The Right to Life The Right not to be subjected to Torture ...MenuItemByDocId... · Torture or...

The Right to Life

The Right not to be subjected to

Torture or Inhuman or Degrading

Treatment or Punishment

Dr. Vladislava Stoyanova

[email protected]

Faculty of Law, Lund University / Dr. Vladislava Stoyanova/ 10/12/2017

Origins

Universal Declaration of Human Rights (1948)

- Classic rights (Articles 1 - 22)

- Social rights (Articles 23 - 27)

- Legal Status

Every one has the right to life, liberty and security of person.No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment.


Origins

The International Bill of Human Rights

- The Universal Declaration of Human Rights

- International Covenant on Economic, Social andCultural Rights (ICESCR)

- International Covenant on Civil and Political Rights(ICCPR)

- Optional Protocol to the ICCPR (The Human Rights Committee)

- Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty

http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx

http://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en

http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx

http://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en


Origins

Article 6 of the ICCPR

1. Every human being has the inherent right to life.This right shall be protected by law. No one shall bearbitrarily deprived of his life.

2. In countries which have not abolished the deathpenalty, sentence of death may be imposed only forthe most serious crimes in accordance with the law inforce at the time of the commission of the crime andnot contrary to the provisions of the present Covenantand to the Convention on the Prevention andPunishment of the Crime of Genocide. This penalty canonly be carried out pursuant to a final judgmentrendered by a competent court.


Origins

Article 6 of the ICCPR (cont.)

3. When deprivation of life constitutes the crime ofgenocide, it is understood that nothing in this articleshall authorize any State Party to the present Covenantto derogate in any way from any obligation assumedunder the provisions of the Convention on thePrevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right toseek pardon or commutation of the sentence. Amnesty,pardon or commutation of the sentence of death maybe granted in all cases.

5. Sentence of death shall not be imposed for crimescommitted by persons below eighteen years of age andshall not be carried out on pregnant women.


Origins

Article 6 of the ICCPR (cont.)

6. Nothing in this article shall be invoked to delay or toprevent the abolition of capital punishment by anyState Party to the present Covenant.


Regional Instruments

Convention for the Protection of Human Rights andFundamental Freedom (the ECHR), adopted 1950, intoforce Sept. 3, 1953

http://www.conventions.coe.int/

http://www.conventions.coe.int/



The ECHR, 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 inthe execution of a sentence of a court following hisconviction of a crime for which this penalty is providedby law.

2 Deprivation of life shall not be regarded asinflicted in contravention of this article when itresults from the use of force which is no more thanabsolutely 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.



The ECHR, Article 2 – Right to life as amended by

- Protocol No. 6 to the ECHR concerning the abolitionof the death penalty (in force since 1985)

Status http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=114&CM=8&DF=12/10/2013&CL=ENG

- Protocol No.13 to the ECHR concerning theabolition of the death penalty in all circumstances (inforce since 2003)

Status http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=187&CM=8&DF=12/10/2013&CL=ENG

Abolishment of the capital punishment in

time of peace.

http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=114&CM=8&DF=12/10/2013&CL=ENG

http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=187&CM=8&DF=12/10/2013&CL=ENG



- African (Banjul) Charter on Human and Peoples'Rights – Article 4

- American Convention on Human Rights – Article4

Human beings are inviolable. Every human

being shall be entitled to respect for his life

and the integrity of his person. No one may

be arbitrarily deprived of this right.

… This right shall be protected by law and, in general,

from the moment of conception. …


Issues reviewed in relation to the right to life by the ECtHR

- Death penalty

- Extradition to face the

risk of death penalty

- Forced disappearances

- Lethal force during policeoperations/ armedconflicts

- Lost of life while in statecustody

- Lost of life in relation tosafety and environment

- Domestic violence

- Suicide

- Euthanasia

- The life of the fetus

Keep in mind the means

of interpretation !!!


Types of State Obligations

- Negative Obligations –

respect for the right to life;

no arbitrary deprivation of

the right to life by the state

agents

- Positive Obligations –

ensuring the right to life;

a positive obligation to protect

life

Giuliani and Gaggio v.

Italy, GC, 24 March 2011


Use of lethal force during police operations

McCann and Others v. The United Kingdom,Application No.18984/91, Judgment 27 Sept 1995



McCann and Others v. The United Kingdom, ApplicationNo.18984/91, Judgment 27 Sept 1995

‘The Court considers that the exceptions delineated inpara. 2 indicate that this provision (art. 2-2) extendsto, but is not concerned exclusively with, intentionalkilling. […] demonstrates that paragraph 2 (art. 2-2)does not primarily define instances where it ispermitted intentionally to kill an individual, butdescribes the situations where it is permitted to"use force" which may result, as an unintendedoutcome, in the deprivation of life. The use offorce, however, must be no more than "absolutelynecessary" for the achievement of one of thepurposes set out in sub-paragraphs (a), (b) or (c).’



McCann and Others v. The United Kingdom, ApplicationNo.18984/91, Judgment 27 Sept 1995 (cont.)

‘In particular, the forced used must be strictlyproportionate to the achievement of the aims set out insub-paragraphs 2(a), (b) and (c) of Article 2.’(para.148-149)

How is the proportionality assessment to be conducted?




‘the Court must […] subject deprivations of life to themost careful scrutiny, particularly where deliberatelethal force is used, taking into consideration not onlythe actions of the agents of the State who actuallyadminister the force but also all the surroundingcircumstances including such matters as theplanning and control of the actions underexamination. (para.150)’




- Actions of the solders: whether the forced used bythe solders was strictly proportionate to the aim ofprotecting persons against unlawful violence

- The use of force by agents of the State in pursuit ofone of the aims in Article 2(2) may be justified whereit is based on an honest belief which is perceived,for good reasons, to be valid at the time but whichsubsequently turns out to be mistaken. To holdotherwise would be to impose an unrealistic burdenon the State and its law-enforcement personnel inthe execution of their duty, perhaps to the detrimentof their lives and those of others. (para.200)




- Control and organization of the operation: whetherthe anti-terrorist operation was planned andcontrolled by the authorities so as to minimize, to thegreatest extent possible, recourse to lethal force.

- Circumstances considered by the ECtHR

• the suspects were not prevented from travelling toand entering Gibraltar

• the authorities made many assumptions withoutallowances that the intelligence information might beincorrect

• automatic recourse to lethal force



Giuliani and Gaggio v. Italy, [GC] ApplicationNo.23458/02, Judgment 24 March 2011

Carlo Giuliani immediately before and after his fatalwounding by Italian police officers at the 27th G8Summit riots in Genoa. Images from Reuters.



Giuliani and Gaggio v. Italy, Application No.23458/02,Judgment 24 March 2011

Structure of the analysis

• Actions of the police officer

• Regulatory framework

• Overall planning and control of the operation




• Actions of the police officer: Whether the use oflethal force was justified under Article 2(2) (indefense of any person from unlawful violence)?




• Regulatory Framework

‘The primary duty on the State to secure the right tolife entails, in particular, putting in place an appropriatelegal and administrative framework defining the limitedcircumstances in which law enforcement officials mayuse force and firearms, in the light of the relevantinternational standards.




• Regulatory Framework

In line with the principle of strict proportionalityinherent in Article 2, the national legal framework mustmake recourse to firearms dependent on a carefulassessment of the situation. Furthermore, the nationallaw regulating policing operations must secure asystem of adequate and effective safeguards againstarbitrariness and abuse of force and even againstavoidable accident.’ (para. 209)




• Overall planning and control of the operation

‘it should not be overlooked that Carlo Giuliani's deathoccurred in the course of a mass demonstration.While it is the duty of Contracting States to takereasonable and appropriate measures with regardto lawful demonstrations to ensure their peacefulconduct and the safety of all citizens, they cannotguarantee this absolutely and they have a widediscretion in the choice of the means to be used.’(para.251)

‘In view of the large number of officers deployed on

the ground, they could not all be required to have

lengthy experience and/or to have been trained over

several months or years. To hold otherwise would be to

impose a disproportionate and unrealistic obligation on

the State.’ (para.255)



Lost of human life Violation of the right to life


Terrorism and the right to life

Finogenov and Others v. Russia, Application No.18299/03 and 27311/03, Judgment 20 Dec 2011

- No violation of Article 2 on account of the decision bythe authorities to resolve the hostage crisis by forceand to use gas

- Violation of Article 2 on account of the inadequateplanning and conduct of rescue operation

departure from the rigorous standard of

‘absolute necessary’


Death inflicted by a private party and states’ positive obligation to ensure

the right to life

Branko Tomašić and Others v. Croatia, Application No. 46598/06, Judgment 15 January 2009

Protective/preventive operational measures

‘ […] positive obligation on the authorities to takepreventive operational measures to protect anindividual whose life is at risk from the criminal acts ofanother individual.’ (para.50)



the right to life



‘A positive obligation will arise where it has beenestablished that the authorities knew or ought tohave known at the time of the existence of a realand immediate risk to the life of an identifiedindividual from the criminal acts of a third party andthat they failed to take measures within the scope oftheir powers which, judged reasonably, might havebeen expected to avoid that risk’ (para.51)



the right to life



‘Bearing in mind the difficulties in policing modernsocieties, the unpredictability of human conduct andthe operational choices which must be made in termsof priorities and resources, the Court is also careful,when considering positive obligations, not to interpretArticle 2 in such a way as to impose an impossible ordisproportionate burden on authorities. […] not everyclaimed risk to life can entail for the authorities aConvention requirement to take operational measuresto prevent that risk from materialising.’ (para.50)

Test of reasonableness.



the right to life



- The state was aware about the risk (para.52)

- Did the state take reasonable measures to protect? (para.53-60)


Positive obligations under Article 2: an overview

- Obligation to criminalize abuses

- Obligation to investigate

‘[…] the obligation to protect life under Article 2 of theConvention requires that there should be some form ofeffective official investigation when individuals havebeen killed as a result of the use of force, either bystate officials or private individuals.’

- Obligation of taking protective operational measures

- Obligation of adopting effective regulatory framework


Thank you!

Vladislava Stoyanova

[email protected]

[email protected]

mailto:[email protected]

mailto:[email protected]


Prohibition on ill-treatment under Article 3

ECHR

degrading

treatment

inhuman

treatment

torture


Important instruments to keep in mind

• Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishmenthttps://treaties.un.org/Pages/ViewDetails.aspx?src=treaty&mtdsg_no=iv-9&chapter=4&lang=en

UN Committee against Torture

UN Sub-Committee on Prevention of Torture andOther Cruel, Inhuman or Degrading Treatment

• European Convention for the Prevention of Tortureand Inhuman or Degrading Treatment or Punishment

http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/126

https://treaties.un.org/Pages/ViewDetails.aspx?src=treaty&mtdsg_no=iv-9&chapter=4&lang=en

http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/126


Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment

‘For the purposes of this Convention, the term "torture"means any act by which severe pain or suffering,whether physical or mental, is intentionally inflicted ona person for such purposes as obtaining from him or athird person information or a confession, punishing himfor an act he or a third person has committed or issuspected of having committed, or intimidating orcoercing him or a third person, or for any reason basedon discrimination of any kind, when such pain orsuffering is inflicted by or at the instigation of or withthe consent or acquiescence of a public official or otherperson acting in an official capacity. It does not includepain or suffering arising only from, inherent in orincidental to lawful sanctions.’


Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment

Obligations

http://www1.umn.edu/humanrts/instree/h2catoc.htm

Note the definitional distinctions and the ensuringdistinctions in terms of obligations.

http://www1.umn.edu/humanrts/instree/h2catoc.htm


The definitional scope of Article 3 ECHR

The minimum threshold:

‘In order for ill-treatment to fall within the scope of Article 3 it must

attain a minimum level of severity. The assessment of this minimum

depends on all the circumstances of the case, such as the duration of the

treatment, its physical or mental effects and, in some cases, the sex, age

and state of health of the victim. Further factors include the purpose for

which the treatment was inflicted together with the intention or

motivation behind it, as well as its context, such as an atmosphere of

heightened tension and emotions (references omitted).’ Gäfgen v.

Germany, para.88.



‘The Court has considered treatment to be “inhuman” because, inter alia,

it was premeditated, was applied for hours at a stretch and caused either

actual bodily injury or intense physical and mental suffering. Treatment

has been held to be “degrading” when it was such as to arouse in its

victims feelings of fear, anguish and inferiority capable of humiliating

and debasing them and possibly breaking their physical or moral

resistance, or when it was such as to drive the victim to act against his

will or conscience.’ Gäfgen v. Germany, para.89.



In determining whether a particular form of ill-treatment should be

classified as torture, consideration must be given to the distinction,

embodied in Article 3, between this notion and that of inhuman or

degrading treatment. As noted in previous cases, it appears that it was the

intention that the Convention should, by means of such a distinction,

attach a special stigma to deliberate inhuman treatment causing very

serious and cruel suffering. In addition to the severity of the treatment,

there is a purposive element to torture, as recognised in the United

Nations Convention against Torture, which in Article 1 defines torture in

terms of the intentional infliction of severe pain or suffering with the

aim, inter alia, of obtaining information, inflicting punishment or

intimidating. Gäfgen v. Germany, para.88.


The absolute nature of Article 3

The Court reiterates that Article 3 of the Convention enshrines one of

the most fundamental values of democratic societies. Unlike most of

the substantive clauses of the Convention, Article 3 makes no

provision for exceptions and no derogation from it is permissible

under Article 15 § 2 even in the event of a public emergency

threatening the life of the nation. The Court has confirmed that even

in the most difficult circumstances, such as the fight against terrorism

and organised crime, the Convention prohibits in absolute terms

torture and inhuman or degrading treatment or punishment,

irrespective of the conduct of the person concerned. The nature of the

offence allegedly committed by the applicant is therefore irrelevant

for the purposes of Article 3. Gäfgen v. Germany, para.87.


Bouyid v. Belgium, GC, 28 Sept 2015



‘Article 3 of the Convention enshrines one of the mostfundamental values of democratic societies. […] Indeedthe prohibition of torture and inhuman or degradingtreatment or punishment is a value of civilizationclosely bound up with respect for human dignity.’para.81.



Issue of evidence: Were they actually slapped? Do they lie? Who shall we believe: the applicants or the

government?

The standard of proof and the burden of proof

‘To assess this evidence, the Court adopts the standardof proof “beyond reasonable doubt” but adds that suchproof may follow from the coexistence of sufficientlystrong, clear and concordant inferences or of similarunrebutted presumptions of fact.’ para.82



Shifting the burden of proof

‘On this latter point the Court has explained that wherethe events in issue lie wholly, or in large part, withinthe exclusive knowledge of the authorities, as in thecase of persons within their control in custody, strongpresumptions of fact will arise in respect of injuriesoccurring during such detention. The burden of proof isthen on the Government to provide a satisfactory andconvincing explanation by producing evidencestablishing facts which casts doubt on the account ofevents given by the victim. In the absence of suchexplanation, the Court can draw inferences which manybe unfavorable for the Government.’ para.83‘That is justified by the fact that persons in custody are in a

vulnerable position and the authorities are under a duty to protect

them?’ para.83

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