Elements of a Criminal Offence Zagreb October 30

Elements of a Criminal Offence Zagreb, October 30 th 2019

Structure n n 1. Little about Common law system and civil law systemprinciples 2. Elements of criminal offence 1. 2. 3. 4. actus reus (US) //conduct/action/commission or omission essence of the criminal offence; statutory element unlawfulness mens rea (US) // culpability /guilt 1. Excuses

1. Common Law System versus Continental Civil Law System n n n Common Law System (hereinafter: CLS) -system of precedents// Model Penal Code 1962; Statutory Law (US Code: Title 18); Case Law; Sentencing Guidelines Continental Civil Law System (hereinafter: CCLS)- criminal codes (general and special part) there is no legal definition of the elements of the crime/ offence in German Criminal Code (hereinafter: St. GB) nor in Croatian Penal Code (hereinafter: CPC).

1. Common Law System versus Continental Civil Law System n Substantive Criminal Law principles: a) Principle of legality (Art 1 St. GB; Art 2. CPC)- „ nullum crimen, nulla poena sine lege”, (lex scripta) b) Principle of lenient law (Art 2 § 3 St. GB; Art 3 § 2 CPC) c) Principle of guilt (Art 46 St. GB; Art 4 CPC)

1. Principle of legality („nullum crimen, nulla poena sine lege”) Common Law System Civil Law System n Theory of legality (mixture od a) substantive and procedural principles - p. 207. Fl. ) b) a) Negative principle (substantive principle)- nullum crimen, nulla poena sine lege- or no punishment without prior legislative warning c) b) Positive principle of legality (procedural principle)–which stands for consistency and completeness in the application of the law- must punish the guilty, all d) the guilty-requires prosecution of all those who are guilty n Substantive principle-four subprinciples (p. 254. Kevin. . ): „nullum crimen, nulla poena sine lege scripta” – the law must be written and cannot bebased on custom; „nullum crimen, nulla poena sine lege stricta”-analogy is forbidden (prohibition of analogy)- „the wording of the statute denotes the outer limits of punishability; the statutory probihbiton cannot be extended by analogy to conduct not covered by ordinary meaning of he words used „nullum crimen, nulla poena sine lege certa” – the law must be determined, defined- criminal prohibitions mus „determine” the prohibited conduct; they must not be too vague; „nullum crimen, nulla poena sine lege praevia”retroactivity is forbidden (retroactive ban)-acts cannot be punished retroactively (unless it is more leninet for the perpetrator)

2. Elements of the criminal offence n n 1. actus reus (commission, omission, possession)objective element (US)// conduct/act (action/commission or omission)-objective element 2. essence of the criminal offence; statutory element (a set of characteristics); very similar to legal description of criminal offence- objective element 3. unlawfulness - objective element 2. mens rea –subjective element (US)// culpability /guilt- subjective element

2. Elements of the criminal offence ELEMENTS OF THE CRIMINAL OFFENCE US 1. actus reus (commission, omission, possession)- objective element GERMANY CROATIA 1. conduct/act (action/commission or omission)-objective element omission) - objective element 2. mens rea –subjective element 2. essence of the criminal offence; statutory element (a set of characteristics); very similar to legal description of criminal offence- objective element 3. unlawfulness - objective element 4. culpability /guilt- subjective element 2. essence of the criminal offence; statutory element (a set of characteristics); very similar to legal description of criminal offence - objective element 3. unlawfulness - objective element 4. culpability /guilt- subjective element 5. punishability/ guiltiness 1 (objective elements) +2 1+2+3 (objective elements) +4 1+2+3 +5 (objective elements) (subjective element )= criminal +4 (subjective element )= offence criminal offence

2. 1. Actus reus/ conduct (action and omission) n there can be no criminal liability without culpable (or blameworthy) wrongdoing a) b) Action – willed bodily motion (p. 49. Fl) Omission –the absence of bodily motion – when it constitutes criminal offence? 1) you are walking down the sidewalk, biker comes and throw you on the road, the car comes and try to avoid you while you are lying on the road, and hits the store in which were four people of which one dies, two had sever body injuries and one person had no injuries n are you responsible? Instrument? What is missing?

2. 1. Actus reus/ conduct (action and omission) n No actus reus (MPC): n n (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnosis; (d) a bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual Some sorts of perpetration by means (denial of complicity)/ mittelbare Täterschaft 2) you are walking down the promenade and see somebody is drowning // (your mother )n OMF (Failure to Render Assistance art. 123. CPC-1 y) 3) doctor fails to aid stranger in need and causes death did you commit a criminal offence? ( Non-Provision of Emergency Medical Assistance Art. 183 CPC-3 y/ Violation of medical duties in connection with an abortion Section (Art. ) 218 c St. GB-1 Y) n In CCivil. LS- Causation // cause- (as energy or force that brings about a result? )/ (natural) event

2. 1. Actus reus/ conduct-omission n Problem of omission-criminal responsibility? only - duty to preform the omitted act is imposed by law (p. 48. Fl) Legal duties Common LS (p. 68. FL): a) b) c) d) Family relationships Undertaking to assist Communities of shared risk Professional obligations

2. 1. Actus reus/ conduct-omission Legal duties Common LS a) b) c) d) first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. (Jones v. United States, 308 F. 2 d 307, 310 (D. C. Cir. 1962))

2. 1. Actus reus/ conduct-omission n Legal duties Civil LS: 1. Statutory duty n 2. Relationship status n 3. Contractual duty n 4. Voluntary assumption of care for another n 5. Created the risk of harm n n Criminal Offences by omission in Croatian and German Criminal Code a) b) c) Failure to Render Assistance art. 123. CPC-1 y Non-Provision of Emergency Medical Assistance Art. 183 CPC-3 y Violation of medical duties in connection with an abortion Section (Art. ) 218 c St. GB-1 Y)

2. 1. Actus reus/ conduct-omission n n CCL- Jones v. U. S. (omission offences) 1962 n under duty to do so (guarantor-special duty to render aid)- family relationship, communities of shared risk, professional obligation etc. Casebriefs/Brief fact: Defendant Jones was found guilty of involuntary manslaughter of his friend’s 10 -month-old baby where he failed to provide for the child and such failure resulted in the child’s death. Facts/Summary: Defendant’s friend had a 10 -month-old illegitimate child who was placed with Defendant. The mother lived in the house with Defendant for some time, however the evidence was conflicting as to how long and as to whether or not Defendant was paid to take care of the child. Defendant failed to provide for the child and such failure resulted in the child’s death. Defendant was charged and convicted with involuntary manslaughter based on his failure to provide for the child. At trial, the court failed to charge the jury that it must find beyond a reasonable doubt that Defendant was under a legal duty to provide for the child. Defendant appeals. In CPC- Manslaughter (art. 112 CPC) and Negligent Homicide (art. 113 CPC) (Available at: https: //www. casebriefs. com/blog/law/criminal-law-keyed-to-kadish/defining-criminal-conduct-the-elements-of-just-punishment/jones-vunited-states/)

2. 1. Actus reus/ conduct-omission n A legal duty can be imposed by statue, by virtue of relationship to another, where one has assumed a contractual duty to care for another and where one has volunteered to care for another and in doing so secluded the person in manner that prevents others from rendering aid. Discussion. This case reflect the position taken by the Model Penal Code that liability for failure to act may only be imposed where the person who failed to act had a legal duty to perform such act. It also illustrates the difficulty of convicting a person of failure to protect a child where that person is not a child’s parent or guardian For more see: https: //casetext. com/case/jones-v-united-states-97 (20. 10. 2019. )

2. 2. Essence of the criminal offence/ elements constituting an offence n n n essence of the criminal offence/statutory element (St. GB)/elements constituting an offence (CPC) ; objective/subjective elements of the offence In civil law system -set of characteristics; a) conduct, b) perpetrator, c) causation (causational link); d) object, e) consequences very similar to legal description of criminal offence (criminal offence in Code) BUT not the same (it can be broader or narrower) In common law system- causation

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law n n common law – act must be the actual and legal (proximate) cause of the result MPC – „BUT-FOR” test (conditio sine qua non) + PROXIMATE cause „BUT-FOR” test: What would have happened if the suspect's actions were absent? BUT-FOR” test -suffers from three major deficiencies-Problem with: n 1) alternative sufficient causes; if Y would have occurred without X, then X is not a cause of Y (People v. Arzon -merging fires) n 2) proximate cause and intervening cause; n 3) liability for omissions (p. 63 -69, Fl)

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law 1. n n alternative sufficient causes; People v. Arzon (causation) 1978 Casebriefs/Brief fact: The Defendant, Arzon, was charged with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. Facts. The Defendant set fire to a couch on the fifth floor of an abandoned building. Firemen attempted to put out the blaze, but decided to give up when they saw they were having no effect. In retreating from the building, they encountered another fire on the second floor of the building and one of the fireman received fatal injuries from this blaze. The second fire was also determined to be caused by arson, but there was no evidence that it had been committed by Defendant. He was nonetheless charged with the fireman’s murder.

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law 1. n n n alternative sufficient causes; People v. Arzon (causation) 1978 Casebriefs/Brief fact: The Defendant, Arzon, was charged with the murder of a fireman who had received fatal injuries when, responding to an arson that Defendant committed, he encountered a separate arson fire in the same building. Synopsis of Rule of Law. An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions. Issue. Was Defendant criminally liable for the fireman’s death notwithstanding that the victim’s fatal injuries were received by an independent intervening cause not attributable to Defendant? No break of causal chain because Arzon should have foreseen the result Problem in question: 1) alternative sufficient causes

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation alternative sufficient causes; if Y would have occurred without X, then X is not a cause of Y Scenario a) The problem of merging fires. - „Suppose that both Joe and Karl set fires that converge and destroy the plaintiff's house. Either fire alone would have been sufficient to destroy the house. Therefore both Joe and Karl can point the finger at the other and say: He was the cause; I was not the cause because the harm to the plaintiff's house would have happened even without my fire. n This is a serious challenge to the "but for" test for in fact if that test is applied, neither Joe nor Karl is responsible for the damage to the plaintiff's house. …Together they generate a single fire that in fact destroys the house”. -YES both responsible- parallel perpetrators 1.

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation alternative (independent) sufficient causes; if Y would have occurred without X, then X is not a cause of Y Scenario b) „Joe wants to kill Paul and therefore on the eve of Paul's setting forth on a hike across the desert, Joe sneaks into Paul's room and replaces the water in his canteen with scentless and colorless poison. Karl also wants to kill Paul and therefore later the same evening he sneaks into Paul's room and drills a small hole in the bottom of Paul's canteen. Paul leaves the next morning without noticing the hole in his canteen. After two hours in the desert he decides that it is time to drink but by now the canteen is empty. Without other sources of water he dies of dehydration in the desert. Who is responsible for the death? Karl can claim that if he had not drilled the hole in the canteen, Paul would have died of poison. But Joe can maintain that in view of Karl's subsequent action, replacing the water with poison was an irrelevant act”. –Karl responsible; Joe attempted murder 1. n These scenarios illustrate the limitations of counterfactual thinking in assessing causation. In these cases, where there alternative sufficient conditions, the question should be not what would have happened, but what in fact did happen. (p. 63, 64 Fl)

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law n n Brackett v. Peters: n The Facts: Defendant B. , a prisoner in state prison was convicted of felony murder. At the time of the crime, defendant B. was 21 and had raped and severely beaten an 85 year old widow, who he had previously done yard work for. Her hospital records show a broken arm, a broken rib, and extensive bruising. While at the hospital, defendant P. became depressed and refused to eat or be fed and became progressively weaker. Her physical injuries were healing when she was transferred to a nursing home, but her mental status deteriorated as she continued her resistance to food. “Her doctor ordered a nasal gastric feeding tube for her but the tube could not be inserted, in part because facial injuries inflicted by Bracket made insertion of the tube too painful. ” Defendant died ten days after admission to the nursing home while a nurse was feeding her through a syringe. The autopsy revealed that she died from a large amount of food being stuck in her trachea, from which she asphyxiated. n The Issue: Whether a defendant’s asphyxiation after being fed through a syringe constitutes sufficient causation of death after a beating and rape, such that defendant can be convicted of felony murder. n Rule: „. . an act is a cause of an event if 2 conditions are satisfied: n (1) the event would not have occurred without the act (but-for doctrine); n (2) the act made the event more likely https: //casetext. com/case/brackett-v-peters (28. 10. 2019. )

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. n n n proximate cause and intervening cause Scenario a) „Defense lawyers often try to mount the argument that their clients seemingly fatal blow to the victim did not cause the victim's death because after being shot or stabbed, the victim received negligent medical care. The defense tried this argument in the trial of Bernhard Goetz: Darrell Cabey was supposedly paralyzed for life not because of the gunshot wound that Goetz delivered to Cabey but because of the subsequent negligent care in the hospital. The same argument came forward in the trial of Lemrick Nelson for having allegedly stabbed and killed Yankel Rosenbaum was taken to the hospital and as the argument goes, if he had received proper care for his wounds he would have survived. There the negligent medical care is like the intersecting tributary that overwhelms and dominates the original causal stream (of proximate cause)”. (p. 65 Fl)- intervening cause- YES they were held responsible (if circumstance is made by negligent doing first actors (which acted with intent) are responsible// Intent/ negligent)- Common Law- first responsible for all/ Civil law first attempted murder/ Unconscientious Medical Treatment (Art 181 CPC)

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation proximate cause and intervening cause; Scenario b) „Suppose Jack negligently runs down the mob boss Gabe. While Gabe is recuperating in the hospital, his nemesis in the criminal underground, Mike, finds him in the room and executes him, mob style, with a rope around the neck. In this situation the party responsible for Gabe's death appears to be Mike, not Jack's negligence merely explains why Mike finds his victim in the hospital rather than at home. n in other words, Mike's actions emerge in the foreground as the responsible cause and Jack's bringing about the car accident recedes into the background. There is good authority for the conclusion that Jack would not be liable for Gabe's death. n now what is the difference between medical negligence in treating Darrell Cabey and Mike's executing Gabe? n is it a matter of probability? n or of foreseeability, as lawyers say? 2.

2. 2. Essence of the criminal offence/ elements constituting an offence- actus reus in Common Law- causation 2. n n n proximate cause and intervening cause; different standpoints some prominent judges, notably Justice Benjamin Cardozo, have reasoned that analyzing proximate cause is nothing more than assessing "the eye of vigilance" and the degree of foreseeability this seems to be an oversimplification the perspective of probability ignores the key factor in the situation, namely, that the wound injuring Darrell Cabey in the hospital was merely negligence the mode of Mike's killing Gabe was intentional and willful it could well be the case that the intentional killing of a mob boss in the hospital was more probable, more foreseeable, than the hospital staff's negligent treatment after a gunshot wound”. (p. 65 Fl) – break of causal link/chain -intervening cause (negligent/intent)

2. 3. Unlawfulness n essence of the criminal offence indicates the unlawfulness negative form- negative way lack of justifications (self-defense, necessity, consent) 1) you are walking down the sidewalk, biker comes and throw you on the n Responsibility of the driver? n n n road, the car comes and try to avoid you while you are lying on the road, and hits and destroy the store, but no one is hurt

2. 4. Mens rea/ culpability (guilt)- US n n n n Model Penal Code: 1. Purposely - he is aware & wants the conduct/result and is aware of the attendant circumstances 2. Knowingly – he is aware of the conduct, result and the attendant circumstances 3. Recklessly – he consciously disregards the risk + a gross deviation from the lawabiding standard of conduct 4. Negligently – should be aware of the risk + a gross deviation from the reasonable person standard of conduct Common law: 1. general intent (rape, battery) – it refers to the act, which presumes a general intent it’s important to determine: n n (a) whether the defendant had a reasonable mistake, and (b) whether defendant’s belief is honest. 2. specific intent (1 st degree murder, robbery, larceny, attempt, conspiracy) – he wants specific result, no presumption; knowledge of the specific result is sufficient Strict liability – mainly used for public welfare offences

2. 4. Mens rea/ culpability (guilt) Civil LS n n n Dolus (intention/intent- direct// indirect) -douls directus// dolus eventualis Culpa (negligence- thoughtlessness, carelessness) Excuses (insanity, involuntary intoxication, duress, personal necessity; mistakes (avoidable / unavoidable)– n n mistakes of law; reasonable mistake about the factual basis of justification, reasonable failure to perceive the running of a substantial and unjustified risk)// Croatia – mistakes and exceeding the limits of self-defense because of strong scare etc. „an excuse does nor challenge the wrongfulness or unlawfulness of the conduct, but merely denies the personal accountability of the actor for the wrongful act„; - Read more: Excuse: Theory - The Range Of Excuses - Law, Duress, Actor, and Personal - Read more: Excuse: Theory - The Range Of Excuses - Law, Duress, Actor, and Personal - JRank Articles (26. 10. 2016. ) JRank Articles http: //law. jrank. org/pages/1112/Excuse-Theory-range-excuses. html#ixzz 4 OHHQg. DPS (26. 10. 2016. )

2. 4. Mens rea/ culpability (guilt) Civil LS n n Elements of Guilt „A perpetrator who at the time of commission of the criminal offence was of sound mind, acted with intent or by negligence, was conscious or ought to and could have been conscious of the fact that his/her act was prohibited, provided there is no excusable reason, shall be guilty of a criminal offence (Art. 23 CPC) Intent (Art. 28 CPC) n „ 1) A criminal offence may be committed with direct (dolus directus) or indirect intent (dolus eventualis). n n (2) A perpetrator is acting with direct intent when he/she is aware of the elements of a criminal offence and wants or is certain of their realisation. 3) A perpetrator is acting with indirect intent when he/she is aware that he/she is capable of realising the elements of a criminal offence and agrees to this. Negligence (Art. 29 CPC) n n n „ 1) A criminal offence may be committed by „reckless” („conscious” negligence) conduct or by „unconscious” negligence. 2) A perpetrator is acting „recklessly” when he/she is aware that he/she can realise the elements of a criminal offence but foolishly believes that this will not occur or that he/she will be able to prevent this from occurring. ” – (thoughtlessness) „ 3) A perpetrator is acting with unconscious negligence when he/she is not aware that he/she can realise the elements of a criminal offence, although under the circumstances he/she ought to and, by reason of his/her personal characteristics, could have been aware of this possibility. ” - (carelessness)

2. 4. Liability for criminal negligence n n „Justification” for liability for negligence Four prerequisites for liability for criminal negligence (p. 263. Kelvin. . ) a) b) c) d) The actor can foresee the risk The actor violates aa duty of care with respect to the protected interest Harm, as defined by the statute occurs The offender could have avoided the harm by careful conduct

2. 4. 1. Excuses –Common Law-US a) Excuses-exclude or affect (diminish) guilt Duress (excuse) n Common law elements: n (1) a “threat of imminent death or serious bodily injury” led the defendant to commit the crime, n (2) the defendant had no reasonable, legal alternative to breaking the law, and n (3) the defendant was not responsible for creating the threat. n n duress applies to crimes other than murder

2. 4. 1. Excuses –Common Law-US a) Model Penal Code: n actor was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, n if a person of reasonable firmness in actor’s situation would have not been able to resist. Insanity (excuse) – 4 tests: n 1. Durham (product) test - he is not responsible if his act is the product of mental desease or a mental defect n 2. M’Naghten (cognitive) test – requires such a defect of reason from disease of the mind that he did not know: a) the nature and quality of the act he was committing; or b) what he was doing was wrong. n 3. irresistible impulse test – the defendant could not control his act n 4. MPC (cognitive-voluntaristic concept): no responsibility if, as a result of mental disease or defect, he lacks substantial capacity to: a) appreciate the criminality [wrongfulness] of his conduct, or b) conform his conduct to the requirements of law Battered woman syndrome/ Cultural defense /Rotten social background (New defenses) n n

2. 4. 1. Excuses –Civil Law System- Germany and Croatia 1. 2. 3. 4. 5. Mistakes Insanity/Mental Incompetence Excessive self-defense Duress/ Necessity as a reason for excluding guilt (Art. 22 § 2 CPC)

2. 4. 1. EXCUSES- GERMANY Mistake of fact (Art. 16 St. GB) “(1) Whosoever at the time of the commission of the offence is unaware of a fact which is a statutory element of the offence shall be deemed to lack intention. Any liability for negligence remains unaffected. (2) Whosoever at the time of commission of the offence mistakenly assumes the existence of facts which would satisfy the elements of a more lenient provision, may only be punished for the intentional commission of the offence under the more lenient provision”. Mistake of law (Art. 17 St. GB “If at the time of the commission of the offence the offender lacks the awareness that he is acting unlawfully, he shall be deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the sentence may be mitigated pursuant to section 49(1). ” “ 2) If at the time of the commission of the act a person mistakenly assumes that circumstances exist which would excuse him under subsection (1) above, he will only be liable if the mistake was avoidable. The sentence shall be mitigated pursuant to section 49(1). ” “A person who exceeds the limits of self-defense out of confusion, fear or terror shall not be held criminally liable “ “Any person who at the time of the commission of the offence is incapable of appreciating the unlawfulness of their actions or of acting in accordance with any such appreciation due to a pathological mental disorder, a profound consciousness disorder, debility or any other serious mental abnormality, shall be deemed to act without guilt”. “A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to do so; the sentence may be mitigated pursuant to section 49(1) unless the offender was required to accept the danger because of a special legal obligation to do so”. Mistake of duress (Art. 35 § 2 St. GB) Excessive self-defense (Art. 33 St. GB) Insanity (Art. 20 St. GB) Duress (Art. 35 § 1 St. GB)

2. 4. 1. EXCUSES-CROATIA Mistake of fact / of essence of the criminal “ 1) Whoever at the time of commission of an offence is not aware of one of its statutory elements is not acting with intent. offence (of statutory element of the offence 2) If the mistake referred to in paragraph 1 was avoidable, the perpetrator shall be punished for negligence where the law // mistake as to the elements constituting also prescribes punishment for the commission of an offence by negligence”. an offence; Art. 30 CPC) Mistakes of law/ Mistake as to Unlawfulness “ 1) A perpetrator who at the time of commission of an offence did not know that his/her act is unlawful and was neither (Art. 32 CPC); required to know nor could have known this, shall not be guilty. 2) If the mistake referred to in paragraph 1 of this Article was avoidable, the perpetrator may be punished less severely”. Mistake about the factual basis of “ 1) Who at the time of commission of an offence mistakenly believed that there existed circumstances under which the justification/ mistake of fact justifying an offence would have been allowed, shall not be punished for intentionally committing the offence 2) If the mistake referred to in paragraph 1 of this Article was avoidable, the perpetrator shall be punished according to the (self – defense and necessity; Art. 31 CPC); rules on negligence where the law for the committed offence also prescribes punishment for negligence”. “ 3) If the perpetrator was under an avoidable delusion about the circumstances referred to in paragraph 2 of this Article Mistake about the necessity as the reason which exclude guilt, he/she shall be punished according to the rules on negligence where the law prescribes punishment for excluding guilt (Art. 22 § 3 CPC) the commission of an offence by negligence”. Insanity/ Mental Incompetence (Art. 24 1) A mentally incompetent person is not guilty and cannot be imposed punishment. CPC) 2) A mentally incompetent person is a person who at the time of commission of an unlawful act was incompetent of comprehending the meaning of his/her actions or of exercising control over his/her will due to mental illness, temporary mental disorder, insufficient mental development or some other graver mental disorder. Excessive self-defense (necessary defense) “ 4) Whoever exceeds the limits of self-defence shall not be guilty if he/she has done so by reason of excusable great fear (Art. 21 § 4 CPC)- exceeding the limits of caused by the attack”. self-defense because of strong scare “ 2) Whoever commits an unlawful act in order to avert from himself/herself or from another a coinciding danger not Necessity as a reason for excluding guilt brought on by himself/herself, which danger could not have been averted in any other way, provided that the resulting harm (Art. 22 § 2 CPC) - Duress was not disproportionately greater than the harm threatened and that he/she was not required to expose himself/herself to the danger, shall not be guilty. If such a person was required to expose himself/herself to the danger, he/she may be punished less severely”.

2. 4. 1. EXCLUSION (NEGATION) OF CULPABILITY/mens rea- EXCUSES (DEFENSES) US GERMANY Mistakes: a) Reasonable mistake about the factual basis of justification; b) Mistakes of law; c) Reasonable failure to perceive the running of a substantial and unjustified risk 1. Mistakes about Factual Elements of the Definition (fact) 2. Mistakes about Legal Aspects of the Definition (law) 3. Mistakes about Factual Elements of Justification (fact) 4. Mistakes about Norms of Justification (law) 5. Mistakes about Factual Elements of Excuses (fact) 6. Mistakes about Excusing Norms (law) Mistakes: a) mistake of fact (Art. 16 St. GB) a) Mistake as to Elements Constituting an Offence (of b) mistake of law (Art. 17 St. GB) statutory element of the offence; (of fact ) Art. 30 CPC) c) mistake of duress (Art. 35 § 2 St. GB) b) Mistakes as to Unlawfulness (Art. 32 CPC); (mistake of law) c) Mistake of Fact Justifying an Offence (self – defense and necessity; Art. 31 CPC); d) Mistake about the Necessity as the Reason for Excluding Guilt (Art. 22 § 3 CPC) Insanity (Art. 20 St. GB) Insanity/Mental Incompetence (Art. 24 CPC) Involuntary intoxication Excessive self-defense (Art. 33 St. GB) Excessive self-defense (necessary defense) (Art. 21 § 4 CPC)- exceeding the limits of self-defense because of strong scare Duress (force- vis apsoluta/vis compulsiva and threat) Duress (Art. 35 § 1 St. GB) Necessity as a reason for excluding guilt (Art. 22 § 2 CPC) - Duress Personal necessity CROATIA

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