JUSTICE FOR ALL
IMPLEMENTATION
UNDER NATIONAL LAW
02.
2.1 GENERAL CHALLENGES
2.1.1. INCONSISTENCIES
BETWEEN STANDARDS
Throughout the project, it has become
apparent that not only is there a chasm between fundamental rights standards versus
their implementation in practice in the six
partner countries, but there are also significant discrepancies between international
standards on defendants and detainees with
intellectual and/or psychosocial disabilities.
Most notably, the UNCRPD is very clear
on the right to access to justice at an equal
basis with others, especially Arts 12, 13,
and 14, which together establish a new
paradigm of ‘universal legal capacity’ that
cannot be limited on grounds of disability or
mental incapacity. It is clear from concluding
observations on Art 14 of the UNCRPD
Committee that it unequivocally rejects
“special defences” or “special tracks” in
criminal proceedings, such as substituted
decision-making regimes and the denial
of legal capacity, unfitness to stand trial
and exclusion of a person with a disability
from judicial processes, and declaration
of a person as ‘non-liable’ or ‘of unsound
mind’. Instead, according to the UNCRPD
Committee, access to justice on an equal
basis means that persons with disabilities
who have committed a crime should be tried
under the ordinary criminal procedure with
suitable procedural accommodations (see
Section 1.)
This approach is contrasted by standards
developed at the CoE and EU levels (see
Section 1), both of which do not fundamentally oppose ‘special tracks’ in criminal proceedings for people with disabilities and do
not challenge concepts/assessments such as
‘fitness to stand trial’, ‘criminal responsibility’
and ‘legal capacity’. These bodies do foresee
the possibility of proceedings for people with
intellectual and/or psychosocial disabilities
outside of the ‘ordinary’ proceedings but also
envision additional procedural safeguards
and accommodations.
Similarly there is a discrepancy between the
approaches concerning the right of liberty.
According to the UNCRPD Committee,
‘Article 14(1)(b) prohibits the deprivation of
liberty on the basis of actual or perceived
impairment even if additional factors or
criteria are also used to justify the deprivation
of liberty’.” In this context, the UNCRPD
Committee recommended the repealing of
security measures as well as transfers to
mental health commitment regimes requiring
an individual to participate in mental health
services without their free and informed
consent (see Section 1.2.3). The ECtHR,
on the other hand, allows for a deprivation
of liberty based on disability under certain
pre-conditions. In its jurisprudence regarding
Art 5 (1)(e) ECHR, the ECtHR 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 (see
Section 1.2.2).130
The findings of the research show that
partner countries lean towards following the
ECtHR standards rather than the UNCRPD
standards. This is due to different reasons,
including the fact that the ECtHR mandate
and jurisprudence are better known among
EU countries. Additionally, there is a lack
of clear guidance on how to implement
UNCRPD standards. This was also pointed
out by various experts in the framework of
the consultations conducted throughout the
project. Moreover, various reports from the
CoE point to the conclusion that “prisons
are bad for mental health”, they are used as
“dumping grounds for people with mental
disorders” and that “people with mental
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