Article 2 of the European Convention on Human Rights protects the right to life.

The article contains

a limited exception for the cases of lawful executions and sets out strictly controlled circumstances
in which the deprivation of life may be justified. The exemption for the case of lawful executions has
been subsequently further restricted by Protocols 6 (restriction of the death penalty to war time)
and 13 (abolition of the death penalty), for those parties who are also parties to those protocols.[1]

The European Court of Human Rights has commented that "Article 2 ranks as one of the most
fundamental provisions in the Convention".[2] The obligations on a State under Article 2 consist of
three principal aspects: the duty to refrain from unlawful deprivation of life; the duty to investigate
suspicious deaths; and in certain circumstances, a positive obligation to take steps to prevent
avoidable losses of life.

Deprivation of life

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. 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."
Makaratzis v Greece pushes these obligations further, so that the state must have mechanisms to
deter offenses against people. This was initially applied to the use of firearms. Although the court
recognized the defensive benefits in gun ownership, it found a much larger threat in unchecked gun
use.

Duty to investigate suspicious deaths

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).

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, Makaratzis v Greece, and
Nachova and others v Bulgaria.

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".[3]

The key ruling was Vo v France where the court ruled that due to lack of consensus over the matter
in the member states, the court allows a margin of appreciation (usually reserved only for the
derogable rights) to each state to determine whether a foetus falls under the protection of article 2.

The court, as it usually does in such unsettled matters, refrained from clarifying the issue further.
End of life

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.[4]

In the United Kingdom, the Suicide Act 1961 legalised the attempt to take one's own life, but it kept
illegal the assistance of another's death.[5]

Case law

This section is in list format but may read better as prose. You can help by converting this section, if
appropriate. Editing help is available. (April 2022)

1. Legal and administrative framework

a. Requirement for laws prohibiting the taking of life.

b. Euthanasia, pretty much left to the margin of appreciation.

c. No right to die as stated in Pretty v UK 2000.

d. Amnesties of criminals – Dujardin v France 1991 – an amnesty is not a breach unless it is part of a
systematic effort to prevent prosecution and punishment for murder...

e. Regulation of activities posing risk to life – Nachova v Bulgaria; MP were allowed to use lethal
force when arresting military personnel.

- Oneryildiz v Turkey – dangerous industrial activity must be regulated and licensed and monitored.

2. Law enforcement machinery

Calvelli and Ciglio v Italy 2002 – Police delay in investigation meant time restrictions is taking civil
action against negligent doctor, thus there was a breach on the part of the state for its failure to
properly investigate.

Vo v France 2004 – Involuntary abortion by a doctor, NO breach because the law did not encompass
a 21-week-old foetus, whilst an amnesty applied to the other offense. FURTHER, the victim had
recourse to civil litigation, which was deemed sufficient.

Preventive measures to protect life

LBC v UK –‘appropriate steps’ to protect life principle... LCB had leukaemia, which she blamed on her
father's presence at nuclear testing site, the UK had failed to inform them of the risks...held, and
there was No liability because the injuries complained of were not reasonably foreseeable at the
time with the information they had.
Oneryildiz v Turkey, the LCB obligation to take appropriate steps applies in the context of any
activity, public or private in which the right to life is at risk...especially industrial activities dangerous
by nature.

Authorities knew or ought to have known of the risks and should have taken measures, which they
did not thus breaching Article 3. The LBC obligation applies more commonly to criminal cases.

In Osman v UK 1998 – THE OSMAN OBLIGATION:

The Osman criteria in action;

Gongadez v Ukraine 2005 – The Court found a breach of the duty to take preventive measures when
they did nothing to prosecute the murders police officers for a killing of an anti-government critic

Akkoc v Turkey – failure by the authorities to take any steps against those threatening to kill my
akkoc breached the osman criteria due to the specific nature of the threats and the fact that the
authorities were well aware of them after petition.

The OSMAN obligation also applies to persons in detention

Edward v UK 2001 – a prisoner killed by his cellmate who was mentally ill. Failure to pass on
information regarding murderers state of mind and also failure to take any steps to protect Edward.
In detention cases, there is a very high burden of proof put on the state to show they took
reasonable steps to protect prisoner in their custody.

Keenan v UK 2001 – suicidal prisoners must also be watched and preventive steps taken for their
care.

Saoud v France 2007 – a mentally ill person died whilst being arrested. Extreme force was used to
pin him down for 30 minutes which caused his death by asphyxiation, the technique used was
known to be dangerous and no test was done on him despite the presence of a doctor.

Torkel Opsahl suggests in his book 'European System', that there is no positive duty to force
someone to live, but rather to provide the essentials for it, food and water, no more.

Health care and social services Cyprus v Turkey 2001 – An obligation for health care exists to an
undefined degree, at least it is a breach to deny it when offering it to general population.

Article 1 obligation to secure convention Rights and Article 3 obligation as set out in LCB to take
'appropriate steps' to protect life thus combine to create a general duty to investigate unnatural
deaths for the purposes of creating accountability and deterring the breach of Article to right to life.
The Obligation to investigate is a general obligation for deaths, such as McCann v UK killings by
government agents, Private killings such as Menson v UK and deaths caused by known persons such
as Togcu v Turkey, Kyay Turkey, Yasa v Turkey, etc.

These investigations need not be criminal investigations depending on the circumstances. For
example, the case of Powell v UK showed that disciplinary investigations of professional may be
sufficient.

McCann v UK inquest held also satisfied the investigation requirement provided it is fair and
impartial.

Nachova v Bulgaria shows that the state has a positive obligation to investigate death upon
becoming aware of it, as opposed to receiving a complaint by family members.

Yasa v Turkey shows that a State of emergency DOES NOT excuse the obligation to investigate
deaths.

Hugh Jordan v UK - 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'. Nachova v Bulgaria
also requires good impartial conclusion based on evidence. 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.

Jordan v UK - investigation must be adequate, adequacy requires the investigation to show the cause
of death and find those responsible for it.

Jordan v UK - investigation must be fast and reasonably expedient.

McKerr v UK - must allow for public scrutiny and provide punishments that would deter others,
Oneryildiz v Turkey - Methane explosion in refuse tip caused a landslide which killed dozens of
people living in a slum. The investigation found only 2 mayors to bear any responsibility who were
given suspended sentences and the minimum statutory fine just under 10 euros. this was held by the
court to fail in its requirement to allow public scrutiny and deter others.

as in Jordan, Legal Aid may also need to be provided.

Abortion cases

Article 3 does not recognize an absolute right to life, in abortion cases there is a wide margin of
appreciation because of the lack of consensus in Europe.

X v UK - abortion of 10-week-old fetus to protect physical and mental health of women was not a
breach.

H v Norway - abortion of 12-week-old fetus 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 - abortion done as a result of mistaken name and thus medical negligence. The Court did
not consider the right to life issue, rather stating that civil remedies where available and thus that
satisfied the requirement for legal and administrative framework as set out in LBC.

Evans v UK - same margin of appreciation doctrine as in VO, with specific reference to lack of
European consensus thus necessitating a wide margin or appreciation. the ECHR cannot impose
requirements, rather it protects minimum rights common to all the signatory states.

Taking life by force of arms

The taking of life by state agents is strictly prohibited except for exceptional circumstances, whilst
private killings require investigation and legal and administrative protection.

Makaratzis v Greece - Car chase by police, lead to them shooting wildly at the car. No death resulted
but there was found to be liability as the nature of the incident could have been lethal, thus the
inadequacy of planning and conduct of the officers constituted a breach.

Killings by state agents are notoriously difficult to prove in many situations. In cases where a person
is taken into custody, and dies, it is for the state to show how he died as was the case in Salman v
Turkey. Demiray v Turkey - The explanation must be satisfactory.

Akkoc v Turkey - Killing by suspected state agent. State refused to support investigation and provide
evidence, thus the court turned the burden of proof on the state to justify with holding information.
Estimarov v Russia - Reasons must be provided for the killing of the suspect.

The Burden of Proof issue is a difficult one which is somewhat mitigated by the fact that the court
finds breaches in failures to investigate. Thus is a death occurs the state is obligated to investigate it
which it is unlikely to do where one of its agents is responsible, thus there is a breach. The
investigation must also be effective as in Jordan v UK. In other words, the state is caught between a
rock and hard place.
In cases where persons have been detained by security forces and have subsequently disappeared
the court has stated that two criteria must be satisfied:

it must be shown beyond reasonable doubt that the missing person was detained by security forces
or state agents.

there must be 'sufficient circumstantial evidence, based on concrete elements, on which it may be
concluded beyond reasonable doubt that the person is dead' Cakici v Turkey.

If these requirements are met, the burden of proof turns to the state to explain what has happened
to the person.

The main problem here is that there is often no record of arrest, and further no way of obtaining
circumstantial evidence. Kurt v Turkey - the son of the applicant was arrested by security forces. The
state claimed the person had instead left with rebel fighters. The court had little evidence to show
where the son had been taken and what happened to him. he had been missing for 4+1⁄2 years. the
court refused to recognize that the arrest by the security forces was in its context life-threatening
and thus refused to shift the burden onto the state.

Timurtas v Turkey - applicant son arrest by security forces but unlike Kurt, he was taken to an
identifiable location and was seen by other detainees in the facility for months. There was also an
operational report shown to the court but was contested by the State. the court requested the state
provide evidence to support its claims that the operational report was fake, the state refused on
security grounds. thus the court turned the burden of proof on the state in order to show what had
happened to the missing detainee and subsequently found a breach of article 3. The case is
distinguished from Kurt because the applicant was missing for 6 years. further in the context of
south east turkey, persons arrested on suspicion of having links to PKK rebels were shown in other
cases such as Kaya, Yasa Kilic etc. to be life-threatening. The abducted person was suspected of
these link. thus the circumstantial evidence was sufficient to turn the burden of proof. The
requirement for circumstantial evidence DECREASES with the number of years the missing person is
unaccounted for. Provided he was detained by the state.

Cyprus v Turkey - The court was not ready to presume death for 1700 civilians that disappeared
when the north was invaded.

Baysayeva v Russia - This case totally discarded Kurt and went further than Timurtas in that there
was NO circumstantial evidence to presume death. The Court simply relied on the fact that the
abduction had been by unidentified state agents in uniform. there was no record of arrest and a
procedural failure to investigate thus it was accepted that the arrest was life-threatening in the
circumstances.

Permitted Killings Cases

Capital Punishment is effectively non existent in the signatory states. All states aside from Russia are
signatories to Protocol 6 which bans death penalties in peace time. Further many states are
signatories to Protocol 13 which bans it out right. Russia, although not being a signatory to either
protocol has an effective moratorium on the death penalty.
The main issue here then is extradition to countries where the person life is at risk.

Oscalan v Turkey - PKK leader arrest in Kenya, sentenced to death in Turkey. Had his sentence
reduced to life imprisonment. At the time however, Turkey was in the process of signing protocol 6,
thus there were genuine fears that due to his status and public opinion as well as political pressures
he may be executed. The court found that there had been a breach of Article 6, unfair trial, thus to
sentence him to death would be a Breach of Article 3.

Soering v UK - also demonstrates how the Courts ineffectively use Article 3 to prohibit death
sentences in the context of extradition. However the court did recognize Death Row Syndrome, in
which psychological distress is caused while awaiting execution. Thus it is a breach of article 3 to
sentence one to death, but death row syndrome itself does not constitute inhuman treatment.

Death from Permitted Use of force

McCann and Others v United Kingdom (1995) 21 EHRR 97 - shows us that force applied must be no
more than 'absolutely necessary' meaning that it must be STRICTLY PROPORTIONATE' to the achieve
the permitted purpose. This goes beyond proportionality as we find it in article 8 and others. it is
extremely strict with no margin of appreciation afforded. the court simply construes facts as they are
and reaches an impartial assessment.

Micheal O'Boyle says that the situation regarding shootings must be judged with the facts of the
situation at the time and not ex post facto. this has also been a criticism of Dissenting judges in
McCann v UK, who stated that the courts should be wary of the benefits of hind sight in their finding
of a breach of article 3 on the case.

The use of deadly force must be lawful at a national level. C v Belgium, Kelly v UK, Stewart v UK and
MUST meet the requirements of Lawfulness as set out in Article 5 and the case of Bozano v France
thus meeting the rule of law requirement as expected in a democratic society so as to allow the
citizens to conduct their lives accordingly as stated in Sunday times v UK.

Defence of oneself or of another

Firstly, shootings in defence of property is not allowed. The signatory states did not incorporate the
4th derogation of shooting to stop access to certain facilities which was suggested at the time or
writing the treaty.

McCann v UK - soldiers did not breach article 3, they responded to a threat at the time and their
response was lawful. the Breach was by the authorities in planning. firstly, they did not stop the
suspects at the border which they should have. secondly, they used extremely lethal SAS soldiers
who had been trained to kill and informed that the suspects had remote detonators, thus relying on
false intelligence which they did not question.
Andronicou and Constantinou v Cyprus- police commando's raided flat in which man was holding
fiancée hostage. NO Breach as the soldiers firing and thus killing both persons was in self-defence
and defence of the fiancée. there was also no procedural preach of planning as in McCann because
the authorities in the circumstances acted proportionally in self-defence of the fiancée who was in
real and immediate danger.

Gul v Turkey - the raid on a flat suspected to have PKK militants was grossly disproportionate in its
use of force.

Isayeva v Russia- rebels entered a town of 20,000. the Russian security forces responded with
artillery and aircraft fire. they made available information to the population regarding a safe passage
out of the town. the court found this inadequate whilst also finding the use of such lethal force on a
crowded place to be disproportionate especially in peacetime. the breach was as a result of the
planners to have regard for civilian lives.

Isayeva, Yosupova and Bazayeva v Russia- Air force plane reported receiving small arms fire from a
convoy, and subsequently got authorization to attack. The air-to-ground missile attack killed scores
of people, including the applicants' children. Subsequent investigations showed no presence of
fighters in the convoy. The court rejected the state's argument of self-defence, as the use of such
firepower was grossly disproportionate.

Nachova v Bulgaria- it is grossly disproportionate to use lethal force to effect an arrest, as the force
cannot be considered absolutely necessary, especially when the person was not posing any threat,
simply running away from Military Police who wanted to arrest him for dereliction of duty. Further,
the court ruled in Kelly v UK that to shoot a person when seeking to arrest them defeats the purpose
of the mission, which is to bring them before a court. It also rules out any future arrest and the fact
that the victim will not get a chance to defend himself in law.

Riots and insurrections

Stewart v UK - 150 people throwing missiles at a patrol of soldiers amounted to a riot. Although the
court has not laid down clear criteria as to what constitutes a riot. thus the force used 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 had thus killed applicants son. The Breach was found in
that the authorities had no provided any riot equipment to the security forces even though a state of
emergency was declared thus it was expectant that violence would occur. The operation had not
been planned so as to minimize risk to the civilians.
X v Belgium - 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 clear breach.