IMPLEMENTATION UNDER NATIONAL LAW
This option is not available to detainees
in the preventive measures system, who
might be detained indefinitely. Experts have
recommended that conditional release should
be a possibility for people serving preventive
detention or preventive custodial measures,
as a ‘built-in’ feature of the system.
Another difficulty relates to the issue that
the possibility of release might be tied to an
“improvement” or “recovery” of the person’s
condition and – related to that – their (continued) dangerousness. Naturally, with some
disabilities, such as intellectual disabilities, no
“cure” can be expected, even after serving
compulsory treatment in a psychiatric facility.
In Austria, as in other countries, whether a
non-custodial measure is deemed suitable
often depends on the assessed level of
‘dangerousness’ that a person presents.
This is despite an absence of evidence that
dangerousness can be assessed accurately
and that such assessments can predict further
offending. In Austria, there are indications
that recidivism rates of persons who were in
preventive detention are rather low.286
2.7.4 CONCLUSIONS
AND RECOMMENDATIONS
The research has revealed several issues
and shortcomings regarding alternatives
and probation vis-à-vis defendants and detainees with intellectual and/or psychosocial
disabilities and a stagnating and unsuited
legal framework. In most countries, once a
person with intellectual and/or psychosocial
disabilities has been convicted of a criminal
offence, deprivation of liberty is the default.
As a consequence of unsuitable legislation
and rules, persons with psychosocial and/
intellectual disabilities are often given lengthy
prison sentences instead of being granted an
alternative measure. Experts have argued that
non-custodial measures, which are often
considered ‘alternatives’, should become a
real option rather than a divergence from
the default.
In terms of post-release support, the research
has found that there is a lack of tailored
services for persons with intellectual and/
78
or psychosocial disabilities to help with their
reintegration after release. When services are
available for detainees in prisons, they may
not be suited to persons with intellectual and/
or psychosocial disabilities, and for persons
being discharged after being subjected to a
security measure or compulsory treatment
measure, no such services may be available.
Also, a lack of social support system or a lack
of adequate housing options in the community can negatively impact release prospects.
Recommendations on alternatives to deprevation of liberty of persons with intellectual
and/or psychosocial disabilities
• Strengthen prevention efforts in the community and the general healthcare systems
through enhanced social support structures
and low threshold (mental) health services
for persons with intellectual and/or psychosocial disabilities to prevent them from
“ending up” in the criminal justice systems.
• Strengthen the use of diversion measures
for persons with intellectual and/or psychosocial disability who come into contact
with the criminal justice system.
• Establish mechanisms to strengthen
cooperation between courts and social
services to identify the social conditions
of a defendant, such as family conditions,
social net, employment, etc. For all cases
concerning persons with intellectual and/
or psychosocial disabilities, establish a
multidisciplinary approach in case management for social workers/service providers,
psychiatrists/psychologists, relatives/close
persons and judges.
• Create centralised systems collecting information on existing facilities and services
for treatment, care and implementation
of non-custodial services for persons with
intellectual and/or psychosocial disabilities
in a country or state, while also respecting
the right to privacy and medical confidentiality. This could serve to provide a better
overview and raise awareness on available
resources, including outpatient treatment
options to support courts in ordering
alternative measures.
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