The right to life A guide to the implementation of Article 2 of the European Convention on Human Rights Douwe Korff COUNCIL CONSEIL OF EUROPE DE L’EUROPE The right to life A guide to the implementation of Article 2 of the European Convention on Human Rights Douwe Korff Human rights handbooks, No. 8 In the “Human rights handbooks” series: No. 1: The right to respect for private and No. 6: The prohibition of torture. A guide Directorate General of Human Rights family life. A guide to the implementation to the implementation of Article 3 of the Council of Europe of Article 8 of the European Convention on European Convention on Human Rights F-67075 Strasbourg Cedex Human Rights (2001) (2003) © Council of Europe, 2006 No. 2: Freedom of expression. A guide to the implementation of Article 10 of the Nº 7 : Les obligations positives en vertu de 1st edition, November 2006 European Convention on Human Rights la Convention européenne des Droits de (2001) l’Homme. Un guide pour la mise en œuvre Printed in Belgium No. 3: The right to a fair trial. A guide to de la Convention européenne des Droits de the implementation of Article 6 of the Euro- l’Homme (2006) (English edition in prepara- pean Convention on Human Rights (2001; tion) 2nd edition, 2006) No. 4: The right to property. A guide to the No. 8: The right to life. A guide to the implementation of Article 1 of Protocol implementation of Article 2 of the European No. 1 to the European Convention on Convention on Human Rights (2006) Human Rights (2001) No. 5: The right to liberty and security of No. 9: Freedom of thought, conscience and the person. A guide to the implementation religion. A guide to the implementation of of Article 5 of the European Convention on Article 9 of the European Convention on Human Rights (2002) Human Rights (in preparation) Douwe Korff is Professor of International Law at London Metropolitan University, London, United Kingdom. He represented the applicants in the cases of, inter alia, McCann, Caraher, Kelly and Shanaghan v. the United Kingdom. The opinions expressed in this publication are those of the author and do not engage the responsibility of the Council of Europe. They should not be regarded as placing upon the legal instruments mentioned in it any official interpretation capable of binding the governments of member states, the Council of Europe’s statutory organs or any organ set up by virtue of the European Convention on Human Rights. Contents Introduction . 5 “Disappearances” . 51 Article 2 . 6 Article 2 and the use of force in international armed conflict . 55 The nature, beginning and end of life . 8 The duty to protect life in other circumstances . 59 A right to live? Abortion and the right to life . 9 Duties of the State in relation to life-threatening environmental risks 59 A right to die? Suicide, assisted suicide and euthanasia . 15 Protection of individuals from violence by others . 66 Use of lethal force by agents of the State . 23 Prevention of suicide by prisoners . 73 Protecting the right to life “by law” . 25 Protection against medical malpractice . 75 Assessing compliance with the substantive requirements of Article 2 28 Extradition, expulsion and deportation . 79 The need to hold an ex post facto inquiry: the “procedural limb” of The death penalty . 85 Article 2 . 35 Article 2 and Protocols Nos. 6 and 13: abolition of the death penalty Deaths in custody . 41 85 Unresolved killings and allegations of collusion . 43 The death penalty and extradition . 91 3 COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS SERIES Article 2 of the European Convention on Human Rights Right to life 1. Everyone's right to life shall be protected by law. No- (a) in defence of any person from unlawful violence; one shall be deprived of his life intentionally save in the execu- tion of a sentence of a court following his conviction of a crime (b) in order to effect a lawful arrest or to prevent the for which this penalty is provided by law. escape of a person lawfully detained; 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of (c) in action lawfully taken for the purpose of quelling a force which is no more than absolutely necessary: riot or insurrection. 4 NO. 8: THE RIGHT TO LIFE Introduction This Handbook deals with the right to life, as guaranteed by interests at stake, and on the existence or absence of a European Article 2 of the European Convention on Human Rights (ECHR (or wider) consensus on the matter in hand. Such a consensus can or “the Convention”), and with the case-law of the European be gleaned from State practice (through a comparative study of Court of Human Rights (“the Court”) under that article. However, the laws and practices of the Council of Europe member States) or the Convention must be regarded as a whole, and the rights in the from international standards set out in other treaties (such as the Convention do not operate in isolation. On the contrary, certain Oviedo Convention on Human Rights and Biomedicine), or in basic concepts and approaches – like the concept of “law” and the resolutions adopted by the Committee of Ministers or the Parlia- tests of “legitimate aim”, “necessity”, “proportionality”, “non-arbi- mentary Assembly of the Council of Europe, or by United Nations trariness” and “fair balance” – run like red threads through the bodies. fabric of the Convention and the various rights in the Convention. In summarising the case-law of the European Court of Human There are also specific links between specific articles – e.g., in Rights (and where relevant, of the European Commission on respect of the right to life, between Article 2 (1) and Protocols Human Rights, abolished by Protocol No. 11 to the Convention) Nos. 6 and 13 as concerns the death penalty, and between Article 2 on Article 2, reference will therefore often be made to such general (2) and Article 15 of the Convention as concerns “deaths resulting issues, to other rights in the Convention, and to issues outside the from lawful acts of war”. Cases relating to one issue are further- Convention (such as such European or United Nations standards), more often brought under a variety of articles – as we shall note as reflected in that case-law. with regard to abortion and suicide in particular – and in such instances, the Court’s approach can only be understood by refer- This handbook is aimed, in particular, at judges and other legal ence to its rulings on all the articles involved. professionals such as prosecutors and practising lawyers. These Also important is the fact that the Convention usually does not need to understand the Convention and the case-law of the Court, impose rigid requirements on States. Rather, it sets certain in particular when the Convention is formally part of their minimum standards, while allowing States a certain discretion, a domestic legal systems – as is the case in most of the member “margin of appreciation”, in how to meet those standards. The States of the Council of Europe. Indeed, in law, the Convention in scope of this discretion, of this margin, depends on the nature of many European countries overrides ordinary domestic law. It is the right, on the nature of the issues and the importance of the therefore crucial for these legal practitioners to be aware of the 5 COUNCIL OF EUROPE HUMAN RIGHTS HANDBOOKS SERIES detailed requirements of the Convention. More specifically, it the supremacy of international law in general, and/or of interna- follows from the supremacy of the Convention that the interpreta- tional human rights law or the Convention in particular, the tion of the Convention by the European Court of Human Rights domestic courts must follow the European Court of Human should also be followed by the national courts in these countries. Rights’ interpretations of the Convention in their own jurispru- The Court’s judgments are not merely advisory or relevant to the dence. It is hoped that this handbook, together with the other respondent State in a given case only. Rather, in Council of Europe handbooks already issued, will help them do so. member States in which domestic law or jurisprudence proclaims Article 2 The first substantive right proclaimed by the Convention is the Convention [the prohibition of torture], it also enshrines one of right to life, set out in Article 2 and reproduced on p. 4. the basic values of the democratic societies making up the The right to life is listed first because it is the most basic human Council of Europe.1 right of all: if one could be arbitrarily deprived of one’s right to life, Because of this, the Court said, “its provisions must be strictly all other rights would become illusory. The fundamental nature of construed.”2 the right is also clear from the fact that it is “non-derogable”: it The second sentence of Article 2 (1) concerns the death penalty, may not be denied even in “time of war or other public emergency which will also be discussed separately, below, with reference to threatening the life of the nation” – although, as discussed later, the Protocols Nos. 6 and 13 to the Convention, which abolish that “deaths resulting from lawful acts of war” do not constitute viola- penalty in times of peace (Protocol No. 6) or in all circumstances tions of the right to life (Article 15 (2)). As the Court put it in its (Protocol No.