OVERVIEW OF RELEVANT STANDARDS
1.1.2. COUNCIL OF
EUROPE STANDARDS
According to the ECtHR, persons who are
found not criminally responsible and subjected
to detention should be detained in an appropriate accommodation and given adequate
care.
According to the ECtHR, the detention of a
person on grounds of mental health (of unsound mind) will be “lawful” for the purposes of
Art 5 (1) (e) only if effected in a hospital, clinic
or other appropriate institution authorised for
that purpose.29 Yet, the Court has accepted
that the mere fact that an individual was
not placed in an appropriate facility did not
automatically render his or her detention unlawful under Art 5 (1) ECHR. A certain delay in
admission to a clinic or hospital is acceptable if
it is related to a disparity between the available
and required capacity of mental institutions.
However, a significant delay in admission to
such institutions and thus in treatment of the
person concerned will obviously affect the
prospects of the treatment’s success, and may
entail a breach of Art 5.30
In assessing the appropriateness of the institution in question, the Court has not taken into
account so much the facility’s primary aim, but
rather the specific conditions of the detention
and the possibility for the individuals concerned to receive suitable treatment therein.31
Furthermore, although psychiatric hospitals
are, by definition, appropriate institutions for
the detention of mentally ill individuals, the
Court has stressed the need to accompany
any such placement by efficient and consistent
therapy measures, in order not to deprive
the individuals in question of a prospect of
release.32
More specifically, the Court takes into consideration:
• the opinions of health professionals and
the decisions reached by the domestic
authorities in the individual case, as well as
more general findings at the national and
international level on the unsuitability of
prison psychiatric wings for the detention
of persons with mental health problems;
24
• the individualised and specialised approaches that have been adopted for the
treatment of the psychological disorders
in question; and
• that the authorities are under an obligation
to work towards the goal of preparing the
persons concerned for their release, for
example by providing incentives for further
therapy, such as transfer to an institution
where they can actually receive the necessary treatment or by granting certain
privileges if the situation permits.33
Appropriate accommodation is thus a key
element in the Court’s assessment of a
violation of Art 5 ECHR. However, when
the conditions attain a particular threshold
of gravity, they may also fall into a violation
of Art 3 ECHR.34
A brief survey of the key standards and
recommendations of the CPT with regard
to EU Member States revealed the following
recommendations concerning procedural
safeguards for detainees with intellectual
and/or psychosocial disabilities:
• Ensure that all, including those court ordered
committals of persons with intellectual
and/or psychosocial disabilities, are asked
for their consent to medical treatment.
• Ensure that the relevant provisions
governing the procedures for placement
and discharge for persons deemed not
criminally responsible are assisted in law
and practice by a lawyer during the review
hearing by the court.35
• Ensure that forensic patients are heard in
person by the relevant judge/court in the
context of the renewal of their detention
order. In Croatia, for example, while lawyers
had been systematically present at all
stages of the procedure, judges did not
systematically hear the patient in person
at the time of the renewal of the detention
order.36
• Ensure that there are sufficient guarantees
for the patients to exercise their right to
attend review court hearings.37
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