scholarly journals Legality of Applying Coercive Medical Measures in Criminal Law

2021 ◽  
Vol 39 (71) ◽  
pp. 126-146
Author(s):  
Iryna V. Kalinina ◽  
Volodymyr M. Kupriienko ◽  
Iryna I. Shulhan ◽  
Dmytro O. Pylypenko ◽  
Olena A. Kozeratska
Keyword(s):  
Human Rights ◽  
Mental Disorders ◽  
Criminal Law ◽  
System Approach ◽  
Descriptive Analysis ◽  
Early Termination ◽  
Practical Application ◽  
Pragmatic Approach ◽  
European Court ◽  
Definition Of

The objective of the study was to determine the legality of the application of coercive medical measures and to develop recommendations to improve the legislative regulation of their use. The study included data on the number of offenders with mental disorders; the empirical background was the decision of the European Court of Human Rights on the application of coercive medical measures; provisions of the legislation of 31 countries. Methods of system approach, comparison, descriptive analysis, pragmatic approach, prognosis were used. The national criminal law of most states regulates the application of coercive medical measures to persons who have committed a crime in a state of limited sanity or insanity or have acquired it before sentencing or during the execution of the sentence, but its practical application causes several complications. It is concluded that the legislative definition of coercive medical measures corresponds to human rights legislation. But there are problems with its practical application. Proposals were made to amend national and international legislation: to broaden the range of grounds for the application of coercive medical measures; regulate the possibility of early termination of a coercive medical measure; oblige the courts to determine the appropriate terms.

Can diplomatic assurances, in their practical application, provide effective protection against the risk of torture and ill treatment? A focus on the evolution of the pragmatic approach of the European Court of Human Rights in removal cases of suspected terrorists

2017 ◽  
Vol 8 (4) ◽  
pp. 453-475
Author(s):  
Martina Elvira Salerno
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
Practical Application ◽  
Pragmatic Approach ◽  
Effective Protection ◽  
European Court

In order to implement counterterrorism measures, governments have frequently resorted to the use of diplomatic assurances. This practice aims to facilitate and legitimize the removal of non-nationals to third states with dubious human rights records, contrary to the obligation not to refoule set out under international law. This article raises the question of whether such assurances provide, in practical terms, effective protection against the risk that the transferred person may be subjected to torture and ill treatment upon return. With the purpose of addressing this issue, it is essential to evaluate whether diplomatic assurances can be deemed adequate and reliable guarantees of safety against ill treatment. In this regard, the position taken by international and regional human rights bodies is of profound importance. For this reason, this article considers and comparatively analyses the existing jurisprudence on non-refoulement and diplomatic assurances of such bodies. In particular, it closely examines the pragmatic approach of the European Court of Human Rights, by focusing on the abundant case law on the removal of suspected terrorists.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

2015 ◽  
Vol 84 (3) ◽  
pp. 515-531
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
International Crimes ◽  
European Court ◽  
Starting Point

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

The Idea of Human Rights in Conditions of Hospital Treatment

2016 ◽  
pp. 1147-1165
Author(s):  
Bogusław Sygit ◽  
Damian Wąsik
Keyword(s):  
Human Rights ◽  
Civil Liberties ◽  
European Convention ◽  
Hospital Treatment ◽  
Political Rights ◽  
Human Rights Abuses ◽  
Cultural Rights ◽  
European Court ◽  
Definition Of ◽  
The Right

The aim of this chapter is describing of the influence of universal human rights and civil liberties on the formation of standards for hospital care. The authors present definition of the right to life and the right to health. Moreover in the section it is discussed modern standards of hospital treatment under the provisions of the International Covenant on Economic, Social and Cultural Rights: availability, accessibility, acceptability and quality. The authors discuss in detail about selected examples realization of human rights in the treatment of hospital and forms of their violation. During the presentation of these issues, the authors analyze a provisions of the International Covenant on Civil and Political Rights and European Convention on the Protection of Human Rights and Fundamental Freedoms and use a number of judgments of the European Court of Human Rights issued in matters concerning human rights abuses in the course of treatment and hospitalization.

‘Handle with Care’ in StrasbourgThe Effective Access of Vulnerable Undocumented Migrants to Minimum Socio-economic Rights

2021 ◽  
pp. 138-156
Author(s):  
Francesca Ippolito ◽  
Carmen Pérez González
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Undocumented Migrants ◽  
Minimum Standard ◽  
Economic Rights ◽  
Irregular Migrants ◽  
Labour Exploitation ◽  
European Court ◽  
Global Understanding ◽  
Definition Of

This chapter aims to analyse how the European Court of Human Rights (ECtHR) has developed the protection of certain socio-economic rights of irregular migrants contributing to the consolidation of a minimum standard in this field. In particular, this chapter focuses on Strasbourg case law developments regarding rights to adequate housing, health care, and education, along with protection against labour exploitation and trafficking with the purpose of labour exploitation. Relevant contributions from other human rights bodies, particularly the European Committee of Social Rights (ECSR), will be also considered in order to conclude whether we can affirm the existence of a minimum core protections in this regard. The chapter concludes that international courts and non-judicial mechanisms are contributing to the definition of a shared global understanding of the centrality of human dignity in the quest to protect fundamental rights.

23. Mental conditions

2020 ◽  
pp. 707-733
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Human Rights ◽  
Mental Disorders ◽  
Criminal Law ◽  
Psychiatric Practice ◽  
European Convention ◽  
The Relationship

This chapter considers the ways in which the criminal law treats people suffering from mental disorders. The following controversies are examined: when an individual can be regarded as mentally incapable of being tried; the relationship between insane and sane automatism; the extent to which the insanity defence reflects modern psychiatric practice; whether the lack of direct correlation between the medical and legal definitions of ‘insanity’ infringes the European Convention on Human Rights (ECHR); and how the insanity defence ought to be reformed.

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

Sign in / Sign up

Export Citation Format

Share Document