DETERMINATION OF LIABILITY IN AUSTRIA (FROM WHITE COLLAR CRIME - DETERMINATION OF LIABILITY, 1978, BY HANS GOEPPINGER AND HANS WALDER - SEE NCJ-56982)

• NCJ Number: 56990
• Author(s): G HARRER
• Date Published: 1978
• Length: 11 pages
• Corporate Author: P O B 1304
• Publication Format: Document
• Language: German
• Country: West Germany (Former)
• Note: *This document is currently unavailable from NCJRS.

Annotation

MODIFIED GUIDELINES IN AUSTRIAN LAW RELATING TO DETERMINATION OF MENTAL COMPETENCE ARE ENUMERATED AND COMPARED TO WEST GERMAN REGULATIONS.

Abstract

THE NEW AUSTRIAN CRIMINAL CODE OF 1975 REPLACES PROVISIONS GOING BACK AS FAR AS 1787: EMPHASIS IS SHIFTED FROM 'LOSS OF SENSES AND REASON' TO 'MENTAL INCOMPETENCE OR MENTAL ILLNESS.' ACCORDING TO THE NEW BIOLOGICAL-PHYSIOLOGICAL METHOD, AN OFFENDER CANNOT BE CONSIDERED RESPONSIBLE FOR HIS ACTIONS IF CERTAIN CONDITIONS RENDERED HIM INCAPABLE OF COMPREHENDING AT THE TIME OF THE CRIME THAT THE ACT WAS WRONG AND OF HIS DOING. THE FOUR EXTENUATING CONDITIONS ARE (1) MENTAL ILLNESS (I.E., ENDOGENOUS PSYCHOSES AND OTHER ORGANIC DISTURBANCES, BUT NOT ABNORMAL DRIVES AS IN GERMAN LAW); (2) LIMITED MENTAL CAPABILITIES (I.E., IMBECILITY AND DEBILITY, INCLUDING BRAIN DAMAGE, BIRTH DEFECTS, AND SENILITY); (3) ELEMENTAL DISTURBANCES OF CONSCIOUSNESS (I.E., PATHOLOGICAL AND NONPATHOLOGICAL SEMICONSCIOUSNESS, BUT ALSO DISTURBANCES FROM SLEEPLESSNESS OR OVEREXHAUSTION), (4) OTHER SEVERE PSYCHOLOGICAL DISTURBANCES EQUIVALENT TO THOSE CITED (E.G., EXTREME NEUROSES, PSYCHOPATHOLOGICAL CONDITIONS), WITH THE PRINCIPAL DIFFICULTY BEING ESTABLISHMENT OF WHICH CONDITIONS CAN BE CONSIDERED 'EQUIVALENT.' DIFFERENCES BETWEEN AUSTRIAN AND GERMAN ILLNESS CLASSIFICATIONS SUGGEST THAT MORE EXACT DIAGNOSIS CONSIDERING MULTIPLE FACTORS IS NECESSARY. UNLIKE GERMAN LAW, PARTIAL MENTAL COMPETENCE LEADING TO REDUCED SENTENCES BUT NOT EXEMPTING THE INDIVIDUAL FROM PROSECUTION IS SEPARATED FROM TOTAL MENTAL INCOMPETENCE, A DIFFICULT DECISION FOR JUDGES. SPECIAL PROVISIONS DIFFERENTIATE BETWEEN VOLUNTARY AND INVOLUNTARY, COMPLETE AND PARTIAL INTOXICATION, WITH VARYING DEGREES OF ACCOUNTABILITY ACCORDING TO THE COMBINATION OF FACTORS. INTOXICATION WHICH DOES NOT EXCLUDE MENTAL COMPETENCE MAY BE JUSTIFICATION EITHER FOR REDUCED OR FOR INCREASED SEVERITY, DEPENDING ON THE TYPE OF CRIME COMMITTED. ACCORDING TO NEW REGULATIONS, MENTALLY DISTURBED OFFENDERS AND CERTAIN MENTALLY COMPETENT OFFENDERS ARE TO BE PLACED IN INSTITUTIONS FOR MENTALLY ILL OFFENDERS IF THEY HAVE COMMITTED CRIMES PUNISHABLE WITH MORE THAN 1 YEAR OF IMPRISONMENT. THE WORK OF PSYCHIATRIC ADVISORS MUST NOT END WITH THE DECLARATION OF MENTAL INCOMPETENCE. NOTES ARE SUPPLIED --IN GERMAN. (KMD)