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
236 PETER ARTNER seems. Actually, this is a limitation: no one is allowed to ask for a revenge greater than his damage was. When this moderation is not stepped over, the defense is just. Anyhow this case is very rare in Canon Law. We may say that it can be connected only to three canons. Canon 1370 writes: physical attack against the pope or bishop may be a self-defense, but not against a priest or a religious, because in these latter cases the physical attack is canonically punishable only if the physical force is used against the cleric or religious out of contempt for the faith, the Church, ecclesiastical power, or the ministry, which cannot be connected to unjust aggression. According to canon 1395 § 2 a cleric may commit an offense against the sixth commandment of the Decalogue by force, the victim may defend himself or herself, as this is considered as an unjust aggression, too. The most notable canon connected to this point is Can. 1397: “A person who commits a homicide or who kidnaps, detains, mutilates, or gravely wounds a person by force or fraud” commits a canonical delict, and those who intend to protect themselves, are acting legally and are not subject to any penalties. This self-defense case is very similar to the previous two circumstances: the victim of the aggression becomes an offender, but because of the attack he or she can panic, lose self-control and the psychical imputability is limited, so penalty may not be applied. (I skip here the nr. 6 the “temporary loss of use of reason, because I want to explain it in a different way). 7) A person who without negligence thought that one of the circumstances mentioned in nn. 4 or 5 (grave fear or self-defense) was present cannot be punished. In this Canon the legislator fulfills the purpose of mitigation and benignity or gives another example of delicate respect for human dignity and consequently extra sensitivity in appreciating the subjective element of the offense. He grants exempting effects to mistaken but non-culpable thinking by the person committing the delict.41 In all these cases the burden of proof rests with the offender, if he or she had lacked the imputability at the time of committing the delict. The following canon, i.e. 1324, lists those factors which diminish the imputability. The lack of imputability in the following cases is temporal, and only partial. Distinct from the previous canon which established when a person is not subject to a penalty, this canon establishes the occasions when imputability is mitigated or diminished. This canon instructs that nonetheless, some type of penalty must be applied, or substituted by a penance. The circumstances here identified largely parallel to Canon 1323, here the offender’s decision-making process is only partially impaired. There is some accountability for one’s ac41 Marzoa, Á. - Miras, J. - Rodríguez-Ocana, R. (ed.), Exegetical Commentary, IV/1. 284 (MarZOA, Á.).
