Right to life

Question 1

Article 2 - Positive and negative obligation

Answer 1

1. Positive duty to safeguard lives in the MS jurisdiction
2. Positive obligation to investigate suspicious deaths
3. Negative duty to refrain from intentional killing

Question 2

What about death penalty?

Answer 2

1. Art. 2(1) reserves the possibility to impose death penalty
2. Protocol 3 abolishes death penalty in all circumstances (R.44)
3. Protocol 6 abolishes death penalty in peace time (R.46)
4. All new members to the ECHR must abolish death penalty in peacetime
5. State practice indicates that Art. 2 (but not Art. 3!) prohibits death penalty in all circumstances
6. It is a basic value in a democratic society

Question 3

What about extradition/deportation to a country where the individual faces execution?

Answer 3

Al-saladoon v. the UK:

1. There must be substantial grounds for believing that the individual will face a real risk of being executed:
   - Foreseeable consequence
   - Facts which were known/ought to be known
   - In both personal and general circumstances
2. Both art. 2 and art. 3 imposes an obligation on the MS not to deport if (1.) is established.
3. The MS may secure an agreement with the receiving country to ensure that the death penalty will not be imposed:
   - There is a duty to obtain insurance
   - Must be binding
   - Can it be verified?
   - Domestic courts must have reviewed that agreement

Question 4

Is there a right to life for the unborn?

Answer 4

Vo v. France:

1. No consensus on when life begins
2. The Court did not rule on whether the unborn foetus fell within the scope of art. 2 - The question remains unanswered
3. If intentional - There must be a criminal law redress
4. In unintentional - Criminal law redress is not required

Question 5

Is there a ‘right to die’?

Answer 5

Pretty v. the UK:

1. A freedom can not be chosen to be exercised, article 2 does not mention a choice to die
2. Art. 2 does not contain the possibility to ‘not live’ (ex. unlike art. 10)

Lambert v. France:

1. The issue here is abstention - Don’t let him die
2. The court rules on whether the MS adopted a sufficient domestic law and legislative framework to safeguard Mr. Lambert’s right to life:
   - Must be clear and detailed
3. Did the decision-making proceed take into account:
   - The victim’s previously expressed wishes?
   - The doctor’s opinion?
   - The views of the relatives to the victim?
4. Is there a possibility of judicial review to this decision?

Question 6

What about life imprisonment?

Answer 6

Hutchinson v. the UK:

1. There must be a review latest after 25 years (other than presidential clemency):
   - Executive
   - Impartial and independent
   - Procedural safeguards
2. Exceptional progress towards rehabilitation is a ground for review