4. Mental illness/mesure of protection

woman in police custody to a noncustodial gynaecological examination was not performed in accordance with the law and violated Article 8 (Y.F. v. Turkey, §§ 41-44). 126. The Court further determined that there were Article 8 violations when a State failed to provide adequate information to divers about the health risks associated with decompression tables (Vilnes and Others v. Norway, § 244) and when another State failed to provide adequate means of ensuring compensation for injuries caused by State medical errors (Codarcea v. Romania). The Court, however, declared inadmissible a case against Turkey concerning the failure to compensate individuals who were injured by a non-compulsory vaccine (Baytüre and Others v. Turkey (dec.)). 127. In the context of taking evidence in criminal proceedings, the taking of a blood and saliva sample against a suspect’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy (Jalloh v. Germany [GC], § 70; Schmidt v. Germany (dec.)). However, the Convention does not, as such, prohibit recourse to such a procedure in order to obtain evidence of a suspect’s involvement in the commission of a criminal offence (Jalloh v. Germany [GC], § 70). In Caruana v. Malta (dec.), the Court considered that the taking of a buccal swab, was not a priori prohibited in order to obtain evidence related to the commission of a crime when the subject of the test was not the offender, but a relevant witness (§ 32). 128. In Vavřička and Others v. the Czech Republic [GC], the Grand Chamber considered several complaints concerning a statutory duty to vaccinate children against common childhood diseases. One applicant was a parent who had been fined for failing to comply: the others were lodged by parents on behalf of their underage children after they had been refused permission to enrol them in preschools or nurseries. The Court accepted that both compulsory vaccination and the consequences of non-compliance interfered with the right to respect for private life. However, it went on to find no violation of Article 8. First of all, the Court considered this to be an area where the State had a wide margin of appreciation. Not only was it a matter of healthcare policy, but there was no consensus among member States on a model of child vaccination; it was accepted that vaccination was a successful and cost-effective intervention; and under domestic law no vaccinations could be administered forcibly. The Court further considered the Czech policy to be consistent with the best interests of children, as a group, and proportionate to the legitimate aim pursued. Although it acknowledged that the exclusion of children from pre-school meant the loss of an important opportunity to develop their personalities and to begin to acquire social and learning skills, it considered this loss to be the direct consequence of their parents’ choice not to comply with the vaccination duty.

4. Mental illness20/mesure of protection

129. With regard to the positive obligations that Member States have in respect of vulnerable individuals suffering from mental illness, the Court has affirmed that mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life (Bensaid v. the United Kingdom, § 47). 130. The Court has long held that an individual’s right to refuse medical treatment falls within the scope of Article 8 (see above). This includes the rights of mentally ill patients to refuse psychiatric medication. A medical intervention in defiance of the subject’s wishes will give rise to an interfer-

20 See also other chapters of the Guide for further references.

ence with his or her private life and in particular his or her right to physical integrity (X. v. Finland, § 212). In some circumstances forced medication of a mentally ill patient may be justified, in order to protect the patient and/or others. However, such decisions must be made against the background of clear legal guidelines and with the possibility of judicial review (ibid., § 220; Storck v. Germany, §§ 164-169; Shopov v. Bulgaria, § 47). 131. The Court has also found that States have an obligation under Article 8 to provide protection for a mentally ill person’s right to private and family life, particularly when the children of a mentally ill person are taken into State care. States must ensure that mentally ill or disabled individuals are able to participate effectively in proceedings regarding the placement of their children (B. v. Romania (no. 2), § 117; K. and T. v. Finland [GC]). Such cases are also linked to the Article 8 right to family life (see below), particularly, for example, when a mentally disabled mother was not informed about her son’s adoption and was unable to participate in, or to contest, the adoption process (A.K. and L. v. Croatia). The case of S.S. v. Slovenia concerned the withdrawal of parental rights from a mentally-ill mother based on her inability to take care of her child. It contains a recapitulation of the case-law on the rights of mentally ill persons in the context of deprivation of parental responsibilities and subsequent adoption of the child (§§ 83-87). 132. In cases where legal incapacity is imposed on mentally ill individuals, the Court has articulated procedural requirements necessary to protect Article 8 rights. The Court often addresses these Article 8 violations in conjunction with Articles 5 and 6. The Court emphasises the quality of the decision-making procedure (Salontaji-Drobnjak v. Serbia, §§ 144-145). The Court has held that the deprivation of legal capacity undeniably constitutes a serious interference with the right to respect for a person’s private life protected under Article 8. In A.N. v. Lithuania, the Court considered a domestic court decision depriving an applicant of his capacity to act independently in almost all areas of his life. At the relevant time he was no longer able to sell or buy any property on his own, work, choose a place of residence, marry, or bring a court action in Lithuania. The Court found that this amounted to an interference with his right to respect for his private life (§ 111). Interestingly, in M.K. v. Luxembourg the Court considered the placing of an elderly person under protective supervision, not because of a mental illness, but rather on account of her extravagant spending. The Court found that the interference had remained within the margin of appreciation afforded to the judicial authorities. In particular, it noted that they had endeavoured to strike a balance between respect for the applicant’s dignity and self-determination and the need to protect her and safeguard her interests in the face of her vulnerability (§§ 64-67). 133. In incapacitation proceedings, decisions regarding placement in a secure facility, decisions regarding the disposition of property, and procedures related to children (see above), the Court has held that States must provide adequate safeguards to ensure that mentally ill individuals are able to participate in the process and that the process is sufficiently individualised to meet their unique needs (Zehentner v. Austria, § 65; Shtukaturov v. Russia, §§ 94-96; Herczegfalvy v. Austria, § 91). For instance, in proceedings concerning legal incapacity the medical evidence of the mental illness needs to be sufficiently recent (Nikolyan v. Armenia, § 124). Furthermore, in Nikolyan v. Armenia (§ 122), the Court found that the existence of a mental disorder, even a serious one, could not be the sole reason to justify a full deprivation of legal capacity. By analogy with the cases concerning deprivation of liberty, in order to justify full deprivation of legal capacity the mental disorder had to be “of a kind or degree” warranting such a measure. 134. As regards the choice of place of residence for a person with intellectual disabilities, the Court has noted the need to reach a fair balance between respect for the dignity and selfdetermination of the individual and to protect and safeguard his or her interests, especially where the individual’s capacities or situation place him or her in a particularly vulnerable position (A.-M.V. v. Finland, § 90). The Court has emphasised the importance of existing procedural safeguards (§§ 82-84). In the case cited it observed that there had been effective safeguards in the domestic proceedings to prevent abuse, as required by the standards of international human rights law. These safeguards had en-