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 person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection.
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.
2
,ii) Protecting People Against Threats to their Lives
Osman v UK
Key: In certain circumstances, Art 2 imposes positive obligation if:
1 ..a real and immediate risk to life from the criminal acts of a third party
• 2..authorities knew/ought to have known of risk at that time..
• 3..failure by the police to do all that they could reasonably do..
• 4..if such steps had been taken, would the death have been prevented.
• Qualified by:
◦ a. Obligation so as not to impose an impossible or disproportionate burden
on the authorities.
◦ b. Police must respect due process and other HR guarantees.
Facts: Schoolteacher made threats against his student. In the end he killed father and
wounded applicant.
Held: On facts, no infringement of art 2 protection. Police could not have known the
Osman family were at “real and immediate risk”. No measure could reasonably have
been taken to protect them . Police not at fault for attaching weight to the presumption
of innocence.
iii) An obligation to provide information
LCB v UK (1998)
Key: Court for first time held that if State knows of danger to life (not in this case),
may need to disclose information if that would protect life.
Facts: Woman diagnosed with leukaemia. She said it was due to her father's exposer
to radiation during RAF engagement. So she argued she could have had earlier
diagnosis and could have had check-ups if authorities had given her father advice on
exposure. IN 1950's people were not so aware of causes of radiation. European court
dismissed the claim on facts.
• Court must determine if “ State did all that could have been required of it to
prevent the applicant’s life from being avoidably put at risk.” (para 36).
McGinley and Egan v UK (1999)
Key: Under art 8 positive obligation to make info available
iv) Protecting Socio-Economic rights
We are seeing evidence of incremental development of positive state obligations.
O'Cinneide 2008 says that positive obligations have opened up 3 gateways, and one
of the gateways is through article 2. In relation to article two, it is clear that there is
no obligation to provide a certain level of healthcare. Nevertheless court has
recognised that acts/omissions by state authorities that expose individuals to threats
of life will trigger art 2. So if state implements vaccination program, state will be
responsible under art 2 for any negligence. And O'Cinneide thinks this is reflected in
Turkish case Öneryildiz
3
, Öneryildiz v. Turkey
Key: Ignoring known environmental threats can breach Art 2
Facts: Turkish authorities knew about risk of methane explosion but took not action
and 9 slum dwellers died.
Held: Breach of positive obligation.
Comment: Unclear how far this decision should reach
Budayeva v Russia
Key: If state knows about imminent natural disaster, could bear responsibility, but
clear that threshold higher for natural disasters which are less predictable,
Facts: Mudslide resulted in a few deaths.
Byrzykowski v Poland (2008)
Key: Acts/omission of healthcare authorities may give rise to responsibility under
positive limb of art 2, but where State made adequate provision for securing high
level of standards, negligence or errors of health professionals does not breach art 2.
[104]
4. The duty to investigate
• Effective protection of the right to life includes a procedural element: the
authorities must investigate any death of which they are aware.
• The system of investigation must be at least as effective where it is alleged
that agents of the state were involved in the killing or death.
McCann et al v UK (1996)
Key: First case to say there is minimum procedural duty to investigate deprivation of
life by agents of state.
Facts: One of the claims made by McCann and other suspects that was that UK had
provided inadequate procedures to investigate the killings. There were many eye
witnesses who were not interviewed. Coroner alleged to have close ties to the
military. And because of immunity certificates, had effectively curtailed evidence.
Held: No violation of procedural aspect
Note: it was kind of surprising, but remember since found violation of art 2 anyways
that may have been enough.
Kaya v Turkey (1999)
Key: Procedural Protection of Art 2 secures accountability of agents of state for use of
lethal force by way of some form of independent and public scrutiny.(Para 87)
Facts: Body found near village and riddled with bullets. Gov claimed that this guy
was terrorist and no one wanted to give evidence. Could not conclude if killed by
military and public prosecutor accepted without question the military version of the
4
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 person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection.
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.
2
,ii) Protecting People Against Threats to their Lives
Osman v UK
Key: In certain circumstances, Art 2 imposes positive obligation if:
1 ..a real and immediate risk to life from the criminal acts of a third party
• 2..authorities knew/ought to have known of risk at that time..
• 3..failure by the police to do all that they could reasonably do..
• 4..if such steps had been taken, would the death have been prevented.
• Qualified by:
◦ a. Obligation so as not to impose an impossible or disproportionate burden
on the authorities.
◦ b. Police must respect due process and other HR guarantees.
Facts: Schoolteacher made threats against his student. In the end he killed father and
wounded applicant.
Held: On facts, no infringement of art 2 protection. Police could not have known the
Osman family were at “real and immediate risk”. No measure could reasonably have
been taken to protect them . Police not at fault for attaching weight to the presumption
of innocence.
iii) An obligation to provide information
LCB v UK (1998)
Key: Court for first time held that if State knows of danger to life (not in this case),
may need to disclose information if that would protect life.
Facts: Woman diagnosed with leukaemia. She said it was due to her father's exposer
to radiation during RAF engagement. So she argued she could have had earlier
diagnosis and could have had check-ups if authorities had given her father advice on
exposure. IN 1950's people were not so aware of causes of radiation. European court
dismissed the claim on facts.
• Court must determine if “ State did all that could have been required of it to
prevent the applicant’s life from being avoidably put at risk.” (para 36).
McGinley and Egan v UK (1999)
Key: Under art 8 positive obligation to make info available
iv) Protecting Socio-Economic rights
We are seeing evidence of incremental development of positive state obligations.
O'Cinneide 2008 says that positive obligations have opened up 3 gateways, and one
of the gateways is through article 2. In relation to article two, it is clear that there is
no obligation to provide a certain level of healthcare. Nevertheless court has
recognised that acts/omissions by state authorities that expose individuals to threats
of life will trigger art 2. So if state implements vaccination program, state will be
responsible under art 2 for any negligence. And O'Cinneide thinks this is reflected in
Turkish case Öneryildiz
3
, Öneryildiz v. Turkey
Key: Ignoring known environmental threats can breach Art 2
Facts: Turkish authorities knew about risk of methane explosion but took not action
and 9 slum dwellers died.
Held: Breach of positive obligation.
Comment: Unclear how far this decision should reach
Budayeva v Russia
Key: If state knows about imminent natural disaster, could bear responsibility, but
clear that threshold higher for natural disasters which are less predictable,
Facts: Mudslide resulted in a few deaths.
Byrzykowski v Poland (2008)
Key: Acts/omission of healthcare authorities may give rise to responsibility under
positive limb of art 2, but where State made adequate provision for securing high
level of standards, negligence or errors of health professionals does not breach art 2.
[104]
4. The duty to investigate
• Effective protection of the right to life includes a procedural element: the
authorities must investigate any death of which they are aware.
• The system of investigation must be at least as effective where it is alleged
that agents of the state were involved in the killing or death.
McCann et al v UK (1996)
Key: First case to say there is minimum procedural duty to investigate deprivation of
life by agents of state.
Facts: One of the claims made by McCann and other suspects that was that UK had
provided inadequate procedures to investigate the killings. There were many eye
witnesses who were not interviewed. Coroner alleged to have close ties to the
military. And because of immunity certificates, had effectively curtailed evidence.
Held: No violation of procedural aspect
Note: it was kind of surprising, but remember since found violation of art 2 anyways
that may have been enough.
Kaya v Turkey (1999)
Key: Procedural Protection of Art 2 secures accountability of agents of state for use of
lethal force by way of some form of independent and public scrutiny.(Para 87)
Facts: Body found near village and riddled with bullets. Gov claimed that this guy
was terrorist and no one wanted to give evidence. Could not conclude if killed by
military and public prosecutor accepted without question the military version of the
4
