On 2 February 2016, the judgement of the European Court of Human Rights in the case of Hadžimejlić and Others against Bosnia and Herzegovina became final. By this judgement, the violation of the applicants’ rights to security and liberty prescribed by the Article 5 of the Convention has been established to be caused by the unlawful detention of the applicants in the social care institutions. After more than a year passed from the date of the judgement becoming final, Bosnia and Herzegovina still face difficulties in adopting an action plan on implementation of the measures posed by the judgement concerned.
Table of Contents
1 Introduction to the Genesis of Violation of the rights of persons with mental illness caused by the national authorities
2 The violation of the Right to Liberty and Security of Persons with Mental Illness Determined by the Constitutional Court and the European Court of Human Rights
2.1 The Constitutional Court's Decisions on the Violation of the Appellants' Rights to Liberty and Security
2.2 The Europena Court's Judgment Regarding the Violation of the Applicant's Rights to Liberty and Security and the Applicable National and International Standards
3 Conclusion Regarding the Possible Shortcomings in the Implementation of the Judgement in the Case of Hadžimejlić and Others versus Bosnia and Herzegovina
Objectives and Topics
This work aims to analyze the violation of human rights regarding the liberty and security of persons with mental illness in Bosnia and Herzegovina, focusing on the legal shortcomings exposed by landmark court rulings and the subsequent implementation challenges of these judgments.
- Legal framework governing legal capacity and guardianship in Bosnia and Herzegovina.
- Constitutional Court and European Court of Human Rights rulings in the Hadžimejlić and Others case.
- Systemic issues concerning the involuntary detention of persons with mental illness in social care institutions.
- Evaluation of the current implementation status of general measures required to harmonize national legislation with international human rights standards.
- Barriers to judicial review and the role of psychiatric expertise in legal capacity proceedings.
Excerpt from the Book
2.1.1 The Case of Zuhra Hadžimejlić
After the mental illness named paranoid schizophrenia was diagnosed to Zuhra Hadžimejlić, the competent court in the contentious procedure reached a decision by which Ms. Hadžimejlić was deprived from legal capacity and placed under guardianship of her sister. Since the diagnosed mental illness was serious, the procedure of placement of Ms. Hadžimejlić in the social care institution was launched by the competent social care centre in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children. Consequently, when all prerequisites prescribed by this Law were fulfilled, Zuhra Hadzimejlić was placed in the social care institution in 2007. Since any other legal instrument were not at her disposal, Ms. Hadžimejlić lodged the appeal before the Constitutional Court claiming that her mental state had been changed and that she does not need the guardianship anymore. In addition, she stated in her appeal that she wants to be released from the social care institution, the division for neuropsychiatry. Although the competent social care institution in her response stated that this institution is of a semi-opened type and that the state of illness of Ms. Hadžimejlić is very serious and demands the constant care, the Constitutional Court rendered a decision in which it ruled that there has been violation of Article II/3.d of the Constitution and of Article 5 paragraph 1.e. and paragraph 4 of the European Convention of Human Rights and Fundamental Freedoms. By the same decision the competent social institution was ordered to take appropriate measures in order to secure the appellant's rights deriving from relevant Articles of the Constitution and the European Convention.
Summary of Chapters
1 Introduction to the Genesis of Violation of the rights of persons with mental illness caused by the national authorities: This chapter outlines the legislative framework that leads to the deprivation of legal capacity and involuntary placement of persons with mental illness in social care institutions.
2 The violation of the Right to Liberty and Security of Persons with Mental Illness Determined by the Constitutional Court and the European Court of Human Rights: This chapter details the specific legal battles of appellants and the subsequent rulings by both the Constitutional Court of Bosnia and Herzegovina and the European Court of Human Rights, establishing that such detentions violated human rights standards.
3 Conclusion Regarding the Possible Shortcomings in the Implementation of the Judgement in the Case of Hadžimejlić and Others versus Bosnia and Herzegovina: This chapter concludes that without a unified governmental approach, legal and practical obstacles remain, leaving the system prone to ongoing human rights violations.
Keywords
Mental Illness, Human Rights, European Convention, Bosnia and Herzegovina, Legal Capacity, Guardianship, Involuntary Detention, Social Care Institutions, Constitutional Court, European Court of Human Rights, Judicial Review, Article 5, Hadžimejlić and Others, Harmonization, Legislation.
Frequently Asked Questions
What is the primary subject of this work?
The assignment examines the systemic violation of the rights to liberty and security of persons with mental illness who have been placed in social care institutions in Bosnia and Herzegovina without adequate legal protection.
Which central themes are discussed in the paper?
Central themes include the intersection of national guardianship laws and international human rights conventions, the failure of judicial oversight, and the challenges in implementing judgments from the European Court of Human Rights.
What is the primary research goal or question?
The goal is to analyze why persons with mental illness have been unlawfully deprived of liberty and to evaluate the shortcomings in implementing the necessary legislative and judicial reforms following international court rulings.
What scientific or legal methodology is employed?
The paper employs a legal analytical approach, reviewing national legislation, international treaties, and specific case law, including the landmark Hadžimejlić and Others versus Bosnia and Herzegovina case.
What is covered in the main body of the work?
The main body focuses on the specific cases of Zuhra Hadžimejlić and Marcel Crepulj, the legal interpretations of the courts, and a critical look at the current status of the government's action plan for legislative reform.
Which keywords characterize this paper?
Key terms include mental illness, human rights, guardianship, involuntary detention, Article 5 of the European Convention, and the European Court of Human Rights.
Why were the detentions in social care institutions deemed unlawful?
The courts found these detentions unlawful because they occurred without valid legal processes, lacked independent judicial review, and were maintained even when the medical necessity for institutionalization was no longer present.
How does the current legislation complicate the restoration of legal capacity?
The paper explains that persons deprived of legal capacity face a significant barrier: they can only initiate a process for restoration if they are judged to understand the consequences of their actions—a judgment made by psychiatric experts who are often tied to the system that keeps them detained.
- Arbeit zitieren
- Peđa Đurasović (Autor:in), 2017, Violation of the Rights of Persons with Mental Illness in Bosnia and Herzegovina, München, GRIN Verlag, https://www.grin.com/document/505393
