Article 2: Right to Life (Part 2 ECHR Series)

Welcome to part 2 of the ECHR series (click here for part 1). A quick side note before we look at Article 2, Article 1 provides that the Convention applies to “everyone” within the Contracting State’s jurisdiction. This does not restrict the application of the Convention to State citizens, but anyone who finds themselves within the State’s jurisdiction, this includes migrants, asylum seekers, citizens, immigrants etc.

Convention & Protocols

Article 2 protects the right to life of individuals. The text reads:

  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.

Protocol 7 abolishes the death penalty in times of peace.

Article 1: the death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2: A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

Article 2: No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Protocol 13 abolishes the death penalty absolutely.

Article 1: the death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2: No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Observations

The right to life protects the lives of “everyone”. There is a duty on Contracting States to take appropriate steps to safeguard the lives of those in its jurisdiction. This means that there is a positive obligation on Contracting States to protect the right to life. This is done through criminalising murder in the law and prosecuting those who commit it. State authorities have the obligation to protect those in its care, this includes prisoners, patients etc.

There are a number of issues and situations which make the interpretation of Article 2 difficult. Where does life begin, for example? Is an unborn child protected under the convention? What about a right to die? Or suicide in custody? What about access to experimental treatment? These issues are vast and could take some time to debate and ultimately reach a conclusion which would be hypothetical, given that the Court itself has not taken a position on the matter. Instead I will provide information on these scenarios, through case law, so that you can take a position on the interpretations yourself.

The right to life of the unborn.

This is perhaps the most topical scenario, following the Irish referendum to remove the protection of the right to life of the unborn from the Constitution. The European Court of Human Rights (the Court), has repeatedly debated this issue but has always maintained that the right to life of the unborn was not relevant in that particular case, thereby pragmatically sidestepping the question.

In Vo v France, the applicant received an abortion following medical negligence on the part of the doctor. The applicant’s complaint was as a result of the failure of the French authorities to prosecute the doctor for murdering her unborn child. The Court held that while the right to life of the unborn was not necessarily protected by the Convention, this did not mean that it wasn’t. Usefully, however, the Court held that the opportunity to pursue civil litigation was an adequate remedy provided by the Contracting State and therefore the question was unnecessary to answer.

In ABC v Ireland, the ECtHR made a land mark decision holding Ireland accountable for failing to have adequate measures for legal access to abortion. Under Article 40.3.3, the Constitution protects the right to life of the unborn. Abortion was legal in Irish law, however, where the life of the mother was threatened. There was no clear legal framework as to how this was defined, implemented or used in practice. The applicants A, B and C complained that this failure to identify situations in which abortion was legal violated Article 8 (right to privacy). This landmark case, at first, appeared to pierce the margin of appreciation veil. Upon closer inspection, however, the issue the Court did not agree with was the failure of proper legal framework for legally obtained abortions, not access to abortions nor the right to life of the unborn. The Court held the right to life of the unborn remained within the margin of appreciation.

Obviously, since this 2010 decision Ireland has voted to remove this provision under the Constitution. Legislation is yet to be enacted to govern this new area of law.

A Right to Die?

Does the right to life also encompass a corollary right to die? Is there a right to self-determination? This question has come before the Court a number of times in the form of access to assisted suicide. In circumstances where a patient is terminally ill, has a poor quality of life or is on life support is there a right to die with dignity through assisted suicide?

In Pretty v United Kingdom, Mrs Pretty requested that the DPP not prosecute her husband, should he assist her in her suicide. Mrs Pretty suffered from a degenerative disease and wished to end her life before she began to suffer pain. The Court sympathised with Mrs Pretty but categorically denied that the right to life implied a corollary right to die. Though self-determination does not violate the right to life, someone aiding in such a tragic eventuality did.

Another common case which comes before the court under this topic is the withdrawal of life support. Typically, this case is brought by parents who do not wish the life support to be withdrawn. An example of this is Lambert v France, in this very sad case Mr Lambert sustained serious head injuries and was placed on life support. His wife and siblings wished to withdraw life support after Mr Lambert was declared to be in a vegetative state and appeared to be resisting the care. Mr Lambert’s parents, however, rejected this and claimed them to be violating Article 2. The Court held that withdrawal of life support did not constitute a violation of Article 2 in a medical setting. The argument being that withdrawal of life support does not constitute “active killing” on the part of the hospital. They are withdrawing life sustaining treatment but not actively participating in the end of life. Their actions result in death but by natural causes, rather than injecting something to cause death.

Is that really a viable argument? Would the patient be more comfortable with assisted suicide, rather than the removal of life saving treatment? These questions were not really addressed by the court and remain to be debated today.

Another topical question is whether or not the right to life encompasses a right to a certain standard of health care. In Calvelli and Ciglio v Italy, the court held that hospitals must adopt appropriate measures for the protection of patients’ lives. In this case, the applicant’s child died due to medical negligence. Criminal prosecution was not available, however the court held that it should be. In Campeanu v Romania, the applicant was autistic and kept in squalor. The Court provided that hospitals must provide special care in guaranteeing conditions which will meet special needs resulting from disabilities. There appears to be a duty on state, and private, hospitals to uphold a certain standard of care.

In Hristozov v Bulgaria, the applicants were refused accessed to experimental medicine. The court held that access to unlicensed medicine fell within the margin of appreciation and was up to the Contracting State to legislate for. Subsequently, in Lopes de Sousa Fernandes v Portugal 2017, the Court held that there is a positive obligation on States to provide access to life-saving treatment and prevent systematic dysfunction. In this case the applicant’s husband died due to an error in judgment by the treating doctors. The Court held that the hospital cannot knowingly withhold access to lifesaving treatment. Obviously the question is raised whether or not this extends to trial medicine, as in Hrisozov v Bulgaria. Whether or not opinions have changed on access to trial medicine remains to be seen.

Death in Custody

Finally, the question of State responsibility for deaths in custody. Those in custody are thought to be particularly vulnerable. If a person in custody dies, is the State accountable, and therefore liable, for their death?

There are a number of cases concerning this very question. In Jasinskis v Latvia and Salman v Turkey, the Court placed a duty on States to protect persons in custody due to their vulnerable position. In Edwards v United Kingdom, two mentally ill prisoners were placed in a small cell, resulting in one prisoner murdering the other. The Court held that the State was liable for his death. In Reynolds v United Kingdom, the applicant had a known suicide risk and was under suicide watch. However, during the break of watch he committed suicide. The Court held that the guards had taken adequate measures and the State was not responsible for this tragic death.

Conclusions

There are a number of issues under this right. The biggest problem being consistent interpretations of the right by the court and the implications of margin of appreciation. There is also the question of how far this right extends. In LCB v United Kingdom, the applicant was diagnosed with leukemia as a result of her father being exposed to radiation through his working for the UK government, prior to her conception. Had she been informed earlier her life may have been saved. The Court held that this was extending the scope too far, in that the required medical knowledge was not available at that time. What about a known risk to life? The Court has held in Osman v United Kingdom, that only if it could be established that the authorities knew or ought to have known, at the time, of the existence of a real and immediate risk to life of an identified individual or individuals, judged reasonably within the context of the situation.  This qualifies the imposition of a duty to prevent loss of life as a result of the actions of a third party.

The inclusion of the margin of appreciation and right to life is difficult to reconcile. How can States differ upon a supposed absolute right? The same is not said for the abolition of torture under Article 3, which will be covered in the next installment.

Thank you very much for reading this. If you have any questions or comments please feel free to leave them below!

Further reading:

Oneryildiz v Turkey(Duty to prevent loss of life)

Opuz v Turkey (Duty to prevent loss of life in domestic violence)

Branko Tomasic v Croatia (loss of life as a result of a failure of authorities to properly evaluate a released prisoner).

Budayeva v Russia (failure of the Russian government to take precautions for a known risk of mudslides. Duty in natural disasters?)

Kaya v Turkey (Duty to investigate deaths)

Varnava v Turkey (Continuing obligation to locate missing persons who disappeared in life-threatening situations)

Al Skeini v United Kingdom (Does the duty extend to occupying territories?)

Angelova v Bulgaria (Military investigations in occupying territories)

Right to Life ECHR Factsheet (use of lethal force by State)

Guide on Article 2 by the Council of Europe

End of Life and the Right to Life, provided by the Council of Europe.

Guide on Article 2 of the Convention, provided by the Equality and Human Rights Commission.

 

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