ШИРЕЊЕ ОПСЕГА ОБАВЕЗЕ ДРЖАВЕ ДА ШТИТИ ПРАВО НА ЖИВОТ ЛИЦА ПОД СВОЈОМ ЈУРИСДИКЦИЈОМ ПРЕМА НОВИЈОЈ ПРАКСИ ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА
EXPANDING THE SCOPE OF THE OBLIGATION OF THE STATE TO PROTECT THE RIGHT TO LIFE OF PERSONS UNDER ITS JURISDICTION ACCORDING TO THE RECENT JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

Summary/Abstract: The right to life is indisputably the most important human right. It is safeguarded in almost all international human rights conventions which envisage the right to life before all other rights. Thus, in the European Convention on the Protection of Human Rights and Freedoms (ECHR), the right to life is enshrined in Article 2, which provides for the protection of this right and obligations stemming thereof. Under Article 2, a State is obliged to refrain from violating the right to life by the actions of its state bodies. On the other hand, the jurisprudence of the European Court of Human Rights (ECtHR) has established additional obligations for states, aimed at protecting human rights. One of them is the positive obligation which implies taking measures by the State in order to protect the right to life from the actions of third parties, which are not state bodies. According to the so-called Osman test, when asked to establish whether there has been a violation of Article 2 of the Convention, the Court will examine whether the State was aware of the existence of a real and imminent risk to life, which the State knew or could have known of, and whether the State had undertaken adequate measures to eliminate that risk. The Court’s case law also recognizes the principle that the Convention is to be interpreted as a “living instrument”, in light of contemporary circumstances. By applying this principle, the Court has expanded the scope of the positive obligation of the State to protect the right to life of persons under its jurisdiction, which is evident in the recent practice of the Court. First, based on the Mastromatteo and Maiorano cases, the Court has established the criterion that there shall be a risk to society, instead of a risk to the life of a specific or at least identifiable person. Then, based on the Bljakaj case, the Court introduced an additional criterion of “a critical moment in the development of events” which the State clearly identified as bearing a risk to human life. Finally, in the case of Kotilainen and Others v. Finland, the Court intro¬duced the criterion of “due diligence”. In this paper, the author analyzes the case law of the Court in an attempt to determine the actual limits of the positive obligation to protect the right to life. The author also seeks to establish whether the Court views on the scope of the positive obligation in the recent case law are in line with other previously established principles and positions in the ECtHR jurisprudence. Upon the analysis, the author concludes that the limits of the positive obligation to protect the right to life have already been determined in certain sentences from the Court’s judgments. Thus, it is unnecessary to introduce additional and insufficiently specified criteria, which can negatively affect legal certainty and impose an excessive burden on state authorities.

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