IMPLEMENTATION UNDER NATIONAL LAW
2.3.2. AIM AND CONTENT
OF EXPERT OPINIONS
In Bulgaria, the only goal of the forensic
medical assessment is to determine whether
or not the accused is criminally responsible
and thus whether compulsory treatment is
necessary. The necessity and consequent
provision of support is not considered in
the assessment. There are Guidelines by the
Ministry of Healthcare144 determining the
content of a forensic psychiatric assessment,
including a recommendation to the court
about the nature of the psychiatric hospital,
an opinion to what extent the patient’s condition requires temporary accommodation.
In this case, the expert notifies the head of
the psychiatric facility and the need for the
compulsory treatment. Experts do not, however, take into account the circle of contacts
of the person concerned. The assessment
can be a forensic psychiatric assessment, a
forensic psychological assessment or a combined forensic psychiatric and psychological
assessment. Forensic psychiatric assessment
is ordered to determine the condition of a
person if a bona fide doubt exists regarding
the existence of a mental impairment. The
assessment aims to determine whether or
not the person was criminally responsible, as
well as the fitness to stand trial, the fitness
to serve a punishment and the need to apply
compulsory treatment measures (and their
type). Forensic psychological assessments
are performed with the goal to provide information about, among other things, the level
of cognitive development of the defendant,
their personality and intellectual abilities and
how well these match the subject’s chronological age, communicative skills and other
tasks defined by the authority who ordered
the assessment. The forensic psychological
assessment is usually performed in combination with a forensic psychiatric evaluation.
The goal is not to lead to recommendations
for appropriate measures to provide support.
There is an official list of expert witnesses;
however, other experts may also be requested
to assess. Forensic psychiatric assessments
of persons who are held in detention take
place in health centres with dedicated wards
for the treatment of criminal offenders. These
assessments may not exceed 30 days, with a
44
possibility to be extended for another 30 days.
Outpatient forensic psychiatric assessments
can be performed in a medical facility, at
the investigative body, in court, in pre-trial
detention or at home.
In Germany and Austria, a psychiatric expert is
usually requested to assess the (partial) criminal legal capacity based on an intellectual and/
or psychosocial disability, the dangerousness
and risk of commission of further acts, as well
as the necessity of deprivation of liberty in
forensic psychiatry or in preventive detention.
The necessity and consequent provision of
support for the person concerned in the proceedings is not considered in the assessment.
The psychiatric expert is requested to provide
an assessment before pre-trial detention and
before a measure of correction and incapacitation is ordered/continued/terminated.145 In
Austria, if no psychiatric expert is available
(within a reasonable time), an expert witness
from the field of clinical psychology may be
requested.146
In Slovenia, the expert opinion shall determine the criminal legal capacity as well as the
fitness to stand trial. A psychiatric expert is
requested to conduct the assessment. If the
psychiatric expert identifies an intellectual
and/or psychosocial disability, they should
include the nature, type, degree and duration
of the “mental condition” and evaluate how
this condition affected the accountability,
how it still affects the behaviour of the
person and whether the accused person is
as a consequence unfit to stand trial. Clinical
psychologists are not included. Assessments
of persons who are subject to proceedings
for the application of security measures are
carried out in forensic psychiatric units of the
health care institution.147
In Slovenia, the judicial authorities have to
determine whether the defendant is capable
of performing procedural acts, i.e., whether
they are fit to stand trial. In order to do so, the
judge may request a psychiatric assessment. If
there are already indicators during the criminal
investigation, the investigating judge may
order the assessment. The motion to order a
psychiatric examination can also be made by
the defence or the prosecution.
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