Unfitness to stand trial and the social model of disability: challenges for Latin American criminal justice

ABSTRACT

The social model of disability has contributed important legislative modifications to civil law in several Latin American countries. Substitute decision-making regimes are being replaced by supports in the exercise of legal capacity based on the rights, will, and preferences of persons with disabilities. The Committee on the Rights of Persons with Disabilities has pointed out that the legal concepts of ‘unfitness to stand trial’ and ‘not guilty by reason of insanity' are contrary to the Convention on the Rights of Persons with Disabilities. In the field of Latin American criminal law, the social model still bears scant influence in dogmatic and criminal procedures. Mexico and Argentina have recently incorporated procedural accommodations and support in their criminal procedural codes, which is an advance in terms of compliance with the CRPD. The reforms have not led to further discussion on the concepts of unfitness to stand in trial and inimputabilidad or their harmonisation with human rights standards, and thus persons with disabilities who are found not guilty by reason of insanity are sent to prison to receive treatment in Mexico, and in Argentina they are derived to civil judges and placed in psychiatric hospital. Despite changes, most local authors maintain traditional views.

KEYWORDS:

• Criminal law
• human rights
• persons with disabilities
• social model of disability
• unfitness to stand trial

Disclosure statement

No potential conflict of interest was reported by the author(s).

Author contributions

This article is an updated version of a manuscript originally published in Spanish in the journal Boletín Mexicano de Derecho Comparado and authored by EM (see Mercurio, 2023; permission was granted by the journal). DSL contributed new perspectives and material. All the listed authors amended the article and approved the final version.

Notes

1 There is no clear translation of the term inimputabilidad. Literally it means the lack of culpability. In most Latin American criminal codes, inimputabilidad refers to the lack of criminal responsibility when a person who is accused of a crime was not able to understand the illegal nature of the act and its consequences due to mental disorder or intellectual disability.

2 The following countries maintain in their legislation the concept of unfitness to stand trial: Bolivia (art. 74), Chile (art. 465), Costa Rica (art. 85), Cuba (art 241.1), Ecuador (art. 257), El Salvador (art. 85), Guatemala (art. 76), Honduras (art. 105), Nicaragua (art. 97), Panama (art. 94), Paraguay (art. 78), Peru (art. 76), Puerto Rico (rule 240 a), Dominican Republic (art. 98), Uruguay (art. 67), and Venezuela (art. 130). Colombia does not have ‘unfit to stand trial’.

3 Código Procesal Penal Federal, Argentina, 2019, available at https://servicios.infoleg.gob.ar/infolegInternet/anexos/315000-319999/319681/norma.htm Article 67: Presumed inimputabilidad at the Time of the Act. If it is presumed that the accused, at the time of committing the act, suffered from a mental disturbance preventing them from understanding the criminal nature of the act or directing their actions, their legal rights shall be exercised by the private defense attorney or, in the absence thereof, by the public defender. This should be done with the necessary support and reasonable adjustments, with communication to the guardian … In the event of an acquittal on grounds of lack of criminal responsibility, the reasons must be analyzed beforehand in the order specified in 269. If applicable, the Civil Justice system shall be involved so that, if necessary, a decision can be made regarding protective measures for rights in accordance with specific mental health legislation.

4 Código Procesal Penal Federal, Argentina, 2019, available at https://servicios.infoleg.gob.ar/infolegInternet/anexos/315000-319999/319681/norma.htm Article 68: Subsequent Mental Impairment. If a mental impairment arises during the legal process that restricts the capacity of the accused, the judge shall establish the necessary support and reasonable adjustments. This includes the setting of special time limits for the progression of the proceedings, considering the timing of the occurrence. This should not hinder the conduct of acts for the investigation of the matter that do not necessitate the presence of the accused or the continuation of proceedings against other accused parties.

The situation of the accused shall be communicated to the civil judge and the private defense attorney, or in their absence, the public defender. This is to ensure that, if necessary, decisions can be made regarding protective measures for rights in accordance with specific legislation.

5 Código Nacional de Procedimientos Penales, México, 2014, art.416. Available at: https://www.diputados.gob.mx/LeyesBiblio/pdf/CNPP.pdf

‘If it is determined that the subject is inimputable, the ordinary procedure shall be applied, observing the general rules of due process with the procedural accommodations that in the specific case are agreed upon by the Judge, listening to the Public Prosecutor’s Office and the Public Defender … in the event that the state of inimputability ceases, the ordinary procedure will continue without the respective accommodations.’

6 Código Nacional de Procedimientos Penales, México, 2014, art.414. Available at: https://www.diputados.gob.mx/LeyesBiblio/pdf/CNPP.pdf

‘If in the course of the initial hearing, there are indications that the defendant could be inimputable … the parties may request the Judge to order evaluations in order to determine whether the defendant is indeed inimputable and, in the event of the defendant being inimputable, whether the inimputability is permanent or transitory … ’