Defendant's Capacity to Stand Trial: Commentary on Judgment No. 48832 of 2023

Judgment No. 48832 of November 15, 2023, offers important insights into the defendant's capacity to stand trial, a crucial issue in criminal law. Specifically, the Court clarifies the circumstances under which an expert assessment is necessary during preliminary investigations, highlighting the concept of "necessity to proceed."

The Legal Context of the Judgment

The case under review was handled by the Preliminary Investigations Judge (GIP) of the Juvenile Court of Florence, who declared the request for an expert assessment inadmissible. The Court emphasized that, to order such an assessment, a "fumus" (suspicion) of procedural incapacity must emerge. This principle aligns with Article 70 of the New Code of Criminal Procedure, which stipulates that an expert assessment may be requested if there is a necessity to proceed.

Preliminary Investigations - Expert Assessment - Necessity - Conditions.
Regarding the defendant's capacity to stand trial during preliminary investigations, similar to what is provided for in the trial phase through the wording "if necessary," an expert assessment is ordered when the "necessity to proceed" arises, meaning when a "fumus" of procedural incapacity emerges.

Conditions for Expert Assessment

The judgment highlights that an expert assessment is not automatic but must be justified by specific conditions. In particular, the conditions required to proceed with an expert assessment are:

• Presence of an indication of procedural incapacity.
• Necessity to clarify the defendant's situation to ensure a fair trial.
• Adherence to the principle of proportionality and necessity in relation to the measures adopted.

These criteria are fundamental to prevent procedural abuses and ensure that expert assessment is used as a protective tool and not merely a formality.

Conclusions

Judgment No. 48832 of 2023 represents a significant step forward in clarifying the rules concerning the defendant's capacity to stand trial. The Court, referencing the principles of the New Code of Criminal Procedure, underscores the importance of an expert assessment based on concrete and justified elements. This approach not only protects the defendant's rights but also ensures adherence to the principle of a fair trial, a fundamental tenet of the Italian and European legal systems.