What is it like to date a psychopath


98 IV 153

29.Excerpt from the judgment of the Court of Cassation of June 30, 1972 i.S. Public prosecutor for the Upper Valais against Scheuber.


Art. 11 CP.

1. Pouvoir d'examen de la Cour de cassation (consid. 3).

2. Quand une psychopathie constitue-t-elle un trouble de la sant mental au sens de la disposition pr cit e (consid. 3 a)?

3. Port e juridique de l' tat passionnel (consid. 3 b).

Consid rants partir de page 153

From the considerations:

The public prosecutor also challenges the judgment of the cantonal court to the extent that it grants the respondent a slight reduction in the legal capacity of the murder in accordance with Article 11 of the Criminal Code.

In the context of Art. 11, the Court of Cassation does not have to examine in the event of a nullity complaint whether the facts determined by the cantonal judge have a sufficient basis in the files, but only has to decide whether the facts ascertained are legally correct In the present case, it was examined whether the biological-psychological state in which the respondent committed the murder in the opinion of the cantonal court shows the legal characteristics of reduced mental health (BGE 81 IV 8).

a) First of all, the appellant denies that the psychopathy found in Scheuber's case caused mental health impairment, as the lower court on the basis of

BGE 98 IV 153 p. 154

of the Dr. Zolliker from the M nsterlingen Psychiatric Clinic. He objects that psychopathies consist of abnormal predispositions of the instinctual structure, temperament or character and should therefore primarily be treated as character or moral defects. The perpetrator is responsible for his bad character. Most felons are psychopaths, but many of them are completely sane. This is especially true of weak-willed, assertive and hysterical psychopaths. The situation is usually different with the pseudologists, to whom the respondent obviously belongs. However, his pseudological disposition had no effect on the murder.
Insofar as the complainant puts the pseudological personality trait of the respondent in the foreground and only takes his psychopathy into account in this form, he inadmissibly ignores the finding of the lower court based on the above-mentioned opinion according to which Scheuber is a severe schizoid-hysterical psychopath. This is not a legal assessment, but the determination of an internal factual situation, i.e. a question of fact. All that remains to be checked is whether the previous instance in this psychopathy rightly saw a damage to Scheuber's mental health within the meaning of Article 11 of the Criminal Code. It can be assumed that psychopathy in the language of psychiatrists means nothing else than a personality disposition that deviates from the average and that therefore not every such disposition reaches the abnormal in the legal sense (DUKOR, Die Zurechnungsfuhigkeit der Psychopathen, ZStR 1951, p. 423/424; Derselbe, Die kriminellen Psychopathen. Referat Kriminalistisches Institut des Kantons Z├╝rich, winter semester 1966/67, pp. 9 and 30 ff.). Accordingly, the Court of Cassation has decided that badness and unscrupulousness may make a person appear in the eyes of the psychiatrist as a psychopath, as a weak-willed, poor-minded (morally defective) person, but that they do not impair mental health in the sense of the word of Art. 11 StGB (BGE 77 IV 215/216). In addition to the banal types of criminal psychopaths who make up the majority of lawbreakers and who are regularly fully sane, there are psychopaths who

BGE 98 IV 153 p. 155

whose state of mind deviates so strongly from the average not only of legal but also of fellow criminals in terms of type and degree that their carriers appear to be irresponsible (DUKOR, ZStR 1951, p. 428 below and report p. 31/32).

According to the expert report by Dr. Zollikers was allowed to assume that the personal disposition of the respondent deviated from the norm to such an extent that one could speak of impaired mental health. The expert not only found Scheuber to have a hysterical psychopathy of a banal character, but also referred to him as a severe schizoid-hysterical psychopath, thereby expressing that the accused, from a psychobiological point of view, falls into the realm of abnormality to a high degree. If one assumes this appreciation, which was taken over by the cantonal court and therefore binds the court of cassation, then the high degree of abnormality that is required according to Art. 11 StGB to assume impaired mental health can be considered to have been achieved st.

b) The public prosecutor further asserts that the expert made his finding, according to which Scheuber was impaired in his mental health because of the psychopathy, with the proviso that the murder was an affective crime. However, there is no such thing.

Insofar as the public prosecutor denies that Scheuber committed the murder in emotion, he cannot be heard. The contrary statement by the cantonal court, according to which the murder of Julia Imboden was an affect crime, is of a factual and not of a legal nature. Because unlike, for example, Art. 33 Para. 2, 64 Para. 4 or 113 StGB, the intense and violent emotion that is used to describe affect is formed here (WALDER, The Affect and its Treatment in Swiss Criminal Law , ZStR 1965, p. 28), not part of the legal facts, but of the internal facts that are subject to legal appreciation.

On the other hand, it is rightly pointed out in the complaint that the expert assumed in the reasoning for his report that Scheuber's mental health was impaired, with the reservation that it was himself

BGE 98 IV 153 p. 156

the murder was an act of affect. However, the cantonal court did not accept this reservation in its decision - and only the findings contained therein are relevant. Rather, the lower court focused on the summary of the investigation results in which Dr. Zolliker explained: "On the other hand, we believe that Scheuber must be regarded as a severe schizoid-hysterical psychopath who is impaired in his mental health within the meaning of the law and is therefore considered to be slightly reduced for an affect crime Must apply. " According to this determination, which is the only decisive factor for the Court of Cassation, the affect is not a prerequisite for the impairment of Scheuber's mental health, but an additional factor, so that the lower court judgment is valid before Article 11 of the Criminal Code.