Euthanasia and assisted death

Euthanasia is the act of deliberately ending a person's life to relieve suffering. The only countries that have legalised euthanasia are Spain, Belgium, Luxembourg, the Netherlands, Canada and Colombia.^[32] Some countries provide legal access to assisted dying, which is completely voluntary and under the control of the dying person rather than a doctor; these countries include: New Zealand (for terminally ill adults), Australia, Canada, Switzerland (however euthanasia is illegal) and some states in the USA including Oregon, Washington and California.^[33]

In the United Kingdom, the Suicide Act 1961 legalised the attempt to take one's own life.^{[34]: s. 1} However, it remains an offence to assist the suicide of another person.^{[35][34]: s. 2}

The case of Pretty v UK was brought before the European Court of Human Rights, to determine whether the claimant's request for her husband to assist her suicide being denied would infringe her Article 2 rights.^[36] Despite assisted suicide being illegal in the UK, the reason there was held to be no violation of Article 2 is because this right safeguards lives and does not confer any right to die.^[36]

Life-sustaining treatment

The case of Lambert and Others v France outlines the importance of the margin of appreciation when the court is assessing the positive obligation of the State under Article 2.^[37] The applicants alleged a breach of Articles 2, 3 and 8 of the Convention.^[37] The Conseil d'État held that the patient's doctor must decide whether artificial nutrition should be withdrawn based not only on medical factors, but any previous wishes expressed by the patient, and the views of the patient's family members (the withdrawal having been agreed with by his wife and six siblings), and that the Dr Kariger did comply with all requirements and therefore his decision of withdrawal was lawful and not a breach of Article 2.^[37]

The case of Parfitt v UK also concerns a complaint against Article 2 of the Convention, with the applicant claiming that withdrawing her daughter's life-sustaining treatment would be a violation of her daughter's Article 2 rights, the applicant's daughter being in a permanent vegetative state with no chance of improvement.^[38] Following the High Court's declaration in January 2021 that it would not be unlawful for her hospital to withdraw treatment, the applicant obtained an interim measure under Rule 39 of the Rules of Court (an urgent measure which applies where there is imminent risk of irreparable damage: Paladi v Moldova).^[39][38] The applicant's complaints were held inadmissible as her complaint of an Article 2 breach was manifestly ill-founded.^[38]

Abortion

Article 2 does not recognise an absolute right to life. In abortion cases there is a wide margin of appreciation because of the lack of consensus in Europe.

In the case of Paton v United Kingdom it was established that if Article 2 were to include in its protection the life of a foetus, then abortion would have to be prohibited even in life-threatening circumstances.^[30] As states in the judgment of the case "this would mean that the 'unborn life' of the foetus would be regarded as of a higher value than the life of the pregnant woman".^[30]

• X v UK – abortion of 10-week-old foetus to protect physical and mental health of women was not a breach.^[40]
• H v Norway – abortion of 12-week-old foetus for social reasons, to prevent putting the women in a "difficult situation in life" (literal interpretation of Norwegian statute) was not a breach, again due to lack of consensus in Europe on the issue of abortion. The case was brought by the expectant father who did not want the abortion carried out.^[41]
• VO v France – as a result of medical negligence damaging the amniotic sac, a termination of the pregnancy was required.^[31] The Court had not considered whether an unborn child has rights under Article 2 and some case law indicated they would not have a right to life.^[31] The Court did not consider the right to life issue, rather stating that civil remedies were available and thus that satisfied the requirement for legal and administrative framework as set out in LBC v UK.^[9][31]
• Evans v UK – the claimant complained of a breach of Article 2 of the Convention, following a requirement to destroy embryos after her former partner withdrew his consent to their storage and usage.^[42] The same margin of appreciation doctrine was used as in VO v France, with specific reference to lack of European consensus thus necessitating a wide margin of appreciation.^{[42] [31]} The Court reaffirmed the idea that an embryo cannot have claimed on its behalf a right to life under Article 2, and thus there was no violation.^[42] The ECHR cannot impose requirements, rather it protects minimum rights common to all the signatory states.^[42]

Taking life by force of arms

The taking of life by state agents is strictly prohibited except for exceptional circumstances, whilst private killings require investigation and legal and administrative protection.

In Makaratzis v Greece a car chase by police led to them shooting wildly at the car.^[11] No death resulted but there was found to be liability as the nature of the incident could have been lethal, thus the inadequacy of planning and conduct of the officers constituted a breach.^[11]

Killings by state agents are notoriously difficult to prove in many situations. In cases where a person is taken into custody and dies, it is for the state to show how he died, as was the case in Salman v Turkey.^[18] Per Demiray v Turkey the explanation must be satisfactory.

Akkoc v Turkey invoked a killing by a suspected state agent. The state refused to support the investigation and provide evidence, thus the court turned the burden of proof on the state to justify with holding information. In Estimarov v Russia it was held that reasons must be provided for the killing of the suspect.

The burden of proof issue is a difficult one which is somewhat mitigated by the fact that the court finds breaches in failures to investigate. Thus if a death occurs the state is obligated to investigate it, which it is unlikely to do where one of its agents is responsible, thus there is a breach. The investigation must also be effective, as in Jordan v UK. In other words, the state is caught between a rock and hard place.

In cases where persons have been detained by security forces and have subsequently disappeared, the court has stated that two criteria must be satisfied:

1. it must be shown beyond reasonable doubt that the missing person was detained by security forces or state agents.
2. there must be "sufficient circumstantial evidence, based on concrete elements, on which it may be concluded beyond reasonable doubt that the person is dead" (Cakici v Turkey).

If these requirements are met, the burden of proof turns to the state to explain what has happened to the person.

The main problem here is that there is often no record of arrest, and further no way of obtaining circumstantial evidence. In Kurt v Turkey, the son of the applicant was arrested by security forces. The state claimed the person had instead left with rebel fighters. The court had little evidence to show where the son had been taken and what happened to him. He had been missing for 4+1⁄2 years. The court refused to recognize that the arrest by the security forces was in its context life-threatening and thus refused to shift the burden onto the state.

• Timurtas v Turkey – the applicant's son was arrested by security forces but unlike Kurt, he was taken to an identifiable location and was seen by other detainees in the facility for months. There was also an operational report shown to the court but was contested by the State. The court requested the state provide evidence to support its claims that the operational report was fake; the state refused on security grounds. Thus the court turned the burden of proof on the state in order to show what had happened to the missing detainee and subsequently found a breach of article 3. The case is distinguished from Kurt because the applicant was missing for 6 years. Further, in the context of southeast Turkey, persons arrested on suspicion of having links to PKK rebels were shown in other cases such as Kaya, Yasa Kilic etc. to be life-threatening. The abducted person was suspected of these links. Thus the circumstantial evidence was sufficient to turn the burden of proof. The requirement for circumstantial evidence decreases with the number of years the missing person is unaccounted for, provided he was detained by the state.
• Cyprus v Turkey – The court was not ready to presume death for 1700 civilians that disappeared when the north was invaded.
• Baysayeva v Russia – This case totally discarded Kurt and went further than Timurtas in that there was no circumstantial evidence to presume death. The Court simply relied on the fact that the abduction had been by unidentified state agents in uniform. There was no record of arrest and a procedural failure to investigate, thus it was accepted that the arrest was life-threatening in the circumstances.

Permitted killings

Capital punishment is effectively nonexistent in the signatory states. All members are signatories to Protocol 6 which bans the death penalty in peacetime. Further, many states are signatories to Protocol 13 which bans it outright.

The main issue here then is extradition to countries where the person life is at risk.

• Oscalan v Turkey – A PKK leader was arrested in Kenya and sentenced to death in Turkey. He had his sentence reduced to life imprisonment. At the time, however, Turkey was in the process of signing protocol 6, thus there were genuine fears that due to his status and public opinion as well as political pressures he may be executed. The court found that there had been a breach of Article 6 (unfair trial), thus to sentence him to death would be a breach of Article 3.
• Soering v UK – also demonstrates how the courts ineffectively use Article 3 to prohibit death sentences in the context of extradition. However the court did recognize "death row syndrome", in which psychological distress is caused while awaiting execution. Thus it is a breach of article 3 to sentence one to death, but death row syndrome itself does not constitute inhuman treatment.

Death from permitted use of force

• McCann and Others v United Kingdom (1995) 21 EHRR 97 – force applied must be no more than 'absolutely necessary' meaning that it must be strictly proportionate to the achieve the permitted purpose.^[1] This goes beyond proportionality as we find it in Article 8 and others. It is extremely strict with no margin of appreciation afforded. The court simply construes facts as they are and reaches an impartial assessment.

Micheal O'Boyle^[who?] says that the situation regarding shootings must be judged with the facts of the situation at the time and not ex post facto. This has also been a criticism of dissenting judges in McCann v UK, who stated that the courts should be wary of the benefits of hindsight in their finding of a breach of Article 3 on the case.

The use of deadly force must be lawful at a national level (C v Belgium, Kelly v UK, Stewart v UK) and must meet the requirements of lawfulness as set out in Article 5 and the case of Bozano v France, thus meeting the rule of law requirement as expected in a democratic society so as to allow the citizens to conduct their lives accordingly as stated in Sunday Times v UK.

Defence of oneself or of another

Firstly, shooting in defence of property is not allowed. The signatory states did not incorporate the 4th derogation of shooting to stop access to certain facilities which was suggested at the time or writing the treaty.

• McCann v UK – soldiers did not breach article 3, they responded to a threat at the time and their response was lawful; the breach was by the authorities in planning. Firstly, they did not stop the suspects at the border, which they should have. Secondly, they used extremely lethal SAS soldiers who had been trained to kill and informed that the suspects had remote detonators, thus relying on false intelligence which they did not question.
• Andronicou and Constantinou v Cyprus – police commandos raided a flat in which a man was holding his fiancée hostage. No breach was found as the soldiers' shooting and thus killing both persons was in self-defence and defence of the fiancée. There was also no procedural breach of planning as in McCann because the authorities in the circumstances acted proportionally in self-defence of the fiancée who was in real and immediate danger.
• Gul v Turkey – the raid on a flat suspected to have PKK militants was grossly disproportionate in its use of force.
• Isayeva v Russia – rebels entered a town of 20,000. The Russian security forces responded with artillery and aircraft fire. They made available information to the population regarding a safe passage out of the town. The court found this inadequate whilst also finding the use of such lethal force on a crowded place to be disproportionate especially in peacetime. The breach was as a result of the planners to have regard for civilian lives.
• Isayeva, Yosupova and Bazayeva v Russia – an air force plane reported receiving small arms fire from a convoy, and subsequently got authorization to attack. The air-to-ground missile attack killed scores of people, including the applicants' children. Subsequent investigations showed no presence of fighters in the convoy. The court rejected the state's argument of self-defence, as the use of such firepower was grossly disproportionate.
• Nachova v Bulgaria – it is grossly disproportionate to use lethal force to effect an arrest, as the force cannot be considered absolutely necessary, especially when the person was not posing any threat, simply running away from military police who wanted to arrest him for dereliction of duty. Further, the court ruled in Kelly v UK that to shoot a person when seeking to arrest them defeats the purpose of the mission, which is to bring them before a court. It also rules out any future arrest and the fact that the victim will not get a chance to defend himself in law.

Riots and insurrections

• Stewart v UK – 150 people throwing missiles at a patrol of soldiers amounted to a riot, although there were no clear criteria in law as to what constitutes a riot.^[43] Thus the force used in firing plastic bullets killing a 13-year-old boy was proportionate.
• Gulec v Turkey – a crowd of several thousand throwing missiles at security forces and damaging property was also deemed to be a riot. There was however a breach here as the McCann obligations still apply regarding proportionality. So the security forces had fired shots at the ground near the rioters to scare them off. Ricochet bullets killed the applicant's son. The breach was found in that the authorities had not provided any riot equipment to the security forces even though a state of emergency was declared, thus it was expected that violence would occur. The operation had not been planned so as to minimize risk to the civilians.
• X v Belgium – A police officer shot an innocent bystander in the course of a riot. He had no authorisation to use the weapon, thus his actions were not lawful, therefore there was a clear breach.