JUSTICE FOR ALL
• Ensure that the patients concerned receive
a copy of the court decision (with relevant
information on appeal procedures). The
patients should be requested to sign a
statement acknowledging receipt of it.38
• Ensure that ex officio reviews of any
involuntary forensic placement decisions
are carried out at least once every six
months by an independent authority,
preferably a court. Such reviews should
be based on the opinion from a doctor
who is independent of the department
holding the patient concerned.39 The
CPT has criticised situations where court
approvals consisted in identical wording
stating that the legal requirements for
extended hospitalisation were met, and
recommended that forensic involuntary
hospitalisation decisions include individualised detailed reasons explaining the
rationale behind the ruling, that patients
have an effective right to be heard in
person and that hearings are carried out
within appropriately short timescales.40
• Ensure the possibility for an independent
psychiatric opinion (external to the clinic)
in the context of review of the placement.41
1.1.3. UN STANDARDS
Art 14 (2) UNCRPD provides that “States
Parties shall ensure that if persons with disabilities are deprived of their liberty through
any process, they are, on an equal basis with
others, entitled to guarantees in accordance
with international human rights law…”.
Art 14 (2) complements Art 12 and 13
UNCRPD. Establishing the right to equal recognition before the law, “Art 12 introduces a
new paradigm of ‘universal legal capacity’, that
cannot be limited on grounds of disability or
mental incapacity.”42 As noted in the literature,
“this right has profound implications for a wide
range of legal frameworks for states parties
to the Convention, including guardianship
laws, the insanity defence, civil and criminal
trial procedures …” and for many other articles
in the Convention, including access to justice
(Art 12), detention (Art 14), forced treatment
(Art 15, 17, and 25).43 The General Comment
on Art 12 adopted in 2013 by the UNCRPD
Committee does not address the question of
legal capacity and criminal justice.44
An analysis of the more recent concluding
observations on Art 14 of the UNCRPD
Committee showed that the UNCRPD has
consistently recommended that States adopt
a number of measures to improve equal
access to justice and procedural guarantees
in criminal justice proceedings:45
• Repealing criminal laws that allow persons
with intellectual or psychosocial disabilities
to be declared unfit to plead/not criminally
responsible, allowing the full application of
the rules of due process for a fair trial.46
• Ensure that persons with disabilities who
have committed a crime are tried under
the ordinary criminal procedure with equal
access to due process guarantees established for all persons accused of a crime in
the criminal justice system, including the
presumption of innocence and the rights
to defence and to a fair trial;47
• Ensure accessibility and procedural accommodation, including provisions to support
persons with disabilities in decision-making
and to guarantee the right to a defence at all
stages of criminal proceedings for persons
with disabilities who are under investigation
or being prosecuted.48
The UNCRPD Committee also pronounced
itself on several individual cases about Art
14. None of them concerned an EU Member
State. However, some general principles
established are relevant nevertheless:
CRPD Committee, CRPD/C/16/
D/7/2012, Noble v. Australia
2 September 2016
Relevant topic: unfitness to stand trial
due to an intellectual disability; inability
to plead or be found guilty; deprivation
of liberty based on disability;
Decision: Violation of Arts 5(1) and (2),
12(2) and (3), 13(1), 14(1)(b) and 15
UNCRPD
25
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