JUSTICE FOR ALL IMPLEMENTATION UNDER NATIONAL LAW 02. 2.1 GENERAL CHALLENGES 2.1.1. INCONSISTENCIES BETWEEN STANDARDS Throughout the project, it has become apparent that not only is there a chasm between fundamental rights standards versus their implementation in practice in the six partner countries, but there are also significant discrepancies between international standards on defendants and detainees with intellectual and/or psychosocial disabilities. Most notably, the UNCRPD is very clear on the right to access to justice at an equal basis with others, especially Arts 12, 13, and 14, which together establish a new paradigm of ‘universal legal capacity’ that cannot be limited on grounds of disability or mental incapacity. It is clear from concluding observations on Art 14 of the UNCRPD Committee that it unequivocally rejects “special defences” or “special tracks” in criminal proceedings, such as substituted decision-making regimes and the denial of legal capacity, unfitness to stand trial and exclusion of a person with a disability from judicial processes, and declaration of a person as ‘non-liable’ or ‘of unsound mind’. Instead, according to the UNCRPD Committee, access to justice on an equal basis means that persons with disabilities who have committed a crime should be tried under the ordinary criminal procedure with suitable procedural accommodations (see Section 1.) This approach is contrasted by standards developed at the CoE and EU levels (see Section 1), both of which do not fundamentally oppose ‘special tracks’ in criminal proceedings for people with disabilities and do not challenge concepts/assessments such as ‘fitness to stand trial’, ‘criminal responsibility’ and ‘legal capacity’. These bodies do foresee the possibility of proceedings for people with intellectual and/or psychosocial disabilities outside of the ‘ordinary’ proceedings but also envision additional procedural safeguards and accommodations. Similarly there is a discrepancy between the approaches concerning the right of liberty. According to the UNCRPD Committee, ‘Article 14(1)(b) prohibits the deprivation of liberty on the basis of actual or perceived impairment even if additional factors or criteria are also used to justify the deprivation of liberty’.” In this context, the UNCRPD Committee recommended the repealing of security measures as well as transfers to mental health commitment regimes requiring an individual to participate in mental health services without their free and informed consent (see Section 1.2.3). The ECtHR, on the other hand, allows for a deprivation of liberty based on disability under certain pre-conditions. In its jurisprudence regarding Art 5 (1)(e) ECHR, the ECtHR 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 (see Section 1.2.2).130 The findings of the research show that partner countries lean towards following the ECtHR standards rather than the UNCRPD standards. This is due to different reasons, including the fact that the ECtHR mandate and jurisprudence are better known among EU countries. Additionally, there is a lack of clear guidance on how to implement UNCRPD standards. This was also pointed out by various experts in the framework of the consultations conducted throughout the project. Moreover, various reports from the CoE point to the conclusion that “prisons are bad for mental health”, they are used as “dumping grounds for people with mental disorders” and that “people with mental 39