Course: European Criminal Law SS 2009 Hubert Hinterhofer

Important Fundamental Rights Overview – Right to life (Art 2 ECHR) – Abolition of Death Penalty (Art 1 Add Protocol No 6) – Prohibition of Torture (Art 3 ECHR) – Right to liberty and security (Art 5 ECHR) – Right to a fair trial (Art 6 sec 1 ECHR) – Presumption of innocence (Art 6 sec 2 ECHR) – Right to be informed (Art 6 sec 2 ECHR)

Important Fundamental Rights Overview – Right to defense (Art 6 sec 2 ECHR) – Right to examine witnesses (Art 6 sec 2 ECHR) – Right to have free assistance of an interpreter (Art 6 sec 2 ECHR) – No punishment without law (Art 7 sec 1 ECHR) – Right of appeal in criminal matters (Art 2 Add Prot No 7) – Right of compensation for wrongful conviction (Art 3 Add Prot No 7) – Ne bis in idem principle (Art 4 Add Prot No 7)

Important Fundamental Rights Right to Life (Art 2 ECHR) - Text – 1. 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. – 2. 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: in defense of any person from unlawful violence; 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.

Important Fundamental Rights Right to Life (Art 2 ECHR) – One of the most fundamental rights of the ECHR – Basic value of democratic society – 2 duties for a State Duty to protect life (including the duty of an effective official investigation after killings) Duty to refrain from the unlawful taking of life – Relates to intentional and unintentional killings

Important Fundamental Rights Right to Life (Art 2 ECHR) – Permission to use force which may result in the deprivation of life (sec 2) Exhaustive list of aims – Defense against unlawful violence (self-defense) – Effecting a lawful arrest or preventing the escape of a detainee – Quelling a riot or insurrection Force has to be based in law Absolutely necessary Strictly proportionate

Important Fundamental Rights Right to Life (Art 2 ECHR) – Abortion Is an unborn child protected by Art 2? No decision of the ECouHR yet Case Boso/Italy – Abortion against the will of the father – Italian Law No 194/1978 Abortion is permissible in order to protect the woman’s health

Important Fundamental Rights Right to Life (Art 2 ECHR) Case Boso/Italy – Complaints Violation of Art 2 ECHR concerning the legislation in Italy according to the permission of abortion Violation of Art 8 ECHR (Right to Private Life and Family) > Exclusive right of the mother to decide > No account on the position of the father Violation of Art 12 ECHR (Right to marry and start a family)

Important Fundamental Rights Right to Life (Art 2 ECHR) Case Boso/Italy – Decision of the ECouHR Italian Law as a fair balance between the protection of the foetus and the interests of the woman: no violation of Art 2 ECHR No violation of Art 8 ECHR: mother is the person primarily concerned by pregnancy and its termination Complaint declared inadmissible because it is “manifestly ill-founded” (Art 35 ECHR)

Important Fundamental Rights Article 35 – Admissibility criteria – The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application. – The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

Important Fundamental Rights Right to Life (Art 2 ECHR) – Euthanasia No substantive decision from the court so far Pretty/UK – Complaint: Violation of Art 2 Public Prosecutor failed to confirm that he will not prosecute an assisted suicide Assisted Suicide as a criminal offence under English Law – Decision of the Court: Art 2 can not be interpreted as conferring a right to die being the opposite of the right to life

Important Fundamental Rights Prohibition of Torture (Art 3 ECHR) – Text: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” – No limitations or exceptions – Torture Deliberate inhumane treatment causing very serious and cruel suffering Purposive element Severest form of violation of Art 3

Important Fundamental Rights Prohibition of Torture (Art 3 ECHR) – Inhumane treatment or punishment Intense physical or mental suffering being inflected intentionally Less severe than torture – Degrading treatment or punishment Causes in the victim feelings of fear and possibly breaking physical or moral resistance Humiliation is central aspect

Important Fundamental Rights Prohibition of Torture (Art 3 ECHR) – Sufficient evidence for ill-treatment: “beyond reasonable doubt” – Duty of the national authorities to give plausible reasons for an injury of a detainee > burden of proof on the authorities – Positive obligations aiming at the prevention of an ill treatment, e.g.: effective official investigation