JUSTICE FOR ALL mitted a criminal offence as a consequence of their disability and who, due to their disability, are presumed to commit other offences in the future, may be subjected to security measures. The persons who are found to lack criminal legal capacity and are therefore declared criminally not responsible are subjected to security measures either in a “forensic therapeutic centre” or in psychiatric hospitals or psychiatric wards of public hospitals. Currently, there are three specialised centres in Austria. There, persons are usually accommodated in residential units where they should receive broad therapeutic care and support aimed at achieving mental stability, understanding of the disease and cooperation in treatment.193 The preventive measure in a public hospital underlies some of the provisions applicable to the deprivation of liberty under criminal law, and partly, the provisions applicable to the involuntary placement under civil law.194 tence, where the person has been found to have diminished criminal legal capacity. One of the core requirements of preventive detention in Germany195 is the separation requirement: persons accommodated in preventive detention must be accommodated separately from the prison system in special buildings or wards. Life in preventive detention must be adapted to the general living conditions in freedom. This adaptation, however, is limited due to security concerns. However, the separation requirement may also lead to segregation and a reduced offer for those accommodated in preventive detention.196 Furthermore, there is often little differentiation between the prison system and preventive detention in terms of security and order.197 Another pathway to detention, even indefinite detention, exists for defendants and detainees with intellectual and/or psychosocial disabilities in Austria and Germany. In contrast to the other countries surveyed, both systems provide for the possibility of imposing preventive detention/measures as a form of special security measure on defendants who are found criminally responsible by the court. Preventive detention/ measures, necessitates the same elements as other forms of deprivation of liberty discussed above – that is, the commission of an offence, an impairment and dangerousness – and in addition, is expressly grounded in a purported attempt to protect the public by preventing further crimes in the future. Both Austria and Germany have a system of preventive detention/measures, albeit with significant differences. There is also the possibility for retrospectively extended or imposed preventive detention, after the end of a served prison term. Although, nowadays, this is only possible in exceptional circumstances.198 The imposition of retrospective preventive detention has come before the ECtHR, which ruled that it does not violate Art 7 ECHR because of a need for therapeutic treatment of a "person of unsound mind" (Art 5(1)(e)). The ECtHR considered the conditions in Germany’s preventive detention as adequate treatment in this sense to consider it as different from punishment. The ECtHR cut preventive detention off from its origins199 and even found that a violation of Art 7 ECHR could somehow be “cured” by placing the detainee in a therapeutic environment.200 In contradiction to Art 14 UNCRPD, individuals in (retroactive) preventive detention are detained explicitly because of their disability (“unsound mind”). Furthermore, with the prospect of detention in psychiatric hospitals, the German system already provides for the possibility of detention of persons with psychosocial and/or intellectual disabilities in a therapeutic environment. In Germany, preventive detention constitutes a continuation of punishment. It can be ordered subsequent to a sentence of imprisonment, either a “regular” sentence where the person has been found to be criminally responsible, or a reduced sen- In Austria, persons with intellectual and/ or psychosocial disabilities who are found criminally responsible, may also be deprived of liberty and are subjected to preventive measures. They can be confined in specialised forensic therapeutic centres or in 2.5.3.2. PREVENTIVE DETENTION/MEASURES 59