In accordance with its own rules?: The role of the European Court of Human Rights in developing the protection for seriously ill migrants under Article 3 ECHR

Sammanfattning: The thesis examines, through the use of the doctrinal research method, the role of the European Court of Human Rights in developing the scope of protection for seriously ill migrants under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, ETS. 5). Through the examination, the thesis answers the question as to whether the Court has acted within the principles and methods governing the interpretation of the Convention in its legal development of the protection for seriously ill migrants under Article 3. The thesis is based on the assumption that the Court is governed by the means of interpretation that flows from the Vienna Convention on the Law of Treaties (22 May 1969, 1155 UNTS 331), as well as the Court’s general jurisprudence. According to the Court’s case law, seriously ill migrants may benefit the protection of non-refoulement inherent in Article 3. The Court recognised the scope of protection for seriously ill migrants for the first time in the Case of D v the United Kingdom. In its judgment, the Court determined that medical non-refoulement cases would be subject to a high threshold of severity, hence only protecting very exceptional cases. The ‘very exceptional’ threshold was later clarified by the Court in the Case of Paposhvili v Belgium in order to guarantee that the Convention would stay practical and effective and not theoretical and illusory. Consequently, seriously ill migrants may benefit the protection of non-refoulement if they are subject to a real risk of being exposed to a serious, rapid and irreversible decline in its state of health, resulting in intense suffering or to significant reduction of life expectancy. The examination finds that the Court has acted within some of its methods and principles of interpretation in determining the scope of protection for seriously ill migrants under Article 3. While an examination of the travaux préparatoires as well as a meta-teleological interpretation may speak in favour of the scope of protection of medical non-refoulement cases, an evolutive interpretation may speak against the scope of protection due to the lack of European consensus. Furthermore, the examination finds that the application of a higher threshold of severity is inconsistent with the general jurisprudence of Article 3, as it undermines the notion of the non-refoulement principle and the absolute nature of the provision. An overall assessment thus reaches the conclusion that the Court has acted beyond the principles and methods governing the interpretation of the Convention in its legal development of the protection for seriously ill migrants under Article 3.