Article 2 ECHR

iamanengine

I feel like this is a silly question but I just can't get my head around it. I'm just wondering what is the difference between the procedural and substantial requirements/obligations of the State in relation to Article 2? (Right to life)

My understanding is that Substantive law is the rights that the Article gives people and the Procedural law is the way the government upholds those rights? But really that's just guess work.

Any help much appreciated

johnnyskeleton

I suppose all rights exist independently and, for example, are presumed to shape Ministerial decisions and frame legislation.

But in terms of asserting those rights, an individual has to go to court.

Under the ECHR, the person has to exhaust all domestic i.e. irish law remedies before they can apply to the European Court of Human Rights to claim a violation.

One of the domestic remedies is the ECHR Act 2003 which allows the courts to find that legislaion or a rule of law is incompatible with the convention, but such a finding (a declaration) doesnt actually strike down the legislation.

By way of practical explanation, the substantive right under Art 2 is the right to life which cannot be intentionally removed except under certain circumstances. If you wanted to claim that your substantive right to life has been breached, you first claim that under Irish law (including the ECHR Act, 2003) and thereafter procedurally you can apply to the ECtHR.

chops018

My memory is hazy regarding my masters on Human Rights law, but I remember one of the obligations with stemmed from Article 2 of the ECHR was that a state was obligated to investigate a controversial death. Finucane .v. UK (I think) was one case that touched on such obligations on what a state must do to protect this right.

The above would be a more intricate obligation on the state. Others may be abortion, euthanasia.

At the simplest terms it places upon the state both a positive obligation to protect the right to life and a negative obligation not to take life, other than in specified exceptional circumstances.

These can be qualified however if the killing is justified.

There is a lot of case law as to how far a state must go to protect life - X .v. Ireland, Osman .v. UK. This would come under procedural law. The article itself would come under substantive law, as would the 2003 act mentioned in the post above which incorporated the ECHR into Irish law.

I am sorry if the above is a bit waffly, it's been nearly 4 years since my head was stuck into human rights law, and the above is just the gist of what I remember on article 2. I hope it helped a bit anyway.