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The European Convention on Human Right
The right to life Art. 2 ECHR Ivana Roagna
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Art. 2 ECHR
First substantive right laid down by the
ECHR Article 2 ranks as one of the most
fundamental provisions of the Convention,
enshrining one of the basic values of democratic
societies making up the Council of Europe
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Right to life
Protocol n. 6 to the ECHR abolition of death
penalty in time of war Protocol n. 13 to the
ECHR abolition of death penalty in all times
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Relationship with art. 3
Abdullatif v. Turkey the use of force was not of
such nature or decree as to breach art. 2.
Instead, Court considered case under art.
3. Where a person is assaulted or maltreated by
police or soldiers, complaint will fall under
art. 3 ECHR
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Right to life
Neither provision protects life unconditionally -
certain quality of life is not at stake
either All provisions aim to protect the
individual against any arbitrary deprivation of
life by the State (McCann and others v. UK)
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Right to life
Absolute right One of the few articles that
cannot be derogated from this limitation does
not extend to death resulting from lawful acts of
war (art. 15 para. 2 ECHR)
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Who can claim art. 2 violations?
Potential victims Indirect victims (relatives
and potential relatives)
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Art. 2 ECHR

• Obligation has
• Vertical effect (State ? individual)
• Horizontal effect (Individual ? individual)

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Key concepts
Right to life not protected in all circumstances
para. 2 provide for situations in which use of
force by the state resulting into death of
individual does not contravene art.
2. Exceptions, however, must be striclty
construed (McCann v. U.K.)
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Art. 2 ECHR

• It foresees
• Positive obligations
• Negative obligations
• Procedural obligations (adjectival to the
  substantive obligations)

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Substantive obligations

• Refrain from taking life intentionally or
  unlawfully
• Take reasonable measures to preserve life

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Substantive obligations
States enjoy level of discretion in criminalizing
specific acts and can set different levels of
liability for different situations in which life
is taken Amnesty laws are not necessarily
incompatible with art. 2 (Dujardin v. France)
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Procedural obligations

• Include the most basic obligations to
• Criminalise unlawful killing
• Ensure it is properly investigated
• Duly prosecuted (where appropriate).

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Procedural obligations
In order to comply with Article 2 a State must
have a system of investigation incorporating the
following safeguards (a) must be carried out by
an independent body in public (b) must be
thorough and rigorous, and capable of imputing
responsibility for a death
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Procedural obligations
(c) if agents of the state are responsible, must
be capable of determining whether killing was or
not justified under para. 2 (d) must enable
effective involvement of the next of kin to
safeguard their their legitimate interests (e)
must be prompt.
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Duty to initiate investigation
Legal prohibition of deprivation of life by State
agents is not sufficient to fulfill procedural
obligations under art. 2 enforcement is also
required Kurt v. Turkey obligation limited to
situations when concrete evidence of death is
presented to court see also Ergi v. Turkey for
further clarification
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Independent investigations
Hierarchical and institutional independence
(Edwards v. UK) Practical independence (Aydin v.
Turkey)
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Content of investigations
Obligation of means, not of result Minimum
content of investigation developped by Court Kaya
v. Turkey answer to critical questions Edwards
v. UK - reasonable steps to ensure effective
investigations eye witness testimony, forensic
evidence, autopsy (for record of injury and
objective analysis of clinical findindings,
including cause of death
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Content of investigations
Prompt and reasonable expedition essential in
maintaining public confidence in maintenance of
rule of law Open to public scrutiny - in all
cases the next of kin of victim must be involved
in the procedure in order to safeguard his
legitimate interest (Gulec v. Turkey, Ogur v.
Turkey)
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Obligations to protect life
Obligation to track, monitor, advise, and inform
individuals where there is a reason to believe
that they might have been/be affected by the
actions of the State (see LCB v. UK) Greater
obligations when individuals are brought without
consent (i.e. prisons, compulsory mental
patients) into care of national authorities (see
also Barret v. UK) Obligations extend to basic
means of survival
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Art. 2.2
Exceptions to right to life cases in which use
of force leading to death of individual do not
violate provision of art. 2 Notions of
intentional and unintentional killing Unintentiona
l killing no test under art. 2.2. (X. v.
Belgium) however, Court changed in view in
Stewart v. UK
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Art. 2.2

• Use of force
• In defence of any person from unlawful violence
• In order to effect a lawful arrest or to prevent
  the escape of person lawfully detained
• In actions lawfully undertaken in case of riot or
  insurrection, provided that force used was no
  more than absolutely necessary)

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Strictly proportionate use of force
Stewart v. UK the absolute necessary test
requires that caution is exercised in the choice
and use of force Relevant circumstances are
only those existing at the time/that should have
been known as opposed to those establishe post
facto (McCann v UK)
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Planning and control
Although actions of State agents might not amount
to violation of art. 2 due to info and resources
available at the time, planning and control of
operations giving right to a sitaution where
lethat force had to be used might be found as
being in violation of art. 2 (McCann v. UK, Ergi
v. Turkey)
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Art. 2.2 a
Using force for self-defence as well as for the
defence of others. This exception does not
include the use of force for the defence of
property (Wolfgram v. Germany, Diaz Ruano v.
Spain, both no violation of art. 2)
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Art. 2.2 c
Test of absolute necessity strictly applied as
individuals in such circumstances are
particularly vulnerable to deprivation of
life Gulec v. Turkey use of combat weapon
considered disproportioned
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Other issues

• Abortion
• Medical care
• Allocation of health resources
• Medical negligence
• Euthanasia (passive and active)
• Assisted suicide
• Prisoners/Deaths in custody

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Other issues

• Disappearances
• Extraterritorial application of art. 2
  (extradition or deportation)
• Environmental hazards

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Abortion
Legislation allowing abortion on the ground that
pregnancy, birth or care for the child may place
the woman in a difficult situation in life does
not breach art. 2 (H. v. Norway) States enjoy
certain decree of discretion in legislating on
abortion
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Medical care/health resources

• No such thing as right to medical treatment
• So far Strasbourg organs have not elaborated on
  what should constitute appropriate standard of
  public health care left to States discretion

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Medical negligence

• States are obliged to set up adequate provision
  for securing high professional standards.
• Procedural obligations under art. 2 may be
  satisfied if legal system affords victims with
  remedies in civil courts, whether or not combined
  with criminal law remedies, provided that
  liability of health care personnel can be
  established and appropriate civil redress obtained

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Euthanasia/Assisted suicide

• Art. 2 does not give individuals right to life,
  but prohibits others from intentionally taking it
  away.
• Passive euthanasia art. 2 does not require
  States to make it a crime (Widmer v Switzerland)
• Assisted suicide Pretto v. UK

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Prisoners

• States have obligation to provide explanation
  when person in custody dies (Tas v. Turkey,
  Salman v. Turkey)
• States have positive obligation to take active
  measures in order to protect life of individuals
  in custody
• from other prisoners (Edwards v. Uk and Rebai
  v. France)
• from self-harm/suicide (Keenan v. UK)

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Disappereances

• Presumption of death of disappeared ones
• Cyprus v. Turkey
• Kurt v. Turkey
• Timurtas v. Turkey
• Tas v. Turkey

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Extraterritorial application

• Normally applicants rely on art. 3 rather than
  art. 2
• Loss of life would need to be a near certainty
  for art. 2 to be applied (Bahaddar v.
  Netherlands)
• Does not apply in case of death penalty (Soering
  v. UK)

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Environmental hazard

• Duty to protect people from life-threatening
  environmental hazard, when there is casual link
  between States activities and threat to life
  (LCB v. UK., Guerra v. Italy art. 8)

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QUESTIONS
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Thank you for your attention!
To contact me ivanaroagna_at_yahoo.com