Enhancing the rights of defendants and detainees with intellectual and/or psychosocial disabilities: EU cross-border transfers, detention and alternatives

    Slavka Kukova

The present research tries to identify and analyse the relevant legal and policy framework as well as the situation in practice of the defendants and detainees with intellectual and/or psychosocial disabilities (IPD) in Bulgaria. It makes the overview of the main and secondary legislation concerning the different phases of the criminal proceedings with the participation of the persons with disabilities, including pre-trial detention and placement for assessment as well as compulsory treatment in psychiatric hospitals in case of identified mental incompetence of the perpetrators with disabilities. The research also presents policy documents (strategies/action plans) regarding penal, penitentiary and psychiatric treatment systems. Is also contains findings of monitoring reports of the Council of Europe Committee for the Prevention of Torture, the National Preventive Mechanism, and the national NGOs as well as observations and opinions of interviewed experts such as: judges, lawyers, expert witnesses, prison psychiatrists/psychologists, persons with disabilities and NGOs working in the assessment and advocacy fields. Finally, the research identifies and presents cross-border cases with defendants and detainees with IPD and the implementation of national legislation transposing the Framework Decisions 2002/584/JHA on the European Arrest Warrant (EAW); 2008/909/JHA on the Transfer of Prisoners; 2008/947/JHA on Probation and Alternative Sanctions; 2009/829/JHA on the European Supervision Order.

Regarding cross-border proceedings, the main identified challenges are the lack of a database about cross-border cases; the difficulties in finding interpreters and expert witnesses in case of defendants who are foreign citizens; and the lack of clarity on how the consent from the person concerned is obtained when it is required. A common challenge is the lack of coordination, data collection and processing between the Ministry of Interior, the Ministry of Justice, the Ministry of Healthcare and the Ministry of Labour and Social Policy regarding persons with IPD who had perpetrated crimes.

The project identified numerous legislative and practical gaps in both criminal proceedings/detention and compulsory treatment procedures as well as in penitentiary and mental health systems in Bulgaria. The main identified gaps and issues during the criminal proceedings are: the stigma and the low priority given to criminal cases in which disabled persons are involved because of it; the social isolation, the poverty and the lack of support network to ensure regular outpatient treatment, resocialisation and recovery from crisis and hospital treatment; the lack of identification mechanism for the IPD; the extreme scarcity of forensic experts, hospitals and centres for placement for assessment and treatment; the delayed assessment of the disability; the lack of access to outpatient treatment especially for those who are not health insured; the lack of support services for defendants and detainees with IPD; the lack of sufficient capacity in the hospitals and the mental health centres for inpatient treatment; the sometimes inadequate, unclear, unreasoned assessments during the pre-trial proceedings; the lack of access to a fair trial for defendants declared as criminally irresponsible later in the proceedings; the long stay of persons under compulsory treatment in the psychiatric hospitals due to lack of community support services outside the hospitals; the release from the compulsory treatment of persons who are not treated effectively and still pose a threat to themselves and others; the illegal deprivation of liberty of such persons due to social, financial, administrative reasons and lack of alternatives.

The main gaps and issues related to the penitentiary system and probation services are the lack of psychological help and psychiatric therapy for detainees with IPD in pre-trial detention facilities and prisons; the low capacity of the staff who deal with the persons with disabilities in the prisons, in the prison hospitals and in other psychiatric institutions; the lack of mechanism for provision of support by the probation services to convicts with IPD; the lack of training of police, prosecutors, judges, probation officers for interaction with persons with IPD; the lack of database and referral mechanism of the residential, day-care, therapeutic services for persons with IPD.