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Criminal Law Aspect of the European Convention on Human Rights 2. 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.
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Criminal Law Aspect of the European Convention on Human Rights
Article 2-Right to lifeArticle 2-Right to life
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.
Criminal Law Aspect of the European Convention on Human Rights
2. 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.
Criminal Law Aspect of the European Convention on Human Rights
Importance, Fundamental natureImportance, Fundamental nature the most basic human right of all
– if one could be arbitrarily deprived of one’s right to life, all other rights would become illusory
“non-derogable” right– may not be denied even in “time of war or other public
emergency threatening the life of the nation” exception
– lawful act of war
Limitations!
Aim of Art. 2– to protect individuals from killings by state agents
Criminal Law Aspect of the European Convention on Human Rights
McCann and othersv. the United Kingdom (1995.)
“Article 2 ranks as one of the most fundamental provisions in the Convention – indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe.”
Criminal Law Aspect of the European Convention on Human Rights
Possible applicantsPossible applicants
Victims: there must be detriment to the applicant relatives of those who have died an individual whose life is put at serious risk father and foetus – abortion medical negligence cases - not in the case of
acceptance of a settlement in negligence proceedings
Criminal Law Aspect of the European Convention on Human Rights
Paragraph 1 – Protection of lifeParagraph 1 – Protection of life
a general obligation to protect the right to
life “by law” (§ 1)
a prohibition of deprivation of life
Criminal Law Aspect of the European Convention on Human Rights
Protected by lawProtected by law
States must protect that right to an extent manner, in accordance with Convention standards
Law – autonomous term
parliamentary accessible precise and forseeable
Criminal Law Aspect of the European Convention on Human Rights
Article 2 § 2 - Deprivation of life
Limitations: Results from the use of force which is no more than
absolutely necessary: to defend a person (any person) from unlawful violence to effect a lawful arrest to prevent the escape of a person lawfully detained to quell a riot or insurrection through action lawfully
taken for that purpose
Criminal Law Aspect of the European Convention on Human Rights
McCann and Others v. the United Kingdom (1995.)
“...paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” [for any of the above purposes] which may result, as an unintended outcome, in the deprivation of life.”
Criminal Law Aspect of the European Convention on Human Rights
What kind of deprivation of life permit § 2?
Unintentional?
Or
Intentional?
Criminal Law Aspect of the European Convention on Human Rights
Exceptions applyExceptions apply
to situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life – unintentional
to the intentional deprivation of life (self-defense) ?
Criminal Law Aspect of the European Convention on Human Rights
Requirements for Requirements for Exceptions (2/2)Exceptions (2/2)
Absolutely necessary
Legitimate aim
Exhaustive list
Must be construed narrowly
Criminal Law Aspect of the European Convention on Human Rights
Absolutely necessaryAbsolutely necessary Requirement of proportionality
– stricter test than ‘necessary in a democratic society’– strictly proportionate to the achievement, – the minimum necessary to achieve one of the aims
Criteria whether the use of force is strictly proportionate– nature of the aim pursued– the dangers to life and limb inherent in the situation– the degree of risk that the force employed would result in
loss of life
Honest but mistaken belief that the use of force is absolutely necessary to achieve one of the aims - not violation
Criminal Law Aspect of the European Convention on Human Rights
Obligations of the contracting StatesObligations of the contracting States
Three main aspects:
A. Negative obligation
B. Positive obligation
C. Procedural obligation
Criminal Law Aspect of the European Convention on Human Rights
Negative obligationNegative obligation
Duty to refrain from taking life; state organs, agents and servant – intentional– unintentional killings
Violation more than the minimum use of force absolutely
necessary, force exceeding that minimum No legitimate aim
Criminal Law Aspect of the European Convention on Human Rights
Positive obligationPositive obligation
Duty to take all appropriate steps in order to safeguard life
law + enforcement very important for protection of life from
other individuals
Criminal Law Aspect of the European Convention on Human Rights
Legal frameworkLegal framework Law must prohibit and punish
– killings / unintentional illegal deprivation of life What fields/types of law:
– Criminal law– Reckless or negligent acts - ?– to set up an effective judicial system, not necessarily the
criminal-law remedy in every case– medical negligence – remedy in the civil courts, payment
of compensation, effective investigation enough Law on use of lethal force
– domestic law must regulate the permissible use of lethal force by agents of the state:
• compatible with the rule of law• specific reasons• standard of absolute necessity
Criminal Law Aspect of the European Convention on Human Rights
Enforcement of law Enforcement of law mechanisms for its enforcement and their
application in practice safeguards have to be practical and effective
(Soering v. UK, McCann v UK) Positive obligations: obligation to prosecute
– margin of appreciation (legality / opportunity principle)– right to the judicial review of a decision of the DPP not to
pursue a prosecution, 4, 2007 protection of individuals from violence by others
(stage agents / private individuals)
Criminal Law Aspect of the European Convention on Human Rights
proper education of state organs, agents and other servants regarding the use of force
proper planning and organization of security operations– a rescue operation, – an anti-terrorist police operation, – provision of medical services and emergency procedures, – the designation of cells and cell-mates in prison– appropriate care to ensure the right to life, not only of the general
population, but also of the suspect in relation to life-threatening environmental risks
– the provision of information regarding a possible risk to life– to discourage individuals from causing serious risk to their own health
to protect vulnerable categories of people:– juveniles, prisoners, ethnic minorities, witnesses, informants
protection against medical malpractice extradition, expulsion and deportation
Criminal Law Aspect of the European Convention on Human Rights
Procedural obligationProcedural obligation
Duty to investigate any death Aim - agents of the state must be accountable for
their use of lethal force procedure for reviewing the lawfulness the investigation must be capable of indicating:
a) who were responsibleb) whether state agents were involvedc) the circumstances surrounding the deathsd) systemic failures
Criminal Law Aspect of the European Convention on Human Rights
Effective official investigationEffective official investigation
Following procedural safeguards: carried out by and independent body transparency, in public thorough and rigorous effective - capable of imputing responsibility for
the death next of kin must be involved
Criminal Law Aspect of the European Convention on Human Rights
The Death Penalty and its AbolitionThe Death Penalty and its AbolitionEvolution in EuropeEvolution in Europe
Art. 2/1 - in 1950, many European states have death penalty Soering v. UK, 1989 - not violation of Art. 2 or 3 In 70s-80s De facto complete abandonment in times of peace Protocol 6, 1983, in force 1985 de jure abolition of the 46 States and a moratorium in Russia COE - condition for admission abolish capital punishment Protocol 13, 2002, in force 2003 MS COE - a zone free of capital punishment Ocalan v. Turkey, 2003 ‘capital punishment in peacetime has come to be regarded as an
unacceptable… form of punishment which is no longer permissible under Article 2’
Extradition or deportation - violation of Art.1 of Prot. 6 and Art 2 ECHR where the expelling state has ratified Prot. 6.
