Article 5, paragraph 1(e)
Deprivation of liberty is also justified in the event of “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”. This provision serves as a basis for the protection of state public order and security, including the protection of other persons and their property, being in great need of professional and, above all, medical assistance in order for their psycho-physical integrity to be protected.814 Article 5, paragraph 1(e) of the ECHR differentiates among four groups of persons: persons of unsound mind, alcoholics, drug addicts or vagrants. The European Court,815 the BiH Constitutional Court and the Human Rights Commission within the BiH Constitutional have only developed the case-law on mentally ill persons.
In order for the detention of a mentally ill person to be “lawful” within the meaning of Article 5, paragraph 1, the mental illness, except for in urgent cases, must be confirmed by the objective findings of a medical expert. On the other hand, a mental illness must be of such kind to justify the deprivation
of liberty.816 The person may be kept in detention only for the period of the duration of illness.817 Additionally, the competent court, which – as needed – may issue an order on release from detention, must be checking the mental health of the respective patient on a regular basis.818 The ECHR standards, in particular those relating to the pronouncement of an order on deprivation of liberty or on remaining under medical treatment, should be covered by explicit law regulations. Should the legal regulations for the determination of the detention measure be changed in some specific case after the detention measure has been pronounced, the competent institutions must examine whether the requirements for continued deprivation of liberty have been met in that specific case.819
For the purpose of medical treatment the court may refer a person only to a special clinic; special wards for mentally ill persons within a prison do not meet these requirements either.820 According to Article 5, paragraph 1(e) of the ECHR, the state is under an obligation to form a special clinic for mentally ill persons. Despite the fact that Bosnia and Herzegovina has undertaken the obligation to build such an institution by the end of 2005, based on which one matter before the European Court ended with a friendly settlement,821 in the opinion of the BiH Constitutional Court – given the state of facts at the end of 2006 – such an institution has not been established yet in BiH.822
Footnotes
AP 2271/05, paragraph 69 related to the ECtHR, Luberti v. Italy of 23 February 1984, Series A no. 85.
Ademović, 2005, p. 63.
AP 2271/05, paragraph 60.
Ibid., with further references to the ECtHR, Winterwerp v. Holland of 24 October 1979, Series A no. 33, paragraph 39.
AP 2271/05, paragraph 60.
AP 2271/05, paragraph 61 et seq.; AP 1125/05, paragraph 31.
AP 2271/05, paragraph 60, 66 et seq., with further references to the ECtHR, X v. the United Kingdom of 5 November 1981, Series A no. 46, paragraph 43, and Ashingdane v. the United Kingdom of 28 May 1985, Series A no. 93, paragraph 44. 821 See, in connection with that issue, the ECtHR, Hadžić v. Bosnia and Herzegovina of 11 October 2005, Application No. 11123/04.
AP 2271/05, paragraph 62 et seq.