omissions in the area of health care can, thus, trigger state responsibility to effectively prevent a violation
of Article 3 ECHR by state provision of adequate medical treatment. Failure to do so, then, constitutes a
violation of Article 3 ECHR.247
If a lack of health care does not reach the threshold of degrading or inhuman treatment, then access to and
financing of medically necessary treatment falls, in any case, within the scope of protection of physical
integrity from Article 8 ECHR.248 This applies in particular if the person is dependent on the state. Otherwise,
they would not be able to gain access to health care and would be dependent on the state to provide it. Based
on this, access to necessary medical care must be ensured, at least for the group of asylum seekers living in
the camps, according to the requirements of the ECHR. If it is not provided, the physical and psychological
integrity of the person would be violated. This is especially the case if an individual’s state of health
deteriorates in state care or if an illness first arises because of living conditions – for example, chronic lung
disease or mental illness due to hopelessness. In certain cases, there may also be a violation of Article 3 ECHR
if the lack of health care reaches the standard of degrading treatment.249
It is unsettled whether a failure to provide health care combined with state sponsored (reception) conditions
that contribute to the deterioration of health culminate in a violation of physical integrity under Article
8 ECHR. According to the case law of the ECtHR, a certain relevance threshold must be exceeded in such
cases. The Court assumes that Article 8 protection applies if persons are “directly and seriously” affected.250
Accordingly, a violation of Article 8 ECHR through lack of access to health care is not within the typical scope
of application of the provision. However, in view of the regulatory content developed by the Court and the
requirements of Article 8 ECHR, such an understanding is warranted: that a violation of physical integrity
and thus of Article 8 ECHR is possible in the absence of treatment of a condition that is known or should
have been known.
ii. Mental Health
The Court has consistently held that Article 3 ECHR251 requires States to ensure that the mental well-being of
prisoners is adequately secured.252
Firstly, the psychological condition of detainees needs to be assessed properly by taking into account the
individual’s health and the effect of the manner of detention on him or her. The Court has recognised that
detainees with mental disorders are more vulnerable than ordinary detainees, and that certain requirements
of prison life pose a greater risk that their health will suffer.253 The state’s assessment of a person’s situation
must include the person’s vulnerability, including their inability to complain coherently or at all about how
they are affected by any particular treatment.254
247
248
249
250
Thus explicitly ECtHR, Judgment of 26/05/2011 - No. 27617/04 - RR, para. 152.
ECtHR, Judgment of 04/01/2005 - No. 14462/03 - Pentiacova, under B. In conclusion, the Court finds no violation of Art. 8.
For the scale, see above under D.I.4.
ECtHR, Judgment of 08/07/2003 - No. 36022/97 - Hatton et. al, para. 96 f.; For application to health care and physical integrity
see Hesselhaus, Art. 3 GRC, in Pechstein/Nowak/Häde, Frankfurter Kommentar, 1st edition 2017, para. 14.
251 Mental Health related questions may also arise with regard to Art. 2 ECHR (prevention of suicide). Furthermore, the conditions
in which a person suffering from a mental disorder receives treatment are also relevant in assessing the lawfulness of his or her
detention within the meaning of Art. 5 ECHR, See ECtHR, Judgement of 31/01/2019, No. 18052/11, Rooman v. Belgium [GC],
para 194, 208.
252 ECtHR, Judgement of 20/01/2009, No. 28300/06, Sławomir Musiał v. Poland, para. 87.
253 ECtHR, Judgement of 31/01/2019, No. 18052/11, Rooman v. Belgium [GC], para. 145.
254 ECtHR, Judgement of 26/04/2016, No. 10511/10, Murray v. the Netherlands [GC], para. 106; See also, ECtHR, Judgement of
24/09/1992, No. 10533/83, Herczegfalvy v. Austria, para. 82, ECtHR, Judgement of 30/07/1998, No. 61/1997/845/1051, Aerts v.
Belgium, para. 66.
40
DETENTION OF MIGRANTS ON THE ISLAND OF KOS
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