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1. In what circumstances may states have laws which authorise the use of lethal force?
Paragraph 2 of Article 2 allows states to have laws which authorize the use of lethal force in order to (a) defend oneself or another, (b) to effect a lawful arrest or prevent an escape and (c) to quell a riot or disturbance. Of course, any such powers must be exercised proportionately.
2. In what circumstances, if any, can Article 2 be subject to derogation under Article 15?
Only in respect of allowing lethal force to be used lawfully in the context of a lawful war (see Article 15).
3. What positive duties do states have, generally, under Article 2?
States have three kinds of positive duty. Firstly, to ensure there is a proper system of civil and criminal law so that appropriate legal action can be used to uphold Article 2 rights. Secondly, the state may have particular duties to ensure that people are protected from environmental and other dangerous situations and, thirdly, that where people are under the control of the state (e.g. prisoners) they are also kept safe.
4. In what circumstances might a state have positive duties to protect the life of an identified individual?
A duty to a specific individual may occur if there is a real risk of which state agents ought to be aware to that individual’s life. Positive duties in this context tend not to be absolute but based on the level of protection which is reasonable in the circumstances.
5. How do the courts balance the duty to preserve life in Article 2 with other rights a patient may have?
In medical situations there are normally two other rights which may to be balanced with a patient’s right to life. Upholding the right to life may be disproportionate if it involves leaving a patient in an inhuman or degrading situation in breach of Article 3; and difficult questions may arise if the patient asserts his or her right to “autonomy” (inherent in Article 8) in order to resist life-saving treatment. Balancing may not be easy but Article 3 is, of course, an absolute right whilst Article 8 is a qualified right.
6. How, if at all, might Article 2 affect the decisions taken by politicians, civil servants, and the military in respect of the safety of soldiers in a combat zone?
In principle Convention rights can apply to military personnel even if they are serving abroad so long as where they are serving is within the “jurisdiction” as that is defined by the ECtHR, a definition followed by the UK (Smith v MoD) – see Chapter 2. In Smith the UKSC thought it was arguable that Article 2 rights could apply not directly in the combat zone (because decisions made in the heat of battle would be hard to assess) nor in respect of remote administrative decisions about what equipment to buy etc. (because such decisions would involve complex policy assessment that courts are not institutionally competent to assess) but they might apply in an intermediate situations such as decisions made about general tactics, systems of operation or about the use of the available equipment.
7. When does the duty to investigate deaths arise as a result of Article 2?
When a death occurs for which the state is responsible under Article 2. The duty can arise independently of any substantive breach of Article 2. It can even apply to deaths which occurred before the Convention was binding in the member state. This is particularly when some kind of official consideration has been given to the deaths since the coming into force of the Convention in the country.
8. What are the requirements of an effective investigation under Article 2?
The depth and nature of the investigation depends on the context (e.g. a coroner’s investigation may satisfy Article 2 in respect of many unexplained deaths).
Where the state is directly responsible for the death and significant features need to be explained an investigation may have to be carried out which is independent of the executive, which has the powers necessary to get to the truth, which can make proper recommendations as to responsibility and which can involve the victim’s family in an appropriate way. The investigation must be initiated by the state and must be prompt and thorough.