Article 2 of the Convention does not mention biomedical rights literally. However, due to important discoveries and devolopment in this sphere, The ECHR case-law takes up this subject.
First important question concerning the right to life and biomedicine concerns the beginning and the end of life. The Convention doesn’t clearly explain when the life begins or when it ends.
As to the beginning of “life”, the Commission stated that The term “everyone’s” seems not to be applicable to an unborn child.
Assuming that the right to life is secured to a foetus from the beginning
70 Ibidem, § 132; also Öneryildiz v. Turkey, § 89-90.
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of pregnancy, this right is subject to an implied limitation allowing pregnancy to be terminated in order to protect the mother’s life or health.71
In the case X. v. U.K., the Commision concluded that the abortion law of States-Parties has so far been the subject of several applications under Article 25. The applicants either alleged that the legislation concerned violated the (unborn child’s) right to life (Article 2) or they claimed that it constituted an unjustified interference with the (parents’) right to respect for private life (Article 8). Two applications invoking Article 2 were declared inadmissible by the Commission on the ground that the applicants – in the absence of any measure of abortion affecting them by reason of a close link with the foetus-could not claim to be “victims” of the abortion laws complained of. One application (No. 6959/75 – Brüggemann and Scheuten v. the Federal Republic of Germany), invoking Article , was declared admissible by the Commission, insofar as it had been brought by two women. The Commission, and subsequently the Committee of Ministers, concluded that there was no breach of Article 8 (Decisions and Reports 10. 100-122). That conclusion was based on an interpretation of Article 8 which, inter alia, took into account the High Contracting Parties’ law on abortion as applied at the time when the Convention entered into force.72
Later, in Vo v. France, the Court stated that art. 2 of the Convention is silent as to the temporal limitations of the right to life and, in particular, does not define “everyone” (toute personne) whose
“life” is protected by the Convention. The Court has yet to determine the issue of the “beginning” of “everyone’s right to life” within the meaning of this provision and whether the unborn child has such a right. To date it has been raised solely in connection with laws on abortion. Abortion does not constitute one of the exceptions expressly listed in paragraph 2 of Article 2, but the Commission has expressed the opinion that it is compatible with the first sentence of Article 2
§ 1 in the interests of protecting the mother’s life and health because
71 EComHR decision X. v. U.K., 13.05.1980, appl. no. 8416/79, p. 244.
72 Ibidem, p. 248-249.
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“if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the ‘right to life’ of the foetus.”73
As to the issue of abortion under article , The ECHR recalled its previous case law and stated, that whenever a woman is pregnant her private life becomes closely connected with the developing foetus. However, it’s necessary to decide, in this context, whether the unborn child is to be considered as “life” in the sense of Article 2 of the Convention, or whether it could be regarded as an entity which under Article 8 § 2 could justify an interference “for the protection of others”74
To sum up, according to the Court the unborn child is not regarded as a “person” directly protected by art. 2 of the Convention.
If the unborn do have a “right” to “life”, it is implicitly limited by the mother’s rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that
“Article 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother.”75
The above clearly shows that, in time, and after developing a consensus between State-Parties in their law systems, there may be a possibility to re-evaluate the meaning of article 2 in the sphere of foetus protection. This interpretation is also in conformity with European Boethical Convention, which takes under its protection
“human being”, which also means protection of the unborn child.
As it may seem, the Court does not impose positive obligations in the sphere of pre-natal phase of “life”. However, the development of medicine and more often diversities between Stasbourg judges in their separate opinions may give rise to the assumption that it may
73 ECHR judgment Vo v. France, 8.07.2004, appl. no. 53924/00, § 75.
74 Ibidem, § 76.
75 Ibidem, § 80.
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change, after changing the interpretation of art. 2 by using the “living instrument” concept. However due to poor consensus between State-Parties, for the time being, such a change of line of interpretation of art. 2 might need the changes in its very text.
The Court had also taken up the subject of end of human life.
Undeniable impact on the Court’s case law had the case Pretty v. U.K.
The case concerned a terminally ill woman, who wanted to commit assisted suicide (with a help of her husband). She wanted to prove the right to assisted suicide under the Convention.
In Pretty case, the Court recalled its case-law and reminded 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. This obligation extends beyond a 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 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.76
As to article 2 itself, the Court The underlined the put on the obligation of the state to protect life. The Court is not persuaded that
“the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise. Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from state interference, they may be reflected in the rights guaranteed
76 ECHR judgment Pretty v. U.K., 29.04.2002, appl. no. 2346/02, § 38.
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by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.77
ECHR underlined that article 2 cannot guarantee an opposite right the right to death. The Court didn’t find breach of art. 2 in this respect. Nor did in respect to alleged breach of art. 3, 8, 9 and 14.
Pretty case doesn’t construct state’s positive obligations to provide the right to euthanasia or assisted suicide. State’s positive obligations in this respect are – in fact – in opposition to such obligations. As the Court stated in Osman, 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.7 That’s how state’s positive obligation concerning assisted suicide or euthanasia is founded.
Such interpretation is confirmed in Council of Europe soft-law. Recommendation 779 (1976) clearly states that the doctor must make every effort to alleviate suffering, and that he has no right, even in cases which appear to him to be desperate, intentionally to hasten the natural course of death.79 The above had also been stressed in Recommendation 1418 (1999).80
77 Ibidem, § 39.
7 Osman v. U.K., § 115.
79 Parliamentary Assembly (PA), Reccomendation 779 (1976) on the rights of the sick and dying, 28.01.1976, § 3.
80 PA, Recommendation 1418 (1999) Protection of the human rights and dignity of the terminally ill and the dying, 25.06.1999, § 9 c) I-III.
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* * *
Zobowiązania pozytywne państwa dotyczące art. 2 EKPC.