PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. My only disagreement with the majority is that I respectfully find, as the Chamber did at paragraph 114 of its judgment, that there has been a violation of the substantive limb of Article 2 of the Convention.

2. As I subscribe to the facts outlined in the judgment, I need not delve into them.

3. In my humble opinion, the respondent State failed to fulfil its substantive positive obligation under Article 2 of the Convention taken in conjunction with Article 1 of the Convention to secure and protect the life of the applicant ’ s husband. In particular, I believe that the respondent State placed the life of the applicant ’ s husband at serious risk by depriving him of the possibility of access to immediate and appropriate emergency care. That was so because of the lack of coordination between the hospital in which he had undergone surgery for the removal of nasal polyps and the hospital ’ s emergency department, from which he requested immediate assistance after the surgery owing to complications and to the appearance of meningitis. Although the procedural positive obligation is independent of the substantive positive obligation, the unanimous finding of the Court at paragraph 238 of the judgment, that the case at hand was an arguable case of medical negligence, cannot be ignored when dealing with the substantive positive obligation.

4. This substantive positive obligation of the State is based on the principle of effectiveness, which requires that the provisions of Article 2 of the Convention should be interpreted and applied in a practical and effective manner so as to fulfil the purpose of the guarantee of the right and secure for the applicant the full benefit of the Convention ’ s protection.

5. Although the above principle is correctly enunciated in the judgment, when it eventually comes to be applied its more important role is overlooked.

6. To be more precise, in paragraph 186 of the judgment, under the sub ‑ section headed: “The Court ’ s approach”, it is correctly stated as follows:

“In this regard the Court reaffirms that in the context of alleged medical negligence, the States ’ substantive positive obligation relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulative framework compelling hospitals whether private or public, to adopt appropriate measures for the protection of patients ’ lives” (emphasis added).

In paragraph 189 of the judgment, under the same heading as the previous paragraph, the principle of the effective protection of the right to life at all stages of protection, including implementation, is even more clearly emphasised:

“It must, moreover, be emphasised that the States ’ obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.”

7. However, in paragraph 203 of the judgment, which comes under the sub-section headed: “Application of those criteria to the present case”, although a reference is made in brackets to the above-mentioned two paragraphs, it is stated as follows:

“In these circumstances Portugal ’ s substantive positive obligations are limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see paragraphs 186 and 189 above)” (emphasis added).

8. Indeed, judging not only from what is stated in paragraph 203, cited above, but also from the conclusion of the judgment, it is clear that the principle of effectiveness is applied by the majority, if at all, only partially. Ultimately, the majority limit this principle to the setting-up of an adequate regulatory framework – which eventually turned out not to be adequate – while overlooking and not applying what they have accepted in principle, namely that there must also be effective implementation of this framework.

9. As is clear from the case-law of the Court, a State is required to take appropriate steps to protect life (see, inter alia , L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). As pertinently held in the case of Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 48, ECHR 2002 ‑ I), a State “ ... must take appropriate steps to safeguard the lives of those within its jurisdiction ... ” A State will not only be held to account for the intentional and unlawful taking of life, protected under Article 2 § 1 of the Convention, but will also be held to account for its omissions that result in putting the patient at risk. In Karpylenko v. Ukraine (no. 15509/12, § 81, 11 February 2016), the Court held as follows with regard to how it is established whether or not the respondent State has complied with its obligation to protect life under Article 2 of the Convention:

“Turning to the present case, the Court notes that the applicant ’ s son died on 7 November 2011 of a number of HIV-related illnesses, while in custody and having been under the authorities ’ control since 26 December 2009. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome. Whether or not the authorities ’ efforts could in principle have averted it is not decisive when examining the discharge by the State of its positive obligation to protect the applicant ’ s son ’ s health and life ... ”

10. In Powell v. the United Kingdom (( dec. ), no. 45305/99, § 1, ECHR 2000-V), the Court held that although a State must make “adequate provision for securing high professional standards among health professionals ... [the Court] cannot accept that matters such as error of judgment on the part of health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account ...” Nevertheless, in a very recent case, namely Elena Cojocaru v. Romania (no. 74 1 14/12, §§ 108, 111 and 125, 22 March 2016), the Court took a different stance. In that case, the Court found the respondent State liable under Article 2 when the applicant ’ s daughter, who was suffering from a serious pre-natal condition, died after a doctor at the public hospital refused to perform an emergency C-section and she was transferred to another hospital, 159 km away, without medical supervision. It should be noted that the newborn baby died two days later. The Court held that the circumstances of the case, and in particular the apparent lack of coordination of the medical services and the delay in administering the appropriate emergency treatment, constituted a failure to provide adequate emergency treatment because, irrespective of the reason, the patient ’ s transfer had delayed the emergency treatment she needed. Also, in Mehmet Åžentürk and Bekir Åžentürk v. Turkey (no. 13423/09, § 97, ECHR 2013), the Court found the respondent State liable under Article 2 of the Convention when a woman died after medical staff in a State hospital refused her treatment in an emergency, life ‑ threatening situation because she could not pay a deposit in advance for the operation.

11. Although not related to a health-care situation, in another case, namely Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004 ‑ XII), as well as in many further cases, the Court held that “this obligation [to take appropriate steps to safeguard the lives of those within the State ’ s jurisdiction] must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake” (§ 71). Similarly, in cases that involve the actions of third parties, the test that ought to be applied is that it must be established that the “authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see Osman v the United Kingdom , 28 October 1998, § 116, Reports 1998 ‑ VIII).

12. The majority argue that for a denial of access to life-saving emergency treatment to be established “the dysfunction at issue must be ... genuinely identifiable as systemic or structural in order to be attributable to the State authorities” (see paragraph 195 of the judgment). I do not support this view, because in no situation, other than health-care situations, in which there is a serious risk threatening life and which triggers a substantive positive obligation on the part of the State to protect life, does the Court ’ s case-law require a systemic problem as a precondition for a possible violation of Article 2 of the Convention. Besides, with due respect, what is said in the above-mentioned paragraph 195 of the judgment does not seem to be quite in line with what is said in paragraphs 191-192, where a systemic or structural dysfunction in hospital services is considered to be one of the two exceptional circumstances in the field of health care which may engage the responsibility of the State and which do not have to apply cumulatively.

13. One should not distinguish health-care situations from other situations which trigger the substantive positive obligation of a State to protect the lives of individuals, since the crux of the matter should be the protection of life and not the situation from which the risk to life arises. In any event, if one were to make some distinction between different risks one could say that people whose life is threatened by health problems are in a more vulnerable situation than people whose life is threatened by risks whose existence is unknown to them. This is an additional argument as to why the positive obligation of the State to protect life should not depend on whether there is a systemic dysfunction in hospital services.

14. The principle enunciated in the Powell decision, cited above, according to which negligent coordination among health-care professionals in the treatment of a particular patient cannot be considered sufficient of itself to call a Contracting State to account, seems no longer to be followed by the recent case-law of the Court. In any event, one should make the following observations regarding Powell . Firstly, it was a decision on admissibility and not a judgment, unlike the other cases cited above. Secondly, it did not concern a lack of cooperation between a medical department and the emergency department, unlike in the present case. Thirdly, it would go against the essence of the right of life, the principle of effectiveness and the scope of the Convention, to exclude from any risk threatening life those risks arising from negligent coordination among health-care professionals. When health is in the hands of doctors, human life and human integrity must be secured without any excuse based on a lack of cooperation between medical departments. Fourthly, it should not be an onerous and excessive duty for the different medical departments to cooperate, especially when one of them is the emergency department. On the contrary, it should be the duty of all doctors to exercise their profession according to the Hippocratic oath and of all medical departments to cooperate to protect life.

15. Unfortunately, the Grand Chamber has missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.

16. In view of the above, I conclude that in the present case there has been a violation of the substantive limb of Article 2 of the Convention.

17. My conclusion set out above would have led me to award the applicant an amount in respect of non-pecuniary damage for the violation of the substantive limb of Article 2 of the Convention. However, as I was in the minority the estimation of that amou nt would be purely theoretical.

[1] . In this opinion, the expression health care is understood as in paragraph 24 of the E xplanatory R eport to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine , ETS No . 164 (the Oviedo Convention). Article 10 of the (revised) European Code of Social Security, 1990, ETS N o. 139, further classifies medical care as including general practitioners and specialist care , pharmaceutical , dental and hospital care , medical rehabilitation and medical transportation.

[2] . Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19 -22 July , 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) , entry into force 7 April 1948.

[3] . “ Magna Carta of health ” , 36 American Journal of Public Health (1946), p. 1041.

[4] . Allen, “ World Health and World Politics ” , 4 International Organization (1950), p. 30.

[5] . On health as a global issue and global health law, see Meier and Onzivu , “ The evolution of human rights in World Health Organization policy and the future of human rights through global health governance ” ,  128 Public Health (2014), 179 - 187; Meier, “ Global health governance and the contentious politics of human rights: mainstreaming the right to health for public health advancement ” , 46 Stanford Journal of International Law (2010), 1 ‑ 50; Meier, “ The World Health Organization, the Evolution of Human Rights, and the Failure to Achieve Health for All ” , in Harrington and Stuttaford ( eds ), Global Health and Human Rights: Legal and Philosophical Perspectives , New York: Routledge , 2010, 168 ‑ 189; Gruskin et al . , “ History, Principles, and Practice of Health and Human Rights ” , 370 Lancet (2007), 449-455; Gostin and Taylor, “ Global Health Law: A Definition and Grand Challenges ” , 1 Public Health Ethics (2008), 53-63; Szlezák et al., “ The Global Health System: Actors, Norms, and Expectations in Transition ” , 7 PLOS Medicine (2010); Lee, Globalization and health: an introduction , Palgrave : Macmillan , 2003.

[6] . Some of these standards have been converted into treaty law by the Int ernational Labour Organisation (ILO), for example in its Conventions No. 155 on Occupational Safety and Health, 1981; No. 161 on O ccupational H ealth S ervices , 1985 ; No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989 ; and No. 182 on the W orst F orms of C hild L abour , 1999 .

[7] . Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965; entry into force 4 January 1969, in accordance with Article 19.

[8] . This opinion does not take in account the international instruments for health protection in armed conflicts.

[9] . Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27.

[10] . On health care as a human rights issue, see Tobin, The Right to Health in International Law , Oxford: Oxford University Press, 2012; San Giorgi , The Human Right to Equal Access to Health Care , Cambridge : Intersentia , 2012; Meier et al., “ Conceptualizing a Human Right to Prevention in Global HIV/AIDS Policy ” , Public Health Ethics (2012) 263 ‑ 282 ; Hessler and Buchanan, “ Specifying the content of the Human Right to Health Care ” , in Buchanan (ed.), Justice and Health Care: Selected Essays , Oxford: Oxford U niversity P ress, 2009 ; Yamin , “ Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We Should Care ” , 10 Health & Human Rights (2008), 45-63; Riedel, “ The International Protection of the Right to Health ” , in Rüdiger Wolfrum et al. (eds.) , Max Planck Encyclopedia of Public International Law , Oxford: Oxford University Press , 2008 , vol. IV, 764-776 ; London, “ What Is a Human-Rights Based Approach to Health and Does It Matter? ” , in 10 Health & Human Rights (2008) (1), 65-80; Meier and Mori, “ The Highest Attainable Standard: Advancing a Collective Human Right to Public Health ” , 37 Columbia Human Rights Law Revue , 101 (2005), 101-147; Yamin , “ The Right to Health Under International Law and Its Relevance to the United States ” , 95 American Journal of Public Health (2005), 1156–1161; Gruskin and Tarantola , “ Health and Human Rights ” , in Detels et al . ( eds ), Oxford Textbook of Public Health 311 (2015); Oppenheimer et al., “ Health and Human Rights: Old Wine in New Bottles ” , 30 Journal of Law Medicine & Ethics (2002), 522-532; Kinney, “ The International Human Right to Health: What Does This Mean for Our Nation and World? ” , 34 Indiana Law Revue (2001), 1457-1475; Farmer, “ Pathologies of Power: Rethinking Health and Human Rights ” , 89 American Journal of Public Health (1999), 1486–1496; Mann et al . ( eds ), Health and Human Rights: A Reader , London: Routledge , 1999; Toebes , The Right to Health as a Human Right in International Law , Antwerp: Intersentia , 1999; and Mann, “ Health and Human Rights: If Not Now, When? ” , 2 Health & Human Rights (1997), 113-120.

[11] . CESCR, General Comment No. 14: The right to the highest attainable standard of health (Article 12) , 11 August 2000, para graph 1. On the standard-setting work of the CESCR in the field of the right to health, see Saul et al . , The International Covenant on Economic, Social and Cultural Rights Commentary, Cases and Materials , Oxford: Oxford University Press, 2012, 1025-1029; and Riedel, “ New Bearings to the State Reporting Procedure: Practical Ways to Operationalize Economic, Social and Cultural Rights – the Example of the Right to Health ” , in von Schorlemer (ed.), Praxishandbuch UNO , Berlin: Springer, 2003, 345 - 358.

[12] . CESCR, General Comment No. 14, cited above, para graph 9.

[13] . CESCR requires that facilities, services and goods , as well as the underlying determinants of health such as safe and potable drinking water, adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel and essential drugs, be available in sufficient quantity. See examples of the CESCR practice in Tobin, cited above, p. 161.

[14] . Accessibility means that facilities, services and goods and health-related information have to be physically and economically accessible without discrimination, especially to vulnerable or marginali s ed populations. See examples of the CESCR practice in Tobin, cited above, 168-172.

[15] . CESCR opines that facilities, services and goods must respect medical ethics, respect confidentiality and improve the health status of those concerned.

[16] . Quality requires facilities, services and goods to be scientifically and medically appropriate and of good quality which, according to the Committee, requires, inter alia , skilled health - care staff, scientifically approved and unexpired drugs and equipment, safe and potable water and adequate sanitation.

[17] . CESCR, General Comment No. 14, cited above, para graph 43. See also in the literature, Young, “The minimum core of economic and social rights: a concept in search of content” , in 33 Yale Journal of International Law (2008), 113 - 175; Riedel, “ The Human Right to Health: Conceptual Foundations ” , in Clapham et al . ( eds ), Realizing the Right to Health , Zürich: Rüffer und Rub, 2009, 21-39; Forman et al. “Conceptualizing minimum core obligations under the right to health: How should we define and implement the ‘morality of the depths’?”, 20 International Journal of Human Rights (2016), 531–548; Forman et al . , “What do core obligations under the right to health bring to universal health coverage?”, 18 Health and Human Rights Journal (2016), 23-34 ; and Forman, “ Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cu ltural Rights?”, Ottawa Law Review , Vol. 47, N o. 2, 2016, 557-573 . The word “ core ” is used in these texts interchangeably with the words “ essence ” or “ substance ” .

[18] . See Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 22 ‑ 26 January 1997, para graph 9.

[19] . General Comment No. 14, cited above, para graph 47.

[20] . General Comment No. 14, cited above, para graph s 9 and 12.

[21] . See “The Use of Essential Drugs: Ninth Report of the WHO Expert Committee”, 2000. Although the WHO stresses that exactly which drugs are regarded as essential remains a national responsibility, it defines a Model List of Essential Drugs. See also CESCR, Concluding Observations on Angola, E/C.12/AGO/CO/3, para graph 37, Kenya , E/C.12/KEN/CO/1, para graph 32, and Tajikistan , E/C.12/TJK/CO/1, para graph 70; Human Rights Council of the United Nations, “ Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health ” , 11 June 20 13, A/HRC/23/L.10/Rev. l ; and Commission on Human Rights, Resolution 2003/29, “ Access to medications in the context of pandemics such as HIV / AIDS, tuberculosis and malaria ” , 22 April 2003. In the literature, see Yamin , “ Not Just a Tragedy: Access to Medications as a Right Under International Law ” , 21 Boston University International Law Journal (2003), 302-371; Joseph, “ Pharmaceutical Corporations and Access t o Drugs: The ‘ Fourth Wave ’ of Corporate Human Rights Scrutiny ” , 25 (2) Human Rights Quarterly (2003), 425-452; Rubenstein, “ Human Rights and Fair Access to Medication ” , 17 Emory International Law Review (2003) 525; Marks, “ Access to essential medicines as a component of the right to health ” , in Clapham et al . ( eds ), Realizing the Right to Health , cited above, 82-101; Perehudoff , Health, Essential Medicines, Human Rights & National Constitutions , Vrije Universiteit Amsterdam, 2008; Hogerzeil and Mirza , The World Medicines Situation 2011: Access to Essential Medicines as Part of the Right to Health , WHO/EMP/MIE/2011.2.10; and Saul et al . , The International Covenant on Economic, Social and Cultural Rights : Commentary, Cases and Materials , cited above, p. 1018.

[22] . The Declaration adopted at the International Conference on Primary Health Care, Alma ‑ Ata, 1978, highlight ed the central function played by primary health care in a country’s health system ( Article VI). By including the provision of essential drugs as one of the eight listed components of primary health care (Article VII.3), the Declaration established the link between the goal of the highest possible level of health and access to essential medicines.

[23] . General Comment No. 14, cited above, para graph 42.

[24] . Human Rights Committee, General Comment 6 , Article 6 (Sixteenth session, 1982), HRI/GEN/1/Rev.1 at 6 (1994), paragraph 5. See also Commission on Human Rights Resolutions 2002/31 and 2003/28 on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

[25] . For example, on lack of access to antiretroviral medication, see Concluding Observations on Uganda (2004), CCPR/CO/80/UGA, para graph 14; and on Kenya (2005), CCPR/CO/83/KEN, para graph 15.

[26] . Office of the United Nations High Commissioner for Human Rights, The right to health, Fact sheet no. 31, 2008, page 5.

[27] . See the site of the Special Rapporteur (consulted on 30 October 2017) and Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/H RC/4/28, 17 January 2007, paragraph 63 . In the same vein, see other more recent Reports, such as A/72/137, 14 July 2017, para graph 24, and A/71/304, 5 August 2016, para graph 27. Regarding access to essential drugs, see in particular the r eports on access to medicines, 1 May 2013, A/HRC/23/42; g uidelines for pharmaceutical companies, 11 August 200 8 , A/63/263; t he responsibilities of pharmaceutical companies, 13 September 2006, A/61/338; and i ntellectual property and access to medicines, E/CN.4/2004/49/Add.1.

[28] . Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979; entry into force 3 September 1981, in accordance with article 27(1). See also A rt icles 11 (1) (f), and 14 (2) (b) of the CEDAW.

[29] . See especially the Committee on the Elimination of Discrimination against Women General Recommendation No. 24 on women and health, 1999, A/54/38/Rev.1, para graph s 14 and 17; and Freeman et al . , The UN Convention on the Elimination of All Forms of Discrimination against Women, A Commentary , Oxford: Oxford University Press, 2012, 329-332.

[30] . CEDAW, Alyne da Silva Pimentel v. Brazil , 10 August 2011, CEDAW/C/49/D/17/2008 , paragraph 7.5.

[31] . Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; entry into force 2 September 1990, in accordance with article 49.

[32] . Articles 3 (3), 17, 23, 25, 32 and 28 contain protections for especially vulnerable groups of children.

[33] . Committee on the Rights of the Child, General Comment No. 15, The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art. 24), 17 April 2013, CRC/C/GC/15, para graph 73. See also its General Comment N o. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/2003/4.

[34] . Committee on the Rights of the Child report on the Forty-Sixth session, CRC/C/46/3 , 22 April 2008, chapter VII, para graph 89.

[35] . Adopted on 22 March 1989 by the Conference of Plenipotentiaries in Basel, Switzerland ; entered into force in 1992.

[36] . Adopted by General Assembly resolution 45/158 of 18 December 1990 ; entered into force on 1 July 2003 . See also Articles 43 (e) and 45 (c).

[37] . Adopted on 13 December 2006; entered into force on 3 May 2008. See also Declaration on the Rights of Disabled Persons (1975); Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare (1991); Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993); and the CESCR General Comment No. 5 on persons with disabilities, 9 December 1994, E/1995/22.

[38] . On the right to health care of this group, see Perlin , “ International Human Rights Law and Comparative Mental Disability Law: The Universal Factors ” , 34 Syracuse Journal of International Law & Commerce (2006 ‐ 2007), 333-357; Gable and Gostin , “ Mental Health as a Human Right ” , in Clapham et al . ( eds ), Realizing the right to health , cited above, III, 249-261; Mégret , “ The Disabilities Convention: Human Rights of Persons With Disabilities or Disability Rights? ” , 30 Human Rights Quarterly (2008), 494-516; Gostin and Gable, “ The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health ” , 63 Maryland Law Revue (2004), 20-121.

[39] . Committee on the Rights of Persons with Disabilities, Communication No. 3/2011, CRPD/C/7/D/3/2011, 21 May 2012, para graph 8.8.

[40] . Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.

[41] . Inter-American Commission, Jorge Odir Miranda Cortez et al. v. El Salvador , Report No. 29/11, Case 12.249, admissibility decision, 7 March 2001.

[42] . Inter-American Court, Case of Albán Cornejo et al v. Ecuador (Merits, Reparations and Costs), Judgment of 22 November 2007, Series C No. 171.

[43] . Ibid . , § 119.

[44] . Inter-American Court, Case of the Xákmok Kásek Indigenous Community v. Paraguay (Merits, Reparations, and Costs), Judgment of 24 August 2010.

[45] . Ibid . , §§ 231-234.

[46] . Inter-American Court, Case of Suarez Peralta v. Ecuador (Preliminary Objections, Merits, Reparations and Costs) , Judgment of 21 May 2013.

[47] . Ibid . , §§ 152 and 153.

[48] . Inter-American Court, Case of Gonzales Lluy et al v. Ecuador (Preliminary Objections, Merits, Reparations and Costs), Judgment of 1 September 2015.

[49] . Ibid . , §§ 194 and 197.

[50] . Ibid . , § 189.

[51] . Adopted in San Salvador on 17 November 1988 ; entered into force on 16 November 1999 .

[52] . Jorge Odir Miranda Cortez v. El Salvador , cited above , § 47.

[53] . Concluded at Nairobi on 27 June 1981. See also Article 14 of the African Charter on the rights and welfare of the child.

[54] . Adopted by the Organisation of African Unity in 1990 ; entered into force in 1999.

[55] . Free legal assistance Group et al v. Zaire , Communication No. 25/89, 47/90, 56/91, 100/93. See also SERAC and CESR v. Nigeria , Communication No. 155/96, Fifteenth Annual Activity Report 2001-2002, annex V, and Purohit and Moore v. the Gambia , Communication No. 241/2001, Sixteenth Activity Report 2002-2003, annex VII.

[56] . Mc H ale, “ Fundamental rights and health care ” , in Mossialos et al . , Health Systems Governance in Europe – The Role of European Union Law and Policy , Cambridge: Cambridge University Press, 2010, 282-314.

[57] . Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.

[58] . Council Recommendation (2009 / C 151/01) of 9 June 2009 on patient safety, including the prevention and control of healthcare associated infections.

[59] . European Parliament resolution of 22 October 2013 on the report from the Commission to the Council on the basis of Member States’ reports on the implementation of the Council Recommendation (2009/C 151/01) on patient safety, including the prevention and control of healthcare associated infections (2013/2022(INI)).

[60] . Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and repealing Decision No 2119/98/EC of the European Parliament and of the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community.

[61] . Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare.

[62] . Digest of the case - law of the European Committee of Social Rights, 2008, pp. 81-89.

[63] . See for example European Roma and Travelers Forum (ERTF) v. the Czech Republic , collective complaint N o. 104/2014, on inadequate access to health care by the Roma; Conference of European Churches (CEC) v. the Netherlands , collective complaint No. 90/2013, 10 November 2014, on the need to provide all persons staying in the Netherlands in an irregular manner with necessary medical care; Defence for Children International (DCI) v . Belgium , collective complaint No. 69/2011, 23 October 2012, on ill ‑ health among accompanied foreign minors; European Roma Rights Centre (ERRC) v Bulgaria , collective complaint No. 46/2007, 3 December 2008, on the problems encountered by many Roma in accessing health - care services; and International Federation of Human Rights League (FIDH) v. France , collective complaint no. 14/2003, 3 November 2004, on denial of immediate medical assistance to children of illegal immigrants.

[64] . European Roma Rights Centre (ERRC), cited above, para graph 44.

[65] . WHO, Health and human rights, Fact sheet N o. 323, December 2015. See also Potts, Accountability and the Right to the Highest Attainable Standard of Health , Open Society Institute, Public Health Programme , University of Essex, Human Rights Centre, 2008.

[66] . Riedel, “ The Human Right to Health ” , cited above, 32.

[67] . Among those a rguing that there is growing recognition of a right to health in constitutional law, see den Exter , “ The right to health care under European law ” , Diametros 51 (2017): 173–195; Saul et al . , The International Covenant on Economic, Social and Cultural Rights : Commentary, Cases and Materials , cited above, 1061-1070; Tobin, cited above, 202-208; Perehudoff , Health, Essential Medicines, Human Rights & National Constitutions , cited above; and Kinney and Clark, “ Provisions for Health and Health Care in the Constitutions of the Countries of the World ” , 37 Cornell International Law Journal (2004), 285-305.

[68] . CESCR, General Comment No. 3, The Nature of States Parties ’ Obligations ( A rt. 2, par. 1 of the Covenant ) UN Doc. E/1991/23, 1990, para graph 10, and CESCR, An e valuation of the Obligation to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant, 10 May 2007, UN Doc. E/C . 12/2007/1, para graph 6. But I do not share the view that this core obligation sh ould be confined to a weak, rebuttable presumption, dependent on State discretion over scarce resources.

[69] . See , for example , the CRC Report on Belarus, CRC/C/15/Add.17, para graph 14.

[70] . Case of Albán Cornejo et al. v. Ecuador , cited above, § 117 ; Case of Suárez Peralta v. Ecuador , cited above, § 130 ; and Case of Llyu et al. v. Ecuador , cited above, § 171.

[71] . Airey v. Ireland , 9 October 1979 , § 26 , Series A no. 32 ; Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru (Preliminary objection, Merits, Reparations and Costs) , Judgment of July 1, 2009 , Series C No. 198, § 101; Case of Suárez Peralta v. Ecuador , cited above, § 131 ; Case of Llyu et al. v. Ecuador , cited above, § 172 ; and CESCR, General comment No. 9: The domestic application of the Covenant, E/C.12/1998/24, 3 December 1998, para graph 10.

[72] . Vasileva v. Bulgaria, no. 23796/10 , § 63, 17 March 2016 and the cases cited therein.

[73] . L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Jasińska v. Poland , no. 28326/05, § 57, 1 June 2010.

[74] . Vo v. France [ GC ] , no. 53924/00, § 89, ECHR 2004 ‑ VIII , and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [ GC ] , no. 47848/08, § 130, ECHR 2014 .

[75] . Kalashnikov v. Russia , no. 47095/99, §§ 95 and 100, ECHR 2002-VI; Khudobin v. Russia , no. 59696/00, § 96, ECHR 2006-XII (extracts); Naumenko v. Ukraine , no. 42023/98, § 112, 10 February 2004; Dzieciak v. Poland , no. 77766/01, § 91, 9 December 2008; and Karpylenko v. Ukraine , no. 15509/12, § 79, 11 February 2016.

[76] . Taïs v. France , no. 39922/03, § 98, 1 June 2006; Huylu v. Turkey , no. 52955/99, § 58, 16 November 2006; and Jasinskis v. Latvia , no. 45744/08, § 60, 21 December 2010.

[77] . For example, Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe to the member States concerning the ethical and organisational aspects of health care in prison, and Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules. Noting the “importance” of these recommendations, see for example Murray v. the Netherlands [ GC ] , no. 10511/10, § 66, ECHR 2016 , and Sławomir Musiał v. Poland , no. 28300/06, §§ 6 2, 63, and 96, 20 January 2009 .

[78] . Hiller v. Austria , no. 1967/14, § 37, 22 November 2016.

[79] . Kozhokar v. Russia , no. 33099/08, § § 77-79 and 108, 16 December 2010 , and Fedosejevs v. Latvia ( dec. ) , no. 37546/06, §§ 60-61 and 73-75, 19 November 2013.

[80] . Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, 29 November 2007; Ukhan v. Ukraine , no. 30628/02, 18 December 2008; Petukhov v. Ukraine , no. 43374/02, 21 October 2010; and Sergey Antonov v. Ukraine , no. 40512/13, §§ 72-74, 22 October 2015.

[81] . Hummatov , cited above, § 116.

[82] . Khudobin , cited above, § 83.

[83] . Melnik v. Ukraine , no. 72286/01, §§ 104-106, 28 March 2006 , and Hummatov , cited above, § 115.

[84] . Popov v. Russia , no. 26853/04, § 211, 13 July 2006, and Hummatov , cited above, §§ 109 and 114.

[85] . Holomiov v. Moldova , no. 30649/05, § 117, 7 November 2006, and Hummatov , cited above, § 116.

[86] . Goginashvili v. Georgia , no. 47729/08, § 71, 4 October 2011, and Jashi v. Georgia , no. 10799/06, 8 January 2013.

[87] . Mustafayev v. Azerbaijan , no. 47095/09, 4 May 2017. The situation was compared to Anguelova v. Bulgaria , no. 38361/97, §§ 127-130, ECHR 2002 ‑ IV; Taïs , cited above, §§ 99-102; Huylu , cited above, §§ 61-68; and Jasinskis , cited above, §§ 62-67.

[88] . Ibid . , § 65.

[89] . Mirilashivili v. Russia ( dec. ) , no. 6293/04, 10 July 2007, and Blokhin v. Russia [ GC ] , no. 47152/06, § 137, ECHR 2016.

[90] . Grishin v. Russia , no. 30983/02, § 76, 15 November 2007.

[91] . Makharadze and Sikharulidze v. Georgia , no. 35254/07, § 80, 22 November 2011; Pitalev v. Russia , no. 34393/03, § 57, 30 July 2009; and Mirilashvili , cited above .

[92] . Makharadze and Sikharulidze , cited above , § 90 .

[93] . Aleksanyan v. Russia, no. 46468/06, §§ 155-157, 22 December 2008, and Akhmetov v. Russia , no. 37463/04, § 81, 1 April 2010.

[94] . Amirov v. Russia , no . 51857/13, § 118, 27 November 2014.

[95] . Oyal v. Turkey , no. 4864/05, 23 March 2010.

[96] . Dybeku v. Albania , no . 41153/06, § 64, 18 December 2007.

[97] . Farbtuhs v. Latvia , no. 4672/02, § 57, 2 December 2004 , and Khudobin , cited above, § 84.

[98] . Kats and Others v. Ukraine , no. 29971/04, § 104, 18 December 2008.

[99] . Malenko v. Ukraine , no. 18660/03, §§ 55-58, 19 February 2009; Ashot Harutyunyan v. Armenia , no. 34334/04, § 112, 15 June 2010 ; Irakli Mindadze v. Georgia , no. 17012/09, § 47, 11 December 2012 ; and, a contrario , Goginashvili , cited above, § 72.

[100] . Mathew v. the Netherlands , no. 24919/03, § 186, ECHR 2005 -IX .

[101] . Knyazev v. Russia , no. 25948/05, § 103, 8 November 2007.

[102] . Rozhkov v. Russia , no. 64140/00, § 104, 19 July 2007.

[103] . Compare with Sarban v. Moldova , no. 3456/05, § 79, 4 October 2005, and Popov , cited above , § 211.

[104] . Kats and Others , cited above, § 104.

[105] . Jasinskis , cited above, § 59 ; Price v. the United Kingdom , no. 33394/96, § 30, ECHR 2001-VII ; Farbtuhs , cited above , § 56 ; and the international law sources mentioned in paragraphs 39 to 41 above.

[106] . See , mutatis mutandis , Keenan v. the United Kingdom , no. 27229/95, § 111 , ECHR 2001 - III; Rivière v. France , no. 33834/03, § 63, 11 July 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above, § 131.

[107] . Sławomir Musiał , cited above, § 96.

[108] . Beker v. Turkey , no. 27866/03, §§ 41-43, 24 March 2009.

[109] . Metin Gültekin and Others v. Turkey , no. 17081/06, § 48, 6 October 2015.

[110] . Ibid .

[111] . İ lbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , no. 19986/06, § 35, 10 April 2012.

[112] . Iliya Petrov v. Bulgaria , no. 19202/03, §§ 62 and 63, 24 April 2012.

[113] . But , differently , Fedina v . Ukraine , no . 17185/02, § 54, 2 September 2010.

[114] . Oruk v. Turkey , no. 33647/04, § 64, 4 February 2014.

[115] . Ibid . , § 65 (“ connaissance précise des risques réels ”).

[116] . CevrioÄŸlu v. Turkey , no. 69546/12, 4 October 2016.

[117] . Nencheva and Others v. Bulgaria , no. 48609/06, 18 June 2013.

[118] . Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above.

[119] . Arcila Henao v. the Netherlands ( dec. ) , no. 13669/03, 24 June 2003 ; Karagoz v. France ( dec. ) , no. 47531/99, 15 November 2001 ; Ndangoya v. Sweden ( dec . ) , no. 17868/03, 22 June 2004 ; and Salkic and Others v. Sweden ( dec. ) , no. 7702/04, 29 June 2004.

[120] . D. v. the United Kingdom , 2 May 1997 , Reports 1997 ‑ III .

[121] . N. v. the United Kingdom [ GC ] , no. 26565/05, ECHR 2008. See my separate opinion on this case-law, joined to S . J . v. Belgium [ GC ] , no. 70055/10, 19 March 2015.

[122] . Bensaid v. the United Kingdom , no. 44599/98, Reports 2001-1 .

[123] . Hatton an d Others v. the United Kingdom [ GC ] , no. 36022/97, § 96, ECHR 2003-VIII.

[124] . López Ostra v. Spain , 9 December 1994, § 51 , Series A no. 303-C.

[125] . Guerra and Others v. Italy , 19 February 1998, § 57, Reports 1998-I.

[126] . Tătar v. Romania, no . 67021/01, 27 January 2009 .

[127] . Öneryıldız v. Turkey [ GC ] , no . 48939/99, § 93, ECHR 2004 - XII.

[128] . Ibid . , § 107 .

[129] . Ibid . , §§ 90 and 160. See also Giacomelli v. Italy , no. 59909/00, ECHR 2006 -XII .

[130] . See also Flamenbaum and Others v. France , no. 3675/04 and 23264/04, 13 December 2012 ; Deés v. Hungary , no. 2345/06, 9 November 2010 ; Grimovskaya v. Ukraine , no. 38182/03, 21 July 2011 ; and Bor v. Hungary , no. 50474/08, 18 June 2013.

[131] . Budayeva and Others v. Russia , nos. 15339/02 and 4 others , § 146, ECHR 2008 (extracts).

[132] . Kolyadenko and Others v. Russia , nos. 17423/05 and 5 others , 28 February 2012.

[133] . Georgel and Georgeta Stoicescu v. Romania , no. 9718/03, 26 July 2011 .

[134] . L.C.B. v. the United Kingdom , cited above , § 36, and Keenan , cited above, § 89.

[135] . Roche v. the United Kingdom [ GC ] , no. 32555/96, ECHR 2005 -X .

[136] . BiniÅŸan v. Romania , no. 39438/05, 20 May 2014.

[137] . Ibid . , § 90.

[138] . Brincat and Others v. Malta , nos. 60908/11 and 4 others , 24 July 2014.

[139] . Bone v. France ( dec. ) , no 69869/01, 1 March 2005 ; Kalender v. Turkey , no. 4314/02, § 49, 15 December 2009 ; Fedina , cited above , § 65 ; and Gökdemir v. Turkey ( dec. ) , no. 66309/09, 19 May 2015.

[140] . Prilutskiy v. Ukraine , no. 40429/08, § 32-35, 26 February 2015. The Court is very reluctant to criticise States under the substantive limb of Article 2 in case s involving the victims of sports accidents ( Furdík v. Slovakia ( dec. ) , no. 42994/05, 2 December 2008 ; Molie v. Romania ( dec. ) , no. 13754/02, 1 September 2009 ; Vrábel v. Slova k ia ( dec . ) , no. 77928/01, 19 January 2010 ; Koceski v. the Former Republic of Macedonia ( dec. ) , no . 41107/07, 22 October 2013 ; and Cavit Tınarlıoğlu v. Turkey , no. 3648/04, §§ 104 - 06, 2 February 2016), of accidents on board boats ( Leray and Others v. France ( dec. ) , no . 44617/98, 16 January 2001) or trains ( Bone , cited above ) , or of road - traffic accidents ( Zavoloka v. Latvia , no . 58447/00, § 39, 7 July 2009).

[141] . Kalender , cited above, §§ 4 1 and 4 7.

[142] . Erikson v. Italy ( dec. ) , no. 37900/97, 26 October 1999.

[143] . The Erikson case - law was first confirmed by Powell v. the United Kingdom ( dec. ) , no. 45305/99, ECHR 2000 - V, and later on by Calvelli and Ciglio v. Italy [GC] , no. 32967/96, § 48 , ECHR 2002 - I.

[144] . Dodov v. Bulgaria , no. 59548/00, §§ 70, 79-83 and 87, 17 January 2008.

[145] . See, in particular, Calvelli and Ciglio , cited above, § 49, and Powell , cited above.

[146] . Spyra and Kranczkowski v. Poland , no. 19764/07, § 82, 25 September 2012.

[147] . Nitecki v. Poland ( dec. ) , no. 65653/01, 21 March 2002.

[148] . Sentges v. the Netherlands ( dec. ) , no. 27677/02 , 8 July 2003 .

[149] . Pentiacova and 48 Others v. Moldova ( dec. ) , no. 14462/03, 4 January 2005.

[150] . Gheorghe v. Romania ( dec. ), no. 19215/04, 22 September 2005.

[151] . Hristozov and Others v. Bulgaria , nos. 47039/11 and 358/12, ECHR 2012 (extracts).

[152] . Oyal , cited above.

[153] . Cyprus v. Turkey [ GC ] , no. 25781/94, ECHR 2001 - IV.

[154] . Mehmet Şentürk and Bekir Şentürk v. Turkey , no. 13423/09, ECHR 2013.

[155] . Ibid . , § 96.

[156] . Asiye Genç v. Turkey , no. 24109/07, 27 January 2015.

[157] . Ibid . , § 82. Hence, paragraph 181 of the present judgment is not correct, because the Court never said that there “had been a refusal”.

[158] . AydoÄŸdu v. Turkey , no. 40448/06, 30 August 2016.

[159] . Aydoğdu , cited above, § 87.

[160] . Osman v the United Kingdom , 28 October 1998, § 115, Reports 1998-VIII.

[161] . Mehmet Şentürk and Bekir Şentürk , cited above, § 89; Asiye Genç , cited above, § 75; and Aydoğdu , cited above, § 77 . Note that these cases extend the notion of risk to life to include risk to physical integrity.

[162] . Mehmet Şentürk and Bekir Şentürk , cited above, § 96 , and Aydoğdu , cited above, § 83.

[163] . Aydoğdu , cited above, § 88.

[164] . Elena Cojocaru v. Romania , no. 74114/12, 22 March 2016.

[165] . Ibid . , § 111.

[166] . Salman v. Turkey [ GC ] , no. 21986/93, § 99, ECHR 2000 ‑ VII, and Metin G ü ltekin and Others , cited above, §§ 32 and 34.

[167] . Tarariyeva v. Russia , no. 4353/03, § 87, ECHR 2006 -XV (extracts); Dzieciak , cited above, § 101 ; Pitalev , cited above, § 57; and Mirilashvili v. Russia ( dec. ) , no. 6293/04, 10 July 2007.

[168] . V.D. v. Romania , no. 7078/02, §§ 97 and 98, 16 February 2010.

[169] . Vladimir Vasilyev v. Russia , no . 28370/05, §§ 68-70, 10 January 2012.

[170] . Slyusarev v. Russia , no. 60333/00, §§ 43 and 44, 20 April 2010.

[171] . Ku p czak v. Poland , no. 2627/09, § 68, 25 January 2011.

[172] . Farbtuhs , cited above, § 60, and Semikhvostov v. Russia , no. 2689/12, 6 February 2014.

[173] . Tarariyeva , cited above, § 80.

[174] . But it does not include access to needle-exchange program me s , according to Shelley v. the United Kingdom , no. 23800/06, 4 January 2008.

[175] . Vasyukov v. Russia , no. 2974/05, §§ 75 and 76, 5 April 2011.

[176] . Dzieciak , cited above, §§ 94 and 101, and Tarariyeva , cited above, §§ 88 and 89.

[177] . Paladi v. Moldova [GC], no . 39806/05, § 68, 10 March 2009 .

[178] . See, a mong many other authorities , Eugenia Lazăr v. Romania , no. 32146/05, 16 February 2010; G.N. and Others v. Italy , no. 43134/05, 1 December 2009 ; De Santis and Olanda v. Italy ( dec. ) , no. 35887/11, 9 July 2013 ; Balci v. Turkey ( dec. ) , no. 58194/10, 20 October 2015 ; and Sayan v. Turkey , no. 81277/12, § 112, 11 October 2016.

[179] . Both cited above.

[180] . Makharadze and Sikharulidze , cited above, §§ 78-81.

[181] . Tătar , cited above, §§ 104-107.

[182] . Brincat and Others , cited above, § 106. See , for other examples, Metin G ü ltekin and Others , cited above, §§ 43-45 ; Cevrio ğ lu , cited above, § 65 ; Bini ş an , cited above, §§ 80, 81, 88 and 89 ; and İ lbeyi Kemalo ğ lu and Meriye Kemalo ğ lu , cited above, §§ 20, 21 and 41.

[183] . Dodov , cited above, § 70.

[184] . Kalender , cited above, §§ 43-47 .

[185] . Brincat and Others , cited above, and Lovyginy v. Ukraine , no. 2232 3 /08, 23 June 2016.

[186] . Cited above, §§ 90 and 160.

[187] . Cited above, § 133.

[188] . Cited above, § 85.

[189] . Cited above.

[190] . Cited above.

[191] . For other examples, see Karsakova v. Russia , no. 1157/10, 27 November 2014 ; Mustafayev , cited above ; and Kats and Others , cited above.

[192] . Cited above.

[193] . All cited above.

[194] . For example, Arskaya v. Ukraine , no. 45076/05, § 90, 5 December 2013 ; Metin Gültekin and Others , cited above, § 36 ; Mustafayev , cited above, § 65 ; Salak h ov and Islyamova v. Ukraine , no. 28005/08, §§ 167 and 181 , 14 March 2013 ; Tătar , cited above, §§ 96 and 97, and Brincat and Others , cited above, §§ 109-117.

[195] . Both cited above.

[196] . Poltoratskiy v. Ukraine , no. 38812/97, § 148, 29 April 2003.

[197] . All cited above.

[198] . Cited above.

[199] . Cited above.

[200] . Cited above.

[201] . Jehovah’s Witnesses of Moscow and Others v. Russia , no. 302/02, § 136, 10 June 2010 , and the cases cited in paragraph 48 of this opinion.

[202] . See Article 5 of the Oviedo Convention and its explanatory report , and the Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/64/272, 10 August 2009, on guaranteeing informed consent as fundamental to achieving the enjoyment of the right to health.

[203] . Arskaya , cited above , § 90 .

[204] . Trocellier v. France ( dec. ) , no. 75725/01, 5 October 2006 ; Codarcea v. Romania , no. 31675/04, 2 June 2009 ; and Csoma v. Romania , no. 8759/05, 15 January 2013. 

[205] . Glass v. the United Kingdom , no. 61827/00, ECHR 2004-II.

[206] . Nevmerzhitsky v. Ukraine , no. 54825/00, ECHR 2005 -II (extracts); Ciorap v. Moldova , no. 12066/02, 19 June 2007 ; and Rappaz v. Switzerland ( dec. ) , no. 73175/10, 26 March 2013.

[207] . Jalloh v. Germany [GC] , no. 54810/00, ECHR 2006 ‑ IX .

[208] . Bugomil v. Portugal , no . 35228/03, 7 October 2008.

[209] . M.A.K. and R.K. v. the United Kingdom , nos. 45901/05 and 40146/06, 23 March 2010.

[210] . V.C. v. Slovakia , no. 18968/07, ECHR 2011 (extracts) .

[211] . Konovalova v. Russia , no. 37873/04, 9 October 2014.

[212] . Evans v. the United Kingdom [ GC ] , no. 6339/05, ECHR 2007 ‑ I .

[213] . Pretty v. the United Kingdom , no. 2346/02, § 65, ECHR 2002 - III ; Koch v. Germany , no. 4 97/09, § 51, 19 July 2012; Arskaya , cited above, § 69 ; and Lambert and Others v. France [ GC ] , no. 46043/14, § 142, ECHR 2015 (extracts) .

[214] . Pretty , cited above, § 67 ; Haas v. Switzerland , no. 31322/07, § 50, ECHR 2011 ; and Lambert and Others , cited above, § 180. Note the evolution of the language: in Pretty , the Court was “not prepared to exclude”, but in Haas it was ready to include such a right under the aegis of Article 8.

[215] . Haas , cited above, § 51, and Koch , cited above, § 52.

[216] . Lambert and Others , cited above, § 178.

[217] . It is also highly debatable whether there is a Convention right of access to pre - natal screening ( see Costa and Pavan v. Italy , no. 54270/10, 28 August 2012 , and R . R . v. Poland , no. 27617/04, ECHR 2011 (extracts) ; see also my opinion joined to the Parrillo v. Italy judgment ([GC], no. 46470/11, ECHR 2015 ) ) . However, it seems clear that there is no Convention right of access to artificial insemination ( Dickson v. the United Kingdom [ GC ] , no. 44362/04, ECHR 2007 ‑ V ), abortion ( TysiÄ…c v. Poland , no. 5410/03, ECHR 2007-I; A, B and C v. Ireland [ GC ] , no. 25579/05, ECHR 2010 ; and P. and S. v. Poland , no. 57375/08, 30 October 2012), in vitro fertili s ation using donated gametes ( S . H . v. Austria [ GC ] , no. 57813/00, ECHR 2011), assisted suicide ( Pretty , cited above) or medication necessary to suicide ( Haas , cited above) , and surrogacy arrangements ( Mennesson v. France , no. 6519 2 /11, ECHR 2014 (extracts)). The Court is even ready to accept blanket prohibitions in some of these cases.

[218] . Osman , cited above, § 115, and Keenan , cited above, §§ 89 and 90.

[219] . Uçar v. Turkey , no. 52392/99, § § 85 and 86, 11 April 2006, and Renolde v. France , no. 5608/05, § § 80 and 81, ECHR 2008 (extracts).

[220] . Z an d Others v. the United Kingdom [ GC ] , no. 29392/95, § 73, ECHR 2001-V.

[221] . Although I cannot expand on the concept of “total institution” in the limited space of this opinion, it is important to note that the vulnerability of people in hospital or other health services, such as nursing homes, leprosariums and sanitariums , has been well known to sociologists, from Erving Goffman’s On the Characteristics of Total Institutions to Michel Foucault’s Discipline and Punish , since at least the early fifties of the last century. Their situation has been equated to that of people in other “total institutions” like jails, army barracks, orphanages and schools .

[222] . In my opinion joined to Valiulien Ä— v. Lithuania , no. 33234/07, 26 March 2013, I already pleaded for a review of the Osman test in domestic violence cases when the generali s ed nature of this problem is known to the authorities, as in Lithuania.

[223] . For examples of this present danger, see Cevrio ÄŸ lu , cited above, or Georgel and Georgeta Stoicescu , cited above .

[224] . Powell , cited above.

[225] . For a similar line of reasoning, see CESCR, General Comment No. 3, cited above, para graph 4.

[226] . As referred to in paragraph 69 of the Arskaya judgment, cited above. T o date, this is the sole medical negligence case where the Court has found deficiencies in the regulatory framework of a member State.

[227] . Oyal , cited above, § 76, and again in Genç , cited above, § 85.

[228] . Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above, § 132.

[229] . See my opinion joined to the Konstantin Markin v. Russia judgment ([ GC], no. 30078/06, ECHR 2012 (extracts) ) and its discussion of the German and Swiss constitutional case - law on the menschenwürdige s Existenzminimum .

[230] . See, to the same effect , Mehmet Şentürk and Bekir Şentürk , cited above , and Furd í k , cited above .

[231] . See, to the same effect , the most remarkable Oyal , cited above.

[232] . See the South Africa constitutional - law case of Minister of Health and Others v. Treatment Action Campaign and Others , Case CCT 8/02, 5 July 2002, which rejected the direct enforceability of a minimum core, but in any event found that the restrictions on nevirapine excluded those who could reasonably be included in the programme , and ordered the Government to extend availability of the medicine. As Justice Goldstone argued extra curia , this case-law should be considered as a challenge to provide more information on the concept of the minimum core and not as a definitive decision to  abandon it (Foreword to Courting Social justice, Judicial Enforcement of Social and Economic Rights in Developing World , ed. Gauri and Brinks, Cambridge: CUP, 2008, p. xii).

[233] . This also replies to the argument that judges are not competent in the sphere of medical care micro - management. This critique simply ignores the fact that civil, administrative and criminal judges are often confronted with concrete dilemma s involving the competing health -care claims of different patients , in situations where in sufficient resources are available. They determine them precisely on the basis of the proportionality test.

[234] . Slimani v. France , no. 57671/00, § 27, ECHR 2004-IX (extracts).

[235] . Salman , cited above, § 99, and Makharadze and Sikharulidze , cited above, §§ 71-72, and the cases cited therein.

[236] . Metin Gültekin and Others , cited above, § § 32 and 33 ; Beker , cited above, §§ 41 -4 3 ; and Muradyan v. Armenia , no. 11275/07 , § 133 , 24 November 2016 .

[237] . Oruk , cited above, § 67.

[238] . Dodov , cited above, § 81 ; C â mpeanu , cited above, § 130; Kats and Others , cited above, § 104; Aleksanyan , cited above, § 147; Khudobin , cited above, § 84; and Z.H. v. Hungary , no. 28973/11, §§ 31-32, 8 November 2012.

[239] . Aydoğdu , cited above, § 77.

[240] . Öneryıldız , cited above, § 93, as well as Al Fayed v. France ( dec. ) , no. 38501/02, §§ 73 ‑ 78, 27 September 2007, and Railean v. Moldova , no. 23401/04, § 28, 5 January 2010.

[241] . This argument is frequently put forward in relation to other similarly dangerous activities, such as in Oruk , cited above, § 49 ; Öneryıldız , cited above, § 93 ; Stoyanovi v. Bulgaria , no. 42980/04 , §§ 61 and 63 , 9 November 2010; and a lready in McCann and Others v. the United Kingdom , 27 September 1995, §§ 157-64 , Series A no. 324.

[242] . Öneryıldız , cited above, § 93 ; Oruk , cited above, §§ 50 and 65 ; and Mehmet Şentürk and Bekir Şentürk , cited above, § 104.

[243] . Sinim v. Turkey , no . 9441/10, § 63, 6 June 2017.

[244] . This case is remarkable because the C ourt acted as a court of firs t instance, establishing causality and mens rea on the part of the persons responsible (“ the death in the instant case resulted from the responsible parties’ voluntary and reckless disregard of their legal duties under the relevant legislation, as opposed to a simple omission or human error ”) in spite of the dismissal of the criminal case and the pending civil case.

[245] . Pereira Henriques v. Luxembourg , no . 60255/00, § 56, 9 May 2006.

[246] . See, mutatis mutandis, Tanlı v. Turkey , no. 26129/95, § 111, ECHR 2001-III.

[247] . I use these words in the same sense as the ECSR (see its Digest, cited above). Clothing an assertion as to the content of a concrete human right with the apparel of human dignity not only satisfies an ethical urge, but also accords with the nature of the core obligation actually assumed by States under the Convention, which consist s in protecting that same dignity.

[248] . See Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, cited above , para graph s 6 and 8.

[249] . Arskaya , cited above, § 69.

[250] . See paragraph 138 of the judgment.

[251] . In Vo , cited above, § 93, the Court favoured the administrative - law avenue in general, but in Calvelli and Ciglio , cited above, § 55, it considered that the “best means” of elucidating the doctor’s responsibility for the death of the applicants’ child was the civil remedy.

[252] . See the critique by the applicant in Dodov , cited above, § 76.

[253] . A similar critique has been made by both the CESCR and the CRC, which have pointed out that the respective Contracting Parties retain their international obligations in spite of privatisation of the health sector ( Tobin, cited above, 222-223).

[254] . The language used in paragraphs 194 to 196 of the judgment (“ firstly ”, “ secondly ”, “ thirdly ”) is intended to refer to cumulative conditions.

[255] . It is not the Court’s task to rule on matters lying exclusively within medical specialists’ field of expertise ( see Metin G ü ltekin and Others , cited above, § 36, and Kozhokar , cited above, § 108).

[256] . For my subsequent remarks, see among others, the working paper of the European Parliament Directorate - General for Research, Health care systems in the EU, a comparative study , Public Health and Consumer Protection Series, SACO 101 EN, 1998, pp. 105-110 ; and Pereira et al., “ Heal th C are Reform and C ost Containment in Portugal ”, in Mossailos and Le Grand, Health Care and Cost Containment in the European Union , Aldershot : Ashgate , 1999, pp. 635-660 .

[257] . See paragraph 104 of the judgment.

[258] . Resolution no. 140/98 of the Council of Ministers of 4 December 1998.

[259] . See point 14.40 of the initial application, pages 12 and 48 of the observations of 8 June 2015 and paragraph 99 of the C hamber judgment.

[260] . Paragraph 52 of the judgment.

[261] . Paragraph 53 of the judgment.

[262] . Paragraph 57 of the judgment.

[263] . Paragraph 49 of the judgment. The IGH report was final and therefore it is simply not true that “none of the judicial and disciplinary bodies” which examined the case found any fault with the medical treatment (paragraph 198 of the judgment).

[264] . See paragraph 53 of the judgment. Nonetheless, the majority wrongly argue, in paragraph 227, that there was no need for an autopsy.

[265] . See Pereira Henriques , cited above, § 57 (arguing that an autopsy can help to provide a complete and accurate record of injuries and an objective analysis of the clinical findings) .

[266] . Paragraph 53 of the judgment.

[267] . Aydoğdu , cited above, § 85 .

[268] . Compare the crucial § 81 of the Aydoğdu judgment and the r eport of April 2000 by the infectious - disease s panel of the Medical Association, cited in paragraph 53 of the judgment .

[269] . See fact NN of the Facts part of the Supreme Administrative Court judgment of 26 February 2013 . Paragraph 79 of the present judgment cites the Supreme Administrative Court’s judgment but omits this fact.

[270] . See the Facts part of the Oporto Administrative and Fiscal Court judgment of 23 January 2012 (“The perforation had occurred 24 hours before surgery”), which was upheld by the Supreme Administrative Court. The fact was cited in paragraph 76 of the present judgment, but disregarded in its Law part.

[271] . Paragraph 24 of the Chamber judgment established that the first decision to operate was taken already on 6 March 1998. Without any explanation, paragraph 25 of the present judgment omitted this fact.

[272] . See the principled formulation in Dodov , cited above, § 70.

[273] . Paragraph 237 of the judgment.