JUSTICE FOR ALL
EXECUTIVE SUMMARY
This comparative report is the result of a
two-year research project co-funded by
the European Union's Justice Programme
programme and led by the Ludwig Boltzmann
Institute of Fundamental and Human Rights
in collaboration with partners from Bulgaria,
Germany, Italy, Lithuania, and Slovenia. The
research examined the implementation of EU
Framework Decisions related to judicial cooperation in criminal proceedings, emphasising
the rights of defendants and detainees with
intellectual and/or psychosocial disabilities. In
addition, the research assessed the situation
of defendants and detainees with intellectual
and/or psychosocial disabilities within the
national systems in law and practice and
the compliance with international, regional,
and national standards, as these factors may
impact cross-border cooperation. The project
covers procedural safeguards, treatment of
persons with intellectual and/or psychosocial
disabilities during deprivation of liberty, alternatives to detention and probation measures.
The research explored the legal pathways
leading to the deprivation of liberty for individuals with intellectual and/or psychosocial
disabilities following their involvement in
criminal offences. The examination of (criminal) legal capacity and criminal responsibility,
and access to justice for defendants and
detainees with intellectual and/or psychosocial disabilities reveals significant challenges
within the legal systems of the partner
countries. The United Nations Convention
on the Rights of Persons with Disabilities
(UNCRPD), particularly Art 12, establishes
the principle of 'universal legal capacity,'
emphasising equality in legal standing irrespective of disability. However, the research
indicates that several European Union (EU)
Member States link a denial of criminal legal
capacity to disabilities, potentially impacting
the exercise of procedural rights, the outcome
of criminal proceedings, and the imposition of
measures. The lack of criminal legal capacity
may result in special proceedings involving
security measures, compulsory treatment or
preventive detention.
Across the partner countries, the assessment
mechanisms for identifying disabilities pose
challenges, with inadequate mechanisms to
identify indicators and insufficient safeguards
for early identification, as well as concerns
raised about the quality and impartiality
of expert opinions. The scarcity of expert
witnesses, influenced by low salaries, further
exacerbates these challenges. The prevailing
medical approach to assessments focuses
primarily on determining criminal legal capacity, lacking consideration for support needs
and the ability to withstand trial pressures.
Overall, the lack of adequate mechanisms for
early disability identification may result in the
denial of necessary support for equal access
to justice, emphasising the necessity for a
more comprehensive and inclusive approach.
Regarding procedural rights, the research
shows that despite existing standards to
safeguard procedural rights, there is a lack
of accommodations for individuals with
disabilities during criminal proceedings
and the partner countries have not implemented relevant (non-binding) international
standards, including from the European
Commission. The research reveals variations
in the provisions for legal representation for
individuals with intellectual and/or psychosocial disabilities, and the effectiveness of
defence mechanisms may be compromised
in some cases. While some existing specific
procedural provisions in national criminal
justice systems for persons with intellectual
and/or psychosocial disabilities intend to
provide accommodations, these proceedings
may inadvertently circumvent general procedural safeguards, potentially impacting the
defendants' rights. The research underscores
the need for comprehensive reforms to align
legal practices with the principles of the
UNCRPD and ensure equal access to justice
for individuals with disabilities.
In the context of this research, deprivation
of liberty of persons with intellectual and/
or psychosocial disabilities encompasses
imprisonment and confinement in psy-
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