Article 2 of the European Convention on Human Rights

The first, and most obvious obligation under Article 2 is for the state, through its agents, to refrain from itself causing the deprivation of life, that is to say that domestic law must regulate the permissible use of lethal force by agents of the state. The court first considered the obligations imposed by Article 2 in the case of McCann and Others v United Kingdom brought by the relatives of three individuals shot by members of the SAS in Gibraltar. This case imposes two obligations to the State: • To conduct a full, open and transparent investigations into why the public bodies have taken a life. This should be public, independent and should involve members of the family of the victims (R (Amin) v S.O.S. Home Dept). • A positive duty to refrain from unlawful killing, better expressed as the "Duty of command, control and training" i.e. to ensure those who take the life (such as police marksmen) are highly trained and overseen at all times. If the state has not followed these obligations then it will be found to be an unlawful killing. Further reading of cases on the matter include: Kelly and Others v UK; Osman v UK; McKerr v UK; Jordan v UK; Shanaghan v UK; and R(Amin) v SOS Home Dept itself. ==Positive duty to protect life in certain circumstances==

Article 2 has been interpreted to include the positive obligation of the state to ensure preventive measures are taken to protect citizens. The leading case on the matter is Osman v UK which overruled the UK court's decision in Hill v West Yorkshire as to the fact that public bodies could not be held to be negligent if they had done all that would be reasonably expected of them to avoid immediate and real risk of life. Some cases establish further obligations for states. For instance, LCB v UK establishes a positive obligation for states to take "appropriate steps to safeguard the lives of those within their jurisdiction." Dangerous industrial activity therefore must be regulated, licensed and monitored. This was initially applied to the use of firearms. Although the court recognised the defensive benefits in gun ownership, it found a much larger threat in unchecked gun use. This case highlighted that Article 2 covers not only intentional killing but where force is used which may unintentionally kill. It was held to be a violation as chaotic gun use by the police force put the applicant's life at risk. == Preventative measures to protect life ==

The criteria of positive obligations now references as the Osman obligation, as established in Osman v UK, have been used in further cases as follows: • Akkoç v Turkey – The applicant's husband received harassment and death threats which were reported and ignored, and following this he was shot dead. There was a breach of the Osman criteria as authorities failed to satisfy their positive obligation to protect him when his life was at risk, violating Article 2 of the Convention. In detention cases there is a very high burden of proof on the State to show they took reasonable steps to protect prisoners in custody. • Saoud v France – In this case a mentally ill person was arrested with extreme force and held down for thirty minutes, causing his death by asphyxiation. The authorities had an obligation to protect his health as a person who had just been arrested, which includes providing medical care when required. Although there was found to be no breach, the court acknowledged the obligation of States to safeguard lives within the jurisdiction, by not denying healthcare which is made to be available to the general population. ==Duty to investigate suspicious deaths==

The Article 1 obligation to secure Convention Rights combined with the Article 3 obligation as set out in LCB to take 'appropriate steps' to protect life, creates a general duty to investigate unnatural deaths for the purposes of creating accountability, and deterring the breach of Article to right to life. The investigation must be effective, independent and prompt. The duty to investigate is even stronger where the death has occurred whilst a person was detained by the state. The leading authority on this is Salman v Turkey (2000). The facts of this case include an applicant who, reliant on Article 2, 3 and 13 of the Convention, claimed her husband died by torture in police custody and that she was unable to receive an effective remedy regarding the complaint. The applicants argued that the procedural delays that created obstacles to prosecution, breached Article 2's requirement that the right to life is protected by law. The case of Yasa v Turkey shows that a state of emergency does not excuse this obligation. The case of Hugh Jordan v UK states that the investigation can vary so long as it meets the strict requirements of effectiveness. Effectiveness thus creates certain criteria to be followed: • Investigators must be 'independent and impartial both at law and in practice' – in the case of Ergi v Turkey there was a breach because the investigators relied solely on evidence provided by the police who were being investigated. • Ramsahai v Netherlands – evidence provided by the colleagues of those being investigated does not satisfy the requirements for impartial investigations, even as in the case of Jordan v UK, the colleagues where supervised by independent body. The investigation must be fast and reasonably expedient, and legal aid may also need to be provided. • McKerr v UK – must allow for public scrutiny and provide punishments that would deter others. ==Use of force and exceptions in paragraph 2==

This constitutes the negative obligation of the state under the Convention. The states must, under Article 3, refrain from any random deprivation of life. This article, however, offers states a few exceptions to that rule. This constitutes a license to use force and is not to be construed as a license to kill. The exceptions are well defined and are subject to a very narrow interpretation by the Court. There are three conditions set by the court: • The use of force must be absolutely necessary; • It must be in defence of a third party; • It must be subject to a proper and effective investigation which is both impartial and independent. Key rulings in this matter are McCann and Others v United Kingdom, Nachova and others v Bulgaria concerns two men who were killed by military police in 1996, and it was alleged by the applicants that the State failed to protect life by law and there was inadequate investigation into the event, therefore breaching Article 2. There was held to be a violation of Article 2 as the deadly force used was not "absolutely necessary" as the two men posed no threat to life and therefore the force used with firearms to arrest was grossly excessive. ==Beginning of life==

In 1980, the Court ruled out the foetal right to sue the mother carrying the foetus. In Paton v. United Kingdom, it was decided that the life of the foetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman" and that a foetus does not have its own rights until it has a separate existence from its mother when it is born. The facts of the case include the applicant who sought an injunction to prevent his pregnant wife from having an abortion, and following the abortion being carried out he complained of a breach of Article 2 of the Convention, for the violation of his unborn child's right to life. The court, as it usually does in such unsettled matters, refrained from clarifying the issue further. ==End of life==

Euthanasia and assisted death Euthanasia is the act of deliberately ending a person's life to relieve suffering. The only countries that have legalised euthanasia are Spain, Belgium, Luxembourg, the Netherlands, Canada and Colombia. Some countries provide legal access to assisted dying, which is completely voluntary and under the control of the dying person rather than a doctor; these countries include: New Zealand (for terminally ill adults), Australia, Canada, Switzerland (however euthanasia is illegal) and some states in the USA including Oregon, Washington and California. In the United Kingdom, the Suicide Act 1961 legalised the attempt to take one's own life. However, it remains an offence to assist the suicide of another person. Despite assisted suicide being illegal in the UK, the reason there was held to be no violation of Article 2 is because this right safeguards lives and does not confer any right to die. The applicants alleged a breach of Articles 2, 3 and 8 of the Convention. Following the High Court's declaration in January 2021 that it would not be unlawful for her hospital to withdraw treatment, the applicant obtained an interim measure under Rule 39 of the Rules of Court (an urgent measure which applies where there is imminent risk of irreparable damage: Paladi v Moldova). The applicant's complaints were held inadmissible as her complaint of an Article 2 breach was manifestly ill-founded. == Case law ==

Abortion Article 2 does not recognise an absolute right to life. In abortion cases there is a wide margin of appreciation because of the lack of consensus in Europe. In the case of Paton v United Kingdom it was established that if Article 2 were to include in its protection the life of a foetus, then abortion would have to be prohibited even in life-threatening circumstances. • H v Norway – abortion of 12-week-old foetus for social reasons, to prevent putting the women in a "difficult situation in life" (literal interpretation of Norwegian statute) was not a breach, again due to lack of consensus in Europe on the issue of abortion. The case was brought by the expectant father who did not want the abortion carried out. • VO v France – as a result of medical negligence damaging the amniotic sac, a termination of the pregnancy was required. The same margin of appreciation doctrine was used as in VO v France, with specific reference to lack of European consensus thus necessitating a wide margin of appreciation. This prohibition applies to all States Parties to the Convention, including those which have not ratified Protocol 13. States Parties are also prohibited from extraditing individuals who risk being sentenced to death. Thus the force used in firing plastic bullets killing a 13-year-old boy was proportionate. • Gulec v Turkey – a crowd of several thousand throwing missiles at security forces and damaging property was also deemed to be a riot. There was however a breach here as the McCann obligations still apply regarding proportionality. So the security forces had fired shots at the ground near the rioters to scare them off. Ricochet bullets killed the applicant's son. The breach was found in that the authorities had not provided any riot equipment to the security forces even though a state of emergency was declared, thus it was expected that violence would occur. The operation had not been planned so as to minimize risk to the civilians. • X v Belgium – A police officer shot an innocent bystander in the course of a riot. He had no authorisation to use the weapon, thus his actions were not lawful, therefore there was a clear breach. ==See also==