Right to Life

ECHR Guarantee

The European Convention on Human Rights Article 2 provides that 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 the penalty is provided by law.

However, the later Protocol 6 to the Convention effectively abolishes the protocol. The death penalty, other than in times of war, it allows no derogation. The death sentence is now ruled out by the Irish  Constitution following a referendum in 2001.

Self-Defence

Deprivation of life shall not be regarded as inflicted in contravention of the Article when it results in the use of force which is no more than absolutely necessary in defence of any person from unlawful violence in order to effect a lawful arrest or prevent the escape of a person lawfully detained, in action lawfully taken for the purpose of quelling a right or insurrection.  Self-defence or defence for another must be absolutely necessary.

A state is obliged to refrain from unlawful killing by its various agents and entities. It must investigate suspicious deaths. It has a positive obligation to prevent the avoidable loss of life.

Lethal Force & Policing

Where a state, through its army or law enforcement agents, operates a ‘shoot to kill’ policy or shoots suspects, the use of force must be necessary based on reasonable grounds and must be no more than necessary. The Article prevents the use of force which is potentially lethal even if no person is killed. Where a person dies in custody, there may be a breach of the Article unless the state can show that the death was not unlawful.

Authorities are allowed a wide latitude, given the inherent difficulties in policing. However, not every potential risk to life requires police action. If the state knew of a real and immediate threat to the life of a particular individual from a third party, it may breach the obligation if it fails to take measures that it could have taken to avoid the risk and danger.

In the case of arrest, potentially deadly force is not absolutely necessary where it is known that the person poses no threat to life or limb and is not suspected of being having committed a violent offence. This is so even though the failure to use lethal force may lead to escape where persons are unarmed and not dangerous. It was a breach of the Convention where police shot persons being arrested after they refused to obey a warning.

The use of force to quell a riot must be necessary in the circumstances. The force must be proportionate. This must apply, but at the level of operational planning on the part of those who use force.

Positive Obligations

The Article entails an obligation to protect life in some circumstances. States are obliged to put in place mechanisms and structures to deter and prevent unlawful killing.

Similarly, where the risk to life arises from lawful but dangerous actions, states must provide a sufficient system for regulation and supervision to minimise and remove obvious and dangerous risks. The state must investigate suspicious deaths to identify the cause of death. Where there is a possible criminal cause, there must be appropriate investigation and procedures.

Assisted Suicide

The right to life does not include a right to die by way of assisted suicide. Some states allow assisted suicide, but failure to have such a provision does not constitute a breach of the Convention.

Abortion

Attempts have been made to protect the right to life of the unborn and challenge abortion laws on the basis of the guarantee of the right to life. The Commission has avoided ruling or taking a view on a number of occasions on the issue of whether an unborn child is a person for the purpose of the protection.

The Commission has noted that there is a divergence of thinking on the point of commencement of life. It has been pointed out that the right to life is intimately related to the right to life of a mother.  It has been noted that if the right to life of the unborn child was equal to that of the mother, then it would have the consequence that an abortion might be regarded as prohibited if there was a serious risk to the life of the unborn.

In the case of A, B and C v Ireland, the court found that the uncertainty in the Irish laws on the availability of abortion following the X case was itself a breach of rights under multiple Articles of the Convention. The absence of certainty was the critical factor. If a state permits abortion, it must implement a scheme that is accessible and effective and that persons can easily understand.