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OPSIDIANET Offenders with Psycho-Social and Intellectual Disabilities: Identification, Assessment of Needs and Equal Treatment

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OPSIDIANET Offenders with Psycho-Social and Intellectual Disabilities: Identification, Assessment of Needs and Equal Treatment OPSIDIANET Offenders with Psycho-Social and Intellectual Disabilities: Identification, Assessment of Needs and Equal Treatment OPSIDIANET OFFENDERS WITH PSYCHO-SOCIAL AND INTELLECTUAL DISABILITIES IDENTIFICATION, ASSESSMENT OF NEEDS AND EQUAL TREATMENT 2 LEGAL STATUS AND RIGHTS IN CRIMINAL PROCEEDINGS Contents ABBREVIATIONS ......................................................................................................................................... 4 I. REPORT OVERVIEW ...................................................................................................................... 5 II. METHODOLOGY .................................................................................................................................... 6 III. INTELLECTUAL AND PSYCHOSOCIAL DISABILITY ........................................................ 7 1. Intellectual disability ........................................................................................................................... 7 2. Psychosocial disability ...................................................................................................................... 10 2.1. Models of disability ...................................................................................................................... 11 2.2. Psychosocial disability ................................................................................................................. 13 3. Statistical data regarding people with intellectual and psychosocial disabilities 15 3.1. Statistical data on European level ........................................................................................ 15 3.2. Statistical data from Belgium .................................................................................................. 16 3.3. Statistical data from Bulgaria .................................................................................................. 17 3.4. Statistical data from Greece ..................................................................................................... 17 3.5. Statistical data from Italy .......................................................................................................... 18 3.6. Statistical data from the USA .................................................................................................. 20 IV. INTERNATIONAL AND SUPRANATIONAL STANDARDS ON RIGHTS OF PEOPLE WITH DISABILITIES ................................................................................................................ 22 1. European Convention on Human Rights (ECHR) ............................................................... 22 2. The Council of Europe’s Disability Action Plan 2006-2015 and Disability strategy 2017-2023 ................................................................................................................................. 25 3. Convention on the Rights of Persons with Disabilities (CDPR) ................................. 26 OPSIDIANET OFFENDERS WITH PSYCHO-SOCIAL AND INTELLECTUAL DISABILITIES IDENTIFICATION, ASSESSMENT OF NEEDS AND EQUAL TREATMENT 3 LEGAL STATUS AND RIGHTS IN CRIMINAL PROCEEDINGS 4. EU Legal framework .......................................................................................................................... 28 4.1. The Charter of Fundamental Rights of the European Union ................................. 28 4.2. Directive 2012/13/EU on the right to information in criminal proceedings . 29 4.3. Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty .................................. 30 4.4. Directive (EU) 2016/1919 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings ................................................................................................................................................. 30 4.5. Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings 31 V. LEGAL STATUS OF INDIVIDUALS WITH PSYCHO-SOCIAL AND INTELLECTUAL DISABILITIES .............................................................................................................. 31 1. Legal capacity: definition and importance ............................................................................ 31 2. Legal status of offenders with psycho-social and intellectual disabilities in criminal law ................................................................................................................................................. 37 2.1. Exemption from criminal responsibility ............................................................................. 37 2.2. Alternative measures ................................................................................................................... 38 VI. PROCEDURAL RULES AND PRACTICES APPLICABLE TO OFFENDERS WITH PSYCHO-SOCIAL OR INTELLECTUAL DISABILITIES ................................................................. 43 1. Belgium .................................................................................................................................................... 45 2. Bulgaria .................................................................................................................................................... 50 3. Greece ....................................................................................................................................................... 55 4. Italy ............................................................................................................................................................ 58 OPSIDIANET OFFENDERS WITH PSYCHO-SOCIAL AND INTELLECTUAL DISABILITIES IDENTIFICATION, ASSESSMENT OF NEEDS AND EQUAL TREATMENT 4 LEGAL STATUS AND RIGHTS IN CRIMINAL PROCEEDINGS VII. CUSTODIAL AND NON-CUSTODIAL MEASURES DURING CRIMINAL PROCEEDINGS ............................................................................................................................................ 62 1. Belgium .................................................................................................................................................... 62 2. Bulgaria .................................................................................................................................................... 63 3. Greece ....................................................................................................................................................... 68 4. Italy ............................................................................................................................................................ 70 VIII. CONCLUSION ................................................................................................................................. 71 ABBREVIATIONS AAIDD American Association on Intellectual and Developmental Disabilities CRPD Convention on the Rights of Persons with Disabilities DSM-5 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ECHR European Convention on Human Rights ECtHR European Court of Human Rights EU European Union FRA European Union Agency for Fundamental Rights ICF International Classification of Functioning, Disability and Health UN The United Nations WHO World Health Organization OPSIDIANET OFFENDERS WITH PSYCHO-SOCIAL AND INTELLECTUAL DISABILITIES IDENTIFICATION, ASSESSMENT OF NEEDS AND EQUAL TREATMENT 5 LEGAL STATUS AND RIGHTS IN CRIMINAL PROCEEDINGS I. REPORT OVERVIEW Several studies have demonstrated that psychological vulnerabilities in police suspects could interfere with the demand characteristics of an interrogation, for example with understanding the consequences of answers, and with giving a reliable, accurate and coherent statement.1 Hence, it is no surprise, that people with intellectual and/or psycho-social disabilities comprise a disproportionate number of the people who are arrested, who come before the courts and who are deprived from liberty. The reasons for this are complex, but are generally attributed to clinical risk factors, such as co-occurring substance use problems and treatment non-compliance, as well as social and systemic factors, such as improperly implemented deinstitutionalization policies, homelessness and poverty, community disorganization, poorly funded and fragmented community-based mental health and social services, hospital emergency room bed pressures, overly restrictive civil commitment criteria, intolerance of social disorder, and criminal law reforms.2 This report strives to bring together strands of scientific research from various fields, in order to shed some light on people with intellectual and psychosocial disabilities and the challenges they face in their interaction with the police and judicial authorities during criminal proceedings. The introductory Sections I and II provide general information about the research design and the methodology, used in this report. Section III provides background to the evolution of the notion of disability as a whole and intellectual and psychosocial disabilities, in particular. Section IV gives further context by presenting an overview of relevant human rights standards, at international
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