Article 2: Right to Life

What provisions of the European Convention on Human Rights cover the right to life?

Article 2. Protocols 6 and 13.

What is protected under Article 2?

Everyone’s right to life shall be protected by law. No one shall be deprived of his own 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.

Any limitations provided for in Article 2?

Yes. Article 2(2) provides:

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 a 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.

And in the protocols?

Protocol 6 (ratified by the UK in January 1999) bans the death penalty in peacetime and 13 (signed by the UK in May 2002) in wartime.

Can a country derogate from Article 2 at a time of national emergency?

No. Article 2 is one of four exceptions from the power to derogate in Article 15 of the Convention (the others are Articles 3, 4(1) and 7).

How has the European Court of Human Rights (ECtHR) dealt with the contentious issue of the right to life of a foetus?

With considerable caution. In Open Door Couselling and Dublin Well Women v Ireland (1992) ((Open Door Counselling and Dublin Well Women v. Ireland (1993) 15 E.H.R.R. 244, para 68.)) the Court said:

The national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area … which touches on matters of belief concerning the nature of human life … it is not possible to find … a uniform conception of morals, and the State authorities are, in principle, in a better position than the international judge to give an opinion on the exact content of the requirement of morals …

This has remained the Court’s basic position despite some subsequent ambiguities. In Vo v France (2004), ((Vo v France (2005) 40 E.H.R.R. 259. )) the Court asserted that it was ‘neither desirable nor even possible … to answer in the abstract’ whether a foetus could be a person covered by Article 2. In Evans v UK (2006) ((Evans v United Kingdom (2006) 43 E.H.R.R. 21 as affirmed in Evans v. United Kingdom (2008) 46 E.H.R.R. 34.)) the Court repeated that ‘the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere’.

Does the position of the European Court of Human Rights differ from that of the US Supreme Court in the celebrated case of Roe v Wade in 1973?

Significantly. The US Supreme Court based its decision on the 14th amendment of the US constitution:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court found that ((Roe v. Wade 410 U.S. 113 (1973))):

A state criminal abortion statute of the [then] current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

As a consequence of the decision, controversy over abortion in the United States takes place in the context of reversing or otherwise amending the court decision rather than in the political arena.

Does the right to life under Article 2 include the right to death?

Not according to current judicial interpretation ((Pretty v. United Kingdom (2002) 35 E.H.R.R 1, para. 39)):

Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die, nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.

Thus, euthanasia is a matter for national authorities and the law on assisted suicide varies throughout Europe. It remains an offence to assist someone’s suicide in the UK under the Suicide Act 1961 – the provision that Mrs Pretty was seeking to challenge. However, in the case of Daniel James, a young person paralysed in a rugby accident, the Director of Public Prosecutions recently accepted that there was ‘sufficient evidence’ to prosecute the parents who assisted his suicide in Switzerland but that it was ‘not in the public interest’ to do so (10 December 2008).

To what extent does Article 2 impose a positive duty to uphold the right to life?

Considerably and in at least four respects:

(1) A duty to protect people against the risk of harm from the activities of public authorities
(2) A duty to investigate suspicious deaths
(3) A duty to protect people against threats to their lives
(4) A duty to provide arrangements to secure legal accountability for those responsible for a death.

How does the positive duty to protect individuals against harm apply in a law enforcement situation?

It means that states will be liable for deaths caused by police officers and state officials unless they come within the requirements of Article 2(2) and, in particular, are ‘strictly necessary’. In McCann v UK (1995), ((McCann v. United Kingdom (1995) 21 E.H.R.R. 97)) the ECtHR decided that this meant ‘strictly proportionate’ to achieving a clear lawful purpose and that, therefore, no other action, short of using lethal force, could have achieved that that purpose. In addition, any security or police operation must be ‘planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to legal force’. This was the test also applied in Ergi v Turkey (1998) where an innocent woman was apparently caught in crossfire at an ambush by state forces against guerrillas.

What is the duty to investigate suspicious deaths?

It must be effective – and, thereby, independent, prompt and transparent (Jordan and others v UK (2001)), ((Jordan and others v. United Kingdom (2003) 37 E.H.R.R. 2)) Deaths in England and Wales can be investigated by coroners through the medium of inquests for a number of reasons: about a third of all deaths are so treated (Coroners’ Society).

The duty to find out what happened is particularly strong in relation to a death in custody, ((Salman v. Turkey (2000) 34 E.H.R.R. 17)):

Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.

How does the duty to avoid harm apply in relation to hospital treatment or care?

The House of Lords has recently considered the approach of the European Court of Human Rights in relation to this issue in the case of Savage v South Essex Partnership NHS Foundation Trust [2008). ((Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74)) In this case, in which JUSTICE was an intervenor, the House of Lords dismissed an appeal by the respondent, South Essex Partnership NHS Foundation Trust, who sought to limit the scope of sitations to which the further operational duty outlined in Osman applied. It was held that:

in terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may be required to fulfil a number of complementary obligations … [This] requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2 … Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life.

Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life.

And what about the duty to secure legal accountability?

The duty to investigate a death under Article 2 is closely linked with the right to an effective remedy under Article 13 ECHR. An inquiry that follows a suspicious death must be designed to lead to criminal proceedings where appropriate. ((Akkoc v.Turkey (2002) 34 E.H.R.R. 51)) Thus, the Crown Prosecution Service must be prepared to give reasons for any failure to prosecute after an inquest finding of unlawful killing.

How strong is the duty to prevent harm?

The European Court has held Turkey liable for failing to protect a journalist and a doctor in cases where there was a strong suggestion, but no proof, of state involvement. ((Kilic v. Turkey (2001) 33 E.H.R.R. 1357 and Mahmut Kaya v.Turkey (App. 22535/93) Judgment of 28 March 2000 ))The test is that the authorities. ((Osman v. United Kingdom (2000) 29 E.H.R.R. 245))

(a) ‘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
(b) ‘they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

The breadth of this principle was shown in Öneryildiz v. Turkey (2005)((Öneryildiz v. Turkey (2005) 41 E.H.R.R. 20 )) where the state was held liable for deaths caused by a foreseeable environmental disaster where slum dwellers were killed in a landslide at a rubbish tip. However, in Osman the police discharged their duty of protection against a threat of violence by a fairly cursory investigation of the risk: ‘such an obligation must be interpreted in a way which does not impose a reasonable or disproportionate burden on the authorities.’ The test is thus a high one and not easily satisfied. (see for example Van Colle v Chief Constable of the Hertfordshire Police (2008).(( Van Colle v Chief Constable of the Hertfordshire Police ))[2008] 3 WLR 593

What relevance has Article 2 in relation to events related to the second Iraq war?

An attempt to use Article 2 to force a wide-ranging inquiry into the causes of the war failed on the ground that the case really related to international rather than Convention law. ((R.(on the application of Gentle and another) v Prime Minister and others [2008] 2 WLR 879)) However in Al-Skeini and others v Secretary of State for Defence [2007], the court accepted that: ((Al-Skeini and others v Secretary of State for Defence [2007] 2 WLR 33, per Lord Rodger, para 61)).

the deceased, Mr Baha Mousa, was taken to a detention unit in a British military base in Basra where, it is said, he was so brutally beaten by British troops that he died of his injuries. The Secretary of State accepts that, since the events occurred in the British detention unit, Mr Mousa met his death ‘within the jurisdiction’ of the United Kingdom for purposes of article 1 of the Convention.

Mr Mousa’s family subsequently obtained an inquiry into the circumstances of their son’s death under a retired judge Sir William Gage ( and a total of £2.83m was paid in compensation to the family of Mr Mousa and others detained with him. ((