Krivično pravo i duševna bolest
Criminal Law and Mental Illness

Summary/Abstract: The paper deals with the problem of criminal law reaction to behavior of mentally ill, insane offenders who violate or threaten the criminal law protected values. To the preliminary question of whether the criminal reaction is generally justified in regard to quasi-criminal acts of mentally ill persons (which are not criminal in the true sense because they lack mens rea which is a constituent element of each offense), the answer is still yes. There are no other, more appropriate forms of social control, or other legal mechanisms that could more effectively than the criminal law, while respecting the safeguards that have become indispensable in criminal law, protect important goods of the individual or society from the harmful behavior of mentally ill persons. Although the entire criminal law is based on guilt and the subjective attitude of the offender towards the criminal offense for which he is exposed to the social-ethical reprimand, it is excluded in case of mentally ill, insane offenders and implementation of appropriate security measures. Capabilities of criminal law in performing a protective function relative to mentally ill offenders are certainly more modest than in case of perpetrators who can be held accountable. The entire general prevention (whether positive or negative) underlying protective function of criminal law, is almost inconceivable in relation to potential offenders who are mentally ill. Available options are reduced to detention and psychiatric treatment of the mentally ill offender. The application of security measures to insane, mentally ill persons is limited, therefore, mainly to certain aspects of special prevention. Even exercising social control through criminal law differs, significantly, depending on whether we talk about incompetent, mentally ill persons or those who have normal mental abilities.

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