Medical-related expulsion and interpretation of article 3 of the European Convention on Human Rights

TY - JOUR

T1 - Medical-related expulsion and interpretation of article 3 of the European Convention on Human Rights

AU - Webster, Elaine

PY - 2013

Y1 - 2013

N2 - This article critically reviews the jurisprudence of the European Court of Human Rights (‘the Court’) in cases of expulsion of non-nationals receiving medical care for a serious health condition, based upon Article 3 of the European Convention on Human Rights. On only one occasion has the Court found a violation of Article 3. To date, critique of this jurisprudence has focused on two points: policy considerations evident in the case-law, and the Court’s refusal to find a violation in respect of applicants not in a terminal phase of illness. This article begins from an alternative perspective. It observes that the Court, whose approach has been mirrored by applicants and domestic courts, has not transparently situated the alleged inhuman or degrading treatment within circumstances of medical-related expulsion; a feature that is unique within the wider body of Article 3 jurisprudence. The extent to which recognising this atypical aspect can shed new light upon the past and future trajectory of the case-law is explored. Three ways of situating the Article 3 harm are considered: inhuman/degrading treatment brought about by sources within the receiving state; inhuman/degrading treatment inflicted by the expelling state; and inhuman/degrading treatment flowing from illness. It is argued that more explicit engagement with the nature of the alleged harm would be a progressive step towards a richer and appropriately justified jurisprudence. This is important for the reasoning of the Court in medical-related expulsion cases and, more broadly, for the development of the conceptual scope of Article 3.

AB - This article critically reviews the jurisprudence of the European Court of Human Rights (‘the Court’) in cases of expulsion of non-nationals receiving medical care for a serious health condition, based upon Article 3 of the European Convention on Human Rights. On only one occasion has the Court found a violation of Article 3. To date, critique of this jurisprudence has focused on two points: policy considerations evident in the case-law, and the Court’s refusal to find a violation in respect of applicants not in a terminal phase of illness. This article begins from an alternative perspective. It observes that the Court, whose approach has been mirrored by applicants and domestic courts, has not transparently situated the alleged inhuman or degrading treatment within circumstances of medical-related expulsion; a feature that is unique within the wider body of Article 3 jurisprudence. The extent to which recognising this atypical aspect can shed new light upon the past and future trajectory of the case-law is explored. Three ways of situating the Article 3 harm are considered: inhuman/degrading treatment brought about by sources within the receiving state; inhuman/degrading treatment inflicted by the expelling state; and inhuman/degrading treatment flowing from illness. It is argued that more explicit engagement with the nature of the alleged harm would be a progressive step towards a richer and appropriately justified jurisprudence. This is important for the reasoning of the Court in medical-related expulsion cases and, more broadly, for the development of the conceptual scope of Article 3.

KW - european convention on human rights

KW - article 3 ECHR

KW - medical care

KW - non-nationals

KW - european court of human rights

KW - medical-related

KW - expulsion

KW - interpretation

UR - http://intersentia.com/en/inter-american-and-european-human-rights-journal-27324.html

M3 - Article

VL - 6

SP - 36

JO - Inter-American and European Human Rights Journal

JF - Inter-American and European Human Rights Journal

SN - 2030-7942

IS - 1-2

ER -