Summary

The major issues dealt with by judicial psychiatry in the field of penal law are the psychic state and guilt capacity of a person at the time of commission of an unlawful act, his or her capacity to participate in the investigation and court sessions and to bear a punishment in the case of a judgment of conviction. Mental incompetence is determined by psychological and medical criteria. Such descriptions as “was not capable of understanding that the act committed by him or her was prohibited” and “was not capable of controlling his or her action according to such understanding“ constitute psychological criteria of mental incompetence. Medical criteria determine mental disorders as a result of which a person is not capable of understanding that the act committed by him or her is prohibited or of controlling his or her action according to such understanding. The author points out that definitions of the medical criteria of mental incompetence should not be regarded as diagnoses and that mental capacity and mental incompetence are not states in the universal meaning of the word ‘state’. Further, the author stresses that mental disorders defined as criteria of mental incompetence may be of different intensity. Therefore, the author argues that a diagnosis is not enough in order to decide whether the state of mental incompetence is caused by mental disorders. The author criticises the argument that experts of judicial psychiatry should not decide on mental capacity/mental incompetence and that they should rather be confined to describing and diagnosing the psychic state of the person examined.