The issue of the defendant's capacity to stand trial has long been neglected in the Slovenian law of criminal procedure. Although courts regularly decide on this issue, the rules are far from clear, given the lack of statutory basis and a lack of a systematic theoretical analysis. This paper attempts to fill the latter void by analysing rules on the capacity to stand trial from a comparative perspective, using theory and relevant case-law.
For a start, it is necessary to distinguish two types of legal consequences in cases where a defendant lacks capacity to stand trial. First, incapacity to stand trial may be caused by such a defendant's mental or physical deficiencies that preclude any possibility of conducting criminal proceedings against him. This will be the case when criminal procedure itself would seriously jeopardize the defendant's life or health, causing (or threatening to cause) long-term, irreparable damage. Even though a criminal prosecution is aimed at securing common, fundamental goods enjoyed by members of a given society, the state must balance against this any serious danger which criminal procedure may present to the defendant. In any specific case, courts must undertake a balancing test and decide which of the constitutionally protected goods should enjoy protection.
Secondly, capacity to stand trial will function as a legal prerequisite ensuring that the acts a defendant takes in a criminal procedure have proper legal effect. A defendant will be deemed capable of standing trial when he is able to hear and to follow the proceedings. More precisely, he must possess a basic understanding of what is at stake in a criminal procedure (the nature of criminal procedure and criminal sanction) and must be able to communicate his views, at least to his defence lawyer. If deficiencies on the part of the defendant prevent him from gaining such a basic understanding or prevent him from communicating his views on the matter, he will not be able to exercise his procedural rights in an intelligent and reasonable manner.
In such a case, the rationale behind the rules on the defendant's capacity to stand trial is to secure an active role for the defendant in communication with other participants in a criminal procedure. If criminal prosecution continues against a defendant who is not able to participate effectively, he is deprived of acting on any relevant information gathered during criminal procedure that may be used in support of a favourable judgement. Any procedural acts (or omissions of such acts) in such a case will result in a breach of the defendant’s right to fair trial, specifically right to defend himself. In specific cases, when a defendant incapable of standing trial will waive his procedural rights, any evidence collected as a consequence of such a waiver may be rendered inadmissible due to the lack of any legal effect such a waiver may have.
The present paper explores two further means of compensating for a defendant's deficiencies. The first option is mandatory defence by a lawyer. This option must be rejected, since a defendant incapable of standing trial will also be incapable of communicating with his lawyer. Capability to stand trial is an expression of a defendant's right to defend himself and may not be resolved by the court appointing a mandatory defence lawyer. The second possibility is the application of rules of in absentia procedures. These appear applicable in cases of self-inflicted incapacity to stand trial. Yet as Slovenian law stands, such an alternative is not likely, given the lack of any statutory basis for such a measure.
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