Importanţa evaluării medicale psihiatrice în privarea de libertate a alienatului mintal
The importance of psychiatric medical assessment in the deprivation of liberty of mental alienation

Summary/Abstract: Freedom is the most important human right, therefore, when a judge has a proposal on his desk requesting the deprivation of liberty of a person on the grounds of alienation, he must carefully weigh the issues of fact and law put in balance, both the part that demands the de-privation of liberty as well as the one whose deprivation of liberty is being discussed. Thus, when the deprivation of liberty of a person is questioned, it is necessary to consider, in addition to the provisions of national law, the right to liberty and security conferred by Ar-ticle 5 of the European Convention on Human Rights. This article establishes cases in which, under the law, a person may be deprived of his/her liberty, including the detention of a men-tally alienated person. In this respect, the European Court has consistently held in its case law that an individual cannot be considered "alienated" and cannot be deprived of liberty unless at least the follow-ing three conditions are met: First, its alienation must have been established in an edifying manner; Second, the disorder must be of a character or magnitude to justify internment; Third, the admission cannot be extended without the persistence of this disorder. As far as the first condition is concerned, in order for it to be fulfilled, the judge must verify whether there is an opinion from a committee of psychiatric specialists. In the absence of such an opinion, the judge cannot substitute the commission and order the deprivation of li-berty of the mentally alienated person by invoking the state of danger created by the mentally alienated persons’ release. The opinion may take the form of an expert report or a forensic medical certificate issued by legal medical practitioners or a decision of a panel of psychiatrists. Consequently, before verifying the fulfillment of other matters of fact and law, the judge must verify the existence of such an opinion in the case file.

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