JUSTICE FOR ALL • Enhance the collection of systematic and disaggregated data in the criminal justice system on suspects, accused, detained, and sentenced persons with intellectual and/or psychosocial disabilities to ensure a more comprehensive understanding of their involvement in criminal proceedings. • Consider the establishment of databases on facilities where persons with intellectual and/or psychosocial disabilities can be accommodated to improve visibility towards relevant actors and facilitate information exchanges. is becoming more rare, which is mainly due to psychiatrists applying higher standards for the requirement of “irresponsibility”. Some partner countries (Austria, Germany and Italy) link the criminal legal capacity to a form of “mental disability”, “mental disorder” or a “mental health condition”. Slovenia, on the other hand, simply refers to circumstances that exclude criminal responsibility without explicitly including any reference to a disability. As was already pointed out above, the UNCRPD, especially Art 12 (together with 13 and 14) establishes a new paradigm of ‘universal legal capacity’ that cannot be limited on grounds of disability or mental incapacity.132 According to the UNCRPD Committee, persons with disabilities must be able to stand trial on an equal basis (see Section 1.1.3). In order to stand trial, legal capacity is a prerequisite and determinations about criminal legal capacity are very often decisive for the effective participation of defendants and detainees in their proceedings. Under Lithuanian law, a person shall be considered legally incapacitated when, at the time of commission of an act forbidden under the Criminal Code, they were unable to appreciate the dangerous nature of the act or to control their behaviour as a result of a mental health condition.133 Under German legislation, a person shall be deemed to act without guilt, who at the time of the commission of the offence, is incapable of appreciating the unlawfulness of their actions … due to their pathological mental disorder, a profound disturbance of consciousness or intellectual disability or any other serious mental disorder”.134 Similarly, the Bulgarian law states that “criminal responsibility is excluded when a person was in a state of mental incompetence at the time of committing the offence; that is, when due to mental retardation, an enduring mental disability or a temporary mental disorder he/ she was unable to understand the nature or consequences of his/her actions or was not able to manage his/her actions.”135 The research has shown that in national legislations of EU Member States, intellectual and/or psychosocial disabilities (often “mental health conditions”) of defendants have a significant bearing on the criminal proceedings through finding that the disability diminishes their legal capacity. All partner countries’ legal systems contain a “presumption of criminal legal capacity”. An assessment of the criminal legal capacity is only conducted in cases in which there is reasonable doubt. Some experts in Lithuania mentioned that within the past years, there was a trend of heightened thresholds for “criminal irresponsibility”; a lack of criminal legal capacity The negation of criminal legal capacity may specifically impact the exercise of certain criminal procedural rights, the outcome of the criminal proceeding, as well as the application of measures of deprivation of liberty or treatment while in detention. In the majority of national systems examined, the confirmation that a lack of criminal responsibility is connected to a disability constitutes a decisive element for the basis of “special proceedings” in the criminal justice context, leading to security measures/compulsory treatment/forensic psychiatric detention/preventive custodial measures (see Section 2.5). Only if the • Amend national legislation to correspond to the (wording of the) UNCRPD in general and abolish discriminatory language/ terminology in (criminal) legislation. 2.2. LEGAL CAPACITY, CRIMINAL RESPONSIBILITY AND ACCESS TO JUSTICE 41