Article 2: Right to Life

Introduction

Article 2 of the European Convention on Human Rights provides:

"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."

Article 2 is widely regarded as the most fundamental provision in the Convention. As the ECtHR stated in McCann v UK [1995], it "enshrines one of the basic values of the democratic societies making up the Council of Europe." The right to life is the foundation upon which all other rights depend — without life, no other rights can be exercised.

Article 2 is classified as a limited right: it cannot be restricted except in the specific circumstances listed in Article 2(2), and these exceptions must be strictly construed. It is also non-derogable under Article 15, except in respect of deaths resulting from lawful acts of war.

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The Scope of Article 2

Article 2 imposes three distinct types of obligation on the state:

1. Negative Obligation: The State Must Not Take Life

The most obvious obligation under Article 2 is that the state must not intentionally deprive anyone of their life. This applies to all agents of the state, including:

• The police
• The armed forces
• Prison staff
• Security services

When state agents use lethal force, the state bears the burden of demonstrating that the force used was "absolutely necessary" for one of the purposes listed in Article 2(2). The standard of "absolute necessity" is stricter than the ordinary necessity test applied to qualified rights.

Key Case: McCann v UK [1995]

Three members of the IRA were shot dead by SAS soldiers in Gibraltar in 1988. The UK government argued that the soldiers had acted lawfully in using lethal force to prevent a terrorist bomb attack. The ECtHR found a violation of Article 2, not because the soldiers had acted in bad faith, but because the operation had been planned and controlled in a way that made the use of lethal force almost inevitable. The Court stated that the authorities should have considered whether the suspects could have been arrested at an earlier stage, before they were in a position to detonate a bomb.

This case established that Article 2 requires scrutiny not just of the actions of those who fired the shots but of the planning and control of the entire operation.

2. Positive Obligation: The State Must Protect Life

Article 2 also imposes a positive obligation on the state to take appropriate steps to safeguard the lives of those within its jurisdiction. This goes beyond simply refraining from killing; the state must actively take measures to protect life.

Key Case: Osman v UK [1998]

A teacher, Paul Paget-Lewis, developed an obsession with one of his pupils, Ahmet Osman. Despite multiple warning signs (including the teacher changing his name to Osman), the police failed to act. Paget-Lewis eventually shot and killed Ahmet's father and seriously injured Ahmet. The family argued that the police had failed in their positive duty to protect life.

The ECtHR held that Article 2 imposes a positive obligation on the state to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. However, this obligation arises only where the authorities:

1. 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; and
2. Failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk

This is known as the Osman test and has been applied in numerous subsequent cases.

LCB v UK [1998] extended the positive obligation to situations where the state should protect life from environmental or health risks. The case concerned a child who developed leukaemia allegedly as a result of her father's exposure to radiation during nuclear tests on Christmas Island.

3. Procedural Obligation: The Duty to Investigate

Article 2 imposes a procedural obligation on the state to conduct an effective official investigation whenever there has been a death involving the state or where the state's positive obligations may have been engaged.

The investigation must be:

• Independent: conducted by a body independent of those implicated in the death
• Effective: capable of leading to a determination of whether the force used was justified and to the identification and punishment of those responsible
• Prompt: conducted with reasonable expedition
• Transparent: there must be a sufficient element of public scrutiny to ensure accountability
• Involve the next of kin: the family of the deceased must be involved to the extent necessary to safeguard their legitimate interests

Key Case: Jordan v UK [2001]

This case, along with three related cases (Kelly v UK, McKerr v UK, and Shanaghan v UK), concerned killings by security forces in Northern Ireland. The ECtHR found multiple violations of the procedural obligation under Article 2, including:

• Lack of independence of the investigating officers
• Failure to compel the attendance of witnesses
• Delays in the investigation
• Insufficient public scrutiny
• Inadequate involvement of the next of kin

These judgments had a significant impact on policing practices in Northern Ireland and led to reforms in how deaths involving the police are investigated in the UK generally.

graph TD
    A["Article 2: Right to Life"] --> B["Negative Obligation"]
    A --> C["Positive Obligation"]
    A --> D["Procedural Obligation"]
    B --> B1["State must not<br/>take life intentionally"]
    B --> B2["Use of force must be<br/>'absolutely necessary'<br/>McCann v UK [1995]"]
    C --> C1["State must take steps<br/>to protect life"]
    C --> C2["Osman test: knew/ought<br/>to have known of real<br/>& immediate risk"]
    D --> D1["Effective investigation<br/>into deaths involving<br/>the state"]
    D --> D2["Independent, effective,<br/>prompt, transparent<br/>Jordan v UK [2001]"]
    style B fill:#c0392b,color:#fff
    style C fill:#2980b9,color:#fff
    style D fill:#8e44ad,color:#fff

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Permitted Exceptions: Article 2(2)

Article 2(2) provides that the deprivation of life is not a violation when it results from the use of force which is "no more than absolutely necessary":

(a) In Defence of Any Person from Unlawful Violence

This covers both self-defence and defence of others. The force used must be strictly proportionate to the threat posed. In assessing whether force was "absolutely necessary," the ECtHR considers:

• The nature and degree of the threat
• Whether less lethal alternatives were available
• Whether the force was proportionate in the circumstances as the state agent honestly and reasonably perceived them

(b) To Effect a Lawful Arrest or Prevent Escape

Lethal force may be used to arrest a suspect or prevent the escape of a lawfully detained person, but only if absolutely necessary. In Nachova v Bulgaria [2005], the Grand Chamber found a violation of Article 2 where military police shot and killed two Roma conscripts who were fleeing arrest for desertion. The use of lethal force against persons who did not pose a threat to life was disproportionate.

(c) To Quell a Riot or Insurrection

The use of lethal force to quell a riot must be absolutely necessary and proportionate. This exception has been interpreted very narrowly. The state must demonstrate that all less lethal means of restoring order have been exhausted or would be ineffective.