Validity and its ENABLE project* partners spent the previous six months researching the barriers defendants with intellectual and psychosocial disabilities face in the criminal justice process in eight EU countries (BG, CZ, ES, LT, PT, RO, SI, SK). The study included both desk research and field work, and it examined the national legal and political framework that governs defendants with disabilities’ access to justice, with a focus on reasonable and procedural accommodations, and the experiences of various stakeholders regarding defendants with disabilities’ access to justice (persons with intellectual and psychosocial disabilities, lawyers, judges, prosecutors, NHRI staff and NGOs) identifying barriers, challenges, and areas for improvement. The research also looked at the best practices for promoting inclusion and access to justice in the countries participating in the research. 

One of the systemic issues identified across all assessed jurisdictions is that most countries still have laws in place that allow for the deprivation or restriction of legal capacity. Others, where legislation allows for supported decision-making, are still awaiting implementation. This results in exclusion from criminal proceedings, replacement with a guardian/incapacity to stand trial, and the imposition of security medical measures. 

Another systemic issues is the detection of intellectual disability, which is inadequate across all assessed countries. The vast majority of people with disabilities are identified as such while incarcerated, after they have gone through the entire criminal procedure without any procedural accommodations. ​At the same time, where the disability is detected earlier, decisions on procedural accommodations are mostly made at the discretion of the judge, prosecutors, and police officers, with no norms or standards in place for requesting specific procedural accommodations. Similarly, the individual assessment of disability appears to be discretionary and limited to determining capacity to stand trial or establishing insanity defence.  

Stigma, ignorance, and bias among justice sector professionals is another systemic finding of the report. As a consequence, the characteristics of people with disabilities are frequently misinterpreted as uncooperative behavior in police investigations or court proceedings. 

Simultaneously, the study identified some promising best practices for involving defendants with intellectual and psychosocial disabilities, which could be replicated in other jurisdictions. A good example might be the Involvement of non-governmental organizations from Portugal in assessing the social functioning of people with disabilities, to be used in all court cases involving people with disabilities. Its goal is to provide the court with insights on the special needs that would allow for effective participation in the trial, as well as to protect the person’s rights and interests in general. ​Or the creation of working groups comprised of police officers, local disability organizations, municipality representatives, and health system representatives, allowing all actors to learn about people with disabilities in the municipality, exchange relevant information, develop appropriate and flexible responses to local problems, but also carry out regular training activities. In Spain, there are professional experts who serve as facilitators and carry out adaptation and adjustment tasks , including in criminal proceedings.  

Full reports in English, Romanian, Bulgarian, Czech, Slovenian, Slovakian, Lithuanian, Spanish, and Portuguese can be found here.

*The project “Enabling inclusion and access to justice for defendants with intellectual and psychosocial disabilities” (ENABLE) seeks to promote access to justice and fairer criminal proceedings for defendants with intellectual and psychosocial disabilities in 8 EU countries.   

Drawing from recommendations from persons with disabilities, the literature, and criminal justice professionals, the project has set the following objectives:  

1. Improve knowledge on participation barriers, and how to overcome them, experienced by defendants with intellectual and psychosocial disabilities in the criminal justice system, and particularly by women with disabilities and those who are deprived of their liberty; 
2. Improve capacity of criminal justice professionals (lawyers, police, prosecutors and/or judges) to ensure the provision of reasonable and procedural accommodations in the criminal justice system in accordance with EU and international human rights law
3. Strengthen cooperation and exchange between civil society and criminal justice professionals to optimise access to legal services for defendants with intellectual and psychosocial disabilities.

This project is co-funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the granting authority can be held responsible for them.