Summary
Summary Human Rights
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Summary of 6 pages for the course Human Rights Law at UoW (HR)
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Article 2 - the right to lifeArticle 2 is one of the most fundamental of all substantive rights
Respect for sanctity of life central tenet of civilised government
Absolute and non-derogable - BUT… limited exceptions apply
No correlative ‘right to die’ - for now
Negative & Positive obligations
What is the distinction?
- Negative
The state has to refrain from causing infringements by its policies and actions
- Positive
The state has to take active steps to both secure and protect the individuals rights, including infringements
caused by private individuals
Substantive v procedural limb
What is the distinction?
- Substantive
The substance of the right itself - so the right to not be deprived of a life
- Procedural
The investigatory steps the states have to take for example, when someone dies under suspicious
circumstances
Negative obligations
Article 2
What negative obligations are placed on a MS by article 2?
- Prohibition of unlawful deprivation of life - seems simple!
- Not limited to intentional killing and can include use of force that puts a person's life at risk, but no
death actually results
- But, it is the limited exceptions which muddle up the water
Limited Exceptions
When may states use force?
- Only where it is absolutely necessary
- For one of the purposes listed in article 2 & 2
Defend any person from unlawful violence (article 2 & 2 (a))
To effect a lawful arrest or to prevent escape of a person lawfully detained (article 2 & 2 (b))
Lawfully quell riot of insurrection (article 2 & 2 ( c ) )
Useful of lethal force by state agents
How much force may the state use?
- Only as much as it is absolutely necessary
- Breach occurs when public bodies use unnecessary or disproportionate acts of violence
McCann v UK [1995]
Facts; suspected terrorists, intelligence services suspected of potentially preparing to detonate a bomb, were
shot down. In fact, there were no explosive or detonators on them
Decision; The killing of the three terrorists did not constitute a use of force which was ‘absolutely necessary’ as
prescribed by Article 2-2
Lethal use of Force - what must be proved?
There are three conditions set by court :
1) The use of of fore must be absolutely necessary
Burden of Proof - who needs to prove what happened?
, The state!
The use of force must be absolutely necessary and the force used must be no more than necessary
Demanding requirement and the test used provides greater scrutiny than necessity test used for qualified
articles
Burden of proof - what if it is not clear what happened?
The burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing
explanation
Salman v Turkey (1994)
Facts; the applicants husband who was taken into custody in apparent good health, without any pre existing
injuries or active illness, no plausible explanation had been provided by the turkish government for his injuries
and death.further, the turkish authorities had failed to carry out an effective investigation into circumstances of
the death
Decision; Where a person was taken into custody in good health and died, the obligation on the authorities to
account for his treatment was particularly stringent. The burden of proof was on the authorities to provide a
satisfactory and convincing explanation for the death
If summoned by police and then never seen again. It is again the responsibility to provide a satisfactory and
convincing explanation (Tanis and others v Turkey)
2) It must be in defence of a third party
3) It must be subject to a proper and effective investigation which is both impartial and independent
Honest but mistaken Belief
Where the force is based on a mistaken but honest belief that the use of force is necessary, there will be no
violation
Bubbins v UK (2005)
Facts; Police shot dead the applicant's brother in the belief that he was armed and holding the woman
hostage. In fact it turned out that the gun was only a replica
Decision; Given the honest but mistaken belief about the gun and given the circumstances of being confronted
by an apparently armed, the use of force was not disproportionate
The court acknowledged the danger of using hindsight knowledge to analyse the situation
Planning and control
In the specific context of hostage rescue operations the court has held that, normally, the planning and
conduct of the rescue operation can be subjected to a heightened scrutiny
The following factors are taken into account
i) whether the operation was spontaneous or whether the authorities could have reflected on the situation and
made specific preparation
ii) whether the authorities were in a position to rely on some generally prepared emergency plan, not related to
a particular crisis
iii) that the degree of control of the situation is higher outside the building, where most of the rescue efforts
take place, and;
That the more predictable a hazard, the greater the obligation is to protect against it (Tagayeva and others v
Russia, & 563)
Article 2 & 2 (a) - defend any person from unlawful violence
This includes both self defense and actions taken to prevent a person causing death or injury to others
Giuliani and Gaggio v Italy (2012)
Facts ; Police shot dead demonstrator who appeared to be attacking them with lethal intent in the context of a
violent police protest
Decision; A Majority of a GC held that there was no violation of article 2 in its various aspects
There was video evidence which showed the violent attack on the police vehicle trying to leave the scene. The
officers reasonably feared they might be lynched - use of force was justified
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