Treatment of mentally disordered perpetrators of criminal offences in the context of abiding by the ECHR

• Author: Etilda Gjonaj
• Position: Minister of Justice, Albania
• Pages: 236-247

Vol. 3 No. 1

January, 2019

European Journal of Economics, Law and Social Sciences

IIPCCL Publishing, Graz-Austria

ISSN 2519-1284

Acces online at www.iipccl.org

236

Treatment of mentally disordered perpetrators of criminal o ences in the

context of abiding by the ECHR

PhD (C.) Etilda Gjonaj

Minister of Justice, Albania

Abstract

The remand and sentenced prisoners shall be treated with dignity while showing respect

for their human rights. The mentally disordered, remand and sentenced, prisoners shall be

specif‌i cally guaranteed an equal, non-discriminatory treatment, while showing respect for

their physical integrity and human dignity. Their treatment shall be in line with the health-

related standards, being applied even to other categories of of mentally disordered persons.

Mental disorders are of di erent categories: they may totally reduce the capacity to be aware

of the relevance of the adopted conduct, thus excluding such person from the criminal liability;

they may partially reduce the capacity to be aware of the adopted conduct, thus rendering

such person liable for the conduct it has adopted. From this perspective, it is important to

determine the way of dealing with these persons, following them commi ing a criminal

o ence. This research study aims initially at shedding light on the way of dealing with the

mentally disordered, remand or convicted, prisoners, be it for the purposes of re-integration,

or for their health-related care, while, on the other hand, showing the way of treating the

persons, who, at the moment of commi ing the criminal o ence, were legally insane of being

aware of the relevance of their conduct.

Keywords: criminal o ence, mentally disordered perpetrator, ECHR, Albania.

Introduction

Based on paragraph 1 of Article 3 of the Law no 44/2012 ‘On mental health’, there

shall, under mental health, be understood the capacity to think and learn, as well

as the capacity of an individual to be capable of coping of their emotions and

reactions of others. There shall, in reliance on paragraph 2 of the same Article, under

mental health disorders be understood a profound failure of thinking, perception,

orientation or memory, thus impairing the conduct, judgement, capacity to recognise

the reality or the capacity of the person to meet the living requirements, which

renders them mentally sick or retarded, as long as this is associated with pathological

aggressive conduct or seriously irresponsible. Regarding the persons with mental

health disorders, they can be broken down into two groups: persons with mental

health disorders being perpetrators of criminal o ences and persons with mental

health disorders not having commi ed any criminal o ences. Three categories of

persons with mental health disorders appear in the f‌i rst group, who are perpetrators

of criminal o ences, thus specif‌i cally:

− Persons with mental health disorders who, at the moment of commission of

the criminal o ence, were unaccountable. Under the f‌i rst paragraph of Article 17 of

the Criminal Code, no one shall be held criminally liable who at the time of commi ing the