Article 2 Right to Life PDF

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Article 2: The Right to Life Article 2 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: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection Article 2 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: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection Article 2 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: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection Article 2

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: a. in defence of any person from unlawful violence; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection. Contracting Party’s obligation to safeguard life consists of three main aspects: a. To refrain from unlawful killing b. To investigate suspicious deaths c. A positive obligation to take steps to prevent the avoidable loss of life The second sentence of Article 2 (1) reserves the right of a CP to subject convicted criminals to the death penalty. Protocol 6 of the Convention abolishes the death penalty in peacetime and Protocol 13 abolishes it in all circumstances. 1. To refrain from unlawful killing This aspect was considered in the McCann case  Court concluded that it had not been necessary to use lethal force and that the killings amounted to a violation of Article 2 McCann case Describes the situations where it is permitted to "use force" which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than "absolutely necessary" The word “necessary”  the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (art. 2-2-a-b-c). Two aspects were highlighted:  

Use of excessive force by the state Inadequate planning in the use of force by the state

Use of excessive force by the state Gul v Turkey: less lethal weapons could have been used “the firing of at least 50-55 shots at the door was not justified by any reasonable belief of the officers that their lives were at risk from the occupants of the flat.”

Makaratzis v Greece Court recognised that Article 2 may still be applicable even where no one dies the Court concludes that, irrespective of whether or not the police actually intended to kill him, the applicant was the victim of conduct which, by its very nature, put his life at risk, even though, in the event, he survived. Article 2 is thus applicable Inadequate planning in the use of force McCann ‘the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force … the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence’. Finogenov and others v Russia Applicants argued that the authorities had failed to plan and conduct the resuce operation in such a way as to minimise the risks for the hostages Court held:  

There has been no violation of Article 2 of the Convention on account of the decision by the authorities to resolve the hostage crisis by force and to use the gas There has been a violation of Article 2 of the Convention on account of the inadequate planning and conduct of the rescue operation

Death in Custody and Forced Disappearance Timurtas: Applicant alleged that his son had been taken into custody and had disappeared Court held:  

The respondent State is liable for the death of Timurtaş in violation of Article 2 of the Convention There has been a violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the circumstances of the disappearance of Timurtaş

Salman:  

There has been a violation of Article 2 of the Convention in respect of the death of Agit Salman in custody There has been a violation of Article 2 of the Convention in that the authorities failed to carry out an adequate and effective investigation into the circumstances of Agit Salman's death in custody

Mizigarova v Slovakia: There had been a violation of Article 2  the authorities had an obligation to protect him whilst he was in custody and this included an obligation to prevent him from harming himself. 2. The Duty to Investigate McCann Any general legal prohibition arbitrary killing by the State would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force by State authorities “There should be some form of effective official investigation” What does an effective investigation involve? In order to be effective: “Adequate” and “Independent” Kaya: The Court found that there was a breach of Article 2 on the basis that the domestic investigation into the death had been inadequate The investigation needs to be ‘prompt and expeditious’ Al-Skeini and others v United Kingdom There has been a breach of the procedural obligation under Article 2 of the Convention to carry out an adequate and effective investigation into the deaths of the relatives of the applicants and dismisses the Government’s preliminary objection as regards the victim status of the fifth applicant Any investigation into acts committed by occupying forces to be effective, it is important that the investigating authority was seen to be, operationally independent of the military chain of command 3. The positive obligation to protect life LCB: Article 2(1) – take appropriate steps to safeguard the lives of those within their jurisdiction This positive obligation has two aspects: (a) the duty to provide a regulatory framework; and (b) the obligation to take preventive operational measures. Oneryildiz: State has a duty to put in place a legislative and administrative framework designed to provide effective deterrence against unlawful killing Osman: Steps to prevent the avoidable loss of life: Deaths resulting from violent crimes it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk

The Court has found positive obligations to arise under Article 2 in a number of different contexts, such as, for example:   

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in the context of healthcare (Vo v. France) in the context of dangerous activities, including industrial or environmental disasters (Öneryıldız v. Turkey and Özel and Others v. Turkey); in the context of incidents on board a ship (Leray and Others v. France), on trains (Kalender v. Turkey), on a construction site (Pereira Henriques v. Luxembourg), at a playground (Koceski v. the former Yugoslav Republic of Macedonia); or at a school (Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey); in the context of road safety (Rajkowska v. Poland); (Anna Todorova v. Bulgaria); the provision of emergency services (Furdík v. Slovakia); or diving operations in deep sea (Vilnes and Others v. Norway); in the context of medical care and assistance given to vulnerable persons institutionalised in State facilities (Nencheva and Others v. Bulgaria; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania; Dumpe v. Latvia)

Temporal Limitations The beginning of life Article 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define “everyone” (“toute personne”) whose “life” is protected by the Convention  Vo v. France The Court, having regard to the absence of any European consensus on the scientific and legal definition of the beginning of life, held that the issue of when the right to life begins comes within the margin of appreciation which it generally considers that States should enjoy in this sphere (Vo v. France). Vo v. France, where the applicant had to undergo a therapeutic abortion as a result of medical negligence, the Court considered it unnecessary to examine whether the abrupt end to the applicant’s pregnancy fell within the scope of Article 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere In Evans v. the United Kingdom, where the applicant complained that British legislation authorised her ex-partner to withdraw his consent to the storage and use of jointly created embryos, the Court found that, under English law, an embryo did not have independent rights or interests and could not claim – or have claimed on its behalf – a right to life under Article 2 and that therefore the embryos in question did not have a right to life within the meaning of Article 2.

Issues related to end of life

Euthanasia The Court has held that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It underlined that the consistent emphasis in all the cases before it has been the obligation of the State to protect life (Pretty v. the United Kingdom). In a recent case which concerned the authorities’ refusal to make medication available to assist the suicide of a mental patient, the Court, reiterating that the Convention must be read as a whole, found it appropriate to refer to Article 2 of the Convention when it was examining the application under Article 8 of the Convention. It held that the latter provision obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved (Haas v. Switzerland). Withdrawal of life-sustaining treatment In the case of Lambert and Others v. France, which concerned the decision of the authorities to discontinue nutrition and hydration allowing a patient in state of total dependence to be kept alive artificially, the Court noted that no consensus existed among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. In this respect, it noted that while the detailed arrangements governing the withdrawal of treatment vary from one country to another, there was nevertheless a consensus as to the paramount importance of the patient’s wishes in the decisionmaking process, however those wishes are expressed. It therefore considered that in this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life sustaining treatment and the detailed arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy. The Court underlined, however, that this margin of appreciation is not unlimited and it reserves the power to review whether or not the State has complied with its obligations under Article 2 In addressing the question of the administering or withdrawal of medical treatment, the Court takes into account the following elements: the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel and the possibility to approach the courts in the event of doubts as to the best decision to take in the patient’s interest (Gard and Others v. the United Kingdom)

under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an

obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard […]’ (paras. 323-324). ‘Secondly, for the investigation to be “effective” in this sense it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence […]. What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force’ under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard […]’ (paras. 323-324). ‘Secondly, for the investigation to be “effective” in this sense it may generally be regarded as necessary for the

persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence […]. What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force’...