Article 2 Notes

Article 2: The Right to Life

Introduction

Article 2 – Right to life

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.

McCann - Strasbourg Court said: “as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Conventions...as such, its provisions must be strictly construed”.

A Contracting Party’s obligation to safeguard life consists of three main aspects:

• The duty to refrain, by its agents, from unlawful killing

• The duty to investigate suspicious deaths (and if required, to prosecute the perpetrators of an unlawful killing

• In certain circumstances, a positive obligation to take steps to prevent the avoidable loss of life

Bradley – a violation of this right makes meaningless the recognition of any other rights.

It is protected absolutely, one of the very few rights that may not be abridged even “in time of war or other public emergency threatening the life of the nation” (Art 15(2)). The single exception is with respect to deaths resulting from lawful acts of war.

The exceptions written into s2 of Art 2 are to be available only when the taking of life is absolutely necessary for one of the purposes listed. This formulation contrasts with the more usual requirements for limiting rights – that the infringement be merely necessary (e.g. Art 10(2)).

The court has extended a state’s obligations far beyond limitations on the official taking of human life.

The extent of Article 2

Ilhan v Turkey – the court has held that a violation of Art 2 is possible even when no person (however defined) actually dies. The applicant’s brother had been arrested by gendarmes and beaten severely, causing serious head injuries. He was kept under arrest and received no medical treatment for 36 hours. He survived but sustained an apparently permanent loss of function on his left side. The court, citing 3 prior cases, held that it was proper to consider the case notwithstanding the victim’s survival. The court noted that this case and all prior cases where there had been no actual death involved a state’s positive obligation to protect life.

The Court then provided this “cryptic” (Bradley) explanation: “It is only in exceptional circumstances that physical ill-treatment by State officials which does not result in death may disclose a breach of Art 2 of the Convention. it is correct that the criminal responsibility of those concerned in the use of force is not an issue in the proceedings under the Convention. nonetheless the degree and type of force used and the unequivocal intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the States’ agents’ actions in inflicting injury short of death must be regarded as incompatible with the object and purpose of Article 2 of the Convention”.

Acar and Others v Turkey – two applicants had been wounded but had survived a “sustained and lethal attack” that killed 8 people. The court held that they were “victims of conduct which...put their lives at grave risk”. They were allowed to argue violations of Art 2.

Dizman v Turkey – the receipt of mere threats to kill held not to engage Art 2.

Pretty v UK – court rejected a different kind of extension of the right to life. The application was a woman suffering the advanced stages of motor neurone disease, an untreatable and progressively debilitating condition, leaving her paralysed from the neck down without the power of speech and fed through a tube. She wished to end her life, which was impossible without assistance, and English law made assisting suicide a crime. She claimed that Art 2 gave her a right to “choose whether or not to go on living”. The court rejected the idea that Art 2 included a “negative aspect”.

The court distinguished its holding in Art 11 cases that the right of association implied a right not to associate. The right protected in Art 11 was a “freedom” right protecting individual choice: “Art 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person choose to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from state interference, they may be reflected in the rights guaranteed by other Arts of the Convention, or in other international human rights instruments. Art 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.”

The death penalty and the extraterritorial application of the right to life

In one respect, part of the text of Art 2 has, in practice, been overtaken by provisions in the protocols. The second sentence of Art 2(1) reserves the right of Contracting Parties to subject convicted criminals to the death penalty.

However, Protocol 6 to the Convention abolishes the death penalty in peacetime and Protocol 13 abolishes it in all circumstances. 46 Contracting Parties have ratified Protocol 6, and 41 contracting parties have ratified Protocol 13.

It is the policy of the council of Europe to require all new contracting parties to undertake to...

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