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In this paper, one of the most important rights in the European Convention on Human Rights (ECHR) will be analyzed. Although this may seem an exaggerated introduction, one is likely to see Article 2 of the ECHR – the right to life – as rather important. A closer look will be taken what this article exactly entails, why it is important, how it is interpreted and used. But first, the concept of human rights needs to be clarified.
Human rights can be considered as a basic agreement within the world with regard to rights and freedoms. These rights and freedoms are applicable to every human being and are considered to represent shared values, morals and principles. The European Convention on Human Rights (ECHR) exists to enforce and to protect these fundamental rights and freedoms. Moreover, the Convention has the ability to bind nations and to bind citizen (Crouwers, 2011).
One of these fundamental rights and freedoms is the right to life. In the ECHR, this article is stated as follows:
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. (European Convention on Human Rights, 2010, p. 2)
To briefly recap the article: it contains two fundamental elements, reflected in its two paragraphs. The first paragraph consists of a general obligation to protect the right to life. The second paragraph includes the prohibition of deprivation of life, confined by a list of exceptions. The use of force involved should be no more than absolutely necessary (Korff, 2006).
With regard to the other rights and freedoms, the right to life has a special position because of the consequences of its violation. Deaths result from the ultimate breaches of this right. Once this right is violated, there is no way to reverse its effect and to remedy the violation (Kratochvíl, 2006). Consequently, the right to life is one of the most important human rights as it is the most basic one. The other rights are based on the fact that one lives. Without the right to life, all other rights would become illusory (Korff, 2006).
Moreover, this fundamental right is “non-derogable”: states have no legal basis, even in a state of emergency, to refuse to honor this right. Yet, according to Article 15.2 “deaths resulting from lawful acts of war” do not constitute violations of the right to life. Even the European Court on Human Rights stated that Article 2 (together with Article 3 – the prohibition of torture) expresses one of the basic values that constitutes a democratic society (Korff, 2006).
To continue with the interpretation of this article in the Court, the exact phrasing of the right to life is essential. The first paragraph refers to very limited circumstances in which the state may kill. However, the exception in case of lawful executions was later restricted by Protocols 6 and 13, both concerning the abolishment of the death penalty (The National Council for Civil Liberties, n.d.). The phrasing of the second paragraph is the interesting part in the ruling upon Article 2.
This paragraph allows for exceptions to the right to life only when it is absolutely necessary and in accordance with the sub-paragraphs (a) – (c). In the first case on Article 2 (McCann and others v. the United Kingdom, 1995), the Court ruled that the forced used must be strictly proportionate to the aims set out in sub-paragraphs (a) – (c) (Korff, 2006). Moreover, it ruled that the exceptions in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in killing.
The case of McCann resulted in another obligations of the state according to Article 2. It requires the state to investigate deaths that may have been a result of the violation of this article. It also imposes a duty to review the use of excessive force by state agents and to ensure an adequate planning and control of operations (Chevalier-Watts, 2010).
These obligations can be found again in the case of Osman v. the United Kingdom and are even extended. The Court notes that the first sentence of the Article indicates not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.
The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (…). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities 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 that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (…). Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. (…)
In the Osman case the Court concluded that there had been no violation of Article 2, as it was not possible to point to any decisive stage in the sequence of events where it could be said that the police knew or ought to have known that the lives of the members of the family were at stake.
of force by state agents, obligation to protect the right to life, investigation, death penalty,
death row phenomenon, enforced disappearances, extradition, abortion and euthanasia.
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