Discuss the extent of the states obligations under articles 2 and 3 of the European Convention on Human Rights.

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NAME:                Mohammed Zaki Sheikh

                        99070738

Subject:                Human Rights

                        Law 17-3

Date of

Submission:                10/04/2002

The European Court of Human Rights was set up in 1959 in Strasbourg to deal with alleged violations of the 1950 European Convention on Human Rights. On 1st November 1998 a permanent Court was established, replacing the original two-tier system of a part-time Commission and Court. The Human Rights Act 1998 is based on the Universal Declaration of Human Rights at the general assembly of the United Nations on 10th December 1948. 

Discuss the extent of the states obligations under articles 2 and 3 of the European Convention on Human Rights?

Article 2 - Right to life
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.

The introduction of a "right to life" in the Human Rights Act does not mean that states must always strive to prolong life, but that specific consideration must be given to this right. Article 2 imposes positive and negative obligations on public authorities such that they have a duty to take adequate and appropriate steps to protect the life of individuals in their care, as well as not to take life intentionally. It is therefore arguable that the state is obliged to make adequate provisions for medical care in all cases where the right to life of a patient could be at risk, and that withholding or withdrawing any life prolonging treatment could be in breach of Article 2.

The extent of the public authority’s obligation, however, is limited to that which is reasonable. In Mr Justice Cazalet made clear that Article 2 does not require the prolongation of life in all circumstances. He said, “There does not appear to be a decision of the European Court which indicates that the approach adopted by the English Courts in situations like this (withdrawal of life-prolonging treatment) was contrary to Article 2”. In this case it was held that withholding life – prolonging treatment did not breach Article 2 because the decision was in the best interest of the child. This was confirmed in subsequent case involving two patients in a vegetative state.

The case was heard in the High Court days after the Acts implementation and confirmed that the withdrawing of artificial nutrition and hydration is in a patient’s best interest. There is no breach of Article 2.

This is clear that the courts view “the best interest” of the individual. The state must show that the right to life was specifically considered and, where treatment is not provided, to demonstrate legitimate grounds for not taking steps to enforce that right. People cannot waive their right to life by consenting to be killed; a competent adult however may waive the right to have life prolonged by making an informed refusal of life prolonging treatment. Treatment that can prolong life may sometimes be withheld on the grounds of scarce resources. Public authorities are only required to take those steps to avoid death that are “appropriate” and appear that a shortage of resources may be a valid constraint to providing life-prolonging treatment. Article 2 does not state that everyone has the right to life, only that right protected by law.

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Article 3 - prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 3 is an absolute right, allowing no derogations but it can be interpreted in various ways. Whether an act constitutes inhuman or degrading treatment depends upon a range of factors and the individual circumstances of each case. Withholding proper medical care in a case where someone is suffering from a serious illness could, in certain circumstances, amount to treatment contrary to Article 3. Equally, however, providing invasive treatment contrary to the patient's expressed wish or his or her ...

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