Right to Life in Article 2 of the European Convention on Human Rights – Festive City
This section will track the development of the right to life contained in Article 2 of the European Convention on Human Rights (ECHR). It will analyse the way in which the jurisprudence of the European Commission on Human Rights (the Commission) and the European Court of Human Rights (ECtHR) have sought to develop the right to life, ultimately measuring their successes or failures at delivering an effective human rights system. Firstly the early cases appearing before the Commission will be analysed with a further focus on the ECtHR’s approach to developing a more coherent approach.
2.1 The ECHR – Early Genesis:
The ECHR was conceived on foot of the Universal Declaration of Human Rights and was signed on the 4th November 1950, coming into force in September 19531. The most defining feature of the Convention is the provision made for effective enforcement, the ability of inter-state parties but more importantly domestic citizen actions, thereby creating a supra-national legal structure holding an inherent ability to keep states accountable for the manner in which governments treat their citizens. Despite the original aim being for greater use of the inter-state action process as opposed to citizen action, the latter remains the most popular process by which cases are taken under the Convention. The inter-state actions tend to be politically motivated and can instil a fear among governments that their own domestic practices may come under scrutiny if they instigate an action against another Member State. It is evident that in the aftermath of World War II European States wanted to create a supra-national structure to give its citizens a mechanism to hold their domestic governments to account on issues of human rights and dispel the fears of a reoccurrence of the horrors of World War II2. The fundamentality of the right to life is unquestionable as it is clearly a prerequisite from which all other rights flow and on which they depend3.
2.2 Article 2 – A Paradoxical Framing and the Concept of the Right to Life:
The protection of the right to life is found in Article 2 of the Convention and it is expressed as a broad and generic right4. Inherent in Article 2(1) is a primary obligation on States to ensure the right to life is protected by law by ensuring an appropriate legal and administrative framework to deter the Commission of offences where life is likely to be lost5. It is quite paradoxical in that Article 2 professes a framework for the protection of the right to life and then proceeds to establish limits on the right, outlining in the latter half three circumstances in which life can be taken away6. Unlike other regional instruments it does not recognise the existence of the right to life but rather imposes upon States an obligation to protect everyone’s right to life, which is supported by a prohibition of intentional deprivation of life7. It is clear that it is not life itself that is protected but rather the right to life and Article 2 is not designed to guarantee all human life but intended as an instruction to the State and its agents who are required to protect individual right to life8. Article 2 has two distinct aspects:
- A substantive but negative duty to protect the right to life by not taking life intentionally (except in accordance with Article 2(2)); and,
- A procedural but positive duty to protect life by having an effective judicial framework to protect the right to life including the ability to carry out effective investigations of all deprivation of life9.
2.3 Perspectives of Analysis:
In analysing the right to life from a jurisprudence perspective at least three perplexing issues arise:
- The Scope of the Right to Life: the most fundamental question that has been before the courts has been who should enjoy the right, where does it begin and where does it end? Some contested issues have been whether the word ‘everyone’ in Article 2 extends to include the foetus; other issues have included whether there is a right to die.
- Member State obligation to secure the right: there are two intrinsic aspects, which will be discussed in greater detail below, that engage this frontier:
- Positive obligation.
- Negative obligation.
At one end of the spectrum is the negative obligation to refrain from intentionally killing whilst at the other end there is a positive duty to protect life, placing a specific burden on States to take steps to ensure a minimum level of protection exists.
- The Exceptions to the Right to Life: the circumstances in which life endangering force may be lawfully employed has been a complex issue for the ECtHR to resolve, raising questions as to whether it can be justifiable to use potentially lethal force to protect others. It is a balancing act between the powers of the security forces and the criminals and terrorists.
A central question the Commission had to address was the positive and negative aspect to the right to life, how far a State would be required to go in order to protect life and what steps they would have to take or implement in order to satisfy the obligation under Article 2, particularly in circumstances where a State would have no direct link in the cause of the death.
2.4 Article 2, the Early Days – the Commission:
The Commission in its early days sought to refrain from making pronouncements on the right to life with many cases not reaching the ECtHR for many years10. The early cases were dealt with by the Commission either by screening them out for failing to follow the Convention’s procedural requirements or dealing with them by applying a restrictive interpretation technique of Article 211. The initial approach to the issues surrounding the right to life was restrictive; the Commission ensured that Article 2 would not be unduly burdensome for States by ensuring that national States could not be required to give personalised security to national citizens12. The Commission grounded itself by applying a two stage test, firstly by examining whether the State had national laws protecting life and secondly examining the individual circumstances of the applicant13. The Commission continued this narrow approach in the interpretation of Article 2 in a number of subsequent cases taken from Northern Ireland giving national States latitude to deal with national circumstances. In one of the first cases before the Commission, Farrell, they never got to determine the central issue of whether effecting a lawful arrest could ever involve deliberate use of lethal force as the case was settled privately14.
In Stewart the Commission took the approach of assessing whether the use of lethal force was ‘absolutely necessary’ and proportionate for the legitimate aims outlined in Article 2(2)15. They found in making this assessment that it was absolutely necessary and proportionate to the aim of quelling a riot under Article 2(2)(c) as soldiers in Northern Ireland were frequently targeted during riots and the fact that the soldiers were using plastic bullets allowed the Commission to deal with this case under Article 2(2)16. Central to the development of Article 2 here was the meaning of Article 2(2) where the Commission set out that Article 2(2) does not primarily define situations where it is permitted to kill but rather it defines situations where force is allowable under the Convention which may as an unintended outcome result in the loss of life17. The Commission had taken heavily from the proportionality and necessity principles developed in The Sunday Times v United Kingdom case stating that such force would only be permitted under the Convention when it was strictly proportionate to the legitimate aims outlined in Article 2(2) and such force would only be ‘necessary’ when there was
- A pressing social need;
- Whether the interference with the Convention was proportionate to the legitimate aim pursued; and
- The word ‘absolutely’ placed beside ‘necessity’ meant that the test to be applied would be a stricter more compelling test18.
In this particular case the Commission concluded that the force used was ‘absolutely necessary’ and strictly proportionate to the legitimate aim of quelling the riot. It is questionable whether the Commission’s conclusion that the force used by the soldiers was justifiable and necessary under Article 2(2) makes good law, in that it appears to be heavily influenced by the political context of Northern Ireland where soldiers were attacked under the guise of riots, but it is also questionable whether this particular instance should have been counted as riot highlighting the serious obstacle which can arise in such cases where the judicial organ refuses to scrutinise the domestic finding of fact. The case also highlights an unwillingness by the Commission to extend the scrutiny under the Convention to the planning and control of the operation by the senior officers in the army19.
The Commission was faced with the question on the use of lethal force in effecting a lawful arrest in the Kelly case20. They adopted the approach of accepting the Northern Ireland High Court finding of fact that the soldiers’ assumption was correct in suspecting that the youths in the car were likely to be terrorists, which meant it ignored evidence of a practice of joyriding in Belfast and the fact that soldiers had failed to factor in other alternatives, such as the possibility the youths had stolen the car21. As the Commission accepted the finding of fact this meant that the shooting could reasonably fall into the exceptions under Article 2(2)22. The Commission clearly chose to ignore the fact that soldiers in Northern Ireland have no powers of arrest on grounds of prevention of crime, but rather they may only arrest for specific crimes already committed23. This interpretation approach adopted by the Commission clearly marks a hesitant and conservative beginning to Article 2 on a number of grounds, as it had thinly examined the responsibilities of the State and its agents when engaged in lethal force operations24.
The Commission had failed to expand widely on the scope and nature of State obligations for the protection under Article 2 and was unwilling to articulate a specific standard of protection law enforcement agents must achieve. The Commission’s early jurisprudence seemed to permit a justification, fitting within the parameters of Article 2, for intent to shoot to kill or seriously injure as an add-on to the power of arrest25. However, it would seem rather an absurd reading of the law that the European ruling permitted the soldiers justifiably to open fire to stop the fleeing occupants whilst under domestic law the soldiers had no corresponding power to arrest the occupants in this case26.
Leaving aside the misreading of domestic law, the Commission appeared to set out a number of guiding principles in the early jurisprudence on Article 2:
- There is no personalised or tailored protection for life – the duty is general in nature and not special.
- The general obligation to protect life rests heavily on the existence and enforcement of positive law.
- The Convention system is loath to place undue burdens on the State – financial or administrative27.
- On receiving a complaint under Article 2 the Commission will examine the actions of the law enforcement agents in light of the fact of what the officers believed the facts to be at the time of the action. This approach was very narrow in that it failed to scrutinise all planning and actions taken in the lead-up to any security operation.
- The Commission approved the use of potentially lethal force to prevent the escape of persons who are not suspected of any specific crimes but where it may be reasonably assumed by the law enforcement officer that they are likely to become engaged in unspecific crimes at some point in the future28.
The early jurisprudence seems quite unusual in the sense that on a sliding scale the ‘perceived’ threat of a terrorist is somewhat increased if he tries to escape the law officer. It is unusual that the whole underlying basis which decides whether or not the force was lawful is based on a hypothesis and guesswork by the law enforcement officer. The officer may shoot if he has no other means at his disposal for apprehension. It seems that not only was this early law bad but it was also highly dangerous as tragically demonstrated in the Kelly judgement29.
1Current European Council Members: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and United Kingdom.
2F. Ni Aolain, The Politics of Force –- Conflict Management and State Violence in Northern Ireland (Belfast: Blackstaff Publishing, 2000), p.185.
3D. Gomien, D. Harris and L. Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe Publishing, 1996), p.42.
4F. Ni Aolain, “The Evolving Jurisprudence of the European Convention Concerning the Right to Life in Northern Ireland” (2001) 19 Netherlands Quarterly of Human Rights 21, pp.23–24.
5D. Harris, M. O’Boyle, E. Bates and C. Buckley, Harris, O’Boyle & Warbrick Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2009), pp.37–38.
6F. Ni Aolain op cit n 2, p.186.
7P. Van Dijk and G. Van Hoof Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Publications, 1998), p.297.
8J. Fawcett, The Application of the European Convention on Human Rights, (Oxford: Oxford University Press, 1987), p.37. See also: P. Ferguson “The Right to Life: some procedural requirements” 151 New Law Journal 6986, p.808.
9R. Clayton and H. Tomlinson The Law of Human Rights (Oxford: Oxford University Press, 2000). See also: R. Clayton and H. Tomlinson The Law of Human Rights – second annual updating supplement (Oxford: Oxford University Press, 2003). LCB v United Kingdom (1998) 27 EHRR 212, para 36.
10F. Ni Aolain, op cit n truth telling, pp.576–577.
11Ireland v United Kingdom (1978) 2 EHRR 25.
12X v Ireland No. 6040/73, 16 YB (1973).
13F. Ni Aolain op cit n 2, pp.192–193.
14Farrell v United Kingdom No 9013/80, 30 D & R 96 (1982). See also: B. Dickson, Human Rights and European Convention, (London: Sweet & Maxwell, 1997), pp.155–156.
15Stewart v United Kingdom, No 10044/82, 39 D & R 74 (1993), pp.169–170.
17F. Ni Aolain op cit n 1, pp.195–196.
18The Sunday Times v United Kingdom (1979) 2 EHRR 245. See also: F. Ni Aolain op cit n 2, pp.195–196.
19F. Ni Aolain, op cit n 2 above, p.196.
20Kelly v United Kingdom, Application No 17579/90, D & R 74 (1993) 139.
21Carswell J from the Northern Ireland High Court held in his judgement that due to the fact that the soldiers had the objectives of crime prevention and of making a lawful arrest, despite the high probability that death or serious injury would result from the use of force, the “kind of harm to be averted by preventing their escape was even greater …” and therefore was legitimate in this instance. A-G for Northern Ireland Reference (No 1 of 1975)  AC 105.
22 D. Harris, “The Right to Life under the European Convention on Human Rights” (1994) 1 Maastricht Journal of European & Comparative Law 122, p.136.
24F. Ni Aolain op cit n 4.
25J. Smith, “The Right to Life and the Right to Kill in Law Enforcement” 144 New Law Journal 354, p.354.
27F. Ni Aolain, op cit n 5, p.25.
28S. Joseph, “Denouement of the Deaths on the Rock: The Right to Life of Terrorists” (1996) 1 Netherlands Quarterly of Human Rights 5.