Theory of positive state obligations under article 2.1 of the convention to protect the lives of persons with mental disorders in state psychiatric institutions. Analysis of ECTHR Case-LAWMIRIAM

Abstract

The interpretation of the European Convention on Human Rights has led to the development of the theory of positive State obligations arising from Article 2, which aims to protect the lives of individuals. While these obligations may arise in any context, they are particularly relevant in the case of mentally disordered persons in state-run psychiatric institutions, where patients may pose a risk to themselves. When such an act takes place, even more when the fatal event of suicide is reached, State responsibility comes into play. However, the European Court of Human Rights has emphasized that a disproportionate duty of prevention should not be imposed on states, but rather that the duty to protect patients’ lives should be in line with the reasonable circumstances of each case. To determine whether a violation of the right to life has occurred and whether the authorities bear responsibility, the Court considers two factors. Firstly, it examines whether the psychiatric institution had established a legislative framework to protect patients’ lives. Secondly, whether the case would pass the Osman’s test, proving that the authorities knew or ought to have known that there was a real and immediate risk of an attempt on their own life, and yet failed to take adequate measures. Nonetheless, based on case law, it appears that state responsibility is limited in scope, as the high criteria set by the Court are not often exceeded. The circumstances surrounding the cases discussed in this article will demonstrate this.

SUMMARY:
I. INTRODUCTION. II. POSITIVE OBLIGATIONS OF THE STATE FROM THE CONVENTION. OVERALL REMARKS. III. POSITIVE OBLIGATION FROM ARTICLE 2 PARAGRAPH 1 OF THE CONVENTION (I). GENERAL CONTEXT. III.1. Nature and development. III.2. Scope. IV. POSITIVE OBLIGATION FROM ARTICLE 2 PARAGRAPH 1 OF THE CONVENTION (II). SCOPE IN HEALTHCARE CONTEXT. IV.1. Obligation to take appropriate legal provisions. IV.2. Obligation to take preventive operational measures. IV.2.a. Conditions. IV.2.b. Limitations. V. CONCLUSIONS.