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§2. Criteria of diminished responsibility. Medical criterion of diminished responsibility.

The criminal code of the Russian Federation in operating edition has kept the formulation of medical criterion of the diminished responsibility consisting of four kinds of mental derangements: the chronic mental derangement, the time mental derangement, weak-mindedness, other disease state of mentality.

Specifying in four groups of mental derangements, the legislator, obviously, had intention to show, that degree and character of mental derangements can be various.

At the same time it is possible to name hardly probable given formulation of medical criterion of diminished responsibility successful. In our opinion, the differentiation of mental derangements on groups does not promote neither to perfection of norm of the criminal law, nor creation for experts of any accurate criteria at definition of medical criterion of diminished responsibility. In the literature sights that the list of all kinds of frustration in item 21 UK the Russian Federation is "an architectural excess" 1, and that "in item 20, 21 and 22 UK it is necessary to use the uniform term"mental derangement"[194 [195] have already been stated.

If to address to the scientific literature of last period of time it is possible to notice, that about it wrote even scientific XIX centuries: "Since the legislation has refused transfer of certain forms of the mental illness excluding ability to imputation, terminology has lost former medicolegal value" [196].

Really, division of mental derangements into four groups unduly, is not present necessity for it. The Current legislation (for example, the Law of the Russian Federation "About the psychiatric help and guarantees of the rights of citizens at its rendering" [197], the Civil code of the Russian Federation) contains concept "mental derangement", not dividing it on groups.

We believe, that it is necessary to agree with the offer S.N.Shishkov stated in its last works, devoted to diminished responsibility problems, about introduction in the text of the criminal law of the formulation "mental derangement" instead of the existing list.

There is an opinion that "now prematurely to bring the legislator an attention to the question on revision of medical criterion of diminished responsibility in the criminal law as psychiatrists still have not come to certain opinion in this respect" 1.

The formulation "mental derangement" necessary, from our point of view, in the formula of item 21 UK the Russian Federation, is self-sufficient as medical criterion of diminished responsibility, quite covers all spectrum of the diseases, able to be this criterion. For this purpose at all it is not required to name any concrete kinds of mental derangements - what exist today in the diminished responsibility formulation in the law, any others.

There is an offer on allocation of the following "two signs of medical criterion of diminished responsibility: 1) weak-mindedness (congenital or got) and 2) a mentality disease state" [198 [199]. As a substantiation of the given offer sufficiency of the given signs for generalising understanding of an essence of a psychiatric estimation of all number of diseases is called. First sign is understood as any cases of conditions "proof and deep decrease in the mental activity, accompanied by defeat of intellectual sphere", and as second sign - a psychosis as "any disease state of mentality at which mental activity of the patient differs full discrepancy of the surrounding validity, or reality reflexion is roughly deformed" [200].

We believe, as such allocation of generalising signs of medical criterion will not promote allocation of accurate clinical criteria otgranichenija them from each other, it looks also

It is conditional and excessive, as signs existing today in the criminal law

Frustration. Strictly speaking, for decision-making on diminished responsibility does not matter at all, the mental derangement of the person concerns what type - to chronic, time, to weak-mindedness, or other disease state of mentality.

In our opinion, the statement medical would be wrong

Criterion of diminished responsibility by analogy to norm of item 22 of the Criminal code, in

Which the term "mental derangements now contains,

Not excluding responsibilities ". Then in sense of item 21 UK the Russian Federation

The considered criterion would be called so: "mental derangements,

Excluding responsibilities ". However, as it was specified in the present work, (in

To the head "Limited responsibility") mental derangements cannot

L on itself to exclude responsibility. Last can be excluded only at

$ *

Sets both medical, and legal criteria.

Studying has shown, that sights of the same authors taken in dynamics, happen opposite. For example, G.V.Nazarenko has devoted the dissertational research to a substantiation of necessity of an exception of the list of various forms of mental derangements in medical criterion of diminished responsibility with a statement of arguments in favour of it [201]. However it defends the opposite point of view that "later... Simplification of medical criterion is capable in practice to lead to negative results. Deleting of borders between chronic, time and other frustration of mentality gives the chance ekskulpirovat more a wide range of persons for the account of not differentiated approach to frustration of mental activity in expert practice. Besides, absence of accurate medical criteria which can serve as reference points for judiciary practice, deprives possibility court to give

The qualified estimation to the expert judgement and to take out the proved definition about diminished responsibility [202] ' 1.

In our opinion, the given fears of the author are a little exaggerated. The fact of presence of four kinds of frustration it does not create accurate criteria for otgranichenija one kinds of diseases from others it is possible only in case of deep defeats of mentality, and in disputable cases does not play a role. We believe, that it also cannot influence a judicial estimation and on ekskulpatsiju more a wide range of persons of examinees.

At the same time, results of questioning of practical workers on this question have not allowed to reveal an accurate position pravoprimenitelja - serious overweight was received neither that, nor by an opposite position. Thus, the little more than half of public prosecutor's workers - 53,2 % - believe necessary to use the term "mental derangement"; among workers of psychiatric facilities of supporters of such decision of a question minority - them of 44,1 % from total interrogated.

Besides, we consider, as reference of the mental disease to this or that kind is conditional enough. It can interest experts for obrisovki the clinical characteristic of disease, but for lawyers at all does not play any role. "Distribution" of illnesses on specified in item 21 UK the Russian Federation to kinds of mental derangements (chronic, time, weak-mindedness, other) does not influence at all the decision of a question on a recognition of the person deranged, and such division is represented deprived of semantic loading.

Undoubtedly, in definition of medical criterion of diminished responsibility painful character of frustration of mentality as only they can form medical criterion necessarily should be meant

■, diminished responsibility. All unpainful frustration of mentality (them JU.S.

Bogomjagkov names deep degree of physiological intoxication, psychophysical nedorazvitie minors, physiological affect, a condition of the psychological overloads arising in a situation "person-car", gluhonemota and others physical lacks and some other conditions if they have not entailed pathological changes in психике1) cannot be carried to medical criterion of diminished responsibility, should be however necessarily considered at awarding punishment. S.N.Shishkov, underlining painful character of frustration of mentality, in earlier works about diminished responsibility suggested to use as the name of medical criterion of diminished responsibility terms "the mental disease or other disease state" 2. As it was specified, the opinion on it was stated still by V.H.Kandinsky, approving, that "unpainful frustration of sincere activity should not exclude at us responsibility, exclude it only mental derangements painful" 3.

According to authors, "the medical criterion is established sudebnoyopsihiatricheskoj by examination". As psychiatrists also the criterion should be called психиатрическим4 are engaged in it. However we believe, that in the given question the essence of the given criterion, instead of its name is just important.

As presence of one of the mental disorders provided by the criminal law is only one party of the diminished responsibility reflecting only one of criteria of diminished responsibility - medical, the person can be recognised by made and in the presence of the mental derangement if thus it has not lost ability to realise actual character and the social danger of the actions (inactivity) or to supervise over them. Hence, medical criterion of responsibility, besides full mental health, can supplement as well the chronic mental

hl 1 Bogomjagkov JU.S.decree. soch. With. 107.

* f 2

Shishkov S.N.concept of diminished responsibility and responsibility in the Soviet right (some concepts and aspskty).//problsmy responsibilities in forensic psychiatry. M. 1983, With. 28.

5 Kandinsky V. H. To a question on diminished responsibility. SPb. 1890. With, 22.

4 Bogomjagkov JU.S, the Decree. soch. With. 107,

Frustration, both the time mental derangement, and weak-mindedness, and any other disease state of mentality. V.S.Trahterov directly specifies in it, noticing, that responsibility can be present in the presence of any of kinds of the mental derangements listed in законе1.

In this connection, the antinomy, consisting that the medical criterion in its present understanding both can is available, and cannot be a sign distinguishing responsibility from diminished responsibility that is represented to some authors as infringement of positions of formal logic [203 [204]. Therefore, otgranichenie diminished responsibility from responsibility by medical criterion not always happens possible. Process otgranichenija the given categories always should lean against consideration of each of criteria,

. For the same reason it is impossible to recognise proved the point of view,

The stated D.V.Sirozhidinovym. Last author suggests to consider the mental anomalies which have not reached psihoticheskogo level as medical criterion of the limited responsibility. Difference of medical criterion of the limited responsibility and medical criterion of diminished responsibility, in its opinion, should consist that "in the first case character of mental disorder completely excludes at such person self-checking possibility at fulfilment socially dangerous

' acts, whereas in the second case such possibility of self-checking nevertheless

' remains in view of nedostizhenija disease psihoticheskogo level, and,

Hence, the answer to a question on responsibility of the subject is predetermined, i.e. the criminally-legal estimation of its actions (inactivity) should be given as the responsible person "[205].

From our point of view the author, including the decision of a question on responsibility - of diminished responsibility the predetermined character of mental disorder, wrongfully puts the decision of the given question in dependence only from

Mental disorder on which character it is possible to judge or responsibility (the limited responsibility), or about diminished responsibility. As it has been proved above, the medical criterion not always can serve as an accurate criterion of diminished responsibility.

Concerning medical criterion of diminished responsibility there is an opinion, that "... The formulation of medical criterion of diminished responsibility cannot be recognised by successful as mental disease reference to this or that sign of medical criterion in some cases is conditional enough" 1. The offer of the author in the given question is reduced to that signs of medical criterion of diminished responsibility and the limited responsibility would be identical under the form, differing on the maintenance.

The author suggests to consider as medical criterion of the limited responsibility unpainful mental derangements and easy, or moderate forms of weak-mindedness. We will notice, as those, and others nevertheless are mental derangements. Apparently, the author means it, marking necessity of identity of medical criteria of the limited responsibility and diminished responsibility. The given position V.A.Yakushin, naming as medical criterion of the limited responsibility not only challenges mental derangements, but also "physiological defect or other essential circumstances influencing normal course of intellectual and strong-willed processes of the person... Not excluding responsibility", and offers them, instead of the established juridical fact - the limited responsibility - to consider at awarding punishment [206 [207]. Disagreement with opinion of last author was given reason at a statement of questions of the limited responsibility.

Legal (psychological) criterion of diminished responsibility. Diminished responsibility definition.

Marking importance of legal criterion of diminished responsibility, N.S.Tagantsev wrote, that "only thanks to this criterion on court the mutual understanding of doctors and lawyers" 1 can be established.

V.P.Serbsky specified, that "the mental derangement matters for the judge not as illness, and as the phenomenon excluding responsibility. Not therefore the person becomes deranged, that it is sick, that is why, that illness deprives it of freedom judgements and freedoms of choice of this or that image of action" [208 [209].

Psychologists truly mark an approach inaccuracy according to which the main role in diminished responsibility definition is taken away to medical criterion under the scheme "the diagnosis - a conclusion about responsibility - of diminished responsibility" [210]. As a rule, consideration of psychological criterion is thus passed. We believe, that fears are quite proved that (which, it is frequently spent at date of inspection, instead of retrospektivno) it is not enough revealed medical semiology to judge responsibility - diminished responsibility at the moment of act.

Speaking about lacks of carrying out of expert testimony in court, O.D.Sitkovskaja notices, that all expert opinions are schematical, that testifies that the technique of carrying out of examinations is fulfilled and monotonous enough. The typical scheme of the conclusion includes the anamnesis, the neurologic and mental status podekspertnogo, the list of some lines of its character, an estimation of I.Q. and proceeds mainly from supervision at contact. The basic attention
It is given to a substantiation of presence or absence of mental disorder, instead of to an ability estimation to understand the actual party and the social importance of the actions and to supervise over them in concrete ситуации1.

». ■ with the given criticism testifying to lacks of carrying out

Examinations of mental condition of the person who has made socially dangerous act, the author of the present research as the practising inspector having experience of appointment of similar examinations on criminal cases, quite agrees. It is necessary to notice, that carrying out of examination is occupied, as a rule, no more than ten minutes, and consists in answers podekspertnogo on the questions put by experts. Certainly, on arms of experts is available (at least, should be available, differently there is a question on an admissibility of the conclusion drawn subsequently

&

Examinations as proofs in criminal trial) the full medical documentation, a characterising material on the investigated person and examinations necessary for carrying out business materials. However proceeding from the given technique doubtfully, that for this short period of time in general probably to study mental condition of the person during the concrete moment of the past which is sometimes remote from carrying out time

Examinations for months and even years.

It is necessary to carry to preliminary investigation lacks that

L ' inspectors frequently concerning the convicted appoint carrying out

Judicial psychiatric examinations, believing, that for research of responsibility of the subject is quite enough knowledge of psychiatrists. As a result of research of persons are spent not always full, and the conclusions of such examinations focus attention to an establishment of presence or absence of the mental disease that is obviously not enough.

The exit from the given situation sees in necessity of application

L of psychological knowledge at definition of diminished responsibility, which especially

Are necessary at definition of psychological criterion of diminished responsibility.

1 Sitkovsky O.D.Ukaz. soch. С.24.

With the account stated, it is quite fairly marked: "Not the medical dichotomy - norm-pathology, and psychological - ability - inability to osoznanno-strong-willed behaviour in a concrete case plays a main role in the substantial characteristic of responsibility - of diminished responsibility" 1.

The spent questioning among practical workers has shown, that far not all from them understand necessity of appointment of complex judicial psihologo-psychiatric examination in each case of fulfilment heavy or especially grave crime. 30,1 % of the interrogated workers of Office of Public Prosecutor of subjects of the Russian Federation (and, as is known, preliminary investigation on affairs about heavy and especially grave crimes basically it is spent by inspectors of organs of the Prosecutor's Office) consider sufficient carrying out of psychiatric examination. According to T.B.Dmitrievoj, the percent reflecting indicators of carrying out of complex examinations on separate subjects of Federation, is insignificant, and "in 16 territories complex examinations were not spent at all, on 20 their number has not exceeded 10 %" [211 [212]. As the practical worker, the author of the present dissertational research is convinced of necessity of carrying out of such examinations for full definition as mental condition of the person, and its psychological status. Besides, in our opinion, it is important in aspect of a problem otgranichenija diminished responsibility and the limited responsibility as at the decision of a question on a full or incomplete measure of ability to realise actual facts and the social importance of the behaviour or to supervise over it, "without special knowledge in the field of psychology not to manage, so, carrying out of complex psihologo-psychiatric examination" [213] is required.

In connection with stated, we consider, that O.D.Sitkovskoj's opinion on a main role of legal (psychological) criterion at responsibility-diminished responsibility definition quite obosnovanno. Meanwhile, there are also other opinions on this question. So, I.A.Kudryavtsev believes, that at definition of medical criterion the defining role belongs to the expert-psychiatrist, and at definition of legal criterion of a role of the expert-psychiatrist and the expert-psychologist paritetny - "the competence of the first includes mainly differentiation of conditions of possibility and impossibility to realise actual character and the social danger of the actions, i.e. responsibility-diminished responsibility conditions. In the competence of the second - differentiation of the full and limited regulation of behaviour" [214].

Own opinion of the author of the present research is reduced to that the medical criterion which in a criminal law science also is called "psychiatric", and should be established by experts - psychiatrists, instead of lawyers. The legal criterion of diminished responsibility at examination carrying out should be established in common and the psychiatrist, and

The psychologist, and further to be analyzed by body of a consequence and court in aggregate with all collected materials of criminal case. As it was already specified, by medical criterion frequently it is simply impossible to spend otgranichenie responsibilities from diminished responsibility; otgranichenii the legal (psychological) criterion should accept more powerful participation in it.

G.V.Nazarenko considers correct to call an intellectual sign of legal criterion kognitivnym. The author approves, that "this sign should be defined not on an accessory, and on carried out function as it is a question of functioning informative

(kognitivnyh) abilities of the individual "1. We consider, that such opinion can be accepted in attention, but change of the formulation of a special role in a problem otgranichenija responsibilities from diminished responsibility with primary value of legal (psychological) criterion does not play.

The current criminal law has refused a word-combination "could not realise the actions (inactivity) and supervise over them". The given phrase is replaced povoj that the person "could not realise actual character and the social danger of the actions (inactivity) or to supervise over them". We believe, the second phrase in comparison with the first is more successful and is correct, as reflects more precisely the social party of made act and its legal importance. The word-combination "could not give the report" less clearly and particularly; it is necessary to give not clearly, what report and in what it is concrete. Removal of any elements from the given formula Is represented wrong. So, from resulted above the definition of diminished responsibility offered on In, Nazarenko, the instructions on an exception are unfairly removed at diminished responsibility of possibility of the person to realise actual character of the actions (inactivity).

The level of consciousness considered at the decision of a question on responsibility - of diminished responsibility, with reference to the characteristic intellectual (kognitivnogo) a sign of legal criterion, it is possible to establish by means of the theory of understanding developed at high enough level by psychologists and философами2. From a position of this theory is available four levels of understanding:

- Ability to intelligent perception of an outer side of legally significant phenomena (time, a place, sequence of events and dr);

1 Nazarenko of medical character in criminal law. The manual for colleges of law and faculties. M; “Ось-89”. 2000. With. 16.

2 Metelitsa J.L., Shishkov S.N, Value of a category of understanding in judicial psihiatrii.//Psychologichssky magazine. 1989.T.I0. №5. S.75-79.

- Comprehension of that the subject time actually makes at present;

- Comprehension of social value of legally significant phenomena;

- Personal sense of legally significant events at level of their social values.

It is underlined, that for a conclusion about ability to realise actual character and the social danger of the actions it is necessary, that all resulted levels of understanding remained safe while for a return conclusion it is enough to reveal defeat on any of the given levels.

Concerning terms to "realise and"understand"social value of legally significant phenomena it is stated, that these terms are used as equivalent. S.N.Shishkov suggests even to use a word-combination about ability to understand value of the actions (inactivity) in the edition of item 21 UK РФ1.

The code of the Russian Federation about the administrative violations, taken effect on July, 01st, 2002, contains norm of item 2.8"Diminished responsibility" in which specifies, that "the physical person who during fulfilment of wrongful acts (inactivity) was in state of insanity does not come under to administrative responsibility, that is pe could realise actual character and illegality of the actions (inactivity) or to supervise over them..." Apparently, in intellectual і the moment of legal criterion the legislator instead of a phrase "to realise

The social danger "the legislator uses a phrase" to realise

Illegality ", that is represented to more true, і At the same time, as as it has been specified in chapter 1 present

' dissertations, categories "responsibility" and "diminished responsibility", according to the author

I------------------------------

I 1 Shishkov S.N.criminal code of Russia and diminished responsibility problems.//Magazine of the Russian right. 1998. №

1. С.37.

The present research, are categories of exclusively criminal law and do not exist in other branches of law, it demands the legislative fastening. As it is described above, the sign is inherent in "the act social danger" both crimes, and administrative violations, differing only on social danger degree. Time is offered to be used responsibility and diminished responsibility only in one branch of law - criminal law and in norm of item 21 UK the Russian Federation that the irresponsible person during act fulfilment cannot realise actual character and illegality of the actions (inactivity) should be directly specified. We suggest to include in the diminished responsibility formula comprehension of not simply illegality, and criminal illegality that would be more exact. From resulted above the understanding theory it is visible, that comprehension by the person of the social danger of the act is not included into one of understanding levels while the understanding of the actual maintenance of the party of the actions and their jural significance, apparently, is the centre of the given theory. As it has been specified above, about same the scientific thought and the legislation testifies pre-revolutionary.

At a statement intellectual (kognitivnogo) a sign of legal (psychological) criterion it is necessary to notice, that the out-of-date concept continues to occur in modern criminal law intellektualizma according to which the consciousness completely "operates" to ours поведением1. On acceptance by the subject of this or that decision have strong influence such factors, as its emotional condition at present time, unconscious inclinations, social factors, installations, habits and even an accessory to this or that nationality or residing at this or that region. It is necessary to consider data

Circumstances at definition of diminished responsibility of the person in exchange to the unequivocal approach of the concept intellektualizma.

Of legal (psychological) criterion of diminished responsibility there is an opinion that it is necessary to allocate also an emotional sign as "at an estimation of the intellectual moment of fault the emotional condition of the subject is necessary to consider. Negative emotions can paralyse intelligence of the subject, narrow sphere of its activity, lower it prognosticheskie possibilities". Thus the emotional condition in the Criminal code is considered only in articles about murder, deliberate causing of heavy harm to health and harm to health of average тяжести.1 In our opinion, presence in legal criterion of intellectual and strong-willed signs covers all variety of frustration, including and frustration of emotional sphere. This conclusion follows from this, that frustration of emotional sphere in strong degree is accompanied by intelligence or will frustration, or that and another simultaneously, and at occurrence of serious frustration of emotional sphere intellectual or strong-willed signs of psychological criterion, as a rule, are found out. Frustration of emotional sphere "cannot entail behind themselves diminished responsibility, and only can be an obligatory either facultative symptom or a syndrome of the mental disease defining diminished responsibility" [215 [216] [217]. Therefore the emotional sign which is a special case, display of an intellectual and strong-willed sign, does not require separate fastening in the psychological

Criteria of diminished responsibility.

The legal criterion of diminished responsibility is supplemented with the strong-willed sign meaning inability to supervise by the actions. Concerning the given sign the opinion is expressed, that the term to "supervise" insufficiently accurate, it is required to replace it with the term to "supervise". However we consider, that such change which is not carrying basic character, it is not considerable and it is not so necessary. The formulation of a strong-willed sign of changes does not demand.

Thus, according to the stated reasons about diminished responsibility in criminal law, we suggest to fix in the Criminal code of the Russian Federation following edition of norm of item 21 UK the Russian Federation:

"Article 21. Diminished responsibility.

"1. The person recognised deranged, that is the person who during act fulfilment could not realise actual character and criminal illegality of the actions (inactivity) does not come under to the criminal liability or supervise over them owing to painful frustration of mentality.

2. To the person recognised deranged, as court the forced measures of medical character provided by the present Code "can be appointed.

Konventsionalizm in forensic psychiatry.

We consider, that by consideration of criteria of diminished responsibility it is impossible to lay aside enough challenge lifted by S.N.Shishkov, - about konventsionalizme. Giving to it great value, the author approves, that konventsionalizm "is capable to basis to shake a building of modern forensic psychiatry" 1. Thus the made definition in forensic psychiatry has not received an official recognition owing to the assigned

On it a taboo. However we quite agree from S.N.Shishkov that time for serious conversation on this problem has come for a long time.

First, that such konventsionalizm. The considerable part sudebnoyopsihiatricheskih estimations carries conventional (contractual character). This position at all does not mean, that experts as a result of any contracts which have come to the end with acceptance of the document, assured by the signature of all participants, come to this or that opinion. It is a question that judicial-psychiatric estimations are based on conditional arrangements between judicial psychiatrists considering one psychopathological conditions excluding certain legally significant abilities of the subject of law, and others - are not present.

S.N.Shishkov is fairly noticed, that during Soviet time ' Z/

To tell about conventional ™ in forensic psychiatry it was dangerous, as the expert could convict in professional непригодности1. The thought on the conventional nature of any important concepts of forensic psychiatry was seditious and could be regarded as methodological capitulation. Therefore it was confidently declared, that the Soviet scientists in the field of forensic psychiatry quite could learn true.

S.N.Shishkov pays attention that legislative definition of diminished responsibility as of impossibility of the person during fulfilment

' socially dangerous act to realise the actions or

To supervise over them owing to the kinds of mental derangements specified in the law, and it is equal also other definitions offered by authors with a view of improvement of legislative definition of diminished responsibility, - only formulas which "are symbolical, abstract and almost deprived sense", or "beautiful metaphors" [218 [219].

Noticing, that in a situation where cases of very deep mental derangements when there is no articulate speech and the elementary skills of self-service take place, S.N.Shishkov approves, that for ч* the judicial psychiatrist all is clear. Even earlier in this occasion D.R, Lunts wrote,

That "there is a number of mental disorders which on character of mental infringements caused by them in overwhelming majority of cases exclude responsibility without dependence from the form of illness and its stage. Senile psychoses and the uncured progressive are that, for example,

Paralysis "1.

At the same time serious problems arise at definition of variety concerning easy cases, first of all psihopaty and neurosises. Therefore the matter in dispute and an ambiguous estimation are cases when we deal with patients with rather safe, "formally safe mentality". In the given cases, according to the author, absolutely reliable and absolutely indisputable proofs of the resulted thesis hardly probable exist. Most likely, they simply are not present. "It is necessary to establish only, - writes further S.N.Shishkov, - that within the limits of the paradigm selected us... We agree to consider the given category of patients falling under existing criteria of diminished responsibility, that is incapable to realise the actions and over them to supervise. Differently, we recognise such patients deranged on the basis of conditional arrangements (" conventions ") between corresponding experts" [220 [221].

Covering a problem konventsionalizma in other work, S.N, Shishkov notices, that all scientific proofs of diminished responsibility are not quite objective, arguments resulted by judicial psychiatrists and counterarguments concerning correctness of expert estimations follows

To recognise as the pseudo-proof, and the scientific knowledge here is not means of comprehension of true.

The author underlines imperfection obshchemetodologicheskoj $ bases on which base are carried out within many decades

Judicial-psychiatric estimations of mental condition of subjects of law. The given basis "the axial model" which "reflects a train of psychopathological conditions in the form of smooth transition from mental health to the painful mental derangement and further to gradual strengthening of its weight (depth) is considered. Visually it is possible to present this process in the form of an axis - a strip beginning with white colour and through gradual increase of grey semitones passing in absolutely black" 1. Given S.N.Shishkov's figurative comparison of transition from a condition mental

Health to mental derangements it will be adjusted with representations of the author of the present dissertation about the norm and pathology parity, resulted in the chapter of I given work. Thus it is necessary to result the remark stated still in the beginning of the XX-th century that "it is impossible to approve simply as if responsibility degree increases with reduction of force of a mental derangement" [222 [223]. The remark, in our opinion, is quite fair, as at the decision of a question on responsibility-diminished responsibility should be taken into consideration

Besides medical and legal (psychological criterion).

It is necessary to notice, that also the thought that a number of mental derangements admit incompatible with responsibility not today has sounded because possibility of exact expert estimations - of measurements is found, at last. Experience shows, that a recognition made the persons, suffering these frustration, and imposing on them punishments (especially deprivation

Freedom) leads to the aggravation of illness fraught with threat to health of the patient and safety of associates.

The following conclusion becomes: the person admits deranged not because there are exact signs of frustration that is why, that it is considered inexpedient enduring the punishment of this or that person with disease in prisons and colonies. All same scientific (S.N.Shishkov) brings up the important question of dependence of the decision on diminished responsibility from any conditions existing in the state - impossibility to spend corresponding treatment, inadequate conditions of enduring the punishment, or a lack of financing of penitantiary establishments. Actually, in our opinion, the recognition of a lead the deranged or made should not depend on the given reasons. Similar practice roughly breaks human rights which is put in dependence of a recognition deranged with the further legal effects of this decision from the above-stated circumstances. It also does not promote effective performance by law enforcement bodies of the problems put before them in given area.

Thus, it is visible, that here the judgement about responsibility - of diminished responsibility of the person can be defined not so much by their criteria, how many practical reasons. We consider, that the given position has no relation to konventsionalizmu in forensic psychiatry (more likely, it it is a certain rationalism), and the conclusion constructed on given reasons, has no scientific character signs. Such state of affairs also allocates the judicial psychiatrist with powers by definition of destiny of criminal case, character of legal effects concerning the person investigated by them, that is, actually, powers of the judge.

Therefore we agree with S.N.Shishkov's opinion that such practice "leads to conceptual and terminological mess... It is fraught with audit of the norms, concerning fault, responsibility, responsibility, punishment,

Corrective measures and measures of medical character "1. Moreover, we consider also, that it can undermine main principles of criminal law: liability, appointment and clearing of punishment only court, (instead of doctors, or any other body).

Unacceptability us of the given approach speaks also that, as a matter of fact, diminished responsibility at it admits only on the basis of its one medical criterion - illness presence, thus ability of the person to realise the social party and actual character made and to supervise over the actions in this case is not taken into consideration

At all.

Finishing discussion about the concept konventsionalizma, we believe, that the argument supporting possibility syo of existence, that circumstance serves, that it is widely applied and in the criminal law theory. So, in particular, the same convention, from our point of view, is present and in criminal liability approach at achievement by the person of certain age (16 years under the general rule and 14 years in the cases defined by the law) when at present the person on level of the development admits not realising actual character and the social danger of the actions (inactivity) and not able to supervise over them, and, say, next day it is considered got the above-stated abilities and consequently admits the subject of the criminal liability, Actually, the teenager and before achievement of age of the criminal liability can realise actual character n the social danger of the actions (inactivity) and this circumstance for the criminal law gratis can supervise over them, however. Naturally, the convention having some conventional character which, however, is quite proved and necessary is available.

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A source: Tugushev Rustam Rashidovich. Diminished responsibility: criminally-legal value and problems otgranichenija from responsibility and the limited responsibility. The dissertation on competition of a scientific degree of the master of laws. Saratov - 2002. 2002

More on topic §2. Criteria of diminished responsibility. Medical criterion of diminished responsibility.:

  1. Chapter 3. Diminished responsibility. Concept,criteria, signs, forms of diseases.
  2. Tugushev Rustam Rashidovich. Diminished responsibility: criminally-legal value and problems otgranichenija from responsibility and the limited responsibility. The dissertation on competition of a scientific degree of the master of laws. Saratov -,
  3. §1. Concept about diminished responsibility.
  4. §2. Criteria of the limited responsibility. Medical criterion of the limited responsibility.
  5. §3. Criteria of responsibility. Legal (psychological) criterion. The intellectual moment. Responsibility and free agency: history and the present.
  6. Chapter 1. Responsibility. More clearly criteria.
  7. 1.2. Professional responsibility as a civil responsibility version, its concept, signs and kinds
  8. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility
  9. responsibility of directors of corporation and its responsibility Participants
  10. the International legal analysis of the concept of "divided responsibility» (shared responsibility) in a context of a liability of infringement of the obligations following from norms jus cogens
  11. §2. The legal nature of insurance of professional responsibility. A parity with indemnity against liability under the contract and otgranichenie from insurance of non-contractual responsibility of subjects of professionalwork