Last year the European Court of Human Rights (ECHR) ruled on certain issues strongly connected with the Covid-19 Health Crisis in some relevant decisions. The plaintiffs, indeed, were complaining about the violation of several articles of the European Convention on Human Rights in the context of the Covid-19 pandemic. The Convention on Human Rights violation in this case-law was affecting, essentially, the Right to Life and Physical Integrity and Inhuman or Degrading Treatment (Article 2), Prohibition of Torture (Article 3), the Right to Liberty and Security (Article 5), the Right to Respect for Private and Family Life (Article 8).
Right to Health:
The “Le Mailoux v. France” decision of the 5th November 2020 was concerning the handling by the French State of the Covid-19 health crisis. The plaintiff was complaining about the violation of Article 2 (Right to Life), Article 3 (prohibition of inhuman and degrading treatment), and Article 8 (the Right to Respect for Private and Family life) of the European Convention on Human Rights.
The plaintiff indicated that the State was non-fulfilling to its positive obligations to protect the lives and the physical integrity of persons under its jurisdictions due to the restrictions on access to diagnostic tests, preventive measures, and specific types of treatment. The plaintiff argued that the Right to Health could be interpreted as a Human Right that covered other fundamental rights such as the Right to Life, the Prohibition of Inhuman and Degrading Treatment, or the Right to Respect for Private and Family life, strictly connected to it. In this respect, World Health Organization (WHO) has underlined that “the right to health is one of a set of internationally agreed human rights standards and is inseparable or ‘indivisible’ from these other rights. This means achieving the right to health is both central to, and dependent upon, the realization of other human rights, to food, housing, work, education, information, and participation“.
According to the plaintiff, the State had not ensured his Right to Health precisely due to the restrictions on access to the national health care system. It should be noted that the “Right to the Health Care” is a Fundamental Right foreseen in Article 35 of the Charter of Fundamental Rights. Besides, this principle has the European legal basis in Article 168 TFEU and Articles 11 and 13 of the European Social Charter. European Court of Human Rights (ECHR) in the “Le Mailoux v. France” decision stated that the Right to Health was not among the rights guaranteed under the Convention on Human Rights and its Protocols. Besides, the same court remarked that the plaintiff could not complain about a provision of Domestic Law. Finally, the ECHR considered that, in this case, the European Convention of Human Rights and its Protocols are not being violated.
Right to Life and Prohibition of Torture and Inhuman or Degrading Treatment:
In the “Feilazoo v. Malta” decision, the plaintiff complained about the violation of Article 3. This case law was concerning the inadequate conditions of detention. In particular, in the “Feilazoo v. Malta” decision was reported that “following an isolation period the plaintiff had been moved to other living quarters where new arrivals (of asylum seekers) had been kept in Covid-19 quarantine“. Furthermore, the ECHR in this decision was pointing out that “there was no indication that the plaintiff had been in need of such quarantine – particularly after an isolation period which, moreover, had lasted for nearly seven weeks. Thus, the measure of placing him, for several weeks, with other persons who could have posed a risk to his health in the absence of any relevant consideration to that effect, could not be considered as a measure complying with basic sanitary requirements“. This decision did not mention, explicitly, the Right to Health, even if the “risk to his health” has been used to describe the danger to the plaintiff’s own life. This suggests that the ECHR recognizes the Right to Health in certain circumstances, for instance, the inadequate conditions of detention. Partially, it would seem in contradiction with other decisions, for instance, the “Le Mailoux v. France” judgment noted above.
It should be noted that the European Convention on Human Rights should be updated, including new protocols. Certainly, the Right to Health should be introduced in the convention’s text, considering that the “Right to the Health Care” is foreseen in the European Charter of Fundamental Rights.