EXECUTIVE SUMMARY
10
Over the last two decades, the need for
improved judicial cooperation between EU
Member States has increased significantly.
To this end, the European Commission has
adopted several Framework Decisions, such
as the European Arrest Warrant and the
European Supervision Order, to facilitate
judicial cooperation in criminal proceedings.
The European Court of Justice emphasizes
the importance of respecting fundamental
rights in the application of these instruments,
as they ensure trust between Member States
and smooth cross border cooperation. In order
to properly analyse cross border proceedings,
it is necessary to look at the national systems
and the challenges at the national level in
relation to international standards.
the need for more cross border cooperation
at all levels and between all stakeholders to
ensure continuity of care and (legal) support).
Austria has transposed all the examined
Framework Decision into national law.
For all Framework Decisions, the Austrian
law provides for grounds for refusal linked
to possible fundamental rights violations;
for some Member States, specific orders by
the Ministry of Justice have been issued.
The research revealed that the Framework
Decision (FD) 2002/584/JHA on the European Arrest Warrant is used very frequently
but little to no specific information on cases
concerning persons with intellectual and/or
psychosocial disabilities. FD 2008/909/JHA
on the Transfer of Prisoners is also applied
regularly, and there are various additional
guidelines on the application, none of which
are specific to persons with intellectual and/
or psychosocial disabilities. FD 2009/829/
JHA on the European Supervision Order and
FD 2008/947/JHA on Probation and Alternative Sanctions, however, are applied very
rarely in general, and no cases of persons with
intellectual and/or psychosocial disabilities
have been identified. Nonetheless, it was
possible to identify some general challenges
that may be equally (or even more) relevant
for persons with intellectual and/or psychosocial disabilities (e.g., a lack of awareness of the
specificities of the Framework Decisions and
The possibility of indefinite deprivation of
liberty of persons with intellectual and/or
psychosocial disabilities in the criminal justice
context (especially when it is beyond the maximum sentence for the offense in question)
continues to pose a major challenge. This
possibility places persons concerned in a situation of despair and lack of prospects, which
can be emotionally and mentally stressful. For
people with intellectual and/or psychosocial
disabilities, being subjected to preventive
measures means additional stigmatization
in their daily lives, even after release. At the
same time, the average duration of detention
(when it is far longer than the maximum
sentence) appears questionable with regard
to standards under the European Convention
on Human Rights (ECHR) and the United
Nations Convention on the Rights of Persons
with Disabilities (CRPD).
In the national Austrian context, after years of
criticism both at the national and international
level and repeated condemnation by the
European Court of Human Rights (ECtHR)
due to the shortcomings of the preventive
measures (“Maßnahmenvollzug”) systems, an
amendment to the preventive measures system (“Maßnahmenvollzugsanpassungsgesetz”)
came into force in 2023. Despite the recent
reform, the system of preventive measures
in Austria is still in need of change. Over the
last 20 years, the number of people subject to
preventive measures has steadily increased.
During the proceedings, intellectual and/or
psychosocial disabilities are only taken into
account when an assessment is necessary
to consider whether preventive measures
should be applied (consisting of an assessment of the capacity in the moment when
the crime was committed). For persons with
psychosocial and/or intellectual disabilities