IMPLEMENTATION UNDER NATIONAL LAW
can be discontinued if the person's guilt is
considered minimal and there is no public
interest in prosecution.268
An expert from the field of psychiatry also
reported that in Ireland, judges have the
discretion to refrain from conviction and
discontinue the proceedings and instead, the
defendant donates a designated amount of
money to a so-called “Poor Box”, representing
a donation to a charity chosen by the judge.269
Similarly, in Germany, in case of a less serious
criminal offence, the public prosecution office, with consent of the person concerned
and the court, may dispense with the public
charges and issue measures if the degree of
guilt does not present an obstacle and the
measures can eliminate the public interest in
criminal prosecution.270
74
means of support. This lack of resources and
support within society (and general healthcare
system) in many cases leads to persons with
intellectual and/or psychosocial disabilities
ending up in the criminal justice system for
minor offences – the criminal justice system
being the only system that “cannot refuse” a
person due to lack of resources.
Instead of pursuing criminal proceedings, “you
have to get people around a table and find
a tailor-made solution” (as one participant at
the regional consultation workshop argued).
This should be a multidisciplinary approach
and, crucially, involve the person concerned
and reflect their views. One suggestion that
has been mentioned is the implementation
of small-scale, residential, tailored options in
the community.
In general, in several countries, there are
options for judges/prosecutors to discontinue
a criminal case concerning a person with
intellectual and/or psychosocial disabilities
if they deem that the offence is not grave
enough or the person’s disability does not
reach a threshold of severity. However, these
decisions do not necessarily constitute diversion. Diversion is an alternative procedure
in a criminal case where the prosecution
is interrupted through a deal between the
defendant and the prosecutor where the
prosecutor either dismisses the charges
completely or does not bring any charges to
begin with.271
In Austria, where pre-trial custodial measures
may be applicable at the pre-trial stage, the
law dictates a subsidiarity of deprivation of
liberty vis-à-vis non-custodial measures/
extramural care and treatment. Pre-trial
custodial measures must not be ordered (or
continued) if the aims can also be achieved by
having the affected person treated and cared
for without being subjected to a preventive
custodial measure.272 In this case, the court
has the possibility to refrain from the pre-trial
custodial measure. Before doing so, the
court may involve the head of the probation
services and request them to organise a social
net conference (see case study in Annex 1).
Experts from different countries stated that
prisons constitute a “revolving door” for many
persons and diversion is a key issue when
it comes to persons with intellectual and/or
psychosocial disabilities in the criminal justice
context. These persons have fallen through
the “safety net” of their social circle, families,
general healthcare and community-based
treatment and support providers. The
concept of “revolving door” often includes
persons concerned being subjected to
treatment for short periods (including very
often only medication, rather than other
forms of treatment) and being released with
no additional support or guidance. Often, the
situation is aggravated by other factors, such
as homelessness, lack of social ties and other
2.7.2. ALTERNATIVES TO
DEPRIVATION OF LIBERTY
Generally, the national research showed a
lack of regulations and legislation on the topic
of alternatives to deprivation of liberty for
persons with intellectual and/or psychosocial
disabilities. This leads to inconsistencies in
courts’ decisions, and although it may leave
courts with the possibility to impose tailored
sentences, it can also lead to unchecked
arbitrariness and fragmented standards. The
research revealed that when legislations on
non-custodial measures are available, they
rarely provide for the specific situation of
sentencing a person with intellectual and/or
psychosocial disabilities, which leads to un-
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