Human Rights Revision
Right to life and the death penalty
Article 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.
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.
European Convention, Protocol No. 6 (CETS No. 114) (1983) (abolishing the death penalty
except "in time of war or of imminent threat of war") (ratified by the UK in 1999; as of 16
Oct. 2019, ratified by 46 of 47 member states, all except Russia, which signed in 1997 but
has not ratified)
o Article 1: abolition of the death penalty
o Article 2: death penalty in the time of war A State may make provision in its law
for the death penalty in respect of acts committed in time of war or of imminent
threat of war; such penalty shall be applied only in the instances laid down in the
law and in accordance with its provisions. The State shall communicate to the
Secretary General of the Council of Europe the relevant provisions of that law.
o Article 3: prohibition of derogations from the provisions of this protocol
o Article 4: prohibition of reservations
o Article 5: territorial application
European Convention, Protocol No. 13 (CETS No. 187) (2002) (abolishing the death penalty
in all circumstances) (ratified by the UK in 2003; as of 16 Oct. 2019, ratified by 44 of 47
member states, signed but not ratified by 1, Armenia, not signed by 2, Azerbaijan and
Russia)
o Abolishes the death penalty in all circumstances, including for acts committed in
time of war or of imminent threat of war.
o Prohibition of derogations
Case List:
Extra-judicial killings by state actors
McCann v. United Kingdom (1995)
o General approach to article 2:
In peacetime admits of no derogation under Article 15
One of the most fundamental provisions in the Convention
, Art. 2(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" which may result, as an unintended
outcome, in the deprivation of life.
Absolutely necessary = indicates that a stricter and more compelling
test of necessity must be employed – the use of force needs to be
strictly proportionate to the achievement of the aims set out in sub
paras 2(a)(b) and (c) of article 2.
o Applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage (3
members of the IRA) by the members of the security forces constituted a
violation of Article 2 of the Convention.
o Compatibility with article 2 the Court must carefully scrutinise, not only
whether the force used by the soldiers was strictly proportionate to the aim
of protecting persons against unlawful violence but also whether the anti-
terrorist operation was planned and controlled by the authorities so as to
minimise, to the greatest extent possible, recourse to lethal force
o They were shot at close range after making what appeared to Soldiers A and
B to be threatening movements with their hands as if they were going to
detonate the bomb opened fire in the fear of a bomb being denotated
o It was subsequently discovered that the suspects were unarmed, that they
did not have a detonator device on their persons and that there was no
bomb in the car. All four soldiers admitted that they shot to kill.
The Court accepts that the soldiers honestly believed, in the light of
the information that they had been given, that it was necessary to
shoot the suspects in order to prevent them from detonating a bomb
and causing serious loss of life.
o The question arises, however, whether the anti-terrorist operation as a whole
was controlled and organised in a manner which respected the requirements
of Article 2 and whether the information and instructions given to the soldiers
took adequately into consideration the right to life of the three suspects.
o Failure by the authorities to appropriately organise an arrest operation and
the prevention of suspects from travelling into Gibraltar suggests that the
killing constituted the use of force which was more than absolutely necessary
accordingly, the court finds a breach of article 2
Armani Da Silva
o Fatal shooting in the London underground of a Brazilian national mistakenly
identified by the police as a suicide bomber – Armani da Silva brought a
complaint about the shooting of her cousin Jean Charles de Menezes.
, o The shooting occurred the day after a police manhunt was launched to find
those responsible for four unexploded bombs that had been found on three
underground trains and a bus in London.
o De Menezes left for work in the morning and was shot in the head 7 times to
stop him from boarding the tube.
o ECHR held that there had been no violation of article 2. The Court found that
the UK authorities had not failed in their obligations under Article 2 of the
Convention to conduct an effective investigation into the shooting of de
Menezes which was capable of identifying and – if appropriate – punishing
those responsible.
Şimşek v. Turkey (26 July 2005)
o Violent demonstrations in Istanbul – 15 people dead and 276 injured
o Alleged violation of article 2
As the text of Article 2 itself shows, the use of lethal force by police
officers may be justified in certain circumstances. Nonetheless,
Article 2 does not grant a carte blanche. It goes without saying that a
balance must be struck between the aim pursued and the means
employed to achieve it
Police officers should not be left in a vacuum when exercising their
duties, whether in the context of a prepared operation or a
spontaneous pursuit of a person perceived to be dangerous. A legal
and administrative framework should define the limited
circumstances in which law-enforcement officials may use force and
firearms, in the light of the international standards which have been
developed in this respect
Held: the force used to disperse the demonstrators, which caused the
death of seventeen people, was more than absolutely necessary
within the meaning of Article 2.
Kerimova & Others v. Russia (2011)
o In 1999, the Russian govt commenced a counter-terrorism operation in the
Chechen republic aerial attack by the federal air forces. The bombing
resulted in complete destruction and human casualties.
o The bombing with indiscriminate weapons of residential quarters of Urus-
Martan inhabited by civilians was manifestly disproportionate to the
achievement of the purposes listed under Art. 2 § 2 (a) and (c).
Failure of state actors to prevent killings by private actors
Osman v. United Kingdom (1998)
o School teacher displaying clear signs threatening the physical safety of Osman
and his family – the authorities were informed
, o The authorities failed to protect Ali Osman and his father by failing to take
adequate and appropriate measures
o Article 2 positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual.
Not every claimed risk to life can entail for the authorities a
Convention requirement to take operational measures to prevent that
risk from materialising.
It must be established to its satisfaction that the authorities knew or
ought to have known at the time of the existence of a real and
immediate risk to the life of an identified individual or individuals
from the criminal acts of a third party and that they failed to take
measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk.
o HELD: NO violation of article 2: because there was no moment where it
would have been obvious that the state should have got heavy handed in
dealing with the teacher, so difficult to say that the state failed to take
action/protect them. the applicants have failed to point to when it could be
said that the police knew or ought to have known that the lives of the family
were at real and immediate risk from Paget-Lewis
o Held: violation of article 6
Edwards v United Kingdom (2002)
o The deceased, a young man of mixed race, had been placed in a cell with
another prisoner who was known to be violent, racist and mentally unstable
– murdered by the cell-mate. Prison guards knew that the panic button was
defective and that the cellmate was unstable
o His family asserted that the prison authorities had failed to protect his article
2 right to life and article 13 right to a remedy
o Held: violation of articles 2 and 13
Kontrova v. Slovakia (2007)
o Violent husband – C filed a criminal complaint against her husband, accusing
him of assaulting ad beating her with an electric cable in 2002
o She submitted a medical report by a trauma specialist indicating that her
injuries would incapacitate her from work for up to 7 days + stated there was
a long history of physical and psychological abuse
o She alleged that the police have failed to take appropriate action to protect
her children’s lives and her private and family life despite knowing of her
husband’s abusive behaviour + it had been impossible to obtain
o Held: violation of article 2 and 13 in conjunction with articles 8 and 6
Right to life and the death penalty
Article 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.
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.
European Convention, Protocol No. 6 (CETS No. 114) (1983) (abolishing the death penalty
except "in time of war or of imminent threat of war") (ratified by the UK in 1999; as of 16
Oct. 2019, ratified by 46 of 47 member states, all except Russia, which signed in 1997 but
has not ratified)
o Article 1: abolition of the death penalty
o Article 2: death penalty in the time of war A State may make provision in its law
for the death penalty in respect of acts committed in time of war or of imminent
threat of war; such penalty shall be applied only in the instances laid down in the
law and in accordance with its provisions. The State shall communicate to the
Secretary General of the Council of Europe the relevant provisions of that law.
o Article 3: prohibition of derogations from the provisions of this protocol
o Article 4: prohibition of reservations
o Article 5: territorial application
European Convention, Protocol No. 13 (CETS No. 187) (2002) (abolishing the death penalty
in all circumstances) (ratified by the UK in 2003; as of 16 Oct. 2019, ratified by 44 of 47
member states, signed but not ratified by 1, Armenia, not signed by 2, Azerbaijan and
Russia)
o Abolishes the death penalty in all circumstances, including for acts committed in
time of war or of imminent threat of war.
o Prohibition of derogations
Case List:
Extra-judicial killings by state actors
McCann v. United Kingdom (1995)
o General approach to article 2:
In peacetime admits of no derogation under Article 15
One of the most fundamental provisions in the Convention
, Art. 2(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" which may result, as an unintended
outcome, in the deprivation of life.
Absolutely necessary = indicates that a stricter and more compelling
test of necessity must be employed – the use of force needs to be
strictly proportionate to the achievement of the aims set out in sub
paras 2(a)(b) and (c) of article 2.
o Applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage (3
members of the IRA) by the members of the security forces constituted a
violation of Article 2 of the Convention.
o Compatibility with article 2 the Court must carefully scrutinise, not only
whether the force used by the soldiers was strictly proportionate to the aim
of protecting persons against unlawful violence but also whether the anti-
terrorist operation was planned and controlled by the authorities so as to
minimise, to the greatest extent possible, recourse to lethal force
o They were shot at close range after making what appeared to Soldiers A and
B to be threatening movements with their hands as if they were going to
detonate the bomb opened fire in the fear of a bomb being denotated
o It was subsequently discovered that the suspects were unarmed, that they
did not have a detonator device on their persons and that there was no
bomb in the car. All four soldiers admitted that they shot to kill.
The Court accepts that the soldiers honestly believed, in the light of
the information that they had been given, that it was necessary to
shoot the suspects in order to prevent them from detonating a bomb
and causing serious loss of life.
o The question arises, however, whether the anti-terrorist operation as a whole
was controlled and organised in a manner which respected the requirements
of Article 2 and whether the information and instructions given to the soldiers
took adequately into consideration the right to life of the three suspects.
o Failure by the authorities to appropriately organise an arrest operation and
the prevention of suspects from travelling into Gibraltar suggests that the
killing constituted the use of force which was more than absolutely necessary
accordingly, the court finds a breach of article 2
Armani Da Silva
o Fatal shooting in the London underground of a Brazilian national mistakenly
identified by the police as a suicide bomber – Armani da Silva brought a
complaint about the shooting of her cousin Jean Charles de Menezes.
, o The shooting occurred the day after a police manhunt was launched to find
those responsible for four unexploded bombs that had been found on three
underground trains and a bus in London.
o De Menezes left for work in the morning and was shot in the head 7 times to
stop him from boarding the tube.
o ECHR held that there had been no violation of article 2. The Court found that
the UK authorities had not failed in their obligations under Article 2 of the
Convention to conduct an effective investigation into the shooting of de
Menezes which was capable of identifying and – if appropriate – punishing
those responsible.
Şimşek v. Turkey (26 July 2005)
o Violent demonstrations in Istanbul – 15 people dead and 276 injured
o Alleged violation of article 2
As the text of Article 2 itself shows, the use of lethal force by police
officers may be justified in certain circumstances. Nonetheless,
Article 2 does not grant a carte blanche. It goes without saying that a
balance must be struck between the aim pursued and the means
employed to achieve it
Police officers should not be left in a vacuum when exercising their
duties, whether in the context of a prepared operation or a
spontaneous pursuit of a person perceived to be dangerous. A legal
and administrative framework should define the limited
circumstances in which law-enforcement officials may use force and
firearms, in the light of the international standards which have been
developed in this respect
Held: the force used to disperse the demonstrators, which caused the
death of seventeen people, was more than absolutely necessary
within the meaning of Article 2.
Kerimova & Others v. Russia (2011)
o In 1999, the Russian govt commenced a counter-terrorism operation in the
Chechen republic aerial attack by the federal air forces. The bombing
resulted in complete destruction and human casualties.
o The bombing with indiscriminate weapons of residential quarters of Urus-
Martan inhabited by civilians was manifestly disproportionate to the
achievement of the purposes listed under Art. 2 § 2 (a) and (c).
Failure of state actors to prevent killings by private actors
Osman v. United Kingdom (1998)
o School teacher displaying clear signs threatening the physical safety of Osman
and his family – the authorities were informed
, o The authorities failed to protect Ali Osman and his father by failing to take
adequate and appropriate measures
o Article 2 positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual.
Not every claimed risk to life can entail for the authorities a
Convention requirement to take operational measures to prevent that
risk from materialising.
It must be established to its satisfaction that the authorities knew or
ought to have known at the time of the existence of a real and
immediate risk to the life of an identified individual or individuals
from the criminal acts of a third party and that they failed to take
measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk.
o HELD: NO violation of article 2: because there was no moment where it
would have been obvious that the state should have got heavy handed in
dealing with the teacher, so difficult to say that the state failed to take
action/protect them. the applicants have failed to point to when it could be
said that the police knew or ought to have known that the lives of the family
were at real and immediate risk from Paget-Lewis
o Held: violation of article 6
Edwards v United Kingdom (2002)
o The deceased, a young man of mixed race, had been placed in a cell with
another prisoner who was known to be violent, racist and mentally unstable
– murdered by the cell-mate. Prison guards knew that the panic button was
defective and that the cellmate was unstable
o His family asserted that the prison authorities had failed to protect his article
2 right to life and article 13 right to a remedy
o Held: violation of articles 2 and 13
Kontrova v. Slovakia (2007)
o Violent husband – C filed a criminal complaint against her husband, accusing
him of assaulting ad beating her with an electric cable in 2002
o She submitted a medical report by a trauma specialist indicating that her
injuries would incapacitate her from work for up to 7 days + stated there was
a long history of physical and psychological abuse
o She alleged that the police have failed to take appropriate action to protect
her children’s lives and her private and family life despite knowing of her
husband’s abusive behaviour + it had been impossible to obtain
o Held: violation of article 2 and 13 in conjunction with articles 8 and 6
