Lecture 6 Flashcards
(17 cards)
Scope of the right to life
Art 2(1) ECHR
The court hasn’t given us a specific time frame of when the right to life begins (US says the moment of conception)
Is there also a right to die? ➞ see Lambert v France: about the withdrawal of life sustaining treatment
- So it doesn’t contain a right to die, however the court did say that we also have article 8 (right to private life), and that it is not prepared to exclude that the right to suicide would be a violation of art 8 in the future
- In lamber v france there was a lot of discussion. He had suffered for more than a decade after a car accident. He couldn’t do anything anymore, his wife etc said that he wouldn’t want to continue like this, however his parents said that he couldn’t be taken off support.
State party obligations with the right to life
- negative obligation: no one shall be deprived of his life
- positive obligation: everyone’s right to life shall be protected by law
Lambart case and state party obligations to the right to life
In the Lambert case the court had to see if it was a negative of positive obligation, and often times it isn’t so clear cut. The court said that it was a positive obligation, and then they had to see if France would commit a violation if the doctors would stop the treatments for him.
➞ there was no violation of a positive obligation. There is a margin of appreciation, and also looking at the decision making process. The doctors had asked lots of people.
Absoluteness of the right to life
Art 2(1) ECHR. The death penalty is no longer allowed. But article 2(2) gives circumstances where states can take a life
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
➞ so when it is absolutely necessary
See the difference
- Art 2 ➞ absolutely necessary (no room for the margin of appreciation when talking about the negative obligation to not take a life)
- Art 8-11 ➞ necessary in a democratic society
Scope of the prohibition of torture
Article 3 ECHR
➞ not only torture but also inhumane or degrading treatment or punishment
When does something fall within the scope of art 3 ECHR?
_M.S.S. Case_ ➞ a minimum level of severity
- assessment is relative ➞ case by case assessment
- the minimum level depends on all circumstances of the case
Scope of M.S.S. case
From Afghanistan(?) to Greece. After Greece to Belgium to get asylum. Belgium authorities told them to go back to greece because that was the state that he entered Europe. In Greece he had no bed, drinking water, etc. based on this the court found a violation of article 3, which also shows that the article is broader.
Also his living conditions weren’t up to standard. The court said not all cases would leave to article 3, but in this case it was. Also because he was an asylum seeking, which makes him even more vulnerable.
Why is it not necessary to consider the question of justification in an Article 3 ECHR (prohibition of torture) case?
➞ it is an absolute right, so you can’t justify it
In the MSS case, greece said that they are overwhelmed + having an economic crisis to justify. The court said that it doesn’t matter because article 3 is an absolute right.
Deportation with the prohibition of torture
A state may be held responsible because of what another state is doing. In the MSS case Belgium was also held accountable
- There mere possibility of a violation isn’t enough, but there has to be a real risk - Al-Saadoon and Mufdhi v. UK
Types of positive obligations
a. Procedural = include more procedural aspects (focus on the means and processes on which individuals can find protection)
- Having in place an effective investigation e.g.
- call for domestic procedures, to ensure better protection for convention rights
- detachable obligation, it can be invoked on its own
b. Substantive = the obligation to provide effective protection for convention rights (focus on actions that are needed to ensure and protect)
- require basic measures that are needed for the enjoyment of the right
- are based on the relevant provision itself ➞ what they are, depends on the right in question. For the right to freedom of expression eg, you have to ensure the safety of the people
Establishments ➞ how do we know that we have positive obligations in the first place?
Fair balance test (art 8-11) - three stages
1. Individuals interests?
2. Governments interest?
3. Governments interest > individuals interest?
➞ case by case assessment
Reasonable knowledge and means test (arts 2 & 3)
Reasonable interpretation test
Case Tagayeva and others v Russia
In 2004 a terrorist group (?) attacked the school, and started to execute the people kept. Russia had to do something. ➞ massive violation of the negative obligation to the right of life
What could russia had done differently to better protect the right to life?
Positive obligations art 2 and 3
- protect
- prevent
- investigate
Prevent (positive obligations art 2 & 3)
whether the authorities knew of were supposed to know of the existence of the real and immediate risk. Positive obligation to prevent
Investigate
to ensure that we do have effects. Requirements of an investigation
1. Independent/effective
2. Adequate (capable of determining)
3. Public scrutiny ➞ varies per case, but that the next of kin needs to be aware about what is going on in the investigation (kept up to date)
4. Prompt ➞ case by case
The ways to put positive obligations into a box
The right to life ECHR vs CFR
Art 2 ECHR
- more extensive
- the second paragraph also applies to the charter
Art 2 CFR
- art 52(1) of the charter
Comparison prohibition of torture (ECHR and CFR)
Art 3 ECHR & Article 4 CFR = the same
But the charter has some extra provisions, and is more modern
- Art 1 CFR
- Art 3 CFR
