IMPLEMENTATION UNDER NATIONAL LAW • Repeal legislation and cease practices that restrict effective participation in the entire proceedings of persons with intellectual and/or psychosocial disabilities in accordance with the UNCRPD. • Provide procedural accommodations to ensure effective participation in proceedings, e.g., by modifying the “letter of rights” so that the information is presented in a simplified and comprehensible manner. 2.5. DEPRIVATION OF LIBERTY: LAWFULNESS OF DETENTION 2.5.1. DANGEROUSNESS One aim of the comparative research was to examine which paths can lead to deprivation of liberty of persons with intellectual and/or psychosocial disabilities – in the criminal justice context/following the commission of a criminal offence – in the six partner countries. Deprivation of liberty, in this context, covers imprisonment (in “ordinary” prisons), as well as detention in psychiatric hospitals, forensic psychiatric institutions or special units in public hospitals for the purpose of compulsory treatment. In all six partner countries, an assessment of the defendant’s criminal legal capacity (see Section 2.2), alongside a determination of “dangerousness” during criminal proceedings is determinative of which “track” then ensues. Either a defendant will move along the “regular” track, leading towards prison, the ordinary facilities for imprisonment in a country, or they will move along the other track, leading to some other form of security measure consisting of committal to an institution for the purpose of compulsory treatment. This may be in a specialised psychiatric facility, a hospital or an outpatient arrangement, but nevertheless, it is not within a prison where “regular” prisoners are. In two partner countries (Austria and Bulgaria) criminal legal capacity is assessed in a dichotomous manner; a defendant is either proclaimed criminally incapacitated 52 or not. In contrast, four of the six partner countries (Germany, Lithuania, Slovenia, and Italy) also allow for a determination of diminished criminal legal capacity. Hereby, the mental state of the defendant at the time of the commission of the offence constitutes a mitigating circumstance. Without criminal legal capacity, the person is determined criminally not responsible, and thus cannot be subjected to “detention”. Whether or not a person is deemed to possess criminal legal capacity depends on their retrospectively assessed mental state at the time of the commission of the criminal offence. In all partner countries, a lack, or diminishment, of criminal legal capacity (and consequent denial of criminal responsibility) is dependent on the presence of an impairment (different countries use different terminology, such as mental health issue, mental illness, mental disability, mental health condition, mental disturbance), which caused the person concerned to fail to appreciate the nature and consequences of their act or fail to inhibit/control their wrongful acting. The other crucial element necessary for deprivation of liberty is an assessment of dangerousness, which is either implicitly or explicitly linked to the impairment or disability (see Section 2.2). In other words, the assessment of dangerousness alongside the presence of a disability permits the confinement of the person concerned in order to provide treatment and improve the person’s condition and to “protect the public”. A lack of or diminished criminal legal capacity is connected to a mental condition, thereby creating a separate legal system for persons with intellectual and/or psychosocial disabilities. The imposition of some form of security measure – whether compulsory medical treatment in a hospital or committal to a forensic psychiatric institution or preventive measures – is contingent on three elements: the commission of a criminal offence, an assessment of a mental health condition and a determination of the danger to society/fear of the commission of further criminal offences unless the person is confined.