Such expert opinions must be obtained at all stages of the procedure if the competent authority (court) has doubts as to the defendant’s competence to stand trial. There are, of course, no rules governing the “necessary level” of this doubt, even though the responsibility for decisions on secondments is, for the reasons set out above, not small. There are, of course, certain criteria which the authorities (courts) will take into account when considering them. These may include:

The disciplines concerned by such expert evidence are psychiatry and psychology, which are human sciences. The former is concerned with the mental state (psychopathology) of man, the latter with general human psychology. Accordingly, most examinations are carried out jointly by a forensic mental health expert and a psychology expert. Note that it is often difficult to prove that there are fundamental differences between the various psychological schools of thought as regards the delimitation of ‘normality’ and ‘abnormality’, as well as the method of examination:

The necessary expert examination of mental state is not only obligatory for the authority (court), but also creates a procedural obligation for the person to be examined (the accused). The interpretation of the latter required a decision of the Constitutional Court, namely in relation to the constitutional requirements of evidence and the question of the obligation to cooperate in the taking of evidence: the background to AB 723/1991/6 was that the court ordered the observation of the state of mind of the accused during the investigation phase of a criminal case. However, according to the petitioner, this violated his right to personal liberty, since it was done without a final judgment and in a case in which it was clear that no sentence of imprisonment could be imposed. The AB decision explained, however, that the monitoring of mental state is one of the main issues in criminal law and therefore the restriction of liberty to examine it could not be considered either unnecessary or disproportionate. One of the principles of proof laid down in the CPC is precisely that the authorities must seek to establish the facts thoroughly and completely, including the obligation to establish the existence of extenuating or mitigating circumstances.5

In another case, the petitioner complained that he was obliged to submit to the examination of the medical expert appointed in the case, as a preliminary to the decision of the AB 1234/B/1995. The bench explained that the obligation to submit to an expert examination did not violate the presumption of innocence, since it was not applied as a consequence of a final finding of guilt, but as part of the evidence.6 It should be noted that, according to the case law of the Court of Justice, it is a violation of Article 5(4) of the Convention (right to liberty and security of person) if no decision is taken for more than one year on the need to maintain the applicant in compulsory treatment. The fact that the opinion of the psychiatric experts is delivered months after the expert examination is also in itself a violation of this right.7

In this context, it is also important to mention the new rules on the assessment of the capacity to reason, in the case of juvenile offenders. Since the new Penal Code has linked the age of criminal responsibility to the age of 12 at the time of the offence for certain violent offences, a special age group has emerged in criminal law (12-14 year old offenders) whose mental, moral and intellectual state is clearly different from that of other types of offenders. The legislator has therefore considered it necessary to specify that such persons may be punished only if they have the necessary capacity of discernment at the time of the offence. This has therefore been introduced into the substantive code not as a category linked to the capacity to reason, but as a separate factor to be examined for this specific category of persons.

The question is whether the decision on the capacity to discern essentially a question of law which falls within the competence of the courts, or whether it should be referred exclusively to the competence of experts. There is no consensus on this point. According to the Circular, it is clearly a question of law, whereas the majority of experts consider it to be a fact of inquiry requiring specialised knowledge and therefore falling exclusively within the competence of experts.9 Based on Bolyki’s research data, there is also an expert opinion that “the assessment of family and environmental factors is a matter for the court.”10 The author also adds that the impact of negative childhood events on the content of criminal convictions decrease as offenders age.11