6.1.2 Whether a person or entity has breached the right to life
Jurisprudence regarding the right to life may differ slightly from jurisdiction to
jurisdiction but the test for breach generally consists of three common elements:
(i) Was the person / entity aware of the risk to life or would a reasonable
person / entity in similar circumstances have been so aware?
(ii) Was the risk real and substantial?
(iii) Did the person / entity take reasonable and proportionate steps to
prevent the loss of life?
The European Court of Justice provides an extensive body of jurisprudence on the
right to life. In a case, which may of particular interest to the Honourable
Commission, Öneryıldız v Turkey22, the Court considered a claim relating to an
accidental methane explosion at a waste dump, which killed 39 people. The court
held that:
(i) there has been a violation of Article 2 of the Convention in its
substantive aspect, on account of the lack of appropriate steps to
prevent the accidental death;
(ii) there has also been a violation of Article 2 of the Convention in its
procedural aspect, on account of the lack of adequate protection by
law safeguarding the right to life;
(iii) there has been a violation of Article 1 of Protocol No. 1 of the
Convention (the right to enjoyment of property); and that
(iv) there has been a violation of Article 13 of the Convention (the right to
an effective remedy) as regards the complaint under the substantive
head of Article 2.
In a key passage at paragraph 71, the court stated:
The Court considers that this obligation [i.e to take positive steps to uphold
the right to life] must be construed as applying in the context of any
activity, whether public or not, in which the right to life may be at stake,
and a fortiori in the case of industrial activities, which by their very nature
are dangerous, such as the operation of waste-collection sites …[emphasis
added]
The court went on to point out that the contingency of the risk was just one factor to
be considered (para .73):
In this connection, contrary to what the Government appear to be
suggesting, the harmfulness of the phenomena inherent in the activity in
question, the contingency of the risk to which the applicant was exposed by
22
Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004-XII
22