OVERVIEW OF RELEVANT STANDARDS 1.1.2. COUNCIL OF EUROPE STANDARDS According to the ECtHR, persons who are found not criminally responsible and subjected to detention should be detained in an appropriate accommodation and given adequate care. According to the ECtHR, the detention of a person on grounds of mental health (of unsound mind) will be “lawful” for the purposes of Art 5 (1) (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose.29 Yet, the Court has accepted that the mere fact that an individual was not placed in an appropriate facility did not automatically render his or her detention unlawful under Art 5 (1) ECHR. A certain delay in admission to a clinic or hospital is acceptable if it is related to a disparity between the available and required capacity of mental institutions. However, a significant delay in admission to such institutions and thus in treatment of the person concerned will obviously affect the prospects of the treatment’s success, and may entail a breach of Art 5.30 In assessing the appropriateness of the institution in question, the Court has not taken into account so much the facility’s primary aim, but rather the specific conditions of the detention and the possibility for the individuals concerned to receive suitable treatment therein.31 Furthermore, although psychiatric hospitals are, by definition, appropriate institutions for the detention of mentally ill individuals, the Court 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.32 More specifically, the Court takes into consideration: • the opinions of health professionals and the decisions reached by the domestic authorities in the individual case, as well as more general findings at the national and international level on the unsuitability of prison psychiatric wings for the detention of persons with mental health problems; 24 • the individualised and specialised approaches that have been adopted for the treatment of the psychological disorders in question; and • that the authorities are under an obligation to work towards the goal of preparing the persons concerned for their release, for example by providing incentives for further therapy, such as transfer to an institution where they can actually receive the necessary treatment or by granting certain privileges if the situation permits.33 Appropriate accommodation is thus a key element in the Court’s assessment of a violation of Art 5 ECHR. However, when the conditions attain a particular threshold of gravity, they may also fall into a violation of Art 3 ECHR.34 A brief survey of the key standards and recommendations of the CPT with regard to EU Member States revealed the following recommendations concerning procedural safeguards for detainees with intellectual and/or psychosocial disabilities: • Ensure that all, including those court ordered committals of persons with intellectual and/or psychosocial disabilities, are asked for their consent to medical treatment. • Ensure that the relevant provisions governing the procedures for placement and discharge for persons deemed not criminally responsible are assisted in law and practice by a lawyer during the review hearing by the court.35 • Ensure that forensic patients are heard in person by the relevant judge/court in the context of the renewal of their detention order. In Croatia, for example, while lawyers had been systematically present at all stages of the procedure, judges did not systematically hear the patient in person at the time of the renewal of the detention order.36 • Ensure that there are sufficient guarantees for the patients to exercise their right to attend review court hearings.37