CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESTRICTIONS OF PERSONAL FREEDOM IN THE CONTEXT OF PSYCHIATRIC CARE … In the context of means of restriction, it is suitable to notice the European Court of Human Rights judgment of 18 October 2012, Bureš v. The Czech Republic . 83 In February 2007, a fragilely built 22-years old Lukáš Bureš inadvertently overdosed himself with his psychiatric drugs and went into the streets half-naked. A police patrol thought Mr. Bureš was intoxicated with illegal drugs and took him to a psychiatric facility from which he was sent to a sobering- up station. At the station, Mr. Bureš was restrained with protective strips and left without any supervision for several hours. As a consequence of too tight strips, Mr. Bureš suffered severe paresis of the left arm and medium to severe paresis of the right arm. The effect of the injury would probably be long-lasting but unlikely to be permanent. Mr. Bureš also experienced severe mental suffering. Furthermore, as a violoncello player, his ability to play was limited by his injuries. The ECtHR concluded that the use of the means of restraint in Mr. Bureš’s case and an inadequate investigation by Czech authorities violated Article 3 of the European Convention on Human Rights both in its substantive and procedural aspect. According to the ECtHR, “a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading“. 84 The established principles of medicine are decisive in assessing therapeutic necessity. 85 The use of physical force against persons deprived of liberty, if not made strictly necessary by their own conduct, diminishes their human dignity and is in principle a violation of Article 3. 86 The assessment whether the ill-treatment attains the minimal level of severity required for the infringement of the right embodied in Article 3 depends on all the circumstances of the case, including the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim, the purpose of the ill-treatment and its overall context. 87 In the case of mentally ill persons, their special vulnerability must be taken into account. 88 The CPT concluded that the use of means of restraint “is a serious measure which must always be justified by preventing imminent harm to the patient or the surroundings and must be proportionate to such an aim. Mere restlessness cannot therefore justify strapping a person to a bed for almost two hours“. 89 The CPT also reiterated the need for close supervision over restrained patients. 90 Conclusion The Czech Republic has been repeatedly criticised by several international organizations for violating human rights by unnecessarily restraining the personal freedom of patients, mainly in the context of psychiatric care. The paper focused on two ways the patient’s

83 Bureš v. The Czech Republic, (application no. 37679/08), the ECtHR judgment of 18 October 2012. 84 Bureš v. The Czech Republic, (application no. 37679/08), the ECtHR judgment of 18 October 2012, § 87. Here, the ECtHR refers to Herczegfalvy v. Austria, (application no. 10533/83), the ECtHR judgment of 24 September 1992 , § 82. 85 Bureš v. The Czech Republic, (application no. 37679/08), the ECtHR judgment of 18 October 2012, § 87.

86 Ibid ., § 86. 87 Ibid ., § 84. 88 Ibid ., § 85. 89 Ibid ., § 96. 90 Ibid ., § 102.

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