IMPLEMENTATION UNDER NATIONAL LAW person concerned has been determined not to have criminal legal capacity and is thus found without criminal responsibility, will these “special proceedings” be applied. Otherwise, the person will be subjected to ordinary criminal proceedings. in place for persons with intellectual and/ or psychosocial disabilities who are found criminally responsible. In Germany, persons may be subjected to preventive detention as a “continuation of the correctional system” (see Section 2.5.3.2). Although declaring a defendant not criminally responsible may result in their acquittal (e.g., in Portugal and Czech Republic), the national legislation may nevertheless order a custodial measure (i.e., an alternative measure to criminal penalties with preventive purposes) involving admission to a forensic facility or mandatory community treatment. The criterion of ‘dangerousness’ is often used to assess the need for imposition of these measures (see Section 2.5.1). The determination of criminal responsibility is done based on expert opinions, which assess the situation and condition of the person concerned (see Section 2.3). In practice, people subjected to security measures can spend longer periods of deprivation of liberty than those who were found guilty of the same alleged crimes, sometimes for indefinite periods (see Section 2.5.4). Some partner countries (Germany, Italy, and Slovenia) foresee the possibility of diminished responsibility/partial criminal responsibility, in which case responsibility is not excluded as a whole but considered as a mitigating factor. In both cases, the person may be subjected to a security measure. In this context, a concern was raised by experts from Germany. By trying to “prove” diminished responsibility to the court, a person may expose themselves to the possibility of ending up in unlimited confinement. In Austria, while the law does not explicitly provide for “partial or diminished criminal legal capacity”, the law also foresees a diminished ability to understand the wrongdoing as a mitigating factor. In this case however, the person concerned receives an “ordinary prison sentence”, and is not subjected to any other form of security measure or compulsory treatment (see Section 2.5.2).139 In some countries (Austria, Bulgaria, Lithuania, and Slovenia), a defendant may be found not criminally responsible but the criminal proceedings may be discontinued if the requirements for the imposition of measures are not met. The defendant may have a disability or mental disorder which renders them not criminally responsible in the eyes of the court, but the specific requirements are not met – e.g., they are not considered to pose a danger to society – which would warrant the imposition of compulsory treatment. As noted by Tina Minkowitz, “Acquittal of a criminal offense based on an adjudication of mental incapacity, or declaration that a person cannot be held criminally accountable on account of disability or of mental incapacity, is problematic in light of the recognition that persons with disabilities are equal to others before and under the law.”136 In fact, in Germany, persons who are subjected to these proceedings and are found not criminally responsible are acquitted of their criminal offence. However, they can be subjected to custodial measures for an indeterminate period of time due to their disability and “dangerousness”.137In Austria, persons who are found not criminally responsible are not formally acquitted. Instead, consequently they may be subjected to custodial measures due to their disability and “dangerousness” for an indefinite period of time.138 In Germany and Austria, there are additionally other forms of deprivation of liberty 42 In Germany, discontinuation of the proceedings is also possible when “there is no public interest in prosecution” or “if obligations/instructions are fulfilled.” Proceedings may also be discontinued without a conviction but on the basis of the imposition of community service, other therapy (e.g., psychotherapy) or reparations. Some countries also provide for the possibility to apply other measures instead of pursuing criminal proceedings (see Section 2.7).