Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2 of the ECHR
| Author | Natasa Mavronicola |
| Published date | 01 November 2017 |
| Date | 01 November 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12301 |
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Taking Life and Liberty Seriously: Reconsider ing
Criminal Liability Under Article 2 of the ECHR
Natasa Mavronicola∗
What is the relationship between the right to life and criminal liability, and what should it be,
given the significance we rightly attribute both to human life and to human freedom? This
article explores the circumstances in which the European Court of Human Rights imposes a
positive obligation to criminalise and pursue criminal forms of redress, and concludes that the
Court’s doctrine carries the potential of both coercive overreach and dilution of the right to
life itself. These problems are compounded by opacity in the Court’s doctrine. I propose a way
forward that takes both the right to life and human freedom seriously.
INTRODUCTION
It is indisputable that safeguarding human life is a key aspect of human rights in
general1and the European Convention on Human Rights2in particular.3The
negative and positive obligations emanating from the right to life, encompassed
in Article 2 of the ECHR, have been the subject of extensive interpretation by
the European Court of Human Rights,4and have reflected a long-standing,
profound commitment to protecting human life. Moreover, the Court has
reiterated the centrality of the value of human freedom throughout its rich
jurisprudence on the Convention, and this has underpinned the far-reaching
safeguards it has elaborated in the context of criminal justice and beyond. An
examination of the circumstances in which the ECtHR imposes a positive
obligation on states to criminalise and pursue criminal for ms of redress, how-
ever, indicates that the Court’s doctrine carries the potential of both coercive
over reach and dilution of the r ight to life itself, at the expense of the protection
of both human life and human freedom. These substantive problems are
compounded by opacity in the Court’s pronouncements. This article pursues
principled coherence in ECtHR doctrine, on the understanding that the
law – including human rights law – ‘speaks’ with integrity.5My proposals adopt
∗I am grateful to Professor Gordon Anthony, Professor Fiona de Londras, Professor Brice Dickson,
Dr Mark Dsouza, Professor Christopher McCrudden, Dr Findlay Stark and the anonymous referees
for their invaluable comments on earlier drafts. I am also indebted to Dr Hannah Russell and to
participants at my presentation at Queen’s University Belfast and the Criminal Justice section of the
SLS Conference 2015 for illuminating discussions on the subject. All errors are, of course, my own.
1 See, for example, R. Smith, International Human Rights (Oxford: OUP, 6th ed, 2014) 217.
2 Council of Europe,Convention for the Protection of Human Rights and Fundamental Freedoms
1950, ETS 5 (ECHR or the Convention).
3 See D. Harris, M. O’Boyle, E. Bates and C. Buckley, Law of the European Convention on Human
Rights (Oxford: OUP, 3rd ed, 2014) 203.
4 The European Court of Human Rights (ECtHR, Strasbourg, the Strasbourg Court, or the
Court).
5 In taking both the right to life and liberty seriously, paraphrasing R. Dworkin’s Ta k i n g R i g h t s
Seriously (Cambridge, Mass: Harvard University Press, 1978), I pursue integrity in ECtHR
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017)80(6) MLR 1026–1051
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Natasa Mavronicola
a reading of the ECHR which coheres with the values the Convention aims
to safeguard, and thus take both the right to life and human freedom seriously.
The article’s structure is as follows. First, I consider the character and signifi-
cance of the right to life within the ECHR, and the way in which the negative
obligation has been framed to closely restrict the circumstances in which State
action which takes life will be considered compatible with the right to life. I
then assess the way the negative obligation interacts with a category of positive
obligations that is increasingly prominent in ECtHR doctrine on Article 2
of the ECHR: what I label ‘duties of redress’. I explore the ways in which
coercive demands in this area have interacted with a dilution of Article 2’s
negative obligation, noting that many of the observations made are cemented
by the recent ECtHR Grand Chamber judgment in Da Silva vUK.6Ithen
propose a principled approach which avoids both the dilution of the duty not
to take life and the potential overreach of the ECtHR’s coercive agenda, and
reflect on how the path advocated impacts on liberal criminal theory, and the
anti-impunity turn in human rights.
For the purposes of this article, I will not consider the meaning of ‘life’ in
Article 2 ECHR.7My focus is chiefly on the way the Court addresses killings8
by the State vis-`
a-vis individual criminal responsibility.
THE NATURE AND STRUCTURE OF ARTICLE 2 OF THE ECHR
Article 2 of the ECHR protects the right to life in the following terms:
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.
Article 2(2) sets out circumstances in which force resulting in the loss of life,
whether death is intended or not, can be justified and found lawful.9Moreover,
doctrine – see R. Dworkin, Law’sEmpire (Oxford: Har t Publishing,1998) esp chs 6 and 7. This
seeks ‘order and coherence in the law’, as described in G. Letsas, ‘Two Concepts of the Margin
of Appreciation’ (2006) 26 OJLS 705, 706.
6Armani Da Silva vUK App no 5878/08 (ECtHR, 30 March 2016).
7 See E. Wicks, ‘The Meaning of “Life”: Dignity and the Right to Life in International Human
Rights Treaties’ (2012) 12 HRLR 199; and J. Yorke (ed), The Right to Life and the Value of Life
(Oxford: Routledge. 2010) esp chs 1-5.
8 Killing is, of course, a loaded concept itself: consider, for example, Yorke, ibid, chs 12-14.
9 As regards Article 2(1), note that the death penalty is now proscribed across the Council of
Europe in accordance with Protocols 6 and 13 of the ECHR; the ECtHR also found the death
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 1026–1051 1027
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