1. Course: European Criminal Law SS 2009 Hubert Hinterhofer

2. 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)

3. 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)

4. 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.

5. 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

6. 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

7. 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

8. 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)

9. 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)

10. 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.

11. 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

12. 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

13. 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

14. 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