JUSTICE FOR ALL
for potentially alleviating the detainee’s
condition, precluding any possibility of
improvement and leading to overlong stays.
A lack of demonstrated “improvement of the
situation” and “reduction of danger” may also
prevent a detainee from accessing conditional
release, where it exists. Experts in Austria
have furthermore raised concern with regards
to persons concerned whose situation cannot
“improve” as is foreseen by law as a necessary
requirement for release, due to their mental
condition. In these cases, there is little to no
perspective of being released.209
Another reason for long durations of detention is that in order to be granted (conditional)
release, there has to be a plan in place for
post-release care. Experts have raised concerns that a lack of social support systems
or a lack of adequate housing options in the
community can negatively impact release
prospects, preventing equal access to justice
for all (see Section 2.7.3).
The research has shown that in many countries, it is difficult to be discharged/released
from a security measure and sometimes one
compulsory measure is simply substituted by
another, which may be an outpatient arrangement or within the civil law system, as long as
it is a court-ordered compulsory treatment.
Even if there is a time limit prescribed in law
for compulsory treatment within the criminal
context, there are still avenues through which
a person may be detained indefinitely under
the purview of different measures (e.g., a
health regime). For example, in Slovenia,
compulsory treatment in the criminal context
can only be imposed for a maximum of five
years. However, the duration is not determined in the judgement. Instead, every six
months, the court must re-examine whether
further treatment and confinement in a
mental health institution are still necessary.210
After the five-year period ends, if it is deemed
necessary for the purpose of continuing
treatment or further custody of the person
concerned, further measures and treatment
under civil law may be imposed.211 Once
the person is transferred under such a civil
law regime, they can be either treated and
supervised within the community (at liberty)
or, if they are considered unable to do so, they
are placed in a social care institution. In such
a case, there is no time limit as the security
measure and the deprivation of liberty can be
periodically extended indefinitely.212 Experts
recommend that such a transferral into the
civil law and the mental health system should
be avoided and instead, community based
support should be strengthened.
In Italy, there exists a maximum duration
of compulsory treatment (in the REMS)
that cannot exceed the maximum sentence
for the type of crime for which the person
is accused or convicted (see case-study in
Annex 4). Following a stay in the REMS, few
persons are discharged into the community
without additional measures; a survey from
2020 showed that of 172 patients that had
been discharged from the REMS, 56% saw
their measure transformed into probation,
30% were allowed a form of leave that may
be granted in preparation for the end of the
security measure, 5% had their measures
revoked, 3% were imprisoned in a prison
and 3% were ordered another measure.213
Nonetheless, the REMS system in Italy has
been perceived as a good practice by many
other EU Member States due to the introduction of a maximum duration of deprivation of
liberty, as well as their small scale approach
to deprivation of liberty and prevention of
overcrowding by limiting capacities (although
there are also downsides to these limitations.
or For more information, see case-study
Annex 4).
Experts in the consultation workshops
have recommended that a time limit
should be implemented in every national
system, especially because the absence of
a time limit entails a lack of legal certainty
and a lack of perspective and hope for
the person concerned. Some experts have
recommended that the length a person is
detained in an institution, be it a hospital or
a psychiatric facility, should not exceed the
maximum sentence that is possible for the
committed offence. This would arguably be
fairer than stating an arbitrary time period for
all offences and detainees across the board,
to demonstrate a link between the offence
and the detention. On the other hand, some
experts have expressed that compulsory
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