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Lecture notes

14. Human Rights II

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Lecture notes of 22 pages for the course Public Law at KCL (14. Human Rights II)

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  • August 22, 2017
  • 22
  • 2014/2015
  • Lecture notes
  • Unknown
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BEK Chapter 26: Emergency Powers and Terrorism
BEK Chapter 18 – Freedom of Association and Assembly

THE RIGHTS TO LIFE AND NOT TO BE TORTURED (ART. 2 & 3 ECHR)

INTRODUCTION
 Whose duties?
o Human rights cases are primarily actions of states against individuals
o If agents of the state are in some way implicated
 What duties?
o Negative obligations  not to do things: to refrain from doing
o Positive bligation  to take action to protect and fulfil
 Absolute or qualified?
o Absolute = cannot be limited or infringed under any circumstance
o Qualified = there are circumstances where the rights can be limited under certain
justified circumstances
 Most rights are qualified
 Scope of application: territorial or extra-territorial?

ART. 2 THE RIGHT TO LIFE
 Negative obligation – not to take life without justification
o McCann v UK [1995] ECHR
 Terrorist suspects bombing in Gibraltar
 Before HRA, during IRA terrorist attacks
 Police were following 2 guys whom they thought were carrying a bomb. The
2 guys turned around suddenly and the police killed them.
 Justification by police = they had bombs, and their movement showed that
they were trying to reach for the bomb
 However, 2 guys were unarmed  no real risk of causing harm
 Is this a justified police action, or is it a violation of the right to life?
 ECHR = police had failed and the system as a whole failed to take reasonable
precautions  violation of Art. 2, contrary to what the UK national courts
had found
 Art. 13 – Right to an effective remedy; violation of Art. 13 because legal
system to investigate these cases was not adequate
o Infringement not necessarily a violation, because an infringement may be justified
 Positive obligations – to the greatest extent reasonably practicable, protect life
o To prove that in the particular case, the state should have known the risk
o Osman v UK [2000] (prevention “real and immediate risk to life”)
 Osman was a Londoner who had been telling the police that another man
had been threatening to commit violence against him
 3 or 4 instances of the police being warned about this threat
 Police felt that they could do nothing, since there was no evidence for them
to take any further action
 Osman ended up being killed by the man
 ECHR held = no violation by the state  state could not take any further
action
o Edwards v UK

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