Moreover, the ECtHR ruled against France on three occasions in 2011 196, due to the
absence of effective remedy against disciplinary measures.
Two requirements appear to have been laid down through these rulings: on the one hand,
the right to effective remedy against sanctions imposed by disciplinary authorities; on the other
hand, guarantees with regard to conditions of detention within punishment wings.
Although these rulings concern the conditions of exercise of disciplinary regulations in
prisons, one can only note that no similar case law exists with regard patients hospitalised without
their consent, children in young offenders’ institutions and foreigners in detention.
Thus, in the absence of formal disciplinary regulations meeting the requirements of the
European Convention for the Protection of Human Rights, the human imagination, which is
very fertile in this respect, has invented a whole range of disguised, unlawful and clandestine
sanctions within institutions where their presence is unexpected, in particular with regard to
committal to hospitalisation and patients who are prison inmates.
While the disciplinary regimes within other institutions, such as detention centres for
illegal immigrants (CRA) and young offenders’ institutions (CEF), have poorly-defined contours
and might be described as being “in their embryonic stages”. Provisions exist, however they
remain very inadequate, allowing a non-negligible proportion of arbitrariness to remain.
Prisons, on the other hand, unquestionably possess real disciplinary regulations subject to
codified rules, though much room for improvement nevertheless remains. Indeed, the existence
of sanctions that are indirect, or devoid of any legal and statutory basis, is a reality and certain
practices, which resemble the absence of law, are similarly not exempt from arbitrariness.
1. Empirical Disciplinary Practices built upon Legal Uncertainties
1.1 Misuse of Therapeutic Practices for Disciplinary Purposes within Health
Institutions
Do practices which might resemble disciplinary management of patients exist within health
institutions such as units for difficult psychiatric patients (UMD), public mental health
institutions (établissements publics de santé mentale / EPSM), interregional secure hospital units (unités
hospitalières sécurisées interrégionales / UHSI), specially equipped hospital units (UHSA) and secure
hospital rooms? Can disciplinary regimes apply insofar as the notion of fault cannot exist within
psychiatric institutions? How should certain practices, and physical restraint and placement in
seclusion in particular, be interpreted?
1.1.1 Within Mental Health Institutions
Disguised sanctions can affect very concrete aspects of patients’ daily lives.
Officially, these involve “treatment measures taken in the patient’s own
interest”.
Indeed, the notion of a “framework of treatment” sometimes appears to serve the
purposes of the organisation of departments and of discipline, rather than strictly therapeutic
aims, including as far as the administration of neuroleptics - sometimes referred to as “chemical
straightjackets” - is concerned.
196
ECtHR, 20th January 2011, no. 19606/08, Payet vs. France; ECtHR, 3 rd November 2011, no. 32010/07, Cocaing vs.
th
France; ECtHR, 10 November 2011, no. 483337/09, Plathey vs. France.
101
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