article 2 echr essay

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EU Charter of Fundamental Rights

Title i dignity, article 2 - right to life.

1. Everyone has the right to life 2. No one shall be condemned to the death penalty, or executed.

1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows: "1. Everyone's right to life shall be protected by law?"

2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows: "The death penalty shall be abolished. No-one shall be condemned to such penalty or executed." Article 2(2) of the Charter is based on that provision.

3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the "negative" definitions appearing in the ECHR must be regarded as also forming part of the Charter:

(a) Article 2(2) of the ECHR:

"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; (c) in action lawfully taken for the purpose of quelling a riot or insurrection."

(b) Article 2 of Protocol No 6 to the ECHR:

"A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions ..."

• CJEU Joined Cases C‑29/22 and C‑44/22 / Judgment KS and KD v Council of the European Union and Others Decision date: 10 September 2024 Deciding body type: Court of Justice of the European Union Deciding body: Court (Grand Chamber) Type: Decision Policy area: Foreign and security policy ECLI (European case law identifier): ECLI:EU:C:2024:725
• CJEU Case C-130/21 P Lukáš Wagenknecht v European Commission Decision date: 24 March 2022 Deciding body type: Court of Justice of the European Union Deciding body: Court (Eight Chamber) Type: Decision Policy area: ECLI (European case law identifier): ECLI:EU:C:2022:226
• CJEU Case T-512/12 / Judgment Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) v Council of the European Union Decision date: 10 December 2015 Deciding body type: Court of Justice of the European Union Deciding body: General Court (Eight Chamber) Type: Decision Policy area: External relations ECLI (European case law identifier): ECLI:EU:T:2015:953
• CJEU - C 562/13 / Opinion Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida Decision date: 04 September 2014 Deciding body type: Court of Justice of the European Union Deciding body: Advocate General Bot Type: Opinion Policy area: Asylum and migration ECLI (European case law identifier): ECLI:EU:C:2014:2167
• CJEU - Joined Cases C 199/12 to C 201/12 / Judgment X., Y. and Z. v Minister voor Immigratie en Asiel Decision date: 07 November 2013 Deciding body type: Court of Justice of the European Union Deciding body: Court (Fourth Chamber) Type: Decision Policy area: ECLI (European case law identifier): ECLI:EU:C:2013:720

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Artikel 114 De doodstraf kan niet worden opgelegd.

Article 6 (1) Everyone has the right to life. Human life is worthy of protection even before birth. (2) Nobody may be deprived of her life. (3) The death penalty is prohibited. (4) Deprivation of life is not inflicted in contravention of this Article if it occurs in connection with conduct which is not criminal under the law.

Článek 6 (1) Každý má právo na život. Lidský život je hoden ochrany již před narozením. (2) Nikdo nesmí být zbaven života. (3) Trest smrti se nepřipouští. (4) Porušením práv podle tohoto článku není, jestliže byl někdo zbaven života v souvislosti s jednáním, které podle zákona není trestné.

Chapter 2 - Fundamental rights and freedoms: Article 4 There shall be no capital punishment.

Artículo 15 Todos tienen derecho a la vida y a la integridad física y moral, sin que, en ningún caso, puedan ser sometidos a tortura ni a penas o tratos inhumanos o degradantes. Queda abolida la pena de muerte, salvo lo que puedan disponer las leyes penales militares para tiempos de guerra.

Article 15 Everyone has the right to life and to physical and moral integrity, and under no circumstances may be subjected to torture or to inhuman or degrading punishment or treatment. Death penalty is hereby abolished, except as provided for by military criminal law in times of war.

Article 17 Human life is inviolable. There is no capital punishment in Slovenia.

17. člen Človekovo življenje je nedotakljivo. V Sloveniji ni smrtne kazni.

Article 15 (1) Everyone has the right to life. Human life is worth of protection even before birth.(2) No one shall be deprived of life. (3) Capital punishment is not permitted. (4) It is not violation of rights under this article, if someone is deprived of life as a result of an action that is not deemed criminal under the law.

Čl. 15(1) Každý má právo na život. Ľudský život je hodný ochrany už pred narodením. (2) Nikto nesmie byť pozbavený života. (3) Trest smrti sa nepripúšťa. (4) Podľa tohto článku nie je porušením práv, ak bol niekto pozbavený života v súvislosti s konaním, ktoré podľa zákona nie je trestné.

Articolul 22(1) Dreptul la viata, precum si dreptul la integritate fizica si psihica ale persoanei sunt garantate.(3) Pedeapsa cu moartea este interzisa.

 Article 22(1) The right to life, as well as the right to physical and mental integrity of person are guaranteed. (3) The death penalty is prohibited.

Artigo 24.º (Direito à vida) 1. A vida humana é inviolável. 2. Em caso algum haverá pena de morte.

Article 24 (Right to life) (1) Human life is inviolable. (2) In no case shall there be the death penalty.

Article 38 The Republic of Poland shall ensure the legal protection of the life of every human being.

Art. 38 Rzeczpospolita Polska zapewnia każdemu człowiekowi prawną ochronę życia.

Article 331) No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence under the law of Malta of which he has been convicted.(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such extent as is reasonably justifiable in the circumstances of the case -- (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) for the purpose of suppressing a riot, insurrection or mutiny; or (d) in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war.

Article 18. La peine de mort ne peut être établie.

Article 18. The death penalty may not be established.

Article 19. The right to life of a human being shall be protected by law.

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(19) This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and by the Charter, in particular respect for human dignity, the right to life, the prohibition of torture and of inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right to asylum and to protection against removal and expulsion, the principles of non-refoulement and non-discrimination, the right to an effective remedy and the rights of the child. This Regulation should be applied by Member States and the Agency in accordance with those rights and principles.

Article 1 Subject matter

This Regulation lays down Union rules governing trade with third countries in goods that could be used for the purpose of capital punishment or for the purpose of torture or other cruel, inhuman or degrading treatment or punishment, and rules governing the supply of brokering services, technical assistance, training and advertising related to such goods.

Preamble: ‘(1) The Union is founded on the universal values of human dignity, freedom, equality and solidarity, and respect for human rights and fundamental freedoms. It is based on the principles of democracy and the rule of law, which are common to the Member States.’ ‘(2) Acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, and enjoyment of human rights and fundamental freedoms on which the Union is founded. They also represent one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the Union is based. [...]’ Article 25 - Protection of victims of terrorism ‘Member States shall ensure that measures are available to protect victims of terrorism and their family members, in accordance with Directive 2012/29/EU. When determining whether and to what extent they should benefit from protection measures in the course of criminal proceedings, particular attention shall be paid to the risk of intimidation and retaliation and to the need to protect the dignity and physical integrity of victims of terrorism, including during questioning and when testifying.’

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Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

1. States Parties recognize that every child has the inherent right to life. 2

. States Parties shall ensure to the maximum extent possible the survival and development of the child.

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Resolution 2229 (2018) - International obligations of Council of Europe member States to protect life at sea

General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life

(adopted by the Committee at its 124th session (8 October to 2 November 2018).

ECHR provisions of article 2 and Protocols 6 and 13 have been incorporated into UK law by the Human Rights Act 1998.

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Article 2 - European Human Rights Law

Article 2: The Right to Life

Introduction

Article 2 – Right to life

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 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; c. in action lawfully taken for the purpose of quelling a riot or insurrection.

McCann - Strasbourg Court said: “as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Conventions...as such, its provisions must be strictly construed”.

A Contracting Party’s obligation to safeguard life consists of three main aspects:

The duty to refrain, by its agents, from unlawful killing

The duty to investigate suspicious deaths (and if required, to prosecute the perpetrators of an unlawful killing

In certain circumstances, a positive obligation to take steps to prevent the avoidable loss of life

Bradley – a violation of this right makes meaningless the recognition of any other rights.

It is protected absolutely, one of the very few rights that may not be abridged even “in time of war or other public emergency threatening the life of the nation” (Art 15(2)). The single exception is with respect to deaths resulting from lawful acts of war.

The exceptions written into s2 of Art 2 are to be available only when the taking of life is absolutely necessary for one of the purposes listed. This formulation contrasts with the more usual requirements for limiting rights – that the infringement be merely necessary (e.g. Art 10(2)).

The court has extended a state’s obligations far beyond limitations on the official taking of human life.

The extent of Article 2

Ilhan v Turkey – the court has held that a violation of Art 2 is possible even when no person (however defined) actually dies. The applicant’s brother had been arrested by gendarmes and beaten severely, causing serious head injuries. He was kept under arrest and received no medical treatment for 36 hours. He survived but sustained an apparently permanent loss of function on his left side. The court, citing 3 prior cases, held that it was proper to consider the case notwithstanding the victim’s survival. The court noted that this case and all prior cases where there had been no actual death involved a state’s positive obligation to protect life.

The Court then provided this “cryptic” (Bradley) explanation: “It is only in exceptional circumstances that physical ill-treatment by State officials which does not result in death may disclose a breach of Art 2 of the Convention. it is correct that the criminal responsibility of those concerned in the use of force is not an issue in the proceedings under the Convention. nonetheless the degree and type of force used and the unequivocal intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the States’ agents’ actions in inflicting injury short of death must be regarded as incompatible with the object and purpose of Article 2 of the Convention”.

Acar and Others v Turkey – two applicants had been wounded but had survived a “sustained and lethal attack” that killed 8 people. The court held that they were “victims of conduct which...put their lives at grave risk”. They were allowed to argue violations of Art 2.

Dizman v Turkey – the receipt of mere threats to kill held not to engage Art 2.

Pretty v UK – court rejected a different kind of extension of the right to life. The application was a woman suffering the advanced stages of motor neurone disease, an untreatable and progressively debilitating condition, leaving her paralysed from the neck down without the power of speech and fed through a tube. She wished to end her life, which was impossible without assistance, and English law made assisting suicide a crime. She claimed that Art 2 gave her a right to “choose whether or not to go on living”. The court rejected the idea that Art 2 included a “negative aspect”.

The court distinguished its holding in Art 11 cases that the right of association implied a right not to associate. The right protected in Art 11 was a “freedom” right protecting individual choice: “Art 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person choose to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from state interference, they may be reflected in the rights guaranteed by other Arts of the Convention, or in other international human rights instruments. Art 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.”

The death penalty and the extraterritorial application of the right to life

In one respect, part of the text of Art 2 has, in practice, been overtaken by provisions in the protocols. The second sentence of Art 2(1) reserves the right of Contracting Parties to subject convicted criminals to the death penalty.

However, Protocol 6 to the Convention abolishes the death penalty in peacetime and Protocol 13 abolishes it in all circumstances. 46 Contracting Parties have ratified Protocol 6, and 41 contracting parties have ratified Protocol 13.

It is the policy of the council of Europe to require all new contracting parties to undertake to...

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