Zbornik Pravnog Fakulteta Sveučilišta u Rijeci (Jan 2013)
COUNCIL OF EUROPE AND THE RIGHT TO HEALTHCARE- IS THE EUROPEAN CONVENTION ON HUMAN RIGHTS APPROPRIATE INSTRUMENT FOR PROTECTING THE RIGHT TO HEALTHCARE?
Abstract
The European Convention on Human Rights (the Convention, ECHR), a Council of Europe main human rights instrument, contains no references to healthcare rights. Despite that, the issue of providing healthcare in general has been raised before the European Court of Human Rights (the Court), mainly in relation to Articles 2 (right to life) and 8 (right to respect for private and family life). Also, the deportation cases where the applicants invoked violation of Article 3 because of the lack of satisfactory (or any) healthcare in the countries where they were supposed to be deported are connected with the right to healthcare. This paper will look at the Court’s approach towards guaranteeing the right to healthcare under the Convention. Since the Court is nowadays often using an integrated approach and dynamic interpretation of the Convention provisions one might have expected that it will include the right to healthcare, at least to some degree, in the Convention. However, despite this Court’s use of integrated approach, when it comes to the right to healthcare the Court on most occasions decided that the right to healthcare is not appropriate for the protection under the Convention. In this paper the Court’s approach towards the right to healthcare will be analysed, together with the author’s opinion on why the Court has not gone further in guaranteeing the right to healthcare and why that is a good thing. Also, the right to health as protected under the European Social Charter (the ESC), the Convention’s counterpart on economic and social rights, will be analysed. Despite the fact that the ESC system, particularly the Collective Complaints procedure, is accepted by considerably fewer states than the Convention, the right to healthcare is not an area where the Court should enter, since the European Committee on Social Rights (the ESCR) has so far proven to be successful in formulating clear standards regarding states’ obligations regarding healthcare rights. In the author’s opinion, the ESC is a better instrument for healthcare issues, and the reasons for that line of thinking will be presented.
