In the recently published research report “Justice for all: Enhancing the Rights of Defendants and Detainees with Intellectual and/or Psychosocial Disabilities”, Bernadette Fidler, researcher at the Ludwig Boltzmann Institute of Fundamental and Human Rights (LBI-GMR), provides an overview of the current legal situation in Austria in this regard. Special consideration is given to the recent change of legislation regarding the preventive measure system “Maßnahmenvollzugsanpassungsgesetz”, which came into force in the middle of the year. The researcher analyses current shortcomings, discusses promising practices and formulates recommendations for strengthening the rights of persons with intellectual and/or psychosocial disabilities. In addition to analysing the Austrian preventive measures systems, she also deals with the implementation of relevant EU-framework decisions on cross-border cooperation in criminal proceedings (including the European Arrest Warrant).

The report is part of an eponymous research project, implemented in collaboration with five European partner organisations and funded by the EU. Among other things, it criticises the unlimited deprivation of liberty in a criminal law context as well as the lack of therapy services and appropriate specialist staff. The study also addresses the quality of expert reports and the need to provide appropriate legal representation for people with intellectual and/or psychosocial disabilities during deprivation of liberty. Numerous experts interviewed in the course of the research also came to the conclusion that more support (including therapeutic and medical support) is needed within the healthcare system as a preventative measure. This could ensure that persons concerned receive support and treatment in good time and thus also prevent criminal offences that could result in preventive measures. The possibility of holding a social net conference and crisis intervention were noted as positive aspects. In addition, the new provision on being examined in each case. “Overall, it remains to be seen, what changes the most recent reform (‘Maßnahmenvollzugsanpassungsgesetz) will bring in practice,” says Bernadette Fidler. It is also questionable when the promised second part of the reform (which, among other things, is intended to reform the deprivation of liberty itself and the range of treatment options available) will be published, she continues.

About the project

From January 2022 to December 2023, the Ludwig Boltzmann Institute of Fundamental and Human Rights implemented the project “Justice for All” together with five partner organisations from Bulgaria, Germany, Italy, Lithuania and Slovenia. The project focussed on the rights of defendants and detainees with intellectual and/or psychosocial disabilities. In particular, the deprivation of liberty under criminal law and alternatives to deprivation of liberty were analysed. The research included numerous consultations with stakeholders and interviews with experts as well as persons concerned. At national Austrian level, the focus was particularly on provisions relating to the execution of measures. The project was co-financed by the Justice Programme of the European Union and the Zukunftsfonds of the Republic of Austria, as well as at national level by the Federal Ministry of Justice and the Federal Ministry of Social Affairs, Health, Care and Consumer Protection of the Republic of Austria. A video about the project is available at this link.

Background

In Austria, persons with intellectual and/or psychosocial disabilities are detained under criminal law within the framework of the so-called . Persons subjected to preventive measures are either placed in forensic therapeutic centres, psychiatric hospitals or special departments/wards of prisons. The implementation is controversial. Following repeated condemnations by the European Court of Human Rights, a recent change in legislation came into force in Austria in mid-2023. It represents the first part of the reform of the preventive measure system in Austria and brought some adjustments with regard to the requirements for preventive measures, procedural changes and new additions, for example with regard to crisis intervention and the possibility of holding social net conferences. However, many areas remained unchanged. In particular, the deprivation of liberty itself, available therapeutic and support services and the requirements for conditional release remain unaffected and are only to be adapted as part of the second phase of the reform. It remains to be seen, when this second phase will be implemented.