Who Establishes the Presence of a Mental Disorder in Defendants? Medicolegal Considerations on a European Court of Human Rights Case

Kooijmans, Tijs; Meynen, Gerben

doi:10.3389/fpsyt.2017.00199

Cited by 10 publications

(12 citation statements)

References 7 publications

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“…The involuntary placement of a person in a psychiatric institution has already been the subject of scientific consideration in a medical aspect (see at: Saya A., Brugnoli C., Piazzi G., Liberato D., Di Ciaccia G., Niolu C., & Siracusano A. [20]), and in law one (see at: Tijs Kooijmans and Gerben Meynen [18] and Christopher Slobogin [21]), in particular in criminal procedure (see at: Ruchina O. [22], Tsokolova O.…”

Section: Discussionmentioning

confidence: 99%

Placement of a Person in a Medical Institution in Order to Conduct a Psychiatric Examination: International Standards and National Realities

Tyshchenko

Тітко

2020

Wiad Lek

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The aim: The aim of this work is to identify the compliance level of modern practice of placement of a person in a medical institution in order to conduct the FPE to international standards and legal positions of the ECHR in terms of ensuring the right to liberty and security of person; formulation of scientifically substantiated proposals on the synchronization directions of national practices with the specified international standards. Materials and methods: During the preparation of the article the following was processed: scientific research on ensuring the rights of persons suffering from mental disorders in criminal proceedings; provisions of international agreements on the provision of psychiatric care; legal positions of the ECHR on the observance of persons’ rights suffering from mental disorders (15 judgments on this topic); criminal procedural legislation of individual states; results of generalization of national law enforcement practice; the results of a survey conducted by the authors of 18 psychiatrists who practice in the field of forensic psychiatric examinations (psychiatrists working in state psychiatric clinics in Odesa, Poltava, Kharkiv were interviewed). In the process of research a set of general scientific and special methods of cognition was used (comparative-legal method, system-structural method, generalization method, method of analysis and synthesis, method of sociological research, method of expert assessments, etc.). Results: According to the research results: a) legal positions of the ECHR on the observance of the rights of persons suffering from mental disorders are identified and generalized; b) the compliance level of modern practice of placing a person in a medical institution in order to conduct the FPE with international standards and legal positions of the ECHR in terms of ensuring the right to liberty and security of person (§ 1 of Article 5 of the Convention); c) the degree of extrapolation of these positions to the activities of psychiatrists is analyzed; d) the optimal ways of solving the existing problems in the aspect of ensuring the rights of a person when placing them in a medical institution for an inpatient FPE are proposed. Conclusions: The current national practice of placing a person in a medical institution for an inpatient FPE does not fully comply with the legal positions of the ECHR in terms of ensuring the right to liberty and security of person (in particular, there are deviations from the positions of the ECHR on: determining the documentary basis for the appointment of an inpatient FPE; interaction of police and medical workers in the field of psychiatry during the detention of a person with a mental disorder).

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Section: Discussionmentioning

confidence: 99%

Placement of a Person in a Medical Institution in Order to Conduct a Psychiatric Examination: International Standards and National Realities

Tyshchenko

Тітко

2020

Wiad Lek

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“…23 According to Article 39 of the Dutch Criminal Code, an offender who commits a crime but cannot be held responsible due to a mental disorder, psychogeriatric disorder, or intellectual disability, cannot be punished. 24 However, in such instances it is possible to impose a treatment measure. In addition, the possibility of diminished responsibility is recognised, enabling the imposition of punishment dependent on the attributable part of the offence, followed by treatment for the part of the offence for which the offender was not accountable.…”

Section: 1mentioning

confidence: 99%

Victim-Offender Contact in Forensic Mental Health

Dalhuisen¹,

Bosma²

2021

Erasmus Law Review

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Crime victims have gained a stronger position in all phases of the criminal procedure, including the post-sentencing phase. It is in this phase specifically that victims' needs and interests relating to acknowledgement interplay with the offenders' needs and interests relating to resocialisation. In the Netherlands, offenders who suffer from a mental disorder at the time of the offence limiting their criminal accountability and pose a significant safety threat, can be given a TBS order. This means that they are placed in a forensic psychiatric hospital to prevent further crimes and receive treatment aimed at resocialisation. As resocialisation requires the offender to return to society, contact with the victim might be a necessary step. This article focuses on victim-offender contact during the execution of this TBS order, and looks at risks and opportunities of victim-offender contact in this context, given the particular offender population. Offenders are divided into three groups: those with primarily psychotic disorders, those suffering from personality disorders and those with comorbidity, especially substance abuse disorders. The TBS population is atypical compared to offenders without a mental disorder. Their disorders can heighten the risks of unsuccessful or even counterproductive victim-offender contact. Yet, carefully executed victim-offender contact which includes thorough preparation, managing expectations and choosing the right type of contact can contribute to both successful resocialisation as well as victim acknowledgement.

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“…60 Interestingly, courts may also establish a mental disorder in cases where the experts -after weeks of intensive clinical observation -could not diagnose a mental illness in an uncooperative defendant. 61 The Court of Appeal has argued -and the Dutch Supreme Court has agreed -that the disorder does not have to be based on the DSM and that the disorder does not have to be established by a behavioural expert. The judge is considered to have his own responsibility in these matters, but no legal criterion for 'disorder' has been formulated.…”

Section: The Interplay Between Judges and Expertsmentioning

confidence: 99%

Constructing criminal insanity: The roles of legislators, judges and experts in Norway, Sweden and the Netherlands

Gröning

Haukvik

Meynen

et al. 2020

New Journal of European Criminal Law

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This article provides a discussion about criminal insanity regulation in Norway, Sweden and the Netherlands, with a focus on the roles of legislators, judges and experts in the concretisation of the legal meaning of criminal insanity. The authors recognise that these three countries reflect different ideal type rule constructions that are interesting to study comparatively. The article addresses the following overall questions: To what extent and in what way do the different rule constructions also involve different views on the roles of legislators, judges and experts? And in case of competing models, which is the better solution? To investigate and eventually answer these questions, the authors analyse the content and legislative considerations of the relevant rules, how these rules are applied and understood by judges and experts, and how different understandings of insanity, of legislators, judges and experts, depend on each other. The authors show how the different rule constructions represent different considerations on the adequate roles of the legislator, judges and experts. They argue that what is important is not what precise division of roles that is settled, but that this interplay functions to secure clear and robust rules, and that each of the three countries has room for improvement in this regard.

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Who Establishes the Presence of a Mental Disorder in Defendants? Medicolegal Considerations on a European Court of Human Rights Case

Cited by 10 publications

References 7 publications

Placement of a Person in a Medical Institution in Order to Conduct a Psychiatric Examination: International Standards and National Realities

Placement of a Person in a Medical Institution in Order to Conduct a Psychiatric Examination: International Standards and National Realities

Victim-Offender Contact in Forensic Mental Health

Constructing criminal insanity: The roles of legislators, judges and experts in Norway, Sweden and the Netherlands

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