article 2 Flashcards
(28 cards)
What is Article 2(1) of the ECHR and what right does it protect?
Article 2(1) states that everyone’s right to life shall be protected by law. It means the State must not intentionally deprive life and must protect life by law.
What dual obligations does Article 2 impose on the State?
A negative obligation not to take life intentionally and a positive obligation to take steps to protect life.
Who does the State’s obligation to protect life extend to?
All individuals under the State’s jurisdiction, including threats to life, not just death, and includes acts by public authorities or agents like the police.
Does the right to life under Article 2 include the right to die?
No, Article 2 does not include the right to die. (Pretty v UK, Purdy v UK)
Under Article 2, when does the State have a duty to take preventive measures to protect life?
When authorities know or ought to have known of a real and immediate risk to life. (Osman v UK, 1998)
What test is used to assess breach of Article 2 for failure to protect from known threats?
The Osman test – whether authorities:
- knew or should have known of a real and immediate risk, and
- failed to take reasonable steps. (Michael v Chief Constable of South Wales Police, 2015)
What are the key considerations in assessing a State’s failure to protect life under Article 2? (2)
Whether the authorities:
- Knew/should have known about a specific risk
- Took reasonable steps to avoid the risk
The state must act effectively to prevent foreseeable risks to life. Can poor planning or training by authorities breach Article 2?
Yes, if it affects their ability to protect life. (DSD v Commissioner of Police, 2018)
Is the State required to go beyond practical measures to protect life?
No, the duty is balanced against what is realistically possible.
What procedural duty arises under Article 2 following a death caused by the State?
The duty to conduct an effective, prompt, independent, transparent investigation. (Jordan v UK, 2001)
What are the requirements of an Article 2-compliant investigation? (4)
It must be:
- Prompt
- Independent
- Effective (establish facts and responsibility)
- Transparent (include next-of-kin)
Can Article 2 be breached if the State genuinely believed lethal force was needed but was mistaken?
No, if the belief was honest and the context high-pressure, a mistake may not breach Article 2. (Armani Da Silva v UK, 2016)
Does the duty to investigate apply even if the person survives a potentially lethal incident?
Yes. (Makaratzis v Greece, 2004)
What does Article 2(2) ECHR allow regarding use of force resulting in death?
Life may be lawfully taken if absolutely necessary:
(a) In defence against unlawful violence (Armani Da Silva v UK)
(b) To make a lawful arrest or prevent escape of someone lawfully detained (Nachova v Bulgaria)
(c) To quell a riot or insurrection (Stewart v UK)
Under Article 2(2)(b), can force be used to carry out arrest/ prevent escape from detention of someone that isn’t violent?
No, this force can only be used if the person is a threat to the lives of others and is suspected of committing a violent offence.
if this isn’t the case, lethal force will BREACH ARTICLE 2
What principle must be met for force under Article 2(2) to be lawful?
It must be no more than absolutely necessary and strictly proportionate to the aim. (McCann and Others v UK, 1995)
How is the necessity of force judged in Article 2 cases?
Based on what the State agent honestly believed at the time. (Armani Da Silva v UK, 2016)
What Article 2 breaches were found in Güleç v Turkey (1998)?
Both substantive (unjustified force killing a 14-year-old) and procedural (inadequate investigation).
What obligations did the ECtHR affirm in Makaratzis v Greece (2004)?
Substantive (strict control over use of force) and procedural (investigation) obligations under Article 2.
Does abortion in the UK violate Article 2?
No. Under the Abortion Act 1967, abortion is legal up to 24 weeks and foetuses are not protected under Article 2. (Vo v France)
Does UK law breach Article 2 by prohibiting assisted suicide or euthanasia?
No. The State’s duty to protect life outweighs an individual’s right to die.
How is self-defence treated under Article 2 in UK law?
Lawful under Section 76 of the Criminal Justice and Immigration Act 2008 if force used is necessary and proportionate.
What is the duty of healthcare professionals under Article 2?
To take steps to protect life when there is a known threat. Failing to do so may breach Article 2.
Does medical negligence automatically breach Article 2?
No, not if the State maintains a general system for protecting life.
