Topic 7 - Right to Life

Question 1

The Right to Life in ECHR

Answer 1

• Article 2 ECHR
  o Right to life must be protected
  o Negative obligation – States have duty not to deprive someone of their life
  o Positive obligation – duty to take necessary measures to ensure effective protection from state and non-state actors
  o Petersen - Although originally designed as a negative right, aimed at preventing interference by State authorities, it has evolved most of its normative strength as a positive State duty of protection.

Question 2

Positive obligation of the right to life - laws prohibiting the taking of life

Answer 2

o Withdrawal of life saving treatment v euthanasia
 Lambert v France
* Doctor withdrew nutrition and hydration of individual in vegetative coma for 5 years after car accident
* Parents/siblings argued article 2 violated
* Wife supported withdrawal
* ECtHR – states left to determine what is best (margin of appreciation). Since France have clear legal framework specifying in which circumstances the right to life can be derogated from, they have fulfilled their positive obligation and no breach to article 2
 Positive obligation fulfilled if there is clear legislative framework regulating withdrawal, there are satisfactory decision making processes, there are appropriate remedies
 Distinction from euthanasia as it is positive act of intentional life taking – consensual euthanasia only allowed in some states
 Pretty v UK – there is no right to die so prohibiting assisted suicide is not a violation of article 8

Question 3

Positive obligation - regulation of activities that may endanger life

Answer 3

o Necessary framework to outline and limit circumstances when deprivation of life may be justified
o Regulation of framework of lethal force used by police
o Regulation of dangerous activities to minimise threat to life e.g. nuclear plants, roads, public places

Question 4

Positive obligations - protection against criminal activities of other parties

Answer 4

o Osman v UK
 Set out legal standard to guide public authorities on the positive obligation to right to life.
 Applicants complaining of failure of UK police to prevent serious injury caused to one of applicants but also the death caused by that individual to applicant’s husband and father by the former teacher.
 Former teacher harassed one of his pupils. Resulted in death of husband and father. Family made complaints to the police but police was unable to arrest teacher on basis of presumption of innocence as did not have sufficient evidence.
 Complaint brought before ECtHR on basis police had failed to comply with Article 2 obligations and obligation to take all necessary measures to protect right to life even from acts of private individuals.
 Court set out standard – there will be responsibility under the convention if domestic authorities knew or ought to have known that real and immediate threat to life existed.
 Court held it was reasonable for the police to not proceed with the arrest due to lack of evidence. No violation of Art 2 on the facts.
 Court recognised margin of appreciation is more limited regarding right to life than other rights
o Gongadze v Ukraine
 Osman standard extended to protection from criminal activity of a wide range of persons
 Victim was refused police protection and investigation despite killings of 18 other political journalists. Victim found dead one month later
 ECtHR concluded Ukrainian authorities had violated their obligations under Article 2 ECHR
o Opuz v Turkey
 Domestic abuse cases
 Turkey put forward argument that police were justified in not taking action as would be interfering with right to private and family life. Distinction between public/private sphere.
 ECtHR applied Osman standard to hold Turkey accountable for violating Article 2 obligations for failing to take action when there was complaints to the police about domestic violence. If the police had taken action, this would not have interfered with other rights under ECHR
o Oneryildiz v Turkey
 Methane explosion caused landslide. 39 people living near landslide were killed. Was Turkey responsible under Convention for these deaths?
 ECtHR held authorities were responsible for failing to meet their positive obligations under right to life as allowed site to operate despite significant health breaches. Failed to inform residents living next to waste collection site of the risks involved.
 A responsibility occurred for violation of Article 2.
 Limitation of state’s resources cannot be sued to justify a state not taking necessary action to protect right to life.
o Cyprus v Turkey
 Inter-state case relating to complaints about Turkish actions in 1974 and occupation of Cyprus. Government of Cyprus complained about the disappearance of persons. Complaint that Turkey had violated its negative and positive obligations of Article 2.
 ECtHR did not have sufficient evidence to draw conclusion that people disappeared had been killed and if have died, the responsibility lies with Turkey.
 ECtHR held that it could not conclude that turkey had violated its negative obligations under article 2.
 However ECtHR held Turkey accountable for failing to uphold positive obligations and failure to carry out effective investigations into the disappearance of these individuals.
 ECtHR made a distinction between negative and positive obligations. Can still be held accountable for positive obligations even if no violation of negative.

Question 5

Positive obligations - protection of persons in detention

Answer 5

o Paul and Audrey Edwards v UK
 ECtHR held UK accountable for death of the applicant’s son who was killed by another inmate as it became evident that authorities had failed to pass on important information on the murderer to prison guards which led to the inmates death. Violation of Article 2.
o Tagaveya v Russia
 Osman standard was extended not only to protect individual from criminal acts of another individual but extended to give public a protection from terrorist threats. Public authorities under positive obligation to protect public from terrorism

Question 6

Positive obligations - healthcare/social services

Answer 6

o Calvelli and Ciglio v Italy
 states have an obligation to put up the regulatory framework to regulate how hospitals operate to ensure they take adequate measures for the protection of patients. There is an expectation for a regulatory framework to exist but if death occurs when a framework exists it will not necessarily be the responsibility of the states. Important to consider facts of individual cases.
 No violation in this case
o Shelley v UK
 Matters of healthcare policy are within the margin of appreciation of domestic authorities who are best placed to assess priorities, use of resources and social needs
o Nencheva v Bulgaria
 15 children with disabilities died as not necessary resources to provide food and medicine. State argued that did not have resources to prevent deaths. This not accepted by ECtHR and found violation of positive obligations of Art 2
o Powell v UK
 acts and omissions on health care policy may engage a breach of positive obligations of Art 2 ECHR
o Hathaway et al - The failure of a State to take at least minimal steps to protect its population from the spread of COVID-19 arguably violates the right to life of those who become infected and die. The precise scope of this obligation is not clear, however. It likely does not mean that States are required to establish lockdown measures or mandatory masking policies. But it likely does mean that States at least have a duty to not knowingly contribute to the spread of the virus – for instance, States should ensure first responders and health care workers have access to necessary personal protective equipment (especially masks) to protect themselves and those they serve.

Question 7

Positive obligation - procedural duty

Answer 7

 Duty for effective, impartial, independent and prompt investigation into circumstances of death by state agents
 Cyprus v Turkey – can be found to be in violation of procedural duty even if there is no violation of substantive rights

Question 8

Positive obligation - unborn child

Answer 8

o H v Norway
 voluntary abortion of 14-week foetus not a breach of art 2 when pregnancy, birth or caring for the child may place woman in difficult situation in life
o Boso v Italy
 Abortion within 12 weeks of pregnancy allowed to save woman’s life
o Evans v UK
 IVF embryos had to be destroyed as father had withdrawn consent – no breach of art 2 – no consensus of member states of ECHR on when life begins and hence states enjoy a margin of appreciation

Question 9

Right to life - extraterritoriality

Answer 9

o Human rights apply both in peacetime and wartime – but uncertainty regarding deprivation of life during war and relationship between article 2 and international humanitarian law which has less stringent rules on the deprivation of life
o Al-Skeini v UK
 6 Iraqis killed by British forces in Iraq in Basrah – claims under art 2 & 3; 5 killed during patrols – military operations; 1 killed in detention
 HoL: effective control established only in relation to the man in detention
 Iraq not an ECHR party
 ECtHR: UK exercised governmental powers and administration over that part of Iraq, including maintenance of law and order
 So UK exercised effective control over the 5 individuals killed during patrol
 ‘Gentlemen at home, hoodlums elsewhere’ (Judge Bonello)

Question 10

Is duty to investigate death a disproportionate/impossible standard?

Answer 10

o Breckell v UK
 Does state have obligation to carry out investigations of death that occur many years ago. Court has to consider resources of states to carry out an effective investigation.
 Found that initial investigation carried out 24 years ago was ineffective.
 ECtHR strike balance between need to protect both substantive and procedural aspects of right to life but also respect limited margin of appreciation states enjoy under right to life and constraints that occur due to limited resources of states to carry out effective investigations.
 Margin of appreciation narrowly construed regarding right to life
o UK investigations into abuse in Iraq
 UK has relied on limited resources to block investigations into abuse carried out by British troops in Iraq – cannot use limited resources to evade accountability of human rights violations
 UK attempted to create procedure through Service Police Legacy Investigations in which Complaints dismissed if they related to lower-level mistreatment, if there were evidential deaths, lapse of time since violation occurred etc – grounds put forward to stop investigations into alleged deaths caused by British troops – does this comply with procedural duty under Article 2 to carry out effective investigations?
 UK did not derogate from art 2 in the context of Iraq and hence the investigatory duty under art 2 still applies
 Overseas Operations Bill – (became law in 2021) in response to extra-territorial jurisprudence of ECtHR, UK attempted to block human rights complaints based on ECHR and HRA brought before domestic courts regarding violations by British troops abroad – only British nationals can bring claim relating to British troops abroad before domestic courts, not foreigners. This was an attempt to alleviate British troops from their obligations when operating abroad
 Al Saaddoon - authorities under a duty only to investigate as is reasonable under the circumstances – need to prioritise in order to manage the influx of allegations for abuses in Iraq – places burdens on victims/claimants – misreads requirements for effective investigation as developed by ECtHR
 Stubbins Bates - The divergence between domestic and ECHR jurisprudence has led to the premature closure of MOD investigations without the requisite public scrutiny. At this writing, the government has introduced the Overseas Operations (Service Personnel and Veterans) Bill, which attempts inter alia to establish a presumption against prosecution for crimes allegedly committed more than five years ago by members of the armed forces deployed overseas. This is a significant concern for future practice; and raises questions as to the willingness of UK authorities to conduct a genuine investigation into war crimes allegedly committed against detainees in British military custody in Iraq, which are currently subject to a preliminary examination by the ICC Office of the Prosecutor.

Question 11

Death penalty

Answer 11

o Was allowed when ECHR drafted – now prohibited
o Protocol 6 – prohibition of death penalty in peacetime
o Protocol 13 – prohibition of death penalty in way
o Al Saadoon – death penalty cannot be imposed under any circumstances
o Finogenov v Russia
 950 hostages taken by terrorists at the theatre. Authorities had to apprehend the terrorists by storming the theatre and as a result many died. ECtHR reaffirmed that states have more limited margin of appreciation concerning Article 2 but did take into consideration the pressure that the authorities were under where they had to act quickly to ensure rescue of hostages. Even though the use of gas was proportionate, the lack of coordination following the storming of theatre and lack of medical assistance meant state had not sufficiently fulfilled its positive obligations under Article 2
o Tagayeva v Russia
 1,000 hostages held in a school in Beslan by Chechen terrorists – breach of art 2 as state authorities had information about real and immediate risk to life and took inadequate measures to protect life – also, force used which killed 330 people, including 180 children, was disproportionate
o McCann v UK
 3 IRA members shot dead by SAS soldiers in Gibraltar – thought to have a remote control which would be used to detonate a bomb in a car parked in a public space. Army opened fire killing the three individuals. This turned out to not be the case. ECtHR held UK did not violate its Article 2 obligations because of genuine belief that persons concerned were about to commit a serious crime. However ECtHR found violation on basis that force used was disproportionate as was intended to kill them rather than wound them. Failure in preparation as they could have been arrested earlier. ECtHR found Uk had violated obligations under Article 2.
o Armani da Silva
 Following London terrorist attack in 2005. Police following suspected terrorist. Got identity of individual wrong so were following the wrong person. Individual entered the underground and police were convinced he had a bomb he was going to detonate. Police opened fire, killing him. Turned out to be innocent man. ECtHR found there was no violation of Article 2 as under circumstances, police held a genuine and reasonable belief that this individual was about to carry out a criminal act.
o Andronicou and Constantinou v Cyprus
 man held hostage and threatened to kill his fiancée. Police broke into apartment where she was kept and opened fire, killing both of them. ECtHR held that force used was not disproportionate so was no breach of Article 2
o Isaak v Turkey; Solomou and Others v Turkey
 concerned peaceful demonstrators protecting against Turkey’s occupation of Cyprus. One person tried to put down Turkish flag and was shot dead. Another brutally killed by group of individuals with the police watching and not doing anything to prevent those attacking. State argued it was necessary in order to quell the riot. ECtHR held use of force was not necessary under the circumstances so was a violation of Article 2

Question 12

Human Rights Committee (ICCPR) on right to life

Answer 12

o General Comment 36 (2018)
 Right to life not to be construed narrowly
 Shows how judgments of ECtHR have influenced other human rights bodies such as Human Rights Committee
 Significant legal shifts that we see over time – interpretation of human rights evolving to an extent where it may be able to include deaths for environmental change or pollution for example
o Toussaint v Canada
 Exclusion of undocumented immigrant from federal health care system was breach of Article 6 ICCPR