What does the duty to protect the right to life involve and how to evaluate whether there has been a violation?
Everyone has the right to life. This means that agents of the state must not only avoid the unnecessary taking of life, but must also actively protect it and investigate any case of unnatural death.
This means that:
- Agents of the state may only use lethal force in very few occasions which must be exceptional, and only when its use is absolutely necessary
- In cases where agents of the state are aware that someone’s life is, or may be, at risk, they have the duty to do everything reasonably possible to protect it
- If someone’s life has been taken, the State has the duty to investigate it
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General principles
Generally, agents of the state such as the police, judicial police officers or criminalists cannot use lethal force while fulfilling their daily duties. However, in some exceptional cases, they may be forced to use lethal force to prevent even greater harm. Agents of the state may be allowed to use lethal force only in the following situations:
- To defend another person from unlawful violence
- To effect a lawful arrest
- To prevent the escape of a person lawfully detained
- To quell a riot or insurrection
example A judicial police officer may use a gun against someone who is trying to escape from prison and may endanger other people. However, a prison guard is not allowed to use a gun against someone who is refusing to be transferred to another location, but is not endangering the life or health of anyone else.
important The intentional killing of a person is prohibited.
The procedure for using lethal force must be prescribed by national law and state agents must strictly follow these rules.
Criteria for evaluation
Lethal force may only be used when it is absolutely necessary and it must be strictly proportional to the danger the person poses. If the use of force has resulted in someone’s death, the State will have to prove that:
- one of the previously mentioned legitimate aims existed
- there were no other effective means to solve the situation and
- the use of the lethal force was proportional to the offence being committed and the level of danger that the person posed (e.g. the gun was not used only to prevent someone from starting a fistfight with another person, or that the person who was trying to escape from lawful arrest was likely to cause grave harm to someone else)
The State may be held responsible, regardless of whether its agents caused someone’s death directly or indirectly and whether they intended to kill that person. Therefore, lethal force must always be used carefully, follow the proper planning where possible and take into account the risks towards any bystanders.
If agents of the state have not observed these rules when using lethal force and this has resulted in someone’s death, the right to life was most likely be violated.
Where state authorities know, or ought to know, that someone’s life is at real and immediate risk, they have to take all the necessary and reasonable actions to avoid that risk.
example Police or prison officers must remove a detainee from a cell if other cellmates have attacked him/her or expressed real death threats towards him/her.
Particular attention must be paid to persons in state custody, such as detainees or prisoners, since the State will have to provide an explanation in the case of their death.
example If a detainee is seriously injured or shows signs of being suicidal, but receives no medical or specialist attention and dies as a result, the inaction by the State will most likely be regarded as a violation of the State’s duty to protect life.
However, the duty to protect life does not mean that the authorities must take actions that cannot be reasonably expected or do the impossible to prevent the loss of life.
The Slovenian Specialized Prosecutor’s Office – Section for the Investigation and Prosecution of Official Persons Having Special Authority have an obligation to properly investigate any case where your family member or a close relative has died in detention or in prison. Although the State may not even be directly responsible for the death in these situations, it must properly investigate what has happened and find out whether anyone is responsible for the death of your family member or a relative.
The investigation has to be conducted promptly. It must be thorough and effective.
If the State fails to investigate the death of your family member or a relative, and regardless of whether its agents were involved in causing the death or not, the State's inaction will be considered a violation of the right to life.