Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers possible. In Spain, mothers in prison have the right to have their children with them until they are three years old. “Mother units” have been created to accommodate mothers with children; when both parents are imprisoned, “family sections” are created to let families live together. Additionally, mothers on parole can be moved to the “dependent units” – small homes outside the prison where they have a semi-free regime. In 2005, the “Unidades Externas de Madres” (external units of mothers) system was created: a mixture of the traditional prison units and the dependent units, which allow mothers to live with their children outside the prison from the very beginning. Inside the unit, mothers have an apartment to live separately with their children. They can follow educational and social programmes inside the building and even – if they are allowed – outside the unit, accompanying their children to ordinary activities. This unit is optional for mothers, but if they want to live there, they have to comply with some therapeutic requirements.229 5.3. Persons with disabilities Persons with disabilities are individuals who have longterm physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.230 The UNODC recommends that imprisonment is used as a last resort for this group. This principle should be followed in light of the additional impact a prison sentence can have on this vulnerable group: the closed and restricted environment and violence resulting from overcrowding and the lack of proper prisoner differentiation and supervision can accelerate the disabling process.231 The UN Committee on the Rights of Persons with Disabilities (CRPD Committee) has published guidelines on Article 14 (liberty and security) of the Convention on the Rights of Persons with Disabilities (CRPD).232 These guidelines recommend that state parties ensure that places of detention are accessible and provide humane living conditions, and that they guarantee the right to dignity for persons with disabilities detained in prisons. 233 The ECtHR has also noted that imprisonment for persons with severe disabilities can violate Article 3 ECHR (prohibition of inhuman or degrading treatment) if adjustments are not made to accommodate the 229 Spain, Spanish Ministry of Interior (1979), Unidades de madres and Unidades externas de madres, General Organic Law on Prisons (Ley Organica 1/1979, General penitenciaria), 26 September 1979, Art. 38. 230 UN, Convention on the Rights of Persons with Disabilities, Art. 1. 231 UNODC (2009), p. 44. 232 UN, CRPD Committee (2015). 233 Ibid., Art. IX. 78 individual.234 It is therefore important to have a number of alternatives to imprisonment available for this group to avoid the often disproportionate effects a prison sentence has upon them. It should be noted that the Framework Decision on probation and alternative sanctions allows Member States to refuse to recognise decisions providing for medical/therapeutic treatments that the executing state cannot supervise. In the preamble it is explained that such measures may particularly affect mentally ill persons.235 FRA identified the following alternatives to detention as applicable to persons with disabilities in EU Member States: • suspension of sentence or pre-trial detention; • pre-trial psychiatric treatment or treatment for addiction; • home detention; • placement under guardianship; • internment – placement in psychiatric observation/ treatment in specially adapted institution; • release owing to mental disorders or terminal illness. At the pre-trial stage, psychiatric treatment can be prescribed as a precautionary measure as an alternative to imprisonment. This is done in three Member States (Belgium, Croatia and Hungary). For example, in Belgium, investigating judges can issue orders to place persons under observation in the psychiatric annex of a prison, instead of putting them in detention.236 In Spain, the accused can be sent to an official institution for treatment of addiction to narcotic substances or detoxification.237 The most commonly available alternative to imprisonment for persons with disabilities is internment in an adapted institution, which is available in 10 Member States (Cyprus, Denmark, Estonia, France, Hungary, Ireland, the Netherlands, Poland, Sweden and the United Kingdom). This follows the recommendations of the European Prison Rules, which state that “[p]ersons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.”238 In Denmark, a sentenced 234 ECtHR, Price v. the United Kingdom, No. 33394/96, 10 October 2010; Vincent v. France, No. 6253/03, 26 March 2007, and Helhal v. France, No. 10401/12, 19 May 2015. 235 Council Framework Decision 2008/947/JHA, Art. 11 (1) (i), Recital 16. 236 Belgium, Act on social protection for defectives and habitual offenders (Loi de défense sociale à l’égard des anormaux et des délinquants d’habitude/Wet tot bescherming van de maatschappij tegen abnormalen en de gewoontemisdadigers), 1 July 1964, Art. 1. 237 Spain, Code of Criminal Procedure (Código Procesal Penal), Art. 508.1. 238 Council of Europe (2006), No. 12.1.