Defendant's Capacity to Stand Trial: The Court of Cassation, with Ruling No. 27268/2025, Outlines the Powers of the Preliminary Investigations Judge (GIP)
A defendant's capacity to consciously participate in criminal proceedings is a cornerstone principle of our legal system, essential for safeguarding the right to defense. The Court of Cassation, in Ruling No. 27268 of 07/07/2025, has provided crucial clarification on the powers and duties of the Preliminary Investigations Judge (GIP) regarding the assessment of this capacity. This decision, which overturned a ruling by the GIP of the Court of Pescara without referral, is of great significance for all legal professionals and warrants in-depth analysis to understand its practical implications.
Article 70 of the Code of Criminal Procedure and the Need for Assessment
Article 70, paragraph 3, of the Code of Criminal Procedure requires the judge to order an expert examination if there are grounds to believe that the defendant's mental state prevents their conscious participation in the proceedings. This provision aims to protect defendants from a trial in which they would be unable to understand the charges or fully exercise their rights. The request for an assessment can originate from the public prosecutor, the defense counsel, or be ordered ex officio. The ruling in question focuses precisely on the conditions that trigger the GIP's obligation to proceed with such a technical assessment.
The Ruling of the Court of Cassation: Autonomous Evaluation and Obligation for Expert Examination
Ruling No. 27268/2025 by the Court of Cassation has precisely defined the scope of the GIP's intervention. The ruling states:
In matters concerning the defendant's capacity to stand trial, the preliminary investigations judge, when requested pursuant to Article 70, paragraph 3, of the Code of Criminal Procedure by the public prosecutor to ascertain the suspect's capacity to consciously participate in the proceedings, is not obliged to order an expert examination if they independently possess evaluative elements indicating the subsequent incapacity of the person under investigation. However, they are obliged to do so, in the form of a preliminary hearing (incidente probatorio), when, even based on the public prosecutor's submissions, there emerges a "fumus" (suspicion) of the aforementioned incapacity.
This ruling distinguishes between two scenarios. The GIP is not obligated to order an expert examination if they already possess independent and sufficient elements that clearly demonstrate the suspect's incapacity, rendering further technical evaluation unnecessary. However, the obligation to order an expert examination, in the form of a preliminary hearing (pursuant to Article 392, paragraph 2, of the Code of Criminal Procedure), unequivocally arises when, from the public prosecutor's request and the accompanying evidence, a "fumus" emerges, meaning a serious and founded suspicion, of potential incapacity. This "fumus" does not require definitive proof, but a plausible suspicion that the suspect may not be able to consciously participate in the trial. This distinction is crucial for balancing procedural efficiency with the protection of fundamental rights.
Elements for the "Fumus" and Practical Considerations
To trigger the GIP's obligation to order an expert examination, the Public Prosecutor must submit evidence that can give rise to the "fumus" of incapacity. This may include:
- Pre-existing medical or psychiatric reports.
- Abnormal behavior of the suspect during investigative acts.
- Statements from third parties regarding the deterioration of mental conditions.
- Any other data suggesting a compromise in the capacity to participate.
Conclusions: An Essential Balance
Ruling No. 27268 of 2025 by the Court of Cassation is a fundamental reference point for the application of Article 70 of the Code of Criminal Procedure. It reaffirms the importance of the defendant's capacity for the fairness of criminal proceedings, while providing clarity on the GIP's powers and duties. The decision balances the non-necessity of superfluous expert examinations, if incapacity is already evident, with the non-derogable obligation for technical assessment in the presence of a "fumus" of incapacity. This approach protects the defendant's fundamental rights, ensuring a fair trial, while maintaining the rationality of the judicial system. For legal professionals, the ruling underscores the importance of scrupulous evaluation and correct submission of evidence to support requests for assessment.
