JUSTICE FOR ALL
or the life of the person concerned or to
prevent injury to others (provided that the
person concerned is unable to give consent)
for the shortest possible time and under
regular independent review. Procedures
should guarantee effective access to judicial
review of decisions relating to non-consensual treatment, consistent with Arts 9 and
14 of the Covenant, including by ensuring
that relatives and any other legal representatives of patients are sufficiently informed
about the procedure for requesting the
termination of coercive treatment.112 On
the other hand, the HRC recommended
that measures be immediately adopted to
abolish the use of enclosed restraint beds
in psychiatric and related institutions,
establish an independent monitoring and
reporting system, and ensure that abuses
are effectively investigated, prosecuted and
sanctioned and that redress is provided to
the victims and their families.113
1.4.2. COUNCIL OF
EUROPE STANDARDS
In turn, the Subcommittee on Prevention
of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (SPT)
has focused its efforts on appropriate
conditions, monitoring and periodic review,
questioning only forced hospitalization or
solitary confinement when not based on
medical grounds.114
Examining the situation of the detainees
with disabilities in Europe, the CoE Parliamentary Assembly denounced “the tendency
to imprison offenders rather than impose
alternative sentences”.118 In a 2018 resolution it, thus, recommended:
1.4. ALTERNATIVES
AND PROBATION
1.4.1. EU STANDARDS
At the EU level, in its Recommendation in
2013 on procedural safeguards, the Commission stated that
“Member States should take all steps to
ensure that deprivation of liberty of vulnerable persons before their conviction is
a measure of last resort, proportionate and
taking place under conditions suited to the
needs of the vulnerable person (…).”115
There are no additional EU standards specifically regulating alternatives to detention and
probation of defendants and detainees with
intellectual and/or psychosocial disabilities.
The ECtHR’s jurisprudence tackled the topic
of alternatives, notably via the application
of Art 5 (1)(e) ECHR, which was found to
encompass a fully-fledged necessity and
proportionality test. Part of the necessity
test includes that other, less severe measures
must be considered before detention can be
applied.116 Hence, in its assessment under
Art 5(1)(e) ECHR, the ECtHR also considers
if the national system envisages alternative
means and whether the authorities have
considered them. The notion of “alternatives” is broadly used. In certain instances,
“alternative” means placing the applicant
outside of penal facilities, for example in
a civilian mental health facility, including
psychiatric hospitals, psychiatric wings in
civilian hospitals, mental health community
centres and residential (care) homes.117
“to provide for and further develop the application of adjusted sentences or alternatives
to prison sentences, and systematically to
consider non-custodial pretrial coercive
measures or sentences, or compassionate
release, for disabled persons whose circumstances could otherwise justify detention or
imprisonment, depending on the nature and
severity of their disability and the capacity
of the custodial system to provide appropriate care, bearing in mind the principle
of reasonable accommodation”.
The Council of Europe Committee of Ministers’ Recommendation (2004) contains
only incidental provisions on alternatives to
detention. According to Art 34(2):
“Courts should make sentencing decisions
placement or treatment for mental disorder
on the basis of valid and reliable standards of
medical expertise, taking into consideration
the need for persons with mental disorder
35
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