Folia Theologica et Canonica 6. 28/20 (2017)

IUS CANONICUM - Szabolcs Anzelm Szuromi, O.Praem., Historical development of the aggravating and extenuating circumstances in the canonical penal law

HISTORICAL DEVELOPMENT OF THE AGGRAVATING AND EXTENUATING... 251

2203 § l61 62 63, which gives the consideration of aggravation of the act’s adjudication into the prudence of the judge. Nevertheless, those sources which contains augmenting circumstances (describing basically concrete cases) within the Corpus iuris canonici, expressively speak about obligatory consideration and aggravation. Among them we can classify three categories in the Corpus iuris canonici: excite passion (passió deliberate excitata), act against dignity or misusing dignity (maior dignitas rei), and repetition of delict (repetitio delicti). These categories had taken place in the CIC (1917) too.“ The excite passion differs from the passion which suspends the function of mental deliberation and volition (passió si omnem mentis deliberationem et voluntatis consensual praecedat et impediat), which is a releasing circumstance (eximitur a poena)', and differs also from the antecedent passion (passió antecedens), which - as we have seen - is an extenuating circumstance. This “passion” is intentionally excited, therefore it is conscious part of the perpetrator’s will during the crime, in order to fulfil that. As X 5. 39. 3 expresses it: a viciousness passion determinates the essence of the penalized act.“

Regarding the second category of the aggravating circumstances (maior dignitas rei) in the canonical sources is distinguished the misusing - trespass - of dignity, and the act against - on the grounds of- dignity. This dignity is some title, rank, office, etc. which endows the person with a particular respect and authority within the society. If someone misusing it as “excessus” of his power (abusus), it aggravates the adjudication of his act. The C. 17 q. 4 c. 19 expressively indicates the “dignity of office” which authority is misused during a concrete act.64 In C. 23 q. 4 c. 3 the person who trespasses his dignity, is compared with Judas’ action as abuse with authority and charge.65 The most precise definition can be found in C. 25 q. 1 c. 4: someone who sinfully uses the office - which was granted to him to serve - for abuse, he does a most grave crime.66 We can read several similar phrasings in the Liber Extra too.67 68 Concerning the “maior dignitas rei” as act against - on the grounds of - dignity, the first canon in the Decretum Gratiani is the D. 1 c. 19 de pen. This canon uses dignity in general sense, citing the Digesta6*, not like the other canons of this category which mean on the expression of “dignity” and “office” ecclesiastical dignities and offices.

61 Cf. CIC (1917) Cann. 2207,2208,2223 § I. PiGHlN, B. F., Diritto Penale, 180-183.

62 CIC (1917) Cann. 2206-2208; cf. Vermeersch, A. - Creusen. J. Epitome iuris canonici. III. 192.

63 Friedberg IL 890.

64 Friedberg I. 819.

65 Friedberg I. 899.

66 Friedberg I. 1008.

67 Cf. X 2. 24. 12: Friedberg II. 363; X 5. 2. 1: Friedberg II. 748-649; X 5. 7. 13: Friedberg II. 787-789; X 5. 31. 11 : Friedberg II. 838-840.

68 Dig. 48.19.16: Mommsen II. 849.