19

What are the exceptions in article 2?

Answer 19

The state can only justify the taking of a life by state agents if it is for one of the three reasons in article 2(2) and it is ‘absolutely necessary’

Question 20

Details of 2a:

Answer 20

Killing in these circumstance must be strictly necessary and there are procedural obligations when planning a course of action to avoid taking a life if possible. McCann, Farrell & Savage v UK 1995 (violation of article 2)

Question 21

Details of 2b:

Answer 21

The state can only take a life if there is no alternative. In Nachova v Bulgaria 2005, two unarmed men were shot when they ran away from security services who were trying to arrest them for a minor offence.

Question 22

What did the ECtHR say about a only killing in order to effect lawful arrest or to prevent the escape of a person lawfully detained?

Answer 22

‘in principle there can be no such necessity where it is known that the person to be arrested poses no threat…. and is not suspected of having committed a violent offence even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost’

Question 23

Details of 2c:

Answer 23

The ECHR held that the use of plastic bullets that killed a child during a riot in NI were a proportionate measure and did not breach article 2 (Stewart v UK 1984). However the use of a machine gun in turkey was not proportionate.