Apart from the expert opinion, there are no other assessment mechanisms available. For
example, there are no specific assessment mechanisms that would prompt the ordering
of the expert opinion.
That identification of defendants with psychosocial and/or intellectual disabilities was
also identified by our interviewees. As the interviewed judge explained, it can happen
that the defendant’s psychosocial or intellectual disability is overlooked, if the defendant
does not mention the disability or there are no particular circumstances or specific
behaviour at the time of the offence: “Illnesses can have different phases and the person
participates normally in the investigation and their defence. If they do not say anything
themselves and if it is not visible on the outside, it can be overlooked.”123
The judge also mentioned that usually the police will gather information about the
possible psychosocial and/or intellectual disability, or the defendant will mention that
they have been receiving treatment. If the person does not mention anything and if there
are no obvious indicators, it is possible that the disability goes unnoticed.124 The
interviewed representative of an NGO also reported a case of their client where disability
was not recognised: “Judging from what the person told me about his experience, the
system would not care.”125
If psychiatric examination does not find mental incapacity (the defendant is capable of
being criminally responsible) and if the defendant is considered as fit to stand trial, they
will be tried and may be subjected to detention and imprisonment under the rules
prescribed by the law for all defendants and detainees.
Lack of accommodations
There are no other measures or accommodations in the criminal proceedings for
defendants with psychosocial and/or intellectual disabilities that have been considered
as fit to stand trial and criminally responsible. As the interviewed representative of an
NGO that is representing persons with psychosocial disabilities commented: “They are
either treated as if they are perfectly healthy, or they are treated as if they are completely
123
Interview with a judge.
Interview with a judge.
125
Intervies with a representative of academia and representative of an NGO that is representing
persons with psychosocial disabilities.
43
124
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