Mental capacity in Italian criminal law: from assessment to REMS
Italian law asks whether the person could understand and choose at the time of the act. Where a mental condition excluded that capacity there is no liability; where it substantially reduced it, the penalty is reduced. What follows in either case may not be prison but placement in a health facility, and for a foreign national that changes everything.
The framework
| Element | Content | Provision |
|---|---|---|
| Capacity | Ability to understand and to choose at the time of the act | Art. 85 Criminal Code |
| Total exclusion | No liability | Art. 88 |
| Substantial reduction | Liability with a reduced penalty | Art. 89 |
| Voluntary intoxication | Does not exclude capacity | Arts. 91 to 93 |
| Security measures | Applied where the person remains socially dangerous | Art. 202 ff. |
| Placement | In a residential facility for the execution of security measures | Since the closure of the judicial psychiatric hospitals |
| Duration | Cannot exceed the maximum penalty for the offence | Constitutional case law |
The assessment decides the case
Capacity is established by expert evidence, and the question is not whether the person has a diagnosis. It is whether, at the moment of the act, the condition affected the ability to understand what they were doing and to determine their conduct accordingly.
That is why clinical history matters so much and why it has to be produced early: records from before the events carry far more weight than an assessment carried out afterwards. For a foreign national those records are usually abroad, in another language, and obtaining them takes weeks.
The defence must appoint its own expert before the court-appointed examination, not after — the same rule that applies to every technical assessment, set out in the guide on defence investigations.
What replaced the old hospitals
Italy closed its judicial psychiatric hospitals and replaced them with small residential facilities run by the health service. Places are limited, which produces a practical problem the law did not anticipate: people waiting in prison for a place in a facility they have already been ordered to occupy.
It is a situation worth challenging rather than accepting, and it is one of the few areas where the Italian system is under sustained constitutional and European criticism.
Custody where a condition exists
Independently of liability, a serious psychiatric condition bears on whether custody can continue at all: detention that cannot provide adequate care is incompatible with the person's health, and that is a ground for replacing it. The documentation produced in the first weeks is what later supports the application.
The framework on measures and their variation is in the guide on precautionary measures, and on conditions in prison conditions and rights.
For the family
Two things are useful immediately and are usually done late: gathering the clinical history, and telling the prison health service in writing about any ongoing treatment. Both are described in the guide for families.
Frequently asked questions
Does a diagnosis exclude criminal liability in Italy?
Not in itself. The question is whether the condition affected the ability to understand and to choose at the time of the act.
What happens if capacity is excluded?
There is no liability, but a security measure may follow where the person is found to remain socially dangerous, normally placement in a residential health facility.
How long can a security measure last?
It cannot exceed the maximum penalty for the offence, following the constitutional case law on the point.
Can a psychiatric condition prevent custody?
It can. Detention that cannot provide adequate care is incompatible with the person's health, and that is a ground for replacing the measure.
If a condition is in issue
The expert examination happens once, and the clinical history has to be there before it. First contact is free and covered by professional privilege.