The 2nd of all EU-r rights: the right to life and what the Charter has to contribute

“Everyone has the right to life” and “No one shall be condemned to the death penalty, or executed.” This is what Article 2 of the Charter tells us. We tend to associate the right to life with extremes: On the one hand, with capital punishment or excessive police violence in semi-dictatorial regimes and, on the other, with sophisticated discussions about the beginning of life (e.g. in the context of abortion) and its end (e.g. in the context of euthanasia) in modern societies. All these contexts seem rather unrelated to the EU. How is it then, that the EU enters with Article 2 of the Charter a territory that appears seemingly quite removed from “Brussels”?[1]

The Charter’s right to life: room for action?

There are at least three reasons why it is important the EU Charter protects the right to life:

• Firstly, the scope of EU legislation is expanding. Back in 2000 when the Charter was proclaimed, questions of ‘life and death’ were beyond the EU’s scope. This has changed as the European Arrest Warrant or the fight against terrorism show. Or take the example of FRONTEX and the protection of the EU’s external border, not to mention the Common Foreign and Security Policy of the EU[2] and possible EU military missions in third countries: all contexts where the EU could run the risk of violating the right to life.
• Secondly, the right to life goes beyond drastic scenarios. It is present and relevant also in more daily contexts. The right to life might for instance pop up in the context of public health and the question of what sort of claims can be made in advertisements for medicinal products.[3] Or even in the context of environment given that the EU rules on, for instance, air quality can be seen as putting „in concrete terms the Union’s obligations to provide protection following from the fundamental right to life“.[4]
• Thirdly, the EU has been propagating the abolition of the death penalty vis-à-vis third countries for many years and continues to do so. In fact, the global trend is positive. 142 countries, representing three quarters of the UN member states, have stopped using the death penalty. In 2018, executions were carried out in 20 countries, “representing a historic low of 10% of the countries of the world”. Committing internally to the prohibition of the death penalty increases the EU’s legitimacy when fighting the death penalty externally.

The right to life in the Member States

At national level the right to life is a very obvious and prominent component of human rights protection. A look in the 27 constitutions reveals three points:

• Three in four EU Member States have constitutions whose texts explicitly establish a right to life.
• The constitutions of 15 EU Member States explicitly forbid the death penalty, with Greece and Spain leaving space for exceptions in times of war.[5] However, due to the fact that since 2014 all EU Member States have ratified Protocol No. 13 to the ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms), concerning the abolition of the death penalty in all circumstances, the EU territory became a ‚death penalty free zone‘ – also in the scenario of a war.
• The constitutions of Cyprus and Malta explain that the deprivation of life can be justified when absolute necessary force is used to defend a person from unlawful violence, to effect a lawful arrest (or prevent an escape) or in action lawfully taken for the purpose of quelling a riot or insurrection. This is a replication of the text of Article 2 of the European Convention on Human Rights and is thus of relevance also to all the other EU Member States.

Diversity rather than unity reigns at national level when it comes to the question of whether or not the right to life already applies before birth. The Czech and the Slovak constitutions stress that human life is worth protection even before birth[6], the Irish constitution “acknowledges the right to life of the unborn … with due regard to the equal right to life of the mother”[7] and, finally, the Hungarian constitution protects “the life of the foetus from the moment of conception”.[8] The constitutional texts of the other Member States remain silent on this point, just as the EU Charter itself.

So what?

Our right to life is not only protected under national and international law but also under EU law. So far, this right has not been of major practical relevance in case law. But it is definitively good to have it, so as to ensure that EU law and policies respect this right. Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

[1] This is a legitimate question. The right to life is perhaps the provision that best exemplifies a general characteristic of the Charter. Namely that the Charter is drafted in a ‘competence-agnostic’ language: it does not take into account whether or not the EU holds relevant competences in the fields of special relevance for a specific right. In fact, a Swedish member of the European Convention drafting the Charter in the years 1999 and 2000 proposed to skip the right to life altogether, given that the EU would lack relevant competences that could intrude into the right to life. See Martin Borowsky, Artikel 2, in Juergen Meyer and Sven Hoelscheidt, Charter der Grundrechte, 5^th edition 2019, at p. 151.

[2] Article 2 was for instance referred to in the context of the freezing by the EU of funds of a private party, see CJEU, Case T-579/11, judgement of 12 February 2015.

[3] See opinion by the AG in the case C‑249/09 delivered on 19 October 2010, paras 49 and 50.

[4] See opinion by the AG in the case C‑723/17 delivered on 28 February 2019, para 53.

[5] Art. 7(3) of the Greek constitution and Art.15 of the Spanish constitution.

[6] Art. 6(1) of the Czech constitution and Art. 5 (1) of the Slovak constitution.

[7] Art, 40.3.3. of the Irish constitution.

[8] Art. II of the Hungarian constitution.