JUS5710/JUR1710 Institutions and Procedures · death penalty – see the reasoning in Öcalan v. Turkey (Appl. 46221/99) Grand Chamber, Judgment 12 May 2005 , paras. 162-165 (on Art.3)

T H E R I G H T T O L I F E

D E R O G A T I O N S

21 October 2014: The Right to Life Petter Wille, MFA/Maria Lundberg, NCHR

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JUS5710/JUR1710 Institutions and Procedures

The right to life


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A fundamental right - an “inherent right to life” (Art. 6.1 ICCPR)

”It must also be born in mind that, as a provision [Art. 2 ECHR] which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art.2) ranks as one of the most fundamental provisions in the Convention”

One of the basic values of the democratic societies making up the Council of Europe (McCann and others v. the United Kingdom, Judgment 27 September 1995, Ser. A, No. 324, para. 147)

Compare the Statutes of the Council of Europe

No derogations


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The right to life: ”It is the supreme right from which no derogation is permitted even

in time of public emergency which threatens the life of the nation” CCPR Gen Comment 6, The right to life (article 6), para 1.

No derogations (Art. 4.2 ICCPR, Art. 15 ECHR): But exceptions in relation the death penalty: Art. 6.2 of the Second Optional Protocol to the ICCPR on

the abolition of the death penalty Reservations possible for war time

Art. 15 of the ECHR : “except in respect of deaths resulting from lawful acts of war” Art. 3 of Protocol no. 6 on the abolition of the death penalty in peace

time (46 states parties) Art. 2 of Protocol no.13 concerning the abolition of the death penalty in

all circumstances (44 State parties) no derogations no reservations (Article 3)

Universal and Regional Instruments


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Art. 3 UDHR (UN, 1948): ”Everyone has the right to life, liberty and security of person.”

Links two rights (but divided in Art. 6 and 9 ICCPR) Safeguards Guaranteeing Protection of the Rights of Those Facing the Death

Penalty, ECOSOC Res. 1984/50 , 25 May 1984

Art. 6 ICCPR: “Every human being has an inherent right to life…” Convention on the Prevention and Punishment of the Crime of Genocide (1948) Rome Statute of the International Criminal Court: Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Universal and Regional Instruments

The right to life in regional instruments: Art. 4 American Convention on Human Rights

(ACHR) Art. 4 African Charter of Human and Peoples’

Rights (ACHPR) not including provisions on death penalty

Art. 2 ECHR and Protocols 6 and 13 on the abolition of death penalty. Europe is only region where the death penalty is no

longer applied – either abolished or a moratorium (Russia)

See also Parliamentary Assembly Recommendation 1760 (2006) of 28 June 2006


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The Right to Life


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Art. 6.1 ICCPR:

”Every human being has an inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”

Art. 2.1 ECHR

”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.”

Interdependence and indivisibility


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Indivisibility

Interdependence.

Reduce infant mortality and increase life expectance by eliminating malnutrition and epidemics (CCPR Gen Comment 6, The right to life (article 6), para 5)

Art. 11 and 12 ICESCR

Death penalty: Guarantees of for the procedure Art. 6.2 ICCPR

Fair trial

Art. 14 and also 15 ICCPR

Inhuman or degrading treatment or punishment

Art. 7 ICCPR

Death Penalty


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A major exception Art. 2.1 ECHR : “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.”

Art. 6.2 ICCPR: criteria for the imposition of death penalty Serious crimes

Accordance with law

Not contrary to the ICCPR or Genocide Convention (1948)

Carried out in accordance with final judgment

Gradual prohibition of death penalty (Art. 6 .6 ICCPR) Cf. Kindler v. Canada (Comm. 470/1991) UN Doc. CCPR/C/48/D470/1991 and Judge v. Canada (Comm.

829/1998) UN Doc. CCPR/C/78/D/829/1998

Gradual prohibition of the death penalty

Art. 6.2 and 6.6 ICCPR (1966) restricted application and favouring abolition (168 State parties)

Art. 4 ACHR (1969) further restrictions on applicability and express prohibition of reintroduction or extension

ECHR Protocol no. 6 on the abolition of the death penalty in peace time (1983, entered into force on 1 March 1985) 46 State parties

Death penalty in times of war or imminent threat of war art. 2 of protocol 6


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Gradual prohibition of the death penalty

ICCPR Second Optional Protocol (1989, entered into force on 11 July 1991) (81 State parties)

No execution of death penalty

All necessary measures to abolish the death penalty

However, allows for reservations in time of war for the most serious crime of military nature (Art. 2)

Judge v. Canada , UN. Doc. CCPR/C/78/D/829/1998

Para. 10.4: Only states that have abolished the death penalty can avail themselves of the exceptions (Art.6.2 ICCPR), «For countries that have abolished the death penalty there is an obligation not to expose a person to the real risk of its application.»

ECHR Protocol no.13 concerning the abolition of the death penalty in all circumstances (2002, entered into force on 1 July 2003) 44 State parties

Judgments of the Grand Chamber: Öcalan v. Turkey (App.46221/99), 12 May 2005, paras. 163-166 ;Al-Saadoon and Mufdhi v. UK (Appl. 61498/08, 2 March 2010


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ECHR – abolition of the death penalty

Art.2.1 ECHR: 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.

ECHR Protocol no. 6 on the abolition of the death penalty in peace time:

Article 2 – Death penalty in 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

Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances (2002)

Article 1 -Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.


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ECHR – Article 2 of the ECHR amended

After Prot. 13 was a adopted further developments towards the abolition of the death penalty – see the reasoning in Öcalan v. Turkey

(Appl. 46221/99) Grand Chamber, Judgment 12 May 2005 , paras. 162-165 (on Art.3)

In the case of AL-SAADOON AND MUFDHI v. THE UNITED KINGDOM (Application no. 61498/08), Judgment 2 March 2010:

Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. (para. 115)

All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital

punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances.(para.120)


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Life


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Its beginning and end:

Art. 4.1 of the American Convention on Human Rights (1969):

”This right shall be protected by law and, in general, from the moment of conception.”

The ICCPR and ECHR are silent on this matter

Life - start


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ECHR Abortion: Is the foetus protected? Divergence of thinking – at conception or when ”viable” or live birth Against the wishes of the father:

The State has a measure of discretion. If in accordance with law than permissible, H v. Norway (Appl. 17004/90), Decision [Commission] of 30 November 1994; Boso v. Italy (App. 50490/99), Admissibility decision 5 September 2002

On medical grounds. ”If Article 2 were held to cover the foetus and its protection under this

Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman.”

The discretion of the State as to when life begins, “there is no consensus on the nature or the status of an embryo and/or foetus, Vo v. France (App. 53924/00) Judgment of the Grand Chamber of 8 July 2004

Life - end


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The end of life:

Euthanasia

No right to an assisted suicide.

An obligation to protect life. Art. 2 does not relate to quality of life or self-determination; Pretty v. the UK (App. 2346/02), Judgment of 29 April 2002

The right to life


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Art. 6.1 ICCPR ”No one shall be arbitrarily deprived of his life” Art. 2.1 ECHR: ”No one shall be deprived of his life intentionally save…” Art. 6.1 ICCPR ”Arbitrary deprivation of life”: 1. Includes the elements of

unlawfulness and injustice and capriciousness unreasonableness

2. It is a right which should not be interpreted narrowly , CCPR Gen Comment 6, The right to life (article 6), para.1

3. The term “arbitrarily” aims at the specific circumstances of an individual case and their reasonableness (proportionality), making it to difficult to comprehend in abstractu (Nowak, p. 129, para 14)

The right to life - ECHR

The right to life

Three aspects of the States’ obligations:

1. The duty to refrain from unlawful killing

2. The duty to investigate suspicious deaths

3. In certain circumstances, a positive obligation to prevent the unavoidable loss of life


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The right to life


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Art. 2.2 ECHR:

”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 defense of any person from unlawful violence

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

© in action lawfully taken for the purpose of quelling a riot or insurrection”

State obligations - ECHR

Art. 2.2 ECHR: an obligation to refrain from unlawful killings by the State

”the use of force which is no more than absolutely necessary”

Strictly proportionate to one of the aims in article 2.2

Valid action,alternatives?

Based on reasonable grounds in light of relevant information available at the time

(McCann and others v. the United Kingdom, Judgment 27 September 1995, Ser. A, No. 324, para.

213)

In different situations:

In police or military action

In war like situtations

In cases of forced disapearance


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State obligations

Disappearances

”the phenomenon of of disappearances is a complex form of human rights violation” including breaches of the right to life and the right not to be subjected to ill-treatment, ”that must be understood and confronted in an integral fashion” Velasquez Rodriguez v. Honduras, 29 July 1988, Inter-Am. Ct. H.R. (Series C) No 4 (1988)

Investigations

Evidence pointing towards death in custody

Length of time

Absence of satisfacory explanations from the state


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Disappearances

Definition

Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED) (UN, 2006) 40 State parties

For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Enforced disappearances as crimes against humanity:

Article 5

The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.

Cf the ECHR Kurt v. Turkey – no violation of Article 2. But Timurtas v. Turkey (App23531/94), Judgment 13 June 2000 - violation


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State obligations


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Safeguard the right to life: ICCPR: States shall prevent 1. wars, 2. acts of genocide, defintions

Art. II of the Convention on the Prevention and punishment of the Crime of Genocide (UN, 1948)

Art. 6 Statute of the International Criminal Court, (Rome, 1998)

3. and other acts of mass violence causing arbitrary loss of life, CCPR Gen Comment 6, The right to life (article 6), para.2

4. “The production, testing, possession, deployment and use of nuclear weapons should be prohibited as crimes against humanity.” (CCPR Gen Comment 14, Nuclear weapons and the right to life (Article 6), para.6 (cf. individual cases declared inadmissible

Disappearances

A development in the law by the ECHR

Kurt v. Turkey (Appl.24276/94), Judgment 25 May 1998: no violation Article 2 but

129. The Court, accordingly, like the Commission, finds that there has been a particularly grave violation of the right to liberty and security of person guaranteed under Article 5 raising serious concerns about the welfare of Üzeyir Kurt.

Timurtas v. Turkey (App23531/94), Judgment 13 June 2000: violation

86. For the above reasons, the Court is satisfied that Abdulvahap Timurtaş must be presumed dead following an unacknowledged detention by the security forces. Consequently, the responsibility of the respondent State for his death is engaged. Noting that the authorities have not provided any explanation as to what occurred after Abdulvahap Timurtaş's apprehension and that they do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for his death is attributable to the respondent State (see Çakıcı, loc. cit., § 87). Accordingly, there has been a violation of Article 2 on that account.


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Positive obligations


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The expression ”inherent right to life” cannot be properly understood in a restrictive manner, and the protection of this right requires that States adopt positive measures (CCPR Gen Comment 6, The right to life (Article 6), para.5)

Rodger Chongwe v. Zambia (Comm. 821/1998): An obligation to protect life: the use of leathal force without lawful reason

Suarez de Guerrero v. Columbia (Comm. 45/1979): An intentional deprivation of life Criteria: no warning and no explanation of the intentions, not necessary in the

defence of the police or others, not necessary for the arrest, mere suspects of a kidnapping

Conclusion: disproportionate and arbitrary, thus life not adequately protected by law

“The applicant complained in addition that the respondent State’s failure to warn and advise her parents to monitor her health prior to her diagnosis with leukemia…In this connection the Court considers that the first sentence of Article 2§1 enjoins the State not only to refrain from intentional taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction..” (LBC v. the United Kingdom (14/1997/798/1001), Judgment 9 June 1998, para. 36)



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Starting point an effective criminal procedure. ”The obligation to protect life under this provision, … requires by implication

that there should be some form of effective official investigation when individuals have been killed by, inter alios, agents of the State (McCann and others v. the United Kingdom, Judgment 27 September 1995, Ser. A, No. 324, para. 161)

”However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure the effective, independent investigation is conducted into the deaths arising out of clashes involving the security forces, more so in cases such as the present where circumstances are in many respects unclear” (Kaya v. Turkey (App. 22729/93), Judgment 19 february 1998, para 91)

Investigation must be carried out promptly in order to maintain confidence in the authorities and the rule of law – 5 years and no result Yasa v. Turkey (App. 22495/939, Judgment 2 September 1998, paras. 92-108)

Since the inquest could not actually play effective role in the identification of or in the prosecution of any criminal offences it did not comply with Art. 2 ECHR, see Hugh Jordan v. the United Kingdom (app. 24747/94), Judgment of 4 may 2001, Cf McCann case



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The duty to investigate arises wherever life has been lost in circumstances potentially engaging the responsibility of the State

Disappearances

Specific measures to prevent disappearances

To effectively investigate by an impartial body (Celis Laureano v. Peru (Comm. 540/1993)

Failure of the State to give any explanation of where the person was and the length of time (6,5 years) gave sufficient grounds (Timurtas v. Turkey (App23531/94), Judgment 13 June 2000)

How far does the obligations go?


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The state should take appropriate steps to safeguard lives of those within their jurisdiction

What is reasonable under the circumstances: Knowledge about a real and immediate risk Failing to take measures within the scope of their powers

(Osman v. the United kingdom (App. 23452/94) judgment 28 October 1998, para.116,

Health risks: How far can a principle of giving information be extended? A duty to give accurate information about serious health risks to the public in general - Could it also arise in activities by private individuals?

No derogations


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The right to life: ”It is the supreme right from which no derogation is permitted even

in time of public emergency which threatens the life of the nation” CCPR Gen Comment 6, The right to life (article 6), para 1.

No derogations (Art. 4.2 ICCPR, Art. 15 ECHR): Art. 4. ICCPR

Art. 6.2 of the Second Optional Protocol to the ICCPR on the abolition of the death penalty (reservations possible for war time)

Art. 15 of the ECHR : “except in respect of deaths resulting from lawful acts of war” Art. 3 of Protocol no. 6 on the abolition of the death penalty in peace

time Art. 2 of Protocol no.13 concerning the abolition of the death penalty in

all circumstances


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State of emergency

Permissible to restrict the application of human rights when a threat to the nation exists

A derogation from their obligations under the treaty

Express provisions in the ICCPR and the ECHR

Armed conflict or other exceptional situation

States must act according to their constitution and other relevant domestic law


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Derogations

ECHR Art 15: War or other public emergency

threatening the life of the nation

Strictly required in the situation Comply with other obligations

under int. law Non-derogable rights: Arts. 2

(exception for lawful acts of war), 3, 4.1, 7

Prohibition of death penalty: Art. 3 of protocol 6, and protocol 13 (no derogation)

Procedure: Inform SG of C of E

ICCPR Art. 4: Public emergency threatening the life

of the nation Strictly required in the situation Comply with other obligations under

int. law Officially proclaimed No discrimination solely on

enumerated grounds Non-derogable rights: Arts. 6, 7, 8.1

and 8.2,, 11, 15, 16, 18 Prohibition of death penalty: Art. 6

2nd optional protocol (no derogation)

Procedure: Inform other state parties through SG of the UN


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Substantive requirements

Public emergency:

“an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to organised life in the community of which the State is composed” (Lawless v. Ireland, ser. A. No. 1-3,

Judgment of 1 July 1961, para. 28)

Margin of appreciation (ECHR) -The State is in the position to determine: the presence of such situation and what is necessary to avert it (Aksoy v. Turkey

(Appl. 219877/93), Judgment of 2 November 2004, para. 69)


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Derogations

In accordance with the principles of legality and rule of law In accordance with constitution and other domestic laws Not in violation with international legal obligations

Art. 53 ECHR: Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or

derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting party or under any other agreement to which it is a Party

Art. 5.2 of the ICCPR: There shall be no restriction upon or derogation from any of the

fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.


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Non-derogable rights

Listed in Art. 4 ICCPR and Art. 15 ECHR In addition: The protocols to the conventions Jus cogens/peremtory norms of international law (VCLT Art. 53) The HRCmmttee (Gen. Comment 29, para 13-14, 16):

Certain rights have non-derogable elements or dimensions : The right to non-discrimination (Gen. Comment 29, para 7) Deprivation of liberty – humanity and respect for inherent dignity Prohibition of taking of hostages, abduction or unacknowledged detention, as part of

general international law Rights of persons belonging to minorities Deportation or forcible transfer of population without grounds permitted under int.

law (see also ICC statutes) (cf. Art. 12 ICCPR) Propaganda of war or advocacy of national, racial or religious hatred inciting

discrimination, hostility or violence (cf. Art. 20 ICCPR) Remedies for any violation of the ICCPR (see Art. 2.3 ICCPR) Fair trial (as guaranteed under int. humanitarian law)


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Procedural requirements

Official proclamation (Art. 4 ICCPR, but only implicit in Art. 15 ECHR)

Notification, both start and end

Within time – immediate (Art. 4.3 ICCPR)

Full information about the measures taken

A clear explanation of the reasons

Documents

JUS5710/JUR1710 Institutions and Procedures · death penalty – see the reasoning in Öcalan v. Turkey (Appl. 46221/99) Grand Chamber, Judgment 12 May 2005 , paras. 162-165 (on Art.3)