CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESTRICTIONS OF PERSONAL FREEDOM IN THE CONTEXT OF PSYCHIATRIC CARE … subjected to a particularly thorough scrutiny by the ECtHR. 5 The burden of proof lies on a complainant, while the standard of proof is set on a proof “beyond reasonable doubt”. The burden of proof is transferred to the State in a situation when an individual is taken into police custody in good health but is found to be injured at the time of release. 6 While the ECtHR does not always differentiate between torture and inhuman or degrading treatment, 7 the difference can be very important. It does not only consist in usually higher damages awarded in case of torture, but also in fact that in contrast with torture, inhuman or degrading treatment may be considered strictly necessary if it passes a strict test of proportionality. 8 It can also be expected that the violation of the prohibition of torture may have a much more stigmatizing effect on the State. 9 While the ECtHR never defined the exact content of torture, it has partly endorsed the definition of the United Nations Convention against Torture (as cited above). 10 The restrictions of personal freedom in health care are therefore not to be expected to fall within the scope of torture nor in the frame of the Council of Europe human rights protection system. Involuntary hospitalizations, the use of means of restraint or other medical restrictions can, in some circumstances, represent inhuman or degrading treatment. However, not all cases of harsh treatment are intense enough to fall within the scope of Article 3 and finding the borderline can be sometimes very difficult. 11 The assessment of the minimum level of severity is relative, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. 12 Generally, it can be assumed that inhuman treatment exposes the victims to a deliberate cruel act leading to extreme distress, and the degrading treatment arouses in the victims fear, anguish and inferiority, and is capable of humiliating and debasing them. 13 The lack of intention of humiliating or debasing the victim does not exclude the possibility of violation of Article 3. 14 Furthermore, the ECtHR does not require meeting of certain objective criteria of humiliation, but in some cases considers the victim’s own experience of being humiliated sufficient for finding of inhuman or degrading treatment. 15 In 5 See Gäfgen v. Germany, (application no. 22978/05), the CtHR judgment of 1 June 2010. 6 See. Gäfgen v. Germany, (application no. 22978/05), the CtHR judgment of 1 June 2010. This principle was originally introduced in Ribitsch v. Austria (application no. 18896/91), the CtHR judgment of 4 December 1995. 7 See Colibaba v. Moldova, (application no. 29089/06), the ECtHR judgment of 23 October 2007. 8 See NOWAK, Manfred, McARTHUR, Elizabeth, The United Nations Convention Against Torture: A Commentary. (Oxford University Press, Oxford 2008), p. 77. 9 See Selmouni v. France, (application no. 25803/94), the ECtHR judgment of 28 July 1999. 10 See REIDY, Aisling, The prohibition of torture. A guide to the implementation of Article 3 of the European Convention on Human Rights, p. 11-12. (Human rights handbooks, No. 6, Council of Europe, Strasbourg 2002.) accessed 28 April 2017. 11 See McCallum v. the United Kingdom, Report of 4 May 1989, Series A no. 183, p. 29. 12 See Ireland v. the United Kingdom, (application no. 25803/94), the ECtHR judgment of 18 January 1978. 13 REIDY, Aisling, The prohibition of torture. A guide to the implementation of Article 3 of the European Convention on Human Rights, p. 16. (Human rights handbooks, No. 6, Council of Europe, Strasbourg 2002.) accessed 28 April 2017.

14 Ibid ., p. 16. 15 Ibid ., p. 17.

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