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

Abstract

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.