EU Law outcomes under the right to life. The positivity and negativity duality for state parties regarding obligations.
It is a new releasement in a while! It was time to be back on track. This time nor a technological release or purely a historical topic itself, but rather an evolutive approach showing how EU has been interacting with the right to life over the years. In sum, human beings are not more than years of legal and historical development, plus evolutive human growth where new recognition of rights has been displayed.
The right to life englobes a duality which implies the assumption of either, positives or negatives obligations for contracting parties.
In brief, a state cannot unlawfully kill you, but also shall promote and ensure the non-use of violence against you. A double-channel - agreement stands out in preventing kills, in both positive and negative obligations.
Thereby, there is found a violation of rights by doing or by refraining. A violation of negative obligations comes from performed actions by states, while in positive obligations, a violation stands for passivity.
As provided by The European Convention of Human Rights concerning the right to life, it is found as follows: “everyone´s right to life shall be protected by law” Moreover, there is no crime commission in deprivation of life when the use of force is no more than necessary. The scenarios in using lethal force are clearly defined whereas preventing unlawful killing, executing a lawful arrest, preventing the escape of a person lawfully detained, and special circumstances in quelling or riot cases.
The Art 2 of ECHR encompasses several obligations concerning the previous definitions of positive and negative obligations. Thus, a state shall refrain from any unlawful killing by its agents as well as take the necessary steps to prevent avoidable loss of life. Likewise, authorities shall act on their own motion, while investigating suspicious deaths and prosecuting perpetrators.
The law–case production is wide enough under Strasbourg Court. Hereafter, it will be analyzed the most prominent rulings that have shaped the right to life over the years.
One of the first cases in which the Court had to deal with such an issue was McCann Case. It marked a standpoint in analyzing the use of force performed by a state. In McCann's Case, the relatives of three terrorists brought a complaint before Strasbourg Court due to the killing by the British security services in Gibraltar of a terrorist group who planned to explode a car bomb in a crowded area.
It could be proved that agents made a mistake due to non–accurate information. The terrorists did not take any detonators at the time they were shot.
The respondent state called for killing terrorists was a duty in order to avoid the loss of innocent people. They used lethal force because they understood it was absolutely necessary to defend people from unlawful violence.
The Court declared that soldiers were not blamed under the honesty and reasonable criteria in which believed that shooting terrorists was necessary. Thus, it exists a strict test between a proportionate measure and the achievement of the aims. It is said that the terrorists could be caught when entered in Gibraltar.
As previously said, positive obligation breaches come from inaction. The Court has dealt with multiple cases on this issue. In Osman Case, the state duties do not fall in the scope of positive obligations violation. The case underlies a family murder by a stalker. The authorities are not liable since they could not have known of the immediate risks for the victims. By contrast, other rulings go in line with recognizing positive obligation breaches by the state. In Opuz v Turkey, Turkish authorities failed to protect a potential victim, when they knew reasonably of a possibility of attacking the victims. The evidence was plausible, indeed. Lastly, Dink Case deals with a positive obligation which is finally recognized as a breach. In this case, a journalist was murdered because of several controversial essays. He had received certain threatening letters. He informs authorities at this regard, but it seems, by authorities side, have not taken any measure in avoiding the assassination consumption.
The right to life also interacts with unborn cases. The controversy at this regard is clearly an on-point issue, where religious preferences play a key role in the policy-making process. When analyzing the right to life, it is important to point out and determine when the beginning of life starts. Unfortunately, Europe is silent concerning this issue while, for instance, The American Convention of Human Rights considers the beginning of life since conception. The lack of pronouncement by EU Law has triggered the development of several theories. Thus, the laid - down in creating theories on how to approach the issue have been in the spotlight over the years.
The first theory calls for recognizing the right to life in the conception moment, while others support and argue to set - up the beginning of life when the fetus becomes viable to live. Moreover, by solving the controversy, EU Commission has developed third criteria. It is called the connecting factor. This link sizes the connection to the mother’s life. The fetus does not have full protection itself, by recognizing its dependency on the mother´s body.
The law–case production is wide enough regarding the right to life upon unborn cases. It highlights several rulings such as X vs UK, H vs Norway, and most notably, Vo vs France. X vs UK describes a situation where a potential father calls for recognizing his condition as a victim derived from an abortion of her wife.
The action is accepted, and it is stated that the father could be a victim of a violation of the right to life. By contrast, we can find H vs Norway. This case underlies an abortion case carried out without medical grounds and against the desire of the father to make the unborn true. Nevertheless, no violation is found due to the mother acted in compliance with Norwegian Law. She has not exceeded any discretion.
The most prominent ruling in regards to the right of life of the unborn is Vo vs France. In the case, the applicant challenged an action aiming to blame the doctor for the loss of the unborn during the unborn. The French Courts dismiss the action by stating the consideration as no victim due to in unborn. The Strasbourg Court had to answer whether an unborn child is a person or not. The Court held that France granted enough and effective protection to the mum, even though a criminal action was nor possible. In the ruling, The Court stands for recognizing as follows:
“The potentially of that being and its capacity to become a person, require protection in the name of human dignity but without making it as how in Article 2 and right to life is conducted” Thereby, The Court stated that the life of a fetus cannot prevail against the life of the mother. Further explanation of abortion cases implies Art 8 of ECHR.
If the right to life narrowly deals with the beginning of life, another side of the coin illustrates the opposite: the end of life. Among others, it highlights Pretty v. UK and Lambert and Others v. France.
In Pretty v. UK 43 y/o woman suffers from a motor disease that leads to producing severe weakness in the arms and legs, plus involving uncontrolled breathing tempo. The woman is evolving badly, and she is going through an advanced stage where from the neck down is fully paralyzed. She has to be fed by a tube. Despite the body paralysis, her intellect and capacity to make decisions remain unimpaired. The applicant fills a request, asking whether prosecution would be conducted for having assisted her to commit suicide.
The Court started by analyzing the relation of both, Art 2 and Art 8 of ECHR. It is stated that Art 2 does not secure the right to end life, rather, it is the conjunction created when both rights come to clash. The case stands for facilitating the death of third parties’ rights are not at stake Then, as stated by The Court no violation of Articles 2 and 8 is found. The Court marked the importance of patient wishes in the decision-making process. This case is particularly highlighted by interpreting the right to life as a negative aspect. The Court concludes that the interference, in this case, may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention.
In Lambert and Others v. France, The Court had also to deal with an issue related to end life. After a car accident, a victim remains in a vegetative state. The doctor eventually decided to remove the artificial machines which enabled the life of the patient. The applicants are the relatives, and they challenge an action against French tribunals calling for a recognition of violation of Article 2 of the Convention.
Under French law, the possibility of removing an artificial treatment is valid when the affected only is able to live thanks to the artificial treatment. It results in a clash between Article 2 and Article 8 of ECHR. The Court recognized a wide margin of appreciation in this issue when dealing with scientific and ethical considerations. It stated that withdrawal of treatment may vary from countries. The patient's wishes are a pivotal point in the decision–making process. The patient also said that did want to be alive artificially in a dependent state of the illness.
The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe enjoins the State not only to refrain from the “intentional” taking of life (negative obligations) but also to take appropriate steps to safeguard the lives of those within its jurisdiction.