JUSTICE FOR ALL
In Lithuania, the judge has the right to
require attendance at the review hearings
(occurring every six months), provided that,
according to the opinion of the medical board,
the nature of the health condition does not
preclude the attendance.220 In Germany,
persons concerned usually participate in
the review hearings. However, the research
showed that their statements are usually used
(twisted) to confirm the continuation of the
custodial measure. Their statements may be
interpreted as lack of taking responsibility for
their actions.221
The research has revealed that very often,
decisions in review proceedings are based
almost exclusively on the expert opinions. For
example, in Austria, with regard to security
measures and preventive detention, the court
has to consult a medical expert once every
two years as part of the hearing regarding
the conditional release.222 However, in some
cases, review decisions are based on the expert opinions from the criminal proceedings,
which can date back years.223 Very often
only statements of internal experts (medical
doctors at the hospital/forensic centre) are
taken into account. The CPT, in its recent
report, raised concerns about this practice, as
involving external experts independent from
the institution where the person is deprived
of their liberty offers an important safeguard,
particularly for persons who have already
been detained for a long time. In some cases,
years go by without “new” expert opinions
being requested and taken into account.224
In Germany, external expert witnesses are
always requested regarding the continuation
of preventive detention, whereas for the
continuation of compulsory measures, this
is not the case. Instead, internal experts
are requested to provide their opinion on
the situation and condition of the person
concerned.
Also, in Bulgaria, the duration of stays in
psychiatric hospitals for compulsory treatment are sometimes prolonged, for a lack
of alternatives. If a person does not have a
home, ties to social services or a social net in
the community, getting released is very difficult. At the same time, reportedly, persons
might be discharged too soon, before any
improvement of their condition in the sense
that their danger to society has diminished. A
representative from Bulgaria has noted that
security measures might last for a very long
time, not because of the persisting danger
the person concerned supposedly poses
to society, but rather because of a lack of
alternatives for care in the community.225
2.5.6. CONCLUSIONS
AND RECOMMENDATIONS
The research examined the variety of paths
that can lead to deprivation of liberty of
persons with intellectual and/or psychosocial
disabilities in the six partner countries. All
partner countries allow deprivation of liberty
of persons with intellectual and/or psychosocial disabilities in the criminal context based
on perceived dangerousness linked to their
disability. This is in violation of the principles
enshrined in the UNCRPD, prohibiting deprivation of liberty on the basis of disability.
Depending on assessments of criminal legal
capacity, dangerousness, and varying other
legal, medical and practical considerations,
persons concerned come under the purview
of different regimes and facilities, which are
embedded in complex systems and difficult
to compare across countries: imprisonment
(in ‘ordinary’ prisons), as well as detention
in psychiatric hospitals, forensic psychiatric
institutions, or special units in public hospitals
for the purpose of compulsory treatment. The
research found that involuntary/non-consensual committal to institutions is a legitimated
practice in all countries. Deprivation of liberty
of persons with intellectual and/or psychosocial disabilities often blurs the lines between
medical concerns and security concerns. The
research indeed showed that security concerns very often prevail and that the needs
for support and care of the individual are not
taken into account sufficiently.
In most partner countries, unlimited and
indefinite deprivation of liberty of persons with
intellectual and/or psychosocial disabilities is
possible under some form of security measure.
It is difficult to be discharged/released from a
security measure and sometimes one compulsory measure is simply substituted by another.
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