Protecting the Rights of People with Mental Disabilities:The European Convention on Human Rights

2002 ◽  
Vol 9 (4) ◽  
pp. 293-320 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
Social Reform ◽  
European Convention ◽  
Mental Disability ◽  
Mental Health Legislation ◽  
Degrading Treatment ◽  
The Right ◽  
Health Legislation ◽  
Relative Scarcity

AbstractThis paper will analyse the essential legal requirements of the European Convention on Human Rights which touch on the lives (and deaths) of people with mental disabilities. It will examine the procedural safeguards which must be followed when involuntarily detaining a person under mental health legislation; access to a court to test the lawfulness of detention; the requirement to be free from torture, inhuman or degrading treatment or punishment; the right to respect for private and family life, home and correspondence; and the right to life, including investigation after a death. The paper will discuss some of the factors which explain the relative scarcity of mental disability cases decided by the Strasbourg Court. In conclusion there will be an examination of the role of lawyers and other key players in mental disability, and how stakeholders can move forward to prompt much needed social reform.

The Right to Avoid Procreation and the Regulation of Pregnancy

2020 ◽  
Author(s):  
Janne Rothmar Herrmann
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Perspective ◽  
Legal Basis ◽  
Moral Obligations ◽  
Men And Women ◽  
European Consensus ◽  
The Family ◽  
The Right

This chapter discusses the right to avoid procreation and the regulation of pregnancy from a European perspective. The legal basis for a right to avoid procreation can be said to fall within the scope of several provisions of the European Convention on Human Rights (ECHR), an instrument that is binding for all European countries. Here, Article 12 of the ECHR gives men and women of marriageable age the right to marry and found a family in accordance with the national laws governing this right. However, Article 12 protects some elements of the right not to procreate, but for couples only. The lack of common European consensus in this area highlights how matters relating to the right to decide on the number and spacing of children touch on aspects that differ from country to country even in what could appear to be a homogenous region. In fact, the cultural, moral, and historical milieus that surround these rights differ considerably with diverse national perceptions of the role of the family, gender equality, religious and moral obligations, and so on.

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

scholarly journals Deaths after police contact in England and Wales: the effects of Article 2 of the European Convention on Human Rights on coronial practice

2016 ◽  
Vol 12 (2) ◽  
pp. 162-177 ◽  
Author(s):  
David Baker
Keyword(s):  
Human Rights ◽  
European Convention ◽  
System State ◽  
Right To Life ◽  
England And Wales ◽  
Police Contact ◽  
Dynamic Relationship ◽  
State And Society ◽  
The Right

AbstractThis paper examines the role of coroners in investigating and reporting on cases of death after police contact (DAPC) in England and Wales. It considers how Article 2 (the right to life) of the European Convention on Human Rights (ECHR) has affected coronial processes and practices. It argues that the effects of Article 2 represent an evolutionary shift in accountability processes surrounding cases of DAPC in England and Wales, but that this shift has in turn been mediated by aspects of institutional structure in the coronial system. It discusses how this shift demonstrates the dynamic relationship between the coronial system, state and society and how this has continued to evolve as a result of external demands.

Suppressing human rights? A rights-based approach to the use of pharmacotherapy with sex offenders

Legal Studies ◽  
2009 ◽  
Vol 29 (1) ◽  
pp. 47-74 ◽  
Author(s):  
Karen Harrison ◽  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Sex Offenders ◽  
Satellite Tracking ◽  
European Convention ◽  
Viable Option ◽  
The Public ◽  
Mental Health Legislation ◽  
The Government ◽  
Health Legislation ◽  
Tracking Technology

The use of pharmacotherapy (more emotively known as chemical castration) is the use of drugs to treat and help manage the risk that sex offenders, and in particular paedophiles, pose to society. Due to the increased climate of public fear of this risk, the government recently published aReview of the Protection of Children from Sex Offenders(the Review). This Review, published in June 2007, sought to explore how the protection of children could be improved and how greater reassurance to the public on the management of sex offenders could be provided. The Review makes several proposals with regard to managing high-risk sex offenders. Amongst the list of 20 actions, the trialling of polygraph tests, satellite tracking technology and the use of anti-libidinal suppressants is included. This paper examines the latter, pharmacotherapy, and assesses how concepts such as dignity and consent underpin the human rights' implications of its use. The paper will also assess the recent changes to mental health legislation and evaluate whether such treatment for incompetent or competent offenders is a viable option given the UK's obligations under the European Convention on Human Rights.

scholarly journals POLICE BAIL WITHOUT CHARGE: THE HUMAN RIGHTS IMPLICATIONS

2010 ◽  
Vol 69 (3) ◽  
pp. 529-560 ◽  
Author(s):  
Ed Cape ◽  
Richard A. Edwards
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Offence ◽  
Recent Origin ◽  
The Right ◽  
Article 5 ◽  
Changing Role ◽  
First Time

Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.

scholarly journals papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

2020 ◽  
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

14. Introduction to human rights in UK law

2017 ◽  
Author(s):  
Colin Faragher
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
European Convention ◽  
Political Rights ◽  
Freedom Of Association ◽  
Essential Information ◽  
Human Rights Act ◽  
Degrading Treatment ◽  
Forced Labour ◽  
The Right

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Human Rights Act (HRA) 1998. The ECHR guarantees civil and political rights. These are the right to life; the prohibition of torture, inhuman, and degrading treatment or punishment; the prohibition of slavery and forced labour; the right to liberty; the right to a fair and unbiased hearing; the prohibition of retrospective legislation; the right to respect for private and family life; freedom of conscience and religion; freedom of expression; freedom of association; the right to marry and found a family. The ECHR has been expanded by a series of supplementary treaties called protocols. The First and Sixth Protocols give individuals additional rights which were incorporated into British law by the HRA 1998.

scholarly journals The Right Not to be Dominated: The Case Law of the European Court of Human Rights on Migrants’ Destitution

2019 ◽  
Vol 19 (2) ◽  
pp. 291-314
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Host State ◽  
European Court ◽  
Degrading Treatment ◽  
New Perspective ◽  
The Right ◽  
Republican Theory

Abstract The European Court of Human Rights increasingly deals with migrants’ complaints about destitution in their host state under Article 3 of the European Convention on Human Rights (the prohibition of inhuman and degrading treatment). This case law has been criticized for not being consistent and/or for not providing migrants with enough protection. Based on a systematic case law search, in this article, I analyse Article 3 case law on migrants’ destitution from a new perspective: the concept of freedom as non-domination, as developed in (neo) republican theory. It will argue that, seen through this lens, many tendencies in the Court’s case law can be explained and constructed as consistent, and it is submitted that in this way the Court does provide migrants with important protection against unfreedom. Nevertheless, I also argue in the article that the case law could be improved in a number of ways in order to provide more effective and robust protection against domination.

The European Court of Human Rights and the right to clean water and sanitation

Water Policy ◽  
2018 ◽  
Vol 20 (2) ◽  
pp. 282-307 ◽  
Author(s):  
Katharina Franziska Braig
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Clean Water ◽  
The European Union ◽  
Human Right ◽  
Creative Development ◽  
Water And Sanitation ◽  
European Court ◽  
Degrading Treatment ◽  
The Right

Abstract The human right to clean water and sanitation is currently under discussion in the European Union. During this discussion, it should not be forgotten that another European organisation, namely the European Court of Human Rights (ECtHR), is becoming increasingly active regarding pan-European minimum standards relating to the right to clean water and sanitation. Although it is widely recognised that clean drinking water and sanitation are essential to the realisation of all human rights, no such obligation can be found in the European Convention on Human Rights (ECHR). This article reviews the creative development of the jurisprudence of the ECtHR concerning the right to clean water and sanitation using two interpretation techniques, namely the ‘living instrument’ doctrine and the ‘practical and effective’ doctrine. Today, the ECtHR recognises, for example, that a breach of a State's obligation to respect the right to water can amount to a violation of Article 3 of the Convention on inhuman or degrading treatment. By failing to oblige companies to curb water pollution, the Court has also held that a State can be liable for a breach of Article 8 of the Convention, namely the right to respect for private and family life.

The European Convention on Human Rights and the European Court of Human Rights as Guardians of Fair Criminal Proceedings in Europe

2019 ◽  
pp. 88-114
Author(s):  
Bettina Weisser
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Public Hearing ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Procedural Rights

This chapter discusses the role of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (the Court) in safeguarding fair criminal proceedings in Europe. In particular, it analyzes the procedure-related guarantee of a fair trial and its various implications as they are laid down in Article 6 ECHR and shaped by the case law of the Court. The chapter first provides an overview of the general procedural guarantees under Article 6, section 1, focusing on the independence and impartiality of the tribunal, right to a fair hearing (equality of arms, the right to remain silent and the privilege against self-incrimination, entrapment), public hearing, and hearing within a reasonable time. It then considers procedural rights in criminal proceedings under sections 2 and 3 of Article 6, along with the presumption of innocence under section 2 and specifically listed minimum rights in criminal proceedings under section 3.

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