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1

Glosa do wyroku Sądu Najwyższego, sygn. akt V CSK 709/15

100%

Lisowska A.

Acta Universitatis Lodziensis. Folia Iuridica

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2018

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vol. 83

117-128

EN

This article was a commentary on the judgments of the Regional Court and Court of Appeal, issued in the case of marriage annulment brought by M. Z. against J. Z., where the defendant had suffered from paranoid schizophrenia and hid this fact from her future husband. The publication contained arguments questioning the validity of the decision issued by Court of First Instance. In addition, the article set forth premises approving of the ruling of Court of Second Instance.

PL

Niniejsza glosa stanowi komentarz do orzeczeń Sądu Okręgowego i Apelacyjnego wydanych w sprawie o unieważnienie związku małżeńskiego z powództwa M. Z. przeciwko J. Z., w wyniku zawarcia go z pozwaną chorą na schizofrenię paranoidalną, która ukryła ten fakt przed przyszłym mężem. Przytoczono argumenty podające w wątpliwość słuszność rozstrzygnięcia wydanego przez Sąd I Instancji oraz zaprezentowano przesłanki potwierdzające trafność orzeczenia Sądu II Instancji.

2

IS THE BAN ON ENTERING INTO MARRIAGE FOR PEOPLE WITH MENTAL DISORDERS AND IMPAIRED MENTAL CAPACITY NECESSARY TO ENSURE ADEQUATE PROTECTION FOR MARRIAGE AND THE FAMILY?

71%

Borski M.

Roczniki Administracji i Prawa

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2020

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vol. 1

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issue XX

59-73

PL

Zakaz zawierania małżeństw przez osoby cierpiące na poważne zaburzenia psychiczne lub dotknięte obniżeniem sprawności umysłowej jest obecny w polskim ustawodawstwie rodzinnym od wielu lat. Pojawia się związku z tym pytanie, czy powody, jakimi kierował się ustawodawca, wprowadzając go kilkadziesiąt lat temu do systemu prawnego, nadal zachowują swoją aktualność. Autor stara się udzielić odpowiedzi na to pytanie, wskazując jednocześnie argumenty przemawiające za rewizją istniejącego stanu prawnego. Są to argumenty podnoszone nie tylko na gruncie nauk prawnych, ale także nauk medycznych, w tym psychiatrii.

EN

The ban on marriages by persons suffering from serious mental disorders or affected by impaired mental capacity has been present in the Polish family legislation for many years. Therefore, there is a question whether the reasons followed by the legislator introducing it several dozen years ago into the legal system remain valid. The author tries to answer this question, at the same time indicating arguments in favour of reviewing the existing legal status. These are arguments raised not only in legal sciences, but also in medical sciences including psychiatry.

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Orzecznictwo sądowo-psychiatryczne w świetle 4200 ekspertyz szpitalnych

51%

Uszkiewiczowa L.

Archiwum Kryminologii

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1960

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issue I

297-359

EN

The present contribution discusses the results of 4200 forensic-psychiatric reports given, in the years 1953 to 1957, by twenty-one mental hospitals and the Department of Forensic Psychiatry of the Psychoneurological Institute, where copies of such reports, given by all the major mental hospitals in Poland, are collected. The present contribution does not take into consideration 300 reports in which no symptoms of a disease have been found with the subjects investigated, nor yet any mentally abnormal states, as well as 460 reports concerning reactive psychoses and 80 cases of simulation which arose only after the arrest of the investigated. (Cases of reactive psychoses and simulation will be dealt with separately, because of the altogether peculiar problems involved). Even though the leaving out of the account of the psychiatric examinations carried out in the Public Prosecutors’ Offices and the Courts of Law does not allow us to draw conclusions with regard to all those offenders suffering from mental disorders who have been submitted to examination, nevertheless, the large number of hospital reports available would seem to constitute valuable psychopathological and criminological material. 1. In investigating the cases sent by the Public Prosecutors’ Offices and the Courts to mental hospitals for psychiatric observation, we find, on the basis of available material, that the percentage of psychoses – setting aside reactive psychoses – is small, as it does not exceed 22 per cent. Three items: psychopathy, mental deficiency (most frequently a light feeble-mindedness or moronity) and alcoholism jointly account for a total of 50.8 per cent of the cases, and if, over and above that, we take into consideration post-traumatic mental disorders, epilepsy, post-encephalitic disorders and such like cases, it will appear that as many as over three-fourths of the reports given concern non-psychotic states. Psychopathy accounts for 27.4 per cent of the cases, alcoholism and mental deficiency for 15.8 per cent each, post-traumatic disorders for 5.9 per cent, epilepsy for 4.7 per cent, and post-encephalitic disorders for 1.5 per cent. In the material under investigation cases of psychopathy amount, in reality, to more than 27.4 per cent, since cases of reactive psychoses and simulation, in which psychopaths figure extremely often, have been left out of the account. Similarly, there are probably more post-encephalitic states, which, having failed to be properly diagnosed, figure in cases which come under other heads, because of the lack of reliable interviews and the negative result of the neurological examination (in particular, in the mental deficiency and psychopathy groups). Cases of alcoholism, too, are less numerously represented in the material under investigation than would seem to result from the diagnoses contained in the reports. There can subsist no doubt that, apart from cases where the diagnosis reads ,,chronic (or else habitual) alcoholism", we also meet with alcoholism with a great many of such of the investigated with whom other pathological states have been diagnosed, and where alcoholism merely constitutes an additional factor, as a complication of other mental disorders. Altogether, the percentage of alcohol addicts amounts to at least 28. Among psychoses, schizophrenia is the one most numerously represented (510 cases). Only 29 delinquents suffered from manic-depressive psychosis, 62 from general paralysis, 30 – from involutional psychosis, 28 - from senile dementia. There were 19 cases of delusional psychosis, and 14 cases of paranoia. The number of cases with cerebral arteriosclerosis was 49, and that of cases of cerebral syphilis - only 20. In 44 cases it was a matter of twilight states with non-epileptics; here belong 30 cases of pathological drunkenness, 7 cases of pathological affect, 3 cases of ,,short-circuiting" (the so-called „Kurzschlusshandlungen” in German), and 4 cases of twilight states with an obscure etiology. 87.1 per cent of the reports concern men, 12.9 per cent - women. For every 100 men investigated there were only 14.9 women, while in the 1955 judicial statistics there were as many as 30 convicted women to every 100 convicted men. Cases of psychopathy, mental deficiency and schizophrenia constitute 61.3 per cent of the total of reports concerning women, while with men the above three items only amounted to 63.8 per cent after cases of alcoholism were added to them. Women are relatively most numerously represented in involutional disorders and manic-depressive psychosis. 2. When we examine the data concerning delinquency, it is obvious that it is the perpetrators of manslaughter, sexual offences and arson that are particularly numerously represented in the judicial psychiatric material. The most common offences against property, which constitute 33 per cent of the total number of offences in the material under investigation, reach the highest percentages in those cases which are not psychoses. On the other hand, among the offences perpetrated by persons suffering from psychoses there are relatively more offences against life and health, and, in particular, of manslaughter. Manslaughter amounts to 14 per cent of the offences committed by the persons investigated suffering from involutional psychosis, to 12.2 per cent of those committed by sufferers from schizophrenia, to 11.1 per cent of those committed by sufferers from paranoia, to 10 per cent, with sufferers from senile dementia, while with psychopaths the figure is only 5.7 and with oligophrenics - 4.7. Altogether, there were 288 cases of manslaughter or murder in the material investigated, and of these 77.4 per cent were divided between cases of psychopathy (67 cases), schizophrenia (67 cases), alcoholism (51 cases), and mental deficiency (28 cases). Among the 179 cases of sexual offences the bulk were cases of misconduct with persons under 15 years of age (93 cases), there were 43 cases of rape, 21 cases of incest, 12 cases of exhibitionist acts. Nearly 70 per cent of the sexual offences have been committed by psychopaths (55), oligophrenics (41) and alcohol addicts (28). On the other hand, the relatively highest percentage of such offences is to be met with those suffering from senile dementia, cerebral arteriosclerosis, and with mental deficiency. As far as arson is concerned, which in the material under investigation amounted to 3.3 per cent of the total number of offences, percentages higher than average ones are to be met with in cases of involutional psychosis, senile dementia, schizophrenia and mental deficiency. Out of a total number of 146 cases of arson, 53.4 per cent were accounted for by schizophrenia (40) and mental deficiency (38). With psychopaths and alcoholics comprised by the material under investigation cases of arson are extremely rare. Examining the delinquency of 158 epileptics, we establish that both the percentage of manslaughter and the number of cases of arson are small. What is worth while noting beside that is the fact that only in 24 cases the offence was perpetrated in a twilight state. The data concerning the delinquency of 510 schizophrenics bear witness to the fact that it was only a mere 8 per cent of the investigated that committed the offence during the first year of their illness, while the majority of cases the latter has been going on for above three years. When we analyze the 67 cases of manslaughter we find that it was only in two cases that the manslaughter was committed in the initial stage of the disease and constituted, as it were, the first visible sign of the schizophrenic process. In delusional psychoses cases of manslaughter were frequent, differently from cases of paranoia. In the few (29) cases of manic-depressive psychosis only one offence was committed in the depressive phase, white all the others were committed in the maniac phase or else in the hypomanic state. Deserving our attention is the lack of any more serious offences against life and health in this group. In the 30 cases of involutional psychosis more than one half of the offences consisted of those against life and health. Among the offences committed by the 49 persons with symptoms of cerebral arteriosclerosis, one-third consisted of offences of a serious character, while with the 25 patients suffering from senile dementia as many as one-half of the offences belonged to the category of serious offences. The delinquency of the 62 sufferers from general paralysis is almost exclusively reduced to offences of small importance of similar character as were the offences committed by the 20 sufferers from cerebral syphilis. In the 44 cases of twilight states (pathological drunkenness, pathological affect, and others) still 50 per cent of the offences consist of offences against life and health; 18 people fell victim to manslaughter. 3. The Polish Criminal Code, in force since 1932, contains provisions concerning, both in cases with mentally abnormal states, a state of irresponsibility and of diminished responsibility. A state of irresponsibility occurs when, at the time of committing the offence, the accused did not understand the significance of the deed he was perpetrating, or else was unable to direct his conduct because of psychosis, mental deficiency or other psychical disorders. A diminished responsibility occurs when, because of one of the reasons mentioned above, the ability of the accused to grasp the significance of the offence committed by him, and to direct his conduct was considerably limited. With regard to such and offender the Court may apply an extraordinarily mitigated penalty, while with regard to an offender who has been declared irresponsible, of course, no penalty at all may be applied. The offenders declared irresponsible are, by virtue of the Court's decision, transferred to a general mental hospital, if their staying at large could be dangerous for the legal order. They cannot be released from the hospital by the Court earlier than after the lapse of one year. An offender with regard to whom a diminished responsibility has been decreed and who is dangerous to the legal order may also be placed in a mental hospital (he, too, can be released from there by the Court not earlier than after the lapse of one year at the least). If the Court has sentenced such an offender to serve a term of imprisonment, the question of whether or not the penalty decreed is to be served is decided by the Court after the offender's release from the mental hospital. In cases of psychosis, forensic psychiatrists always decree irresponsibility. In cases of mental deficiency their decree depends on the degree of such deficiency, while in the cases, most frequent in judicial practice, of mild subnormality (morons, debils) – also on the, category of the offence which has been committed. Psychopaths are, in principle, considered to be fully responsible. Altogether, out of a total of 3900 delinquents examined 24.7 per cent of the cases have been pronounced by experts to be irresponsible, 23.1 per cent of the cases – to have a diminished responsibility, while 50.7 per cent of the offenders have been declared to be fully responsible. 4. As far as experts' opinions are concerned with regard to the application of internment in mental hospitals of offenders pronounced to be dangerous for the legal order, as well as irresponsible, out of a total number of 946 offenders declared irresponsible, a mere 34 per cent have been pronounced to be dangerous. Moreover, in 31 per cent of the cases, experts have pronounced for the necessity of hospital treatment under ordinary circumstances. Finally, 35 per cent of the offenders pronounced to be irresponsible have been described as not standing in need of any hospital treatment. A diminished responsibility has been decreed by the experts in a total of 855 cases, but only 6.4 per cent of the latter number have been pronounced to be dangerous to the legal order and to stand in need of internment in a mental hospital. Apart from the above, only in 10 per cent of the cases, experts have pronounced in favor of the need for hospital treatment. In the remaining 83.5 per cent of the cases the experts have confined themselves to stating that the responsibility of the offenders in question was diminished which, in result, comes merely to a possibility of an extraordinary mitigation of the penalty being decreed by the law-court. It is evident from the analysis of the judicial sentences which we have just carried out that experts a[ too unfrequently declare in favor of the need of applying security measures. The result is an irrational punitive policy with regard to such offenders who ought to be approached first and foremost, from a psychiatric point of view. The Criminal Code provisions concerning security measures are obsolete and demand essential alterations, which can only be done by means of codification. Quite independently of the need for extending the network of ordinary mental hospitals, there also exists a necessity of creating a special type of establishments, of a psychiatric-cum-penitentiary character, for a certain category of offenders who exhibit abnormal mental peculiarities and tendencies to recidivism. Equally needed is the establishing of treatment homes for offenders who are alcohol addicts. As it ensues clearly from experiments made in various countries, the application of ordinary penalties to delinquents who require a special treatment from a psychiatric point of view is altogether inefficacious.

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1 Acta Universitatis Lodziensis. Folia Iuridica

1 Archiwum Kryminologii

1 Roczniki Administracji i Prawa

1 Borski M.

1 Lisowska A.

1 Uszkiewiczowa L.

1 2020

1 2018

1 1960

Glosa do wyroku Sądu Najwyższego, sygn. akt V CSK 709/15

IS THE BAN ON ENTERING INTO MARRIAGE FOR PEOPLE WITH MENTAL DISORDERS AND IMPAIRED MENTAL CAPACITY NECESSARY TO ENSURE ADEQUATE PROTECTION FOR MARRIAGE AND THE FAMILY?

Orzecznictwo sądowo-psychiatryczne w świetle 4200 ekspertyz szpitalnych