JUSTICE FOR ALL 2.6.2. (LACK OF) FACILITIES/ OPTIONS & OVERCROWDING When it comes to the deprivation of liberty of persons with intellectual and/or psychosocial disabilities, a principal observation of the project has been the lack of suitable options for treatment facilities (in-patient, as well as out-patient) and insufficient capacities of these facilities. Although separate psychiatric facilities should not exist for persons with disabilities, according to the UNCRPD (see Section 1.2.3), experts have noted that faced with unsuitable environments in prison, such facilities may be preferable in some cases. A lack of inpatient treatment facilities for persons with intellectual and/or psychosocial disabilities who have committed an offence – though their detention is contested within legal and international instruments – means that persons concerned are often confined in prisons without adequate support, treatment, and care. Indeed, there are some indications that a lack of capacity in psychiatric facilities may lead to an increased likelihood that people will be sent to prison (see discussions on “Penrose’s law”, which proposes the thesis that the size of the prison population is inversely related to the number of beds in psychiatric hospitals).226 In the absence of adequate accessible services in the community, experts have highlighted a need to adjust the capacity of (forensic) psychiatric institutions. In Germany, the majority of the forensic psychiatric hospitals are highly overcrowded with many persons concerned having to share a room with at least one other person, to the detriment of their privacy. Similarly, in Austria, many psychiatric hospitals or forensic departments of public hospitals are overpopulated, some even by up to 100%.227 The Austrian NPM mentioned the negative influence of overcrowding on living conditions in forensic departments of public hospitals. Due to this overcrowding, patients share their rooms with up to six others.228 Similarly, insufficient capacity in mental health centres for inpatient treatment was noted in Bulgaria and in Slovenia, where only one such facility exists in the whole country: the forensic psychiatric unit of the University Clinical Centre Maribor. In Italy, the REMS consistently exhibit very long waiting lists. According to Antigone’s estimation, in 30% of cases, patients are detained in prisons as they are awaiting admission to a REMS facility. This can present a severe challenge as prisons may not offer a suitable environment or treatment for the person concerned, as has also been the subject in the ECtHR ruling in Sy v. Italy.229 Interestingly, it was also noted that in Italy, as the system for detaining persons who are deemed not criminally responsible in psychiatric institutions has improved considerably (via the establishment of the REMS, see case study in Annex 4) and material conditions have become better, treatment and support for persons with mental health needs in “ordinary” prisons have deteriorated. On the other hand, representatives from Bulgaria have noted in the consultation workshops that prisons could be considered a better place for people with disabilities, compared to psychiatric institutions, because the material detention conditions in prison are better and prisoners are able to file complaints to a judge. 2.6.3. RESTRAINT AND DISCIPLINARY MEASURES Persons who are deprived of their liberty may be subjected to measures of restraint. It has been noted by experts that persons with psychosocial and/ or intellectual disabilities are more often affected by security orders and disciplinary procedures. These may include inter alia solitary confinement in a special security cell, search of belongings, or the use of measures of (mechanical) restraint, such as cuffs or restraining jackets. In Austria, the NPM has raised concern with regard to restraining practices; due to the lack of space and resources and single rooms in public hospitals, persons are being subjected to mechanical restraints (in the presence of other patients), suggesting a possible Art 3 ECHR (prohibition of torture) violation. The 65