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Home > JHR > Vol. 19 > Iss. 2 (2021)

 

Abstract

This essay will explore Article 3 of the European Convention on Human Rights (ECHR) as it has been applied to deportation cases of persons in poor health, with the ultimate goal of answering the following question: Whether the deportation of a person to a place where she or he will not receive adequate health care should constitute a violation of ECHR Article 3. Further, this article will suggest how the European Court of Human Rights (ECtHR) and the national courts below them can better review such cases in order to provide more meaningful protection to those inflicted. In doing so, this essay specifically finds that (i) the ECtHR incorrectly applied Article 3 to cases of poor health and deportation in the past, (ii) the ECtHR still needs to further clarify an appropriate standard for these cases, (iii) the national courts, particularly in the United Kingdom, are incorrectly following old precedent, (iv) the ECtHR needs to explore all claims presented to it in these cases, including claims of Article 2 and 8 violations, and (v) the ECtHR should shift more toward the American Convention on Human Rights approach to Article 3 health cases in better aligning with the European policies on the right to health. Ultimately, these conclusions should assist in establishing sound justification for a relaxation of the current standard used in Article 3 health cases in Europe today.

Note that this article was written as the Savran decision was being handed down, so an in-depth analysis on Savran is absent. Savran was decided in October 2019, after this article was started and shortly before the article was finalized. Savran applied Paposhvili to mental health situations, which is a significant development. In the section ‘Recommendations for Future Research,’ this article calls for an examination of the role that mental health plays in ECtHR decisions and how the court’s treatment of mental health has changed over the years. Savran should help inform, and be a part of, this future research.

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