Imputability

Imputability, imputability, imputable, terms developed in German and prerevolutionary Russian literature that denote the act of attributing a deed as a fault, i.e., the conclusion that, while having the capacity to be guilty in general, a given subject is actually guilty. Conversely, the conclusion that, despite the presence of a criminal result caused by human action, the latter is not guilty, is denoted in criminal law theory by the concept of non-imputability. Imputability refers to the property of the deed (not the doer), the presence in it of such conditions that allow it to be attributed as a fault to the person who committed it. The concept of imputation coincides with the concept of the general composition of a crime. Imputation should be distinguished from imputability. The latter denotes the totality of characteristics, the presence of which makes a subject capable of being guilty of a crime. Thus, I. as a concept defines the relationship in which a perfectly healthy citizen stands toward the existing criminal law. If such a person commits an unlawful deed, the latter is attributed to them as a fault, and against this person the measures of social protection required by law (or in the terminology of bourgeois law—punishment, penalty) are applied. I. and its absence—non-imputability—are concepts of criminal law, which cannot be identified with various medical concepts. Medical concepts only indicate the causes that eliminate I. and are only auxiliary. The subject of a crime may be an 'imputable' person. 'Only one who acts with guilt is punishable. One acts with guilt who intentionally or negligently commits the composition of a punishable act and at the time of the act is in a state of imputability,' states the draft of the German criminal code of 1919. Although, according to Soviet criminal legislation, the subject of a crime may be any physical person, regardless of whether they are imputable or not, nevertheless, for Soviet law I. is a very essential concept as 'one of the basic classificatory characteristics determining the choice of corresponding measures of criminal legal coercion.' The concept of I. is of relatively recent origin. In primitive law, objective imputability, responsibility for the result, predominated. The 'internal element'—guilt—did not constitute a necessary condition for punishability; the fact of committing a wrongful act was imputed, i.e., constituted the composition of a crime. The criminal law of all ancient civilized countries was based on the position that at the foundation of every punishable deed lies evil will; the consideration of the composition of any deed exhausted the question of the personal responsibility of its perpetrator. However, in Roman law a distinction was already drawn between homines sanae mentis and homines non sanae mentis (the latter are divided into furiosi, de-mentes and mente capti). Canonical law did not essentially introduce anything new. And only in the 18th century did insistent demands begin to be heard that one should not limit oneself to considering only the objective side of a crime, but should take into account the degree of personal guilt, freedom of will, and the presence of evil intent. Moreover, since the concept of I. is closely connected with the concept of criminal responsibility, expressed in punishment, it naturally had to change depending on what goals punishment pursues. The diversity of theories of punishment caused the same diversity in theories of imputability. Thus, in criminal law there gradually occurred a process of transition from primitive objective imputation of a crime to imputation based on the subjective element, and from there to the evaluation of the state of the person at the moment of committing the act. Thus the concept of states of non-imputability is created, i.e., of such states of a person at the moment of committing the act that exclude imputing this deed to them as a fault. If such a state was not present in a person at the moment of committing a crime, they are considered to have acted in a state of I., and what they committed can be imputed to them as a fault. Thus, the establishment of the characteristics of imputability proceeded in a negative way. Legislatures until recently did not proceed from a general formula of imputability, but from a purely practical enumeration of conditions and states that eliminate it. The deficiency of the 'enumerative' system is quite understandable, since in it there are always essential gaps and, moreover, it cannot correspond to the constantly changing psychiatric classification and terminology. All this led modern legislation to the necessity of creating a generalized formula covering all the diverse states that cause non-imputability. The classification of legislation on this question was constructed in accordance with the two prevailing directions in criminal law science: 1) indeterminism understands non-imputability as a state when a person does not possess free will; 2) determinism builds the concept of I. apart from freedom of will, negating the latter. The definition of non-imputability given by the Russian Criminal Code (1903) is considered exemplary: 'A criminal deed committed by a person who, at the time of its commission, could not understand the nature and significance of what they were doing or control their actions *b 16S due to a morbid disorder of mental activity or an unconscious state, or mental retardation resulting from a physical defect or disease, is not imputed to them as a fault.' The establishment of a 'psychological criterion' in the law was caused by the desire to introduce limiting conditions in order to establish the presence of I. in each individual case, since in the states causing non-imputability there are various degrees. The Soviet legislator understands the concept of non-imputability in the same way. Art. 11 of the Criminal Code (edition of 1926) states: 'Measures of social-protective, judicial-corrective character cannot be applied with respect to persons who have committed crimes in a state of chronic mental illness or temporary disorder of mental activity, or in some other morbid state, if these persons could not account for their actions or control them.' These definitions are insufficiently clear and require further clarification. With many forms of mental illness, even in the narrow sense of the word, which undoubtedly fall under Art. 11 of the Criminal Code and similar provisions in other legislations (e.g., schizophrenics, manic-depressives, paranoids), although mentally ill persons do account for their actions and control them, their acts are nevertheless conditioned by mental illness. The definition of imputability derived from the formula of intent and negligence cannot be a criterion for distinguishing between imputable and non-imputable persons. The decision on the question of a disorder of mental activity in the sense of existing legislation is possible only in each individual case and depends on determining not only the state of consciousness, its volume and clarity, but also the interaction of all psychisms acting at the time of the commission of the crime. Thus, the only correct criterion is our knowledge and our psychiatric experience, with the mandatory condition of full awareness of the necessity of protecting society from socially dangerous actions. Soviet criminal law in the basic principles of 1924 attributes a different meaning to the state of non-imputability than bourgeois law. In bourgeois law, the state of non-imputability of a person excludes the application of punishment to them (although some codes establish various 'security measures'). In Soviet law, the legislator, proceeding from the principle of state expediency, i.e., the protection of society under the given conditions of the social system, considers that in all cases where socially dangerous actions are involved, measures of social protection should be applied, regardless of their nature: whether they be judicial-corrective, medical, or medical-pedagogical.'