Human Rights- Article 2

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter referred to as “ECHR”) sets out rights and freedoms for the members of Council of Europe and consists of 59 articles.[1] Article 2 -The Right to Life[2] is considered as a very important right out of all the rights. For example, in the case, Pretty v. the United Kingdom[3], the court stated that without life, one cannot enjoy any other rights or freedoms set out in the ECHR. The Right invokes both positive and negative obligations on the part of a member state.

This essay would discuss such obligations and it’s limitations with reference to case law from the European Court of Human Rights( hereafter referred to as ECtHR).

The member states are under a duty to protect the right of life by enforcement of law but how they full fill and to what extend it is covered, is up to the member state. It is at least required to make killing illegal and abolish death penalty[4] in accordance with protocol no. 13[5], which abolishes the death penalty in all circumstances. The state have the obligation to take reasonable steps to prevent over exertion of power by police and other security forces, with limits to the state’s duty. The state is required to thoroughly investigate all suspicious deaths and bring to justice any offenders. e.g. Cyprus v. Turkey (2001) [6]

The state is also required to safeguard lives of individuals held in custody, even if they are mentally ill prisoners with suicidal risks, as well as providing protection for witnesses. e.g. In Keenan v United Kingdom, [7] application for breach of 2 and 3 were brought to court by the father, for the death of his son who committed suicide while service a prison sentence. the court dismissed the claim under Article 2, it stated that the prison authorities had done all that could reasonably be expected for the protection of the prisoner and kept him under close supervision.

Though state is not required to protect everyone at all times and it is under obligation to protect in situations where there is apprehensive of risk of loss of life. sometimes the duty of state to protect life may at times conflict with other rights or freedom. In general terms, if the individual concerned is aware and is capable of making decisions for oneself, then the state will not be liable for a failure to take action.

Duty to protect life become a bit complicated in issues such as euthanasia and abortion. in the context of euthanasia, there is no prohibition stated to member states. each member state can make up its own mind in the issue concerning euthanasia. In the united kingdom, individual have the right to refuse life prolonging treatment for themselves, as long as they are of sound mind to make such decisions, but this does not mean voluntary euthanasia is accepted. The house of lords select committee on medical ethics provide the view that intentional killing by society should be prohibited. [8]

In the issue of abortion, like euthanasia, each individual state have its own legislation to regulated the issue of abortion. whether the foetus have right to life, in terms of the wording “everyone” in the article 2 (1) of the convention is still a bit hazy. But it has been held in previous cases that right to life of the mother take precedence over foetus, and “therapeutic abortions’ is not considered to violate the article. [9]for example, in Paton v. the United Kingdom[10]

It was held that the foetus does not have any absolute rights, though it is vaguely covered by the article, in terms of “everyone” the foetus being connected to mother, does not give separate rights to the foetus from the mother. If an absolute right of foetus had been noted in The European Commission, punishment would be given for performance of abortion and prohibition of abortion would be stated in law.

Every member state is prohibited from use of death penalty and capital punishment throughout the EU. [11]This is regarded as negative duty not to take life. this duty extend to cases of deportation on immigration grounds as well[12]. no person is permitted to deport an individual who is at the risk of being killed on their return. E.g. Soering V United Kingdom. [13]

Death resulting from lawful use of necessary force (no more than absolutely necessary- proportionate to the circumstance) is considered as not violating the right to life, in terms of self-defense or defense of others,for example,In McCaan and others v united kingdom [14], the ECtHR held that UK was in violation as it had not made plans to arrest the individuals who were shot dead, but it was an execution mission. but the proportionality test must be applied.

To carry out an arrest or prevent escape[15]- it is questionable to whether deliberate use of lethal force can be justified in terms of the heading, as purpose of using force is to bring the individual to justice in front of the authorities, then killing that person is incompatible to that purpose. To stop a riot[16] - extreme caution is apprehended, as killing of innocent bystander in a riot would be a violation of right to life. Ogur v Turkey (1999). [17]

In conclusion, one could say that the negative and positive duty of Article 2 of ECtHR provide each state with rules to adhere to. the limitation in the article imposes by the european convention, to the member states, make the states aware that they would need to give accountability in case of breach. some concern do arise from the issues concerning euthanasia, were it is in the discretion of each state to decide upon prohibition of euthanasia or not. also another area that might, need more light to be shed on, is the issue of abortion, one could argue that there seem to be a gender bias to allow abortion by the mother, even when the father clearly wants the foetus to be kept alive, so ask to found a family.

Except for the abolition of death penality (protocol 6 & 13), the Article 2, Right to Life is somewhat too flexible, to allow possible breaches. -----------------------

[1] The European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950 [2] The European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950 art. 2 [3] The European Court of Human Rights, case of Pretty v. the United Kingdom (application no. 2346/ 02) 29 April 2002

[4] Protocol no. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, Strasbourg 1983 and Protocol no. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances, Vilnius 2002 [5] Protocol no. 13 to the European

Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances, Vilnius 2002. [6] Cyprus v Turkey, 10 May 2001 [7] Keenan v United Kingdom, 3 April 2001 [8] House of Lords Select Committee on Medical Ethics Report, 31 January 1994 [9] X v United Kingdom, 13 May 1980 [10] European Court of Human Rights, case of Paton v. the United Kingdom (application no. 8416/ 78) 13 May 1980 [11] Protocol no. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol no. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty in all circumstances, Vilnius 2002 [12] The European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950 art. 19 [13]Soering v United Kingdom, 7 July 1989

[14] Mccaan and Others v United Kingdom, 27 September 1995 [15] Farrell v United Kingdom, 1982 [16] Stewart v Ireland, Application No 10044/82, 10 July 1984 [17] Ogur v Turkey, 20 May 1999