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
230 PETER ARTNER Imputability means that the person intended to do what he did, but if any doubt is raised then that doubt has to be resolved, for the tribunal must arrive at moral certitude to make a judgement of guilt, i.e. the full imputability or the lack of total imputability and release of the accused. And this is precisely the form that the presumption of imputability takes in the canonical trial: it is a direction in the law itself for the tribunal that it must find a person non imputable only ifit has acquired moral certitude on that point. Presumption means, that if the external act has been shown to be the accused’s act, an actual proof is not required that the accused person was perfectly “compos mentis” at the time of the delict, but it is presumed that the act results from a deliberate intention or negligence; “nisi aliud appareat” — “unless it appears otherwise”. On the other hand, only the lack of imputability is to be proven, not the lack of guiltiness, i.e. the innocence. Everybody is considered innocent until the contrary is proven, and everybody is to be considered imputable until the contrary is proven. The presumption of imputability is operative for an external violation whenever malice or culpability is present. Imputability, according Black’s Law Dictionary from 1991: is “the state or condition rendering one chargeable for an act; liability or responsibility for conduct or omission." The § 3 of the same canon speaks about the presumption of imputability if an external violation of a law happens, whether of dolus, or possibly even culpa. This requirement is different than the CIC (1917), which said in Can. 2199: "Imputability of a delict depends on the dolus of the offender or on his fault, in ignorance of the violation of the law or failure with regard to due diligence; therefore all causes that can increase, decrease, or remove dolus or culpability likewise increase, decrease, or remove imputability of the delict.”13 In the next canon (CIC [19171 Can. 2200) it is explained more precisely: § 1 “(Here) dolus is the deliberate will to violate the law and is countered on the part of the intellect by a lack of knowledge, and on the part of the will by a lack of freedom” § 2: “Positing an external violation of the law, dolus in the external forum is presumed until the contrary is proven.”14 According to other words: voluntas criminiosa in volationem legis deliberate di ree ta: which means that the breaking of the law is a voluntary act - independently of the psychical conditions of the offender. 13 CIC (1917) Can. 2199 - Imputabilitas delicti pendet ex dolo delinquentis vel ex eiusdem culpa in ignorantia legis violatae aut in omissione debitae diligentiae; quare omnes causae quae augent, minuunt, tollunt dolum aut culpam, eo ipso augent, minuunt, tollunt delicti imputabilitatem. 14 CIC (1917) Can. 2200 - § 1. Dolus heic est deliberata voluntas violandi legem, eique opponitur ex parte intellectus defectus cognitionis et ex parte voluntatis defectus libertatis. - § 2. Posita externa legis violatione, dolus in foro externo praesumitur, donee contrarium probetur.
