16- Article 2 ECHR: the right to life Flashcards
What does Article 2 say?
“1. Everyone’s life shall be protected by law.”
Unless the court has sentenced the individual after a conviction of a crime, no one should be deprived of their life.
How might the state be able to interfere with Article 2?
As the right to life is an absolute right, or non-derogable, it cannot be limited or suspended under any circumstance, unless any of the following exceptions apply:
The state will not be regarded as depriving life in contravention of Article 2 when it results from force which is no more than ABSOLUTELY NECESSARY IN:
1. the defence of a person from unlawful violence
2. order to carry out a lawful arrest or prevent the escape of a
person lawfully detained
3. action lawfully taken for the purpose of quelling a riot or insurrection
Which interferences with the primary obligations of the state are justified within Article 2?
- The use of force- what is absolutely necessary
- In defence of any person from unlawful violence
- In order to effect a lawful arrest or prevent the escape of a person lawfully detained
- In action lawfully taken for the purpose of quelling a riot or insurrection.
What is the right to life based on, according to legal philosophers?
It’s based on the inherent dignity of human beings
1) Thomas Aquinas argued it came from man being made in God’s image.
2) Thinkers such as Thomas Locke argue it’s based on the idea that man has intrinsic ‘goods’.
How does the right to life work in relation to the individual and the state?
As the state can only rule with the consent of the people, the people have certain rights that the state has a duty not to abuse.
People shouldn’t be used by the state as a means to an end, through torture or death, for this reason it’s treated as non-derogable under Article 2.
Which 4 issues are considered regarding Article 2?
- The beginning of life and the unborn child
- The end of life
- The state’s duty to protect life
- The state’s duty to make adequate investigations into the loss
of life.
What does the ‘beginning of life and the unborn child’ mean under Art 2?- include KEY CASE
- Life means human life, not life of animals.
- The ECHR doesn’t clarify what life is, or when it begins or ends, and the ECtHR is unwilling to be precise in the definition, as seen in Vo v France (2005)
- The court’s decision in this case has remained its basic position, repeating that the ISSUE OF WHEN THE RIGHT OF LIFE BEGINS comes within the margin of appreciation, which the Court generally considers that States should enjoy.
States therefore are considerably free to to regulate matters of life and death- they must consider the various interests involved and balance them .
How has abortion been considered under Art 2 (beginning of life and the unborn child?)- Include KEY CASE
- The unborn child isn’t regarded as a person directly protected by Art 2.
- In most of Europe, abortion is allowed without restriction up to between 10-14 weeks’ gestation, with a few exceptions such as the Republic of Ireland and Northern Ireland.
- RI: Strict ban on abortion, which is permissible under ECHR.
- HOWEVER, women should be able to to receive information about abortion facilities abroad, as preventing this would be a violation of Art 10 (Open Door and Dublin Well Woman v Ireland (1992)). - NI: Abortion is limited but allowed to travel to the UK to visit
an abortion clinic.
- RI: Strict ban on abortion, which is permissible under ECHR.
- Abortion is legal in England, Wales and Scotland up to 24 weeks under the Abortion Act 1967, but if there’s a substantial risk to the woman’s life or foetal abnormalities are found, there is no time limit.
What does the ‘end of life’ mean under Art 2 ECHR?-
- Art 2 states everyone’s life must be protected by law.
- Apart from the death penalty, which is allowed under Art 2, it sets out limited circumstances in which a person can be deprived of this right.
- There are 3 areas not mentioned in the Article: Suicide, assisted suicide, and euthanasia.
How has suicide, assisted suicide and euthanasia been considered by Art 2 (end of life)?- Include KEY CASE
These usually fall within the margin of appreciation the state has.
- However, the issues in Lambert v France (2015) have been considered. In this case, the court stated it was their role to ascertain whether the state had fulfilled its positive obligations under Art 2.
Which areas are considered when analysing the state’s duty to protect life?
- Duties in relation to life-threatening environmental risks
- Protection of individuals from violence from others
- Prevention of suicide by prisoners
- Protection against medical malpractice
- Extradition, expulsion and deportation.
Duty to protect life: What are the state’s duties in relation to life-threatening environmental risks under Art 2?- Include KEY CASE
KEY CASE: Oneryildiz v Turkey (2004)
Although states enjoy a wide margin of appreciation in this area, a violation of Art 2 may occur in a number of ways, by a failure to :
1. Apply necessary regulations strictly
2. Provide affected populations with adequate information of the
risks
3. Hold those responsible to account, for ex by criminal
prosecutions.
Duty to protect life: What are the state’s duties in relation to the protection of individuals from violence from others under Art 2?- Include KEY CASE
This usually falls within the margin of appreciation given to states.
The most relevant decision of ECtHR is seen in Osman v UK (1998), where the court viewed that complete immunity for the police for operational decisions was too wide and was capable of infringing the human right of protection of life.
Duty to protect life: What are the state’s duties in relation to prevention of suicide by prisoners under Art 2?- Include KEY CASE
As seen in Keenan v UK (2001), the question arises as to whether, and if so when, the state has a duty to prevent individuals from committing suicide.
This can be either a prisoner or a patient with a mental illness.
Duty to protect life: What are the state’s duties in relation to protection against medical malpractice under Art 2?
Although there’s an argument that deaths resulting from malpractice should involve the responsibility of the state, it generally won’t result in a breach of Art 2 so long as the state complies with its general duty to protect the lives of patients.
