The impact of the European court of

human rights on the development of rights

in health care
Oleg M. Yaroshenko, Volodymyr M. Steshenko, Hanna V. Anisimova, Galina O. Yakovleva
and Mariia S. Nabrusko

Abstract Oleg M. Yaroshenko is

Purpose – The purpose of this paper is to examine the international regional system of the preservation based at the Department of
of the right to health in the European human rights system through the work of the ECtHR, to analyse the Labor Law, Yaroslav Mudryi
case law of the ECHR based on the human right to health. This purpose determines the following tasks: to National Law University,
identify the features of the realization of the right to health in the European mechanism of human rights Kharkiv, Ukraine.
protection; to study the mechanism of realization of the right to health in the activity of the ECtHR; to
Volodymyr M. Steshenko is
describe the case law of the ECtHR in terms of the right to health.
based at the Department of
Design/methodology/approach – The ‘‘black letter’’ law methodology is used to focus attention on International Law, Yaroslav
conducting research on the letter of the law and the desire to conduct a descriptive analysis of legal Mudryi National Law
norms, based on primary sources.
University, Kharkiv, Ukraine.
Findings – On the basis of the conducted researches, it is possible to draw a conclusion that the ECHR, Hanna V. Anisimova is
albeit implicitly, refers to the right to health as well. based at the Department of
Originality/value – The right to health is included in the catalogue of the most important universally Environmental Law,
recognized human rights and is most often considered as an integral part of socio-economic human Yaroslav Mudryi National
rights, but there is no special universal or regional mechanism for protecting this category of rights. Law University, Kharkiv,
Keywords Right to life, Health-care, Legal norms, Medical treatment, Protecting human rights Ukraine.
Paper type Research paper Galina O. Yakovleva is
based at the Department of
Labor Law, Yaroslav Mudryi
Introduction National Law University,
Kharkiv, Ukraine.
The “right to the highest attainable standard of health” imposes on states a clear set of legal Mariia S. Nabrusko is based
obligations to ensure the right conditions for promoting the health of all people without at Criminal Procedure and
discrimination. The right to health is one of the internationally agreed human rights Criminalistics Department,
standards and cannot be separated from these other rights. This means that the exercise of Taras Shevchenko National
the right to health is critical to the exercise of other human rights (to food, housing, work, University of Kyiv, Kyiv,
education, information and participation) and, in turn, depends on these rights. Ukraine.

The right to health, along with other rights, implies the following freedoms and rights:
䊏 Freedoms include the right to manage one’s health and body (for example, sexual and
reproductive rights) and the right to be free from, for example, torture, non-consensual
medical treatment, or experimental research.
䊏 Rights include the right to use a health care system that provides everyone with an
equal opportunity to maintain the highest attainable standard of health.
Received 29 March 2021
Revised 9 June 2021
The right to health is an universally recognized human right and is most often seen as an 20 July 2021
integral part of socio-economic human rights, but there is no special universal or regional Accepted 2 September 2021

DOI 10.1108/IJHRH-03-2021-0078 © Emerald Publishing Limited, ISSN 2056-4902 j INTERNATIONAL JOURNAL OF HUMAN RIGHTS IN HEALTHCARE j
 mechanism for protecting this category of rights. However, the mechanisms for its
implementation are insufficiently established at both the international and national levels.
This article highlights the most recent and interesting cases from the case law of the
European Court of Human Rights (ECtHR) in which the ECtHRs conclusions are based
solely on the European Convention on Human Rights (ECHR). In most cases, the ECtHR
applies the principle of democracy to health rights. The ECtHR regards health rights as
fundamental non-property rights. Particularly in each case, the ECtHR recognizes the
ethical dimension of these rights. In most cases it is irrelevant whether the plaintiff is a free
person or a prisoner, the ECHR takes decisions on the basis of fundamental human rights
and freedoms. Although the ECtHR does not explicitly regulate the right to health, the
ECtHR has dealt with the right to health in cases that included alleged violations of rights
guaranteed by the ECHR (Tatsiy et al., 2017; Yaroshenko et al., 2018).
The ECtHR imposes a legal obligation on the Contracting States to provide their nationals
with an appropriate health care system under which health-care professionals will be able to
provide appropriate medical care to persons in accordance with all professional rules. This
article is based on an analysis of international law regulating the right to health according to
the case law of the ECtHR in which the right to health and private life was dealt with from a
patient’s health perspective. It is also important to bear in mind that the ECtHR is
particularly attentive to the legal and policy materials on health that have been adopted
within the framework of the Council of Europe (Kazak and Hotsuliak, 2020; Yaroshenko
et al., 2019).
Many scientific works, including studies of such scholars as McHale (2010), Marochini
(2013), Hervey and McHale (2015), Murgel (2020), Hendriks (2019) are devoted to the
issues of the practical application aspects of the ECtHR decisions in law enforcement
practice. The purpose of this article is to examine the international regional system of the
preservation of the right to health in the European human rights system through the work of
the ECtHR, to analyse the case law of the ECHR based on the human right to health. This
purpose determines the following tasks: to identify the features of the realization of the right
to health in the European mechanism of human rights protection; to study the mechanism of
realization of the right to health in the activity of the ECtHR; to describe the case law of the
ECtHR in terms of the right to health.
The topicality of the research is determined by the development of a new policy in the field
of health care development, health care and closely related to health care relations, the
establishment of constituent elements of the law under research, the determination of its
place in the human rights system. The research also provides for the identification of means
to exercise the right to health in correlation with new public relations in the field of exercising
and protecting citizens’ rights to health and medical care. Thus, the article may be useful for
the scientific community when developing a regional mechanism for protecting this
category of rights.

Materials and methods

The study used a dialectical method of cognition that became the basis for the disclosure of
the specifics of cases of the European Court of Human Rights, which are related to the
protection of the human right to health. The method of analysis-synthesis was used to
substantiate the legal positions concerning human rights violations in the field of health care
in the decisions of the European Court of Human Rights. The formal aspects of the
protection of human rights to health are considered in the decisions of the European Court
of Human Rights. Formally, the dogmatic method was used to interpret the provisions of
international treaties, resolutions of international organizations relating to the protection of
human and civil rights to health. The hermeneutic method was used to interpret the
provisions of the European Convention on Human Rights relating to the subject of the study.
The structural-logical method was used to analyse the necessary amount of information on

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the role and place of ECtHR decisions in the protection of human and civil rights in the
context of the right to health, which should act as a guarantor of such protection in a
democratic society.
In addition, we used a method of doctrinal legal research, also called “black letter”
methodology, focusing on the law in action. The “black letter” law methodology is used to
focus attention on conducting research on the letter of the law and the desire to conduct a
descriptive analysis of legal norms, based on primary sources (Hyliaka et al., 2020). Using
this method, we composed a descriptive and detailed analysis of the legal rules found in
primary sources (European Convention on Human Rights). The purpose of this method is to
gather, organize and describe the law; provide commentary on the sources used; then,
identify and describe the underlying theme or system and how each source of law is
connected. Under this approach, we conducted a critical, qualitative analysis of legal
materials to support our hypothesis. The empirical method of the research uses data
analysis to study legal systems. The process of the empirical research involves four steps:
design the project, collect and code the data, analyse the data, determine the best method
of presenting the results.
We collected and coded the data by determining the possible sources of information and
available collection methods, and then putting the data into a format that can be analysed.
We analysed and compared the data to our hypothesis. The study used the ECHR,
Thematic report (Council of Europe, 2020) and Health-related issues (European Court of
Human Rights, 2015) in the case law of the ECtHR. A number of articles related to the
research topic were also analysed, such as “Human rights in health care” (Kuchuk, 2020),
“Law of the European Convention on Human Rights” (Harris et al., 2014), “End-of-life
decisions. Recent jurisprudence of the European Court of Human Rights” (Hendriks, 2019),”
Council of Europe and the right to healthcare – is the European Convention on human rights
appropriate instrument for protecting the right to healthcare” (Marochini, 2013),
“Fundamental rights and health care” (McHale, 2010), “Reproductive human rights in the
aspect of Article 8: review of the case law of the ECtHR” (Michalski, 2020), “Medical
negligence and liability of health professionals in the European court of human rights case
law” (Murgel, 2020), “Features of protection of the right to health care in the European Court
of Human Rights” (Shvets, 2018).

Results
The rights to health and life are an important part of our understanding of living well. At the
international level, the right to health is first articulated in the 1946 Constitution of the World
Health Organization (1946), which defines health as “a state of complete physical, mental
and social well-being, not just the absence of disease or infirmity”. The preamble goes on to
state that “the possession of the highest attainable standard of health is one of the basic
rights of every human being, regardless of race, religion, political opinion, economic or
social status”.
The Universal Declaration of Human Rights, 1948 (The United Nations, 1948) defines health
as part of the right to a high standard of living. The right to health is relevant to all States:
each State has ratified at least one international human rights treaty recognizing the right to
health. The right to health was also enshrined as a fundamental human right in the 1966
International Covenant on Economic, Social and Cultural Rights (The United Nations
General Assembly, 1966). Other international instruments in this field are subject to or have
referred to this Covenant, such as the right to health care. The right to health is a global
issue: all countries have ratified at least one international human rights treaty recognizing
the right to health.
Many countries of the world have also undertaken, through international declarations, to
guarantee and protect the right to health of their citizens. The right to health has now

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 become a very important issue. WHO and the Commission on Human Rights (now replaced
by the Human Rights Council) aim to protect the right to life and health. They also created
the mandate of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (Office of the High Commissioner
for Human Rights, 2008).
The Council of Europe’s 1950 European Convention on Human Rights (ECHR) (Council of
Europe, 1950) has been particularly influential in framing human rights discourse across
Europe. The ECHR is a traditional civil and political statement of human rights. It was
drafted in the aftermath of the Second World War and came into force in 1953. Most ECHR
member States have signed protocols that allow for the right and the possibility of bringing
an action before the European Court of Human Rights (ECHR). Although the ECHR does not
directly regulate the right to health, health-related cases referred to the ECHR are generally
governed by Articles 2, 3, 8, 14 of the ECHR.
Over the years, a considerable number of actions brought before the ECtHR have
concerned health and health care. For example, the right to life in Article 2 ECHR has been
used in claims concerning the status of the foetus and abortion, resource allocation in
health care systems and the ‘right to die’. Article 5 ECHR on the right to liberty and security
of the person has been used extensively in the context of mental health. Article 8 protects
the right to privacy. It has been used in complaints relating to reproductive rights (and may
also be relevant to persons with disabilities or mental illness), as is article 12 of the ECHR on
the right to marry and found a family (McHale, 2010; Yaroshenko et al., 2020).
The ECtHR integrated approach and dynamic interpretation include the right to healthcare
in general, at least to some degree, in the ECHR, particularly after the ECtHR has gone in its
dynamic interpretation of the right to satisfactory detention conditions and healthcare in
prisons and the right to a healthy environment. However, it looks as though regarding the
right to healthcare the ECtHR decided to make a distinction between the civil and political
and social and economic rights. One of the reasons for doing so might be, although we
have seen examples of successful judicial protection of the right to health on the national
level, the ECtHR’s fear of entering States socio-economic sphere.
The ECtHR must be differentiated from national courts since all States are under the
ECtHR’s jurisdiction willingly and are also free to withdraw from the ECHR system at any
time. There is a possibility that if the ECtHR starts imposing new socio-economic rights
under the ECHR that can be counter-productive. Not only can the States start withdrawing
from the ECHR system (which is the worst, but not impossible scenario) but it can also
deteriorate the good situation there is at the moment regarding the States’ compliance with
the judgments and create uncertainty among States regarding their obligations under the
ECHR. Nevertheless, during the last few years the ECtHR started giving indications it might,
at least to some degree, include the right to healthcare into the ECHR (Marochini, 2013).
The jurisprudence of the ECtHR has had an impact on the development of health care rights
across Europe. Nonetheless, the approach taken by the ECtHR to certain controversial
issues where there are wide differences in religious and ethical perspectives across states
illustrates the difficulty in utilizing a human rights-based approach in developing health law
and health policy across the European Union. This is particularly notable, for example, in the
context of reproductive rights. In some Member States, specific legal status is given to the
embryo and foetus, which leads to consequent limitations on women’s claims to
reproductive rights. By way of example, the Republic of Ireland recognizes the right to life of
the unborn child, guarantees and affirms this right. This provision is considered
fundamental in the Republic of Ireland.
In Vo v. France (The European Court of Human Rights, 2004), the ECtHR recognized that
there were widely divergent views across Europe as to the status of the foetus, whether it
was a ‘person’ and when life began. In the practice of the ECtHR, there is an approach to

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provide an abstract answer to the question in order to make the question unclear to the
individual of the ECHR. Instead, the ECtHR afforded a margin of appreciation to the state on
this issue (McHale, 2010). The ECtHR is ambivalent about the application of the ‘right to life’
in the context of novel health technologies, and there is every reason to expect similar
caution from the Court of Justice of the European Union. Perhaps, this is in part because of
the presence of competing rights (to life, to dignity) of those patients who might benefit from
future therapies, and because public interest justification applies in the context of
developing novel health technologies. The Charter of Fundamental Rights of the European
Union (European Union, 2010) explicitly prohibits ‘the reproductive cloning of human
beings’, but is silent on the question of so-called ‘therapeutic cloning’, perhaps implying that
such uses of human material do not infringe human rights according to EU law (Hervey and
McHale, 2015).
There have been several cases where the ECtHR explored the possibility of protecting the
right to health or/and the right to healthcare. Here, the issue is not the right to healthcare in
detention but in society in general, since the situation is rather different with the detention
cases where the applicants are under the full authority of the State. When it comes to the
healthcare in detention, the development of the ECtHR’s jurisprudence regarding the right
to have satisfactory detention conditions and the right to healthcare of the persons deprived
of their liberty under Article 3 is ongoing. On the other hand, most of the ‘healthcare cases’
have not even passed through the admissibility stage. However, in April 2013 the ECtHR,
for the first time, found a violation of the ECHR’s Article 2 in a case where the State’s failure
to provide emergency medical care resulted in death (Marochini, 2013).
Article 2 requires public officials to refrain from acts or omissions that endanger the life or
health of persons. They have no right to use lethal force or force that, while not fatal, causes
serious trauma. Article 2 imposed positive obligations on States to protect the health of
individuals under certain circumstances. Frankly, a problem might arise with regard to
article 2 if the authorities of a Treaty country put a person’s life at risk by refusing the
medical care they had pledged to provide to the population as a whole.
According to the ECHR procedure, namely article 2, paragraph 1, of the ECHR, the
Contracting State is not only obliged to refrain from wilful and unlawful killing, but is also
obliged to take all necessary measures to protect the life and health of its citizens. In the
judgment concerning the case Cyprus v. Turkey (The European Court of Human Rights,
2001) the ECtHR observed that there may be liability under Article 2 where the state places
an individual’s life at risk by denying them medical care that is available to the public. But
the ECtHR did not examine in this case the extent to which Article 2 of the ECHR may
impose an obligation on a Contracting State to make available a certain standard of
healthcare. It is reasonable to infer from the word ‘extent’ that such an obligation exists to
some undefined degree. Confirmation of such an interpretation of Article 2 would extend the
guarantee of the right to life in a way that it would be in accordance with national healthcare
standards in European states and indirectly provide a partial, but welcome guarantee of
the right to health. The obligation to ensure more extensive healthcare is likely to be held to
be subject to ‘available resources’ (Harris et al., 2014).
Article 2 of the ECHR obliges public servants to refrain from acts or omissions that would
endanger life or seriously endanger health. In the case of Ilhan v. Turkey (The European
Court of Human Rights, 2011), the complainant maintained that at the time of their brother’s
arrest by the gendarmerie, they had been severely and severely beaten, and that they had
not been taking into account the gravity of the ill-treatment to which A. Ilhan was subjected
and the circumstances of it, including the very long lack of adequate medical care. The
Court decided that they had been the victim of very serious and severe suffering. Without
justification consistent with the Convention, States have no right to inflict lethal force or force
that results in serious injury. States also have obligations to protect the health of individuals
in certain circumstances. Thus, there may be an inconsistency with the same article that

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 shows that the authorities of the Contracting State have put the life of the person at risk by
refusing the medical assistance, which they have undertaken to provide to the population
as a whole – Nitecki v. Poland (The European Court of Human Rights, 2002b).
Article 3 stipulates that public servants shall not engage in treatment that is harmful to a
person’s physical health or that causes mental or psychological harm. The State must also
take positive measures to protect the physical and mental health of prisoners, for they have
a special responsibility. The case of P. and S. v. Poland (The European Court of Human
Rights, 2012b) related to a person’s health because the applicant was denied abortion,
which constituted a violation of Article 2. A 14-year-old girl who was raped wanted to
terminate their pregnancy. Public hospitals, in turn, refused to abort and issued a press
release confirming this. Since then, the complainant has been subjected to a lot of
anti-abortion pressure. Following a complaint to the Ministry of Health, the girl(s) was
secretly taken to another hospital to terminate the pregnancy. The ECtHR found that the
prosecutor’s certificate confirming that the pregnancy was the result of unlawful sexual
intercourse and the medical evidence that they had been physically abused. The
complainant was subjected to considerable pressure from various medical specialists.
Their young age, their views and feelings were not given due consideration, and this led the
ECtHR to find a violation of article 3 of the ECHR.
The right enshrined in article 8 of the ECHR has taken a special place in the ECtHR’s case
law on human rights, namely respect for privacy. The ECtHR interpreted the concept of
privacy as the right to protect one’s physical, moral and psychological integrity, as well as
the right to freedom of choice – for example, to refuse treatment. Article 8 engenders both
negative and positive obligations in Treaty States. The ECtHR established that States must
ensure the right to effective respect for physical and psychological integrity. These
obligations require the State to ensure effective and accessible protection of the right to
privacy through the normative and judicial framework. Article 8 also raises the issue of free
consent to treatment.
The case of Erdinç Kurt v. Turkey (The European Court of Human Rights, 2017) involved two
risky operations, for a patient – the complainants’ daughter – resulting in serious
neurological damage and disability. These obligations require the State to ensure effective
and accessible protection of the right to privacy through the normative and judicial
framework. Article 8 also raises the issue of free consent to treatment. The complainants
requested that the authorities be held responsible for the damage and complained about
the lack of effective legal protection, which should protect rights in civil proceedings. They
referred to an unsuccessful appeal against the expert’s opinion to which the national courts
had based the dismissal of the compensation claim. The ECtHR found a violation of the right
to privacy, finding that the complainants did not receive an adequate judicial response, and
that the right to physical integrity of the patient was not protected. The expert opinion was
found to provide insufficient explanations as whether the doctors had caused damage. The
ECtHR held that only where it was established that the doctors had carried out the operation
in accordance with the rules of medical science, taking due account of the risks involved,
could the damage caused be regarded as an unforeseeable consequence of treatment;
where it otherwise, surgeons would never be called to account for their actions, since any
surgical intervention carried a degree of risk.
The ECHR 14 opposes any discrimination based on physical or mental condition. This has
also been considered by the ECHR. Health problems may also relate to the right not to be
arbitrarily deprived of liberty. For example, persons with mental illnesses were held in
prisons that were not fully adapted to their situation. This may also lead to a violation of
Articles 3 – M.S. v. the United Kingdom (The European Court of Human Rights, 2012a) or
article 5 – Stanev v. Bulgaria (The European Court of Human Rights, 2012c) of the ECHR. If
the court does not accept the fact that a person is mentally or physically disabled, this may
result in a violation of the right to a fair trial. For example, if the State is unable to meet the

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needs of an accused person who is disabled and deaf. They cannot participate effectively
in the proceedings in this way. This is a violation of Article 6 of the ECHR (European Court of
Human Rights, 2015).
Violations of human rights by a State in the field of protection of human rights to health may
entail responsibility under the ECHR. But if a country has taken steps to develop a high-level
health-care system and to protect the lives and health of patients, issues such as medical
negligence in the treatment of a particular patient may arise. But this will not be enough to
hold them accountable for their positive obligations under Article 2 of the ECHR to protect
life – Byrzykowski v. Poland (The European Court of Human Rights, 2006a). Positive
obligations under Article 2 require the State to ensure adequate protection of the patient’s
rights – Trocellier v. France (The European Court of Human Rights, 2006b). They also
require the establishment of an effective independent judiciary to determine the cause of
death of patients receiving medical care and to bring those responsible to justice. States
are also required to ensure that adequate legislative and administrative frameworks are in
place to protect patients’ rights, and that any violations are remedied and the perpetrators
punished. The task of the ECtHR in such cases is to examine whether the State has
responded adequately to the violation of the right to life.
In the case of Calvelli and Chilyo v. Italy (The European Court of Human Rights, 2002a), the
complainants filed a criminal case against the doctor who delivered their child who had
died. However, the criminal case soon expired due to procedural delays. The claimants
also filed a claim for damages against a doctor. They soon voluntarily withdrew from the
proceedings and entered into settlement agreements with the insurers. The European Court
of Human Rights noted that the complainants had effectively deprived themselves of
access to a doctor’s degree of responsibility for the death of their child, which in the specific
circumstances of the case would have satisfied the positive obligations arising from
Article 2. Accordingly, the ECtHR found no violation of this provision.
In the case of Silij v Slovenia (The European Court of Human Rights, 2009b), the
complainants’ son died in hospital from drugs to which they were allergic. The
complainants complained about the lack of an effective investigation into the death of their
son and claimed that the death had been caused by the doctors’ fault and negligence. The
ECtHR found a procedural violation of Article 2 of the ECHR, primarily because of the
excessive length of the civil proceedings, which lasted 13 years. The Dodov v. Bulgaria
(The European Court of Human Rights, 2008) case concerned the disappearance from the
home of the complainant’s elderly mother who was suffering from Alzheimer’s disease. The
complainant also complained that responsibility for their mother’s disappearance had never
arisen. The ECtHR suggested that the mother had died and found a direct link between the
inability of the staff of the nursing home to control them, despite instructions never to leave
them unattended and their disappearance. Despite the existence in Bulgarian legislation of
three remedies – criminal, disciplinary and civil – the authorities failed to assist the
complainant in obtaining justice and in finding the perpetrator. Faced with a controversial
case of negligence and negligent endangerment, the legal system as a whole failed to
provide an adequate and timely response as required by the State’s procedural obligations
under Article 2.
The ECtHR also emphasizes the importance of access to information on health risks.
Contracting States, for example, are required to take the necessary measures to ensure that
doctors inform their patients in advance so that they can give informed consent. If the
patient is not duly informed in advance, the State may be found to have violated Article 8.
Thus, in Csoma v. Romania (The European Court of Human Rights, 2013) the complainant
was provided with a medication to terminate the pregnancy. But due to complications, the
doctors had to perform a hysterectomy to save their life. The ECtHR concluded that they
were not involved in the choice of treatment or were not properly informed about the risks,
they suffered a violation of their right to privacy in violation of article 8 (Murgel, 2020).

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 The ECtHR has also heard cases of alleged failure to provide adequate medical care. The
Center of Legal Resources on behalf of Valentin Campeanu v. Romania (The European
Court of Human Rights, 2010). An application was filed on behalf of Valentin Campeanu.
They died in 2004 at the age of 18 in a psychiatric hospital. Abandoned at birth and placed
in an orphanage, they were diagnosed with HIV-positive and mental illness at an early age.
The ECtHR found that, in the exceptional circumstances of the case, and given
the seriousness of the charges, the non-governmental organization could act as the
representative of Valentin Campeanu, even if the organization itself was not the victim of the
alleged violations of the ECHR. In this case, the Court held that there had been a violation of
Article 2 (right to life) of the ECHR, both substantively and procedurally. It has been
established that Valentin Campeanu was placed in a medical institution that was not
designed to provide adequate care for his condition; that they were transferred from one
department to another without a proper diagnosis; and that the authorities were unable to
provide them with the appropriate medication.
Due to staff shortages, inadequate food and lack of heating, their life was in danger in the
psychiatric hospital where they were placed. It also found that there had been no effective
investigation into the circumstances of the death. The ECHR also alleged a violation of
Article 13 (the right to an effective remedy). The ECHR, in accordance with Article 2, found
that the Romanian State had not provided an appropriate mechanism for the compensation
of persons with mental disorders claiming to be victims under Article 2 of the Convention.
Article 46 (binding force and enforcement) of the ECHR also applies here. The violations of
the ECHR in the case of Valentin Campeanu reflect a broader problem. The ECHR
recommended that Romania take the necessary general measures to ensure that persons
with mental disabilities are provided with an independent hearing allowing them to address
complaints about their health and treatment before an independent body (Factsheet –
Health, 2020).

Discussion
The role and importance of the ECtHR practice is difficult to overestimate in litigation and
human rights protection, including in the field of health care. According to Art. 17 of the Law
of Ukraine “On Enforcement of Judgments and Application of the Case Law of the European
Court of Human Rights” (Verkhovna Rada of Ukraine, 2006), courts use the Convention and
the case law of the European Court of Human Rights as a source of law when considering
cases. The definition of “case law” is given in Art. 1 of the same Law that stipulates that the
practice of the ECtHR is the practice of the ECtHR and the European Commission of Human
Rights. The legislator did not make any reservations that such a practice should apply only
to Ukraine as a party to the case. Therefore, as a source of law, the entire practice of the
ECtHR is applicable, and not only the practice in cases to which Ukraine was a party.
The correctness of this conclusion is confirmed by the case law of the European Court of
Human Rights and other international standards. In particular, in Opuz v. Turkey (The
European Court of Human Rights, 2009a) the ECtHR acknowledged the de facto egga
omnes (from the Latin for all) effect of its decisions, pointing to the need to take its findings
into account even in decisions concerning other States parties. As the ECtHR provides a
final authoritative interpretation of the rights and freedoms set out in Section 1 of the
Convention, it considers whether the national authorities have sufficiently adopted the
principles arising from its decisions on similar matters, even if they concern other States
(Kuchuk, 2020; Tavolzhanska et al., 2020).
In a number of its judgments, the European Court of Human Rights has drawn attention to
the fact that the Convention for the Protection of Human Rights and Fundamental Freedoms
does not guarantee socio-economic rights, including the right to health, and complaints
about any aspects and derivatives of human rights. The right to health is not in dispute
under the provisions of the Convention or the Protocols thereto. However, in practice, the

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European Court of Human Rights has ruled on the exercise of the right to health when
dealing with the violation complaints of a number of the Convention articles. The case law of
the European Court of Human Rights confirms that the right to health is comprehensive and
includes a number of rights: the right to information and the confidentiality of health
information; the right to medical and social assistance; the right to consent to treatment and
medical intervention; the right to a favourable environment that affects health, etc. Thus, the
attribution of the right to health to socio-economic rights is subjective (Shvets, 2018;
Korolova et al., 2020).
The ECtHR also takes a position on the need to resolve cases concerning the death of
patients in medical institutions as soon as possible. In its judgment of 27 June 2006 in
Baczkowski v. Poland (The European Court of Human Rights, 2007), the Court emphasized
the need for a speedy resolution of cases concerning the death of a person in a medical
institution. Mistakes made by health-care professionals need to be clarified quickly. Further,
this information should be immediately disseminated to the staff of the medical institution in
general, in order to prevent the recurrence of negative experiences in the future, and thus –
to ensure that patients receive better quality medical services. Therefore, the Court ruled
that there had been a violation of Art. 2 of the Convention, which resulted in an improper
investigation into the death of the applicant’s wife and the damage to their son’s health. The
exercise of the right to health by one of the more vulnerable groups of people who are
mentally ill should be based on objective medical examination. The realization of the right to
health of the mentally ill requires an effective judicial mechanism, but in some cases the
protection of the rights of such persons is not implemented at the national level. The
realization of the right to health of the mentally ill is possible thanks to the existing
mechanism of protection of the right to liberty and security of a person through the activities
of the ECtHR (Senyuta, 2020; Samilyk et al., 2019).
Also analysing the consolidation of reproductive human rights in European countries, we
can conclude that at the moment it is insufficient and contains many gaps that in some
cases lead to violations of human and civil rights. Bridging these gaps is a complex process
and an important role in it is played by the case law of the European Court of Human Rights,
which sets the standards that Member States’ legislation must meet. The ECtHR decisions
play a key role in enshrining reproductive rights in national legislation. But while some
countries listen to the case law of the Court, others, unfortunately, not only ignore but also
consider laws that are directly contrary to the decisions of the ECtHR (Mikhalkiv, 2020; Titko
et al., 2020). We believe that reproductive rights are inalienable human rights, and therefore
their implementation should be clearly enshrined not only at the international level but also
at the level of national legislation and protected by law.

Conclusions
To meet the needs and respect the rights of people at different stages of the life cycle, it is
required to apply a comprehensive approach within the broader context of strengthening
human rights, gender equality and justice.
On the basis of the conducted researches it is possible to draw a conclusion that the ECHR,
albeit implicitly, refers to the right to health as well. It regulates negative obligations
reflected in the prohibition of interference with a certain right. It can also be interpreted as
setting positive obligations of the states to ensure the exercise of the right to health,
although the extent of that positive obligation is still not fully defined. The present
contribution focuses on a single segment of the right to health in the practice of the ECtHR.
The ECtHR’s interpretation of the state’s responsibility for medical negligence, especially
nowadays.
The right to health is included in the catalogue of the most important universally recognized
human rights and is most often considered as an integral part of socio-economic human

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 rights, but there is no special universal or regional mechanism for protecting this category of
rights. The European Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950 (ECHR, Convention) provides a mechanism for the protection and
implementation of enshrined rights and freedoms through the activities of the European
Court of Human Rights (ECtHR).
The right to health is not directly protected by the 1950 Convention, as well as other
socio-economic rights, but recourse to the protection of this right is possible under a
number of articles of the 1950 Convention. Such practice of the European Court of
Human Rights exists, for example, in violation of law for life (Art. 2), prohibition of torture
(Art. 3), right to liberty and security of person (Art. 5), right to a fair trial (Art. 6), respect
for private and family life, inviolability of home (Art. 8). That is, the ECtHR considers cases
with a socio-economic aspect, including health care, when they raise an issue
concerning one or more of the fundamental civil and political rights guaranteed by the
ECtHR. The mechanism of the right to health in the European human rights system is also
analysed. The jurisprudence of the European Court of Human Rights on the right to health
through the protection of the right to life, the prohibition of torture, the right to liberty and
security, the right to a fair trial, the right to respect for private and family life has been
studied.
A significant number of lawsuits filed with the ECtHR are related to health. For example,
according to Article 2, States must refrain from endangering human health. Without
justification under the ECHR, they should not use force that, although not fatal, is harmful.
States must protect human health in certain circumstances. Thus, a question may arise
under Article 2 where a Contracting State endangers the lives of people by refusing to
provide medical care to the public. Article 3 stipulates that civil servants must refrain from
conducting that is detrimental to a person’s physical health or causes physical or
psychological harm. The state may also require positive measures to protect the physical
and mental health of persons, such as prisoners for whom it has a special responsibility.
The right to privacy guaranteed by Article 8 of the ECHR has become particularly important
in the case law of the ECtHR on the “right to health”. The ECtHR interpreted the concept of
privacy as the right to protection of physical, moral and psychological integrity, as well as
the right to choose or exercise personal autonomy – for example, to refuse treatment or to
demand any form of treatment. The right under Article 14 of the ECHR not to be
discriminated against on the basis of physical or mental condition was also considered by
the ECtHR, which explicitly recognized health as one of the protected grounds on which
non-discrimination could be relied upon. Health problems can also be linked to the right to
arbitrary detention.
In many judgments, the ECtHR has drawn attention to the fact that the ECHR for the
Protection of Human Rights and Fundamental Freedoms does not guarantee socio-
economic rights, including public health laws and complaints regarding any aspects
and derivative rights. The right to health is not the subject of a dispute under the
provisions of the ECHR or the Protocols thereto. However, the ECtHR addressed the
issue of realization of the right to health at consideration of violation complaints of a
number of the ECHR articles. The case law of the ECtHR concludes that the right to
health is comprehensive and includes a number of rights: the right to information and
confidentiality of health information; the right to medical and social assistance; the
right to consent to treatment and medical intervention; the right to a favourable
environment that affects health, etc. Thus, the relationship of the right to health to
socio-economic rights is subjective. It is complex and applies both in the context of
social and biological unity to the essence of man. Therefore, it is relevant, from a
theoretical and practical point of view, to study the implementation of the right to health
in the ECtHR.

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Corresponding author
Oleg O. Yaroshenko can be contacted at: oleg-yaroshenko@edu-knu.com

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