Abstract

MERCURIO, Ezequiel. Unfitness to stand trial and the social model of disability. Challenges and tension for Latin American criminal law. Bol. Mex. Der. Comp. [online]. 2022, vol.55, n.163, e17495.  Epub June 15, 2023. ISSN 2448-4873.  https://doi.org/10.22201/iij.24484873e.2022.163.17495.

The social model of disability brought important legislative modifications in the civil law in several Latin American countries. Models of substitution in decision-making were replaced by models based on support and respect will and preferences of persons with disabilities. The Committee on the Rights of Persons with Disabilities has pointed out that the legal concepts of unfit to stand trial and insanity defense are contrary to the Convention on the Rights of Persons with Disabilities. However, in the field of Latin American criminal law, the influence of the social model in dogmatic and criminal procedure is still scarce. Mexico and Argentina have recently incorporated procedural accommodations and supports in their Codes of Criminal Procedure. These initiatives have both light and dark sides. Mexico maintains security measures for persons who are unfit to stand trial, but Argentina does not, as it derives possible interventions to civil system. Both countries use the term reasonable accommodation and concepts that lend themselves to confusion. Despite these procedural advances, most authors maintain traditional views on the unfit to stand trial. The social model of disability presents to criminal law new challenges that are addressed in this paper.

Keywords : fit to stand trial; social model; human rights.