The Evolving Jurisprudence of the European Convention concerning the Right to Life

DOI10.1177/092405190101900103
The Evolving Jurisprudence
of
the European Convention
Concerning the Right to Life
Fionnuala Ni Aolain'
Abstract
Article 2
of
the European Convention protects the foremost
of
all rights -the right to life.
Until recently it has received little judicial attention from the European Court
and
Commission. This article argues that before the McCann vs United Kingdom decision the
European Human Rights regime was hesitant and conservative in its approach to the
appropriate level
of
protection
for
the right to life. McCann was a turningpoint. The Court
widenedprotection
for
life byplacing obligations on the state in its planning
and
execution
of
law enforcement operations. The article charts the progressively tighter standards being
drawn by the Court since McCann. These include strict standards
of
review
for
investigative
procedures after a death; a coalescence
of
European
and
United Nations investigative
standards; and the confirmation that situations
of
emergency do not discharge States
of
their
obligations to protect the right to life. In a series
of
joined
cases now pending before the
European Court (Kelly, Jordan, McKerr and Shanaghan vs United Kingdom) the article
asserts that the Court has a unique opportunity to consolidate its jurisprudence on
proceduralprotectionsfor the right tolife. It advocates amove towards articulating specific
measures
and
principles which link investigation
of
the violation with the substantive
protection
of
the right to life itself. Such measures and principles are outlined and evaluated.
Introduction
Until the late 1980's the European Court
of
Human Rights maintained a sparse jurisprudence
on Article 2
of
the Convention, the treaty provision defining the scope ofprotection for the
right to life. In particular, it had scarcely examined the unique responsibilities
of
the State
when its agents, acting in a law enforcement capacity, were responsible for causing the death
of a citizen. This is no longer the case. In recent years, the Court has significantly
consolidated and expanded itsjurisprudence on theright tolife. Moreover, in a series
of
cases
pending before the Court, concerning the adequacy
of
right to life protection in Northern
Ireland, the Court has a significant opportunity to expand the approach it has incrementally
developed in recent years towards heightened State responsibility for the protection
of
life,'
The Court's recent jurisprudence is outlined in this article, as are the changes it portends to
the overall status
of
this inalienable right. In addition, Ichart a new model
of
State
Professor Fionnuala Ni Aolain, University
of
Ulster, School
of
Public Policy, Economics &Law, Centre for
Equalityand Human Rights.The author wrote an amicus briefto the European Court for the Northern Ireland
Human Rights Commission concerning the conjoined cases discussed in this article. AIl opinions expressed
in this article are the author's own.
Shanaghan vs United Kingdom, Application No. 37715/97, Admissibility decision
of6
April 2000; Kelly
and Others vs United Kingdom. Application No. 30054/96, Admissibility decision
of6
April 2000; McKerr
vs United Kingdom. Application No 28883/95, Admissibility decision
of
6 April 2000; Jordan vs United
Kingdom. Application No 24746/94, Admissibility decision
of
6 April 2000.
Netherlands Quarterly
of
Human Rights. Vol. 19/1. 21-42. 2001.
iD
Netherlands Institute
of
Human Rights (81M). Printed in the Netherlands.
21
NQHR 112001
responsibility for the right to life, premised on a high degree
of
procedural protection. This,
Isuggest marries the centrality
of
due process protection in the European system with a
heightened status for the substantive content
of
the right to life. The model has
apostfacto
emphasis, which constitutes the most efficient means
of
ensuring that the right to life is
genuinely protected in both theory and practice. While right to life issues have arisen in other
contexts
of
the
Court's
jurisprudence, notably the rights
of
the unborn fetus.' and the right
of
a father to prevent termination
of
apregnancy,' the emphasis in this article is on the
jurisprudence related to life-taking in law enforcement contexts only.
The article has four parts. Section Ibriefly examines the drafting history and academic
commentary concerning the language and scope
of
Article 2. Section II examines the early
jurisprudence
of
the European Court and Commission on Article 2
of
the Convention. Its
focus lies in demonstrating the generally conservative approach taken by the Commission in
its interpretation
of
this article. It shows the extent to which the Convention's early
jurisprudence was hesitant and State centered. Section III starts by detailed analysis
of
the
new departure in right to life jurisprudence taken with the McCann decision." It charts how
the Court has taken the basic proposition
of
State duty outlined in McCann, and used it as a
means to construct abroader model
of
State responsibility in subsequent cases. Finally,
Section IV outlines and augments an emerging model
of
State responsibility for the right to
life, conceptually linking positive and negative obligations within aprocedurally rigorous
framework.
I The Positive Standard
The European Convention was signed in Rome on 4 November 1950 and entered into force
in September 1953. The right to life is protected by Article 2
of
the Convention.' The
protection for the right to life is framed in an unusual way. Article 2opens with a broad and
generic statement, which sets out the framework protecting the right to life. The article then
proceeds to establish limits on the right, prescribing the circumstances in which the right to
Bruggeman and Scheuten, 12 July 1977, D &
RIO
(1978) 116. The point at issue here being whether the
concept
of
'everyone' in Article 2(1) included the unborn fetus. The Commission held that Germany was
not in violation
of
Article 8
of
the European Convention, because German women were not free to have an
abortion on demand when facing an unwanted pregnancy. The Commission did not determine whether the
fetus should be protected as 'life' under Article 2, or whether it could justify an interference with the right
to private life
'for
the protection
of
others' under Article 8(2). See also Application 8416/79, Xvs United
Kingdom, D&R 19 (1980) 244 (249-250), again addressing whether the term 'everyone' included the fetus.
Paton vs United Kingdom (1980) 3 EHRR 408.
McCann, Farrell
and
Savage vs United Kingdom, Case 17/1994/464/545, Application No. 18984/91, Series
A No. 324, Judgment
of
27 September 1995.
I. Everyone's right to life shall be protected by law. No one shall be deprived
of
his right to 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
oflife
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 not lawfully detained
(c) in action lawfully taken for the purpose
of
quelling a riot or insurrection.
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