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

Judgment No. 48832 of November 15, 2023, offers important insights regarding the defendant's capacity to stand trial, a crucial theme in criminal law. In particular, the Court clarifies the circumstances under which it is necessary to order a forensic assessment during preliminary investigations, highlighting the concept of "necessity to act."

The Legal Context of the Judgment

The case under examination was handled by the GIP of the Juvenile Court of Florence, which declared the request for a forensic assessment inadmissible. The Court emphasized that, to order such an assessment, there must be an emerging "fumus" of procedural incapacity. This principle is in line with what is established by Article 70 of the New Code of Criminal Procedure, which states that a forensic assessment can be requested if there is a necessity to act.

Preliminary investigations - Forensic assessment - Necessity - Conditions.
Regarding the capacity of the defendant to stand trial, during preliminary investigations, similarly to what is provided for in the trial through the formula "if necessary," the forensic assessment is ordered when there is a "necessity to act," that is, when an emerging "fumus" of procedural incapacity is present.

Conditions for Forensic Assessment

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

  • Presence of an indication of procedural incapacity.
  • Necessity to clarify the situation of the defendant to ensure a fair trial.
  • Compliance with the principle of proportionality and necessity regarding the measures adopted.

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

Conclusions

Judgment No. 48832 of 2023 represents an important step forward in clarifying the norms regarding the defendant's capacity to stand trial. The Court, recalling the principles of the New Code of Criminal Procedure, emphasizes the importance of a forensic assessment based on concrete and justified elements. This approach not only protects the rights of the defendant but also ensures respect for the right to a fair trial, a fundamental principle in the Italian and European legal systems.

Bianucci Law Firm