Die straf- und standesrechtliche Bewertung ärztlicher Suizidbeihilfe

In a judgement dated 14 May 2013, the European Court of Human Rights (ECtHR) decided that it constitutes a violation of the rights guaranteed by the European Convention on Human Rights (ECHR) if a national legal system does not explicitly clarify the circumstances under which physician-assisted suicide may be granted to people who are not suffering from an irreversible and life-threatening illness. Although the decision was issued against Switzerland and does not unfold any direct effects on those member states which were not involved in the legal process, the statements given by the court broadly affect the interpretation of the ECHR on the national level. Against this background and with regard to the fact that until the present day the question of the admissibility of assisted suicide has not been exclusively answered, the article takes the verdict of the ECtHR as a reason for analyzing the relevant German regulations. It was found that the provisions of the core areas of criminal law leave no doubt as to the impunity of assisted suicide as long as it is granted to someone who is not limited in the ability to judge although a corresponding clarification by the Federal High Court has not yet been issued. However, the canons of professional ethics turn out to be less clear. As the reform of the Model Code of Conduct (MCC) by the Federal Medical Association in 2011 did not solve the question of the admissibility of assisted suicide in a satisfying manner, many regional medical associations refused to implement the relevant section 16 of the MCC. The resulting inconsistency and insecurity in the legal assessment provide further evidence of the need for a uniform federal regulation that identifies reliable criteria for the evaluation of physician-assisted suicide.     

A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights1

Abstract

The article examines the strategies the European Court of Human Rights (ECHR) employs to apply the concept of neutrality in relation to Article 9 (freedom of religion or belief) of the European Convention on Human Rights. Having explored the theoretical background of the concept of neutrality and its specific application in the case law, the authors argue that neutrality is often used to display a bias towards a particular world view or societal paradigm, rather than representing unbiased perspectives of legal reasoning. The article studies the specific justifications for such biased approaches in the context of relevant ECHR cases and argues that in this way neutrality has discredited itself as a credible legal tool and as a form of legal argumentation. Furthermore the difficulty of handling the complexities of Article 9 claims by applying the principle of neutrality has led to a stronger trend of avoiding Article 9 by dealing with Article 9 claims through other Convention articles. Finally the authors discuss possible new approaches to legal reasoning which could take on board the dynamics of freedom of religion or belief through independent reasoning beyond the myth of neutrality.     

Eckpunkte f��r den Vollzug der Sicherungsverwahrung

A working group from the states of Berlin and Brandenburg has worked out benchmarks for the structural organization of detention and reprimand for people who have been sentenced to preventive detention in addition to the actual punishment. Decisive for this from the very beginning was the idea to maintain the aim of social reintegration of convicted persons and to adapt the execution of preventive detention not only formally to the guidelines of the European Court of Human Rights.     

Langzeituntergebrachte in der Sicherungsverwahrung

Due to the decision of the European Court for Human Rights, up to mid-2010 the courts of execution had to decide about the release of offenders who had been imprisoned for more than 10 years in preventive detention. This in fact was problematic because preventive detention was limited to a maximum of 10 years at the time of conviction. In all of these cases preventive detention persisted due the assumed high dangerousness of those affected. Regarding the 11 cases that had to be decided by the provincial High Court of Hamm, Germany in 2010, the completion of the detention has been concluded in all cases. The majority of these cases will be described briefly in order to illustrate the different case constellations which led to long-term detention. Moreover these cases serve to demonstrate the difficulties which can arise when trying to evaluate or predict future dangerousness.     

Perspektivenwechsel bei der Sicherungsverwahrung

The author critically describes the recent measures for extension of preventive detention. He refers to the contrast to the actual development in crime and it would appear that the politics of law no longer react to the real state of the danger of the situation but to that produced by the media. Preventive detention shows signs of changing from a last resort to a standard punishment and therefore comes if nothing else into conflict with the European Convention on Human Rights.     

Freedom of Religion or Belief in the Jurisprudence of the Bulgarian Constitutional Court1

Abstract

This article discusses the evolution of the jurisprudence of the Bulgarian Constitutional Court (BCC) in the area of freedom of religion or belief by reference to its most recent judgment, which among other things considered the legality of a provision of establishment ex lege of the majority religion. While the court was unable to reach the majority needed for a decisive judgment, the elaborations of the two groups of judges illustrate two distinctive trends in BCC jurisprudence in the area of freedom of religion or belief. At one end of the spectrum the dissenting judges presented very detailed elaborations for the justification of establishment ex lege against the background of Article 9 of the European Convention on Human Rights, with notions similar to the Hartian rule of recognition, using sources such as canon law and Ottoman law as legally relevant facts for the constitution of a ‘background culture’ (via establishing the majority religion ex lege). At the other end of the spectrum dissenting judges presented a more sceptical approach to establishment ex lege through a very literal interpretation of the principles and some of the European Court of Human Rights jurisprudence dealing with Article 9. While the decision was not conclusive it flagged a new dimension to the BCC's approach in the area of human rights and freedom of religion or belief – the blending of political and legal analytical philosophy with a detailed analysis of European Court of Human Rights case law.     

?Psychische St?rung�� als Begr��ndung f��r staatliche Eingriffe in Grundrechte des Individuums

When dealing with ?old cases?? of preventive detention as well as retrospectively ordered preventive detention, a continuation of confinement should be possible if the offender involved suffers from a ??mental disorder?? which constitutes the danger of future serious violent or sexual crimes. In this psychiatric article it will be explained that the terms ??mental illness?? and also ??mental disorder?? must retain an empirical scientifically definable psychiatric content in order not to instigate deception. They must also be functionally defined in each judicial environment (police law, social law, civil law and criminal law) with respect to the capabilities of the individual which are impaired by the mental disorder. Such an approach could prevent a misuse of psychiatry for purely political security purposes.     

Sicherungsverwahrung

The author, chairman of a criminal enforcement court and a criminal court, explains the current legal situation following the judgment of the Federal Constitutional Court on preventive detention. He describes the judicial requirements of psychiatric or psychological assessment and the judical understanding of the term ??mental disorder?? under these circumstances.     

Detention conditions’ impact on anxiety and depression levels of prisoners

IntroductionThe mortality rate in Portuguese prisons is the highest of the European Community. Two thirds of these deaths concern individuals in preventive detention, who have not yet faced trial.ObjectiveOur objective is to examine the impact of different detention conditions on the anxiety and depression rates of inmates. We predict that the anxiety and depression rates would be higher for inmates in preventive detention.ResultsResults have shown that the depression rates of inmates in open detention were the lowest. Depression rates were highest among inmates in preventive detention.DiscussionThe results do not allow us to confirm our hypothesis regarding anxiety rates. Considering our results, inmates in preventive detention seem to represent the most vulnerable population of the prison in relation to the two other groups.     

Forensische Psychiatrie zwischen Therapie und Sicherung

The therapeutic tasks of forensic psychiatry range between the field of tension of “improvement” and “security” of entrusted persons. With respect to these aspects a paradoxical position of politics and society can be seen: whereas, regulatory security aspects are emphasized and detention measures are required with respect to the treatment measures according to §63 and §64 of the penal code (StGB) and any relaxation of rules is critically viewed, under pressure from the European jurisprudence preventive detention has been declared as a therapeutic measure. The superordinate priority of these measures is to prevent recidivism. This article firstly summarizes the empirical evidence concerning the efficacy of forensic psychiatric treatment of relevant disorders. From this it becomes obvious that the data are unreliable due to relevant risk aspects; therefore, the comparison of safety and therapeutic interests remains a challenging undertaking. A working approach that can successfully encompass both aspects is long-term case management, which is in a position to do justice to both the inpatient interaction and dynamic aspects of the treatment process beyond detention. Because the effectiveness of aftercare has been confirmed, we propose the implementation of forensic outpatient treatment as an alternative to forensic inpatient treatment.     

Le droit de recours en matière d’autopsies médico-légales

The decision to carry out forensic autopsies is frequently made to determine the reasons of the death, especially in cases of non-natural death. In Switzerland, the judge strictly controls the authorisation to conduct forensic autopsies and the possibility to appeal against such a decision remains limited. This article aims to analyse the legal framework that enables appeals against a decision to conduct a forensic autopsy, taking into account the jurisprudence from the High Court of Switzerland (Tribunal Fédéral) and the European Court of Human Rights.     

Beyond Sectarianism? On David Miller’s Theory of Human Rights

In his most recent book, National Responsibility and Global Justice, David Miller presents an account of human rights grounded on the idea of basic human needs. Miller argues that his account can overcome what he regards as a central problem for human rights theory: the need to provide a ‘non-sectarian’ justification for human rights, one that does not rely on reasons that people from non-liberal societies should find objectionable. The list of human rights that Miller’s account generates is, however, minimal when compared to those found in human rights documents, such as the Universal Declaration of Human Rights and the European Convention on Human Rights. This article argues that contrary to what Miller claims, his account is ‘sectarian’, since it relies on reasons that some non-liberals should find objectionable given their divergent values. It goes on to question whether ‘sectarianism’, as Miller defines it, is, in any case, a problem for human rights theory. The article concludes that Miller provides us with no reason to abandon commitment to a more extensive list of human rights.     

Therapie und Therapiebeurteilung als Grundlage juristischer Entscheidungen

The idiosyncratic focus of German legal politics on sexual crimes and the extension of preventive detention has led to an unhoped-for career of the juridical therapy expections of the penal system. The basic justification and necessity of an expansion of “treatment detention” particularly in the therapeutic form will be clarified. People detained under preventive detention are not sick but their disposition to undertake serious crimes can be considered as a condition in need of therapy and nursing. Even the “mental disorder” of the Therapy Detention Act (ThUG) is, according to the author, nothing more than this “disposition” to § 66 of the Penal Code. Of course therapy leads to obviously positive results in only some of the convicted felons but nevertheless it is worth it. The newer form of preventive detention takes over considerable tasks and responsibilies from the never realized social therapeutic mental institution (in the sense of a “reprimand solution”).     

Religious Hatred Laws: Protecting Groups or Belief?

This article examines the issues raised by recent legislation proscribing incitement to religious hatred. In particular, it examines how far arguments for prohibiting racist hate speech apply also to the prohibition of religious hate speech. It identifies a number of significant differences between race and religion. It also examines several questions raised by the prohibition of religious hate speech, including the meaning and scope of religious identity, why that identity should receive special protection, and whether protection should be directed to religious groups as groups or to their individual members. The central argument of the article is that the distinction between protecting religious groups from vilification and protecting their beliefs and practices from criticism—a distinction on which the British Government placed great emphasis in defending its legislation—is unsustainable. That conclusion is supported by the reasoning of the European Court of Human Rights in cases in which it has upheld the curtailing of freedom of expression for the sake of protecting religion.     

Damned if they do,Damned if they don’t: the European Court of Human Rights and the Protection of Religion from Attack

The approach of the European Court of Human Rights to cases of religiously offensive expression is inconsistent and unsatisfactory. A critical analysis of the Court’s jurisprudence on blasphemy, religious insult and religious hatred identifies three problems with its approach in this field. These are: the embellishment and over-emphasis of freedom of religion, the use of the margin of appreciation and the devaluing of some forms of offensive speech. Nevertheless, it is possible to defend a more coherent approach to the limitation of freedom of expression under the European Convention of Human Rights, designed to protect religious liberty in a narrower category of cases.     

Human Rights Attitudes: Dimensionality and Psychological Correlates

This study assesses the dimensionality and correlates of individuals' attitudes toward human rights. In previous research, the Attitudes Toward Human Rights Inventory (ATHRI) was assumed to measure a unidimensional phenomenon and, as such, was used as an omnibus measure of human rights attitudes. In this study, factor analysis revealed the presence of 3 factors accounting for the variance in the measure, Personal Liberties, Civilian Constraint, and Social Security. This finding provided partial replication of results obtained by Diaz-Veizades, Widaman, Little, and Gibbs (1995) with their Human Rights Questionnaire and supports the contention that human rights attitudes should be considered multidimensional in nature. Correlation and regression analyses suggested that attitudes toward personal liberties are associated with political identification, whereas attitudes toward civilian constraint are related to moral judgment development and need for cognitive closure. Implications for ethics research and education are discussed.     

International Human Rights and National Discretion

This paper argues that the EuropeanCourt of Human Rights couldserve as a model for an international court ofhuman rights to be builtupon the United Nations Committee on HumanRights. It argues that theconcerns states might have over the surrenderof a significant portion oftheir national sovereignity might be lessenedif such an internationalcourt were to incorporate the margin ofappreciation doctrine employed bythe European Court of Human Rights. Thisdoctrine is intended to respectthe customs and traditions of sovereign statesin dealing with humanrights issues, while maintaining that somerights such as the right not tobe tortured will be considered as basic andwill stand independently ofthe customs and traditions of sovereignstates.     

Umgang mit gefährlichen Straftätern in England und Wales

Forensic psychiatric institutions exist in all western European countries. Their organisation depends on a number of factors including the legal framework and societal attitudes towards mentally disordered offenders. This article describes and critically comments on the forensic psychiatric system in England and Wales, its legal framework and approaches to dealing with dangerous offenders. England and Wales have a long forensic psychiatric tradition with the first high security hospital, Broadmoor hospital, having been established in 1863. Evidence-based treatment approaches in forensic hospitals as well as in prisons, training of forensic psychiatrists and research in the field of forensic psychiatry have gained international recognition. However, there are some worrying aspects in the system of forensic psychiatric care and the criminal justice system more generally, in particular the high and still increasing number of prisoners in comparison with other European countries, the low age of criminal responsibility, long sentences, increasing length of stay in forensic care and the increasingly risk averse culture. A number of differences to the German system can be found; one such difference relates to the role of criminal responsibility which is irrelevant for decisions regarding commitment in England and Wales. Only the mental state and need for treatment at the time of trial (or later assessment in prison) determine whether an offender is admitted to psychiatric care or receives a prison sentence. A number of new initiatives have been launched in recent years resulting in an increasing number of individuals being detained in forensic psychiatric and criminal justice institutions, in particular the initiative for the detention and treatment of individuals with so-called dangerous and severe personality disorders, the sexual offenders register and the new sentence of indeterminate imprisonment for public protection. These initiatives have been the subject of a number of complaints to the European Court of Human Rights. Nevertheless, the trend towards a more and more risk averse culture continues.     

Die Sachverständigenexpertise im Spannungsfeld zwischen Justiz und Psychiatrie am Beispiel des Hangbegriffes des § 66 StGB (Sicherungsverwahrung)

Using the example of psychiatric expert opinions in trials leading to preventive detention, we analysed how far the corresponding orders by the courts were suited to guide the psychiatric experts and restrict them to their area of expertise. Furthermore we concentrated on the question, what reasons were given for preventive detention on both psychiatric and judicial side and how psychiatric arguments were adopted by the judges. Our results show clearly, that placing an order with the psychiatric expert as well as adopting the psychiatric arguments for preventive detention occur mainly in a stereotypic way. Psychiatric and judicial arguments for preventive detention refer both to previous delinquency. Aspects concerning the offenders personality appear to be secondary, although they play a major role in the decision for preventive detention. The article shows the controversy associated with forensic-psychiatric expertise in the courtroom and the need for communication and clarification between psychiatry and law.     

Women’s Right to Autonomy and Identity in European Human Rights Law: Manifesting One’s Religion

Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life.