IMPLEMENTATION UNDER NATIONAL LAW
special departments of prisons. Currently,
there is only one specialised forensic therapeutic centre and three special departments
in prisons.201 A recently passed reform law
foresees the extension of forensic-therapeutic institutions instead of detaining
persons in special departments of “ordinary”
detention facilities.202
2.5.3.3. PRE-TRIAL DETENTION
offence was committed in a state of diminished
or lack of criminal legal capacity and public
safety requires detention in a psychiatric hospital or addiction treatment facility. However,
detention in a psychiatric hospital prior to
judgement or a detention order also means
that even the suspicion of a disability, together
with the suspicion of being dangerous, is sufficient to place the individual in a system of
measures of correction and incapacitation.205
The research in the six partner countries has
shown that, with regard to pre-trial detention,
persons with intellectual and/or psychosocial
disabilities subject to criminal proceedings
may either (a) spend the proceedings phase
at liberty, (b) serve pre-trial detention in an
ordinary prison or (c) serve some form of
provisional security measure. Experts have
mentioned that where alternatives to pre-trial
detention exist, such as home arrest, electronic monitoring or bail, these options are rarely
applied to defendants with intellectual and/
or psychosocial disabilities.
In Austria, persons with intellectual and/or
psychosocial disabilities who are considered
to possess criminal legal capacity are usually
detained in (ordinary) pre-trial detention
facilities. Persons who are considered to lack
criminal legal capacity, who are subjected to
pre-trial measures should be placed in forensic-therapeutic centres.206 Where appropriate
– and provided that the person concerned
receives appropriate treatment and care –
they may be placed in a psychiatric public
hospital or in the psychiatric department of
a public hospital.207
A temporary committal to a form of security
measure may be imposed with relative ease,
provided there are grounds to assume that the
defendant may not be criminally responsible
or that they may pose a danger to society.
Another purpose of committal at this stage
may be to conduct (forensic) psychiatric assessment and observation for the purpose of
drawing up psychiatric expert opinions on the
mental capacity of the defendant. For example, in Bulgaria, persons with intellectual and/
or psychosocial disabilities serving pre-trial
detention are detained in “ordinary” prisons,
without any special regimes. However, a court
may commit a person to a psychiatric hospital
for assessment for a duration of up to 30 days;
this type of measure is considered a form of
pre-trial detention by law. The time period
for the assessment may be extended once
by no longer than 30 days following the same
procedure as above if the court-appointed
period proves insufficient.203
In Italy, provisional security measures may
be imposed on persons subject to criminal
proceedings which are served in the REMS.208
In Germany, temporary detention in a
psychiatric hospital may be ordered, which
is considered neither a measure nor pre-trial
detention.204 It can be ordered if there are
pressing reasons for the assumption that the
60
2.5.4. DURATION AND LIMITS
In four out of the six partner countries
(Germany, Austria, Bulgaria, and Lithuania),
unlimited and indefinite deprivation of
liberty of persons with intellectual and/or
psychosocial disabilities is possible, meaning
the imposed measures do not contain a time
limit and may last for as long as the grounds
for their imposition prevail. In other words,
the detention may continue, unless the
detainee’s mental condition improves (i.e.,
they are considered “cured”) or the detainee
is no longer considered to be a danger to
society (see Section 2.6.8.1). Experts in the
consultation workshops have noted that the
lack of a concrete time limit for the confinement in an institution leaves persons feeling
powerless, without agency and that their (life)
time, hopes and wishes are worthless.
However, a significant issue here is that
facilities may often simply not offer the
treatment/therapy that would be necessary
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents