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

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Abstract

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.
LanguageEnglish
Pages36
Number of pages54
JournalInter-American and European Human Rights Journal
Volume6
Issue number1-2
Publication statusPublished - 2013

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ECHR
expulsion
jurisprudence
interpretation
case law
applicant
illness
medical care
human rights
health

Keywords

  • european convention on human rights
  • article 3 ECHR
  • medical care
  • non-nationals
  • european court of human rights
  • medical-related
  • expulsion
  • interpretation

Cite this

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title = "Medical-related expulsion and interpretation of article 3 of the European Convention on Human Rights",
abstract = "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.",
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