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Article 2 Notes

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Article 2 Article 2:

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.

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 detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

person lawfully

1. Introduction Art 2 imposes negative and positive obligations on the state: Negative: A duty not to deprive anyone of his or her life save in the limited circumstances prescribed by art 2(2) Positive: A positive duty to protect the right to life. Through idea of positive obligation we see development of socio economic protection (maybe more evident in 8 and 16). E.g must provide flu vaccine.

2. Deprivation of life Domestic law must regulate the permissible use of lethal force by agents of the state. McCann, Farrell and Savage v UK (1996) Key: Court laid down the main points for interpreting article two and still major case for this today:

1. Fundamental provision which does not permit derogation

2. Enshrines basic democratic values

3. The provisions of Article 2 must be strictly construed.

4. Use of force must be proportionate "the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill." para. 211 Facts: IRA service unit shot dead in light of day, soldiers thought they were going to detonate bomb, but turned out that was wrong.

1 Comments: 10:9 IRA estate won. Controversial, sparked a lot of controversy about shoot to kill theory (instead of arresting IRA people, the police would shoot them) Andronicou Constantinou v Cyprus (1997) Key: In considering Art 2, the Court must have particular regard to the context in which the incident occurred. (para 182) Facts: Man held woman hostage and threatened to kill woman, police stormed, he shot police, and police then shot 20 bullets. Gov inquiry: concluded that no more force than necessary. Held: No violation, although dissenting judge said not proportionate as machine guns was excessive and there was no ambulance in front of house. Makaratzis v. Greece (2005) Key: Police operations must be regulated properly in times of emergency, otherwise could be violation of art 2. Facts: Car chase in Athens, went through red light by US embassy, police fired 16 bullets hit his car, not killed, but still brought art 2 claim. Held: Operational structure inadequate protection of Art 2

3 The duty to protect The court will demand a high level of explanation if people die in custody of the state. In a way, a type of strict scrutiny is imposed. i) Safeguarding those in the custody and care of public authorities Saoud v France Authorities failed to provide proper regulation as to the use of the restraint technique employed. Held: violation of article 2 Edwards v UK (2002) Key: Duty to Protect Persons in custody were in a vulnerable position Facts: Person put in cell with mentally ill person and call system was defective. Held: Breach of Art 2 Keenan v UK Key: High standard imposed when people in danger of suicide. Is there an obligation to afford general protection to the public?
*Mastromatteo v Italy Grand Chamber Key: Not every risk to life entails convention obligation to take measures to prevent risk from materialising towards public at large Facts: Released violent prisoners on leave and parents of injured applicant said that authorities had not properly assessed the situation. Held: there was nothing to make authorities fear that individuals realese would pose immediate threat.


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