JUSTICE FOR ALL
detainee to prove otherwise. In Slovenia, the
expert opinion is the basis of the decision of
the court about whether or not to impose
security measures of compulsory psychiatric
treatment in a medical institution. Equally,
during review hearings, the person concerned
may be given the opportunity to be heard and
to explain their participation in therapy, for
example, but this is often a matter of formality
and lastly, only the expert opinion’s statement
is taken into account. It is very difficult for
the defendant or detainee to combat the
opinion. As regards second or alternative
opinions, reports show that it is generally
difficult to request a second or alternative
opinion. Even where second opinions are
possible, their value may be different from
the first.157 In Bulgaria, neither the defendant
nor the court can appeal the forensic findings.
Both parties can, however, request a second
opinion should they disagree with the first. In
this case, it is up to the receiving authority
to decide whether or not to order another
opinion.158
In Germany, persons concerned can request
the commission of another expert opinion, or
simply have another assessment on their own
initiative. However, these assessments are
usually not granted the same value and are
regarded as biased submissions and do not
have strong influence on the proceedings. The
persons concerned have to cover the costs
for these opinions, which poses difficulties in
practice as they do not have the resources.159
Similarly, in Austria, the person concerned
can request an expert opinion themselves,
but this does not have the same value as
the court commissioned expert opinion and
usually exceeds the financial resources of the
person concerned. In Slovenia, the person
concerned can request another expert if
they argue on reasonable grounds that
there are doubts regarding the correctness
and competence of the expert. The court
will then re-examine the first opinion. Only if
the doubts cannot be resolved, the judge will
request another expert opinion. To encourage
the court to appoint a second expert, the
person concerned sometimes hires an expert
witness to challenge the first expert’s opinion.
However, this requires financial resources
that not all persons concerned can afford.160
In Lithuania, the person concerned can
request further examination if they disagree
with the expert’s report. However, in practice, the documentation is very complicated
and difficult to understand.
2.3.6. CONCLUSIONS AND
RECOMMENDATIONS
The existing assessment mechanisms do not
correspond with the broad variety of needs
that a person with a disability may have.
Currently, there is a very strong (purely)
medical approach to the assessment of the
person concerned and their disability. Usually (forensic) psychiatrists are requested to
conduct the assessment. At the same time,
the aim of the assessment is purely focused
on determining criminal legal capacity and
sometimes fitness to stand trial. Considerations regarding the need for support, or the
persons’ ability to withstand the pressure
of trials, are not part of the assessment.
Psychologists are rarely included and other
stakeholders or persons from the social
environment of the person usually are not
involved.
Consent to the assessment and examination
by an expert witness is usually required,
however in some countries it can be circumvented by committal to a psychiatric
institution, where consent is no longer
necessary. Persons concerned usually do not
have the possibility to choose the expert
witness and additional or second opinions
often do not have the same value as appointed expert witnesses. The scarcity of
expert witnesses, influenced by low salaries,
further exacerbates these challenges. The
prevailing medical approach to assessments
focuses primarily on determining criminal
legal capacity, lacking consideration for
support needs and the ability to withstand
trial pressures. Overall, the lack of adequate
mechanisms for early disability identification
may result in the denial of necessary support
for equal access to justice, emphasising the
necessity for a more comprehensive and
inclusive approach.
47
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