JUSTICE FOR ALL
found to be without criminal legal capacity,
they cannot take part in any proceedings.
That is, the person may not be questioned,
may not be shown persons, objects or
photographs for identification, and so on.
This person may only be subjected to such
procedural steps in which their role would be
passive. For example, such a person may be
shown to a victim to be identified.174
In Bulgaria, procedural rights are only
guaranteed once pre-trial proceedings have
been initiated and the person concerned is
accused. However, very often, persons with
intellectual and/or psychosocial disabilities
are not indicted/accused and thus not provided with their procedural rights. Instead
of a formal indictment, the prosecution
may propose to adopt compulsory medical
measures. In this case, the person concerned
is not notified of the criminal procedure
initiated against them; they are not given
access to a lawyer and have no recourse
to judicial remedies against the findings of
law or fact. While the CJEU found that the
concept of ‘criminal proceedings’ also covers
proceedings for committal to a psychiatric
hospital which, although do not lead to a
‘sentence’ in the strict sense, nevertheless
result in a measure involving a deprivation
of liberty, provided that such a measure is
justified not only on therapeutic grounds but
also on safety grounds.175 However, since
the judgement of the EU’s highest court,
according to research and the national
experts, no change in law or practice was
detected in Bulgaria.
In many cases, states argue that these
proceedings are means to support the defendant, who otherwise would not be able to
effectively participate, as was argued by the
Australian government in the case of Noble
v. Australia (See Section 1.1.3.).
2.4.5. CONCLUSIONS AND
RECOMMENDATIONS
The research conducted in the framework
of the project showed that the national
systems often do not foresee sufficient
support for defendants and detainees with
intellectual and/or psychosocial disabilities
in their criminal proceedings. Relevant
provisions foreseen in the 2013 Recommendation have not been implemented
into national law. Ordinary proceedings are
often not equipped to respond to needs
of persons concerned (i.e., appropriate
ways of ensuring participation, such as a
modified “letter of rights” or inclusion of
additional persons to provide support). In
some jurisdictions, trials may be held in
absentia if the person concerned is presumed “unfit to stand trial”, thus effectively
excluding them.
At the same time, the special proceedings
foreseen under national law, leading to
other forms of deprivation of liberty, The
research conducted in the framework
of the project showed that the national
systems often do not foresee sufficient
support for defendants and detainees with
intellectual and/or psychosocial disabilities
in their criminal proceedings. Relevant
provisions foreseen in the 2013 Recommendation have not been implemented
into national law. Ordinary proceedings are
often not equipped to respond to needs
of persons concerned (i.e., appropriate
ways of ensuring participation, such as a
modified “letter of rights” or inclusion of
additional persons to provide support). In
some jurisdictions, trials may be held in
absentia if the person concerned is presumed “unfit to stand trial”, thus effectively
excluding them.
• Member States should implement the
Recommendation on Procedural Safeguards for Vulnerable Persons Suspected
or Accused in Criminal Proceedings.176
51
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