Mental capacity in Italian criminal law: from assessment to REMS
Italian criminal law asks whether the person could understand what they were doing and choose their conduct at the moment of the act. Where a mental condition excluded that capacity there is no liability; where it substantially reduced it, liability remains and the penalty is reduced. What follows may not be prison at all but placement in a health facility, ordered where the person is found to remain dangerous.
For a foreign national that changes the shape of the whole case. Clinical history from before the events weighs far more than an assessment made afterwards, and those records are usually abroad, in another language and slow to obtain. Voluntary intoxication does not exclude capacity. Placement cannot outlast the maximum penalty the offence carries, yet places in the facilities are scarce, and people wait in prison for a bed already ordered for them.
Avv. Massimo Romano — Ordine degli Avvocati di Napoli n. 14553, patrocinante in Cassazione dal 23/10/2015 — Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138 — +39 335 669 3954
In brief
- Capacity is assessed at the moment of the act and not at the time of the hearing, so a diagnosis on its own settles nothing.
- Total exclusion of capacity means no liability, while substantial reduction leaves liability in place with the penalty reduced, and the difference between those findings is argued on the same material.
- A security measure may follow in either case, applied where the person is considered still dangerous, and it is served in a residential facility run by the health service rather than in prison.
- Constitutional case law caps that placement, which cannot exceed the maximum penalty the offence carries, and that is the argument against open-ended confinement.
- Expert evidence decides these cases, and clinical records predating the events outweigh an examination carried out once proceedings have begun.
- The defence has to appoint its own expert before the court-appointed examination, because the material the assessor works from is largely fixed by then.
- Where the person is a foreign national, records held abroad have to be requested, translated and placed in the file, and the family is usually the only realistic source of them.
- A serious psychiatric condition also bears on custody itself, because detention that cannot deliver adequate care is open to challenge independently of the question of liability.
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.
The findings open to the court on capacity lead to different outcomes, and they are regularly conflated. The table sets each finding beside what it produces.
| Finding on capacity | Effect on liability | What follows |
|---|---|---|
| The condition excluded the ability to understand and to choose | No liability for the act | A security measure may still be applied where the person is found dangerous |
| The condition substantially reduced that ability | Liability stands | The penalty is reduced, and placement may be ordered alongside it |
| The condition existed but did not affect understanding or choice at the time | Liability stands in full | The ordinary penalty applies |
| The person was voluntarily intoxicated | Capacity is not excluded | The account can aggravate the position rather than help it |
| The condition arose after the act | No effect on liability | It bears instead on taking part in the proceedings and on how custody is served |
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.
A relative, a defender, a foreign national: who needs this page
Few legal questions are as painful for a family as the question this page addresses. A person has done something, or is accused of having done something, and the family knows that illness was part of the story. The question is what Italian law does with that knowledge, and the answer is neither simple nor quick.
- The relative of someone with a known condition. A son, daughter or partner with a history of illness has been arrested or charged. The family has medical papers, perhaps from another country, and does not know whether they matter or when to produce them.
- The relative of someone whose condition surfaced after the arrest. Behaviour in custody, or a comment from a doctor, suggests that the person was ill at the time. The family has never heard this said before.
- The foreign national. A visitor or resident from another country, arrested in Italy, has a diagnosis made elsewhere, in another language, under another system. Whether Italian experts will accept it is a real question.
- The person facing a placement. Someone has been told that instead of prison, a health facility may be ordered, and wants to know what that means for the family, for work and for return home.
Italian law asks whether the person could understand and choose at the time of the act. Where a 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 a placement in a health facility.
Families assume that a health placement is simply a milder prison, and the two differ in almost every respect. This comparison sets out where.
| Feature | Prison | Residential facility for security measures |
|---|---|---|
| Why the person is there | A penalty imposed for the offence | A measure based on continuing dangerousness |
| Who runs it | The prison administration | The regional health service |
| What it is meant to deliver | Service of the sentence | Treatment and care, under supervision |
| How long it lasts | The sentence imposed | A period reviewed periodically, capped by the maximum penalty for the offence |
| Availability of a place | A place is always available | Places are limited, so people wait in prison for a placement already ordered |
| What the defence argues | The length of the sentence and the way it is served | Whether dangerousness persists and whether a community programme suffices |
Daily life when capacity is in doubt: care, medication and papers
When a mental condition is part of a criminal case, ordinary life is affected in ways that other cases do not touch. The person's health needs continue, and they must be met in a setting where the priority is custody.
The most immediate matter is treatment. A person on regular medication must have it continued, and the family should send the lawyer a list of drugs, doses and the doctor who prescribes them. A sudden interruption can make the person's condition worse and harm the case, since an assessor will see the person in whatever state they are in.
The wider consequences are practical:
- Work. An employer who learns of both the arrest and the condition may suspend or end the contract. The family should find out what the contract and the law say about illness and absence.
- Housing. A person who lived independently may lose accommodation, and the family must decide who can look after the home.
- Money. Benefits and income may stop. Someone must manage bank accounts and bills, with the person's authority if possible.
- Children and dependants. A parent with a condition who is detained leaves children who need care, and the family must arrange it quickly.
- Residence. A foreign national's permit may be affected by absence or by the outcome, so the family should seek advice early.
There is also the person's dignity. A family that speaks about the condition with respect, and asks others to do the same, protects the person in a process that can easily reduce them to a diagnosis.
Decisions before the assessment: consent, expert and disclosure
The assessment decides the case, and the choices before it matter. Each has a price.
- Raise the condition now, or wait. Raising it early lets the court order an assessment and lets the defence prepare. Waiting may protect the person's privacy for a time, but a condition raised late can look like a tactic. The usual course is to tell the lawyer immediately and let the lawyer decide how and when to raise it.
- Appoint a defence expert, or rely on the court's. A defence expert can examine the person, read the records and challenge the court's expert. The cost is money and time. The gain is that the court hears several views.
- Disclose the person's whole medical history, or part of it. The assessor will want records, and gaps are noticed. The privacy cost is real, and the lawyer should explain what will be shared with whom.
- Consent to the examination, or object. Cooperation matters, but the person should have a lawyer or expert present where possible, and an interpreter if the language is not Italian.
The family should resist the pressure to decide quickly. A careful sequence, set by the lawyer, protects the person better than a hasty disclosure.
Medical history and documents for the assessor
The assessor must form a view on the person's capacity at the time of the act, and the best evidence is a history that began before the event. Collect what exists, photograph every page and send it to the lawyer, in the order in which it was written.
- Diagnoses and reports from doctors, hospitals and clinics, in the original language, with dates.
- Records of admissions and treatment, including periods of hospital care and any compulsory treatment.
- Prescriptions and pharmacy records, which show what was taken and when.
- Letters from the treating doctor about the person's condition at relevant dates, if the doctor is willing to write.
- Disability or benefit documents, which can show a long-standing condition.
- Accounts from family and colleagues of the person's behaviour around the date of the act, written for the lawyer and not for the police.
- Evidence of substance use, if any, because voluntary intoxication does not exclude capacity and the lawyer needs to know.
- Records from the home country, if the person lives abroad, with translations.
Do not ask a doctor to write something new to fit the case. Documents created for the purpose are noticed. Keep the history as it was.
Questions about assessment, reduced penalty and placement
The framework is unfamiliar to most families, and these questions go to what matters most.
- Will the court order an assessment, and who will carry it out?
- What exactly is the expert asked to decide, and at what point in time?
- Can the defence appoint its own expert, and what does that involve?
- What is the difference between total exclusion of capacity and a substantial reduction, and which applies here?
- If liability is excluded or reduced, what measure might follow, and how long can it last?
- What is the facility that replaced the old hospitals, and how does it differ from prison?
- Does the person remain in custody while the assessment is done, and where?
- How does a foreign diagnosis count, and what must be translated?
- What can the family do now, and what should we avoid doing?
A lawyer who answers these will describe a process that can last, and that does not always end where families hope. Honesty about that is more useful than comfort.
The assessment is only as good as the history put in front of the assessor. The table lists the documents worth gathering, their source and the point each establishes.
| Document | Who issues it | What it is used to show |
|---|---|---|
| Hospital discharge summaries from before the events | The treating hospital, in Italy or abroad | That the condition predates the act rather than the proceedings |
| Prescriptions and pharmacy records | The treating doctor and the pharmacy | What medication was taken, and whether it had been interrupted |
| Reports from a community mental health service | The service that followed the person | The course of the condition over time |
| Records of earlier compulsory treatment | The health authority concerned | Previous acute episodes and how they were managed |
| School, military or occupational assessments | The institution that carried them out | How the person functioned before the condition worsened |
| Statements from relatives and carers | The family, taken through the defence | Day-to-day conduct in the period around the act |
| Sworn translations of foreign records | A sworn translator | That the material can be used in the Italian file |
A foreign national, a foreign diagnosis: records, language and the embassy
When the person comes from another country, the case has an extra layer. The condition may have been diagnosed in a different health system, under different categories and in a different language, and the Italian assessor may not know how to read it.
The practical tasks are these:
- Translations. Medical records must be translated into Italian by someone who understands the terms. A weak translation can make a clear history look vague.
- Treating doctors abroad. A doctor in the home country may be willing to write a letter or to speak to the Italian expert. The time difference and the postal delay should be allowed for.
- Interpreters at the assessment. The examination is a conversation, and conducting it through a poor interpreter can distort the result. The defence should ask for a qualified interpreter.
- The embassy. The embassy or consulate of the person's country can confirm the detention, pass on messages and may help to obtain records. It does not provide a lawyer or enter into the merits.
- Return home. If a placement is ordered, the question of where it is carried out, and whether any part could be done in the home country, depends on arrangements the lawyer must explore.
For a family abroad, the distance makes visits hard, and calls must be arranged with the time difference in mind. The studio helps to organise them with the facility and the lawyer.
How the studio works on capacity cases
The studio takes instructions by phone or email, using the contacts on this site, and urgent situations are accepted at any hour. It works from Rome, Milan and Naples, and nobody has to visit an office to begin.
A relative or the person's representative sends a short message with name, date of birth, nationality, the place of custody and the authority involved, plus photographs of any document received. A written engagement is returned by scan or photograph. An initial call then sets out events in order, asks what the person has said or signed, and establishes what medical records exist and where.
The studio's earliest task is to understand the allegation and the medical history together, and to decide with the family how and when the condition should be raised. It advises on the choice of an expert, on the documents to collect and on how to manage the person's treatment in custody. It does not predict the outcome, which depends on the assessment and the court.
Where the person or the family is abroad, the studio arranges translations, coordinates with doctors in the home country, and keeps a clear line of communication in Italian or English. Updates go to a nominated relative, and the studio asks the facility and the lawyers to report after each hearing, so that the family does not learn important things from rumour.
What not to do when a mental condition is in issue
Well-meant actions can harm the person in these cases. The points below concern conduct.
- Do not stop the person's medication or ask the facility to change it without medical advice. A sudden change can worsen the condition and weaken the case.
- Do not coach the person on what to say to the assessor. Experts notice rehearsed answers, and it damages credibility.
- Do not exaggerate the condition. An overstated history is easily tested and loses the court's trust.
- Do not hide a condition because of shame. A family may prefer silence, but a condition that is not raised cannot be assessed.
- Do not post about the person's health or the case. Public comments are collected and cannot be withdrawn.
- Do not sign papers for the person without authority. Ask the lawyer what is permitted.
- Do not ask doctors to write new reports to fit the case. They will be recognised as such.
- Do not speak to the press or to acquaintances. The condition is private, and the person has to live with what is said.
Choose a relative to speak to the lawyer and the facility, and ask the rest of the family to support that arrangement.
Terms in the Italian framework, in plain language
The terms below appear on this page or in the sources it draws on. A plain reading helps with calls and with checking what a document says.
- Capacity: the ability to understand and to choose at the time of the act; the question on which these cases turn.
- Total exclusion: a condition that excluded capacity entirely, so that there is no liability.
- Substantial reduction: a condition that greatly reduced capacity, so that liability remains but the penalty is lower.
- Voluntary intoxication: intoxication chosen by the person, which does not exclude capacity.
- Security measures: measures applied where the person remains socially dangerous, which may replace or accompany a penalty.
- Socially dangerous: a finding that the person is likely to commit further offences if no measure is taken.
- REMS: the residential health facilities that replaced the old forensic hospitals, where placement is therapeutic as well as custodial.
- Assessment: the examination by an expert who reports to the court on the person's capacity.
If a document contains a word that is not on this list, send a photograph to the lawyer before anyone responds.
About the lawyer
Most people reach this office in the middle of something they did not plan for: an arrest in another country, a search at dawn, a summons that arrived while they were away from Italy. The first conversation is with Avv. Massimo Romano himself, not with a secretary who takes a message. He is a criminal defence lawyer admitted to plead before the Italian Court of Cassation, and his work has long centred on Italian criminal procedure, European arrest warrants and extradition. On that first call he asks what documents exist, who has seen the person detained, and which authority is involved. No assessment is given before the papers have been read. Afterwards he sets out, in writing, what can be done from Italy and what has to be done where the person is held. Relatives who do not speak Italian are not left translating for themselves: the office speaks with the family in English, by telephone and in writing.
Call the office, or write on WhatsApp if that is easier from abroad. Have to hand the full name of the person involved, the city and country where they are held, and any document already received, even as a photograph.
Avv. Massimo Romano — criminal defence lawyer, admitted to the Italian Court of Cassation
Iscritto all'Ordine degli Avvocati di Napoli n. 14553 | Patrocinante in Cassazione dal 23/10/2015
Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138
+39 335 669 3954 · WhatsApp