JUSTICE FOR ALL
suited decisions from judges concerning how
and where the accused needs to undergo
criminal punishment, or if such punishment
is lawful at all. Especially as it regards pre-trial
detention, there are few alternatives for
people with intellectual and/or psychosocial
disabilities.
Experts from all partner countries have
lamented that there exists too little awareness among judges, prosecutors, lawyers
and social workers with regard to available
options for non-custodial measures – where
they are available. This issue is also linked to
the lack of training of judges, prosecutors,
police officers, lawyers and probation officers
when dealing with a person with intellectual
and/or psychosocial disabilities, as well as a
lack of resources. Some experts participating
in the workshops have recommended that
databases with civil society organisations and
facilities that can provide various services
could be useful. One option could be to
implement a centralised system containing
data on available residential care facilities
(extra-mural and after-care), therapeutic
services, lists of psychologists/psychiatrists,
probation services, etc. This would help all actors involved in supporting the individuals to
find their way back and prepare an individual
package, and it would help courts in ordering
alternative measures, as they would have a
better overview of the available resources.
Non-custodial measures can constitute an
important part in the reintegration process.
However, while non-custodial measures and
sanctions exist in all partner countries, these
options are either not sufficient or diverse
enough, or not available and tailored to
persons with intellectual and/or psychosocial
disabilities. They also might not constitute
viable options for persons with specific
needs. Probation is also not automatically
proposed, and even if it is chosen by the
court as a sentence, it is rarely adapted to
the specific needs of the person with a mental
disability. For example, in Italy, there exists an
alternative to the criminal trial called "messa
alla prova" or probation, which is widely used.
Individuals accused of offences that carry a
maximum sentence of six years can apply for
it. The program entails a detailed plan and a
set of activities, including community work,
and its successful completion results in the
extinguishment of the offence. However,
there are no special provisions for defendants with intellectual and/or psychosocial
disabilities. Probation officers from various
countries have shared that they seldom
work with persons with intellectual and/or
psychosocial disabilities and in such cases,
there are no tailored programmes available.
A challenge for probation officers is that
the available programmes often do not take
into account persons with disabilities and/or
substance use disorders. The research shows
that this category of probationers will show
lower success rates in terms of rehabilitation,
which is directly linked to the unsuitability of
said measures.
Moreover, the alternatives made available
for detainees with intellectual and/or
psychosocial disabilities are often actually
measures depriving them of liberty, including
for instance, home detention, closed wards or
general inpatient treatment. There is a general
lack of “true” alternatives which genuinely
focus on the importance of rehabilitation
and reinsertion into society (e.g. therapeutic
community). Alternatives also require infrastructures, facilities, and professionals which
are often missing. It was reported that many
defendants needed to wait for months, even
years, to be provided an alternative to detention in a specialised facility. Occasionally,
some detainees remain in prison just because
of the lack of available structures.
Furthermore, such non-custodial measures
may only be applicable as an alternative to
serving a prison sentence, and not as an
alternative to a form of custodial measure
or preventive detention. For example,
electronic monitoring with home detention
is theoretically an option in some countries
as an alternative to imprisonment (mostly
towards the end of one’s sentence) but not
as an alternative to a security measure for
detainees who have been determined to be
not criminally responsible. In Austria, there
are several non-custodial measures that
are self-standing sanctions: diversion,273
monetary penalties and the electronic monitoring anklet. However, these non-custodial
75
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents