European Human Rights Law
Professor R. Kay
I. Article 2: The right to life
a. Text: Right to life will be protected. No one shall be deprived intentionally unless in execution of a sentence.
i. Deprivation of life is no violation when from the use of force no more than absolutely necessary:
1. In defense of a person
2. To effect an arrest or prevent an escape
3. Lawful action to quell a riot or insurrection
b. When does life begin?
i. Vo v. France: Mistaken identity by doctor resulted in the termination of a woman’s 6 mos. Fetus.’
1. Held: No violation. Civil remedies available. Status of a fetus in France is not clear.
i. Permanent loss of function of left side of body can sustain an article 2 violation because of the positive obligation to protect life. Ilhan v. Turkey
ii. The right to life does not include a negative right to death because it is not a “freedom right”. Pretty v. UK
d. States obligations
i. Three categories of the states’ duties:
1. The use of excessive police and military force
2. Inadequate planning and preparation in connection to those functions
3. Failure to adequately investigate cause of death
ii. Gul v. Turkey: Operation against terrorists resulted in the death of a non-terrorist when police fired through the door of his apartment
1. Held: Violation because the police used more force than is absolutely necessary.
2. Adronicou and Constantinou v. Cyprus: disturbed man with a shot gun an hostage was killed by police. HELD: not more than absolutely necessary.
3. Kakoulli v. Turkey: a Turkish soldier shot a man who crossed the ceasefire line after being warned to stop. HELD: Because there was no immediate risk of harm –> not absolutely necessary
iii. Bad planning: poor planning of a police exercise that causes a death can be a violation of Article 2
1. McCann v. UK: Action against terror suspects with fear of imminent attack.
a. HELD: Authorities had to exercise the greatest care in evaluating their information saying there was an imminent attack before giving soldiers the use of firearms AUTOMATICALLY involving the right to kill. VIOLATION.
iv. Adequately investigating the cause of a death
1. R v. Secretary of State for the Home Department: 19 year old prisoner killed by cell mate in the UK.
a. HELD: Inquiry into death was held insufficient. VIOLATION. There must be an effective investigation.
v. Positive obligation to Protect Life
1. Edwards v. UK: Applicant had signs of serious mental disorder before death. His cellmate, acutely mentally ill, killed him with a fork.
a. HELD: Information from mental professionals, police, prosecution and court had information sufficient to require keeping cell mate from applicant. VIOLATION.
b. Keenan v. UK: Applicant argued that prison failed to protect her son from suicide. HELD: NO VIOLATION –> they acted reasonably in light of the information about his suicide risk.
vi. The Death Penalty
1. It has been questioned as a violation of article 3 (inhuman or degrading punishment). But article 2 has been understood as a limit on such an interpretation.
2. Protocol 13 : In 2002 the death penalty was abolished in all circumstances, including wartime.
vii. Fact Finding
1. Violation must be shown “beyond a reasonable doubt”
a. But if someone is in state custody in good health, but leaves injured, the State must furnish an explanation
b. This also applies to disappearances
2. Gundem v. Turkey: not beyond a reasonable doubt when allegation based only on one eyewitness and other witnesses had conflicting accounts.
II. Article 3: Torture
a. Text: No one subject to torture or inhuman or degrading treatment or punishment
i. suggested to include sterilization –> Danes object b/c they use that as a sex offender punishment.
ii. Suggested to include beating –> England objects b/c used as a punishment for robbery
ii. Inhuman treatment– consider: premeditation, long duration, intense physical and mental suffering, acute psychiatric distress
iii. Degrading treatment –consider: feelings of fear, anguish, inferiority; humiliating and debasing; breaking physical or moral resistance
d. Defining the terms
i. “torture” and “inhuman or degrading treatment”: Ireland v. UK: Ireland has a huge terror campaign. Ireland exercised extrajudicial powers. Bill introduced for detention & internment of these terrorists w/o sufficient in court evidence. Persons arrested could be subject to wall standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink. Petitioners were subjected to these.
1. Held: These 5 techniques caused intense physical and mental suffering –> inhuman treatment under article 3. They were degrading beca
b. State law forbidding assisted suicide –> still not enough act to be a violation. Rodriguez v. British Columbia.
a. The same treatment of 2 people can result in a violation to one, but not the other.
b. Keeping a person with no arms or legs in a regular cell was a violation. Price v. UK.
c. Incarceration of any seriously ill person in a way that doesn’t respond to their needs –> violation. Mousiel v. France.
d. Old age: Not a per se violation to imprison a man over 90 (but they have to take his age into account). Papon v. France
a. Not found until 1996.
i. Applicant, suspected of terror was: stripped naked, hands tied behind back, strung up in “Palestinian Hanging”; blindfolded, doused in water, electrodes attached to genitals and electrocuted for 35 minutes. Aksoy v. Turkey.
ii. Must be intentional. But does not have to be motivated by any particular purpose.
10. Crime fits punishment
a. A violation can be found when a punishment does not fit the crime.
e. Fact finding under Article 3
i. There must be an official investigation when someone claims an article 3 violation.
ii. A reasonable suspicion of a violation is not enough
iii. If the person leaves custody injured –> burden on authorities.
iv. Generally, Strousburg court takes the state courts found facts.
f. Corporal Punishment
i. Tyrer v. UK: Applicant, juvenile who plead guilty to assault, was “birched” (pants pulled down and spanked). This punishment was statutorily outlined.
1. Held: Not enough to amount to “torture”; not “inhuman punishment”; But degrading punishment –>indignity of bare posterior and degrading character of punishment EVEN THOUGH (1) doesn’t outrage public op., (2) an effective deterrent, (3) administered in private, (4) inflicts no lasting injury; and (5) imposed for crime of violence. MAIN QUESTION: Does it offend a person’s dignity or physical integrity.