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Foreword
by
Vassilios Skouris, President of the Court
of Justice of the European Union
The protection of fundamental rights in the European Union, as we know it today, is the
result of an evolutionary process that lasted over five decades. In that respect, one can-
not but emphatically point out the pioneering role of the ECJ. Early in the development
of its jurisprudence, the ECJ sensed that the doctrines of supremacy and direct effect of
Community law, as developed in the early landmark cases, could not hold their ground
without being coupled with a system of judicial review of violations of fundamental
rights. Notwithstanding the fact that the Treaties contained neither a Bill of Rights, nor
even a legal basis for legislative initiatives in that field, the ECJ proceeded prudently by
first asserting that fundamental human rights are enshrined in the general principles
of Community law and protected by the Court and later on stating as sources of inspi-
ration the common constitutional traditions of Member States and the international
treaties to which they are signatories. Parallel to the evolution of the Court’s case-law
on human rights, legislative developments moved towards the same direction, albeit at
a slower pace. The Charter of Fundaments Rights of the European Union was the defin-
ing moment of this process not only because of its evident symbolic and substantial
importance but also because of the unprecedented transparent political processes that
led to its establishment.
As a consequence, the fundamental rights of Europeans are better guaranteed now
than ever before. Through a combination of EU and Council of Europe instruments, on
the one hand, and national constitutions, on the other, the harmonious coexistence of
these parallel systems of protection over several decades has made Europe a world leader
in the application and enforcement of fundamental rights. This is a stunning achieve-
ment, and one that is not to be overlooked in the light of fresh challenges, such as the
accession of the European Union to the ECHR.
The Charter of Fundamental Rights undoubtedly brings transparency to fundamen-
tal rights protection. Prior to its promulgation, legal advisors were obliged to research
the vast corpus of Court of Justice case law in order to determine whether a right they
might be seeking to enforce existed as a fundamental principle guaranteed by the EU
legal system, before they could even commence the task of assessing whether or not it
might have been breached. Worse still, European citizens had no easily accessible instru-
ment to which to turn, to inform them of the content of European Union fundamental
rights, the guarantee of which they were entitled to expect. Both of these significant
shortcomings have been cured by the advent of the Charter.

vi
This important book takes the process of bringing transparency to EU fundamental
rights protection even further. As one of the first comprehensive commentaries on the
Charter written in the English language, it will reach broad audiences both within and
beyond the borders of Europe, and help facilitate the Charter’s implementation to a
degree that has perhaps, to date, not yet been achieved. Its comprehensive article by
article analysis explains simply and clearly how and when the Charter applies, while at
the same time preserving the depth and integrity of the principles the Charter reflects.
In addition to this, a series of essays by intellectual leaders in EU fundamental right
scholarship including the Vice-President and Senior members of the Court of Justice
adds a further dimension to the study.
It is an invaluable resource for practitioners, academics, and indeed anyone who
wishes to learn more about the enforcement and protection of fundamental rights in
the European Union. I warmly recommend it.
Luxembourg, February 2014
Foreword

Editors’ Preface
Fundamental human rights. The phrase resonates in so many ways—historically,
politically, socially, rhetorically and legally. The notion of inalienable rights, which
inhere in human beings merely by reason of their humanity, and apply regardless of
nationality, race, religion, sex, gender, sexual orientation, age, disability and other cat-
egories, is a crucial part of Europe’s history, and its emergence from its dark past of the
early twentieth century. While originally the Council of Europe was the institutional
context for the development of human rights in Europe, the EU became involved in
human rights from at least the 1970s onwards. This initial development, however, was
in the context of the CJEU’s jurisprudence, rather than in a single human rights instru-
ment such as the Council of Europe’s Convention on Human Rights and Fundamental
Freedoms, or European Social Charter. It was not until the late 1990s that the idea of a
fundamental rights instrument for the EU was realised in practice.
The Charter of Fundamental Rights of the European Union, which enshrines certain
civil, political, social, economic and cultural rights in EU law, was given full legal effect
by the entry into force of the Treaty of Lisbon on 1 December 2009. This brief descrip-
tion belies a long and convoluted journey which began with a decision of the European
Council in 1999 to draw up a Charter of Fundamental Rights and resulted quite
quickly in the publication of a first draft in 2000. By December 2000, the Charter had
been enshrined in the Treaty of Nice. But between 2001 and 2004 the Charter became
enmeshed in the ultimately unsuccessful effort to introduce an EU Constitutional
Treaty, and by the end of 2004, with votes in the Netherlands and France having gone
against the Constitutional Treaty, it appeared that the Charter would remain forever in
legal limbo. Remarkably, it was revived by the Treaty of Lisbon, which at the same time
provided for the accession of the EU to the European Convention on Human Rights.
The rhetorical power of human rights is undeniable. But in this book, our focus is on
their legal status.The idea that human beings have rights that are legally enforceable against
institutions of public power (typically, institutions of government in a state) is one of the
most powerful aspects of human rights. Human rights thus embody important constitu-
tional principles, including the separation of powers and the independence of the judiciary.
As the EU has taken on greater public authority,particularly in areas where its actions affect
matters that profoundly relate to human beings (such as their freedoms, dignity and equal-
ity), the need for subjecting the EU’s decision-making to human rights review has become
ever more pressing.Whatever doubts may have existed about the importance or legal status
of the Charter during the early years of its gestation and infancy, there can be no doubt that
it now plays this important role.Having come of age,the Charter now takes its place among
the catalogue of international human rights instruments.
Each of the general editors of this volume has long been concerned with understanding
the Charter and we have all written, spoken and taught about it; in Angela’s case she has
advised clients extensively about it and appeared as counsel in leading fundamental rights
cases. In 2003, when the shape of the Charter was known but its ultimate fate remained
unclear, two of us, Tammy and Jeff, writing in the Introduction to our book Economic
and Social Rights under the EU Charter of Fundamental Rights (Oxford, Hart, 2003)

viii
wondered whether ‘the inclusion of economic and social rights in the Charter would
signal a change of status of these values within the EU’s legal order?’ Only months
later, Steve and Angela, writing in the Introduction to our book The EU Charter of
Fundamental Rights: Politics, Law and Policy (Oxford, Hart, 2004) expressed the opinion
that ‘the Charter seems set to play an increasingly pivotal role in the development of
the complex legal and constitutional order of the European Union’. It turns out we were
both right and wrong. Right because the Charter has assumed huge significance within
the EU legal order, wrong perhaps in anticipating that the status of social rights would
change quite so fundamentally. But as many of the commentaries in this book demon-
strate, there have been significant changes, even in the field of social rights.
What this Commentary demonstrates most emphatically, and to our great delight, is the
depth of scholarship that has developed around the Charter. When we began this project
we had hoped to assemble an expert team to help us; what became apparent very quickly
was that we were able to attract many of the best and most interesting scholars currently
at work in European law and human rights. It is with a suitable sense of awe that we now
stand back and admire their craftsmanship and skill, and at the same time extend to them
our sincerest and most heartfelt thanks. The Charter is a major part of the landscape of EU
law, and our contributing authors have provided a sparkling examination of it.
The book has more than 50 contributing authors, which means that our list of thank
yous and acknowledgements is inevitably a long one. First and foremost we thank our
authors, who without exception accepted our invitation to contribute without hesita-
tion, and who have brought an infectious enthusiasm to the project. We cannot single
out authors for individual praise, but we thank Elspeth Guild for putting at our disposal
her firm’s office in London, where our first editorial planning meeting took place. We
also thank President Skouris of the CJEU, who eagerly accepted our invitation to write
the Foreword, and who has been an enthusiastic supporter of the project since its incep-
tion. We have leant heavily on our publisher, whose staff has been exemplary in their
professionalism and skill; Rachel Turner, Mel Hamill, Tom Adams, Charlotte Austin and
Hannah McAdams at Hart Publishing, as well as Christopher Long who copy edited
the book, have all made signal and vital contributions. And without our editor Richard
Hart embracing our vision for the project from the very beginning, we would never have
realised it. Thank you. As this book hits the bookshelves, Richard and his partner Jane
Parker will be leaving Hart Publishing; we wish them well in whatever they choose to
do in future. We are very happy to have had the opportunity to work with them, and we
offer this book as a farewell to two dedicated legal publishers.
Finally, and with sincere apologies to anyone whose contribution we may have inad-
vertently overlooked, we thank our families and colleagues for their forbearance and sup-
port during the long and occasionally stressful process of hatching this gargantuan book.
Tamara Hervey, Jeff Kenner, Steve Peers and Angela Ward
Sheffield
Nottingham
Colchester
Luxembourg
January 2014
Editors’ Preface

List of Contributors
Pekka Aalto is a Référendaire in the chambers of Advocate General Niilo Jääskinen at
the Court of Justice of the European Union.
Anthony Arnull is Barber Professor of Jurisprudence at Birmingham Law School,
University of Birmingham.
Diamond Ashiagbor is Professor of Labour Law at the School of Oriental and African
Studies, University of London.
Heli Askola is a Senior Lecturer at the Faculty of Law, Monash University.
CatherineBarnard is Professor of European Law,Co-director of the Centre for European
Legal Studies and Jean Monnet Chair of EU Law at Cambridge University.
Mark Bell is Professor of Law at the University of Leicester.
Alan Bogg is Professor of Labour Law at the University of Oxford with a Fellowship at
Hertford College.
Anne Charbord is a Consultant on Human Rights and a Guest Lecturer at the Vienna
Master of Arts in Human Rights.
Shazia Choudhry is a Reader in Law at Queen Mary, University of London.
Rui Correia Gonçalves is a Senior Teaching Assistant and PhD Student at Birkbeck
School of Law, University of London.
Cathryn Costello is the Andrew W Mellon University Lecturer in International
Human Rights and Refugee Law, at the Refugee Studies Centre, Oxford, and a Fellow
of St Antony’s College.
Paul Craig is Professor of English Law at the University of Oxford with a Fellowship
at St John’s College.
Rachael Craufurd Smith is Reader of European Union Law at the University of
Edinburgh.
Deirdre Curtin is Professor of European Law at the University of Amsterdam, the
Netherlands.
Olivier De Schutter is Professor of International Law at the Université Catholique de
Louvain, Belgium.
Eileen Denza was a Legal Counsellor, Foreign and Commonwealth Office, Council to
the Committee, House of Lords and a Visiting Professor at University College London.
Filip Dorssement is Professor of Labour Law at the Université Catholique de Louvain,
Belgium.

xl
Catherine Dupré is a Senior Lecturer in Law at the University of Exeter.
Michele Everson is Professor of Law at Birkbeck College, University of London.
Gisella Gori is a Senior Political Advisor for Human Rights and Multilateral Issues at the
Delegation of the European Union to the United States, EU External Action Service.
Paul Gragl is a Lecturer in Law at Queen Mary, University of London.
Kees Groenendijk is Professor Emeritus of Sociology of Law at Radboud University
Nijmegen, the Netherlands.
Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of
London as well as at Radboud University Nijmegen, the Netherlands.
José Antonio Gutiérrez-Fons is a Référendaire in the cabinet of Vice-President Koen
Lenaerts at the Court of Justice of the European Union, and a Visiting Lecturer at the
Universidad Autónoma de Madrid.
Ian Harden is Secretary-General at the European Ombudsman’s Office.
Maarten den Heijer is an Assistant Professor of International Law at the University of
Amsterdam.
Tamara Hervey is Head of the School of Law and Jean Monnet ad personam Professor of
European Union Law at the University of Sheffield.
Herwig CH Hofmann is Professor of European and Transnational Public Law and Jean
Monnet Chair in the Centre for European Law at the Faculty of Law, Economics and
Finance of the University of Luxembourg.
Liisa Holopainen is a Legal Officer at the Unit for EU Litigation, Ministry for Foreign
Affairs of Finland.
Niilo Jääskinen is an Advocate General of the Court of Justice of the European Union.
Jean-Paul Jacqué is Emeritus Professor at the University of Strasbourg and Honorary
Director-General of the Council of the European Union.
Jeff Kenner is Professor of European Law in the School of Law and the Human Rights
Law Centre at the University of Nottingham.
Lamin Khadar is a Researcher at the European University Institute in Florence, Italy.
Claire Kilpatrick is Professor of International and European Labour and Social Law at
the European University Institute in Florence, Italy.
Herke Kranenborg is Affiliated Senior Researcher at the Institute for European Law of
the Katholieke Universiteit Leuven, Belgium and a Member of the Legal Service of the
European Commission.
Ruth Lamont is Lecturer in Law at the University of Liverpool.
Koen Lenaerts is Vice-President of the Court of Justice of the European Union and
Professor of European Law at the University of Leuven, Belgium.

xli
Mats Lindfelt is the Director of Research and Education at Åbo Akademi University,
Finland.
Gracia Marín Durán is a Lecturer in International Law at the University of Edinburgh.
Ronan McCrea is Senior Lecturer in Law at University College London and Visiting
Professor at the Central European University in Budapest, Hungary.
Jean McHale is Professor of Health Care Law and Director for the Centre for Health Law,
Science and Policy at Birmingham Law School, University of Birmingham.
Joana Mendes is Associate Professor of European Law at the University of Amsterdam.
Sabine Michalowski is Professor of Law at the University of Essex.
Valsamis Mitsilegas is Head of the Department of Law, Professor of European Criminal
Law and Director of the Criminal Justice Centre at Queen Mary, University of London.
Violeta Moreno-Lax is a Lecturer in Law at Queen Mary, University of London.
Elisa Morgera is Senior Lecturer at the University of Edinburgh.
Hanns Peter Nehl is a Référendaire in the cabinet of Judge Viktor Kreuschitz at the EU
General Court, Luxembourg.
Manfred Nowak is Professor of International Law and Human Rights at the University
of Vienna and Director of the Ludwig Boltzmann Institute of Human Rights,
Vienna.
Charlotte O’Brien is a Lecturer at the University of York.
Colm O’Cinneide is a Reader in Law at University College London.
Elina Paunio is a Référendaire in the cabinet of Advocate General Nils Wahl at the Court
of Justice of the European Union, Luxembourg.
Laurent Pech is Professor of European Law at Middlesex University London.
Steve Peers is Professor of Law at the University of Essex.
Sacha Prechal is Judge at the Court of Justice of the European Union and Professor of
European Law at Utrecht University, the Netherlands.
Allan Rosas is Visiting Professor at the College of Europe in Bruges and the University
of Helsinki and a Judge of the Court of Justice of the European Union.
Debbie Sayers runs the legal research consultancy Inter alia and is a member of the
research panels at Interights and Matrix Chambers.
Dagmar Schiek is Professor of EU Law, Jean Monnet ad personam Chair of EU Law and
Policy and Director of the Centre for European Law and Legal Studies at the University
of Leeds.
Jo Shaw is the Salvesen Chair of European Institutions, Dean of Research and Deputy
Head of the College of Humanities and Social Science, at the University of Edinburgh.

xlii
Dinah Shelton is Professor of International Law at George Washington University,
Washington DC.
Eleanor Spaventa is Professor of European Union Law at Durham University.
Helen Stalford is a Professor of Law at the School of Law and Social Justice, University
of Liverpool.
Erika Szyszczak is a Barrister and Professor of Law at the University of Sussex.
Gabriel N Toggenburg is Senior Legal Advisor in the Directorate of the European
Union Agency for Fundamental Rights and Visiting Professor at the University of Graz.
Jonathan Tomkin is a Barrister and a Member of the Legal Service of the European
Commission.
PaulTorremans is Professor of Intellectual Property Law at the School of Law,University
of Nottingham.
Jens Vedsted-Hansen is a Professor of Law in the School of Law at Aarhus University,
Denmark.
Angela Ward is a Référendaire in the chambers of Advocate General Jääskinen at
the Court of Justice of the European Union, Luxembourg and a Visiting Professor at
Birkbeck College, University of London.
Steve Weatherill is the Jacques Delors Professor of European Law at the University of
Oxford, with a Fellowship at Somerville College.
Robin White is Emeritus Professor of Law at the University of Leicester, and a Judge in
the Administrative Appeals Chamber of the Upper Tribunal.
Elizabeth Wicks is a Professor of Human Rights Law at the University of Leicester.
Daniel Wilsher is a Senior Lecturer in Law at the City Law School, City University
London.
Bruno de Witte is Professor of European Union Law at Maastricht University, the
Netherlands and part-time Professor at the European University Institute, Florence,
Italy.
Ferdinand Wollenschläger is a Professor at the Faculty of Law, Augsburg University,
where he holds a chair for Public Law, European Law and Public Economic Law.
Lorna Woods is a Professor of Law at the University of Essex.

Article 1*
Article 1
Human Dignity
Human dignity is inviolable. It must be respected and protected.
Text of Explanatory Note on Article 1
The dignity of the human person is not only a fundamental right in itself but constitutes the
real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined
this principle in its preamble: ‘Whereas recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is the foundation of freedom, justice
and peace in the world.’
It results that none of the rights laid down in this Charter may be used to harm the dignity of
another person, and that the dignity of the human person is part of the substance of the rights
laid down in this Charter. It must therefore be respected, even where a right is restricted.1
Select Bibliography
M Borowsky, ‘Artikel 1’ in J Meyer (ed), Charta der Grundrechte der EU (Baden-Baden, Nomos,
2011) 94–121.
G Braibant,La Charte de Droits Fondamentaux de l’Union Européenne,Témoignage et Commentaires
(Paris, Seuil, 2001).
L Burgogne-Larsen (ed), La dignité saisie par les juges (Brussels, Bruylant, 2010).
J-Y Carlier and O De Schutter (eds), La Charte de Droits Fondamentaux de l’Union européenne.
Son apport à la protection des droits de l’homme en Europe (Brussels, Bruylant, 2002).
M Di Ciommo, Dignità umana e Stato costituzionale, la dignità umana nel costituzionalismo
europeo, nella costituzione italiana e nelle giurisprudenze europee (Florence, Passigli Editore,
2010).
C Dupré, ‘Dignité dans l’Europe constitutionnelle: entre inflation et contradictions’ in J Ziller
(ed), L’Européanisation des droits constitutionnels à la lumière de la Constitution pour l’Europe
(Paris, l’Harmattan, 2003) 121–35.
——, ‘Human Dignity in Europe: A Foundational Constitutional Principle’ 19 European Public
Law (2013).
European Commission for Democracy through Law, The Principle of Respect for Human Dignity
(Strasbourg, Council of Europe Publishing, 1999).
* The author is grateful to Professor Ingolf Pernice for his invitation to spend July 2012 at the Grakov
Center, University of Humboldt, Berlin, in order to research German materials necessary for this commentary.
She also wishes to thank Andrea Ridolfi who very kindly helped her locate the Italian materials in the many
libraries of the University La Sapienza (Rome, May 2011). Finally, thanks are due to Dr Stephen Skinner
(University of Exeter) for his careful reading and checking of this text.
1 These explanations appear to be largely drawn from a statement by Roman Herzog on 15 June 2000, see
Ph Wallau, Die Menschenwürde in der Grundrechtordnung der europäischen Union (Bonn, Bonn University
Press, 2010) 57.

Part I – Commentary on the Articles of the EU Charter
4 Catherine Dupré
P Grossi, ‘Dignità umana e libertà nella Carta dei Diritti Fondamentali dell’Unione Europea’ in
M Siclari (ed), Contributi allo Studio della Carta dei Diritti Fondamentali dell’Unione Europea
(Torino, G Giappichelli, 2003) 41–46.
P Häberle, Europäische Verfassungslehre, 6th edn (Baden-Baden, Nomos, 2009) 286–329.
HD Jarass, Charta der Grundrechte der EU (Munich, Beck, 2010) 37–41.
J Jones, ‘“Common Constitutional Traditions”: Can the Meaning of Human Dignity under
German Law Guide the European Court of Justice?’ (2004) Public Law 167.
——, ‘Human dignity in the EU Charter of Fundamental Rights and its Interpretation by the
European Court of Justice’ (December 2012) 33 Liverpool Law Review 281.
B Maurer, Le principe du respect de la dignité humaine et la Convention Européenne des Droits de
l’Homme (Paris, La Documentation Française, 1999).
M Olivetti, ‘Dignità Umana’ in R Bifulco et al (eds), L’Europa dei diritti, Commento alla Carta dei
Diritti Fondamentali dell’ Unione Europea (Bologna, Il Mulino, 2001) 38–45.
——, ‘Article 1—Human Dignity ‘ in WBT Mock and G Demuro (eds), Human Rights in Europe,
Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, North
Carolina Academic Press, 2010) 3–11.
N Rao, ‘Three Concepts of Human dignity in Constitutional Law’ (2011) 86 Notre Dame Law
Review 222.
S Rixen, ‘Die Würde und Integrität des Menschen’ in FSM Heselhaus and C Nowak (eds),
Handbuch der Europäischen Grundrechte (Munich, Beck, 2006) 335–63.
F Sacco,‘Note sulla dignità umana nel diritto costituzionale europeo’ in SP Panunzio (ed), I diritti
fondamentali e le Corti in Europa (Naples, Jovene Editore, 2005) 585–621.
F Schorkopf,‘Würde des Menschen’in D Ehlers (ed),Europäische Grundrechte und Grundfreiheiten
(Berlin, De Gruyter, 2009) 485–505.
M Schwarz, ‘Die Menschenwürde als Ende der europäischen Wertegemeinschaft?’ (2011) 50 Der
Staat 533.
K Schwarzburg, Die Menschenwürde im Recht der europäischen Union (Baden-Baden, Nomos,
2012).
Ph Wallau, Die Menschenwürde in der Grundrechtsordnung der Europäischen Union (Bonn, Bonn
University Press, 2010).
A. Article 1 and the Scope of EU Law
Article 1 is potentially extremely far-reaching as, according to the preamble, it protects
the central position of the individual in all the activities of the EU. Specific references to
dignity in EU legislation reflect this wide scope and can in particular be found in relation
to four types of issue. First, workers’ free movement legislation should take into account
their ‘family life and dignity’, with special consideration of those family members who
are not EU citizens.2 The second type of issues concerns the protection of minors
with regard to European audiovisual and information services according to Directive
2 Directive 2004/38/EC of the European Parliament and of the Council, 29 April 2004, on the right of
citizens of the EU and their family members to move and reside freely within the territory of the Member
States.
01.01

Art 1 – Human Dignity
Catherine Dupré 5
2007/65/EC.3 Protection of minors’ dignity in this context may involve some restrictions
to‘audiovisual commercial communications’ and the Directive promotes self-regulation
as the means to achieve this. The third type of issue involves minimum standards for
the reception of asylum seekers in order to ‘ensure them a dignified standard of living
and comparable living conditions in all Member States’ under the Reception conditions
Directive (preamble, para 7).4 This Directive pays particular attention to issues such as
residence, medical care, education and access to the labour market, with special protec-
tion granted to ‘vulnerable persons’ (Art 17) and minors (Art 18).5 The fourth type of
issueconcernsconditionsof detentionof third-countrynationals.Directive2008/115/EC
on ‘common standards and procedures in Member States for returning illegally staying
third-country nationals’ of 16 December 2008 explicitly requires that ‘third-country
nationals in detention should be treated in a humane and dignified manner with respect
for their fundamental rights’ (para 17, preamble). Central to this is the requirement
that ‘detention shall take place as a rule in specialised detention facilities’ and that
‘third-country nationals in detention shall be kept separated from ordinary prisoners’
(Art 16.1). The new Directive laying down standards for the reception of applicants for
international protection due to replace Directive 2003/9/EC (above) further pays par-
ticular attention to conditions of detention (Art 10).6
Overall references to‘dignity’ or‘dignified standards of living’ have been used to high-
light and protect vulnerable people, such as minors and asylum-seekers, by guaranteeing
(as far as possible) that their ‘special needs’, such as medical treatment and processing of
their applications, are met and that they can retain and regain their place within society
(ie access to education and training, or access to the job market) and within their family.
It is interesting to note that references to dignity were made even before the Charter
became binding (as early as 2003 in the above Directive on reception conditions, and in
the 2006 Recommendation on the audiovisual and on-line information service industry).
One can only therefore assume that such references in EU secondary legislation will
increase to reflect EU law-makers’ increased awareness of dignity. Moreover, the absence
of specific references to dignity in EU legislation does not mean that the concept is irrel-
evant as the European Court of Justice has read dignity into various other directives:
notably Council Directive 76/207/EEC on the implementation of the principle of equal
3 Council Directive 2007/65/EC of 11 December 2007 amends Council Directive 89/552/EEC and follows
Council Recommendation of 24 September 1998 on the development of the competitiveness of the European
audiovisual and information services (98/560/EC) and Recommendation of the European Parliament and the
Council of 20 December 2006 on the protection of minors and human dignity (2006/952/EC).
4 Council Directive 2003/9/EC of 27 January 2003. On asylum-seekers see also Case C-411/10 NS v
Secretary of State for the Home Department [2012] 2 CMLR 9, with a comment by J Buckley (2012) European
Human Rights Law Review 205.
5 An amendment to this Directive was agreed, but had not come into force at the time of writing; the
agreed version of the text is available at http://register.consilium.europa.eu/pdf/en/12/st14/st14654.en12.
pdf, consulted on 9 January 2013. The new Directive aims to ensure that asylum seekers will be guaranteed
‘a dignified standard of living and comparable living conditions in all Member States’ (para 11); applicants
in detention ‘should be treated with full respect for their dignity and their reception should be specifically
designed to meet their needs in that situation’ (para 18). Under para 35, the preamble explicitly refers to the
Charter and mentions Arts 1 and 4 in particular. Finally and importantly, while Member States can reduce
or even withdraw material reception conditions for asylum seekers (under Art 20.1), they ‘shall under all
circumstances ensure access to health care … and shall ensure a dignified standard of living for all applicants’
(Art 20.5).
6 See above n 5.
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6 Catherine Dupré
treatment for men and women as regards access to employment, vocational training
and promotion, and working conditions;7 Directive 75/117/EEC on equal treatment for
men and women;8 and Directive 98/44/EC on the legal protection of biotechnological
inventions.9 This sample of legislation, ranging from biotechnological issues to asylum-
seekers’ protection and including protection against non-discrimination (on the ground
of sex), reflects the versatility of the dignity concept and its actual and potential capacity
to reach across a very wide range of EU’s activities and secondary legislation.
Article 1 EUCFR affects not only the interpretation and implementation of secondary
legislation. Crucially, it also affects primary legislation in two ways. Firstly,Article 2 TEU
as amended by the Lisbon Treaty (thereafter TEU) enshrines dignity as the first of its
foundational values (together with ‘freedom, democracy, the rule of law and respect for
human rights’). Secondly, Article 1 EUCFR may influence the Union’s external action
under Article 21 TEU.10 As a result, Article 1 EUCFR, together with the whole of Title I,
provide a more precise meaning for dignity as a foundational value under the Lisbon
Treaty and set the benchmark for the Union’s commitment to human rights protection,
both within the EU (under Article 6 TEU) and outside the EU in its dealings with third
countries and international institutions.
Finally, under Article 51 EUCFR, dignity protection becomes relevant to Member
States’ actions ‘with due regard to the principle of subsidiarity and to the Member States
only when they are implementing Union law’. In this respect, all states are affected by
the EUCFR, ie including Poland and the UK which had demanded that Protocol 30,
concerning the legal effect of the Charter, be attached to the Treaties as a condition of
their signing and ratifying the Lisbon Treaty. This was clarified by the CJEU, which held
that Protocol 30 was not to be understood as an opt-out clause.11
B. Interrelationship of Article 1 with Other Provisions
of the Charter
Article 1 EUCFR is clearly related to all the rights enshrined under Title I ‘Dignity’,
namely the right to life (Art 2), the right to integrity of the person (Art 3), the prohibition
of torture, inhuman and degrading treatment or punishment (Art 4), the prohibition of
slavery, forced labour and human trafficking (Art 5). The Charter further identifies two
groups of people, for whom special dignity protection is acknowledged. These are the
elderly, who have ‘rights to lead a life of dignity and independence and to participate in
7 Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143.
8 Case C-117/01 KB v National Health Service Pensions Agency, Secretary of State for Health [2004] ECR I-541.
9 Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of the European Union
[2001] ECR I-7079.
10 Art 21.1: ‘The Union’s action on the international scene shall be guided by ... democracy, the rule of law,
the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity.’ See
K Schwarzburg, Die Menschenwürde im Recht der europäischen Union (Baden-Baden, Nomos, 2012), 325–34.
11 Case C-411/10 NS v Secretary of State for the Home Department, with a comment by J Buckley (2012)
European Human Rights Law Review 205.
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Catherine Dupré 7
social and cultural life’ under Article 25,12 and workers, whose dignity is awarded special
protection under Article 31, together with health and safety requirements.
Moreover, due to the unique foundational importance of dignity (as reflected in the
preamble’s second paragraph, which echoes and develops Article 2 TEU (‘Conscious
of its spiritual and moral heritage, the Union is founded on the indivisible, universal
values of human dignity, freedom, equality and solidarity’)), the other rights enshrined
in the Charter can also be understood as flowing from human dignity. The explanations
of the Charter make explicit that dignity ‘constitutes the real basis of fundamental
rights’. As a result, selecting those rights which are more closely connected to it is not a
straightforward operation. As dignity is generally understood as the freedom to shape
one’s life, the Freedoms rights (under Title II) become connected and in particular dig-
nity has often been associated with privacy (Art 7). Moreover, all rights included under
the Equality title are most certainly connected to dignity; this flows from the equally
shared humanity of human beings (regardless of their particular differences) and from
the fact that the EU is a political and economic order founded on equality. Particularly
relevant are perhaps the integration of persons with disabilities (Art 26), and the rights
of the elderly under Article 25. Similarly, the Solidarity rights, notably the right to social
assistance and social security (Art 34), and the right to health care (Art 35), are also con-
nected to Article 1. Furthermore (as mentioned above) workers’ rights to health, safety
and dignity are specifically listed under Article 31. Noteworthy in its connection to the
dignity protection duty of Article 1 is Article 36, which guarantees access to services of
general economic interest. Finally, as dignity is very much about placing individuals at
the centre and protecting them in their relations with power, the Justice rights are also
connected to Article 1, in particular the right to an effective remedy (Art 47), and the
principles of legality and proportionality of criminal offences and penalties (Art 49).
Lastly,twomorepointshavetobenotedwithregardtotheinterrelationshipof Article1
with other Charter provisions. First, while dignity under Article 1 can be conceptually
and normatively connected to all EUCFR rights, the need to establish these connections
in order to protect these rights effectively may not arise for all of them. According to
some, dignity has a subsidiary function, in that it becomes relevant in the absence of a
more specific right.13 In practice, a tendency may develop whereby the CJEU (and the
applicants) routinely refer to Article 1 EUCFR in addition to the specifically relevant
right in order to emphasise the importance of their points. The connection to Article 1
could therefore become significant in strengthening the protection already offered by
these rights, so as perhaps to extend it to situations or people not explicitly mentioned
in the Charter. The second point to note is that, as dignity is‘the real basis of fundamen-
tal rights’ (explanations above), it could lead to the ‘discovery’ of new rights, ie rights
not listed in the EUCFR, so as to afford protection against breaches that could not be
anticipated at the time of drafting the Charter. The drafting of Article 1 clearly allows
for this possibility, as it presents human dignity in a distinct and separate way from
12 P De Hert and E Mantovani,‘Specific Human Rights for Older Persons?’ (2011) European Human Rights
Law Review 398.
13 M Olivetti, ‘Article 1—Dignity’ in WBT Mock and G Demuro (eds), Human Rights in Europe.
Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, North Carolina
Academic Press, 2010) 9.
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8 Catherine Dupré
the remaining Title I rights. This approach would be in line with some Member States’
practice and ECJ case law on dignity.
C. Sources of Article 1
While the UN Universal Declaration of Human Rights is explicitly referred to in the pre-
amble of the Charter, the determinant influence on the drafting of Article 1 appears to
have come from the Member States’ constitutions and (as discussed below) in particular
from the German constitution.14
I. ECHR
As the ECHR does not contain an explicit dignity provision, it could not be used as a
model or a source of inspiration for the drafting of Article 1 EUCR.15 The lack of a spe-
cific dignity provision has led to a diffuse protection of human dignity by the ECtHR,
whereby almost every ECHR right can become dignity-related.16 Dignity has certainly
been read into the absolute prohibitions of Articles 3 and 4 ECHR, and this case law
could usefully be referred to by the CJEU in due course.17
The ECtHR case law therefore becomes relevant to understanding the ECHR dignity
concept. The ECtHR started relying on this concept in the 1970s, with the East African
Asians v UK case containing one of the very first references to dignity, in relation to the
prohibition against racial discrimination.18 An explicit statement of the ECtHR’s general
commitment to dignity is more recent and can first be found in the so-called marital
rape ruling, in which the Court emphasised that: ‘the very essence [of the ECHR] is
respect for human dignity and human freedom.’19 Made at the end of the ruling, this
reference can be understood as a clear indication that the commitment to dignity and
freedom is guiding the ECtHR’s interpretation. In that particular case, the emphasis
on dignity echoed ‘the essentially debasing character of rape’, from which the Court
concluded that prosecuting a rapist husband under the UK common law could not be
construed as a retroactive punishment under Article 7 ECHR. This dignity formula was
subsequently used by the ECtHR, notably in the Pretty case, where the Court referred
14 On sources generally see: Ph Wallau above n 1, 49–118.
15 Comprehensive accounts of the drafting process of Art 1 EUCFR were produced by M Borowsky,
‘Artikel 1’, in J Meyer (ed), Charta der Grundrechte der EU (Baden-Baden, Nomos, 2011), as well as Ph Wallau
above n 1, 49–79.
16 B Maurer, Le principe de respect de la dignité humaine et la Convention Européenne des Droits de l’Homme
(Paris,Ladocumentationfrançaise,1999);LBurgogne-Larsen(ed),Ladignitésaisieparlesjuges(Brussels,Bruylant,
2010) 55–78 and M Di Ciommo, Dignità umana e Stato costituzionale, la dignità umana nel costitzionalismo
europeo, nella costituzione italiana e nelle giurisprudenze europee (Florence, Passigli Editore, 2010) 233–76.
17 See relevant chapters in this collection.
18 Precise dating is difficult here; the first case usually identified is that of the East African Asians v UK
(1973) 3 EHRR 76: ‘the racial discrimination, to which the applicants have been publicly subjected by the
application of … immigration legislation, constitutes an interference with their human dignity which …
amounted to “degrading treatment” in the sense of Article 3 of the Convention.’
19 SW v UK, 22 Nov 1995, 47/1994/494/576, para 44.
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Catherine Dupré 9
to it in connection to Article 8 and concluded that the decision to seek assisted suicide
falls under the scope of this provision, as it affects the quality of the applicant’s life in
the last stages of her illness.20 The significance of the dignity reference here was the shift
of focus of Article 8 from privacy to quality of life. It has to be noted however that the
ECtHR reference to dignity did not alter the formal hierarchy of ECHR rights, so that
the right to life under Article 2 could not be interpreted as the right not to live. Overall,
while the ECtHR formula is worded differently from Article 1 EUCFR, there seems to
be a strong correlation between the ECtHR’s commitment to protecting human dignity
and the protection duty under Article 1 EUCFR.
Explicit commitment to dignity under the ECHR was confirmed in the preamble of
the Additional Protocol 13 concerning the abolition of the death penalty in all circum-
stances, which reads: ‘everyone’s right to life is a basic value in a democratic society and
[that] the abolition of the death penalty is essential for the protection of this right and
for the full recognition of the inherent dignity of all human beings’ (emphasis added). As
will be seen below, by the time this protocol was signed in 2002, the Council of Europe
had already enshrined dignity in the specific context of the Oviedo Convention.
II. Council of Europe Treaties
There are two Conventions through which the Council of Europe has sought to protect
human dignity. The Convention on Human Rights and Biomedicine signed at Oviedo in
1997 is the first CoE convention explicitly to enshrine dignity, under Article 1.1: ‘Parties
to this Convention shall protect the dignity and identity of all human beings and guar-
antee everyone, without discrimination, respect for their integrity and other rights and
fundamental freedoms with regards to the application of biology and medicine.’21 The
Oviedo Convention does not define dignity more specifically, but it may be relevant to
understanding the general meaning of Article 1 EUCFR. Generally, its emphasis on the
‘interests and welfare of human beings’ (Art 2) may help develop the notion of the cen-
tral place of the individual, as referred in the EUCFR preamble. In particular, the whole
Convention may become relevant for the interpretation of the right to physical and
mental integrity under Article 3 EUCFR due to their linkage with biomedical issues.
Secondly, in 2005 the Council of Europe adopted a Convention on the Action against
Trafficking in Human Beings (CETS, No 197), the main concern of which is ‘dignity
and integrity of the human being’, as indicated in its preamble (second sentence).22 The
20 Pretty v UK, 29 July 2002 [65]: ‘The very essence of the Convention is respect for human dignity and
human freedom. Without in any way negating the principle of sanctity of life protected under the Convention,
the Court considers that it is under article 8 that notions of the quality of life take on significance.’ See also
Van Kück v Germany, 12 June 2003 [69]: ‘The very essence of the Convention being respect for human dignity
and human freedom, protection is given to the right of transsexuals to personal development and to physical
integrity and moral security.’
21 The Oviedo Convention has so far been ratified by Bulgaria, Cyprus, the Czech Republic, Denmark,
Estonia, Finland, France, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain,
see http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=164&CM=8&DF=09/01/2013&CL=ENG.
22 This Convention has so far been ratified by Austria, Bulgaria, Cyprus, Denmark, Finland, France,
Germany, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden and the United Kingdom. See http://conventions.coe.int/Treaty/Commun/
ChercheSig.asp?NT=197&CM=8&DF=09/01/2013&CL=ENG.
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explanations of the Convention make it clear that ‘trafficking treats human beings as
a commodity to be bought and sold’23 and the Convention considers that trafficking
constitutes a violation of human dignity. The Convention pays particular attention to
educational programmes for boys and girls about ‘the importance of gender equality
and the dignity and integrity of every human being’ (Art 6.d), together with victims’
repatriation in ‘safety and dignity’ (Art 16.1–16.2). This Convention is obviously
directly relevant to Article 5 EUCFR and emphasises similar dignity issues as EU law,
ie its connection to equality, mental and physical integrity, vulnerability, freedom and
decent living conditions.
III. UN Treaties
The protection of human dignity by international law is as diffuse as it is far-reaching,
and only the main texts can be mentioned here.24 The preamble to the UN Universal
Declaration of Human Rights 1948 is referred to in the explanation to the EUCFR,
indicating that the EUCFR is espousing this spirit of international human rights law.
The key dignity provisions of the Declaration are Article 1 (‘All human beings are born
free and equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood’), Article 22 (‘Everyone, as a
member of society has the right to social security and is entitled to realisation through
national effort and international cooperation and in accordance with the organisation
and resources of each State, of the economic, social and cultural rights indispensable for
his dignity and the free development of this personality’) and Article 23(3) (‘Everyone
who works has the right to just and favourable remuneration ensuring for himself and
his family and existence worthy of human dignity, and supplemented, if necessary, by
other means of social protection.’).The Declaration never became binding but was influ-
ential on the drafting of subsequent conventions (such as the ECHR and the EUCFR), as
well as Member States’ constitutions. The two International Covenants adopted in 1966
contain further specific references to human dignity. The 1966 International Covenant
on Civil and Political Rights refers to dignity under Article 10 (‘All persons deprived of
their liberty shall be treated with humanity and with respect for the inherent dignity of
the human person.’) The 1966 International Covenant on Economic Social and Cultural
Rights refers to dignity in relation to a right to education ‘directed at the full develop-
ment of the human personality and the sense of its dignity’ under Article 13. Finally, the
1949 Geneva Conventions have a common Article 3, which protects the wounded and
sick of armed forces in the field (I), the wounded, sick and shipwrecked of the armed
forces at sea (II), prisoners of war (III) and civilian persons in time of war (IV) against
‘outrages upon personal dignity, in particular humiliating and degrading treatment’.25
23 Explanatory Report, p 27.
24 P Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights, A Reply’ (2008) 29 European
Journal of International Law 831; P Capps, Human Dignity as the Foundations of International Law (Oxford, Hart
Publishing, 2009); JA Frowein, ‘Human Dignity in International Law’, in D Kretzmer and E Klein (eds), The
Concept of Human Dignity in Human Rights Discourse (The Hague, Kluwer Law International, 2002) 121.
25 See www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp.
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Catherine Dupré 11
The EUCFR echoes these international conventions in enshrining dignity in a
similarly prominent manner, with references to dignity in the preamble and in the first
article. Moreover, all these texts emphasise the inherently human quality of dignity, as
well as, importantly, its indivisibility: dignity is protected by both Covenants and in
the EUCFR it embraces civil and political rights, as well as solidarity and labour rights.
Moreover, the common picture that appears to arise out of these texts is that dignity is
intended to acknowledge the vulnerability of humanity and to protect people accord-
ingly, ie when they are old, deprived of their liberty and in the workplace. Finally and
importantly, dignity is the foundation of the prohibition of torture together with a
range of inhuman and degrading treatments.
IV. Relevant EU Law
Chronologically, Article 1 of the Declaration on Fundamental Rights and Freedoms
adopted by the European Parliament on 12 April 1989 can be considered as the first for-
mal ancestor of the EUCFR and was prepared ‘to supplement the Maastricht Treaty’ on
the initiative of two MEPs. This Declaration constitutes the very first indication of the
EU’s awareness of dignity’s importance and its attempt to protect it. Dignity was given
a prominent position and was enshrined under Article 1, which reads: ‘Human dignity
shall be inviolable’. This Declaration did not come into force, but the ECJ has created
its own concept of dignity in few, but significant, rulings, which are briefly summarised
below (under section D.I below).
V. Other Sources: National Constitutions
Most EU Member States’ constitutions enshrine dignity, either in the opening section
on the general features of the constitution, or as the first (or second) provision in their
fundamental rights sections.26
The German constitution is without doubt the constitution that has most explic-
itly influenced the drafting of Article 1 EUCFR, due to the repeated contributions of
Roman Herzog (former president of the German Federal Constitutional Court and
of the Federal Republic of Germany, and chairman of the Convention that drafted the
Charter) to this effect,since the beginning of the drafting process.27 According to Herzog,
dignity reflects the Union’s commitment to human rights protection and highlights the
26 In chronological order: Italy (Arts 3, 36 and 41); Germany (Art 1); Sweden (Arts 1 and 2), Greece (Art 2);
Portugal (Arts 1, 13, 26 and 59); Spain (Art 10); Hungary (Art 54, 1989); Romania (Art 3); Slovenia (Arts 21
and 34); Estonia (Art 10); Slovakia (Arts 12 and 19); Lithuania (Arts 21 and 25); Czech Republic (Art 1 and
Art 10 Charter); Latvia (Art 95); Belgium (Art 23); Poland (Art 30), Finland (Art 1). See M Borowsky above
n 15, 95–102; C Dupré, ‘Dignité dans l’Europe constitutionnelle: entre inflation et contradictions’ in
J Ziller (ed), L’européanisation des droits constitutionnels à la lumière de la constitution pour l’Europe (Paris,
L’Harmattan, 2003), 121–35; European Commission for Democracy through Law (ed), The Principle of
Respect for Human Dignity (Strasbourg, Council of Europe Publishing, 1999); and P Carozza, ‘Human
Dignity in Constitutional Adjudication’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law
(Cheltenham, Edward Elgar, 2011) 459.
27 MBorowskyaboven15,104–10.Seealso:WKarl‘DieRollederMenschenwürdeinderEU-Verfassungsdebatte’
in M Fisher (ed), Der Begriff der Menschenwürde (Frankfurt am Main, Peter Lang, 2005) 27.
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12 Catherine Dupré
centrality of human beings within the EU legal order (see the explanations). The dark
past of Europe, with its concentration camps, colonial wars and slavery, was on the mind
of many of the Convention members, as were the actual and potential threats to human-
ity resulting from bio- and information technology.28 For these reasons, it seemed clear
to the drafters that dignity ought to be the most important of its fundamental rights in
the Charter. The final phrasing of Article 1 EUCFR is however not a verbatim copy of
its German counterpart.29
German constitutional case law has so far been the most influential source of inspiration
for Advocates General in developing human dignity before and after the adoption of the
EUCFR. This was very clear in the Opinion of AG Tesauro under the P v S and Cornwall
case in 1996, with explicit references to German constitutional case law at paras 20 and 21.
These references were omitted in the ECJ ruling, which however explicitly constructed
discrimination on the ground of sex‘as a failure to respect dignity and freedom’ (para 22).
This reference was repeated and made explicit in the AG’s Opinion under K B v National
Health Service Pensions Agency, Secretary of State for Health (para 77) and implicitly
endorsed by the ECJ in its ruling, which again did not refer to German case law (but
instead to the Goodwin v UK case, para 33). Although close reading and cross-referencing
are necessary to identify this influence, German case law has thus quite clearly shaped the
ECJ’s construction of human dignity in relation to sexual discrimination in these cases.
More recently, German case law was also considered by AG Stix-Hackl in her Opinion
under the Omega ruling.In her Opinion,the German understanding of dignity is included
in the survey of ‘common constitutional traditions’ (paras 73–88). The ECJ acknowledged
this (para 34), but constructed its own understanding of human dignity as a general prin-
ciple of law and considered that the particular constitutional status and nature of human
dignity in German constitutional law was ‘immaterial’ (para 34). With regards to the use
of constitutional traditions common to the Member States, this ruling was significant as,
while the ECJ was obviously being influenced by German law (due to the case originat-
ing in Germany, where dignity has a particular constitutional prominence), it explicitly
detached its construction of this concept from its national source. It has to be noted that,
in the Omega ruling, the ECJ chose to make no reference at all to Article 1 EUCR and
based its construction of dignity solely on the constitutional traditions common to the
Member States as presented in the comparative survey of the Advocate General.
The CJEU has not delivered a ruling on Article 1 EUCR, and therefore the Court’s
attitude to German law and the constitutional traditions common to the Member States
has not yet been clarified. The influence of German constitutional law—actual and
potential—has however already been discussed.30 On the one hand, there is no reason
28 M Borowsky above n 15, 105.
29 Art 1 German Constitution reads: ‘1. Human dignity is inviolable. To protect and to respect it shall be
the duty of all state authority. 2. The German people therefore acknowledge inviolable and inalienable human
rights as the basis of every community, of peace and of justice in the world. 3. The following basic rights shall
bind the legislature, the executive and the judiciary as directly applicable law.’
30 J Jones,‘“Common Constitutional Traditions”: Can the Meaning of Human Dignity under German Law
Guide the European Court of Justice?’ (2004) Public Law, 167; Ch Enders‘Das Bekenntnis zur Menschenwürde
im Bonner Grundgesetz—ein Hemmnis auf den Weg der Europäisierung?’ (2011) 59 Jahrbuch öffentli-
chen Rechts 245 and H Schulze-Fielitz, ‘Verfassungsvergleichung als Einbahnstraße? Zum Beispiel der
Menschenwürde in der biomedizinischen Forschung’ in A Blankenagel et al (eds), Verfassung im Diskurs der
Welt, Liber Amicorum für Peter Häberle (Tübingen, Mohr Siebeck, 2004) 355.
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why the CJEU should cease to consider German case law when it has to interpret Article 1
EUCFR, particularly considering the similarity of both dignity provisions in the EU and
in Germany. On the other hand, as the ECJ made clear in Omega, the EU legal order
is not the same as the German constitutional order (or as that of any other Member
State), and the CJEU has therefore to construct its own concept of fundamental rights
in a way that fits with its own order. Beyond a similarly worded commitment to dignity
protection, both legal orders are significantly different when it comes to context and
normative requirements. Moreover, an over-emphasis on German law as a source of
inspiration for the CJEU would considerably narrow down the scope of the common
constitutional traditions with regards to human dignity, and may (rightly or wrongly)
exclude most of them, therefore preventing the CJEU from considering the full range of
these ‘traditions’. In practice, however, German constitutional law is likely to remain a
very influential source of inspiration. This is so for a number of reasons, ranging from
accessibility of German and non-German materials on dignity by the Advocates General
and judges (linguistic issues and issues of actual availability of these materials in all the
Member States); compounded by the diffuse dignity case law under the ECtHR, which
makes it very difficult to identify all relevant ECHR case law on dignity.
Under Article 52.4 EUCFR, ‘fundamental rights [resulting] from the constitutional
traditions common to the Member States … shall be interpreted in harmony with
those traditions’. The need for the CJEU to develop a clear and persuasive compara-
tive method is therefore becoming more pressing than ever.31 In this respect, human
dignity—as it is enshrined in most constitutional orders across the EU—could become
a powerful factor of integration, and the engine driving an EU system of human rights
protection. However, depending on how the CJEU uses these different traditions, there
is a risk that dignity might become a powerful locus of disagreement and controversy,
with a potentially divisive impact.
D. Analysis
I. General Remarks
Until the coming into force of the Charter, human dignity had largely been a judge-
made concept, constructed on a rather ad hoc basis.32 The first use of dignity by the
ECJ was in order to prevent discrimination against transsexuals in the workplace.33
After P was dismissed from her job as a manager at an educational establishment while
31 K Lenaerts, ‘Interlocking Legal Orders in the EU and Comparative Law’ (2003) 52 International and
Comparative Law Quarterly 873 and C Dupré, ‘Globalisation and Judicial Reasoning: Building Blocks for a
Method of Interpretation’ in A Halpin and V Roeben (eds), Theorising the Global Legal Order (Oxford, Hart
Publishing, 2009) 107–25.
32 For longer developments see E Dubout, ‘La dignité dans la jurisprudence de la Cour de Justice des
Communautés’ in L Burgogne-Larsen (ed), La dignité saisie par les juges en Europe (Brussels, Bruylant,
2010) 115; M Di Ciommo, above n 14, 197; M Rau and F Schorkopf, ‘Der EuGH und die Menschenwürde’
(2002) Neue Juristishe Wochenschrift 2448; and M Schwarz, ‘Die Menschenwürde als Ende der europäischen
Gemeinschaft?’ (2011) Der Staat, 537–38.
33 Case C-13/94 P v S and Cornwall County Council, above n 7.
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14 Catherine Dupré
undergoing gender reassignment surgery, the ECJ was asked for its interpretation of the
equal treatment directive. It held that its scope was ‘such as to apply to discrimination
arising, as in this case, from the gender reassignment of the person concerned’ (para 20).
In its conclusion, it emphasised that: ‘To tolerate such discrimination would be tanta-
mount, as regards such a person, to a failure to respect the dignity and freedom to which
he or she is entitled, and which the Court has a duty to safeguard’ (para 22). As will be
discussed above in more detail, this approach was inspired by a ruling of the German
Federal Constitutional Court, referred to in the Opinion of AG Tesauro (para 20).
The second mention of human dignity is to be found in Kingdom of the Netherlands v
European Parliament and Council of the European Union in 2001, and was prompted by
the applicants.34 The Netherlands sought annulment of Directive 98/44/EC on the legal
protection of biotechnological inventions, arguing that ‘the patentability of isolated
parts of the human body [under the Directive] reduces human living matter to a means
to an end and undermining human dignity. Moreover, the absence of a provision
requiring verification of the consent of the donor or recipient of products obtained by
biotechnological means undermines the right to self-determination’ (para 69). The ECJ
rejected these arguments on two grounds: first it held that the Directive makes it impos-
sible to patent the ‘human body at the various stages of its formation and development’
(para 71). Secondly, it emphasised that a number of processes could not be patented,
as contrary to ‘ordre public and morality’ and explicitly noted that ‘all processes the use
of which offend against human dignity are also excluded from patentability’ (para 76).
In this ruling, the ECJ did not refer to the EUCFR, nor did it define human dignity.
However it can be argued that it implicitly adopted the Netherlands’ approach by stating
that ‘human living matter could not be reduced to a means to an end.’
In its Omega ruling, the ECJ defined dignity both by implicitly turning to the con-
cept’s common constitutional traditions, actively encouraged by the AG Stix-Hackl, and
by detaching itself from them in order to establish a distinct EU concept of dignity.35 The
question put to the ECJ was about whether it was acceptable under EU law to ban the
laserdrome entertainment, provided by a UK firm established in Bonn on the grounds
that it breached human dignity. This was not problematic under the German constitu-
tion, but the involvement of a UK firm raised the question of a tension between dignity
protection on the one hand, and freedom of services and free movement of goods on the
other.With reference to the AG’s Opinion, which contained quite a detailed comparative
survey of dignity, the ECJ defined ‘respect for human dignity as a general principle of
law’ (para 34). Making it clear that the particular status of dignity under the German
constitution was ‘immaterial’, the ECJ concluded that the mock killing game was an
affront to dignity and could lawfully be prohibited on this basis (para 41). In conclusion,
34 Case C-377/98, above n 9. For comments see K Frahm and J Gebauer,‘Patent auf Leben? Der Luxemburger
Gerichtshof und die Biopatent-Richtlinie’ (2002) EuropaRecht 78; TM Spranger (2002) Common Market Law
Review 1147; and Ch Calliess, ‘Menschenwürde und Biotechnologie: Die EG Biopatent-Richtlinie auf dem
Prüfstand des europäischen Verfassungsrechts’ (2002) Juristische Schulung 426.
35 Case C-36/02 Omega Spielhallen-und Automatenaufstellungs-GmbH v Oberbuergermeisterin der
Bundesstadt Bonn [2004] ECR I-9609. J Morijn, ‘Balancing Fundamental Rights and Common Market
Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution’(2006) European
Law Journal 15. See also the commentary by T Ackermann, (2005) Common Market Law Review 1107.
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Catherine Dupré 15
the ECJ has so far explicitly relied on dignity in very few cases, where this argument has
however played a decisive role in the outcome and interpretation of EU/EC law.36
Therefore, despite the Charter preamble’s claim only ‘to make those rights more vis-
ible’, it is the first time that human dignity has been formally codified at the EU level.
Dignity is therefore a new word in the language of EU constitutionalism: it is a new foun-
dational value (the first one under Article 2 TEU) and the first fundamental right under
the Charter. Codification of dignity in the Charter therefore seems to reflect a new
awareness of the importance of this right, a new concern for its possible breaches
and, certainly and very clearly, a new and particularly strong commitment to protect
and respect it in all aspects of its activities.37 The prominent place of dignity in the
EU Charter (as under the Lisbon treaty) is typical of constitutional texts founding
a new order and is in line with constitutional codification of dignity since WWII in
Europe.38 In fact, it may not be a complete coincidence that the idea of a Human Rights
Charter and the process of drafting it started in 1989 (with the European Parliament
Declaration), the year the Berlin Wall came down, and re-started in 1999 (the Cologne
summit), when people might have felt that Europe could never be safe enough from
totalitarianism.39 The repetition of dignity in strategic places (preamble, Title I, Arts 1,
25 and 31) indicates that dignity could potentially have a very far-reaching transforma-
tive effect on EU law and its approach to human rights under the Lisbon Treaty.
However, human dignity is also a notoriously difficult legal concept: its exact legal
nature is uncertain, its substantive meaning and scope in relation to human rights are
disputed.40 Finally, it is often deployed in an attempt to resolve very sensitive issues
which lack a clear political and social consensus, within Member States and across the
EU, such as the legality of abortion, euthanasia, assisted suicide or certain uses of human
embryonic cells.41
II. Scope of Application
The scope of Article 1 is unusually wide due to the dual nature of dignity under the
EU Charter, ie both a right and ‘the real basis of fundamental rights’ (explanations,
above). In conceptual terms this may not be an easy tension to reconcile. In practical
terms, however, dignity’s dual legal nature under the Charter is likely to prove beneficial
as it offers flexibility to protect human beings in the most appropriate way. Indeed,
36 Since the coming into force of the EUCFR, the CJEU has referred once to Art 1, but has not developed
a meaning for this provision. The NS case is discussed below.
37 M Olivetti above n 13, 4.
38 C Dupré, ‘Human Dignity in Europe: A Foundational Constitutional Principle’ (2013) 19 European
Public Law 319.
39 EO Eriksen, ‘Why a Constitutionalised Bill of Rights’ in EO Erisken, JE Fossum and AJ Menéndez
(eds), The Chartering Europe, The European Charter of Fundamental Rights and its Constitutional Implications
(Baden-Baden, Nomos, 2003) 48–70.
40 C McCrudden‘Human Dignity and Judicial Interpretation of Human Rights’(2008) 19 European Journal
of International Law 655; C O’Mahony, ‘There is no such thing as a right to dignity’ (2012) 10 International
Journal of Constitutional Law 551. Generally, see: N Rao ‘Three Concepts of Human Dignity in Constitutional
Law’ (2011) 86 Notre Dame Law Review 222.
41 M Borowsky, ‘Wertkonflikte in der Europäischen Union, eine Problemskizze’ in HJ Derra (ed), Freiheit,
Sicherheit und Recht, Festschrift f. J Meyer zum 70. Geburtstag (Baden-Baden, Nomos, 2006), 49–69.
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16 Catherine Dupré
the Charter’s driving logic is a teleological one, as indicated in the preamble, namely
‘to place the individual at the heart of the EU activities’. As a result, alleged victims of
human dignity breaches, as well as the CJEU, should always be able to rely on dignity
regardless of whether dignity is at stake as a right or as the basis of rights.
What is clear under the Charter is that dignity is an exclusively human quality: it is
explicitly qualified as ‘human’, and all the rights guaranteed under Title I protect the
most essential attributes of humanity. Moreover, under Articles 25 and 31 the Charter
confirms that dignity also applies to human beings in more routine situations, such as
work and old age. Human dignity therefore does not apply to non-human entities, such
as institutions, corporations or states. Indeed in this respect, the Charter (and Art 2
TEU) clearly indicates that the EU’s concern and priority is the person, and not the insti-
tutions (or the market economy). A combined reading of Article 2 TEU and Article 1
EU Charter therefore indicates that the development of the internal market has to be
pursued with the interests of human beings at its heart. Finally, a very important point
to note is that Article 1 protects all humans, regardless of nationality, i.e. whether or not
they are EU citizens. This is of relevance in particular with regards to asylum-seekers,
both in the way they are treated by Member States where they are seeking asylum and
when Member States consider returning them to their country of entry, as recently con-
firmed by a ruling of the CJEU.42 It is also of relevance in relation to non-EU nationals
outside the EU, who may be affected by the Union’s external action (as seen above).
Human dignity protects human beings while they are alive, and throughout their lives.
The Charter contains no indication that dignity might extend after death and this will
have to be clarified by case law. ECtHR case law does not extend human rights protec-
tion after death.43 However, the CJEU might want to follow the common constitutional
traditions of Member States (Art 52.4), which extend dignity protection after death.44
End-of-life situations and the rights of the dying do fall into the general scope of Article 1
EUCFR, but it has to be noted that the Charter contains a number of specific provi-
sions that may be more usefully relied on; these include Articles 2, 3, 4 and 35 EUCFR.
These end-of-life situations have often led to controversy about the relevance and the
use of the dignity argument in judicial reasoning. Under the EU Charter, however, the
dual nature and scope of dignity may prove useful: while dignity (as a foundation of
rights) acts as a powerful reminder of the ‘centrality of human beings’ in disputes that
may involve complicated medical decisions or have financial dimensions and implica-
tions, the technical protection may be derived from the more specific rights enshrined
in the Charter. This approach is in line with the logic adopted by the ECtHR under the
Pretty ruling: the ECtHR used its dignity formula to highlight the importance of pro-
tecting human beings in Pretty’s situation, concluding that the denial of assisted suicide
amounted to a breach of privacy (a restriction which the Court went on to find lawful
under Art 8.2 ECHR).
42 Case C-411/10 NS, above n 4.
43 Akpinar and Altun v Turkey App no 56760/00 [2007] ECHR 56760/00 (‘[H]uman quality is extinguished
after death and, therefore prohibition on ill-treatment is no longer applicable to corpses’ (para 82)).
44 See the partly dissenting opinion of Justice Fura-Sandström under the Akpinar and Altun v Turkey case.
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The protection of human dignity before birth is another notoriously difficult and
controversial issue.45 By way of clarification, a number of points can be noted. First,
the phrasing of Article 1 (or of Art 2) does not refer to dignity (or life) before birth,
a drafting which was adopted in some Member States’ constitutions. This was not an
issue discussed during the Charter drafting process, but it can be inferred that the draft-
ers sought to achieve consensus with their choice of wording, building into it a certain
flexibility meant to avoid conflicts between those Member States where the constitution
protects life before birth (and sometimes life since conception, as in Hungary since
201246) and those where the constitution protects dignity only after birth (which is most
of them, if the legality of abortion may be used as an indicator). The ECtHR has been
careful to leave options open, and in the Vo v France ruling, Article 2 ECHR protects
the unborn life through positive obligations, and not by defining the foetus as an indi-
vidual subject of rights.47 As the Grogan case illustrated48 and as argued by many, it will
be difficult for the CJEU to maintain this status quo. Again, the dual nature of dignity
together with the distinct Title I articles may prove useful in providing flexibility and
consensus. At the core of these issues is the constitutional (and political) definition of
humanity, and the many questions about its genetic dimension and the technological
ability to engineer it in ways that were not possible before. While dignity, both as a right
and as a discursive argument in judicial reasoning, has a role to play, it cannot substitute
full democratic and political debates necessary to explore and decide on these matters.
Finally,andimportantly,thequestionof thescopeofArticle1raisestheissueof whether
welfare entitlement can be derived from the duty to respect and protect human dignity.
Several points converge in support of a positive approach to this.49 First, two principles
are clearly enshrined in the Charter, namely the indivisibility of rights and the central-
ity given to the protection of human beings. Following this logic, human dignity would
be deprived of its significance if it were used exclusively in relation to civil and political
rights. In fact, the protection afforded by Title I rights focuses on the person as a whole,
without distinguishing between the physical and mental dimensions of human beings
(notably under Articles 3 and 4).The human being at the heart of the EUCFR is therefore
not just an abstract individual.50 Secondly, human dignity is the source of all rights con-
tained in the EUCFR, including therefore the ‘Solidarity rights’, social rights and welfare
provisions.51 In particular, the recognition of a right to a minimum subsistence derived
45 D Kommers, ‘Autonomy, Dignity and Abortion’ in T Ginsburg and R Dixon (eds), Comparative
Constitutional Law (Cheltenham, Edward Elgar, 2011) 441.
46 Notably under Art 40.3.3 of the Irish constitution, following the 1983 constitutional reform. See also the
2012 Hungarian Fundamental Law; C Dupré,‘Human Dignity: Rhetoric, Protection and Instrumentalisation’
in GA Toth (ed), Constitution for a Disunited Nation, Hungary’s New Fundamental Law (Budapest, Central
European University Press, 2012) 143–69.
47 Vo v France (8 July 2004).
48 Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan [1991]
ECR 4685.
49 B Klein Goldewigt, Dignity and Human Rights: The Implementation of Economic, Social and Cultural
Rights (Antwerp, Interstentia, 2002); specifically, see K Schwarzburg above n 10, 135–50.
50 M Nussbaum, Creating Capabilities: The Human Development Approach (Belknapp, Harvard University
Press, 2011); C Dupré,‘Unlocking Human Dignity: Towards a Theory for the 21st Century’ (2009) 2 European
Human Rights Law Review 190.
51 AJ Menéndez,‘Rights to Solidarity’ in EO Eriksen, JE Fossum and AJ Menéndez (eds), The Chartering of
Europe (Baden-Baden, Nomos, 2003) 178.
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from human dignity forms part of the constitutional traditions common to the Member
States.52 The ECtHR has recognised that minimum material provisions (e.g. food, access
to a toilet, blankets, and clothes) have to be provided to prisoners in order to meet the
standard of Article 3 ECHR.53 While there is some discussion about the exact legal
nature of welfare provisions, in practice the Charter offers many possibilities for com-
bining Article 1 with more specific provisions, such as Article 14 (education), Article 34
(social security and social assistance), Article 35 (health care), Article 36 (access to
services of general economic interest) or Article 37 (environmental protection). Finally,
there may well be some overwhelming democratic interest in strengthening the connec-
tions between dignity and welfare provision in the EU in order to address its ongoing
and increasingly problematic democratic deficit and the sense of alienation that it may
trigger in some Member States, particularly at the time of crisis.54
III. Specific Provisions
(a) ‘Dignity’
Dignity is one of the most difficult concepts to understand and to define in law.
Intuitively and legally, it has to do with notions of (self-) respect, autonomy, privacy,
integrity and self-determination. In a manner typical of human rights conventions, the
EUCFR does not define ‘dignity’. As a result some scholars have suggested that dignity
should remain conceptually open,55 so that it continues to be an ‘anthropological reser-
voir of meaning’ (anthropologisches Sinnreservoir),56 from which we can keep deriving
new means of defining and protecting humanity. In this respect, the closest synonym to
‘human dignity’ offered by the Charter is perhaps the preamble phrase,‘placing the indi-
vidual at the heart of [EU] activities’. Immanuel Kant is the philosopher who has most
influenced the construction of human dignity by constitutional lawyers in Europe,57
and his reflection on dignity and humanity has been received in law as the prohibition
52 M Borowsky above n 15, 111–12; C Bittner, ‘Case note—Human Dignity as a Matter of Legislative
Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German
Federal Constitutional Court’s Judgment of 9 February 2010’ (2011) 12 German Law Journal 1941. See also
case No 509/02, of 19 December 2002 (plenary) of the Portuguese constitutional tribunal, translated in P Bon
and D Maus (eds), Les grandes décisions des cours constitutionnelles européennes (Paris, Dalloz, 2008) 173. On
the connections between Art 3 ECHR, human dignity and ‘rooflessness and cashlessness’ of asylum-seekers,
see R (on the application of Adam) v Secretary of State for the Home Department [2006] HLR 10 [77]–[78].
53 MS v UK (3 May 2012) [39] and [44]. See also Price v UK (10 July 2001).
54 This sense of alienation may be particularly strong in times of economic and financial crisis where the
EU can be identified with a systematic reduction in the quality of life, access to basic welfare (eg health care,
pensions, education, and unemployment benefits) and income reduction, and rather than its proclaimed
commitment to human rights protection, to equality and to democracy.
55 F Sacco, ‘Note sulla dignità umana nel “diritto costituzionale europeo”’ in SP Panunzio (ed), I diritti
fondamentali e le Corti in Europa (Naples, Jovene Editore, 2005) 596.
56 S Rixen, ‘Würde des Menschen als Fundament der Grundrechte’ in FSM Heselhaus and C Nowak
(eds), Handbuch der Europäischen Grundrechte (Munich, CH Beck Verlag, 2006) 345; and P Häberle, Das
Menschenbild im Verfassungsstaat, 4th edn (Berlin, Duncker und Humblot, 2005).
57 Kant is however not the only thinker of dignity: the work of Lassale (who was behind the drafting of
Art 151 of the 1919 Weimar constitution) and of Proudhon (who connected the concepts of dignity and
justice) have to be borne in mind; see CR Miguel, ‘Human Dignity: History of an Idea’ (2002) 50 Jarhbuch
des öffentlichen Rechts 281.
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Catherine Dupré 19
on instrumentalisation or objectification of human beings and the instruction always to
treat a person as an end in herself, not as a means.58 In the bioethics context, the Kantian
injunction is at the heart of the Oviedo Convention, with the explicit prohibition that
the ‘human body and its parts shall [not], as such, give rise to financial gain’ (Art 21).
It is also at the heart of the ECHR and the EU Charter, notably with the prohibition on
degrading and humiliating people, on reducing them to slaves, and, a more common
occurrence and addition of the Charter under Article 3, the recognition of their (mental
and physical) integrity.
In EU law, human dignity has so far been granted four types of legal nature.
Chronologically, dignity was first recognised as a ‘general principle of law’ in the Omega
ruling. As such, it acquired an objective dimension (as opposed to subjective, ie related
to the applicant) and became part of the ‘public policy’ (see above). Secondly, as will be
remembered, human dignity is the first foundational value of the EU under art 2 TEU.
The last two legal natures of dignity flow from the EU Charter, according to which
dignity is both a right and the foundation of all rights (see Explanations, above). The
CJEU has not had the opportunity to interpret and implement these different legal
identities of the concept of dignity. They are related in the sense that dignity as the
first foundational value of the EU may be constructed as branching out in an objective
direction (ie as a general principle of law following Omega) and in a subjective direction
(ie as the foundation of subjective rights and the most important of all rights) under the
Charter. These different natures may also be mutually supportive. For instance, in terms
of constructing dignity under the Charter, dignity as the first foundational value can be
used to strengthen Article 1 and to highlight the primacy of this right at the heart of
EU law. These multiple identities may however also generate conflicts as has happened
in some Member States, where an objective definition of dignity has conflicted with a
subjective definition.59
(b) ‘Inviolable’
The term ‘inviolable’ is equally difficult to understand. It should not be understood
as a descriptive term, so as to avoid the misleading perception that the EU is a sort of
paradise, where dignity can never be breached in practice. Due to the similarity of this
phrasing with Article 1 German Basic Law, many German scholars have argued that
the qualification of dignity as ‘inviolable’ implies that it is an absolute right (see below
under ‘Limitations and derogations’).
It might arguably be more helpful to understand dignity’s inviolability as the EU
commitment to do everything possible to avoid breaching human dignity. In this sense,
dignity’s inviolability becomes the axiomatic foundation of the whole EU. In other
words, the term ‘inviolable’ may be read as a twenty-first century equivalent of the
‘inalienable and sacred rights of Man’ of the 1789 French Declaration of the Rights of
58 Since G Dürig’s seminal paper: ‘Der Grundrechtssatz von der Menschenwürde’ (1956) 81 Archiv für
Öffentliches Recht, 117.
59 M Lévinet,‘Dignité contre dignité. L’épilogue de l’affaire du “lancer de nains” devant le comité des droits
de l’homme des Nations Unies’ (2000) 55 Revue Trimestrielle des Droits de l’Homme 1024, and N Rao above
n 40, 226.
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Man and Citizen.60 The reference to inviolability places human beings at the top of the
EU normative pyramid and prescribes that the power balance between human beings
and the EU is tipped in favour of the former, so that none of the EU (economic and
financial) activities may breach human dignity. Title I provides a list of specific rights
to put this into practice and to prevent (and sanction) breaches of the core dimensions
of humanity. Moreover, the Omega ruling has shown how in practice dignity could take
priority over freedom of establishment, indicating how the EU may be able to re-focus
its purposes and actions from a mainly economic to a political entity protecting human
beings and their rights.61
(c) ‘Duty to Respect and Protect’
This laconic statement masks a very complex debate and reality about the protection
of dignity under the EU Charter.62 At a first reading, ‘respect and protect’ indicates the
classic distinction in liberal democracy between a negative duty (not to interfere with
dignity) and a positive duty (to take active steps to ensure that dignity is not breached).
This distinction is developed in the core prohibitions under Title I EUCFR and in line
with positive obligations imposed on Member States under the ECHR.
Moreover, the protection duty is very far-reaching. First, as indicated by the CJEU in
the NS ruling of 2011, human beings are protected against potential breaches (not only
actual breaches), and this duty has a clear preventive function in relation to torture,
degrading and humiliating treatment.63 In this ruling the CJEU did not refer to the
Article 1 duty of protection, but developed its interpretation following a similar logic:
states have a (positive) duty to find out about the likely treatment of asylum-seekers in
the country of entry; states also have a (negative) duty not to send asylum-seekers back
to their country of entry if they are likely to suffer from treatment prohibited under
Article 4 EUCFR. Secondly, the dignity protection duty is not limited to the EU territory,
but reaches outside the EU. This flows from Article 21 TEU, which provides that the
EU’s external action has to be guided by the principle of respect for human dignity.64
Finally, while Member States and the Union are explicitly identified as having prime
responsibility for enforcing this duty under Article 52, it cannot be excluded that the
protection duty also affects private parties (Drittwirkung).65 Three broad points support
this. First is the‘inviolability’ of dignity, i.e. the fact that human dignity would no longer
be ‘inviolable’ if its violation by private parties could not be sanctioned. Secondly, all
60 ‘The Charter provides that ... human dignity should be intended as something of a “sanctuary” or,
perhaps as a kind of “no man’s land” where outside powers—whether public or private—have no access’:
M Olivetti above n 11, 8.
61 Generally, see AJ Menéndez, ‘Finalité through rights’ in EO Eriksen, JE Fossum and AJ Menéndez (eds),
The Chartering of Europe (Baden-Baden, Nomos, 2003) 30–48 and CT Smith and T Fetzer, ‘The Uncertain
Limits of the European Court of Justice’s Authority: Economic Freedom versus Human Dignity’ (2004) 10
Columbia Journal of European Law 445.
62 K Schwarzburg above n 10, 325–34; see also S Kühling, ‘Fundamental Rights’ in A von Bogdandy and
J Bast (eds), Principles of European Constitutional Law (Oxford and Munich, Hart Publishing and CH Beck
Verlag, 2010) 479–512.
63 Case C-411/10 NS, above n 4.
64 K Schwarzburg above n 10, 329.
65 M Olivetti above n 13, 10, and S Kühling above n 62, 496.
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Title I rights, which can be understood as the core components of human dignity, also
apply between private parties, who are certainly not exempted from the duty of respect
and protection. Moreover, Article 31 specifically provides for a horizontal duty of pro-
tection between the worker and the employer in the context of the workplace. Finally,
the foundational dimension of dignity under both Article 2 TEU and the EUCFR would
be depleted of much of its substance if dignity had no impact on private relations.
However, it is not clear whether fundamental rights have direct horizontal effect under
the Charter.66 On the one hand, a strict reading of Article 51.1, which does not include
a reference to private parties and of Article 52.2, which requires further implementation
measures and restrictions, points to the lack of direct horizontal effect. On the other
hand, the rights listed in the Charter are only ‘made more visible’ and when they have
been found to have direct horizontal effect in case law (for instance), there is arguably
no reason why they should stop having direct horizontal effect due to being codified
under the Charter.
IV. Limitations and Derogations
This question is related to the absolute or relative character of Article 1. In support of
the absolute character, ie human dignity falling outside the scope of Article 52, primar-
ily is its ‘inviolable’ nature, literally taken to mean that it is not subject to limitations
and derogations. Moreover, constructing dignity as relative would arguably undermine
the very foundations of the EU and of the EUCFR rights, and the absolute character of
dignity is corroborated by the absolute nature of the Title I rights.67 The advantages of
considering dignity as absolute are twofold: this gives the EU and its rights the strongest
possible foundation, sending out a very clear message about the EU’s political commit-
ment towards human rights, both to Member States and internationally. In the hands
of judges, an absolute concept of dignity could be used in extreme cases as a last resort
(a sort of nuclear option in the absence of other relevant rights or in the event of a
breach of the very essence of humanity and democracy). Such a self-restrained approach
to dignity may be useful in focussing the concept’s uses in rare cases, thus preventing
inflationary references in an apparently limitless set of circumstances. However, the
absolute nature of dignity may also have disadvantages: it may lead to this concept’s
crystallisation and make it very difficult (if not impossible) to question its meaning and
scope, rendering any subsequent evolution of its meaning (and of the rights derived
from it) difficult.68 It may also be so rarely used by judges as to be at risk of disappearing
from their radar, and, in the worst-case scenario, acquiring paradoxically a mere declar-
atory status, without justiciable quality. Finally, interpreting dignity as absolute may
66 See for instance AG Trstenjak’s Opinion on Case C–282/10 Maribel Dominguez v Centre Informatique
du Centre Ouest Atlantique and Préfet de la région Centre, 8 September 2010, paras 80–83. See also J Kokott
and C Sobotta, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ EUI Working Paper
(2010/6) (Florence, Academy of European Law, 2010) 14. More generally see S Gardbaum ‘The ‘Horizontal
Effect’ of Constitutional Rights’ (2004) 102 Michigan Law Review 387, 403–4.
67 F Schorkopf, ‘Würde des Menschen’ in D Ehlers (ed), Europäische Grundrechte und Grundfreiheiten
(Berlin, De Gruyter, 2009) 490 and M Borowsky above n 15, 118.
68 Ch Enders above n 30 and Ch Möllers, ‘Democracy and Human Dignity: The Limits of a Moralized
Conception of Rights in German Constitutional Law’ (2009) 42 Israel Law Review 416.
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22 Catherine Dupré
render integration dynamic more difficult and collide with Member States’ traditions
where dignity is not always understood and protected as an absolute right or value.
On the other hand, dignity may be considered as being relative. This flows from a
strict reading of Article 52, which does not explicitly exclude dignity from its scope of
application. Dignity could therefore be restricted in compliance with this provision.
One advantage of this option might be to encourage a more routine use of the con-
cept, which could be instrumental in stimulating a new dignity-based rights culture
and practice in the EU under the Lisbon Treaty. A second advantage might be in de-
dramatising dignity, together with the sensitive (even taboo) issues related to it (such
as abortion, euthanasia, assisted suicide, uses of human embryos), and to mobilise the
uses of dignity and its judicial language. It has to be noted that constructing dignity as
relative does not necessarily trivialise it: human dignity remains the first foundational
value of the EU, the source of all rights and the first and most important right under the
EUCFR. Furthermore, under Article 52 dignity (like the other rights) may only be lim-
ited under a very strict set of requirements and circumstances. Importantly, its ‘essence’
may never be touched, so dignity remains ‘inviolable’. Furthermore Article 52.1 makes
it very clear that ‘any limitation on the exercise of [human dignity] must be provided
for by law and respect the essence of those rights and freedoms.’ This may be under-
stood as an indication that dignity should always be considered by judges and should
therefore become a standard step in their reasoning each time they are facing a human
rights issue. Finally, a relative status of dignity under the EUCFR would be subject to
the subsidiarity principle, making it possible for the absolute (constitutional) status of
dignity in some Member States to continue to be enforced.
The crux of the discussion on the relative/absolute status of dignity may lie in the
determination of its hierarchical position within the EU normative system. The relative
status of dignity would not necessarily deprive it of its hierarchically superior position,
guiding the interpretation and implementation of the Charter rights. In this respect, the
novel hierarchical position of dignity under the Charter contrasts with the ECHR hier-
archy of rights. Namely, whereas under the ECHR, the right to life is the first right, under
the EUCFR it becomes the second right, i.e. after dignity. This is a significant change in
the hierarchy of rights as so far established at the supranational level, and may particu-
larly affect the interpretation and the protection of the right to life. While, as discussed
above, this right retains its sacred status under Article 2 EUCFR (with the addition of
the prohibition on the death penalty), it may now be interpreted in the light of Article 1
and be constructed as the right to live in dignity. This construction becomes relevant to
end-of-life situations (although it should by no means be automatically equated with
a pro-euthanasia stance). Moreover, as indicated under Article 25 EUCFR, the right to
life with dignity has much more far-reaching implications,69 highlighting thus the fact
the protection of dignity is the raison d’être of the whole Charter and the ultimate test
of each of its specific rights, including the right to life.
A subtle and complex set of distinctions may be a suitable compromise for finding a
way out of this conundrum, making the most of the multiple legal natures so far attrib-
uted to dignity under EU law. As a result, the relative/absolute status of dignity may vary
69 C Dupré, ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity?’ (2006) 6
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with its legal nature. As a general principle, dignity is relative but can take priority over
the fundamental freedoms (as per Omega). As the first foundational value it is absolute
in order to ensure a strong basis from which subsequent EU law may not deviate. The
same applies to dignity as the foundation of human rights. Finally, as a human right,
dignity may be constructed as relative, but it is of course the first and most important of
all rights. These finer distinctions may, however, remain largely academic as in practice
the CJEU is likely to adopt a very cautious and possibly minimally casuistic approach.
V. Remedies
A well-known paradox of the EUCFR under the Lisbon Treaty (and one of its shortcom-
ings) is that the Charter does not create any new remedies to render human rights fully
effective.70 This is not to say, however, that human dignity breaches cannot be addressed
by the CJEU. Remedies and sanctions for breaches of dignity stretch across the full span
of EU provision in this respect, ie from interpretation issues (preliminary rulings) to
sanctions under Article 7 EU Treaty.
The most effective and routine remedy for dignity breaches is likely to be a reference
for a preliminary ruling under Article 267 TFEU. This is how most of the successful
dignity cases were brought to the ECJ/CJEU (the P v S, KB, Omega and NS cases). This is
how most future cases are likely to arise too, due to the necessity of clarifying the respec-
tive meanings of dignity under the EUCFR and Member States, particularly in those
Member States where dignity is well embedded in the constitutional culture. Moreover,
in terms of judicial uses, the argument of dignity has proved to be more effective as
a hermeneutic tool, deployed by courts to clarify and—crucially—to transform the
meaning of a range of legal provisions and human rights, as illustrated in ECJ dignity
case law so far.71 Additionally, an action in annulment (under Article 263) for breach of
dignity may be possible, particularly as the ‘institutions, bodies, offices and agencies of
the Union’ are now bound by dignity under Article 51 EUCFR. This, however, may not
be the easiest route for individuals to pursue as access to the CJEU is very restricted.72
In the absence of a specific EU remedy against human rights breaches, Member States
are likely to offer a more effective and user-friendly route to address and redress dig-
nity breaches.73 Judges, applicants and their lawyers will find in the EUCFR a welcome
clarification of the supranational concept of dignity and its specific core rights under
Title I. They might also combine these with the ECHR case law and be inspired by the
ECtHR’s fluid and creative approach to dignity so far. Finally, considering the prime
importance of dignity under both the Charter and the Lisbon Treaty (Art 2 TEU), the
Article 7 sanction may well become relevant.74 ‘A clear risk of a serious breach’ of any
of the rights protected under Title I may therefore trigger Article 7 proceedings. Overall
70 One option provided by the EU Treaty under Art 6.2 is that the EU becomes a member of the ECHR.
While this would make it possible for alleged victims to sue the EU before the ECHR for breaches of the ECHR
by the EU, this option still leaves no specific remedy against breaches of the EUCFR. W Weiss,‘Human Rights
in the EU: rethinking the role of the ECHR after Lisbon’ (2011) European Constitutional Law Review 64.
71 S Rixen highlights the ‘discourse structuring function of dignity’, above n 56, 348.
72 K Schwarzburg, above 10, 249–51.
73 W van Gerven,‘Remedies for Infringements of Fundamental Rights’ (2004) 10 European Public Law 261.
74 Ph Wallau, above n 1, 177.
01.43
01.44

24 Catherine Dupré
and as discussed above, any serious risk of removing the individual from the centre of
the EU’s activities and concerns may become an Article 7 issue as a threat to its first
foundational value (Art 2) and most emblematic right.
E. Evaluation
The codification of human dignity under Article 1 EUCFR has brought the EU’s commit-
ment to human rights into line with that of most of its Member States and with ECHR
case law. While the concept of dignity and its protection were not totally unknown to
EU law, having been developed by the ECJ in few but significant cases, Article 1 provides
a solid basis for human rights protection (both in practical and theoretical terms).
Moreover, the Charter provides the first normative definition of dignity at the suprana-
tional level, as it includes under Title I all the core prohibitions on which post-WWII
human rights were founded. In addition to this core definition, this study has shown
that the Charter constructs a thick definition of human dignity. It confirms the essential
role of dignity developed by the ECtHR by making it (in line with international law and
Member States’ constitutionalism) the foundation of human rights. As such, dignity is
tightly intertwined with the equality requirement (all human beings are equal in dignity
and rights) and is an inherently human quality, which exclusively protects human beings.
While the Charter does not bring a definitive answer to whether dignity protects all
forms of humanity as well as all human beings (such as human embryos in utero and
in vitro, embryonic cells, genetic make-up of human beings and future generations), its
commitment to ‘place the individual at the heart of its activities’ provides both a timely
codification of its human rights practice and a direction for future development of EU
law under the Lisbon Treaty. Finally, the EUCFR concept of dignity protects the person
as a whole, and not just specific types of rights (eg civil and political rights).
In short, Article 1 contains most ingredients for an effective definition and protection
of the EU’s most important fundamental right and what is also its first foundational
value. While the primacy of dignity under the Charter is not underpinned by a match-
ing remedy before the CJEU, making it possible for the primary victims of dignity (and
rights) breaches to access the Court, a number of domestic remedies are available to
them, leading up (as the case may) to preliminary rulings, which have so far proved
effective in protecting dignity. However, it is unfortunate that the coming into force of
the Lisbon Treaty and its Charter has coincided with the worst economic and financial
crisis of the EU since its creation. This has deprived the EU, its institutions, its Member
States and its citizens of a precious time to familiarise themselves with the Charter and
the new possibilities offered by the EU’s commitment to dignity as an ‘inviolable’ good,
which has to be protected and respected in all circumstances. In the EU’s manage-
ment of the crisis, little regard has so far been paid to human dignity, and individuals’
central place at the heart of the EU’s activities has arguably been exclusively occupied
by considerations of financial and budgetary rigour, leading to paradoxical threats to
(and possibly breaches of) what is under the under the Lisbon Treaty and the Charter
the real ‘golden rule’ of the EU.
01.45
01.46

Article 2
Article 2
Right to Life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which
reads as follows:
‘1. Everyone’s right to life shall be protected by law …’
2. The second sentence of the provision, which referred to the death penalty, was superseded by
the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows:
‘The death penalty shall be abolished. No-one shall be condemned to such penalty or
executed.’
Article 2(2) of the Charter is based on that provision.
3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the
ECHR and its Protocol. They have the same meaning and the same scope, in accordance
with Article 52(3) of the Charter. Therefore, the ‘negative’ definitions appearing in the
ECHR must be regarded as also forming part of the Charter:
(a) Article 2(2) of the ECHR:
‘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.’
(b) Article 2 of Protocol No 6 to the ECHR:
‘A State may make provision in its law for the death penalty in respect of acts committed
in time of war or of imminent threat of war; such penalty shall be applied only in the
instances laid down in the law and in accordance with its provisions …’
Select Bibliography
R Hood and C Hoyle, The Death Penalty: A Worldwide Perspective, 4th edn (Oxford, Oxford
University Press, 2008).
D Korff, The Right to Life: A Guide to Implementation of Article 2 of the European Convention on
Human Rights (Human Rights Handbook No 8) (Strasbourg, Council of Europe, 2006).
B Mathieu, The Right to Life (Strasbourg, Council of Europe, 2006).
A Plomer, ‘A Foetal Right to Life? The Case of Vo v France’ (2005) 5 Human Rights Law Reports 311.
E Wicks, The Right to Life and Conflicting Interests (Oxford, Oxford University Press, 2010).
——,‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011)
11 Human Rights Law Reports 556.
——,‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’
(2012) 12 Human Rights Law Reports 199.

26 Elizabeth Wicks
J Yorke, ‘The Right to Life and Abolition of the Death Penalty in the Council of Europe’ (2009)
34 European Law Review 205.
—— (ed), Orientations of the Right and Value of Life (Farnham, Ashgate, 2010).
A. Field of Application of Article 2
The right to life may be the right with the least obvious application to EU law. At a
superficial level, it may appear that Union law does not directly engage with the right to
life: it does not subject citizens to the death penalty, nor use lethal force in law enforce-
ment, and nor do the Member States when implementing Union law. Nevertheless, the
EU is increasingly extending its influence into fields with some relevance to the pres-
ervation of the right to life of EU citizens. First, there is the obvious field of criminal
justice—which is the field in which the right to life is most commonly infringed under
other treaties. The EU took its first tentative steps into the criminal justice arena when
the Maastricht Treaty enabled judicial cooperation in criminal matters under the third
pillar. The Lisbon Treaty increased the EU’s influence in this area by providing for a
new legal framework for criminal legislation, while the Stockholm Programme1 now
forms the agenda for EU justice and home affairs legislation from 2010 to the end of
2014. While not directly engaging the right to life, the EU’s involvement in matters of
criminal justice and security will increase the potential for engagement with this right.
In addition, the EU’s criminal law relations with third states may raise a particular issue
in respect of states that have not abolished the death penalty.
Secondly, the EU’s increasing involvement in issues of health care also has the clear
potential to engage right to life issues. In addition to the explicit obligation under
the Treaty of Maastricht (Art 152) to ensure a high level of health protection in all
Community policies and activities, the free movement provisions have also been utilised
in the healthcare context to facilitate access to medical treatment, while the recent
Patient’s Rights Directive2 explicitly aims to promote cooperation on healthcare and
further facilitate access to cross-border healthcare.3 The right to receive medical treatment
in another Member State has been recognised as an aspect of free movement to provide
and receive services. The right to life may be of some relevance in respect of a right to
receive life-sustaining treatment (or even, perhaps, in relation to a state’s obligation to
provide life-sustaining treatment for a patient unable to provide consent). For example,
the claim in Peerbooms, where a Dutch health insurance fund denied reimbursement
of medical costs for a Dutch citizen in a coma who was referred to a specialist clinic in
Austria, may have been strengthened if the patient’s right to life was a factor added to
his right to receive services.4 The right to life could also, however, be used as a factor
cautioning against access to medical services in another Member State, if the service
1 ‘The “Stockholm Programme”—An Open and Secure Europe Serving and Protecting Citizens’ [2010]
OJ C115/1.
2 Directive 2011/24 on the application of patients’ rights in cross-border healthcare [2011] OJ L88/45.
3 For more information on freedom of services as regards healthcare, see TK Hervey and JV McHale,
Health Law and the European Union (Cambridge, Cambridge University Press, 2004).
4 Case C-157/99 Geraets Smits v Stichting Ziekenfonds VGZ (2001) 62 BMLR 101.
02.01
02.02

Art 2 – Right to Life
Elizabeth Wicks 27
sought is assisted suicide or euthanasia.5 While such treatment might be regarded as a
service to which the free movement provisions would generally apply,6 if it is regarded as
contrary to the right to life (which is by no means certain) then EU law may no longer
be in a position to facilitate access to such services, potentially justifying Member States
restricting access to such services.
Similar factors may be at play in respect of cross-border abortions. The European
Court of Justice has confirmed in Society for the Protection of the Unborn (Ireland) Ltd
v Grogan and others, that abortion is a service qualifying for free movement.7 In this
case, however, the Court was reluctant to engage with the rights issues and rejected an
argument that a prohibition on information relating to the availability of abortions in
other states violated the freedom to provide and receive services due to the lack of a
commercial element to the service provision in this case. Presumably if such a commer-
cial element did exist, EU law would have been more substantively engaged by the facts
of the case. Furthermore, it is potentially significant that arguments about the morality
of abortion were held not to affect whether or not it is a service. So, because abortion
is lawful in, for example, the UK, the Irish argument of its immorality is regarded as
irrelevant to its protection under the EU’s free movement provisions. However, an
obligation to respect the right to life might change that perspective if, and only if, the
right is viewed as being engaged by the termination of a pregnancy. The controversial
application of the right to life to a foetus will be considered below.
A final potential field of application for the right to life within EU law is in the context
of armed conflict. The EU has a Common Security and Defence Policy, and has ongoing
military deployments in Bosnia and Herzegovina and Somalia.8 While there are difficult
questions of jurisdiction, derogation and necessity to be settled before a death in conflict
can engage the right to life (discussed below), the EU’s increased involvement in global
matters may, alongside its increased involvement in the criminal justice and healthcare
arenas, render the right to life a relevant and enforceable aspect of the Charter.
B. Interrelationship of Article 2 with Other
Provisions of the Charter
The right to life has a complex relationship with the concept of human dignity (Art 1),
as reference to issues such as ‘dying with dignity’ illustrates. Article 1 of the Charter
states that ‘Human dignity is inviolable. It must be respected and protected.’ As the
Explanations make clear, dignity is a right in itself and also a basis for all fundamental
5 Voluntary active euthanasia is lawful, in strictly defined circumstances, in both the Netherlands and
Belgium. It is prohibited in other Member States.
6 See S Michalowski, ‘Health Care Law’ in S Peers and A Ward (eds), The European Union Charter of
Fundamental Rights (Oxford, Hart Publishing, 2004) 295–96.
7 Society for the Protection of the Unborn (Ireland) Ltd v Grogan and others [1991] ECR I-4703. See
G de Búrca, ‘Fundamental Human Rights and the Reach of EC Law’ (1993) 13 Oxford Journal of Legal
Studies 283; D Rossa Phelan, ‘Right to Life of the Unborn v Promotion of Trade in Services: The ECJ and the
Normative Shaping of the EU’ [1992] 55 Modern Law Review 670.
8 www.consilium.europa.eu/eeas/security-defence/eu-operations?lang=en.
02.03
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28 Elizabeth Wicks
rights. As the basis of the right to life, it emphasises the significance of dignity in human
life,9 and ensures that a focus on the economic and social context of life is not over-
looked. As a right in itself, however, it may caution against the preservation of life in cir-
cumstances where the dignity of the individual is undermined. For example, a positive
obligation under the right to life to preserve the life of a comatose patient may conflict
with the obligation under the right to dignity to respect and protect human dignity at all
times. The potential for conflict depends entirely upon the interpretation placed upon
dignity; a controversial and ambiguous issue. Dignity can be viewed as either empower-
ment or constraint. It can sometimes reinforce a right of autonomy, and at other times
limit it.10 It is when reinforcing autonomous choice that dignity may conflict with the
right to life, but the concept has another side and thus it may strengthen the protection
for human life under the Charter by precluding the limitation of the right to life in a
manner that would violate the concept of human dignity. Thus, while the use of lethal
force by the state is permitted when absolutely necessary in order to prevent unlawful
violence, a shoot to kill policy that degrades the dignity in all human life might, per-
haps, raise issues under Article 1. In such a way, the right to dignity could consolidate
the right to life.
The right to life might, in some circumstances, conflict with Article 4’s prohibition
of inhuman or degrading treatment or punishment. Due to Article 52(3), this right has
the same meaning and scope as Article 3 ECHR which has conflicted with the right to
life under the ECHR in cases involving the force-feeding of prisoners. For example, in
X v FRG11 the European Commission of Human Rights was asked to consider the com-
patibility of the force-feeding of a prisoner with Article 3’s prohibition on degrading
treatment. The Commission concluded that force-feeding would breach Article 3, but
was required under Article 2’s protection for the right to life. The Commission utilised
the concept of best interests in order to justify the life-saving intervention. Usually,
however, and certainly in the non-custody scenario, it will not be reasonable (and
therefore, as we shall see, not required under Article 2) for the state to take steps to save
life which involve subjecting an individual to degrading treatment. In line with Article
1’s elevation of the principle of human dignity, the absolute nature of the prohibition
on degrading treatment means it will usually triumph when pitted against the limited
nature of the right to life.
As the provision of healthcare appears to be a particularly significant context in which
the right to life might come into play in the EU context, it may also be worth noting
the right’s potential connection to Article 35’s right of access to preventive health care
and right to benefit from medical treatment. An expansive interpretation of the right
to life would itself incorporate a (limited) right to access life-saving treatment. The
limited nature of the positive obligations imposed by the right to life, however, and
particularly the pragmatic recognition of the need to balance the provision of health-
care against the reality of limited resources, means that in practice it will be difficult
to utilise Article 2 to gain access to treatment. Article 35 may provide a more effective
9 E Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’
(2012) 12(2) Human Rights Law Review 199.
10 D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University
Press, 2001) 46.
11 X v FRG (1984) 7 EHRR 152.
02.06
02.07

Elizabeth Wicks 29
route for such an argument, although its wide-ranging limitation to ‘the conditions
established by national laws and practices’ suggests it also may provide scant assistance
to the EU citizen unable to obtain necessary but unaffordable life-preserving treatment.
Finally in the healthcare context,Article 3’s explicit protection for the right to respect for
physical and mental integrity and for free and informed consent of patients might bring
it into conflict with a state’s positive obligation to preserve life in circumstances where
consent is withheld. As with Article 4, however, it is unlikely that the limited positive
obligations inherent in the right to life would outweigh the core negative obligations on
states to respect a patient’s autonomy (at least while that patient retains mental capac-
ity).
Article 19(2) prohibits,inter alia,the removal,expulsion or extradition to a state where
there is a serious risk of being subjected to the death penalty. This supplements Article 2,
which will also serve to prevent extradition from a European state to a state which still
imposes the penalty (as discussed in more detail below).12
C. Sources of Article 2 Rights
I. ECHR
The explanations to the Charter clarify that the first paragraph of Article 2 is based upon
the first sentence of Article 2(1) ECHR, which states that ‘Everyone’s right to life shall
be protected by law’. While the ECHR terminology presupposes an existing right to life,
one that is merely given legal recognition by this provision, the wording of Article 2 of
the Charter accords the right to everyone. This different approach is unlikely to have
much, if any, significance in practice. The second sentence of the ECHR’s protection of
the right to life is omitted from Article 2 of the Charter, but this explicit prohibition on
the intentional deprivation of life will be implicitly incorporated into the Charter by
means of Article 52(3) (which ensures that the right to life in the Charter will have the
same meaning and scope as the ECHR right to life on which it is based), as too will
the permitted limitations on the right to life also contained in that sentence. These, as
the explanations to the Charter specify, permit the deprivation of life when it results
from the use of force which is no more than absolutely necessary in one of three crimi-
nal justice scenarios: in defence of any person from unlawful violence; to effect a lawful
arrest or prevent escape; or to quell a riot or insurrection.
The second paragraph of this provision is based upon Article 1 of Protocol No 6 to
the ECHR, which abolishes the death penalty in times of peace. Protocol No 6 makes
explicit provision for the lawful imposition of the death penalty in time of war or immi-
nent threat of war (Art 2 of Protocol No 6). This limitation is, therefore, also regarded
as forming part of the Charter due to Article 52(3). All Member States have also signed
Protocol No 13 to the ECHR, which prohibits the death penalty in times of war (all
but Poland have also ratified it). This additional protection is lacking from the Charter,
12 For further discussion of the relationship between Art 19(2) and Arts 2 and 4, see the chapter on Art 19
in this collection.
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30 Elizabeth Wicks
although Article 53 will ensure that those Member States bound by the higher standards
of Protocol No 13 will remain so. Furthermore, it is at least arguable under Article 53
that, despite Poland’s lack of ratification, the less strict rule in the Charter should not
be interpreted as adversely affecting the greater protection offered to the right to life in
Europe by means of Protocol No 13.
The European Court of Human Rights has adopted an expansive interpretation of the
right to life under the ECHR, extending its protection of human life by imposing posi-
tive, as well as negative, obligations upon contracting states. As Article 2 of the Charter
is to be given the same meaning and scope as Article 2 of the ECHR, which, according
to the explanations, includes the determination of these by the Strasbourg Court, the
right to life under the Charter not only prohibits the intentional deprivation of life but
also requires that reasonable steps are taken in order to safeguard lives.13
II. UN Treaties
The right to life is also protected in Article 6 of the International Covenant on Civil and
Political Rights. Article 6(1) states that ‘Every human being has the inherent right to life.
This life shall be protected by law. No one shall be arbitrarily deprived of his life.’ The
main distinction between this protection of the right to life and that found in the ECHR,
on which the Charter’s provision is based, is that the ICCPR’s prohibition on depriva-
tion of life applies only to arbitrary deprivations. While this may, at first glance, appear
to be a much more limited protection for life than the prohibition of all intentional
deprivations of life under the ECHR, the case law of the Human Rights Committee has
ensured that the content of the rights are almost identical, by introducing the concepts
of proportionality and necessity into the permissible use of lethal force.14 The remainder
of Article 6 provides detailed provisions relating to the permissible use of the death
penalty, which are of no relevance within Europe where the death penalty is prohibited,
at least during times of peace, due to Protocol No 6 to the ECHR.
III. Other Sources
The right to life also finds some, limited, protection under international humanitarian
law (IHL). While human beings can be classified as legitimate military targets, the use
of force against them must be proportionate and necessary. Furthermore, civilians are
immune from direct attack.15 There is also some protection of civilians from indiscrimi-
nate attack, and the unsavoury concept of collateral damage is only acceptable if the
numbers of civilian deaths are proportionate to the military aim sought.16 Intentional
direct attacks on civilians, causing excessive loss of life to civilians in otherwise legiti-
mate military attacks, and killing a combatant who has surrendered are also recognised
13 Osman v United Kingdom (1998) 29 EHRR 245; Reps 1998-VIII, para 115.
14 Suarez de Guerrero v Colombia (Communication 45/1979).
15 Arts 51(2) and 52(1) Protocol I Geneva Conventions. The prohibition of the killing of civilians was con-
firmed by the International Court of Justice in the Nuclear Weapons case ((1996) ICJ Reps 226, 257).
16 ‘Excessive’ damage to civilians is expressly prohibited in Art 51(5)(b) Protocol I Geneva Conventions.
02.11
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Elizabeth Wicks 31
as war crimes under the Rome Statute of the International Criminal Court 1998.17 The
protection offered by this criminalisation of conduct during hostilities arguably goes
further than the protection afforded by the right to life in human rights treaties due to
the problematic issue of jurisdiction in respect of protecting the lives of the individuals
of one state against the armed forces of another.18
The right to life has strong religious and philosophical roots, and a special value
has traditionally been given to human life in all human societies. Most Member States
include the right to life in their constitutions and, although there are some significant
differences (particularly on the issue of whether the right applies pre-birth19), the basic
prohibition on state killing of individuals is firmly rooted throughout Europe and
beyond. In addition to constitutional declarations of the right to life, domestic imple-
mentation of the right can be seen through criminal law, with criminal prohibitions on
the taking of life backed up by effective police forces and criminal justice systems. The
civil law also plays a part (for example in the context of negligent deaths), as does wider
social assistance, for example by means of social security payments and an accessible
healthcare system. Protecting the life of those within its jurisdiction is one of the core
responsibilities of all governments.
D. Analysis
I. General Remarks
Article 2 of the Charter protects the right to life in broad terms.As it has the same meaning
and scope as Article 2 ECHR, it can confidently be asserted that the right includes both
negative and positive obligations which will be imposed upon the institutions of the EU
as well as Member States when implementing EU law. Intentional deprivations of life
by these bodies will be prohibited unless they fall within one of the limited exceptions
contained within Article 2 ECHR (and discussed below). Furthermore, these bodies
will be required to take all appropriate steps to preserve human life. The death penalty
is prohibited absolutely in peacetime, although its imposition in times of war remains
somewhat ambiguous. These issues will now be considered in greater detail.
II. Scope of Application
The question of the personal scope of the right to life protected in the ECHR remains
ambiguous, six decades after its drafting. Article 2 ECHR extends the right to ‘everyone’,
but it is unclear whether or not this includes a foetus. The European Court of Human
17 Art 8(2)(b)(i)–(vi).
18 Bankovic v Belgium ECHR 2001-XII; Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004);
Al-Skeini v United Kingdom ECHR 2011 1093.
19 See, eg, Art 40(3)(3) Irish Constitution:‘The State acknowledges the right to life of the unborn and, with
due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable,
by its laws to defend and vindicate that right.’ By contrast, many Member States permit terminations of preg-
nancy within their laws, sometimes without the need for a justifying reason.
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32 Elizabeth Wicks
Rights (and previously the European Commission of Human Rights) has faced this
precise question on a number of occasions, but has thus far declined to provide an
unambiguous answer. In Vo v France, the Strasbourg Court had to decide whether the
right to life of a foetus had been violated when a negligent act of a doctor, which fatally
harmed the foetus, was not subject to criminal sanction. The Court, somewhat inge-
niously, evaded the core issue, first, by concluding that it would be neither desirable nor
possible to answer in the abstract whether an unborn child is given protection under
Article 2 and, secondly, by concluding that it was also unnecessary to decide the issue
on the facts of the case before it because, even if this foetus did have a right to life, it was
not violated by the French laws which had provided civil, although not criminal, conse-
quences for the harm. This consideration of the precise requirements of the right to life
for a foetus without any prior conclusion on whether such a right exists has been subject
to much criticism.20 More recently, in A, B, C v Ireland, the European Court of Human
Rights recognised an emerging European consensus on the provision of lawful abortion
beyond the ground of saving the life of the mother, although it continued to permit
Ireland to benefit from a wide margin of appreciation which justified constitutional
protection of the right to life of the foetus (subject only to the conflicting right to life of
the mother).21 Despite a clear trend towards more liberal abortion laws in Europe, the
right to life may yet provide some protection for the life of the unborn. While Member
States remain divided on the issue, the European Court of Human Rights has chosen to
defer to national priorities. Whether the Court will remain content in the future to abdi-
cate its decision-making responsibility on this divisive issue remains open to doubt.22
In terms of jurisdictional scope, the key question in the context of the right to life is
whether deaths during war or armed conflict engage the right. This will be a potentially
significant issue in respect of the EU’s military deployments under its Common Security
and Defence Policy, discussed above. Under Article 15 ECHR, the right to life is one of
only four Convention rights described, at least in part, as non-derogable, meaning that
even in times of war or public emergency, the right to life must be protected. Article 15(2)
provides an exception to the general non-derogability of the right to life, however, in
respect of ‘deaths resulting from lawful acts of war’. This does not mean, however, that
all deaths resulting from lawful acts of war are an exception to the right to life under the
ECHR. The phrase ‘deaths resulting from lawful acts of war’ is only contained within
Article 15(2) as an exception to the general non-derogability of Article 2 and is, there-
fore, only engaged when a state party derogates. Without a formal notice of derogation,
all intentional deaths caused by the state (and not otherwise excepted from the terms
of Article 2) will remain violations of the right to life. No state party to the ECHR has
20 For example, Judge Rozakis (joined by four other judges) recognised that ‘reliance on the procedural
guarantees of Article 2 to determine whether or not there has been a violation presupposes the prima facie
applicability of that Article.’ See also A Plomer, ‘A Foetal Right to Life? The Case of Vo v France’ [2005]
HRLR 311.
21 A, B, C v Ireland App no 25579/05, Merits (ECtHR, 16 December 2010). The constitutional protection
of the right to travel abroad for an abortion was a crucial factor in the Court’s judgment. As has already been
mentioned above, a comparable right to travel to other Member States for medical services, including abor-
tion, can also be found in EU law.
22 See E Wicks,‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011)
11 Human Rights Law Review 556 for discussion.
02.17

Elizabeth Wicks 33
issued a notice of derogation in respect of Article 2 and so ‘deaths resulting from lawful
acts of war’ appears to be an irrelevant consideration at present in Europe.23
A more significant restraint upon the application of the right to life to deaths during
armed conflict stems from the interpretation of the word ‘jurisdiction’ found within
Article 1 ECHR. Under this provision, the right to life, and all other rights and freedoms,
are required to be secured only to those within the contracting states’ jurisdiction.
While the European Court of Human Rights has confirmed that the jurisdictional
competence of a contracting state is ‘primarily territorial’,24 it has also recognised an
extension of that obligation where ‘as a consequence of military action—whether lawful
or unlawful—that state in practice exercises effective control of an area outside its
national territory.’25 Thus, while deaths of foreign civilians caused by aerial bombing
will not engage the right to life, a ground invasion followed by occupation may do so. In
Al-Skeini v United Kingdom, the Court further developed its approach to extraterritorial
jurisdiction. In this case, it was satisfied that the UK exercised ‘authority and control’
over south-east Iraq and was thus responsible for deaths caused by its security opera-
tions there.26 The right to life under the ECHR, and thus the Charter, therefore has the
potential to extend beyond the boundaries of the Member States, and also to govern
their behaviour beyond Europe if those states cause death during the course of military
operations elsewhere in the world.
III. Specific Provisions
The European Court of Human Rights views the right to life as ‘one of the most fun-
damental provisions in the Convention’ and therefore it considers that ‘its provisions
must be strictly construed’.27 This means that the ‘absolutely necessary’ exception to the
prohibition on intentional deprivations of life is regarded by the Court as ‘a stricter and
more compelling test of necessity’ than is to be found in the other Convention Articles.28
In practice, this means that the force used by agents of the state must be strictly pro-
portionate to the aim pursued. So, for example, while Article 2(2) permits the use of
lethal force to effect a lawful arrest, the Court has held that it can never be absolutely
necessary to use lethal force to arrest a non-violent suspect if he is posing no threat to
life or limb, even if the failure to use lethal force will result in the suspect’s escape.29
When considering the use of lethal force in defence of unlawful violence, the Court will
look not only at the actions directly responsible for the death but also at the planning
and control of the police or military operation.30 An armed operation must be planned,
controlled and conducted in a manner that reduces, as much as possible, the risk to life
23 Isayeva v Russia App no 57950/00 (ECtHR, 24 February 2005) provides an example of the enforcement
of the right to life by the Strasbourg Court in respect of the use of heavy combat weapons on civilians during
an armed conflict. .
24 Bankovic v Belgium ECHR 2001-XII para 59.
25 Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004) para 69.
26 Al-Skeini v United Kingdom ECHR 2011, 1093.
27 McCann v United Kingdom (1995) 21 EHRR 97 [147].
28 Ibid [149].
29 Nachova v Bulgaria ECHR 2005-VII.
30 McCann (n 27).
02.18
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34 Elizabeth Wicks
of both the public and the suspect. The state is thereby given a greater responsibility
than is an individual member of society who uses lethal force in self-defence: the state
must do all that it reasonably can in order to avoid a risk to life developing through the
course of its operation. In McCann, the UK was criticised for failing to do so during an
armed operation that led to the shooting of three IRA suspects. Those in control of the
operation failed to make sufficient allowances for the possibility that their intelligence
assessments might be erroneous, and also failed to stop the threat at an earlier stage
before any immediate threat to life could be perceived to exist. It was these failures that
led the UK into actions incompatible with the right to life.
The Court has been far more tolerant, and thus Article 2 ECHR far more forgiving,
of honest mistakes as to the absolute necessity of the use of lethal force. In cases where
there is a genuine threat posed by the suspect but some doubt about whether lethal force
was really necessary in order to counter that threat, a judgment made on the ground by
trained individuals under significant pressure is unlikely to be found to violate Article 2.
By contrast, however, if a mistake is made as to the very existence of a threat, then it
is less likely that the honesty of the mistake could justify the state killing. This can be
demonstrated by Gül v Turkey,31 where police officers opened fire on an unknown
target behind a closed door in a residential apartment. While it was possible that the
officers had mistaken the sound of the door bolt being drawn back for the sound of the
occupant of the flat opening fire at them, their reaction of ‘opening fire with automatic
weapons on an unseen target in a residential block inhabited by innocent civilians,
women and children’ was, in the Court’s view ‘grossly disproportionate.’32 The Court
unanimously found a violation of Article 2 in this case and was able to distinguish it
from the earlier case of Andronicou and Constantinou v Cyprus,33 where it was held not
to be disproportionate for the police to open fire at an identified hostage-taker who
was known to be in possession of a gun and had already fired at an officer. It appears,
therefore, that while a killing by a state agent that is not objectively necessary may escape
sanction under Article 2 ECHR if based on an honest misjudgement as to what level of
force will counter a known threat to life, a blatantly disproportionate reaction that is not
linked to a genuine threat will not be regarded as ‘absolutely necessary’.
In terms of the positive obligation recognised by the European Court of Human
Rights under Article 2 ECHR, this rests upon the interpretation of what is reasonable
in all the circumstances. In Osman v United Kingdom,34 the Court held that Article 2(1)
‘enjoins the state not only to refrain from the intentional and unlawful taking of life, but
also to take appropriate steps to safeguard the lives of those within its jurisdiction.’35 This
means that state authorities must do all that could reasonably be expected of them to
avoid a real and immediate risk to life of which they have or ought to have knowledge.36
The Court recognised, however, that this obligation must be interpreted in a way which
does not impose an impossible or disproportionate burden on the authorities.37 Both
31 Gül v Turkey App no 22676/93 (ECtHR, 14 December 2000).
32 Ibid, para. 82.
33 Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491; 1997-VI.
34 Osman v United Kingdom (1998) 29 EHRR 245; Reps 1998-VIII.
35 Ibid [115].
36 Ibid [116].
37 Ibid.
02.20
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Elizabeth Wicks 35
limited resources and the state’s obligations to respect other rights may excuse the state
from taking steps to preserve life. In Osman itself, concerning a failure by the police
to prevent a death, the rights of the suspect to due process prevented any violation
of Article 2, while the limited availability of resources to fund public healthcare has
prevented the success of claims for the provision of particular medical treatments that
could save life.38 However, the positive obligation element of the right to life remains a
significant obligation on contracting states, and violations of it have been found in con-
texts as diverse as the absence of an effective criminal law regime in a region of Turkey,39
a failure to provide timely and adequate medical care to a prisoner in custody,40 and a
failure to safeguard the public from the possibility of a lethal explosion at a hazardous
waste site.41 The positive obligation to safeguard lives is an important development of
the demands placed upon state authorities by the right to life and one that will doubtless
be further developed in the future. One possible aspect for development in the EU con-
text might be an obligation to use available EU instruments to prevent, investigate and
prosecute crimes causing a loss of life, where there is a cross-border element involved.
EU instruments of potential relevance in this context would include the EU mutual
assistance convention,42 the European arrest warrant, the European Protection Order
Directive,43 and the EU’s mutual assistance and extradition treaties with third states.44
The relationship between the right to life and the death penalty is a notoriously dif-
ficult one. Within Europe the trend towards complete abolition of the death penalty
has occurred independently of the right to life. Thus, Article 2 ECHR continues to
explicitly permit the imposition of the death penalty, while all contracting states to the
Convention are legally obliged by Protocol No 6 to abolish the penalty in peacetime
(and most are further obliged under Protocol No 13 to abolish it during times of war).
Under Article 2 of the Charter, the death penalty is explicitly prohibited along the same
lines as Protocol No 6. The only circumstances in which the death penalty could legiti-
mately be imposed under the Charter is, therefore, during times of war or imminent
threat of war. Due to the overwhelming majority of Member States ratifying Protocol
No 13, however, it is to be hoped that the death penalty is a thing of the past within
Europe. A more likely circumstance in which the death penalty issue may arise is in
respect of extradition from a European state to a state which still imposes the penalty.
The European Court of Human Rights has been willing to utilise Article 3 ECHR and its
absolute, non-derogable, prohibition on inhuman or degrading punishment to prevent
such extraditions.45 Interestingly it is not the imposition of the penalty itself that falls
foul of this prohibition, but rather the circumstances surrounding the penalty, including
38 Pentiacova v Moldova (2005) 40 EHRR SE23.
39 Mahmut Kaya v Turkey [2000] ECHR 129.
40 Augvelova v Bulgaria App no 38361/97 (Judgment of 13 June 2002).
41 Öneryildiz v Turkey [2004] ECHR 657; (2005) 41 EHRR 20.
42 Convention on Mutual Assistance in Criminal Matters between the Member States of the European
Union [2000] OJ C197.
43 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the
European protection order [2011] OJ L338/2.
44 See, eg, the Agreement on Mutual Legal Assistance between the European Union and the United States of
America [2003] OJ L181/34 and the Agreement on Extradition between the European Union and the United
States of America [2003] OJ L181/27.
45 Soering v United Kingdom (1989) 11 EHRR 439.
02.22

36 Elizabeth Wicks
the so-called ‘death row phenomenon’: the mental anguish faced by the condemned
prisoner while enduring a long wait for execution on death row. Furthermore, the impo-
sition of the death penalty following an unfair trial will also infringe Article 3 and thus
serve to prevent extradition.46
IV. Limitations and Derogations
Article 2 of the Charter corresponds to Article 2(1) and Protocol No 6 of the ECHR
and therefore, in accordance with Article 52(3) of the Charter, has the same meaning
and scope as those provisions. The limitations contained within Article 2(2) of the
ECHR permitting the use of lethal force when ‘absolutely necessary’ for a number of
law enforcement reasons, as discussed above, will limit the application of the Charter’s
right to life. The Charter’s own limitation clause in Article 52(1) identifies many of the
concepts at the heart of the European Court of Human Rights’ interpretation of the
limitations to the right to life, such as legality, proportionality, necessity and the rights
of others. To the extent that the ECHR limitations are stricter, they will take precedence
due to the requirement that the Charter’s right to life have the same meaning and scope
as that found in the ECHR on which it is based. However, to the extent that Article 52(1)
imposes any greater restrictions upon the use of lethal force by the state, it might enable
Union law to provide more extensive protection for the right to life (as explicitly envis-
aged in Article 52(3)). The requirement that any limitation must ‘respect the essence’
of the right to life is the only aspect that could perhaps achieve this. It should also be
reiterated here that the Explanations to Article 1 make clear that human dignity must
be respected even when a right is limited. Any intentional deprivations of life, therefore,
must not infringe the idea of human dignity, even if they are regarded as absolutely
necessary under the right to life.
The Charter’s prohibition of the death penalty will similarly be limited by the excep-
tion contained within Protocol No 6 in respect of acts committed in time of war or of
imminent threat of war.All Member States have signed Protocol No 13 to the ECHR, how-
ever, which also prohibits the death penalty in times of war. As suggested above, while
Poland, alone amongst EU Member States (and candidate countries) has not yet ratified
this Protocol, it is arguable that, due to Article 53 of the Charter, the less strict rule in the
Charter should not be interpreted as adversely affecting the greater protection offered to
the right to life in Europe by means of Protocol No 13. Thus, Article 2(2)’s prohibition
of the death penalty may indeed be as absolute as it, at first glance, appears to be.
The right to life is one of only four non-derogable rights within the ECHR, mean-
ing that it cannot be suspended even in times of war or public emergency. However, as
noted above, there is a potentially significant exception to the general non-derogability
of the right. Under Article 15(2), a contracting state may suspend the application of the
right to life to ‘deaths resulting from lawful acts of war’. No European state has done so,
however, and so the more complex legal issue of distinguishing lawful acts of war from
those that are unlawful does not arise. It should also be noted that even if a notice of
derogation was issued in respect of Article 2, it would need to satisfy the requirements
46 Ocalan v Turkey ECHR 2005-IV.
02.23
02.24
02.25

Elizabeth Wicks 37
of Article 15, including the requirement that the measures taken in response to the
specified war or public emergency be ‘strictly required by the exigencies of the situation’.
There is no general exception to the prohibition on intentional deprivations of life in
times of war or public emergency under the ECHR or, therefore, the Charter. Finally, if
the Member State wanted to derogate from its obligations pursuant to EU law, such a
derogation would also have to be consistent with Article 347 TFEU.
V. Remedies
The question of remedies in the context of the right to life is somewhat ironic as the
person whose right to life has been violated is unlikely to be alive to benefit from any
subsequent remedy. This is not inevitably the case, however, because the European
Court of Human Rights has recognised the application of the right to life to the use of
non-lethal force. In Makaratzis v Greece,47 the applicant was not killed during a pursuit
by the police and there was no intention to kill him, but the degree and type of force
used was held by the Strasbourg Court to engage Article 2. Although the use of potentially
lethal force was held to be justified on the facts, the Greek authorities had not provided
sufficient safeguards against arbitrariness, abuse of force and avoidable accident48 in
order to avoid a real and immediate risk to life. A substantive violation of the right to
life was, therefore, found by the Court despite the fact that nobody had died as a result
of the police action. In this, admittedly rare, situation a remedy, such as compensation,
can be provided directly to the victim whose life was put at risk.
In cases where the violation of the right to life has resulted in a person’s death, it
usually falls to the family to seek a remedy. Under the ECHR, the victim test for admis-
sibility has often been satisfied by relatives of the deceased, and some have succeeded in
obtaining compensation for the right’s infringement. A vital substantive aspect of the
right to life under the ECHR, and other international documents,49 is the requirement
of an effective investigation into killings and, crucially, disappearances. This element
was first mentioned in McCann, where the Strasbourg Court established a duty upon
contracting states to undertake effective investigations into killings on the basis that ‘a
general legal prohibition of arbitrary killing by the agents of the State would be ineffec-
tive, in practice, if there existed no procedure for reviewing the lawfulness of the use of
lethal force by State authorities.’50 For this reason, the Court held that Article 2 requires
by implication that there be some form of effective official investigation when individu-
als have been killed by agents of the state or otherwise. Subsequent cases determined
that the requirement of an effective and independent investigation into deaths arising
from the state’s use of force is all the more important when the precise circumstances of
the death remain unclear,51 and that it is not confined to cases where it has already been
47 Makaratzis v Greece [2004] ECHR 694; (2005) 41 EHRR 49.
48 Ibid [58].
49 This obligation also exists under the ICCPR: Baboeram et al v Suriname (Communications 146,
148-154/1983); Herrera Rubio v Colombia (Communication 161/1983); Sanjuán Arévalo v Colombia
(Communication 181/1984).
50 McCann (n 27) [161].
51 Kaya v Turkey (1998) 28 EHRR 1; Reps 1998-I.
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38 Elizabeth Wicks
established that the death was caused by agents of the state. Furthermore, in Timurtas v
Turkey52 the application of this requirement was confirmed as applying to a person who
has disappeared. In these circumstances, the Court will also relax its evidential expecta-
tions so that ‘sufficient circumstantial evidence, based on concrete elements’ will suffice
for a conclusion that an individual detained by the state must be presumed to have died
in custody.53 The Court also made the significant observation that the prompt judicial
intervention required by Article 5 of the ECHR may be crucial to the detection and
prevention of life-threatening measures in violation of Article 2.54
Perhaps the most crucial remedial action of all, in the context of the right to life, is
the prevention of death, and therefore the availability of interim measures has great rel-
evance to the effective enforcement of the right. This issue has caused the Human Rights
Committee, under the ICCPR, some concern. For example, in Paindiong v Philippines,55
the state executed the three authors of a complaint after receiving the HRC’s request to
refrain from causing the death until the HRC had had the opportunity to consider the
matter. The HRC responded by issuing a strong condemnation of the state’s actions,
emphasising that the availability of interim measures is ‘essential to the Committee’s
role’ and the flouting of such measures‘undermines the protection of Covenant rights’.56
A similarly stringent approach must be adopted by the European manifestations of the
right to life.
E. Evaluation
The right to life is admittedly not the most relevant of fundamental rights within the
context of EU law. Nonetheless, as the EU expands its competencies and influence, it
is important that this crucial right be adequately protected. While it might be assumed
that the right to life is already sufficiently respected within Europe, the issues brought
before the European Court of Human Rights over the last few decades illustrate that
human life remains vulnerable to state abuse and neglect. The use of lethal force by law
enforcement agencies, extradition of prisoners to non-European states where they may
face the death penalty, military engagements, and the lack of adequate resources to save
all possible lives are just some of the issues facing the governments of Europe. When
these issues are coupled with ongoing differences of opinion as to the beginning and end
of appropriate legal protection for human life (in the context particularly of abortion
and assisted dying), it becomes apparent that the right to life remains a core protection
for the people of Europe from their governments and its place in the Charter rightly
confirms that it should also be at the heart of future development of the EU.
52 Timurtas v Turkey ECHR 2000-VI.
53 Ibid [82].
54 Ibid [89].
55 Paindiong v Philippines (Communication 869/1999).
56 Ibid, para 5.4. Similar condemnation followed the execution by Trinidad and Tobago of the author of a
pending communication in Ashley v Trinidad & Tobago (Communication 580/1994).
02.28
02.29

Article 3
Article 3
Right to the Integrity of the Person
1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
(a) the free and informed consent of the person concerned, according to the procedures
laid down by law;
(b) the prohibition of eugenic practices, in particular those aiming at the selection of
persons;
(c) the prohibition on making the human body and its parts as such a source of financial
gain;
(d) the prohibition of the reproductive cloning of human beings.
1. In its judgment of 9 October 2001 in Case C-377/98 Netherlands v European Parliament
and Council [2001] ECR-I 7079, at grounds 70, 78 to 80, the Court of Justice confirmed that
a fundamental right to human integrity is part of Union law and encompasses, in the con-
text of medicine and biology, the free and informed consent of the donor and recipient.
2. The principles of Article 3 of the Charter are already included in the Convention on
Human Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and addi-
tional protocol ETS 168). The Charter does not set out to depart from those principles,
and therefore prohibits only reproductive cloning. It neither authorises nor prohibits other
forms of cloning. Thus it does not in any way prevent the legislature from prohibiting other
forms of cloning.
3. The reference to eugenic practices, in particular those aiming at the selection of persons,
relates to possible situations in which selection programmes are organised and imple-
mented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic
marriage among others, all acts deemed to be international crimes in the Statute of the
International Criminal Court adopted in Rome on 17 July 1998 (see its Article 7(1)(g)).
Select Bibliography
D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, OUP, 2001).
R Brownsword,‘Human Dignity,Ethical Pluralism,and the Regulation of Modern Biotechnologies’
in T Murphy (ed), New Technologies and Human Rights (Oxford, OUP, 2009) 19–84.
A-M Farrell, ‘The Politics of Risk and EU Governance of Human Material’, (2009) 16 Maastricht
Journal of European and Comparative Law 41.
M Favale and A Plomer, ‘Fundamental Disjunctions in the EU Legal Order on Human Tissue,
Cells and Advanced Regenerative Therapies’ (2009) 16 Maastricht Journal of European &
Comparative Law 89.
M Flear, A-M Farrell, T Hervey and T Murphy, ‘A European Law of New Health Technologies?’
in M Flear, A-M Farrell, T Hervey and T Murphy (eds), European Law and New Health
Technologies (Oxford, OUP, 2013) 389–414.

40 Sabine Michalowski
S Hennette-Vauchez, ‘Biomedicine and EU Law: Unlikely Encounters?’ (2011) 38 Legal Issues of
Economic Integration 5.
A Plomer, ‘After Brüstle: EU Accession to the ECHR and the Future of European Patent Law’
(2012) 2 Queen Mary Journal of Intellectual Property 110.
JR Herrmann and B Toebes, ‘The European Union and Health and Human Rights’ (2011)
H Roscam Abbing, ‘Health Law: Facing the European Challenges’ (2010) 17 European Journal of
Health Law 1–10.
S Wheatley,‘Human Rights and Human Dignity in the Resolution of Certain Ethical Questions in
Biomedicine’ (2001) 3 European Human Rights Law Review 312.
A. Field of Application of Article 3
Article 3(1) guarantees physical and mental integrity without relating the concept of
integrity to particular areas of life, while Article 3(2) makes special provision for integrity
in the fields of medicine and biology. With regard to the protection and improvement of
human health, according to Article 6 of the TFEU, the EU has the ‘competence to carry
out actions to support, coordinate or supplement the actions of the Member States’.
Article 9 of the TFEU provides that ‘In defining and implementing its policies and
activities, the Union shall take into account requirements linked to the promotion of …
a high level of … protection of human health.’ Public health issues may also incidentally
arise in the context of a number of substantive policy areas in which the EU holds legis-
lative powers, including consumer policy, environmental policy, and social policy.
The main provision defining the EU competence in the area of health is Article 168.
Article 168(1) obliges the EU to ensure a high level of human health protection in the
definition and implementation of all EU policies and activities. This means that EU
activities in all areas, including, for example, the achievement of the internal market,
should actively promote health protection and be ‘directed towards improving public
health, preventing physical and mental illness and diseases, and obviating sources of
danger to physical and mental health’.
Article 168(2) stipulates that the EU can coordinate and support the activities of
the Member States in the areas mentioned in Article 168. Under Article 168(4)(a), the
European Parliament and Council are given the power to adopt measures to set high
standards of quality and safety of organs and substances of human origin, blood and
blood derivatives. The Blood Safety Directive,1 for example, was based on this provision,
as were the Human Tissue Directive2 and the Organ Safety Directive.3 Article 168(4)(c)
provides competence for‘measures setting high standards of quality and safety for medici-
nal products and devices for medical use’. However, measures taken under Article 168(4)
1 Directive 2002/98/EC setting standards of quality and safety for the collection, testing, processing, storage
and distribution of human blood and blood components [2003] OJ L33 (based on former Art 152(4)(a)).
2 Directive 2004/23/EC on setting standards of quality and safety for the donation, procurement, testing,
processing, preservation, storage and distribution of human tissues and cells [2004] OJ L102 (based on former
Art 152(4)(a)).
3 Directive 2010/45/EU on standards of quality and safety of human organs intended for transplantation
[2010] OJ L207.
03.01
03.02
03.03

Art 3 – Right to the Integrity of the Person
Sabine Michalowski 41
‘shall not affect national provisions on the donation or medical use of organs and blood’
(Art 168(7)), as the competence regarding health policies and the organisation and
delivery of health services and medical care lies primarily with the Member States.
Health-related measures can also be based on the general competence of approxi-
mation of laws under Article 114 of the TFEU, if the absence of at least a certain level
of harmonisation would adversely affect the functioning of the internal market.4 The
Clinical Trials Directive,5 and the Advanced Therapy Regulation,6 for example, were
adopted on this basis.
The right to free movement of goods as well as the freedom to provide and receive
services and the freedom of establishment incidentally award healthcare-related rights,
such as the right to be reimbursed by one’s health insurance scheme for medici-
nal products7 and medical treatment bought in another Member State,8 rights now
protected by the Directive on the Application of Patients’ Rights in Cross-Border
Healthcare9 which is based on both Articles 114 and 168 of the TFEU.
The relevance of the right to physical and mental integrity as protected by Article 3
for areas of EU competence is not obvious at first sight. However, the ECJ stressed in
Netherlands v European Parliament and Council that it has the power, ‘in its review of
the compatibility of acts of the institutions with the general principles of Community
[now EU] law, to ensure that the fundamental right to human dignity and integrity
is observed.’10 The right to integrity thus pervades all areas of EU law and policy.
Furthermore, the exercise of EU competence in the areas of medicine, biology and
health provides some room, and in fact potentially a need, to integrate concerns related
to the right to physical and mental integrity. In this respect it has been argued that
‘[r]emoving differences in the interpretation of individual and social human rights
principles by health systems means that undue barriers to the EU free movement prin-
ciples in health care are prevented.’11 This has found some reflection in the Directive on
Cross-Border Healthcare. While it primarily aims at regulating the right to receive cross-
border medical care, it incidentally touches upon matters of particular relevance in the
context of Article 3 of the Charter when it refers in Recital 5 to the Council Conclusions
on Common values and principles in European Union Health Systems12 which, in turn,
mention consent to treatment as one of these values and principles. Moreover, some
4 See, eg, Case C-380/03 Germany v Parliament and Council [2006] ECR I-11573, para 37. See also
H Roscam Abbing, ‘Health Law: Facing the European Challenges’ (2010) 17 European Journal of Health Law
1–10, 4.
5 Directive 2001/20/EC on the approximation of the laws, regulations and administrative provisions of
the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on
medicinal products for human use [2001] OJ L121.
6 Regulation (EC) 1394/2007 on advanced therapy medicinal products and amending Directive 2001/83/
EC and Regulation (EC) No 726/2004 [2007] OJ L324.
7 Case C-120/95 Decker v Caisse de Maladie Employés Privés [1998] ECR I-1831.
8 Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931; Case C-157/99 Geraets-Smits v
Stichting Ziekenfonds VGZ (2001) 62 BMLR 101; Case C-368/98 Abdon Vanbraekel v Alliance Nationale des
Mutualités Chrétiennes (ANMC) [2001] ECR I-5363.
9 Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare [2011] OJ L88,
Art 5, subject to the provisions in Chapter III of the Directive.
10 Case C-377/98 Netherlands v European Parliament and Council [2001] ECR-I 7079, 70.
11 Roscam Abbing (n 4) 9.
12 [2006] OJ C146/01.
03.04
03.05
03.06

norms of EU law, such as the directives on biotechnological inventions,13 clinical trials,
and tissue and organ quality and safety, seem to‘directly aim at biomedical issues’,14 even
though they are technically based on the various competency norms mentioned above.
In particular the Directive on Biotechnological Inventions has even been described as
‘an instance of direct incorporation of ethics within EU law’,15 which is reflected in
Recitals 16 and 37 to 45 to that directive. Indeed, it seems as if in certain highly sensi-
tive areas, including the commercialisation of the human body and other matters dealt
with by Article 3, there is a perceived need for the stipulation of some form of ethical
consensus in order to promote the internal market.16
Article 3 can also become relevant with regard to EU measures that are designed to
promote public health, or restrictions on freedom of movement imposed by Member
States based on considerations of public health.17 In both scenarios, the rights guar-
anteed by Article 3 set limits to the possible restrictions on individual freedoms in the
name of public health.18
B. Interrelationship of Article 3 with Other
Provisions of the Charter
Under the ECHR, the right to physical and mental integrity is protected by Article 8(1) as
part of the right to private life.19 Article 7 of the Charter, the right to respect for private
and family life,is based on Article 8(1) of the ECHR and should therefore,according to the
Explanatory Notes to the Charter,20 be given the same scope and interpretation.This could
lead to considerable overlap between Articles 3 and 7 of the Charter, as both would seem
to be involved where the right to physical and mental capacity is engaged. However, the
inclusion of Article 3 in addition to Article 7 suggests that Article 3, rather than the more
general provision of Article 7, kicks in where physical and mental integrity are at issue,
particularly when this occurs in the context of medicine and biology. Given the close link
between physical and mental integrity and health, Article 3 might to some extent overlap
with Article 35, the right to health care, which incidentally protects physical and mental
integrity by imposing a positive obligation on states to provide access to health care.
13 Directive 98/44/EC of the European Parliament and Council of the European Union of 6 July 1998 on
the legal protection of biotechnological inventions [1998] OJ L213.
14 S Hennette-Vauchez,‘Biomedicine and EU Law: Unlikely Encounters?’ (2011) 38 Legal Issues of Economic
Integration 5, 9; see also M Favale and A Plomer,‘Fundamental Disjunctions in the EU Legal Order on Human
Tissue, Cells and Advanced Regenerative Therapies’ (2009) 16 Maastricht Journal of European & Comparative
Law 89, 92–93.
15 Hennette-Vauchez (n 14) 18.
16 See also T Hervey and H Black,‘The European Union and the Governance of Stem Cell Research’, (2005)
12 Maastricht Journal of European & Comparative Law 11, 47–48. For a discussion of a market-based approach
to new health technologies see G Bache, M Flear and T Hervey, ‘The Defining Features of the European
Union’s Approach to Regulating New Health Technologies’ in M Flear, A-M Farrell, T Hervey and T Murphy
(eds), European Law and New Health Technologies (Oxford, OUP, 2013) 21–24.
17 See Arts 45(3) and 52 of the TFEU.
18 Roscam Abbing (n 4) 8.
19 X and Y v Netherlands Series A, No 91 (1985) [22]; Stubbings et al v UK (1997) 23 EHRR 213 [61].
20 Charter 4471/00 Convent 48 of September 20, 2000.
03.07
03.08

Art 3 – Right to the Integrity of the Person
Sabine Michalowski 43
The practices expressly mentioned and outlawed in Article 3(2) of the Charter, ie
eugenic practices, using the human body for financial gain, and reproductive cloning,
are closely related to the protection of dignity which is, in a more general form, guaranteed
by Article 1. Article 3 might also, to some extent, overlap with Article 2, the right to
life, which can be affected, for example, where an individual refuses to consent to life-
sustaining medical treatment.21 Article 4, the right to be free from torture and inhuman
and degrading treatment, may be engaged by behaviour that could also give rise to a
violation of Article 3, for example where the provision of non-consensual medical treat-
ment reaches a level of particular seriousness.22 A potential conflict between Article 3
and Articles 7 and 9 (the right to marry and found a family) could arise in the context
of the prohibition of cloning, where reproductive cloning might be the only possibility
to have a genetically related child.
C. Sources of Article 3 Rights
I. ECHR
Article 3 guarantees the right to physical and mental integrity which, according to the
European Court of Human Rights, forms part of the right to private life guaranteed by
Article 8 of the ECHR.23
II. UN Treaties
As stressed in the explanatory notes to Article 3, the prohibition of eugenic practices is
partly based on Article 7(1)(g) of the Rome Statute.
To a limited extent,Article 3 finds a basis inArticle 7 of the ICCPR which stipulates that‘no
one shall be subjected without his free consent to medical or scientific experimentation’.
To the extent that it applies to decisions related to reproductive health, Article 3 finds
some support in Article 16 of CEDAW which highlights women’s rights ‘to decide freely
and responsibly on the number and spacing of their children and to have access to the
information, education and means to enable them to exercise these rights’.
III. Council of Europe Treaties
The most important source of Article 3 is to be found in the Convention for the
Protection of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights and Biomedicine
21 X v Germany (1984) 7 EHRR 152.
22 See, eg, VC v Slovakia App no 18968/07 (Decision of 8 November 2011) [118]–[120].
23 Jehovah’s Witnesses v Russia App no 302/02 (Decision of 10 June 2010) [135]; see also Pretty v UK App
no 2346/02 (Decision of 29 April 2002) [63].
03.09
03.10
03.11
03.12
03.13
03.14

1997 (Oviedo Convention).24 Of particular importance are Article 5 on consent, and
Article 21 regarding the prohibition on the use of the human body for financial gain.
The latter is reiterated in Article 21 of the Additional Protocol to the Convention on
Human Rights and Biomedicine concerning Transplantation of Organs and Tissues
of Human Origin.25 The Additional Protocol to the Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the Application of
Biology and Medicine, on the Prohibition of Cloning Human Beings,26 provides the
basis for the prohibition of reproductive cloning in Article 3. The Additional Protocol
to the Convention on Human Rights and Biomedicine, concerning Genetic Testing for
Health Purposes,27 highlights the importance of free and informed consent with regard
to genetic testing (Art 9), and the Additional Protocol to the Convention on Human
Rights and Biomedicine, concerning Biomedical Research28 emphasises it with regard
to research (Art 14).
D. Analysis
I. General Remarks
Usually, general human rights documents, ie those that do not specifically deal with the
protection of individual rights in the particular context of biomedicine, tend to limit
themselves to guaranteeing personal integrity implicitly, for example as part of the right
to private life.29 The Charter, however, devotes a whole provision to the protection of
physical and mental integrity. The general protection of physical and mental integ-
rity guaranteed by Article 3(1) is complemented by Article 3(2) which grants express
protection to integrity against particular risks to this right that could arise in the fields
of medicine and biology. To this effect, Article 3(2) emphasises the need for free and
informed consent, and prohibits eugenic practices, the commercialisation of the human
body, and human reproductive cloning.
Despite the limited EU competence in the fields of medicine and biology, some of the
issues addressed in Article 3(2) of the Charter have found their way into EU legislation.
The consent requirement has, for example, been included in the Human Tissue Directive
(Art 13), the Organ Safety Directive (Art 14), and the Clinical Trials Directive (Art 3(2)).
24 At the time of writing, the following states had not ratified the Oviedo Convention: Andorra, Armenia,
Austria, Azerbaijan, Belgium, Germany, Ireland, Italy, Liechtenstein, Luxemburg, Malta, Monaco, Netherlands,
Poland, Russia, Sweden, Ukraine and UK.
25 At the time of writing, it was ratified by Bulgaria, Croatia, Estonia, Finland, Georgia, Hungary, Iceland,
Moldova, Montenegro, Slovenia, Switzerland and the former Yugoslav Republic of Macedonia.
26 At the time of writing, it was ratified by Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland,
Georgia, Greece, Hungary, Iceland, Latvia, Lithuania, Moldova, Montenegro, Portugal, Romania, Slovakia,
Slovenia, Spain, Switzerland and the former Yugoslav Republic of Macedonia.
27 At the time of writing, this Additional Protocol had not entered into force, as it had not obtained the five
necessary ratifications, having only been ratified by Moldova, Montenegro and Slovenia.
28 At the time of writing, it was ratified by Bosnia Herzegovina, Bulgaria, Georgia, Hungary, Montenegro,
Slovakia, Slovenia, and Turkey.
29 As in Art 8(1) of the ECHR.
03.15
03.16

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the sale of the produce. When Lord Curzon heard of this he
considered it not fitting, and I understood that he was responsible
for the alteration in the character of the garden, which requires the
constant attention of the water-bearer with his goatskin.
Agra possesses a fine mosque in the Jama Musjid, built by Shah
Jehan in 1644. It is a building of red sandstone and white marble.
The big dome is inlaid in zigzags of white marble and red sandstone
alternately, the whole surface being covered in this way with striking
effect.
It is an interesting drive through the bazaars and over the bridge
of boats across the river Jumna, and through a native village, to the
mausoleum of Itmad-ud-Daulat. In this beautiful building, which is
approached through a massive arched gateway of red sandstone
and across a walled garden, one sees a prototype of the Taj Mahal.
In this case there is a central dome and four minarets, only the
cupola is lower and of a flatter curve, and the minarets are not
detached from the body of the building which is much lower than
the Taj. In the design and execution of its decorative detail, however,
it surpasses the Taj in inventiveness, and variety and richness, both
in pierced and carved work and its pietra dura. The detail of the Taj,
beautiful and finely finished as it is, has in comparison, perhaps,
rather the look of having been done to order, whereas in buildings of
earlier date like this one we seem to see the more spontaneous
invention of the craftsman. The restoring hand of Lord Curzon,
however, has touched this monument also, and a new marble
balustrade around the flat roof has been added under his orders.
There are lovely views from the minarets.
We visited the Taj Mahal again by moonlight. It was the 30th of
December and the moon was full, but it was chilly driving out after
dinner and wraps were necessary. There was a light mist from the
river which hung over the garden, and slightly veiled the lower part
of the building as we approached it down one of the long paths
chequered by the shadows of the trees. The front was in shadow
and looked mysterious in the mist, but the dome seemed made of

pearl rounded in the full moonlight in splendid relief against the dark
deep blue of the night powdered with brilliant stars, while the four
minarets were like helmeted sentinels in shining armour, guarding
the sacred shrine.
The moonlight was bright enough for me to make a sketch by. I
also made two coloured drawings of the Taj by daylight, one of
which—“the Taj Mahal from the rose garden” was afterwards
purchased by H.M. The Queen, and the other, from the gate, is
reproduced here. Agra was full of British and native soldiers, and
more were continually arriving. We passed trains of field artillery
marching through the government gardens, and bell tents covered
the ground like mushrooms. In many places earth banks had been
cut in tiers for seats, and strings of small flags fluttered across many
of the streets, and there were also seats and stands of timber being
erected. Agra could think of nothing but the Amir.
The English and other churches are not admirable examples of
modern architecture, and never seem to look at home in India.
There was a Roman Catholic Church here after the manner of an
eighteenth century one, but any merit it might have had was
obscured by its colour. It had been, so to speak, put into a grey
uniform with buff facings. The English Church was treated in the
same way. This must be military influence. My impression certainly
was that civilians did not count for much at Agra.
In the bazaars we found we were able to make purchases with
rather less accompaniment of drama than at Jaipur. European goods
were much in evidence, of the cheap and nasty sort as a rule, ugly
socks and scarves and cottons, and tin ware. I saw a crowd of
natives clustering round the trumpet mouth of a gramophone—an
instrument which seems to have considerable charms for them.
It was chilly enough in the early mornings and in the evenings at
Agra, and our ground-floor rooms were none of the warmest,
although, of course, the sun was very powerful in the middle of the
day. The Hotel proprietors were looking forward to full houses and
high prices during the Amir’s visit, and enormous sums were

mentioned as probable charges for rooms, but we had no intention
of staying through the festivities.
Our last excursion from Agra was to Sikandra—five miles away to
the North West—where we drove to see the tomb of Akbar. The road
was a dusty one, but through pleasant acacia avenues. We passed
through several mud-built villages, and presently saw white minarets
rising above a belt of trees in the distance. At one part of the road
where the square tower of an English Mission Church was seen
among trees we were reminded for a moment of a bit of Norfolk, but
only for a moment. Soon we reached the great red-stone gateway
which was on a splendid scale, and elaborately inlaid with marble,
exceedingly fine in style, parts had been restored, and all the four
white marble minarets were said to be new and placed there by Lord
Curzon, not I presume without good evidence of the former
existence of such minarets, but such renewals cannot possess any
historic interest and are in doubtful taste. The gate was adorned
with Togra and Arabic inscriptions, which, cut in sunk relief in white
marble, formed a frame work enclosing panels of larger pattern in
marble inlay. Pilasters of red sandstone on the front were in zigzag
courses, alternately white and red, like the work on the dome of the
Jama Musjid at Agra.
From the gateway a long and broad flagged way, intersected by
tanks, led us up to the tomb, across a wide park full of fine trees,
tamarinds and mangoes chiefly. Arrived at the great tomb, the
cupolas of which we had seen in front of us as we walked, we first
entered a sort of hall or atrium with richly decorated roof and walls
in coloured plaster, heightened with gold, and with an Arabic text in
gold running round the frieze. There were beautiful designs of trees
and vines in panels. Parts had been picked out in new gold and
colour, at somebody’s expense, to bring out the pattern, but the new
work looked hard and mechanical though on good lines, and the
new gold was staring; the effect of this partial restoration being of
course patchy. Still, if such restorations are allowable at all, it is
better that they should be frank and make no pretence at being
really a part of the original work. It would, however, in this case

have been far better to have left it alone, as the old gold and colour
still remaining on the walls and vault was rich and deep in tone.
From this hall we entered a small corridor, two native attendants
going before us with lanterns to guide our steps. This passage led
into a vast dark domed chamber, in the midst of which was the plain
marble tomb of the great Akbar. It was impressive in its simplicity,
without any inscription or ornament, the usual narrow parallelogram
with a moulded base. One of the men uttered a deep prolonged note
like the exclamation Ah! but sustained and dwelling on the A. This
was answered by a profound and long-continued echo or
reverberation, dying gradually away, caused I suppose by the height
and shape of the dome. One might imagine it was the voice of the
dead Emperor. After seeing three more tombs, one of which was
richly and delicately carved (a lady’s), we ascended to the terraced
roof, and from there to a second arcaded terrace, from which still a
third was reached up steps of ever increasing height in the treads,
and finally to a top story, emerging upon a beautiful spacious
arcaded court of white marble, but with warm tints in it which made
it very much the tone of ivory. There were delicate, pierced, marble
screens on each side, through which the evening sun sparkled like
gold. In the centre of the court on a raised dais was the second
tomb of Akbar, according to the usual Mohammedan custom of
placing an upper tombstone to indicate the position of the actual
tomb in the vault below. This tomb was most elaborately and
delicately carved in white marble, with beautifully designed floral
patterns and Arabic texts and borders of scroll work, which were like
reproductions in marble relief of the designs in the best type of
Persian carpets. The aged native custodians told us that the famous
koh-i-noor diamond was once here on Akbar’s tomb. It might be
interesting to trace its history to its present position.
The foliated cresting of the parapet of this marble court was also
delicately carved. Altogether the building was one of the finest
things of its type we had yet seen in India. The blend of Hindu
construction with Mogul work in the corbelled supports of the

minarets was noticeable. These corbels were trebled at the angles,
and like most of the building were of red sandstone.
There was a fine view of the country from this highest story of
the tomb, and we could even see the white dome of the Taj Mahal
five or six miles away. The drive from Agra took about an hour, and
the sun had set before we returned.
This being New Year’s day Moonsawmy our bearer smilingly
came up with an offering—a plum cake with a pink sugared top and
“A Happy New Year” on it, as if it had come out of an English
confectioner’s—and this, too, was accompanied by a garland of
yellow and white flowers after the native manner—one for each of
us. He said this was customary, and with his good wishes he
managed to convey a gentle hint that his “jentilmens” usually made
him a little present in return. This rather rubbed a little of the sugar
off, but, of course, we did not forget him. He was not a bad servant
on the whole, though rather too old and cunning a bird in some
ways. He had rather extravagant ideas in ordering carriages, which
we afterwards discovered were not totally unconnected with certain
commissions extracted from the carriage proprietors. No doubt,
however, native bearers regard the European tourist as fair game—it
is not unheard of in Europe—and they, like other classes after their
manner, lose no opportunity of making the most of the chances of
their rather uncertain profession.

W
CHAPTER VIII
GWALIOR
e left Agra for Gwalior on the 2nd of January. Departing from
Agra Road about 11 in the morning we arrived at Gwalior
between 3 and 4 o’clock in the afternoon. We hoped to meet an
Indian friend here, who was a doctor in the suite of the Maharajah,
and whom we had known in London when he was studying for his
degree. He was, however, absent at Calcutta, so we had to shift for
ourselves. There was, however, an excellent guest-house built by the
Maharajah for the use of visitors to Gwalior, not far from the station,
where we found comfortable quarters, very superior to most of the
hotels we had had experience of. The building itself was a charming
pavilion in the Mogul style, with domes, arcades, and pierced stone
work balconies, and elaborately carved doorways, the material of
which it was built being a sort of yellow sandstone. We were allotted
a spacious room opening on to a pleasant terrace and connected
with balconies which extended entirely around the house, and from
here we could see the famous Rock of Gwalior with its fort and
Temples and the old palace of Man Mandir conspicuous at its further
end. There was a large central hall or living room, and in this was a
blazing fire which shed its cheery light and welcome warmth. There
was a good piano and English furniture. There was a sort of
clerestory high in the lofty wall, but no direct light, so that in the
daytime this room was in comparative gloom, by no means
ungrateful after the glare of the sun. The dining-room was fully
lighted and opened on to a portico. In front of the building was a

garden with a rather burnt up piece of lawn encircled by a carriage
drive.
We found a singular silent and reserved company of Anglo-
Indians at dinner—a lady and three gentleman—only one of the
latter manifesting the slightest interest in us. No one appeared at
breakfast the following morning but an English governess and a child
she was in charge of.

TO GWALIOR FORT BY PALANQUIN
We started in a carriage to drive to the fort, stopping on the way
to see the tomb of Mohammed Ghaus, the dome of which is visible
from the guest-house. It is a noble tomb of yellow sandstone, with
fine screen-work. It dates from the early part of Akbar’s reign. We
crossed a river by a bridge and entered a decayed-looking native
town, passing up a straggling street of low houses to the first gate
of the fortress. There we might have hired an elephant to take us up

the steep road to the fort, but the elephant had been already
bespoke by a party of British officers. A palanquin (or jhampan) was
produced, however, in which my wife seated herself and was carried
up the hill by four bearers, four more accompanying them as relays.
As for me I preferred to walk up, and our Moonsawmy went with us.
We passed through several gateways. The Hindu carvings of one
called the Ganesha Gate had been defaced by the Mohammedans.
Soon the towers of the old palace of Man Mandir rose in view near
the summit, each crowned with a circular cupola. It is a striking
building of remarkable character in reddish-yellow sandstone, faced
in parts by turquoise blue and yellow tiles, courses of these tiles
running across the façade. The angle tower and some of the tile-
work at the top had been restored. There was a frieze of geese in
yellow on a turquoise-blue ground, the birds in profile, each showing
an expanded wing and set close together. The design resembled the
carved figures of birds often seen on the Jain temples. The
architecture here being Hindu, was much more massive than the
Mogul work hitherto seen, and showed much variety and invention in
the carved corbels and brackets in the interior. I made a note of a
peacock bracket in which the tail is effectively treated, the bird being
considerably formalised in adapting it to its architectural purpose.
There was another of a fantastic elephant. Elephant heads with their
uplifted trunks, by the way, were carved as brackets to support the
balconies at the Guest House, where also I noted that the detail of
some of the carved work of the door heads at the old palace had
been reproduced. The doorways were rather low and small, and the
whole building had more the character of a castle than a palace. On
the flat table land on the summit of the rock there were several Jain
temples, masses of carving within and without. The Sas Bahu is the
principal Jain temple, and there is also a Hindu temple on the rock—
near the farther end from Man Mandir—the Teli-ka Mandir. This
stands in a graveyard, full of carved fragments and upright stones.
The elephant bearing the party of British officers passed us as we
were exploring the temples. There are some ugly barracks, which
are very much out of keeping with the historic architecture of the
Rock. The old fort has stood many a siege. Caine calls it “the cockpit

of Central India,” and “it has been stormed or starved into
submission a dozen times at least.” It seems to have been originally
fortified in 773 A.D., and at various periods since to have alternately
fallen into the hands of Hindu or Mussulman, as now one and now
the other prevailed. Akbar the Great took it in 1556, and we find the
East India Company in possession in 1780, who took it from Sindhia
and gave it to the Rana of Gohad. Then Sindhia retook it, and so it
has remained with the Sindhias (to which family the present
Maharajah belongs) practically ever since. The Rock has always been
well supplied with water and has many tanks.
We had a commanding prospect of the country, stretching in a
vast plain for miles around. We could see the Maharajah’s palace
amidst its parks and gardens—a white building among the green
foliage, and nearer the foot of the Rock the new town of Gwalior,
called Lashkar. We descended on the farther (northern) side of the
rock by a winding road, and from here we saw some huge carved
figures cut in the face of the sandstone cliffs in bold relief. Most of
these are said to represent Adinath, the first Jain pontiff, but there is
a seated figure of Nemnath, the twenty-second pontiff. Each bear
their symbols, that of the first being a bull and of the second a shell.
There are life-size as well as small figures cut on the lower parts of
the cliff. The effect of these strange carvings is very weird. They
have an impersonal and unrelated look, and give one the impression
of being more ancient than they really are; but they only date from
A.D. 1441 to 1474.
We found our carriage waiting for us at the foot of the hill,
having driven round the Rock from the old town, and we got back to
the Guest House about noon.
In the late afternoon we drove to the Maharajah’s palace, and
presenting our cards, were shown over the rooms by a very polite
English officer. The building is in a sort of late Italian Renaissance
style, all white outside, with a great display of pilasters and
columned porticoes. We entered a vast durbar hall in white and gold,
with modern French-looking furniture with curly legs upholstered in

green. There were many photographs of recent English Governor-
Generals on the walls, as well as indifferent full-length, life-sized
portraits in oil of the late Maharajah. The best of these was said to
have been painted by one Scott—a landscape painter (!). In one of
the smaller rooms there was an English water-colour drawing of
Sussex Downs by A. F. Grace (whom I remember at Heatherly’s in
student days), and several photographic official groups of the usual
type, in which the Maharajah is seated by the Prince of Wales,
surrounded by rows of officials and notabilities, all with “eyes front.”
We wrote our names in the visitors’ book, and then drove through
the grounds, which are very extensive. In one part lions are kept—
apparently in a most insecure way, as they not unfrequently escape
and ravage the country round. In fact, this had quite recently
happened, and natives had been killed by them. A very taciturn
gentleman at the Guest House had been pointed out to us by the
more genial of our fellow-countrymen there as the official who had
been sent by the Maharajah to fetch the wandering lions back, and
he had been over a distance of about three hundred miles before he
succeeded in “rounding them up.” He did not tell us, however, how it
was done, though he had a look as of one who “could a tale
unfold”—not to speak of a lion’s tail! When we saw the place where
these lions were kept we were not surprised that they should have
been able to escape if they had a mind to. We looked down on them
as they were gnawing some bones. They were loose in a sort of
open court, overgrown with grass, and enclosed within four
plastered walls which any cat could have scaled, no palisading or
iron railing at the top. There were five lions and one lioness visible.
The remains of their repast of meat was pounced on by kites and
crows with much clamour.
We next saw the Maharajah’s elephants, and passed down a
long line of them, chained by the fore-legs, down one side of an
open courtyard, all eating what looked like the stalks of Indian corn.
There were about thirty elephants here. One of them was
handsomely painted on the forehead in a similar way to the state
elephant we saw at Jaipur, but none of them had quite such big

tusks. Returning through the gardens, we passed the older palace;
also a white building, but in the Mogul style, with many domes and
minarets, and facing a large tank with marble steps.
Our party at the Guest House was increased at dinner by two
very pleasant American ladies, who, owing to their powers of
conversation, caused the very reserved Anglo-Indians to melt a little
and show some signs of human interest, especially when one of the
ladies related her thrilling experiences during the San Francisco
earthquake.
The next morning we visited the newer city of Gwalior, which we
had seen from the fort. The streets were fairly wide, and some had
varied and picturesque fronts in plaster-work. We were driven to the
gate of a big and rather new Hindu temple, spoiled by the insertion
of crude pieces of coloured glass, of the commonest European
make, in the fan-lights of the doors on each side. A sacred bull of
black marble and a snake fetish were the most interesting things
there.
In the same court was an older temple raised on a flight of
steps. To approach this, one’s shoes had to be taken off, and from
the door only a peep was allowed into the dark interior, which, as far
as I could see was painted all over with figures of deities and
emblems in a barbaric way in coarse and crude colours. The thing to
look at, it appeared, was a portrait of the late Maharajah in his
jewels, on what we should call the high altar, which was suddenly
illuminated by artificial light by one of the native attendants.
Zebu cows were wandering freely about in the court of the
temple, and here for a wonder no fees were taken.

IN THE BAZAAR, GWALIOR
We went into the new market, which had been opened by the
Prince of Wales on his visit the previous year. It was not, however,
very busy, and many of the stalls were empty. It seemed of doubtful
advantage to the natives, who preferred to do business in the
bazaars. There appeared to be a good supply of fresh vegetables,
but very few buyers. The most interesting stalls were those of the
bead sellers. There were beads of every variety of colour and size.

The stalls were about the height of ordinary shop-counters, and on
these platforms, which extended without divisions along the centre
and sides of the market hall, the native traders squatted with their
wares in front of them, women as well as men. Some of them were
engaged in stringing the beads, and one man was plaiting a cord,
the strands of which were fixed to a hook fixed on an upright stick
supported on a stand. He used his toes like fingers to hold out and
divide the strands as he worked. With the assistance of our bearer
we made some purchases, and again later in the bazaar, when, as
the carriage was stopped, I made a sketch of the scene in front of
us, but under difficulties, as we were immediately surrounded on all
sides by an eager concourse of swarthy, interested spectators, who
refused to budge in spite of the rather mild remonstrances or
commands of a native policeman, who, I imagine, used the Hindu
equivalent for “Pass along” or “Move on,” but they didn’t. Under this
“crowd of witnesses” I endeavoured to complete my sketch, and
then we moved on.
Extending our drive on the Morar Road, we passed the camp of
the Maharajah’s soldiers in waiting for the Amir’s coming, as after
the Agra reception was over he was to pay a visit to the palace at
Gwalior for tiger-shooting. We enjoyed a quiet life at Gwalior, and I
was able to make several drawings unhindered by too curious
crowds. The Guest House was one of the quietest places imaginable,
although visitors came and went and even motor-cars were seen.
There was something almost mysterious in the way guests would
appear and disappear—at table one day and vanished the next;
covers would be laid too for guests who never appeared.
Tents which were pitched on the ground outside the Guest
House for other unseen visitors would be clean gone as we looked
out in the morning. Everything seemed so transitory; even a native
boy, when I wanted to make a drawing of him, was nowhere to be
found, and I had to make the best of it with an unwilling and quite
inferior substitute, who had no idea of keeping still, and even ended
the seance by squatting on the ground with his back to one!

It struck me that the natives do not like being drawn or painted,
as a rule, to judge by the various attempts one made to secure
models. The one wanted always disappeared when the time came,
and another, but not a better and without the same characteristics,
offered.
The little palm squirrels were very numerous here, and would
scamper about the terraces and balconies of the Guest House, and
even chase each other into our rooms, or come up for the crumbs
we scattered, sitting up on their haunches to nibble at them, held in
their fore-paws in true squirrel fashion. Equally familiar were the
sparrows which flew in and out, unmolested and fearless, even
perching sometimes on the breakfast table. The crows too would
congregate on the balcony rails if any feeding was going on,
frequently joining us at afternoon tea, at a respectful distance,
though within short range of the scattered crumbs.

CALLERS AT THE GUEST HOUSE, GWALIOR
We witnessed several very lovely sunsets over the Rock of
Gwalior, a type of frequent occurrence being an arrangement of
long, low stratus clouds, brilliantly illuminated on their under edges
as the sun sank below the horizon, the light deepening from orange
into crimson. Another type consisted of golden fleeces of high cirrus
clouds, rippling out over spaces of turquoise.
We paid another visit to the old town of Gwalior and climbed the
hill as far as the third gate, where I made a sketch showing the
towers of the Man Mandir Palace through the arch.
From a terrace extending along the hill near this gate there is a
fine panoramic view, the old town lying below, partly ruined and

deserted, a mass of crumbling walls and complicated roof plans
mingled with trees and gardens.
The first gate at the foot of the hill, where is the guard-house, is
interesting as showing the inlaid enamelled tile-work which
decorates it partially. Deep turquoise is the prevailing colour, and it is
used for the field or background of the designs, and is inlaid in
pieces cut to fit the interstices of the pattern in the yellow
sandstone. In a frieze of geese in close formal procession, the birds
were cut in sunk relief, and the spaces between were filled with
turquoise pieces. The tile decoration on the Man Mandir Palace has
been done in the same way, yellow and green tiles being also used.
We drove through the bazaar of the old town, a queer, half-
ruined, and ragged place, but exceedingly picturesque, the natives
squatting on their stalls, presiding over curious preparations of food
and other wares, with chatting, many-coloured groups crowding
around. Some of the people would look curiously at us, some would
salaam, some were indifferent, others were derisive or sullen.

APPROACH TO THE PALACE OF MAN MANDIR, GWALIOR
There was rather an important-looking mosque with minarets in
the town, but many of the houses were roofless and deserted.
In crossing the bridge over the river we noted the people
washing clothes, and a pretty pattern of colour was formed when
the stuffs were spread out over the sandbanks to dry. Here, in
central India, we were able to see more of the everyday life of the

people, and had more opportunities of quiet observation of country
life than usual. The peasants did not seem to have the curiosity of
the natives in the towns, when one sat down to make a drawing, but
they went on their way, bearing their burdens, or driving ox-carts, or
herds of goats, or buffalo cows, or asses.
It was quite a change to get a grey cloudy effect which occurred
one morning when I had found an interesting subject by the river
side. On the way thither we passed a village burning-place, strewn
with heaps of ashes where the dead had been burned. The river had
shrunk to a small, shallow stream, and at the spot where I sat was
crossed by stepping-stones, over which groups of natives constantly
passed to and fro. Cattle and ox-carts splashed through a shallow
ford at intervals, and higher up natives bathed their brown bodies in
the water. We were on the outskirts of the old town of Gwalior, and
could see above on the rock the dark shapes of the Jain temples
looming up against the sky, while around us were domes of
cenotaphs, fragments of tombs, and broken walls, overshadowed by
groups of fine banyan trees and mangoes. At an old draw-well near
by groups of native women were continually coming and going,
bearing their water-jars on their heads, their draperies forming
delightful schemes of colour.
A dark thin Hindu in a white turban and waist-cloth was
ploughing up his small patch of land near the river for potatoes,
which members of his family working with him were preparing to
sow. There were several sons—youths—two women, and some small
children, all working on the land.
I made a note of the plough, a very primitive implement, having
a single shaft fixed at a right angle to the share, with a cross-handle
at the top. This the ploughman held with one hand—his left—guiding
the plough, while with his right he drove a small pair of zebus under
a yoke, who dragged it along. The share was a wedge-shaped piece
of wood, tipped with iron at the point and along its edge.
Moonsawmy talked to the man while I made my notes, and he
told me afterwards that the ploughman never managed to earn as

much as 200 rupees in the year, though he and his family—I
suppose about ten or a dozen all told—were constantly at work. His
patch of land being near the river, one would have thought
favourable for raising crops; but it appeared the river not
infrequently was completely dry, and they were hard put to it for
water for the soil. The income of the whole family worked out at
about thirteen pounds a year at the most, which, taking into
consideration that it had to be the support of about a dozen people,
seemed narrow enough, and one could easily understand that the
slightest failure of the crops would mean something like famine.
This state of things bears out the estimates of the average
income of the Indian ryot, calculated by the late William Digby,
C.I.E., after long residence and experience in India, the results of
whose study of the question are given in detail, from undisputed
authorities, in his striking work, “Prosperous British India,” in which
is accumulated an appalling mass of evidence, all pointing to the
conclusion that for famine should very largely be read poverty, which
is also the root cause of bubonic plague. The railways, of course,
might convey corn to the starving districts, but where the people
have no money to pay for it they must starve all the same,
Government relief-works being the only alternative; but this sort of
relief must often be too late for poor creatures reduced by hunger
and too weak to work.
The ordinary unprejudiced observer is naturally inclined to ask,
Why this desperate poverty in an industrious population, supposed
to be under beneficent British rule and administration? The answer
must be sought in the fact that thirty millions and upwards are
annually extracted from the country without any equivalent return,
and this must necessarily mean a heavy burden of taxation on the
chief sources of wealth, land and labour.
One of the greatest principles of our Constitution of which our
public men are never tired of boasting is, “No taxation without
representation,” or, “Taxation and representation must go hand in
hand.” This principle is, however, entirely ignored in India, where

British rule is as autocratic as that of Russia. Is it surprising in these
circumstances that there should be “unrest”?
The educated Hindu or Mohammedan—the many who come to
England and are trained in English Universities, or read for the Bar,
or study for their degrees in medicine, feel that there is no part or
lot for them in the administration of the affairs of their own country
except in a very subordinate way. I understand that the highest
Government post a native can attain to is the office of assistant-
commissioner.
Time was when, after the great upheaval of the Mutiny—which
was really an attempt to regain possession of the reins of
government by the native princes of Oude, the principle of native
representation under British administration was advocated by
leading English politicians. Nothing, however, came of it, and the
policy of the India Office has remained unchanged through all the
changes of party government, there being no difference in this
matter between Liberals and Conservatives. A Liberal like Mr John
Morley, when in office as Indian Secretary, promptly orders the
arrest and deportation without trial of Indian agitators under an old
law of the East India Company which has never been ratified by the
English Parliament.
Mr Laipat Rai, however, appears to be a self-sacrificing and
devoted advocate of the cause of his people, and as editor certainly
cannot have written so strongly against the English Government as
Mr H. M. Hyndman, who has for years past denounced the conduct
of the India Office, while challenging attention to and redress of the
system under which the people of India are impoverished.
The attenuated ploughman who has been the occasion of these
remarks was a typical figure. Looking on such figures, able only to
secure a bare subsistence, so common throughout India, one cannot
but feel that all the magnificence and luxury of the Maharajahs, as
well as the heavy burden of the cost of the British Government, is
maintained by the sweat of the brows and the ceaseless toil of such
as these.

A
CHAPTER IX
DELHI
fter a stay of about a week at the Guest House at Gwalior we
took the road again, or rather the railroad, Delhi being the
next place on our itinerary. We thought, however, to break the
journey for a few hours at Agra, and get a view of the entry of the
Amir, which was fixed for the 9th of January.
It was a lowering, cloudy morning when we left our quarters and
made for the railway station, where we had a long wait in the
darkness. An enormous throng of natives filled the platform,
squatting on the ground or standing about in groups, talking or
sleeping under covers which hid them from head to foot. Most were
closely wrapped up about the shoulders, cloths being wound over
the turban, even so that they had generally a top-heavy look with
bare legs. Their wraps were only of cotton though, as a rule, and did
not seem adequate against the chill of the morning. One little
swarthy man was busy writing, making entries on sheets of paper or
perhaps bills of lading. He squatted on the platform against one of
the piers of the arcade, writing by the aid of a lantern’s light. I
noticed only one European besides ourselves in the throng, and he
appeared to be an English official and wore a pith helmet.
At last up came the train from Jhansi, and we got in, a
slumbering English officer occupying one of the berths. The sky,
which was the only gloomy and threatening one we had experienced

in India, and certainly looked leaden and hopeless enough, soon
turned to rain, and under such an aspect the country looked
desolate in the extreme. The tawny earth and fuzzy, dry grass,
sparse trees of prickly acacia and scrub bushes, the broken hillocks
and mounds of clay, looked more fruitless and forlorn under the
steady, soaking rain; groups of poor country folk in their thin cotton
clothing huddled together, waiting at the stations we passed, or
could be seen splashing through the muddy pools to catch the train.
Nearing Agra, we saw heavy artillery trains with field guns
trailing along the wet roads. Troops had been pouring into Agra for
some time, and while at Gwalior a native regiment of cavalry
(lancers) rode by the Guest House, preceded by their baggage on
mules and camels.
At Agra Road Station the rain was pouring in torrents. There is
an immense, long, exposed platform, along which we made our way
to cover under the station shed, which was already crammed with
people, mostly English and American visitors, army officers, and
officials.
The weather being quite hopeless, we gave up the idea of
seeing anything of the procession, which of course was a military
one, and then finding there was a dining-car in waiting, we had a
scamper through the rain again down the platform to reach it.

A DASH FOR THE DINING-CAR AT AGRA ROAD
After tiffin we were just in time to catch a train on to Delhi—in
fact it had actually started, but the courteous station-master sent an
official to stop it for us, and to see us safely in with our baggage. It
was now nearly noon, but our train, a slow passenger one, was not
due at Delhi until 5.30. The rain continued steadily, and damp
groups of natives were gathered at the different stopping stations in
various stages of discomfort. They did not, however, appear to mind
the wet so much as one would have expected, but swathed

themselves in all sorts of curious wraps up to the eyes, leaving the
legs and feet bare, and some even squatted on the wet ground.
The country was again a plain for the most part, and extensively
cultivated under irrigation, several irrigation canals being crossed by
the railway. Green crops of young corn seemed almost hidden by
charlock, the yellow fields having almost the effect of our buttercup
meadows in May. Flocks of black and white cranes were seen, as
well as a large, blue, grey-plumaged kind, which are usually seen in
pairs in the green corn. Three superior-caste Hindus got into our
compartment and occupied the cross-bench at one end. One had a
bad cough, but they kept their windows open and did not seem to
mind draughts. Coughs and throat troubles seemed, indeed, too
common in India, and we often heard distressing coughs in the
hotels at night.
The sky towards evening began to clear in the west, the whole
solid field of rain cloud gradually lifting like a curtain, and the sun
shining out while the rain continued, a brilliant rainbow appeared as
if painted on the black wall of cloud to the eastward.
The line passes through a part of old Delhi, a vast region of
broken tombs and ruined walls lying outside the walls of the present
city, and afar off we could see the domes and minarets of the Great
Jama Musjid Mosque.
We got in in good time, and collecting our heavy baggage sent
on from Gwalior, drove to Maiden’s Hotel, through streets dark with
rain and standing in pools of water, a stormy orange sunset casting a
warm glow over everything. The hotel was on the usual Indian plan,
with a centre and two arcaded wings enclosing a court, along which
a series of ground-floor, bungalow-like bed- and bath-rooms
extended, chilly enough at this time of year in the mornings and
evenings, especially in wet weather. The hotel itself was under
English management, and there were large open fires in the dining-
room and salon, which looked comfortable, and the cookery was
superior to most of the others we had experienced. Letters from
England awaited us, and added to our satisfaction. No doubt the

mails are delivered with wonderful regularity, and so long as the
traveller can arrange his tour in order that his letters shall meet him
at certain places, and does not leave before the mail arrives, no
complications occur. It is only when letters follow one about instead
of preceding one that delay and difficulties occur.
The next morning (January 10) was grey, chill, and damp, when
we started after breakfast to see Delhi. The hotels and the British
residential quarter lie quite outside the native town, as is usually the
case, amid spacious, park-like grounds, here pleasantly undulating,
and varied with gardens and fine groups of trees. The town is
walled, and has a broad dry ditch as a farther defence. We drove
through the famous Kashmir Gate, renowned for the British assault
at the time of the Mutiny, which remains in the battered condition in
which it was left after the siege, with great shot-holes in its masonry,
as well as in the walls each side. A tablet records the circumstances
of the siege, and the names of the officers and soldiers who
distinguished themselves at that terrific time.
The gate has two ogee-pointed arches, enclosed in rectangular
mouldings in the usual Mogul fashion. As one enters the city,
inscribed tablets recording incidents of the siege are numerous, and
the British authorities have certainly been most careful to preserve
the memory of their side of the fight along with the names of their
military heroes, and every noteworthy spot in the struggle is
commemorated in this way. In addition to such incidental
monuments there is the Mutiny Memorial, an important red-
sandstone erection (110 feet high) outside the gates, upon a rising
ground, and so placed that a complete view can be obtained from its
summit of the lines of the siege.
At the fort, which was formerly the Imperial Palace of the Moguls
(built in A.D. 1628–58 by Shah Jehan), it is distressing to see the
ruthless destruction of superb buildings for which the British have
been responsible, and the barbarous way in which hideous barrack
structures have been substituted. The fort, or palace, is entered
through a noble, deep-red sandstone gate. The Lahore, or, as it is

now called, the Victoria Gate, and the fine court, is marred by these
ugly modern military barracks for which so much beauty was
sacrificed. We were shown two splendid halls, the Diwan-i-am, or
public hall of audience, and the Diwan-i-khas, or private hall of
audience. This is of white marble with beautiful inlays of precious
stones, with a richly decorated ceiling in colour and gold. A marble
pedestal is pointed out as the place whereon the wonderful peacock
throne stood. This must indeed have been gorgeous, the seat
between two peacocks with spread tails, and these encrusted with
sapphires, diamonds, rubies, and emeralds, representing the natural
colours of the plumage, a true emblem of oriental magnificence.
Over the arches of the arcade in this hall is a Persian inscription in
raised and gilt characters, which reads, “If there is a paradise on
earth, it is this, it is this, it is this.” This costly “paradise,” again, was
built by the builder of the Taj Mahal, Shah Jehan, who seems to
have outshone all the Mogul emperors by the splendour of his
buildings. Of course there are no diamonds, or rubies, or emeralds
left, and even the small stones used in the decorative floral inlays
have in many cases been picked out. It is said that Lord Curzon
employed Florentine workmen to replace some of this work at his
own expense.
The decoration of the walls and ceilings in the zenana rooms,
consisting of painted and gilded arabesques, was very lovely, and
the marble Akab Baths exquisite. The river (Jumna) formerly flowed
up to the walls of the palace on that side, and from a beautiful
minaret we could see the river beyond a belt of green foliage, and
get a fine perspective view up and down of the palace wall and
buildings.
Near by, on the other side of the court, is the Rung Mahal, which
is distinguished by particularly fine pierced screen-work. The vaulted
rooms connected with this building were till recently used as officers’
mess-rooms, when all their beautiful decoration were obliterated
with whitewash.

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