JUSTICE FOR ALL
who do not meet those requirements, no
specific procedural accommodations in the
criminal proceedings are available. The examinations and assessments are purely medical,
generally carried out by psychiatrists. Other
experts with important specialist knowledge,
information and insight into the particular
situation of the individual concerned (e.g.,
social workers, the social net, psychologists,
other therapists, and the person concerned)
are not involved in these assessments. At
the same time, (medical) expert opinions in
themselves are a topic of concern in Austria.
There are currently no guidelines and quality
standards for experts’ opinions, which in practice very often lack the necessary quality, are
sometimes based on very brief discussions
with the person concerned and results have
not been sufficiently individualized. This has
in many cases led to wrong assessments and
consequently to incorrect recommendations
to impose preventive measures. This lack of
quality standards is exacerbated by a general
shortage of expert witnesses and a very heavy
workload. Aside from expert witnesses, actors
involved in the proceedings lack necessary
sensitivity and awareness of the situation of
persons with intellectual and/or psychosocial
disabilities, as well as the necessary training
on how to interact with them.
If an intellectual and/or psychosocial disability is detected and proceedings for placement
in preventive detention are initiated, there is
a need for legal defence lawyers throughout
the proceedings until they are concluded. In
particular, the presence of the defence lawyer during police questioning of the persons
concerned, as well as support in the review
or release procedure, should be considered
because this could contribute significantly
to improving the rights of the persons
concerned. Review proceedings are often
perceived as hearings that are too short
and lack an up-to-date independent (and
possibly external) assessment of the person's
situation, as well as legal representation.
As regards the conditions of detention and
treatment of persons with intellectual and/or
psychosocial disabilities, there are differences
between persons who are considered criminally responsible by the court and those who
are considered not criminally responsible.
Overall, one of the biggest challenges is to
ensure that persons have access to adequate
treatment at an early stage, so that they may
be discharged early. Currently, these services
are often only available at the post-trial stage,
particularly for persons who were considered
criminally responsible. They are detained in
pre-trial detention facilities, frequently locked
up for up to 23 hours per day. Another
topic of concern is the lack of mechanisms
available to ensure access to information
particularly about the treatment, including
medication. At the same time, public hospitals
are not always sufficiently equipped to care
for the persons concerned, due to a lack of
space and resources.
Non-custodial measures are available in law,
but they are not ordered often enough in
practice. There is a lack of aftercare facilities
with sufficient and adequately trained staff.
Simultaneously, the research revealed that
there are currently no clear guidelines for
the treatment and conditions in aftercare
facilities. At the same time, it is crucial to
ensure post-conviction support, once the
person concerned “leaves” the criminal justice
system, by way of increasing support within the
community and the general healthcare system.
Finally, the current Austrian system regarding
the deprivation of liberty of persons with
intellectual and/or psychosocial disabilities
in the criminal justice context is complex
in so many ways and lacks transparency. It
is difficult to understand the various proceedings and procedures, not to mention
the complicated legal framework. It seems
impossible for persons with intellectual and/
or psychosocial disabilities who very often
find themselves in vulnerable situations.
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