JUSTICE FOR ALL 2.3. ASSESSMENT OF DISABILITY 2.3.1. MECHANISMS TO IDENTIFY DISABILITIES Both in the framework of national as well as regional consultations, experts from the partner countries and other EU Member States (including Portugal, Czech Republic, Hungary and Ireland) have reported that the identification and recognition of an intellectual and/or psychosocial disability often poses the biggest challenge. Only with this identification, necessary safeguards can be applied and accommodations found. Whenever disabilities are not identified, persons concerned are declined the opportunity of receiving the necessary support in order to allow them equal access to justice with others. However, the research revealed that the mechanisms to identify common indicators for potential disabilities are not sufficient, preventing authorities from recognizing disabilities in time. Bulgarian law fails to require adequate mechanisms to relay information on certain signs of potential vulnerabilities of a criminal suspect which may trigger additional support and care or assessment.140 However, it provides that in the course of criminal proceedings, a medical assessment is mandatory after indictment when there is evidence that the accused person may be incompetent or when the accused person’s physical and/or mental condition prevents him/her from comprehending factual information pertaining to the case or from providing a reasonable explanation of facts relating to the case.141 In some countries, including Slovenia and Austria, judicial authorities may order a psychiatric assessment in case of suspicions regarding the criminal legal capacity of the person concerned or in case of doubts, of the fitness to stand trial. If these suspicions already occur during the investigation phase, the prosecutor will request an expert opinion; if the indications are perceived later, the expert opinion will be requested during the trial. There are no assessment mechanisms available that may prompt the ordering of the expert opinion. This can lead to a person with a disability being overlooked if there are no “clear” indicators. In Italy, research shows that judges do not always seem inclined to ask for an expert opinion. Usually, expert opinions are only requested if there already is a medical record/ or if the person concerned is already in the health services. Therefore, it is sometimes perceived as “luck” to be subjected to pre-trial detention, as the accused could receive a diagnosis that can be introduced into the criminal proceedings. As a consequence, persons with intellectual and/or psychosocial disabilities very rarely receive adequate support during proceedings.142 In Lithuania, assessments are only ordered if there is a doubt about a person’s ability to appreciate the danger of the crime or a mental health condition is suspected. The precondition for an assessment is that there is sufficient evidence to show that the person has committed an act prohibited by criminal law.143 On the other hand, a lawyer from Germany argued in the consultation workshop that assessment as it currently exists (i.e., to assess whether the application of special proceedings potentially leading to security measures or compulsory treatment should be held) may in practice have “negative implications” for the person concerned, as these proceedings may lead to the deprivation of liberty for an indefinite period. It was thus argued that lawyers, having the best interest of the person concerned in mind, may decide not to request such an assessment. Similarly, an Austrian judge noted that situations of vulnerability should of course be identified early on, but argued that assessments, as they are currently in place (to decide whether or not to apply special proceedings), may be better avoided in the interest of the person concerned as these proceedings may lead to unlimited deprivation of liberty. 43