The Right to Life under the European Convention on Human Rights

DOI10.1177/1023263X9400100202
AuthorDavid Harris
Publication Date01 Jun 1994
SubjectArticle
David Harris •
The Right to Life under the European Convention on
Human Rights
The first right guaranteed in the Convention, in Article 2, is the right to life, the most
basic human right of all. 1The fundamental nature of the right is recognised by the fact
that Article 2 is one of the few Convention articles that cannot be derogated from in
time of war or other public emergency. 2Article 2 places upon states both a positive
obligation to protect the right to life by law and a negative obligation not to take life,
other than in certain exceptional cases. As yet, no case under Article 2 has been
considered by the Court. In
Cyprus
v
Turkey,
3which
IS
the only case in which a
breach of Article 2· has been found, the case was decided by the Committee of
Ministers. 4Other important Article 2 cases have arisen out of killings in the Northern
Ireland emergency or have concerned the question of abortion.
§1. The obligation to protect the right to life by law
The first sentence of Article 2(1) states that 'everyone's right to life shall be protected
by law' . This establishes a positive obligation for states to make adequate provision in
their law for the protection of human life.
It
follows from this obligation that the taking
of life must generally be illegal under a state's law. The kind (criminal, civil) or degree
(in criminal law, for murder, manslaughter, etc.) of liability is not specified. The
principle of proportionality suggests that what is required will vary with the
*Professor of Public International Law, University of Nottingham.
1. On the right to life in Article 2, see O'Boyle, The Useof LethalForce underArticle2
of
the
European
Convention
on Human Rights, CE Doc
DH-ED~COLL
(90), and Opsahl, 'The Right to Life', in
Macdonald, Matscher and Petzold (eds),
The
European
System
for the
Protection
of
Human
Rights,
(Martiuus Nijhoff, 1993). See also the discussionof Article 2 in various chapters of Ramcharan (ed.),
The Rightto Life in International Law, (Martinus Nijhoff, 1985).
2. See Article 15(2), Convention. Exceptionally, derogations may be made from Article 2 'in respect of
deaths resulting from lawful acts of war': ibid.
3. (First and Second Applications), 4 EHRR 482 (1976).
4. Irrespective of other considerations, the case could not have been referred to the Court because Turkey
had not accepted its jurisdiction.
122 MJ 1 (1994)
IDavid Harris
circumstances so that, for example, the negligent taking of life by careless driving may
be treated less harshly than a premeditated case of poisoning. It can be supposed that
criminal responsibility at the level of homicide is generally required for the intentional
taking
of
life. In any case, the 'law' that protects the right to life should be 'formulated
with sufficient precision to enable the citizen to regulate his conduct'. 5Liability for
the taking of life should extend under a state's law to the acts of both private persons 6
and persons acting for the state.
A state need not, however, make every taking of life illegal. Certain permissible
exceptions are indicated in or may be inferred from the text
of
Article 2. Capital
punishment is expressly permitted by Article 2(1), as is the taking of life by the state
in the cases listed in Article 2(2). There are other cases in which the taking of life does
not usually give rise to liability under European national law. Examples are killings in
self-defence committed by private persons (and hence not within Article 2(2» and
accidental deaths in sporting contests. More problematic, and arguably not allowed by
Article 2, are laws that permit a private person to use deadly force to defend his
property or to effect a citizen's arrest. Causing death by omission also generally escapes
liability. Acontroversial case in national law is euthanasia. It has been held by the
Commission that Article 2 does not require that passive euthanasia, by which a person
is allowed to die by not being given treatment, be a crime. 7Adifferent answer would
be likely in the case of active euthanasia, whereby death is accelerated by a positive
act. 8The consent of the patient may be relevant in this connection; it is not clear that
Article 2
requires
that a state's law prohibit active euthanasia (or complicity in suicide
generally) at his request. As in the case of abortion (see below), a wide margin of
appreciation would be allowed if it could be shown that national practice varied a lot.
The positive duty to protect the right to life 'by law' includes the effective enforcement
of the law. Accordingly, the state has an obligation to take reasonable steps to prevent
the taking of life by providing police and security forces. But there are limits to the
state's obligation in this regard. A claim that a person in fear ofhis life from the LR.A.
was entitled to continued special protection by the Irish authorities was rejected on the
ground that 'Article 2 cannot be interpreted as imposing a duty on a state to give
5. Sunday Times vUK
(No.1),
Judgment of 26th April 1979, ECHR Series A no. 30 para. 49,
interpreting the word 'law' in Article 10, Convention.
6. See e.g., WvUK, No.
9348/81,32
D&R 190
(1983).
7. Widmer vSwitzerland, No. 20527/92 (1993), unreported. In that case, it was sufficient that Swiss law
provided criminal liability for negligent medical treatment causing death.
8. However, in an early West German case, it was held that a doctor did not infringe Article 2 by giving
an overdose of drugs to the terminally ill: Decision of the Verwaltungsgericht, Bremen of November
8 1959, N.J. W. (1960),400, cited in Fawcett, The Application
of
the European Convention on Human
Rights, 2nd ed.(QUP, 1987), 36. The turning off of a life support system is probably not to be
regarded as a positive act but as part of an act of omission by which steps are not taken to keep a
person alive: cf Airedale
NBS
Trust vBland, [1993] 1 All ER 821 HL (the Hillsborough football
disaster case).
MJ 1 (1994) 123

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