NEW TENDENCIES IN THE PROTECTION OF THE RIGHT TO LIFE IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS - CHALLENGES FOR THE REPUBLIC OF SERBIA
Authors:   University of Criminal Investigation and Police Studies, Kolarić Dragana 
Published: October 2024

The right to life belongs to the hard core of human rights, which cannot be derogated, guaranteed by Art. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 24 of the Constitution of the Republic of Serbia. The European Court of Human Rights has built important standards regarding the protection of the right to life. Non-derogability is highlighted by some authors as an important characteristic of absolute rights. However, there are inherent limitations to the right to life, unlike some other rights that belong to the core of human rights, which have no inherent limitations, thus denying it absolute character. If the deprivation of life is allowed in certain situations according to paragraph 2 of Article 2 of the European Convention on Human Rights and Fundamental Freedoms, does this, by its very nature, negate its absolute significance? Through an analysis of some recent decisions of the European Court of Human Rights related to Article 2 and Article 8, concerning the right to life and the right to respect for private and family life, which are linked to Article 23 of the Constitution of the Republic of Serbia, regarding the right to dignity and free development, the author points to a new sensibility, a new “essence” and “nature” of the legal reasoning of the Strasbourg court. It sheds light on the right to life in a different way, increasingly highlighting the right of an individual to self-determination, a dignified life, and personal freedom. In the judgment of the ECtHR in Mortier v. Belgium, where it was examined for the first time whether the act of euthanasia was in accordance with the ECHR, the nature and scope of the state’s positive obligations (material and procedural) were explained based on Art. 2 in the very specific concrete context of euthanasia requested by a depressed woman. This case was examined also under both Article 2 and Article 8. Furthermore, the decision of the Chamber in Gross v. Switzerland, although it never became legally binding, is significant because of the issues it raised. Namely, the Chamber’s decision established a violation of Art. 8 because the Swiss law is not sufficiently clear and specific regarding the permissibility of assisting suicide. As part of dealing with this topic, particular attention has been given to the expert analysis of the decision by the Federal Constitutional Court of Germany, which determined that the criminalization of assistance in suicide under paragraph 117 is unconstitutional. Bearing in mind that these decisions are closely related to the corresponding incriminations in the criminal legislation, the author points to new tendencies in the protection of the right to life in the criminal law. In the direction of challenges for the future work of the Constitutional Court of Serbia, in addition to clarifying the nature and scope of the state’s positive obligations (material and procedural) based on Art. 2 in the specific concrete context of the execution of euthanasia, the author referred, related to Article 2, to the analysis of the nature and extent of the state’s positive obligations (material and procedural) based on Art. 2 in the specific context of domestic violence in the judgment of the Chamber and Grand Chamber in Kurt v. Austria,1 bearing in mind the similarity of the legal framework for combating domestic violence between Austria and Serbia. This decision also sets standards, specifying the scope and content of the state’s positive obligation, from paragraph 115 of the judgment of the Grand Chamber in Osman v. the United Kingdom, regarding the obligation to take preventive operational measures to protect an individual whose life is threatened by the commission of criminal acts by another individual.