The Power of the European Court of Human Rights to Order Specific Non-Monetary Relief: a Critical Appraisal from a Right to Health Perspective
by Ingrid Nifosi-Sutton
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The remedial practice of the European Court of Human Rights (“ECtHR” or “Court”) is hardly known for being innovative or progressive. The reparations the Court uses to remedy violations of the 1950 European Convention of Human Rights (“ECHR”) generally consist of declaratory judgments that establish breaches of Convention rights coupled with, depending on the circumstances, damages. Nevertheless, in some instances involving violations of the right to property and the right to liberty and security between 1995 and 2004, the Court has adopted a more proactive, innovative approach to redressing violations by requesting respondent states to provide specific non-monetary relief to victims.
This article explores whether the Court’s new and bold remedial strategy, aimed at ordering restitutio in integrum and the adoption of legal and administrative measures, has been systematic and whether it has been applied to remedy violations of Convention rights other than the right to property and the right to liberty and security. In doing so, this article takes a right to health perspective. It analyzes whether the ECtHR, between 2002 and 2009, has ordered specific non-monetary reparations concerning violations of the right to health of prisoners and detainees, arising under Article 3 of the ECHR’s fundamental prohibition of torture or inhuman or degrading treatment or punishment (hereinafter “Article 3”).
This article begins with an elucidation of the ECtHR’s jurisdiction to afford reparations and an analysis of the Court’s remedial strategy, highlighting the Court’s willingness to order specific non-monetary relief. It then looks at the protection of social rights under the ECHR and how the Court has interpreted Article 3 to include the right to health of persons deprived of their liberty. From there, this article undertakes a review of the relevant case law under Article 3 to determine: 1) whether the Court has extended its bold, new remedial approach to redress right to health violations that occurred in detention places and were deemed to be violations of Article 3, and 2) what significance, if any, such bold reparations may have for the implementation of the right to health. This article concludes that there has been no extension of the new remedial approach to redress violations of the right to health of prisoners and detainees using Article 3 of the ECHR. It then provides rationales for such an extension and outlines a two-pronged remedial scheme indicating non-monetary reparations that could be ordered to redress right to health violations that fall within the scope of Article 3.