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Legal protection in psychiatry. The jurisprudence of the organs of the European convention of human rights

Published online by Cambridge University Press:  16 April 2020

AM Dougin
AM Dougin*
Affiliation:
Secretariat of the European Commission of Human Rights, avenue de I'Europe, 67000Strasbourg, France
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Summary

The European Convention of Human Rights recognises a certain number of rights and freedoms for persons within States' jurisdiction. For those confined in psychiatric hospitals, this legal protection concerns first of all the lawfulness of deprivation of liberty, which must conform to the conditions laid down by the Convention as interpreted by the case-law of the Convention organs (the Commission and Court of Human Rights). The Convention also guarantees to person deprived of their liberty further rights: the right to information, the right to appear before a court, the right to compensation and also the right to the respect of privacy and correspondence.

Keywords

Convention of Human Rightslegal protectionlawfulness of detentionrights during detention
Type
Research Article
Information
European Psychiatry , Volume 13 , Issue S3 , 1998 , pp. 101s - 106s
Copyright
Copyright © Elsevier, Paris 1998

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References

1 It should be pointed out that this system will undergo far-reaching changes with the entry into force on 1st November 1998 of Protocol No II to the Convention which establishes a single Court of Human Rights sitting permanently in Strasbourg. The current Commission and Court will disappear and the Committee of Ministers will no longer have quasi-judicial powers.

2 No 6301/73 Comm report 15.12.77, series B no 31, p36 and Eur Court of HR, judgement of 24 October 1979, series A no 33, pp 16–17, para 37 and following.

3 Judgement quoted above, p 16, para 37.

4 Report quoted above, p 36, para 76.

5 Winterwerp judgement, quoted above, p 17–18, para 39; cf, also Eur Court HR, Ashingdane v United Kingdom, judgement of 28 May 1985, series A no 93, p 22, para 48.

6 Cf, also judgement X v United Kingdom of 5 November 1981, series A no 46, p 18, para 40.

7 G and ML v France, Comm report 6.9.95.

8 Judgement quoted above, p 18, para 39.

9 Johnson v United Kingdom, Comm report 25.6.96, para 59 and following.

10 Ibidem, para 67–72.

11 Winterwerp judgement, quoted above, p 19–20, para 45.

12 Comm report 12.7.89, Eur Court HR series A no 185—A, p 23, para 39–41 and judgement of 27 September 1990, p 12, para 27.

13 Comm report 14.7.88, Eur Court HR series A no 170, p 19, para 97–98 and judgement of 21 February 1990, p 12, para 23.

14 Winterwerp judgement, para 40.

15 Ibidem, para 46.

16 Comm report 16.7.80, series B no 41, pp. 33–34, para 101 and following and judgement of 5 November 1981, series A no 46.

17 Report quoted above, pp 33–34, para 104–6.

18 Van der Leer judgement, quoted above, note 21, p. 13, para 27–8.

19 Report quoted above, p 34, para 106.

20 Report quoted above, p 35, para 111 and following.

21 Cf, No 18526/91, JCC v France, dec 11.3.94; No 17734/91, G and ML v France, dec 29.6.94; No 19869/92, GG v France, dec 26.2.96, unpublished: in these different cases, given the circumstances of each case, the Commission held that the authorities had respected the requirements of Article 5 para 2 of the Convention.

22 Cf, especially report X v United Kingdom, quoted above, note 45, para 105.

23 The Dutch Ministry of Justice, which is part of the executive, is not such an organ (Koendjbiharie v Netherlands, Comm report 12.10.89, Eur Court HR series A no 185-B, p 51, para 72 and Keus v Netherlands, Comm report 4.10.89, Eur Court HR series A no 185-C, p 78, para 67).

24 Above-mentioned report, p 92, para 175.

25 Cf, No 6859/74 X v Belgium, dec, 2.10.1975. DR 3 pp 139, 141. See also above-mentioned Commission report in Winterwerp case p 40, para 95.

26 Above-mentioned judgement, p, 23, para 55 and above-mentionedjudgement X, v United Kingdom, pp, 22–23, para 52–53.

27 The same applies a fortiori if the person concerned is subject to a renewal of confinement after a period of liberty: cf, X v United Kingdom, Comm report pp 36–37 and above-mentioned judgement pp 22–23, para 52–54; E v Norway, Comm report 16.3.89. Eur Court HR series A no 181-A, p 32, para 126.

28 E v Norway, Comm. report 16.3.89, Eur Court HR series A no 181-A, p. 32, para 127: Wassink v Netherlands, Comm report 12.7.89, Eur Court HR series A no 185-A, p 25, para 48.

29 Winterwerp case, above-mentioned Comm report, p 42, para 102 and above-mentioned judgement, p 24, para 60.

30 Winterwerp case, above-mentioned Comm. report, ibidem.

31 Above-mentioned report, p 40, para 90.

32 Above-mentioned report of X v United Kingdom; p 39, para 136 and above-mentioned judgement, p 25, para 58; No 6870/75, B. v United Kingdom, Comm report 7.10.81, DR 32 p 85, para 231 and following.

33 Cf, for a description of the system introduced in 1983, the case of Johnson v United Kingdom, Comm report 25.6.96, para 37–47.

34 Eur Court HR, judgement of 24 September 1992, series A no 244, and Comm. report 1.3.91, series A pp 30 and following.

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