Article 2 of the European Convention on Human Rights

The Article 2 of the European Convention on Human Rights 1 on ” right to life “, is the first substantive right enshrined in the Convention and one of the key considered as “the most fundamental human right of all ” 2 or as the” supreme law of the human being “but also as” the condition of exercise of all other ” 3 .

But it would be daring to risk a definition [not neutral] . Indeed, it is a “right to uncertain contours” 3 which is invoked with varying degrees of success in different themes 4 .

The right to life as guaranteed by Article 2 of the Convention frames the “use of lethal force by the state” 5 specifying the conditions in which the state is authorized to remove the life . On this occasion, it authorizes the death penalty .

Some applicants wished to add to this protection a “right of the unborn child”, thus limiting abortion or rather the voluntary termination of pregnancy . A “right to die” was also proposed, allowing euthanasia or rather assisted suicide .

It should be noted that the right to life is also protected by certain other major international texts (non-exhaustive list):

  • by Article 3 of the Universal Declaration of Human Rights (UDHR) of 1948 6 ;
  • by Article 6 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 7 ;
  • by Article 4 of the American Convention on Human Rights of 1969 8 ;
  • By Article 4 of the African Charter on Human and Peoples’ Rights of 1981 9 ;
  • By Article II-2 of the Charter of Fundamental Rights of the European Union of 2000 10 .

Disposition

“Article 2 – Right to life #The right of every person to life is protected by law. The dead can not be deprived of his life intentionally save in execution of a death sentence imposed by a court if the offense is this penalty by law. #Death is not considered inflicted in violation of this Article in cases where it results from the use of force absolutely necessary: ​​## to defend anyone against unlawful violence; ## to make a regular arrest or to prevent the escape of a person regularly detained; ## to repress, in accordance with the law, a riot or insurrection . “

Application

Article 2 specifies the cases in which the State is authorized to take life but also creates a positive obligation on States “to take the necessary measures to protect the lives of persons under their jurisdiction, Implementation of concrete criminal legislation based on an enforcement mechanism ” 11 .

Article 2 permits the use of lethal force:

  • § 1: in the case of a death penalty lawfully established by a court .
  • § 2: for the defense of persons, to carry out an arrest or to prevent escape but also to put an end to a riot or insurrection .

Use of the death penalty

  • Abolished for all crimes
  • Legal and Applied

This provision would therefore admit the existence of the death penalty by framing it.

Historically, the death penalty has been allowed in Europe if it respected the principles of legality of offenses and penalties (penalties provided by law and pronounced by a court) and non-retroactivity (punishment previously provided).

At the present time, if the drafting of article 2 had not been amended, certain temperaments had to be taken into account, which in practice abolished it almost completely.

The protocol n o 6 , in force in all countries of the Council of Europe except Russia , abolished the death penalty in times of peace . In addition, the additional protocol n o 13 , generally prohibiting the death penalty, entered into force in all countries of the Council of Europe except in Armenia , in Azerbaijan , in Poland and Russia.

Moreover, in a more general way, virtually all the countries of Europe no longer apply the death penalty.

Other uses of lethal force

  • Suspects can not be killed on the sole pretext of being suspected of carrying a detonator to detonate a bomb.

The McCann and Others v. In the United Kingdom. Three members of the IRA were shot down in the street by soldiers of the Special Air Service (SAS) in Gibraltar. The Court found a violation of Article 2 on the ground that the operation could have been organized and controlled in such a way that it was not necessary to kill the suspects.

Article 2 permits exceptions to the right to life only if the use of force is rendered “absolutely necessary”.

  • Andreou v. Turkey (No 45653/99) of 27 October 2009

The case concerned a British national shot and wounded by the Turkish armed forces during disturbances in the UN-controlled buffer zone in Cyprus.

  • Perisan and Others v. Turkey (No 12336/03), 20 May 2010
  • Putintseva v. Russia (No. 33498/04), 10 May 2012

“Police recourse to lethal force may be justified under certain circumstances under Article 2, but this does not give carte blanche and police operations must be authorized and adequately regulated by national law. ”

  • The use and handling of firearms must be regulated: Nachova and Others v. Bulgaria (no. 43577/98), Soare and Others v. Romania (No. 24329/02), Gorovenky and Bugara v. Ukraine (nos. 36146/05 and 42418/05), Sašo Gorgiev v. Turkey (nos. The former Yugoslav Republic of Macedonia.

Positive Obligations

States have an obligation to take the necessary measures to protect the lives of persons, in particular through internal criminal legislation.

  • LCB v. United Kingdom, judgment of 9 June 1998
  • Osman v. United Kingdom, judgment of 28 October 1998
  • Anguelova and Iliev v. Bulgaria, no. 55523/00, judgment of 26 July 2007

States also have an obligation to conduct an effective investigation, the criteria of which are independence, promptness and diligence, the ability to establish relevant facts, and access by the public and relatives.

  • Anguelova v. Bulgaria, No. 38361/97
  • Jasinskis v. Latvia, n ° 45744/08, judgment of 21 December 2010
  • Paul and Audrey Edwards v. United Kingdom (no. 46477/99) of 14 March 2002
  • Seidova and Others v. Bulgaria, No 310/4, judgment of 18 November 2010
  • Kolevi v. (No. 1108/02) judgment of 5 November 2009: impossibility of prosecuting the prosecutor-general suspected by the family of instigating the murder of the victim and under whose supervision the investigation was carried out
  • Ineffectiveness of investigations or prosecutions of murders and wounds, use of force by the police: Anguelova and Iliev v. Bulgaria judgment of 26 July 2007; Ognyanova and Choban v. Bulgaria, judgment of 23 February 2006 in Anguelova v. Bulgaria, judgment of 13 June 2002, Jularić v. Croatia (No 20106/06) of 20 January 2011

Principle of proportionality

  • Wasilewska and Kalucka v. Poland (No 28975/04 and 33406/04)
  • Finogenov and Others v. Russia (Nos. 18299/03 and 27311/03)

Domestic Violence

The domestic violence was interpreted as violating Article 2 of the ECHR in several cases.

They may be coupled with a violation of normal family life ( Article 8 of the Convention ), or with Article 13 in the case of non – effective protection.

The main judgments in this area are:

  • Kontrovà v. Slovakia n ° 7510/04: judgment of 31 May 2007  [ archive ] , violation of Articles 2 and 13.
  • Branko Tomašić and Others v. Croatia, no. 46598/06, judgment of 15 January 2009 12 .
  • Opuz c. Turkey, nos. 33401/02, judgment of 9 June 2009.
  • Velcea and Mazăre v. Romania No 64301/01, judgment of 01 December 2009 13 , infringement of Articles 2 and 8.

Interpretations denied

Right to be born, right to abort

  • Legal on request
  • Legal in case of rape, risk to mother’s life, mental illness, socio-economic factors or fetal malformations
  • (Legal for) or (illegal except for) rape, life-threatening risks, malformations or mental illnesses
  • Illegal, with exceptions for rape, vital risks, mental illness
  • Illegal, with exceptions for vital risks or mental illnesses
  • Illegal, without exception
  • Variable by region
  • Not specified
Related articles: abortion , voluntary termination of pregnancy and medical termination of pregnancy .

In a number of cases, the European Court has refused to analyze the right to abortion as a right to murder because it is a question of “ending a life”.

To end a life, life has already begun. However, neither the Convention nor the Court describe the beginning of it: fertilization , nesting , fetal stage , childbirth or even after (the case of a viable child without legal personality It is under artificial ventilation).
The European Court of Human Rights , having before it this14 does not take a clear position and finds that “it is neither desirable nor even possible at present to answer in the abstract the question whether the unborn child is a person within the meaning of Article 2 Of the Convention “

In the Commission’s decision, X v. United Kingdom , The Commission was instructed to examine the conformity of the legalization of the voluntary interruption of pregnancy and the right to life of the fetus . The commission decided that if the fetus is entitled to a right to life, the value of life can not be considered superior to that of the woman and therefore ban abortion 15 .

However, the Court does not give a right to abortion. Thus in the judgment, A, B, C c / Ireland of(big room, request n o 25579/05) Does the Court have determined that “the right to abortion is not guaranteed by the Convention” 16 because “national values have primacy” 17 .

Protection of the embryo or fetus without contradiction of the right of the mother to have an abortion

Related article: In vitro fertilization .

The life of the embryo or the fetus, even outside their mother, is not protected by the Convention. An embryo derived from in vitro fertilization may be destroyed if a member of the couple withdraws consent to implantation (Grand Chamber, Evans v. The United Kingdom,, Application n o 6339/05, [ read online  [ archive ] ] ).

Similarly, the negligence of the doctor causing a miscarriage can not be regarded – for the Court – as a breach of the right to life (big room, Vo v / France,, Application n o 53924/00, [ read online  [ archive ] ] ).

Right to die

Main article: Stop Diane Pretty .

Similarly , the Court refuses to comment on the issue of euthanasia and on assisted suicide .

In Diane Pretty v. United Kingdom of, The applicant sought, on behalf of the ” right to a decent life “, the right to ask her husband to terminate his life by protecting him from criminal prosecution. Diane Pretty was suffering from amyotrophic lateral sclerosis (ALS) at an advanced stage disease that inevitably leads to death in suffering 18 , and was no longer able to stop herself to her life 19 . This request was refused by the United Kingdom because it contravened local legislation, assimilating assisted suicide to murder .

The Court rejected the applicant’s arguments but did not condemn euthanasia. It considers that these are matters which are open to the discretion of States but that there is no right to die.

Major judgments relating to Article 2

  • Stop X c. United Kingdom , n o 8416/78, Commission decision, if it is guaranteed the fetus the same rights as a person would limit abused the rights under Article 2 of those already born.
  • McCann and Others v. United Kingdom , proportionate use of force. (Grand Chamber, application no . 18984/91)
  • Pretty judgment against the United Kingdom , Article 2 can not guarantee a right to die.
  • – Stop Vo c. France (Court (Grand Chamber), Vo v. France, Application No. 53924/00, 8 July 2004, Reports of Judgments and Decisions 2004-VIII ( 20 )
    • The question before the Court is whether the loss of a fetus can be characterized as unintentional homicide, recognizing that the fetus is protected by Article 2 as an individual independent of its mother, live. The Grand Chamber of the Court considers that the answer to this question lies with the Member States, in the absence of a consensus on this issue at European level. It is therefore not possible to know whether a fetus is a person within the meaning of Article 2. Moreover, the protection of life does not necessarily require a criminal remedy. In the present case, the applicant had the possibility of an appeal to the French administrative courts , in order to compensate pecuniarily for its damage.
  • – Condemnation of Turkey for the death of Semsettin Gezici in, Killed by the police.
  • – Stop Tanış and others against Turkey : condemnation of Turkey for the disappearance in 2001 of two leaders of the People’s Democracy Party pro-Kurdish .
  • – 18 convictions by Turkey, including several for violations of Article 2.
  • 2006 : Behrami v. France and Saramati v. France, Germany and Norway, 2006 : the Court declared itself incompetent with regard to a charge of violation of the right to life against France on the grounds that the operations in question, carried out within the framework of KFOR , depended on the United Nations .
  • – France is convicted of a violation of Article 2 in the case of Pascal Taïs (1993) who died in his cell 21
  • Evans v. The United Kingdom (Grand Chamber), Evans v. The United Kingdom, Application No. 6339/05, 10 April 2007 22
  • – Judgment A, B, C against Ireland 23
  • Haas v. Switzerland judgment 24 : the Court held that assisted suicide remained within the margin of discretion of States and that the concept had to be examined under Article 8 (right to privacy ).
  • Koch judgment against Germany 25 : Obligation to examine the merits of the application for authorization to obtain a lethal dose of medicinal products in order to put an end to his life.

Notes and references

References

  1. ↑ ” European Convention on Human Rights [ archive ] [PDF] , as amended by Protocols Nos. 11 and 14, supplemented by the Additional Protocol and Protocols Nos. 4, 6, 7, 12 and 13 .
  2. ↑ Korff 2007 , p.  6
  3. a and b Sudre 2004 , p.  83
  4. ↑ “To the classical notion of protection of life against all attacks is added today the questions of human intervention – scientific and medical – in creation: termination of pregnancy , medically assisted procreation , research on the embryos , the cloning and euthanasia . ” – Source: ” Online presentation of the book “Europe of rights: The right to life – the right to life in European constitutional and conventional case law (2005)” [ archive ] (accessed 20 January 2013 )
  5. ↑ Press Service of the ECtHR – Jan. 2013 , p.  1
  6. ↑ Article 3 of the Universal Declaration of Human Rights : “Everyone has the right to life, liberty and security of person. “
  7. ↑ Article 6 of the International Covenant on Civil and Political Rights of 1966 (ICCPR)
    1. The right to life is inherent in the human person. This right must be protected by law. No one can be arbitrarily deprived of life.
    2. In countries where the death penalty has not been abolished, a death sentence may be imposed only for the most serious crimes, in accordance with the law in force at the time the crime was committed and which must not be Be inconsistent with the provisions of the present Covenant or with the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty may be imposed only by virtue of a final judgment rendered by a competent court.
    3. Where deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize a State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention for the Prevention and punishment of the crime of genocide.
    4. Everyone sentenced to death has the right to apply for pardon or commutation of the sentence. Amnesty, grace or commutation of the death penalty may in any case be granted.
    5. A death sentence can not be imposed for crimes committed by persons under 18 years of age and can not be executed against pregnant women.
    6. Nothing in this Article shall be invoked to delay or prevent the abolition of capital punishment by a State Party to the present Covenant.
  8. ↑ Article 4 of the American Convention on Human Rights : “Right to life
    1. Everyone has the right to respect for his life. This right must be protected by law, and generally from the design stage. No one can be arbitrarily deprived of life.
    2. In countries which have not abolished the death penalty, the death penalty may be imposed only in punishment for the most serious crimes by virtue of a final judgment rendered by a competent court pursuant to a law providing for the death penalty. Which was in effect prior to the commission of the crime. The death penalty will not be applied to crimes that it does not currently sanction.
    3. The death penalty will not be restored in the states that abolished it.
    4. In no case may the death penalty be imposed for political offenses or for ordinary crimes connected with these offenses.
    5. The death penalty may not be imposed on persons who, at the time of the commission of the crime, were under the age of eighteen years or more than 70 years; Nor can it be applied to pregnant women.
    6. Everyone sentenced to death has the right to seek amnesty, pardon or commutation of sentence. Amnesty, grace or commutation of the death penalty may be granted in all cases. The death sentence may not be executed as long as the application is pending before the competent authority. “
  9. ↑ Article 4 of the African Charter on Human and Peoples ‘ Rights : “The human person is inviolable. Every human being has the right to respect for his life and to the physical and moral integrity of his person. No one shall be arbitrarily deprived of that right. “
  10. ↑ Article II-2 of the Charter of Fundamental Rights of the European Union : “Right to life
    Everyone has the right to life.
    No one shall be condemned to the death penalty or executed. “
  11. ↑ Press Service of the ECtHR – Jan. 2013 , p.  3
  12. ↑ ( en ) Judgment Branko Tomašić and Others v. Croatia  [ archive ] , ( en ) Statement by the Registrar  [ archive ]
  13. ↑ Velcea and Mazăre v. Romania  [ archive ] n ° 64301/01
  14. ↑ Read the judgment of the Court in full text  [ archive ]
  15. ↑ ” X c / UK, 13 May 1980 [ archive ] , on hudoc (official website of the ECtHR) (accessed 26 January 2013 ) :
    19. The life of the “fetus” is intimately linked to the life of the woman who carries it and can not be considered isolated. If it were stated that the scope of Article 2 extends to the fetus and that the protection afforded by that article should, in the absence of an express limitation, be regarded as absolute, it must be inferred that an abortion is prohibited, Even when the continuation of the pregnancy would seriously endanger the mother’s life. This would mean that the “unborn life” of the fetus would be considered more valuable than that of the pregnant woman.
  16. ↑ ” The right to abortion not guaranteed by the ECHR!  ”  [ Archive ] , on The World of Law , LegalNews, (Accessed 26 January 2013 )
  17. ↑ Nicolas Hervieu , ” Right to abortion (Articles 2, 3 and 8 ECHR): Absence of a conventional right to abortion and primacy of national moral values [ archive ] , at http: //www.rights -libertes.org/  [ archive ] , Credof , (Accessed 26 January 2013 )
  18. ↑ “She suffers from amyotrophic lateral sclerosis (ALS), progressive neurodegenerative disease affecting motor neurons within the central nervous system and causes gradual deterioration of cells that control the voluntary muscles of the body. Its development leads to severe weakening of the arms and legs as well as muscles involved in breath control. Death usually occurs as a result of problems of respiratory insufficiency and pneumonia due to the weakness of the respiratory muscles and those that control speech and swallowing. No treatment can stop the progression of the disease. ” ( Stop Diane Pretty , 7.)
  19. ↑ “She kept all his mental faculties and wants to take the measures appear to it necessary to bring a peaceful end to his life, the timing of it. Now his physical invalidity is now such that it is impossible for him, without help, to put an end to his own life. ” ( Stop Diane Pretty , 14.)
  20. ↑ Stopped Vo c. France, 8 July 2004  [ archive ]
  21. ↑ Communiqué from the Registry in the case of Pascal Taïs (1993) Read online  [ archive ]
  22. ↑ Judgment in Evans v. United Kingdom, 10 April 2007  [ archive ]
  23. ↑ Stop A, B, C against Ireland , request n o 25579/05, Model: Read online stop A, B, C against Ireland
  24. ↑ Application No. 31322/07, Model: Read online the Haas judgment against Switzerland
  25. ↑ Stop Koch against Germany, 1 E section, Application No. 31322/07, [ read online  [ archive ] ]