Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2 of the ECHR

Abstract

What is the relationship between the right to life and criminal liability, and what should it be, given the significance we rightly attribute both to human life and to human freedom? This article explores the circumstances in which the European Court of Human Rights imposes a positive obligation to criminalise and pursue criminal forms of redress, and concludes that the Court's doctrine carries the potential of both coercive overreach and dilution of the right to life itself. These problems are compounded by opacity in the Court's doctrine. I propose a way forward that takes both the right to life and human freedom seriously.

Killing with No Punishment: Police Violence and Judicial (In)justice

“…The state's obligation to protect the right to life can be divided into negative obligations and positive obligations (Mavronicola, 2017;A. R. Mowbray, 2004;Van Der Wilt & Lyngdorf, 2009;Wicks, 2010).…”

“…For the negative obligation of the state, state actions are not allowed to use lethal force except in circumstances narrowly defined by ECHR Article 2(2), in which, the "absolute necessity" is the key in determining whether a life is taken arbitrarily or not. For positive obligation, it is the state's promise to offer a redress after learning a lesson by reviewing a case of state killing and to make an effort in preventing future deaths (Baker, 2016a(Baker, , 2016bMavronicola, 2017). Thus, the coroner's court is an arena which an in-depth investigation can take place to look into the facts causing such deaths, which is also known as the "procedural obligation" of the state in accordance with ECHR Article 2:…”

“…That is to say: if there is a violation of the right to life, it is on the state. The aim of a coroner's inquest investigating the facts leading to someone's death, therefore, is to examine the state's liability in the death and to work out what the state can do to prevent a similar incident from happening again (Affleck, 1965;Baker, 2016a;Mavronicola, 2017;A. Mowbray, 2002).…”

“…Therefore, the deployment of lethal force should be under stringent regulation of absolute necessity and be considered as a last resort. On top of that, the absolute necessity only counts when there is a "palpable threat to life or bodily integrity" (Mavronicola, 2017(Mavronicola, , p. 1030 to justify the use of deadly force to repel such a threat. If a lethal force is deployed in other circumstances, the deployment of force would be considered as excessive use of force, and the victim's right to life would be seen as having been taken away arbitrarily.…”

“…Hence, the "honest belief" test points to the argument of mens rea (i.e., intention), imposing a criminal law style onto the supposedly inquisitorial proceeding. The "honest belief" test applies not only to the determination of the threat at issue by the state agent but also to their option of response (Mavronicola, 2017). Therefore, it plays a determining role not only in evaluating the need to use force to repel an attack on one of the grounds specified in Article 2(2), but also in the absolute necessity of using lethal force -which allows force to be both appropriate and strictly proportionate to the danger at issue.…”