The disability rights academia has held a long debate regarding the correct interpretation of legal capacity. Such debate has not been as long regarding one of the consequences of such capacity: criminal liability. Traditionally, persons with disabilities were not subject to regular criminal procedures. They usually were labelled as “unfit to stand in trial” and sent to psychiatric institutions. The notion of the social model of disability and the entry into force of the Convention on the Rights of Persons with Disabilities has challenged this idea, mainly due to the human rights violations related to involuntary hospitalization. This paper will try to provide an argument for a much restricted version of “non-imputability” for persons with disabilities that cannot be based only on the disability of the person.
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