Folia Theologica et Canonica 6. 28/20 (2017)
IUS CANONICUM - Peter Artner, Psychical imputability and punishability in the current penal system of the Canon Law
PSYCHICAL IMPUTABILITY AND PUNISHABILITY 231 The presumption of dolus was changed right at the beginning of the revision of the code, as it can be read in the first version of the revision Sanctionibus15 c. 10: not the dolus, but the imputability is presumed. This means that there is no need to prove the imputability, as there is no need to prove the validity of a marriage: the contrary is to be proven in a penal case, i.e. the lack of imputability. When it has been proven that somebody has committed a delict, the presumption of law is that the external violation of the law is imputable, which means the delinquent acted with knowledge and freedom. Usually presumption of law is overcome by proof to the contrary, but in this case even if “it appears otherwise”.16 As the penal law is to be interpreted benignly, the judge or ordinary should not attribute too easily criminal intent to the alleged offender.17 18 19 * The intellective aspect of committing a delict consists of two parts: the cognition and knowledge of the law violated1*, in other words the punishability of the delict or the applicability of a penalty are not constitutive elements of a delict:1'1 The one who commits a delict may not be aware of committing a delict and/or may not be subject to the punishment. Both criteria may be outside of his fault: not being able to recognize the act as a crime, or not being able to be punished due to any reasons. The mere fact that somebody has broken the law does not necessarily mean that a delict has been committed. There must also be grave juridical imputability. rooted primarily in a free and deliberate intent to violate the law.211 Imputability is one’s act that may or may not have the quality of imputability. The basis on which one's acts are imputed to oneself in penal law may in principle be either malice or negligence (CIC Can. 1321 § I21), but in virtue of Can. 1321 § 2 malice must be present unless the penal law or precept in question stipulates that negligence suffices, as e.g., in Can. 1321 § 3: “where there has been an external violation, imputability is presumed” is to say that if a person does something that violates a law or a precept, it is presumed that his or her act result from a deliberate intention or (in a proper case) from his or her negligence. When the words “unless it appears otherwise” are added, the possibility of rebutting this presumption is given. 15 Pontificia Comissio Codici Iuris Canonici Recognoscendo, Schema generale de delictis et poenis, Typis Poliglottis Vaticanis 1970. 16 Woestman, W. H., Ecclesiastical Sanctions and the Penal Process, Ottawa 2000. 24, fn. 14. 17 Beal, J. P. -Coriden, J. A. - Green, T. J. (ed.), New Commentary, 1541 (Green, T. J.). 18 De Paolis, V. - Cito, D., Le sanzioni nella Chiesa, 139. 19 Cappello, F. M., Summa Iuris Canonici, III: De Processihus, Delictis et Poenis, Roma 1955. 483. 211 Beal, J. P. - Coriden, J. A. - Green, T. J. (ed.), New Commentary, 1540 (Green, T. J.). 21 CIC Can. 1321 - § 1. Nemo punitili-, nisi externa legis vei praecepti violatio, ab eo commissa, sit graviter imputabilis ex dolo vel ex culpa.
