IMPLEMENTATION UNDER NATIONAL LAW
intellectual and/or psychosocial disability are
considered not to be able to exercise their
rights of defence. In Austria, Lithuania and
Slovenia, the person concerned has to be
represented by a defence attorney throughout
the entire proceedings leading to security
measures. In Bulgaria, a public defender is
appointed and legal defence is appointed in all
cases where persons with an intellectual and/
or psychosocial disability are accused. However, representation by a defence attorney is
mandatory only in specific cases (equally as for
persons without any disability).170
In Austria, Lithuania and Bulgaria the
participation of the defence attorney of the
person concerned is mandatory during the trial
(leading to security measures or compulsory
treatment). In Bulgaria, however, the defence
attorney is appointed only after the person is
accused of a criminal offence and the person
has been estimated to have an intellectual and/
or psychosocial disability which prevents them
from legally defending themselves. However,
if the person’s disability is not estimated or is
not estimated as such, which prevents them
from legally defending themselves, the person
might still not have the right to mandatory legal
defence during the trial. In Germany, legal
guardians can also take on representation in
criminal proceedings. In Austria, the defence
lawyer may take on the responsibilities of the
legal guardian, but not vice versa.
In Austria, the defence attorney can file motions against the will of the person concerned
(if they are found not criminally responsible)
if it is in their best interest.171 In Lithuania,
persons who are found not criminally responsible cannot question witnesses or refute
evidence. Their role becomes passive. They
also cannot exercise their right to a defence
independently. In Lithuania, the court and
prosecution is not obliged to accept the waiver
of a defence counsel by a person who seems
not capable of exercising their own right to
a defence based on an intellectual and/or
psychosocial disability.172 Equally, the court is
not obliged to inform the person concerned
of the referral of the case for compulsory
measures. However, the person concerned
may still participate in the proceedings, have
a defence counsel and appeal against the order
50
for imposition of compulsory measures. In
Slovenia, representation is mandatory if the
person concerned is unable to defend themselves. However, it seems that cases where
such grounds for mandatory defence for
persons with psychosocial and/or intellectual
disabilities are rarely recognised in practice.
2.4.4. SPECIAL PROCEEDINGS
FOR COMPULSORY TREATMENT/
SECURITY MEASURES
While some of these national systems appear or pretend to be protective, they can in
practice lead to the contrary by denying the
enjoyment of procedural rights in respect
of legal capacity, access to justice, the
effective participation of defendants with
intellectual and/or psychosocial disabilities
in their own proceedings, presumption of
innocence, the principle of no punishment
without guilt, the right to testify, the right
to refute evidence, the right to attend
hearings, the right to complain, procedural
accommodations, and access to lawyers.
All partner countries foresee specific procedural provisions in the national criminal
justice systems for persons with intellectual
and/or psychosocial disabilities. These proceedings may also lead to different forms of
deprivation of liberty (see Section 2.5). The
person concerned does not have the option
to “opt” for regular criminal proceedings;
this choice is taken by the investigative
body or the courts. In Austria, this system
provides additional procedural accommodations for persons with intellectual and/
or psychosocial disabilities who are in
proceedings for compulsory measures.173
These may include provisions regarding
the composition of the court or procedural
guarantees of the person concerned (e.g.,
mandatory representation by a defence
lawyer and the presence of the defence
lawyer, an expert and the person concerned
throughout the hearing).
In other cases, however, the application of
compulsory treatment may lead to a circumvention of general procedural safeguards.
In Lithuania, for example, once a person is
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