States are obliged to protect the right to life under first sentence of art. 2. It states that: Everyone’s right to life shall be protected by law. In contradiction to clearly negative wording of prohibition of deprivation of life, obligation to protect the right to life is formulated in a clearly positive way. This positive obligation, interpreted in connection with prohibition of deprivation of life, creates a fundamental element of the right to rife.
First sentence of article 2 may suggest that this obligation extends to a very large sphere. So, what does this obligation imply?
Is a state in default under this provision for deaths in car accidents?
Fawcett rightly states that it is not life, but the right to life, which is protected by law.42
Also, the Court’s case-law shows clearly, that the obligation to protect life isn’t indefinite. It has its reasonable boundaries. In numerous cases, Strasbourg organs stated that: The first sentence of Article 2 imposes a broader obligation on the state than that contained in the second sentence. The concept that “everyone’s life shall be protected by law” enjoins the state not only to refrain from taking a person’s life
“intentionally” but also to take appropriate steps to safeguard life.43 Case Association X v. U.K. confirms this interpretation. Commission stated that according to first sentence of article 2 states are obliged to undertake adequate measures to protect life.44
The express positive obligation to take appropriate steps
42 J.E.S. Fawcett, The Application of the European Convention on Human Rights, Oxford, 1987, p. 37.
43 European Commission on Human Rights decision Naddaf v. German Federal Republic, 10.10.1986, appl. no. 11604/85, § 1.
44 EcomHR decision Association X v. U.K., 12.07.1978, appl. no 7154/75, p. 31.
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to protect the lives of individuals within its jurisdiction. This positive obligation had been expressed for the first time in case L.C.B v. U.K.
ECHR stated that the Court considers that the first sentence of Article 2 § 1 enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.45
This obligation had been extended in an important judgment Osman v. U.K. In Osman, the Court recalled its previous interpretation expressed in L.C.B. case. The Court noted that the first sentence of Article 2 § 1 enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the state’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.46
In this respect, ECHR imposed on states few sets of positive obligations:
- legislative obligations;
- procedural obligations;
- preventive obligations.
Some of the above positive obligations will be subjected to a further study in second part of this article, fully dedicated to state’s procedural obligation under article 2 of the Convention.
It is essential to underline that state’s positive obligations in Osman case, do have their boundaries. The Court has to bear in mind the difficulties involved in policing modern societies, the
45 L.C.B. v. U.K., § 36.
46 ECHR judgment Osman v. U.K., 28.10.1998, appl. no. 23452/94, § 115.
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unpredictability of human conduct and the operational choices, which must be made in terms of priorities and resources. According to that, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.
Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and of the Convention.47
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities 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 or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.48
The ECHR, initially, constructed this standard on a basis of article 1 (the obligation of Contracting States to secure the practical and effective protection of the rights and freedoms), read together with article 2. In this context for the Court, having regard to the nature of the right protected by art. 2, a right fundamental in the scheme of the Convention, it became sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.49
It should be noted, that the above obligation had been
47 Ibidem, § 116.
48 Ibidem.
49 Ibidem.
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constructed under article 2, read together with article 1 of the Convention. In the evolution of Court’s case-law, The ECHR decided that this obligation arises solely on the grounds of art. 2 and there is no need for joint interpretation of art. 2 para. 1 with art. 1, because the positive obligation to protect individuals from a real and immediate risk to their lives, that state knew or ought to have known, arises from article 2 itself. This issue will also be subjected to further inquiry.
Positive obligation to take measures “within the scope of state’s powers which, judged reasonably, might have been expected to avoid the risk, about which authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life”50, formulated in Osman case seems to be a very wide obligation. The scope of this obligation isn’t limitless, however judging after the development of the Strasbourg case-law, it seems to be evolving and widening its scope.
First of all, as the ECHR stated, for the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.51
The Court, taking the above into consideration, discovered an important difference between the Osman case and the case Mastromatteo v. Italy. In this case applicant’s son had been killed by M.R. and G.M, two convicts searched by the law, who at the time were free due to resocialisation programme. In this case, the Court underlined that it differs from Osman case and that it is not a question of determining whether the responsibility of the authorities is engaged for failing to provide personal protection to A. Mastromatteo. The main issue is the
50 Ibidem.
51 Ibidem, also ECHR judgment Kiliç v. Turkey, 28.03.2000, appl. no. 22492/93,
§ 63.
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obligation to afford general protection to society against the potential acts of one or of several persons serving a prison sentence for a violent crime and the determination of the scope of that protection.52
In this case it became clear that if M.R. and G.M. had been in prison, A. Mastromatteo would not have been murdered by them.
However, a mere condition sine qua non does not suffice to engage the responsibility of the State under the Convention. The Court decided, that it must be shown that the death of A. Mastromatteo resulted from a failure on the part of the national authorities to “do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge”. The relevant risk in the present case was a risk to life for members of the public at large rather than for one or more identified individuals.53 Consequently, ECHR decided that there was no breach of article 2 in this case.
In various cases, the Court consequently formulated this obligation on a basis of real necessity to guarantee protection to an individual. In Akkoc v. Turkey, ECHR stated, that the scope of this positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.
Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities 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 or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.54
The above clearly shows, that the boundaries crossed by the Court within the positive obligation to protect life are clear and can’t impose disproportionate burden on a state.
52 ECHR judgment Mastromatteo v. Italy, 24.10.2002, appl. no. 37703/97, § 69.
53 Ibidem, § 74.
54 ECHR judgment Akkoc v. Turkey, 10.10.2000, appl. no. 22947/93, 22948/93, § 78.
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5. Legislative positive obligations concerning article 2