Neuro-Interventions in Criminal Justice: An Analysis of Article 3 ECHR

Abstract

Neuro-interventions are under consideration for use in the near future in criminal justice contexts, in order to rehabilitate offenders and reduce recidivism rates. However, potential use of neuro-interventions raises concerns about human rights, specifically the offender's physical and mental integrity. This article will therefore consider whether the framework provided by art. 3 of the European Convention on Human Rights offers protection for offenders against state-initiated neuro-interventions. As there is no case law on this topic (yet), this article draws an analogy with medical procedures in detention. Based on this analogy, the article discusses three factors used by the European Court of Human Rights to decide on medical interventions (consent, medical necessity and manner of execution) and analyses to what extent these would be applicable in the context of neuro-interventions. Although art. 3 seems to provide a degree of protection against neuro-interventions, a number of lacunae in the Court's current case law are identified.