1
Right to Life (Art 2)
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally [...].
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when
it results from the use of force which is no more than absolutely necessary:
(a) In defence of any person from unlawful violence;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully
detained; or
(c) In action lawfully taken for the quelling of a riot or insurrection.
State Obligations
To Protect By Law The Right To Life
Lethal Use of Force by Non-State Actors
Obligation to take preventative measures to protect
States must “take preventative operational measures to protect an individual whose life is
at risk from the criminal acts of another” (Osman), but a failure to do this will not be a
violation if incurring such an obligation would impose an impossible or disproportionate
burden on the authorities (Osman; Choreftakis). This is judged with a view to whether the
authorities exercised their powers in a way that “fully respects the due process and other
guarantees which legitimately place restraints on the scope of their action to investigate
crime and bring offenders to justice” (Osman).
Knowledge requirement
The positive obligation will only arise if it is established that the authorities “knew or ought
to have known at the time of the existence of a real and immediate risk to the life of an
identified individual or individuals from the criminal acts of a third-party and that they
failed to take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk” (Mastromatteo; Edwards).
“An Obligation of Means, Not Result”
“In circumstances where the authority have become aware of the [above] risk … and have
responded to the identified risk by taking appropriate [preventative] measures …, the fact
that such measures may nonetheless fail to achieve the desired result is not in itself capable
of justifying the finding of a violation” (Kurt). It is acknowledged as part of this that the
State must assess the adequacy of both their risk assessment and measures chosen (Kurt).
If the State “did not do all that could be reasonably expected of them to avoid a real and
immediate risk of life of which they have or ought to have knowledge”, that is sufficient
(Osman) — but you cannot apply hindsight to this (Kurt).
Environmental or Industrial Disasters
, 2
Industrial Activities (Release of Toxic Substances, etc)
The State must “govern the licensing, setting up, operation, security and supervision of the
[dangerous] activity and must make it compulsory for all those concerned to take practical
measures to ensure the effective protection of citizens whose lives might be endangered by
particular risks” (CoE Materials on Article 2, [38]). Particular emphasis is placed on the
public’s right to information (Oneryildiz; Budayeva; Kolyadenko). As to what measures the
State chooses, that falls within a wide margin of appreciation (Budayeva; Vilnes; Brincat).
Natural Disasters
Where an individual’s life is under an imminent and clearly identifiable threat from a
natural disaster, the State’s positive obligation is engaged (Budayeva; M Ozel). The State
must consider whether, in the circumstances, it did “all that could reasonably be required
of it to prevent the applicant’s life from being avoidably put at risk” (LCB).
Healthcare
General Obligations
States must “make regulations compelling hospitals to adopt appropriate measures for the
protection of patients’ lives” (Calvelli and Ciglio; Vo), and they must also “ensure the
effective functioning of that regulatory framework” (Lopes de Sousa Fernandes). To have
violated A2, the framework must “have operated to the patient’s detriment” (Lopes de
Sousa Fernandes). It may also violate if it systemically fails to prevent fatal medical
negligence, but not where it does on an individual level (Powell; Dodov; Kudra).
Specific Obligations
There are (at least: the door is open to more) two instances in which a specific obligation
might be engaged in this context:
Life threatening treatment:
1. Where an individual’s life was knowingly put in danger by denial of access to
life-saving treatment emergency treatment (Senturk and Senturk).
2. Where a systemic or structural dysfunction in hospital services resulted in a
deprivation of life-saving emergency treatment “where the authorities knew or
ought to have known about that risk and failed to take the necessary measures to
prevent that risk from materialising” (Aydogdu).
Suicide risk:
3. Operational obligation to prevent suicide from high-risk patients, whether
sectioned or not: Rabone (2012).
4. Operational obligation to prevent suicide from high-risk prisoners and other
detainees: Savage (2008).
Lopes de Sousa Fernandes lays out a 4-part test for this at [191]-[196]:
, 3
(1) Did the provider’s acts/omissions go beyond “mere error or negligence” in that
emergency medical treatment was denied despite full knowledge of the
life-threatening risk present?
(2) Was the impugned dysfunction “objectively and genuinely identifiable as systemic
or structural”?
(3) Was there “a link between the dysfunction and the harm sustained”?; and
(4) Did the dysfunction result from “the failure of the State to meet its obligation to
provide a regulatory framework in the broader sense”?
Abortion / Embryo Storage
The “issue of when the right to life begins comes within the margin of appreciation which
[the Court] generally considers that States should enjoy in this sphere” (Vo).
In Evans v UK the Grand Chamber held that “embryos did not have independent rights or
interests [in English law] and could not claim a right to life under Article 2”.
Euthanasia
Article 2 does not confer any right to die, whether at the hands of a third person or with the
assistance of a public authority (Pretty). In fact, States have a positive power to prevent an
individual from taking their own life if the decision was not taken freely and with full
understanding of what was involved (Haas).
Withdrawal of Life-Sustaining Treatment
Strasbourg has acknowledged a “consensus as to the paramount importance of the
patient’s wishes in the decision-making process, however expressed” and affords states a
margin of appreciation as to how to manage this issue. Such a margin is “not unlimited and
[the Court] reserves the power to review whether or not the State has complied with its
obligations under Article 2” (Lambert and Ors).
In two cases against the UK, the ECtHR drew up a list of factors to consider (Gard; Parfitt):
(1) The existence of an ECHR-compliant regulatory framework;
(2) Whether account was taken of A’s previously expressed wishes;
(3) Whether account was taken of the wishes of those close to A;
(4) The views of other medical personnel;
(5) The possibility of approaching the courts to settle what would be in the patient’s
interests.
, 4
The Prohibition of Intentional Deprivation of Life
The Death Penalty
The death penalty has been forbidden in all circumstances: Al Saadoon and Mufdhi.
Extradition / Expulsion
It is a violation of Art 2 to extradite or deport any individual to another State where
substantial grounds have been shown for believing that they would face a real risk of being
subjected to the death penalty there: Al-Nashiri; FG.
Other circumstances may also make extradition disproportionate:
● Learning difficulties and depression, as in Wyrebek (2023).
State Use of Force
The Framework Obligation
The State must “put in place an appropriate legal and administrative framework defining
the limited circumstances in which law enforcement may use force and firearms, in the
light of the relevant international standards” (Giuliani and Gaggio; Makaratzis).
● Must make recourse to firearms a result of a careful assessment (Giuliani and
Gaggio);
● Must make recourse to firearms proportionate to threat or offence (Nachova and
Ors);
● Must secure adequate and effective policing safeguards against arbitrariness, abuse
of force, and avoidable accidents (Giuliani and Gaggio; Makaratzis).
Permitted Uses of Force
The text of Article 2(2) provides a list of instances in which it is permitted to use force
which “may result, as an unintended consequence, in the deprivation of life” so long as the
force was “no more than absolutely necessary for the achievement of one of those
purposes” (McCann and Ors).
The Court has recognised that in specific contexts this test may have to be used more
leniently where States must apply potentially lethal force to particularly sensitive
situations (Tagayeva and Ors). Tagayeva provides two sets of rules for two instances:
Fighting Terrorism
“The absolute necessity test formulated in Article 2 is bound to be applied with
different degrees of scrutiny, depending on whether and to what extent the
authorities were in control of the situation and other relevant constraints inherent
in operative decision-making in this sensitive sphere” (481).
Hostage Rescue
Right to Life (Art 2)
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally [...].
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when
it results from the use of force which is no more than absolutely necessary:
(a) In defence of any person from unlawful violence;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully
detained; or
(c) In action lawfully taken for the quelling of a riot or insurrection.
State Obligations
To Protect By Law The Right To Life
Lethal Use of Force by Non-State Actors
Obligation to take preventative measures to protect
States must “take preventative operational measures to protect an individual whose life is
at risk from the criminal acts of another” (Osman), but a failure to do this will not be a
violation if incurring such an obligation would impose an impossible or disproportionate
burden on the authorities (Osman; Choreftakis). This is judged with a view to whether the
authorities exercised their powers in a way that “fully respects the due process and other
guarantees which legitimately place restraints on the scope of their action to investigate
crime and bring offenders to justice” (Osman).
Knowledge requirement
The positive obligation will only arise if it is established that the authorities “knew or ought
to have known at the time of the existence of a real and immediate risk to the life of an
identified individual or individuals from the criminal acts of a third-party and that they
failed to take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk” (Mastromatteo; Edwards).
“An Obligation of Means, Not Result”
“In circumstances where the authority have become aware of the [above] risk … and have
responded to the identified risk by taking appropriate [preventative] measures …, the fact
that such measures may nonetheless fail to achieve the desired result is not in itself capable
of justifying the finding of a violation” (Kurt). It is acknowledged as part of this that the
State must assess the adequacy of both their risk assessment and measures chosen (Kurt).
If the State “did not do all that could be reasonably expected of them to avoid a real and
immediate risk of life of which they have or ought to have knowledge”, that is sufficient
(Osman) — but you cannot apply hindsight to this (Kurt).
Environmental or Industrial Disasters
, 2
Industrial Activities (Release of Toxic Substances, etc)
The State must “govern the licensing, setting up, operation, security and supervision of the
[dangerous] activity and must make it compulsory for all those concerned to take practical
measures to ensure the effective protection of citizens whose lives might be endangered by
particular risks” (CoE Materials on Article 2, [38]). Particular emphasis is placed on the
public’s right to information (Oneryildiz; Budayeva; Kolyadenko). As to what measures the
State chooses, that falls within a wide margin of appreciation (Budayeva; Vilnes; Brincat).
Natural Disasters
Where an individual’s life is under an imminent and clearly identifiable threat from a
natural disaster, the State’s positive obligation is engaged (Budayeva; M Ozel). The State
must consider whether, in the circumstances, it did “all that could reasonably be required
of it to prevent the applicant’s life from being avoidably put at risk” (LCB).
Healthcare
General Obligations
States must “make regulations compelling hospitals to adopt appropriate measures for the
protection of patients’ lives” (Calvelli and Ciglio; Vo), and they must also “ensure the
effective functioning of that regulatory framework” (Lopes de Sousa Fernandes). To have
violated A2, the framework must “have operated to the patient’s detriment” (Lopes de
Sousa Fernandes). It may also violate if it systemically fails to prevent fatal medical
negligence, but not where it does on an individual level (Powell; Dodov; Kudra).
Specific Obligations
There are (at least: the door is open to more) two instances in which a specific obligation
might be engaged in this context:
Life threatening treatment:
1. Where an individual’s life was knowingly put in danger by denial of access to
life-saving treatment emergency treatment (Senturk and Senturk).
2. Where a systemic or structural dysfunction in hospital services resulted in a
deprivation of life-saving emergency treatment “where the authorities knew or
ought to have known about that risk and failed to take the necessary measures to
prevent that risk from materialising” (Aydogdu).
Suicide risk:
3. Operational obligation to prevent suicide from high-risk patients, whether
sectioned or not: Rabone (2012).
4. Operational obligation to prevent suicide from high-risk prisoners and other
detainees: Savage (2008).
Lopes de Sousa Fernandes lays out a 4-part test for this at [191]-[196]:
, 3
(1) Did the provider’s acts/omissions go beyond “mere error or negligence” in that
emergency medical treatment was denied despite full knowledge of the
life-threatening risk present?
(2) Was the impugned dysfunction “objectively and genuinely identifiable as systemic
or structural”?
(3) Was there “a link between the dysfunction and the harm sustained”?; and
(4) Did the dysfunction result from “the failure of the State to meet its obligation to
provide a regulatory framework in the broader sense”?
Abortion / Embryo Storage
The “issue of when the right to life begins comes within the margin of appreciation which
[the Court] generally considers that States should enjoy in this sphere” (Vo).
In Evans v UK the Grand Chamber held that “embryos did not have independent rights or
interests [in English law] and could not claim a right to life under Article 2”.
Euthanasia
Article 2 does not confer any right to die, whether at the hands of a third person or with the
assistance of a public authority (Pretty). In fact, States have a positive power to prevent an
individual from taking their own life if the decision was not taken freely and with full
understanding of what was involved (Haas).
Withdrawal of Life-Sustaining Treatment
Strasbourg has acknowledged a “consensus as to the paramount importance of the
patient’s wishes in the decision-making process, however expressed” and affords states a
margin of appreciation as to how to manage this issue. Such a margin is “not unlimited and
[the Court] reserves the power to review whether or not the State has complied with its
obligations under Article 2” (Lambert and Ors).
In two cases against the UK, the ECtHR drew up a list of factors to consider (Gard; Parfitt):
(1) The existence of an ECHR-compliant regulatory framework;
(2) Whether account was taken of A’s previously expressed wishes;
(3) Whether account was taken of the wishes of those close to A;
(4) The views of other medical personnel;
(5) The possibility of approaching the courts to settle what would be in the patient’s
interests.
, 4
The Prohibition of Intentional Deprivation of Life
The Death Penalty
The death penalty has been forbidden in all circumstances: Al Saadoon and Mufdhi.
Extradition / Expulsion
It is a violation of Art 2 to extradite or deport any individual to another State where
substantial grounds have been shown for believing that they would face a real risk of being
subjected to the death penalty there: Al-Nashiri; FG.
Other circumstances may also make extradition disproportionate:
● Learning difficulties and depression, as in Wyrebek (2023).
State Use of Force
The Framework Obligation
The State must “put in place an appropriate legal and administrative framework defining
the limited circumstances in which law enforcement may use force and firearms, in the
light of the relevant international standards” (Giuliani and Gaggio; Makaratzis).
● Must make recourse to firearms a result of a careful assessment (Giuliani and
Gaggio);
● Must make recourse to firearms proportionate to threat or offence (Nachova and
Ors);
● Must secure adequate and effective policing safeguards against arbitrariness, abuse
of force, and avoidable accidents (Giuliani and Gaggio; Makaratzis).
Permitted Uses of Force
The text of Article 2(2) provides a list of instances in which it is permitted to use force
which “may result, as an unintended consequence, in the deprivation of life” so long as the
force was “no more than absolutely necessary for the achievement of one of those
purposes” (McCann and Ors).
The Court has recognised that in specific contexts this test may have to be used more
leniently where States must apply potentially lethal force to particularly sensitive
situations (Tagayeva and Ors). Tagayeva provides two sets of rules for two instances:
Fighting Terrorism
“The absolute necessity test formulated in Article 2 is bound to be applied with
different degrees of scrutiny, depending on whether and to what extent the
authorities were in control of the situation and other relevant constraints inherent
in operative decision-making in this sensitive sphere” (481).
Hostage Rescue
