JUSTICE FOR ALL 2.4.2. FITNESS TO STAND TRIAL, RIGHT TO BE HEARD AND TRIAL IN ABSENTIA Fitness to stand trial usually refers to the defendant’s mental condition at the time of the criminal proceedings and whether any such condition impacts their ability to understand the nature or object of the proceedings, understand the possible consequences of the proceedings or communicate with counsel. This may have implications on support mechanisms, legal representation/ guardianship and the right to be heard. While German law dictates that defendants must be competent to stand trial, the German Code of Criminal Procedure does not foresee a definition of the ability to stand trial.164 Case law provides some guidance as to the understanding: the person must be able to follow the trial mentally and participate actively. They must also be able to withstand psychophysical stress. There are no regulations in place to support or assist persons with intellectual and/or psychosocial disabilities.165 Trials can only be held in the presence of the defendants with very few exceptions.166 In Austria, the court has to assess whether the person is fit to stand trial, i.e., the ability to follow the proceedings, express themselves and exercise their rights effectively.167 Lack of fitness to stand trial may lead to the nullity of the proceedings. If the court finds the person unable to stand trial, the proceedings will be discontinued. This does not however lead to the formal conclusion of proceedings or an acquittal. Instead, the continuation shall be reassessed on a regular basis. In proceedings leading to security measures, however, the proceedings shall not be discontinued, but instead the court must include the legal representative/guardian. In Slovenia, suspension may be ordered (in ordinary proceedings) if the person was not fit to stand trial due to “mental illness” that emerged after the commission of the criminal act, but at the time of the commission, the person had full criminal legal capacity and thus was declared criminally responsible. With the security measures proceedings however, the circumstances that caused the denial of criminal responsibility were present already at the commission of the act, and conditions for security measures were fulfilled. In Lithuania, fitness to stand trial is understood as the ability to exercise individual rights and legitimate interests in the courts of the legal proceedings, such as the exercise of the right to participate in the criminal proceedings, the rights of a defence. In determining fitness to stand trial, a person’s mental state is assessed in the past, present and future perspective.168 Suspects and accused persons have the right to have a legal representative to participate in the proceedings and defend their interests if they have been declared unfit to stand trial. In Bulgaria and Slovenia, the presence of the person concerned is not mandatory if their health condition does not allow it. In Slovenia, however, if a person cannot be heard during the proceedings, they are presumed to be objecting to the imposition of security measures. Similarly, in Austria, following the latest reform, hearings can no longer be held in the absence of the person concerned. If the person concerned cannot participate, the hearing has to be postponed. The presence of the person concerned cannot be replaced by the presence of their defence attorney or legal guardian. The court can also no longer refrain from questioning the person concerned; they have to be given the possibility to be heard.169 2.4.3. ACCESS TO A LAWYER AND RIGHT TO A DEFENCE The right to access to a lawyer is a fundamental principle in criminal proceedings (see Section 1.1.). In proceedings leading to security measures or custodial measures, additional provisions regarding the defence lawyers must be in place, sometimes granting the defence lawyers with additional rights (which are intended to additionally safeguard the defendants’ rights). In Lithuania, once proceedings for compulsory measures are initiated, persons with an 49