Criminal Capacity and Defenses: Understanding Guilt and Error

CP: Severe Disturbance of Consciousness of Reality

Severe disturbance of consciousness of reality resulting from changes in perception, present from birth or childhood, such as deaf-mutism and blindness, must be present since childhood. Finally, it is necessary that these causes result in a severe disturbance of the consciousness of reality. This relates to the concept of criminal minority.

Requirements for Diminished Capacity

• The effects of the previous assumptions regarding the ability to be guilty must be present at the time of the facts.
• However, it can be examined if the state of lack of capacity for guilt was caused intentionally or recklessly by the subject (actus reus in causa).
• The effects of this condition should relate to the inability to understand the wrongfulness of the act or to act upon that understanding.

Criminal liability shall be graduated according to the level of involvement in the ability to be guilty, which can lead to full exemption, partial, or simple mitigation of the sentence:

• Article 20 (full exemption).
• Article 21.1 in relation to Article 20 (incomplete defense: Art. 68 CP).
• Article 21.6 in relation to Article 21.1 (analogous attenuating circumstance).
• Ordinary mitigating circumstances under Article 21, paragraphs 2 (act because of severe addiction) and 3 (act due to causes or stimuli that produced such a powerful outburst, blindness, or other state of passion).

Legal Consequences

Possibility of applying security measures, if the conditions of Articles 6 and 95 CP are met.

Error Regarding the Wrongfulness of the Act Establishing the Criminal Offense

Classes of Error

Depending on the content of the error, we can distinguish:

• Direct Error: Ignorance of the existence of the prohibition.
• Indirect Error: Wrong belief about the occurrence of justifications for typical behavior.

Depending on the opportunities available to the subject to know the nature of the prohibited conduct, we can distinguish:

• Beatible Error: Only allows for a reduction of the penalty.
• Invincible Error: Disclaims the penalty.

Requirements for Unknown Error Regarding Illegality of Conduct

If the subject knows the conduct is illegal but errs on the type of crime committed, they incur a "subsumption error," which is irrelevant from the point of view of sentencing. Usually, this is the only noticeable error for "artificial" crimes.

Non-Enforceability of Other Behavior (Duress)

The code contains only one defense based on the unenforceability of other behavior: fear (absolving excuse, concealment between relatives). The idea of the enforceability of different conduct is also made to the following legal requirements:

1. The subject must act in fear – it is not necessary to prove a situation of terror or panic, only the impaired ability of rational choice. However, in any event, this fear must be insurmountable.
2. The fear must be generated by an evil that must be:
   • The result of the subjective reaction to external events.
   • Objectively harmful.
   • Serious.

The subject's reaction against the fear must be objectively "given" the threatening evil.