Article 2

Question 1

1) Introduction

Answer 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.

Question 2

2) Meaning of life

Answer 2

• The ECHR doesn’t clarify what life is or when it begins/ends.
• Under Article 2, life means human life and not animal life.
• States have the freedom to regulate matters of life an death within their own states as its an issue which comes under the margin of appreciation.
• A foetus isn’t a human being and doesn’t have rights or interests unless it has an independent existence of its mother.

Question 3

3) The end of life - assisted suicide (only if relevant)

Answer 3

• Assisted suicide is a matter which comes under the margin of appreciation.
• In the UK it remains an offence to assist someone’s suicide under the Suicide Act 1961 & carries up to 14 years imprisonment.
• In Pretty the ECHR found that the right to life doesn’t create a right to choose death rather than life. It meant there was no right to die at the hands of a third person or with the assistance of a public authority.

Question 4

4) The end of life - withdrawal of medical treatment (only if relevant)

Answer 4

•Where there’s disagreement between hospitals and families over the ending of a patients life, the hospital can apply for a court order if they believe it isn’t in the patients interest to receive life sustaining treatment & such orders wouldn’t breach Article 2 (Bland).

Question 5

5) The end of life - refusal of medical treatment (only if relevant)

Answer 5

• In Ms B v NHS Hospital Trust the court decided that what’s done with one’s own body is a fundamental right and the ventilator could be turned off.
• Competent individuals have the right to refuse medical treatment that could prolong life and this won’t breach Article 2.

Question 6

Apply

Answer 6

Apply above law to scenario

Question 7

6) The states duty to protect life

Answer 7

States are under a positive duty to ensure life is protected by state agencies.

Question 8

7) Duties of state in protecting individuals from violence by others (only if relevant)

Answer 8

• State authorities must take measures to protect individuals whose lives are at risk from other individuals or they will be in breach of Article 2, but only where it’s clear there’s a ‘real and immediate risk’ to life (Osman).
• In Edwards, the police were in breach of Article 2 when the applicants son was killed by a violent, schizophrenic prisoner & the panic button was broken as they hadn’t protected his safety.
• Local authorities also have to take steps to keep their residents safe from violent neighbours (Mitchell).

*Apply

Question 9

8) Duties of state in preventing suicide (only if relevant)

Answer 9

•When an individual starts showing suicidal tendencies, prison authorities should do all that can be reasonably expected to provide hospital care and subjecting them to close scrutiny (Keenan).

(•NHS authorities too must do all that can be reasonably expected to prevent detained mental health patients from committing suicide, provided there’s a real and immediate risk of this happening (Savage).)

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Question 10

9) Duties of the state in providing protection against medical malpractice (only if relevant)

Answer 10

• Article 2 includes ‘the obligation to establish an effective judicial system for establishing the cause of a death which occurs in a hospital’.
• This suggests the state should be responsible for issues like allegations of falsification of medical records & conspiracies between medical professionals to cover up mistakes, & has a duty to punish those responsible.

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Question 11

10) Duties of the state when making extradition and deportation decisions (only if relevant)

Answer 11

• There’s no right not to be extradited or deported from a country of which one isn’t a national.
• But, where an applicant fights to stay in the UK as they believe they’ll suffer & potentially lose their life if they’re deported to their national state Article 2 can be applied.

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Question 12

11) Duties of the state in relation to life-threatening environmental risks (only if relevant)

Answer 12

• The state must take steps to protect its citizens from death resulting from a hazardous environment.
• This includes providing the affected population with adequate information on the risks & holding those responsible accountable.

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Question 13

12) States duty to make an adequate investigation into loss of life

Answer 13

• The state is under a procedural obligation to conduct effective investigations where there’s an unnatural death as there’s a right to have unnatural deaths investigated by an independent body.
• In order to show an effective investigation was conducted, there must be a sufficient element of public scrutiny & the victims next of kin must be involved in the procedure (Jordan).
• There’s a procedural obligation under Article 2 to ensure as far as possible that the full facts are brought to light, that culpable conduct is exposed & brought to public notice (Amin).

Question 14

13) Types of investigation

Answer 14

• The main type of investigation is an inquest, which is usually carried out by a coroner in the event of an unnatural death to determine how, where & why a person has died.
• Article 2 inquests are held when public bodies or their agents have failed to protect the deceased against a threat.

Question 15

Apply

Answer 15

Apply law from cards 12 & 13

Question 16

1) Article 2.2 - restrictions on the right to life

Answer 16

•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 17

2) Use of force which is no more than absolutely necessary

Answer 17

• There will be no breach of Article 2 if death results from the use of force which is no more than absolutely necessary.
• When determining if force was necessary:
• the state must ensure that police that are faced with situations where lethal force is possible must be appropriately trained and instructed.
• the lethal force used must be based on ‘an honest belief which is perceived, for good reasons, to be valid at the time, even if it subsequently turns out to be mistaken’.

Question 18

3) Use of force which is no more than absolutely necessary

Answer 18

•In Finogenov it was held Article 2 may be violated where there’s:

• lack of careful planning of the police rescue operation &
• lack of an effective investigation by the state of the incident to determine if the force used was absolutely necessary.

Question 19

4) Apply

Answer 19

Apply cards 12 & 18 (use of force which is no more than absolutely necessary)

Question 20

5) Article 2.2(a) - use of force in defence of any person from unlawful violence

Answer 20

• Article 2 will not be breached where the killing is proportionate to the aim of defending others from unlawful violence.
• In Armani Da Silva, Article 2 hadn’t been violated, as the use of force was proportionate to the aim.

*Apply

Question 21

6) Article 2.2(b) - the use of force in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

Answer 21

• Article 2 will not be breached where force is used to enable a lawful arrest or to prevent the escape of a person lawfully detained.
• In Nachova, it was held that the legitimate aim of carrying out a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. There’s no such necessity where the person being arrested poses no threat to life nor is suspected of having committed a violent offence.

*Apply

Question 22

7) Conclusion

Answer 22

Are polices actions likely to violate Article 2 or not?