Article 2

Article 2| Right to life

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Art.2 European Convention on Human Rights provides as follows:

(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(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 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.
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

The corresponding provision in the EU Charter is also Art.2 which reads:

(1) Everyone has the right to life.

(2) No one shall be condemned to the death penalty, or executed.

The right to life is not absolute, although the limitation carved out in the first paragraph of the ECHR provision ceases to apply now that the UK has ratified Protocol 6, in pursuit of its undertaking so to do in the Human Rights Act 1998 , and the death sentence has been abolished altogether from the statute books. The UK cannot now reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war.

Art.2 is relevant to several aspects of State power:

  1. The use of  lethal force by the State through the mobilisation of its police and armed forces to combat terrorism, fight crime and quell civil unrest;
  2. The prevention and prosecution of homicide
  3. Legislation relating to abortion; and
  4. The supply of medical services and the allocation of healthcare resources.

The right to respect for life, following the case of Diane Pretty v United Kingdom, now includes the right to die with dignity, and is considered in this context together with the right to physical integrity and privacy under Article 8.  This extended implied right under Article 2 does not oblige the state however to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011).

In addition to the express obligation on states to respect the right to life, the Strasbourg Court has developed an implied duty on states to investigate suspicious deaths or disappearances. Critics suggest that this maneouvre was motivated by the court’s desire to avoid having to delve into “complicated and murky factual assessments” in the proliferating case law involving Turkish violations of Kurdish rights:

Extending human rights to create additional procedural obligations on states served as a cost-efficient substitute for a lack of evidence to deal with a growing docket of cases. The court has legislated its way out of its own internal problems. (Dominic Raab, The Assault on Liberty, Fourth Estate, London 2009)

Be that as it may, the domestic courts have not been slow to respond to Strasbourg expansionist tendencies in the interpretation of Article 2.  The right to life now engages the responsibility of the government for the deaths of soldiers in combat, whether they have been killed by enemy troops or illness if their demise is due to inadequate equipment or medical care (Smith v Secretary of State for Defence, [2010] UKSC 29).

Article 2 applies in countries where the Convention theoretically has no reach. In Al-Skeini v UK  (2012) the Court said that the killing of Iraqi civilians by British troops during the British occupation of the Basra region fell within the United Kingdom’s jurisdiction because Her Majesty’s army was exercising authority and control there.

More recently however, the Divisional Court has strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin (R(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin).