Right to Life under the ECHR (Article 2)
The right to life, protected by Article 2 of the European Convention on Human Rights (ECHR), is one of the most fundamental rights guaranteed under the Convention. It establishes both negative and positive obligations for states to respect and protect human life.
The right to life, enshrined in Article 2 of the European Convention on Human Rights (ECHR), is often regarded as the most fundamental of all human rights. It provides the foundation for the protection of human dignity and the rule of law. This right is not only about the prohibition of arbitrary deprivation of life but also imposes a range of positive obligations on states to ensure its respect and enforcement. The right to life under the ECHR is built on six key pillars, each addressing critical aspects of its protection.
What is Article 2 ECHR?
Article 2 of the ECHR guarantees the right to a fair trial. It reads:
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.
Protection Against Arbitrary Deprivation of Life
The first and most obvious pillar of the right to life is the prohibition of arbitrary deprivation of life. States are obligated to ensure that no individual is unlawfully or arbitrarily deprived of their life, whether by state agents or private individuals. This includes a ban on extrajudicial killings and summary executions. While the ECHR allows the death penalty in certain circumstances (under specific reservations), its imposition must strictly comply with the rule of law and fair trial guarantees. This pillar underscores the sanctity of life and the necessity of preventing state overreach in using lethal force.
Obligation to Protect Life (Positive Obligation)
Beyond refraining from unlawfully taking life, states also have a positive obligation to protect individuals whose lives are at risk. This includes safeguarding citizens from foreseeable threats, such as violence, terrorism, or abuse. Vulnerable groups, such as children, prisoners, or individuals facing domestic violence, require particular attention. The European Court of Human Rights has repeatedly emphasized that states must take reasonable and proactive measures to prevent risks to life when they are aware of specific threats.
Prohibition of Excessive Use of Force
The third pillar pertains to the lawful use of force by state agents, such as police or military personnel. Any use of lethal force must be strictly necessary and proportionate to the threat posed. The ECHR provides limited circumstances where lethal force may be justified, such as in self-defense, to protect others from imminent harm, to prevent escape from lawful detention, or to suppress riots or insurrections. The European Court has consistently held states accountable for excessive or disproportionate use of force, ensuring that human life is prioritized even in high-stakes situations.
Protection Against Arbitrary Deprivation of Life
The first and most obvious pillar of the right to life is the prohibition of arbitrary deprivation of life. States are obligated to ensure that no individual is unlawfully or arbitrarily deprived of their life, whether by state agents or private individuals. This includes a ban on extrajudicial killings and summary executions. While the ECHR allows the death penalty in certain circumstances (under specific reservations), its imposition must strictly comply with the rule of law and fair trial guarantees. This pillar underscores the sanctity of life and the necessity of preventing state overreach in using lethal force.
Duty to Prevent Life-Threatening Risks
States are also obligated to mitigate known risks to life, particularly in cases involving environmental, industrial, or infrastructural hazards. For example, governments must act to prevent deaths caused by unsafe working conditions, dangerous public buildings, or inadequate emergency services. This duty extends to ensuring adequate medical care for individuals, particularly for those in detention or other forms of state custody. By addressing systemic risks and failures, this pillar reflects the proactive nature of the right to life under the ECHR.
Accountability and Justice
The final pillar focuses on accountability and justice when the right to life is violated. States must prosecute those responsible for unlawful killings, whether through negligence or intentional acts. Victims’ families must also be provided with remedies and reparations, ensuring that justice is served. Beyond individual cases, states are encouraged to address systemic failures that led to violations, thereby preventing future occurrences. This pillar ensures that the right to life is not merely theoretical but actively upheld through robust legal and institutional frameworks.
The Scope and Limitations of Article 2
Article 2 of the European Convention on Human Rights (ECHR) is among the most fundamental provisions of the Convention, guaranteeing the right to life. It provides that “everyone’s right to life shall be protected by law,” and specifies that deprivation of life shall not occur except in certain narrowly defined circumstances. Despite its foundational importance, the scope of Article 2 extends beyond simple protection from unlawful killing. It also entails a series of procedural and substantive obligations on states, while its limitations reflect the balance between individual rights and state sovereignty.
The Scope of Article 2: A Comprehensive Right
The scope of Article 2 can be broadly divided into two categories: substantive obligations and procedural obligations.
1. Substantive Obligations
Substantive obligations include the prohibition of arbitrary deprivation of life and the state’s duty to take steps to safeguard lives.
Prohibition of Arbitrary Deprivation of Life
The first and most direct obligation under Article 2 is to prevent unlawful killings. States must ensure that laws and institutions prevent extrajudicial executions, targeted killings, and unnecessary use of force by state agents.
Positive Obligation to Protect Life
States must actively protect individuals from threats to their lives, whether posed by private individuals, external dangers, or systemic issues such as inadequate healthcare or unsafe conditions. For example, in Osman v. United Kingdom, the European Court of Human Rights (ECtHR) held that states must act when they know or ought to know of a real and immediate risk to life.
Lawful Exceptions to the Right to Life
The Convention permits the use of force resulting in loss of life in specific, limited circumstances. These include self-defense, the defense of others, lawful arrests, or suppressing riots or insurrections, provided the use of force is strictly necessary and proportionate.
2. Procedural Obligations
Article 2 also imposes procedural obligations on states to ensure accountability for violations.
Effective Investigations
When deaths occur under suspicious circumstances, states are obligated to investigate thoroughly, impartially, and promptly. This obligation applies particularly to deaths involving state agents or institutions. Investigations must aim to uncover the truth, hold perpetrators accountable, and provide justice for victims’ families.
Judicial and Administrative Measures
States are required to maintain legal frameworks that criminalize unlawful killings and provide victims’ families with access to remedies.
Limitations and Challenges
While Article 2 offers robust protections, its application involves certain limitations, arising from both its text and practical enforcement challenges.
1. Lawful Use of Force
The Article explicitly recognizes lawful use of force in certain circumstances, such as during lawful arrests or in self-defense. However, determining what constitutes “strict necessity” has been a source of legal contention. For instance, excessive or disproportionate force by police or military personnel often leads to disputes about whether Article 2 was violated.
2. Armed Conflicts and Emergencies
In situations of armed conflict, states may argue that deaths occurring during military operations are lawful under international humanitarian law. However, the ECtHR has held that states remain bound by their obligations under Article 2, even in such circumstances, as seen in cases like Kaya v. Turkey.
3. Balancing State Interests and Individual Rights
Article 2 occasionally comes into conflict with state interests, such as national security, public order, or economic priorities. The duty to protect life must be balanced against practical considerations, such as resource constraints or competing rights, which may limit the scope of protection.
4. Procedural Failures
While states may have substantive frameworks to protect life, procedural failures—such as flawed investigations or lack of accountability—can undermine the effectiveness of Article 2. v
- McCann and Others v. United Kingdom (1995)
- Ergi v. Turkey (1998)
- Osman v. United Kingdom (1998)
K.-H.W. v. Germany [GC] - 22 March 2001
Facts
Between 1949 and 1961, around two and a half million East Germans fled to West Germany (FRG) from the German Democratic Republic (GDR). In response, the GDR constructed the Berlin Wall on 13 August 1961 and implemented strict security measures along the border, including the installation of anti-personnel mines and automatic-fire systems (Selbstschussanlagen). Many individuals attempting to escape died as a result of triggering these mines or being shot by East German border guards. The official death toll is reported as 264, though other sources claim a higher figure of 938. The actual number of casualties remains difficult to determine due to the secrecy maintained by GDR authorities.
The GDR’s border security was managed by the Council of State (Staatsrat) and the National Defence Council (NVR), with decisions made by the Politbüro of the Socialist Unity Party (SED). The border guards, under the Ministry of Defence, were tasked with preventing border crossings. These guards were told to consider anyone attempting to cross as an enemy and to either arrest or “annihilate” them. This directive was reinforced by orders from the Ministry of Defence.
The applicant in this case was a border guard during this period, serving between 1971 and 1973. The East German government had established a border-policing regime that emphasized the use of force to prevent citizens from fleeing, disregarding human rights, particularly the right to life and the freedom of movement. This regime led to numerous deaths and violations of international human rights laws.
With the fall of the Berlin Wall in 1989 and the eventual reunification of Germany in 1990, the issue of justice for those who had committed crimes under the GDR’s regime emerged. The GDR’s practices were examined, and in 1990, the newly-elected parliament of the GDR urged the German authorities to prosecute those responsible for the regime’s injustices.
Judgment
The Court concluded that the GDR’s border-policing practices, including the use of anti-personnel mines and automatic-fire systems, violated international human rights law, particularly the right to life and freedom of movement. The GDR was held responsible for these acts under international law. However, the case also turned to the individual responsibility of the applicant, who was a member of the GDR border guards.
Although the applicant was not directly responsible for the policies set by the GDR, the Court considered whether his actions, including firing on unarmed individuals attempting to flee the country, constituted an offense under international law, especially in light of the GDR’s Criminal Code. The Court found that the applicant should have known that his actions violated fundamental human rights, and as a member of the border guards, he was aware of the legislation that governed his conduct.
The Court concluded that the applicant’s actions could be classified as an offense under international law and, in light of the GDR’s Criminal Code, were not subject to limitation based on the statute of limitations for human rights violations. The Court also found that, even if the applicant had raised the issue of the statute of limitations, his argument would not have been accepted due to the specific provisions in the GDR’s Criminal Code that excluded human rights violations from such limitations.
Thus, the Court determined that the applicant’s conviction for his role in the border guards’ actions did not violate Article 7 § 1 of the European Convention on Human Rights, which prohibits the retroactive application of criminal law.
This case serves as an important reminder for lawyers involved in human rights law, particularly in the context of post-conflict legal systems and prosecutions for crimes committed under authoritarian regimes. The Court’s judgment reinforces the principle that acts of violence against civilians, such as those committed by border guards under the GDR’s regime, constitute clear violations of human rights, irrespective of the political context in which they occurred.
From a legal perspective, the case highlights the intersection between state responsibility and individual criminal liability. Lawyers must carefully consider the applicability of both domestic law and international human rights law in cases involving systemic abuses. The Court’s decision also underscores the principle of universal jurisdiction for crimes against humanity and human rights violations, which is a critical consideration when assessing responsibility for such crimes.
For legal practitioners, it is essential to note the importance of statute of limitations provisions in post-conflict societies. While certain crimes, such as human rights violations, may be excluded from limitation periods under national law, practitioners should be prepared to argue that such crimes should not be subject to limitations under international law, as was the case here with the GDR’s Criminal Code.
Moreover, this case illustrates the principle of individual responsibility for violations of human rights, even when the individual may not have been a central figure in the decision-making process. Lawyers should recognize that individuals who act in compliance with state policies that breach international human rights law can still be held criminally responsible.
Finally, the judgment reinforces the need for legal clarity and certainty in defining crimes and criminal responsibility, particularly in the context of crimes against humanity. This case demonstrates the potential challenges in applying international law to national legal systems, especially when considering the actions of individuals within the context of oppressive regimes. The evolving nature of international human rights law demands that legal professionals remain vigilant in protecting fundamental rights and ensuring justice for victims of state-sanctioned violations.
Streletz, Kessler and Krenz v. Germany [GC] -22 March 2001
Facts:
The case of Streletz, Kessler and Krenz v. Germany revolves around the convictions of three former high-ranking members of the German Democratic Republic (GDR), who were convicted by the German courts after the reunification of Germany. The applicants, Fritz Streletz, Heinz Kessler, and Egon Krenz, were convicted for their involvement in border security measures during the time the Berlin Wall was in place.
The Applicants:
Fritz Streletz (born 1926), Heinz Kessler (born 1920), and Egon Krenz (born 1937) were key figures in the GDR’s leadership. They occupied senior positions in the GDR’s State apparatus and the Socialist Unity Party.
After their convictions, Streletz and Kessler were imprisoned under a semi-custodial regime and later released after serving around two-thirds of their sentences.
Krenz was serving his semi-custodial sentence at the time of the case in 2000.
The Background of the Case:
The case stems from actions taken during the Cold War, particularly in relation to the construction and enforcement of the Berlin Wall, which was erected in 1961 to prevent East Germans from fleeing to the West.
Over the years, many attempts to escape the GDR were met with violent border control measures, including anti-personnel mines and firearms that resulted in many deaths. The exact number of those killed is difficult to determine but ranges from 264 to over 900 according to various sources.
The GDR’s National Defence Council, led by members of the Socialist Unity Party, issued orders related to border security, which included the use of lethal force against those trying to cross the border. These decisions were made by high-ranking officials, including the applicants.
The Applicants’ Roles in the GDR:
Streletz was a member of the National Defence Council and the Socialist Unity Party’s Central Committee, holding positions such as Deputy Defence Minister.
Kessler was Minister of Defence and held significant positions within the GDR’s political and military structures.
Krenz was Secretary-General of the Socialist Unity Party’s Central Committee and later President of the Council of State and the National Defence Council.
The Reunification and Convictions:
The Berlin Wall fell in 1989, and Germany was reunified in 1990. After reunification, the applicants were tried for their roles in border security during the GDR era.
The German courts convicted the applicants under the principle that their actions in facilitating the shooting and killing of those attempting to flee the GDR were criminal.
Judgment:
No Violation of Article 7 § 1 (Retroactive Criminal Law):
The Court concluded that the applicants’ convictions did not violate Article 7 § 1 of the European Convention on Human Rights (ECHR), which prohibits retroactive criminal law. The applicants were convicted under laws in effect at the time of the GDR, and the Court found no breach of this provision.
No Violation of Article 14 (Discrimination):
The applicants argued that the German Constitutional Court’s decision created a discriminatory system of justice for former citizens of the GDR. They claimed that the reliance on “Radbruch’s formula” denied them the opportunity to rely on the principle of non-retroactive criminal statutes.
The Court rejected the applicants’ claim, finding that the principles applied by the German Constitutional Court had general applicability and were not discriminatory towards former GDR citizens. Therefore, there was no violation of Article 14 in conjunction with Article 7.
The principle of nullum crimen, nulla poena sine lege—no crime, no punishment without law—is a cornerstone of modern criminal justice systems, enshrined in various international treaties and conventions, including the European Convention on Human Rights (ECHR). This principle ensures that individuals cannot be held criminally responsible for actions that were not considered crimes at the time they were committed. However, in cases involving individuals who operated under oppressive regimes, questions arise about whether such a principle should be absolute or whether exceptions may be justified in cases of grave human rights violations. This opinion explores the complexity of non-retroactivity in criminal law, particularly in the context of transitional justice, and argues that while retrospective punishment should generally be avoided, certain circumstances may necessitate a deviation from this principle to ensure accountability for heinous acts committed under now-defunct regimes.
At the heart of nullum crimen, nulla poena sine lege lies the idea of legal certainty and fairness. This principle ensures that individuals are only punished for actions that were criminal at the time they were committed. In a democracy governed by the rule of law, individuals must know in advance the consequences of their actions. This prevents arbitrary and unpredictable legal decisions, protecting citizens from retroactive punishment based on political motives or changing legal interpretations. Non-retroactivity upholds the fundamental idea that criminal law must be predictable and transparent, which is essential for maintaining public trust in the justice system.
Moreover, the principle aligns with the notion of fairness. No one should face the risk of punishment for actions that were not criminal when they were carried out, particularly when the legal landscape changes. To apply criminal laws retroactively would undermine the very concept of justice, as individuals would be judged by laws that did not exist at the time of their actions, violating the expectations of fairness inherent in legal systems that prioritize individual rights.
The Role of Transitional Justice in Post-Regime Contexts
However, the application of non-retroactivity becomes more complex in post-authoritarian and post-conflict societies. When a regime collapses or transitions to a new order, there is often a reckoning with past crimes and human rights abuses committed by individuals who acted under the auspices of the old regime. Transitional justice aims to confront these past violations while facilitating the transition to a more democratic and just society. In these cases, the question arises: should individuals who were acting in compliance with the laws of the former regime be held accountable for actions that are now deemed criminal under the new legal order?
Transitional justice mechanisms—such as truth commissions, reparations, and trials—are designed to bring justice to victims of gross human rights violations. These mechanisms often challenge the principle of non-retroactivity because they involve prosecuting individuals for actions that were permissible under the previous regime but are considered egregious violations of human rights under international law or the new legal system. The dilemma lies in how to balance the need for justice with the principles of legal certainty and fairness. Holding individuals accountable for acts committed under the laws of the old regime might be seen as a betrayal of the principle of non-retroactivity, yet failing to do so could perpetuate a culture of impunity and deny justice to victims.
Accountability vs. Legal Certainty
One of the most difficult challenges in transitional justice is determining when the application of retrospective criminal law is justified. While the principle of non-retroactivity is critical to prevent injustice, it must be weighed against the need to hold individuals accountable for egregious violations of human rights that occurred under regimes that no longer exist. In some cases, actions that were legally sanctioned by the previous regime, such as killings, torture, or imprisonment without trial, would now be classified as crimes under international law, particularly under the principles of the prohibition of torture, extrajudicial killings, and crimes against humanity.
A strict adherence to non-retroactivity might lead to a situation where individuals who committed heinous acts under the authority of a previous regime go unpunished simply because those acts were not classified as crimes under the laws of the time. This could undermine the legitimacy of the new legal order and its commitment to upholding international human rights standards. In such cases, the need for accountability might outweigh the principle of non-retroactivity, especially when the acts in question involve gross violations of fundamental human rights that shock the conscience of the international community.
The Precedent for Justifying Retrospective Prosecution
International law recognizes certain exceptions to the principle of non-retroactivity, especially when it comes to the prosecution of crimes against humanity and other serious human rights violations. The Nuremberg Trials, held after World War II, set a critical precedent by prosecuting individuals for crimes against humanity, even though many of the actions for which they were tried were not specifically classified as crimes under German law at the time they were committed. The International Criminal Court (ICC) operates on similar principles, prosecuting individuals for crimes such as genocide, war crimes, and crimes against humanity, even if those acts were not considered crimes under national law at the time they occurred.
These precedents demonstrate that international law allows for exceptions to the non-retroactivity principle when the acts in question involve violations of fundamental human rights. The idea is that certain actions, such as genocide and systematic torture, are so egregious that they transcend the legal norms of any given time or regime. International human rights law has evolved to recognize these acts as crimes, irrespective of whether they were recognized as such by the legal system in place at the time. As such, there is a moral and legal obligation to prosecute those responsible for such crimes, even if the actions were carried out under the authority of a previous regime.
Striking a Balance: Transitional Justice and the Rule of Law
In balancing non-retroactivity with the need for accountability, it is crucial to ensure that the new legal order does not undermine the legitimacy of the justice system by pursuing politically motivated prosecutions. Transitional justice mechanisms must be applied with due process and transparency to ensure that individuals are not unfairly prosecuted based on retrospective legal interpretations. At the same time, these mechanisms must be robust enough to address the scale of human rights violations committed under the old regime and ensure that victims have access to justice and reparations.
A possible solution is for transitional justice systems to focus on accountability for the most egregious acts committed under the old regime, while providing mechanisms for amnesty or reduced sentences for those who were involved in lesser offenses or who cooperate with investigations. This could help maintain the balance between justice and legal certainty, providing a fair opportunity for individuals to be held accountable for their actions while also ensuring that the principle of non-retroactivity is not unduly violated.
