Coercive neuroimaging technologies in criminal law in Europe: Exploring the implications for the prohibition of ill-treatment (article 3 ECHR)

Neuroscience is developing constantly and improves neuroimaging technologies which can acquire brain related information, such as (f)MRI, EEG and PET. These technologies could be very useful to answering crucial legal questions in a criminal law context. However, not all defendants and convicted persons are likely to cooperate with these technologies, and as a consequence the possibility of coercive use of these technologies is an important issue. The use of coercive neuroimaging technologies in criminal law, however, raises serious legal questions regarding European human rights. For instance, how does such coercive use relate to the prohibition of torture, inhuman and degrading treatment (‘ill-treatment’, article 3 European Convention on Human Rights)? This chapter describes four neuroimaging applications and explains how they could contribute to materializing the aims of criminal law. Furthermore, it conceptualizes two types of coercion with which neuroimaging can be applied and explains why that distinction is relevant in this context. Finally, it explores the legal implications of coercive neuroimaging in the context of the prohibition of ill-treatment.