The European Social Charter, the human rights treaty on social and economic rights, guarantees the right to protection of health in Article 11 which complements Articles 2 and 3 of the European Convention on Human Rights - as interpreted by the European Court of Human Rights - by imposing a range of positive obligations designed to secure its effective exercise. The rights relating to health embodied in the two treaties are inextricably linked, since “human dignity is the fundamental value and indeed the core of positive European human rights law – whether under the European Social Charter or under the European Convention of Human Rights - and health care is a prerequisite for the preservation of human dignity”.

States Parties to the Charter must ensure the best possible state of health for the population according to existing knowledge. Health systems must respond appropriately to avoidable health risks, i.e. ones that can be controlled by human action. The main indicators are life expectancy and the principal causes of death. These indicators must show an improvement and not be too far behind the European average. Infant and maternal mortality are good indicators of how well a particular country’s overall health system is operating. States Parties must provide appropriate and timely care on a non-discriminatory basis, including services relating to sexual and reproductive health. The cost of health care must not represent an excessively heavy burden for the individual. Out-of-pocket payments should not be the main source of funding of the health system and steps must be taken to reduce the financial burden on patients from the most disadvantaged sections of the community. The number of health care professionals and equipment must be adequate.

Under Article 11 of the Charter, there must be free and regular consultation and screening for pregnant women and children throughout the country. Free medical checks must be carried out throughout the period of schooling. There should be screening, preferably systematic, for all the diseases that constitute the principal causes of death. States Parties must operate widely accessible immunisation programmes and must demonstrate their ability to cope with infectious diseases, such as arrangements for reporting and notifying diseases, special treatment for AIDS patients and emergency measures in case of epidemics. State Parties must put in place effective anti-tobacco and anti-alcoholism measures as well as measures for drug addiction. Under Article 11 of the Charter, States Parties must take steps to prevent accidents such as road accidents, domestic accidents, accidents at school and accidents during leisure time. Accidents at work are examined under Article 3 of the Charter.

In addition, the right of every worker to a safe and healthy working environment is a widely recognised principle, stemming directly from the right to personal integrity, one of the fundamental principles of human rights. Article 3 of the Charter applies to the whole economy, covering both the public and private sectors. The right to health care of elderly is guaranteed by Article 23 of the Charter, while Article 8 of the Charter guarantees the right of employed women to protection of their maternity.

The European Committee of Social Rights (ESCR) monitors the implementation of the Charter, not only in law, but also in practice. The ECSR examined the situation on health (Article 11) and health and safety at work (Article 3) in most of the States Parties to the Charter in its Conclusions 2017.

The ECSR by its decision of 15 May 2018 on the merits of the complaint Transgender Europe and ILGA-Europe v. the Czech Republic (No. 117/2015) concluded that there was a violation of Article 11§1 of the 1961 Charter (right to health) due to the requirement of sterilisation imposed on trans people wishing to change their personal documents so that they reflect their gender identity.

The ECSR by its decision of 5 December 2018 on the merits of the complaint European Roma Rights Centre (ERRC) v. Bulgaria (No. 151/2017) held that there was a violation of Article E (non-discrimination) in conjunction with Article 11§1 (right to protection of health) of the Charter as regards the access to health insurance and health care for Roma women in respect of maternity.

In the difficult context of the COVID-19 pandemic, on 21 of April 2020, the European Committee of Social Rights adopted a Statement of interpretation on the right to protection of health in times of pandemic. The ECSR recalled that in times of pandemic, during which the life and health of many people are under serious threat, guaranteeing the right to protection of health is of crucial importance, and governments should take all necessary steps to ensure that it is effectively guaranteed. It called upon the States Parties to: (i) take all necessary emergency measures in a pandemic (measures to prevent and limit the spread of the virus such as testing and tracing, physical distancing and self-isolation, the provision of adequate masks and disinfectant, as well as the imposition of quarantine and ‘lockdown’ arrangements having regard to the current state of scientific knowledge and in accordance with relevant human rights standards); (ii) take all necessary measures to treat those who fall ill in a pandemic, including ensuring the availability of a sufficient number of hospital beds, intensive care units and equipment and ensuring that an adequate number of healthcare professionals are deployed and that their working conditions are healthy and safe (in line with Article 3 of the Charter); and (iii) take all necessary measures to educate people about the risks posed by the disease in question in line with Article 11§2 of the Charter (through public awareness programmes so as to inform people about how to mitigate the risks of contagion and how to access healthcare services as necessary).

The Committee wished to recall that many of the above measures are required to comply not only with the obligation to protect the right to protection of health under Article 11, but also with other Charter obligations related to health, including obligations in respect of the right of workers to safe and healthy working conditions (Article 3), the right of persons in need of social and medical assistance (Article 13), the rights of the elderly to protection and health care (Article 23), the right of children and young persons to protection and health care (Article 7§§9-10 and Article 17§1).

During a pandemic, States Parties must take all possible measures as referred to above in the shortest possible time, with the maximum use of available financial, technical and human resources, and by all appropriate means both national and international in character, including international assistance and cooperation. Furthermore, States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for other persons affected, including especially their families on whom falls the heaviest burden in the event of institutional shortcomings (International Association AutismEurope v. France, Complaint No. 13/2002, decision on the merits of 4 November 2003, §53).

The Committee recalled that the right to protection of health includes the right of access to healthcare, and that access to healthcare must be ensured to everyone without discrimination. This implies that healthcare in a pandemic must be effective and affordable to everyone, and that groups at particularly high risk, such as homeless persons, persons living in poverty, older persons, persons with disabilities, persons living in institutions, persons detained in prisons, and persons with an irregular migration status must be adequately protected by the healthcare measures put in place.

The ECSR recalled that under Article 11§3 States Parties must operate widely accessible immunisation programmes. They must maintain high coverage rates not only to reduce the incidence of these diseases, but also to neutralise the reservoir of virus and thus achieve the goals set by the WHO to eradicate a range of infectious diseases. Vaccine research should be promoted, adequately funded and efficiently coordinated across public and private actors.

 

HELP course on Key human rights principles in Biomedicine developed jointly with the Bioethics Unit of the Council of Europe. It has the following modules:

  • Introduction
  • Free and Informed Consent
  • Medical Confidentiality and Protection of Health Related Data
  • Protection of the Embryo and Procreation
  • End of Life
  • Genetic Testing
  • Biomedical Research
  • Transplantation of Human Organs and Tissues

Article 3 of the Convention on Human Rights and Biomedicine (Oviedo Convention), which aims at ensuring equitable access to healthcare, is particularly relevant in a context of economic crisis, socioeconomic gaps in society and scarce resources. Appropriate measures implemented pursuant to this provision will contribute to the goal of providing equitable access to quality health care.

 

In 2018, the the Committee of parties to the Council of Europe Convention on the counterfeiting of medical products and similar crimes involving threats to public health (MEDICRIME) held its first meeting. The convention, in force since 1 January 2016, is open to member and non-member States alike. By criminalising certain types of conduct, MEDICRIME helps countries stop the falsification of medicines and medical devices in order to protect public health.

 

The special vulnerability of children and the elderly in the biomedical field will require attention in the future, in the light of developing practices taking place, and were addressed at a conference on the 20th anniversary of the Oviedo Convention, which took place on 24-25 October 2017. A Strategic Action Plan will be developed on the basis of the outcome of the conference, to ensure that human rights of particularly vulnerable groups are better protected. Two studies on the challenges posed to the rights of the child by scientific and technological developments in biomedicine have been commissioned in preparation to the conference, and are also part of the activities carried out under the Council of Europe Strategy for the Rights of the Child (2016-2021).

The Council of Europe’s Strategic Action Plan on human rights and technologies in biomedicine (2020-2025) is designed to protect human dignity, human rights and individual freedoms with regard to the application of biology and medicine. Divided into four main pillars with corresponding strategic objectives and actions, it focuses on inter alia governance, equity and integrity in the field of health/healthcare.

The pillar on governance of technology pursues two strategic objectives, the first has regard to embedding human rights in the development of technologies comprising action (i) to examine Article 13 of the Oviedo Convention in the light of developments in gene editing technologies; (ii) to assess the relevance and sufficiency of the existing human rights framework to address the issues raised by the applications of neurotechnologies; and (iii) to develop a report on the application of AI in healthcare, in particular regarding its impact on the doctor-patient relationship. The second strategic action refers to fostering public dialogue to promote democratic governance and transparency in the field of biomedicine with action: (i) to translate into numerous languages and to disseminate the Guide to public debate on human rights and biomedicine; and (ii) to promote dialogue amongst the public, practitioners, and policy makers to ensure that patient and public interest is a key priority in the development and regulation of genomic medicine.

The pillar on equity in healthcare pursues two strategic objectives. The first objective is promoting equitable and timely access to appropriate innovative treatments and technologies in healthcare with action to elaborate a draft Recommendation on equitable and timely access to innovative treatments and technologies in healthcare system. In this context, particular attention is paid to the impact of pandemics. A first work on vaccines lead to the adoption of the Statement on COVID-19 and vaccines: Ensuring equitable access to vaccination during the current and future public health crises. The second strategic objective regards combating health disparities created by social and demographic changes in Council of Europe member State with action to develop a Guide to health literacy for older persons as well as other persons in vulnerable situations.

The pillar on physical and mental integrity pursues three strategic objectives, the first on strengthening children’s participation in the decision-making process on matters regarding their health comprises action on a guide to good practice concerning the participation of children in the decision-making process. The second strategic objective has regard to safeguarding children’s rights in relation to medical practices which have future or long-term implications for them with action to organise a seminar on relevant legislation and good practices with regard to early intervention on intersex children. The third strategic objective has regard to safeguarding the rights of persons with mental health difficulties comprising action: (i) to elaborate an Additional Protocol to the Convention on Human Rights and Biomedicine to protect the human rights and dignity of persons with regard to involuntary placement and/or involuntary treatment in mental healthcare services, and (ii) to develop a compendium of good practices to promote voluntary measures in the field of mental healthcare.

New Council of Europe multilateral and multidimensional co-operation project on “protection of human rights in healthcare during public health crises”

The Secretary General of the Council of Europe, in a document published on 15 September 2020 : “A Council of Europe contribution to support member states in addressing healthcare issues in the context of the present public health crisis and beyond” announced a new multilateral and multidimensional cooperation project to address healthcare issues and devise effective, tailor-made solutions to be implemented at national level. The project was presented to the member states in February 2021.

The Council of Europe Development Bank (CEB) can finance projects concerning health and related basic infrastructure, thus contributing to improve the well-being of beneficiary populations. In the last three years, the CEB has approved 7 projects in the health sector, for a total value of €373 million. Thirteen other projects have been approved in the same time span, funding interventions in the health field as part of multi-sectorial loans.

These projects focus on the construction or the restoration, renovation or extension of health institutions as well as of administrative buildings related to health and social care, including the purchase of medical equipment.

 

Strategy and cooperation towards the 2030 Sustainable Development Goals is one of the thematic priorities of the 2019-2022 Work Programme of the Enlarged Partial Agreement Pompidou Group, the Council of Europe drug policy cooperation platform. Drug policies and programmes are complimentary to the 2030 Agenda for Sustainable Development (SDA) and they can be key in achieving some Sustainable Development Goals (SDGs) related to social, economic, environmental, health, justice and human rights issues. Substance addictions are specifically included in SDGs under Target 3.5: "Strengthen the prevention and treatment of substance abuse, including narcotic drug abuse and harmful use of alcohol" and thus are clearly identified as obstacles to sustainable development.

The SDA recognises and underlines that drug policy development goes hand-in-hand with strategies which (i) improve access to treatment and health, (ii) provide better education for children insuring the development of their life skills, and (iii) reduce gender inequality and the gender-gap. At the same time the SDA promotes better institutions, justice, governance and peaceful societies.

As a contribution to the efforts in achieving SDGs, the Pompidou Group, at the initiative of the government of Mexico, organised an International conference on ‘International cooperation in aligning drug policies with Sustainable Development Goals’ in late 2019. A series of key messages were elaborated in the course of the discussions during this important event. These conclusions support all national efforts in aligning drug policies with sustainable development, and provide inspiration for next activities aimed at reaching those goals.

The Enlarged Partial Agreement on Sport (EPAS) contributes to ensuring healthy lives and promotes well-being for all, at all ages, by supporting its member states in making sport fairer, safer and in conformity with high ethical standards. EPAS achieves those objectives by organising events and implementing projects to raise awareness on safe and healthy sport environments and to promote the well-being of those who do sport, with a particular focus on combatting sexual abuse in sport. As the UN recognises that sport contributes to well-being, regardless of age, gender or ethnicity, EPAS has an important role to play by supporting its member states and by facilitating co-operation at local, national and international level.

The Council of Europe also co-ordinates the implementation of the Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events (CETS No. 218) and the Anti-Doping Convention (ETS No. 135), which ensure the health and well-being of athletes and spectators.

The Parliamentary Assembly of the Council of Europe, through its Committee on Culture, Science, Education and Media, is actively supporting the work of EPAS in promoting healthy lifestyle and values of sport. In its Resolution 2131(2016) Sport for all: a bridge to equality, integration and social inclusion, it encourages a more integrated and dynamic approach to promoting access to sport, notably through increased co-operation between stakeholders and through establishing effective monitoring mechanisms of any form of discrimination in sport. It also calls on the International Olympic Committee to develop a comprehensive programme for the promotion of sport for all and the fight against discrimination.

The European Landscape Convention (ETS No. 176) is the first international treaty to be exclusively concerned with all aspects of landscape. Its Parties declare themselves “concerned to achieve sustainable development based on a balanced and harmonious relationship between social needs, economic activity and the environment”. They acknowledge that “the landscape contributes to the formation of local cultures and that it is a basic component of the natural and cultural heritage, contributing to human well-being” and that “the landscape is an important part of the quality of life for people everywhere: in urban areas and in the countryside, in degraded areas as well as in areas of high quality, in areas recognised as being of outstanding beauty as well as everyday areas”. The Work Programme of the Convention implements the Recommendation CM/Rec(2017)7 the Committee of Ministers of the Council of Europe on the contribution of the European Landscape Convention to the exercise of human rights and democracy with a view to sustainable development. The publication “Council of Europe Landscape Convention: Contribution to human rights, democracy and sustainable development” (presents the Recommendation and a Conceptual reference report. “Principles for the participation of the public in the definition and implementation of landscape policies, as defined in the European Landscape Convention” were also prepared and included in the publication. (Council of Europe Publishing, 2018, ISBN 978-92-871-8486-3) [« Convention du Conseil de l’Europe sur le paysage : contribution aux droits humains, à la démocratie et au développement durable » (Editions du Conseil de l’Europe, 2018, ISBN 978-92-871-8485-6)

The entrance into force of the Protocol amending the European Landscape Convention will allow non-European States to become Parties to the Council of Europe Landscape Convention.

 

Recommendation CM//Rec(2016)7 of the Committee of Ministers to member States on young people’s access to rights recommends that youth policies facilitate young people’s access to rights with a special emphasis on, inter alia, social and health-care services that cater for the specific needs of young people. Even though health is not primarily a youth policy issue, advice on youth policy development and other support measures will be given to member States. The recommendation is available in English, French, Czech, Dutch, Estonian, Portuguese, Russian, Slovak and Turkish.

 

The Steering Committee for Human Rights (CDDH) published an analysis on the legal and practical aspects of effective alternatives to detention in the context of migration. The CDDH’s Drafting Group on Migration and Human Rights (CDDH-MIG) is currently working on a user-friendly handbook on the effective implementation of alternatives to immigration detention. The CDDH-MIG will furthermore start work on reception conditions for migrant children and potential guidelines on alternatives to immigration detention for children. The work of the Drafting Group seeks to protect the human rights and dignity of migrants and asylum-seekers in Council of Europe member states.

 

The Parliamentary Assembly addresses questions of public health as a human rights issue, in particular through its Committee on Social Affairs, Health and Sustainable Development. In this context, the latest texts adopted were Resolution 2168 (2017) and Recommendation 2104 (2017) on Human rights of older persons and their comprehensive care, Recommendation 2115 (2017) on The use of new genetic technologies in human beings, Resolution 2219 (2018) on Drug-resistant tuberculosis in Europe, Resolution 2249 (2018) on The provision of palliative care in Europe, Resolution 2286 (2019) on Air pollution – a challenge for public health in Europe and Resolution 2291 (2019) on Ending coercion in mental health: the need for a human rights-based approach. Recommendation 2156 (2019) on Anonymous donation of sperm and oocytes: balancing the rights of parents, donors and children, Resolution 2284 (2019) on Addressing the health needs of adolescents in Europe, Resolution 2327 (2020) on Organ transplant tourism, Recommendation 2173 (2020) on Combating trafficking in human tissues and cells, Recommendation 2185 (2020) on Artificial Intelligence in health care: medical, legal and ethical challenges ahead, Resolution 2353 (2020) on Supporting people with autism and their families, as well as Resolution 2329 (2020) and Recommendation 2174 (2020) on Lessons for the future from an effective and rights-based response to the COVID-19 pandemic and Resolution 2361 (2021) on Covid-19 vaccines: ethical, legal and practical considerations. Further reports are currently (Jan. 2021) being prepared on “Involuntary addiction to prescription medicines", " Vaccine hesitancy: a major public health issue"; the report on “Discrimination against persons dealing with chronic and long-term illnesses” was adopted in committee and is awaiting the debate in the Assembly in April 2021. Furthermore, the Assembly adopted Resolution 2340 (2020) on Humanitarian consequences of the Covid-19 pandemic for migrants and refugees.

The Committee on Legal Affairs and Human Rights recently adopted a report on “Drug policy and human rights: a baseline study” (Doc. 15086) following which the Assembly later adopted Resolution 2335 and Recommendation 2177. It also adopted a report on “The brain-computer interface: new rights or new threats to fundamental freedoms?” (Doc. 15147). Resolution 2344 and Recommendation 2184 were later adopted by the Assembly.

The Committee also works to improve member States’ implementation of common detention standards. The Assembly recently adopted texts on

Protecting human rights during transfer of prisoners: Doc.14828, Resolution 2266 (2019) and Recommendation 2147 (2019).

Improving follow-up to CPT recommendations: enhanced role of the Parliamentary Assembly and of national parliaments: Doc. 14788, Resolution 2264 (2019) and Recommendation 2146 (2019).

In 2017, as well as publishing a guide to visiting places where children are detained for migration purposes in the framework of its Parliamentary Campaign to End Migration Detention of Children, its Committee on Migration, Refugees and Displaced Persons elected a General Rapporteur on Conditions of Reception of Migrants and Refugees, responsible for examining and denouncing degrading conditions and promoting the humanitarian reception and well-being of migrants in Europe. The parliamentary campaign, concluded in June 2019 also organised national seminars, and produced recommendations and guidelines on alternatives to migration detention of children.

 

The Congress of Local and Regional Authorities adopted the following texts of relevance:

 

The Steering Committee for Human Rights (CDDH) published an analysis on the legal and practical aspects of effective alternatives to detention in the context of migration. The CDDH’s Drafting Group on Migration and Human Rights (CDDH-MIG) is currently working on a user-friendly handbook on the effective implementation of alternatives to immigration detention. The CDDH-MIG will furthermore start work on reception conditions for migrant children and potential guidelines on alternatives to immigration detention for children. The work of the Drafting Group seeks to protect the human rights and dignity of migrants and asylum-seekers in Council of Europe member states.

 

Recent work of the Commissioner for Human Rights relating to good health and well-being for all at all ages includes reminding member states of the importance of maintaining universal access to health-care services for all, including irregular migrants, and addressing the protection of women´s sexual and reproductive health and rights. The Commissioner published on 19 February 2021 an Issue Paper on ‘Protecting the right to health through inclusive and resilient health care for all’.

See: