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OksanaKUCHIV,

Leading researcher at the National School of Judges of Ukraine

PHYSICAL AND PSYCHOLOGICAL INTEGRITY OF A PERSON: DISTRIBUTION OF THE FIELD OF ACTION ARTICLES 3 AND 8 OF  EUROPEAN CONVENTION ON HUMAN RIGHTS IN THE LIGHT OF THE ECTHR CASE-LAW

In accordance with the ECtHR case-law physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention. Moreover, a person’s body concerns the most intimate aspect of private life, and compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right.

The right to respect for private life in the aspect of physical and moral integrity of a person may be combined with the one set forth in Article 3 of the Convention to prohibit torture.

To differentiate the scope of Art. 3 and Art. 8 of the Convention in the aspect of physical and psychological/moral integrity of a person in the light of ECtHR case-law the Court’s view set out in the Costello-Roberts v. the United Kingdom (March 25, 1993) is essential. This is repeated in the Bensaide v. The United Kingdom (application No. 44599/98, of 6 February 2001) and other cases. The Court does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity.

Medical intervention to which a person is subjected against his or her will, including for the purposes of psychiatric assistance, may be regarded as treatment prohibited by Article 3 of the Convention. For the purposes of Article 3, the ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.

In deciding on the compliance of such measures with the above provision, the Court has examined, among other relevant factors, whether the preceding decision-making process afforded sufficient procedural guarantees to the applicant.

According to the Court’s well established case-law Article 8 contains implicit procedural requirements, it must be determined whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.

The ECHR does not exclude the possibility that the positive obligation of the state under art. 8 to ensure the physical integrity of a person may relate to the effectiveness of criminal investigations, the formal conduct of which is a requirement of the procedural aspect of Art. 3 of the Convention.

Key words: physical and psychological/moral integrity of the person, private and family life, prohibition of ill-treatment, negative and positive obligations, interference, procedural guarantees, effective investigation.

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