Protection of the Mind under the ECHR: An Analysis in Light of Emerging Neurointerventions in Criminal Justice

The mind has long been considered inaccessible to external influence – however, this is no longer the case. Advances in the field of neuroscience have given rise to a plethora of neurotechnologies designed to directly access, monitor, examine, and stimulate the brain’s neural systems. While these technologies were initially developed for medical purposes, over time, they are expected to expand into other areas of daily life, including the courtroom and criminal justice. For example, emerging neurotechnological interventions – known as neurointerventions – such as neurostimulation, may offer novel approaches to rehabilitation, aimed at reducing recidivism rates among detainees. In response to these developments, human rights scholars, institutions, and several national governments have begun to question what legal safeguards are necessary to address the human rights challenges posed by the growing accessibility and influenceability of the mind. Protection of the Mind under the ECHR explores this question through the lens of the European Convention on Human Rights (ECHR). It examines the extent to which the mind is currently protected, how that protection might evolve in response to emerging neurointerventions, and whether the protection is adequate in view of the increasing ability to interfere with mental processes. The book argues that the ECHR can be interpreted dynamically to provide robust mental protection, primarily through the right to respect for private life (Article 8 ECHR). The case law on this right already contains the conceptual vocabulary necessary to protect the mind, encompassing privacy, physical and mental integrity, autonomy, and personal identity. This framework is further supported by the prohibition of ill-treatment (Article 3 ECHR) and the right to freedom of thought (Article 9 ECHR), which provide absolute protection against more serious forms of mental interference. The Court is thus well-positioned to construct a protective framework for the mind and is expected to do so in accordance with the ECHR’s commitment to effective human rights protection. All in all, this research highlights the importance of examining, clarifying, and, where necessary, (re)interpreting existing human rights, including those enshrined in the ECHR, in order to reveal and realise their protective potential for the mind.