the dogmatic structure of criminal liability in the general part of the draft israeli penal code - a...

Citation: 30 Isr. L. Rev. 60 1996

Content downloaded/printed from HeinOnline (http://heinonline.org)Wed Mar 12 16:37:02 2014

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0021-2237

THE DOGMATIC STRUCTURE OF CRIMINAL LIABILITY INTHE GENERAL PART OF THE DRAFT ISRAELI PENAL CODE -

A COMPARISON WITH GERMAN LAW

Claus Roxin*

I. Introduction

Initially I was taken aback at the request that I express my viewson the most important aspects of the general part of the draft Israelipenal code, because the draft contains Anglo-American legal concepts,such as "strict liability" and "mens rea', which are unknown in Conti-nental-European criminal law. At second glance, however, somethingquite different came to my attention; namely, that the contents of thedraft reflect, to a large extent, the European legal tradition even thoughthe terminology is in part quite different, and even though the draft onlypartly corresponds to the present dogmatic structures of the Europeanlegal system. Some of the passages almost sound like summaries of amiddle-European textbook on criminal law. At the outset I want to offermy opinion on the draft: it is a good draft, up to the level of internationaldiscussion. It even sets out important parts of the general principles ofliability much more precisely than does the German Criminal Code.Many of the draft's solutions are, of course, open to debate, but preciselyfor that reason we are assembled here.

Unfortunately I must admit that I am hampered in my ability to forman opinion on the draft by having only the bare English text at mydisposal. There is neither a translation nor explanations for the differ-ent formulations. Furthermore, I have intimate knowledge of neitherthe dogmatics of contemporary Israeli criminal law nor of the case law.Because I do not have these aids to help me understand the draft, thereis always the possibility that I may understand and interpret theprovisions incorrectly, as the intrinsic meaning of legal concepts can

* Professor of Law, Ludwig-Maximilians-Universitait, Munich.

Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 61

only be understood against the background of the legal tradition, juris-prudence and practice of a specific country.

This colloquium should, therefore, be seen as only the starting pointfor a debate on this matter. We can expound our views, but at the sametime we must try to penetrate deeper into the spirit of Israeli criminallaw so as to understand fully the ideas that underlie each paragraph ofthe draft. We might find that we have reached this goal at the end ofthe colloquium, and then we can continue with our exchange of ideas.

II. Rules-of Evidence, Strict Liability

The draft code deviates most noticeably from the German CriminalCode in that the provisions relating to the substantive law are nottreated separately from the rules of evidence. So, for example, section20(c) provides that a person is deemed to be aware of the existence ofcertain circumstances "if he suspects the possibility of their existenceand refrains from clarifying the matter". According to German law thiswould not be an issue for the general part, but rather a question to bedecided by the judge, during the proceedings, in accordance with theprinciple of the free evaluation of evidence (such decisions are notsubject to preset rules, § 261 StPO). Furthermore, according to Germanlaw one would not automatically infer a perpetrator's awareness fromsuch evidence. Someone aware of a possibility may, due to merethoughtlessness or carelessness, refrain from further inquiry. In sucha case, there would be "unawareness" and consequently only negligence.In practice, this means that in German law the judge has more say indetermining where the border between intent and negligence lies.Accordingly, in certain circumstances grounds for the exculpation of theaccused exist that are denied him by the Israeli evidentiary provision.The Israeli provision ensures more legal certainty; the German offersmore elasticity and gives the judge greater discretionary scope. Whichof the two systems is the better is a key question which can be debated,but the importance thereof should be kept in mind.

The provision of strict liability (section 22), something totally un-known in German law, as well as in other European criminal lawsystems, also amounts to a rule of evidence. According to German law,punishing someone for crimes for which neither intent nor negligencehas been proven would be a violation of the principle of culpabilitywhich presupposes that a perpetrator can only be punished if he could

ISRAEL LAW REVIEW

have avoided the consequence. Since the principle of culpability issafeguarded in the German constitution,' a strict liability rule would bedeclared null and void in our country.

The details of the Israeli draft, however, show that the legislature isaware of this problem and has mitigated the consequences of punish-ment for such offences. If it is proven that there was no culpability,there can be no strict liability (section 22b). Furthermore, if there is noproof of culpability, a person may not be sentenced to imprisonment(section 22c). What remains is the possibility of non-custodial punish-ment based on suspicion. That, however, still implies a violation ofjustice, because the law allows the conviction - albeit in a limitedfashion - of someone who could possibly be innocent. Perhaps theIsraeli legislature should consider avoiding strict liability where indi-viduals are concerned (punishment for corporations falls in a differentcategory), because, except for Anglo-American legal systems, no othercountry accepts this principle. Even in the United States its constitu-tionality is at issue; legal writers criticize it, and the Model Penal Codeof 1962 disapproves of it. 2

As for the punishment of corporations (section 23), the situation isdifferent. Admittedly, German law has until now not recognized thecriminal liability of corporations (even though corporations could befined according to the Ordnungswidrigkeitengesetz, § 30) because Ger-man criminal law is built upon the concept of individual human culpa-bility. Thus, there is also in this regard a basic structural differencebetween German criminal law and the Israeli draft. Here, however, theIsraeli draft code has progress on its side, because there is no questionthat holding corporations liable for crimes committed within their sphereof responsibility is a criminal policy imperative. Because corporationsare not human beings and cannot be held liable in a human sense,different rules for accountability must be developed for their punish-ment, and these rules must be based upon corporate failures or mistakesand not on individual responsibility. This is expressed very clearly insection 23(a)2 and (b) of the Israeli draft. The German legislature willprobably be unable to avoid introducing a similar ruling in the near

1 See Roxin, AT 1 = Strafrecht Ailgemeiner Tel, Band 1, (1992) § 3 Rn. 46 if. withfurther references.

2 See Schmid, Strafverfahren und Strafrecht in den Vereinigten Staaten (2nd ed., 1993)186 ff.

[Is.L.R. Vol. 30

Nos. 1-2, 19961 CRIMINAL LIABILITY IN DRAFT ISRAELI PENAL CODE 63

future. I doubt, however, whether such a sanction against corporationsshould be called a punishment, but that is an academic question and notso much of an issue for the legislature.

III. Justification and Excuse

A second structural difference lies in the treatment of the conceptsof justification and excuse; these concepts are not treated as centralsystematic categories in the Israeli draft as they are in German law.Nevertheless, these terms appear throughout the draft in connection,for example, with what the draft describes as "indirect-author" (section29(c), 5) and "instigator" (section 30). The term justification appears inthe margin of a section which encompasses various defences (section 49),and abandonment of attempt (section 28) is referred to in the marginas "excuse".

However, no systematic deductions are made on these grounds. Thisis made clear by the fact that in the third title of the general part, whichdeals with situations where criminal liability is excluded, "defences" isused without further subdivisions. In the individual provisions theexpression, "a person shall bear no criminal liability" is used indiscrimi-nately, without regard as to whether the point under discussion is self-defence, mental illness or abandonment of attempt. This is in itself notso strange if one remembers that the Anglo-American law approachesthe differentiation between justification and excuse with great hesita-tion. It should also be recalled that this systematic distinction was notmade in the German Criminal Code until 1975. However, the fact thatthis distinction is not made in the Israeli draft code leads to considerablepractical problems, which I shall illustrate with three examples.

1. The provision relating to private or self-defence (section 46) doesnot clearly demarcate the limits of non-punishable defences, because thequestion as to which defences are justified and which perhaps are onlyexcused is not answered. According to section 46 the actor will bear nocriminal liability "for an act done by him to repel an unlawful attack".There are no limitations as to the scope of the defence such as thoseattempted in the German provision (§ 32StGB) by the concepts of"Erforderlichkeit" (necessity) and "Gebotenheit" (not more harmful thannecessary). Section 52, however, attempts to make up for this by barringthe application of the self-defence provision if the act is not a verniunftigesMittel (reasonable means) of preventing injury or damage. Since this

ISRAEL LAW REVIEW

provision, however, covers not only self-defence but also all instances ofnecessity, it is not clear to what extent it draws boundaries betweenjustification and excuse.

It would be important to know this because even when the limits ofjustification are exceeded, the possibility still remains that the actormay escape criminal liability. In such cases, however, the defensive actwould itself constitute an "unlawful attack", and the original assailantwould be allowed to respond with self-defence. Furthermore, a conceptlike verniinftiges Mittel (reasonable means), which does not differentiatebetween justification and excuse is very vague. An extremely agitatedvictim has a different opinion as to what constitutes a "reasonablemeans" of defence than does a rational judge. A clause which can beinterpreted in so many different ways, especially when the clause isused to regulate circumstances in which anyone can easily becomeinvolved, such as situations of self-defence, is to my mind not conduciveto legal certainty.

German law makes a distinction in this respect. According to § 32StGB, acts of defence are only justified when they are "erforderlich"(necessary) for the warding off of an attack and also "geboten" (not moreharmful than necessary) in light of socio-ethical viewpoints. If theperson who is attacked exceeds these limits because of confusion, fear,or fright, he is under § 33 StGB exempt from punishment, but only onthe basis that his conduct is excused. This means that the attackerwould, in turn, have a right to act in self-defence in response to this "actexceeding the limits of self-defence by the attacker". It should also benoted that a person exceeding the limits of self-defence escapes liabilityonly when the excess is the result of fear; if a person exceeds the limitsof justifiable defence because of aggressive emotions (anger, indigna-tion, bellicosity) he remains criminally liable - in my opinion thecorrect decision from a socio-psychological viewpoint. The Israeli draftconsequently contains no provision governing the exemption from pun-ishment of excessive self-defence because such a provision presupposesthe differentiation between justification and excuse. One wonderswhether the introduction of this differentiation in the Israeli draftwould not perhaps result in a more precise exposition of the rulesrelating to self-defence.

2. In sections 47 and 48 the Israeli draft does, however, distinguishbetween general necessity and necessity resulting from duress, but thedifferentiation between justifiable and excusable necessity, so clearly

[Is.L.R. Vol. 30


drawn in §§ 34 and 35 of the StGB, is not found here. Therefore, it isnot clear whether someone who did not participate in bringing about thesituation of necessity but who is affected by the act of necessity has theright to act in self-defence. It appears reasonable to deny the affectedperson the right to act in self-defence if someone has seized the person'sproperty (e.g. a car) in order to save his own life. However, the rightto act in self-defence must be granted if the person acting in necessityhas endangered the affected person's life or limb.

It is only when there is a clear distinction between justification andexcuse that such decisions can be made and the scope of acts of necessitythat are exempt from liability determined. If one recognized a justifi-cation when the interest protected by the person acting in necessitysignificantly outweighs the interest which he harms, as does § 34 StGB,the intrusive action can be undertaken on behalf of any person and anylegal interest whatsoever. However, if the actor has no significantlyimportant interest on his side, the rescue of only those legal intereststhat are especially highly valued (life, limb, liberty) should be excul-pated, and even then only when the actor himself or persons especiallyclose to him are endangered. This situation is so regulated in § 35 ofthe German Criminal Code, I am therefore of the opinion that distin-guishing between justifiable and excusable necessity makes possibleproper differentiations whose importance should be reconsidered by theIsraeli legislature.

3. Finally, for crimes of participation (Teilnahme), the lack of a clearsystematic distinction between justification and excuse has the resultthat the extent of accessories required in the Israeli draft is unclear.Sections 30 and 32, which deal with instigation and abetting, do notstate whether mere unlawful conduct suffices for participation or whetherparticipation requires that the perpetrator act culpably. As "criminalliability" is otherwise used throughout the draft, it may be assumed thatat least one culpable principal act is required, and therefore that "ex-treme Akzessorietat" (extreme accessories), as it is called in Germany,applies.

In contract, as is shown unambiguously in §§ 26, 27 and 29 of theStGB, German law is based on the limited form of accessory liability3

according to which the perpetrator's act need not be culpable but onlyunlawful. What are the practical implications of this distinction? In

3 LK11-Roxin = Leipziger Kommentar, (11th ed., 1993) vor § 26 Rn. 23 ff.

ISRAEL LAW REVIEW

most instances where a perpetrator's act is not culpable, the master-mind can be punished as indirect-author. Since the Israeli draft ac-knowledges indirect-authorship and also describes it fairly precisely,there is no reason to create a crime of participation (Teilnahme) withregard to an act committed without culpability. Section 29(d) deals ina surprising way with situations in which, according to German law,indirect-authorship of the master-mind, who makes use of a Werkzeug(tool) acting without culpability, fails because the master-mind lacks thespecific offender characteristics required by the offence. Under thisprovision indirect-authorship arises even when only the direct perpetra-tor satisfies the required offender characteristics. In this way, a gap inthe assignment of criminal liability, caused by the failure to recognizelimited accessory liability, is filled. It is not easy, however, to under-stand how someone can be an author if he does not have the character-istics of an author. Were limited form of accessory liability acknowl-edged, one could, in such a case, simply proceed with the crime ofinstigating a non-culpable act.

However, there are still deficiencies. What is the situation, forexample, when a person takes advantage of another's unavoidablemistake of law? In such a case, the direct actor, even according to theIsraeli draft (section 55), is exempt from punishment. According toGerman law, this would be treated as indirect-authorship. I doubtwhether the Israeli draft would also regard it as such (under section29(c),4). If not, then at least participation should be assumed, some-thing possible only if a limited form of accessory liability is acknowl-edged. Furthermore, what is the situation when someone persuades amentally ill person, whom he wrongly assumes to be normal, to commitan act, or helps him to commit such an act? It is hard to see indirect-authorship in this instance because the person committing the act is, inthe mind of the master-mind, not a person "which serves as a tool in thefirst person's hands", as it is described so aptly in section 29 (c). In thisinstance one must, indeed, acknowledge a crime of participation, butthis is only possible if one agrees that the requirements of participationare satisfied by the commission of a merely unlawful act.

The examples that I have used are not exhaustive, but they sufficeto indicate that the difference between unlawfulness and culpability isnot a theoretical question that the legislature may disregard. Indeed,the application of this differentiation that arise from the separation ofunlawfulness and culpability, which I have illustrated with a few exam-ples, are essential to, or merely desirable, for a penal code.

[Is.L.R. Vol. 30


IV. Similarities in the Structure and Content of the Israeli Draftand German Law

After this discussion of structural differences, I would like to turn tothose areas that reflect the considerable affinity between the Israelidraft and middle European legal traditions, the German legal traditionin particular. As I cannot address all the issues, I will concentrate onthree important areas, (1) intent and negligence, (2) parties to crime,and (3) the preclusion of criminal liability.

1. Criminal Liability, Intent and Negligence

a) The Anglo-American concept of mens rea, exemplified in section 20of the draft, can have a variety of meanings. Here, however, it cansimply by interpreted along the lines of the German concept of intent.The Israeli provision distinguishes between "intention", "indifference"and "rashness". "Intention" encompasses what in German terminologyis called intent (Absicht) and dolus directus. Section 20(b) makes clearthat for the purposes of dolus directus, it suffices if the actor consideredthe consequences as almost certain to occur. In addition, after intention,the draft lists indifference to the possibility of bringing about theconsequences. Up to this point the scope of mens rea correspondsdirectly to the conception developed by Engisch in his well-known"Untersuchungen iuber Vorsatz und Fahrlassigkeit im Strafrecht" (1930).Likewise, according to the overwhelmingly dominant opinion in Ger-many today, "indifference" leads to punishment for intent; indifferenceis seen as a manifestation of dolus eventualis.

However, in addition to "intention" and "indifference", the Israelidraft also includes "rashness" in intent. A person has acted rashly if heor she has assumed an unreasonable risk as to the possibility of bringingabout the consequences, hoping that it will be possible to prevent them.This corresponds to the expansion of the scope of intent, fundamentallyrecognized by German jurisprudence in the "Lederriemen" (Leather-strap) case 4 and widely accepted in the scholarly literature,5 according

4 BGHSt 7, 363 = Entscheidungen des Bundesgerichtshofs in Strafsachen, Band 7, p.363.

5 For in depth treatment see Roxin, AT 1, § 12, Rn. 21 ff. with further references in

n. 32.

ISRAEL LAW REVIEW

to which someone who takes seriously the possibility of bringing aboutthe consequences, counts on their occurrence, or is resigned to them,despite the hope that they will not occur, acts within the scope of doluseventualis. One might think that the Lederriemen case served as aparadigm for the Israeli definition of rashness, because it illustratesexactly this situation: the offenders, both of whom choked the victimwith a leather strap, were aware of the unreasonable risk to the life ofthe victim, yet still hoped that the victim's death could be avoided.

The Israeli draft may extend the scope of mens rea further still.German case law, as well as the majority of the scholarly opinion,recognizesg a volitional as -well as an intellectual element of intent.Accordingly, anyone who recognizes the risk of the consequences butcarelessly relies on this non-occurrence acts not intentionally but withconscious negligence. This means that a distinction is made betweenHoffen (hope) and Vertrauen (reliance): whereas a mere hope, by defi-nition accompanied by uncertainty, that consequences recognized aspossible will not occur does not eliminate intent, reliance on the possi-bility of avoiding the consequences, even if the reliance is irrational,does eliminate intent.

I do not find this subtle differentiation in the Israeli draft in theborderline area between intent and negligence. Accordingly, negligenceis defined in section 21 as "unawareness", and the so-called consciousnegligence alternative is not mentioned anywhere. As I see it, this isan indication that the Israeli draft does not recognize a volitionalelement of intent. Rather, it considers intentional all cases in which theoffender is aware of possible consequences, thereby taking a positionwhich is attracting more and more followers in Germany as well.6 It is,in any event, a tenable decision, well within the spectrum of interna-tional opinion, with the additional advantage that it avoids the greatpractical difficulties in differentiating between dolus eventualis andconscious negligence.

Nevertheless, I will allow myself to ask-whether it is indeed properto punish simple carelessness according to the rules governing inten-tional acts. Let us take the example of a driver who prepares to executea risky passing maneuver, is warned by his passenger of the danger, and

6 See, e.g., Schmidhauser, Strafrecht Allgemeiner Teil, Lehrbuch (2nd ed., 1975) 10/89 ff. with further citations; critical Roxin, AT 1, § 12, Rn. 39 ff.

[Is.L.R. Vol. 30


answers carelessly, "Nothing will happen!". If an accident occurs, hasthis driver acted with mens rea, as would be the case under the Israelidraft, or is the driver merely negligent, as would be the case in Germanyaccording to the .prevailing opinion? I leave to the discussion the taskof finding an answer to this question.

b) Section 21 of the draft deals with negligence. The definition isgeared to predictability but rules out liability for negligence for theperson engaged in a reasonable risk. From a legislative perspective, thisis technically a very successful description of negligent behavior and isalso easily reconcilable with the doctrine of objective accountability(objektive Zurechnung) which currently dominates German negligencedoctrine. It is especially when consequences and circumstances can beanticipated and the actual behavior is not considered a reasonable risk,that the offender has created a prohibited danger whose actualization,as seen by the newer doctrine, embodies the essence of negligence. Ofcourse special problems of accountability in negligence cases remainopen - such as unusual causal chains and issues associated with theprotective goal of the duty of care. However, such details can hardly beregulated by legislation and can always be left up to the case law.

The major issue of the Israeli regulation is whether to measurenegligence objectively or subjectively. The draft presents two versionsfor discussion: the first finds negligence if a reasonable person under thecircumstances, could have been aware of the possibility of the conse-quences of the act; the second version focuses on whether the offenderhimself "could have been aware of it".

It appears to me that the solution lies in the middle. If a personsuddenly finds himself in a situation in which, because of nearsightedness,senility, or other physical deficits, he cannot recognize certain circum-stances that a "reasonable person" would have noticed, it would beunjust to hold him responsible for consequences that he personally couldnot avoid. Holding him responsible would violate the principle ofculpability; therefore, the second version of section 21 is, in this respect,preferable.

The situation is different, however, when the actor, despite aware-ness of his own defects, puts himself in a situation which can only bemastered by a person in an intact psycho-physical condition. Let usassume a situation in which someone knows that he suffers from severenearsightedness or that his ability to react has been slowed by old-ageand that he is, therefore, no longer capable of coping with the risks ofmodern traffic. If, despite his knowledge, he takes the wheel and, due

ISRAEL LAW REVIEW

to his physical deficiency, brings about an accident, unavoidable underthe circumstances, he must be held responsible for a negligent act. Inthis case the bad driving itself is not negligent; rather, the act of takingthe wheel is negligent. We can speak here of a culpability in assumption(Ubernahmeverschulden) that establishes the basis for negligence. 7

For the Israeli draft, this means that the second version could beadopted and supplemented with a clause, according to which the of-fender is liable for negligence even if he could not avoid the conse-quences in the actual situation causing the accident when he negligentlyplaced himself in danger of bringing about the consequences. Such alegislative regulation recommends itself that much more because itwould perfectly correspond to the solution provided by the Israeli draftfor "entry into a situation by improper behaviour" in case of absence ofvoluntariness (Handlungsunfahigkeit) and necessity (section 50).

All in all, the regulation of intent and negligence in the Israeli draftis a very successful legislative accomplishment. Because of the contro-versial nature of the subject, the German Criminal Code contains nei-ther mention of the different manifestations of intent nor of negligence.Instead, it leaves further clarification up to judicial opinion and schol-arship. In contract, the Israeli draft regulates the essential questionsin an understandable and substantively appropriate way, even thoughit is possible to argue over details and borderline questions.

2. Parties to Crime

Another special gem of the Israeli draft are the provisions concerningparties to crime. As I have already discussed the problem of accessoriness,I will restrict myself here to a discussion of the types of parties to crimethat are described in the law.

a) With regard to the doctrine of authorship, a special achievementof the draft lies not only in the fact that joint-authorship and indirect-authorship are acknowledged, but also that their criteria are describedin detail.

As characterized in section 29(b), "joint-authors" are persons partici-pating in the commission of an offence "while doing acts for its commis-sion". I interpret this to mean that joint-authors must have undertaken

7 Roxin, AT 1, § 24, Rn. 34 ff., 110 ff. with further references.

[Is.L.R. Vol. 30

Nos. 1-2, 1996] CRIMINAL LIABILITY IN DRAFT.ISRAELI PENAL CODE 71

acts in furtherance of the crime. This stance rejects the position takenin German judicial opinions and frequently supported in the literature,and which I have always fought against, that preparatory acts can serveas the basis for a joint-authorship.8 For additional clarification, thestatement is included that it is immaterial if all acts are undertakentogether or if some are undertaken by one person and some by others.This, it appears to me, corresponds exactly to my conception of joint-authorship as "participation with division of labor during the commis-sion of an offence". I would be pleased if German judicial opinion, whichoften still works with unclear subjective criteria, could arrive at such aposition.

The definition of indirect-authors (section 29(c)) adopts the concept,common in German doctrine, of the perpetrator as a Werkzeug, a tool inthe hands of the master-mind. It describes the perpetrator, the persondirectly performing the act, as someone "which serves as a tool in thefirst person's hands". The draft does not leave it at this vivid charac-terization. Instead, it lists its five acknowledged cases of indirect-authorship: first, criminal incapacity of the perpetrator due to youngage or mental condition; second, when the tool lacks voluntariness(Handlungsfahigkeit); third, when the direct actor acts without mensrea; fourth, when he acts without awareness of the true state of things;fifth, when he is controlled in a manner amounting to duress (section48) or justification (e.g., section 49(1) and (2)). Since the first and thefifth cases each contain two conditions, the Israeli draft recognizes sevenpossible forms of indirect authorship.

Indeed, the recognized forms of indirect authorship are treated com-prehensively in the Israeli draft. The German legislature, however, hasnot risked making a similar list, because many issues are controversialin this area. The case of what in Germany is called the qualifikationslosesdoloses Werkzeug (the perpetrator, or tool, who lacks the special offendercharacteristics that are elements of the crime) is absent from the list insection 29(c), to my mind rightly so, because in such a case the directperpetrator is in fact not a "tool" in the hand of the master-mind.Rather, he is simply someone who lacks the requisite offender charac-teristics (Tdterqualifikationen). It appears to me that section 29(d) doesnot encompass this case either. Section 29(d) addresses exactly the

8 LK11-Roxin, § 25, Rn. 179 ff. with further references.

ISRAEL LAW REVIEW

opposite case: for an offence that can only be committed by specificpersons, the requirements of indirect-authorship according to section29(c) addresses exactly the opposite case: for an offence that can only becommitted by specific persons, the requirements of indirect-authorshipaccording to section 29(c) can be satisfied even if only the direct perpe-trator fulfills that condition. It is not clear to me how the Israeli draftwould deal with a case in which the perpetrator lacks the requisiteoffender characteristics, such as a case in which a public official uses anon-official to perform an act which constitutes a criminal act only ifcarried out by a public official. Perhaps a clause should be added tosection 29(d) that, according to my doctrine of duty crimes (Pflichtdelikte),9

would recognize an exceptional case of indirect-authorship. Anotheroption would be to add to the instigation section a provision accordingto which someone can be considered an instigator of an offence requiringspecial offender characteristics even if the instigator alone, and not theperpetrator, possesses these characteristics.

These are very complicated questions of detail that may be the resultof a misunderstanding on my part. A further inquiry concerns section29(c)(4), which refers to a perpetrator who apparently acts intentionallybut "without being aware of the true state of things". What sort of casesfall into this category? Mistakes of fact unrelated to the elements of theoffence but which, nevertheless, conceal from the perpetrator the truenature of his actions? If so, we have before us a case that I havedescribed as an error concerning the meaning of the act ("konkreterHandlungssinn"),10 concrete meaning of the acta proposition that ishighly controversial in Germany. Above all, the distinction betweenthese types of errors and a perpetrator's mere errors in motivation,errors that would not lead to indirect-authorship on the part of themaster-mind, is subject to a great deal of controversy. It is not clear tome what knowledge, according to the Israeli draft, should belong to an"awareness of the true state of things". I also do not know if thisprovision encompasses only mistakes of fact or if it also applies to merecases of mistake of law on the part of the perpetrator. This would beinteresting to know because several years ago German judicial opinionrecognized as indirect-authorship a case in which the master-mind

9 Roxin, Tdterschaft und Tatherrschaft, p. 352 ff., 651 ff.; Roxin, LK11, § 25, Rn. 37ff., 134 ff., both with further citations.

10 Roxin, ibid., at 212 ff., 639 ff.; Roxin, LKII § 25, Rn. 96 ff.

[Is.L.R. Vol. 30


engineered the perpetrator's avoidable mistake of law. 1 In Germany,scholarly opinion remains divided on this point. 12

I have mentioned these points so that they can be addressed duringthe discussion. Clearly, even the most thorough of laws cannot solve allproblems of interpretation. Besides, many issues can be clarified in thelegislative commentary. However, the possibility that the text of thelaw itself could be more precise must always be considered. In any case,it must be said, in conclusion, that the regulation in the Israeli draft ofauthorship of crime is especially successful, and that it is easily recon-cilable with the doctrine of Tatherrschaft, the theory of parties to crimethat is dominant in Germany.

b) Instigation is defined in section 30 as the prompting of another tocommit an offence by demanding its commission, by urging or encour-aging the actor, or by any other means that do not amount to duress orjustification. The latter two situations are clearly examples of indirectauthorship. Here, too, the vividness achieved through the use of exam-ples is striking and is of considerable importance for interpretation.One can assume that cases, controversial in Germany, in which an actis induced by the arrangement of an enticing situation or through thetelling of tempting stories about crimes committed by others, 13 are notconsidered instigation by the Israeli draft. Since these fact situationsdo not contain the element of prompting that is common to all thestatutory examples, they also cannot be deemed to belong to the "othermeans" found in section 30.

In a similarly illuminating way, section 32 defines abetting, I havewritten in the Leipziger Kommentar that "the contribution of the abettormakes possible, facilitates, intensifies, or ensures realization of thecrime".14 The Israeli draft has chosen almost exactly the same definitionin its charge that abetting is "to enable, facilitate or ensure the commis-sion or to prevent the apprehension of the offender, the discovery of theoffence or the loot" (whereby the last examples describe situations whichin Germany would be treated as the independent crimes of obstructionof justice (Strafvereitelung) or accessory after the fact (Begiunstigung).In addition to the catalogue of the most important cases is a clause

11 BGHSt 35, 347.12 See Roxin, supra n. 9, at 193 ff., 637 ff.; Roxin, LK11, § 25, Rn. 83 ff.; both with further

citations.13 LK11-Roxin, § 26, Rn. 3ff., 58 ff.14 LK11-Roxin, § 27, Rn. 2.

ISRAEL LAW REVIEW

according to which other contributions "to the creation of conditionsfavorable to the commission of the offence" are also considered to beabetting. This all-encompassing formulation can lead to the conclusionthat abetting is seen as "causal risk-enhancement" (kausaleRisikoerhahung) corresponding to the modern German doctrine - or atleast to my view. 15 I have no doubt that such a comprehensive provisionfor abetting is of much more use to practical application than is theGerman law. Whereas the German § 27 StGB says that "whoever hasrendered aid... shall be punished as an abettor" - a tautology withoutmeaning, the Israeli provision renders commentary practically unnec-essary.

3. Grounds for Exemption from Punishment

Finally, I would like to discuss the grounds for exemption frompunishment. This is an extensive subject and one about which manyhabilitation theses could be written. Here only short comments arepossible, and they can be kept concise because I have already addressedthe central issue of the separation of justification and excuse. Tosummarize, I would simply like to repeat that in this area every legis-lature is faced with a fundamental decision of significant consequences,and that it might be advisable to distinguish legally and treat separatelynecessity as justification, necessity as excuse, "private" or self-defenceas justification, and excessive self-defence as excuse. The FreiburgInstitute has collected a great deal of comparative legal material thatcould be of help in the decision-making process.16 1 restrict myself in thefollowing remarks to a discussion of the specific grounds for exemptionfrom punishment, regardless of systematic problems of principle.

a) The Israeli draft in section 42 begins with "absence of voluntari-ness", addressing physical coercion, reflexive and spasmodic reactions,sleep, hypnosis and all other instances of uncontrollable bodily move-ments. These are exactly the cases that are treated by German schol-arship as non-actions (Nichthandlungen) and therefore, in an assess-ment of criminal liability, eliminated even before determining whether

15 LK11-Roxin, § 27, Rn. 1 ff. with further citations.16 See Eser and Fletcher, eds., Justification and Excuse, Vols. 1 and II, (1987/88).

[Is.L.R. Vol. 30


or not the elements of the crime have been fulfilled: 17 the fact that in

cases of hypnosis the ability to act is generally affirmed and onlyculpability is denied is not a fundamental difference. The irrelevanceto the criminal law of the consequences brought about by an "absenceof voluntariness" is quite obvious. Therefore, one might ask whethersection 42 is really necessary. Since the Israeli draft also bases criminalliability on an act (section 18), of which here there is none, one wouldhave to arrive at exemption from punishment independent of section 42.Naturally, however, the inclusion of this additional explanation does noharm.

b) According to section 43, criminal responsibility begins at agetwelve. This is surprisingly early. In Germany the age of criminalmajority has been 14 years (§ 19 StGB) since 1923. Even so, many voicesargue that the age should be raised to 16 years.' I cannot get into theaspects of juvenile criminology that should be determinative here.Nevertheless, I suggest a reevaluation of the age limit in light of thecurrent state of international discussion on this matter.

c) Section 44 regulates "mental incapacity" and corresponds to Ger-man law in that the actor must either have lacked the ability to recog-nize the wrongfulness of the act or he must have been unable to actaccording to this realization. The underlying circumstances are simpli-fied in Israeli law in that only illness and mental defects are mentioned.But this does not lead to a fundamental difference because the findingsof fact in both codes are so broadly formulated that all cases in whichnormative responsiveness is absent can be subsumed within them.

In contrast, it is striking that, unlike the German law (§ 21 StGB),the draft does not provide for mitigation of punishment in cases wherethe offender's capacity for accountability is considerably diminished.This, along with the age of majority and the fact that the draft does notcompletely implement the principle of culpability, shows the greaterseverity of the Israeli law. In German law the fact that mitigation ofpunishment is merely optional in cases of limited culpability is highlycontroversial: it is assumed, at the very least, that mitigation is man-

17 See Roxin, AT1, § 8 with further citations.18 Schaffstein, "Straftindigkeit ab 16 Jahren?", inFestschriftfirSchiuler-Springorum,

(1993) 371; Frehsee, "Strafreife - Reife des Jugendlichen oder Reife der Gesellschaft?"in Festschrift fir Schiler-Springorunm, (1993).

ISRAEL LAW REVIEW

datory if the limited culpability is not compensated by other circum-stances that increase culpability. 9 If one considers that, in practice,borderline cases of "mental incapacity" are frequent, it appears to methat, regardless of the principle of culpability, it would be worthwhileto consider adding a middle level of accountability between full respon-sibility and the exemption from responsibility.

d) Section 45 is a special regulation for all cases of "intoxication". Thefundamental idea is that an actor who is not accountable because he wasintoxicated at the time he committed an act can nevertheless be pun-ished if he consciously and voluntarily became intoxicated. The Germanlaw comes to similar conclusions through the construction of actio liberain causa,0 whose intentional realization roughly approximates section45 (c) of the Israeli draft, and through another special provision thatcriminalizes intentional or negligent intoxication if an offender commitsa crime while in such a condition (§ 323a StGB). The German provisionhas been subject to general criticism 21 and cannot be recommended forinternational emulation. The Israeli section 45(b) that, if I understandit correctly, fundamentally recognizes anticipatory culpability(Vorverschulden) as sufficient basis for punishment, corresponds to aninternational trend, as well as to the theses put forward in Germany byNeumann in his book Zurechnung und Vorverschulden.22 The Israeliprovision is preferable to the German regulation, even though one mustadmit that it only partly takes the culpability principle into account. Nocountry has yet developed a method, completely satisfactory from a legalperspective, of dealing with criminal problems associated with intoxica-tion.

e) Section 46 regulates "private defence", whose systematic andstructural characteristics have already been discussed. This regulationmakes an essential departure from German law in its designation oflegal interests that may be protected by private or self-defence. Accord-ing to the German perspective, self-defence is for the protection ofindividuals. As a result, all legal interests of individuals, such asdomiciliary rights, privacy, honour, property, may be protected by self-defence, and not only life, freedom, body, or property, as in the Israeli

19 See Roxin, AT 1, § 20, Rn. 36 ff.20 See Roxin, AT 1, § 20, Rn. 55 ff.21 Roxin, AT 1, § 23, Rn. 8 if. with further citations.22 MUnchener Habilitationsschrift, (1985).

[Is.L.R. Vol. 30


draft. On the other hand, according to the predominant opinion inGermany,23 the security interest of the state, a legal interest of thegeneral public, may not be the object of self-defence. This last point isnot of great import, in that under German law actions undertaken inextreme emergencies on behalf of national security are in any casejustified by necessity.24 It is not entirely clear to me, however, why self-defence should not be allowed for unlawful attacks on all individuallegal interests. Granted, in cases of attacks of lesser importance thedefence should be measured, and one should not immediately cause theattacker serious harm. But the Israeli draft already takes this intoconsideration in section 52, according to which only reasonable defenceis permissible.

f) A discussion of the provisions regulating necessity (sections 47, 48)can be omitted here because I have already commented on them in partIII, above.

g) Under the title "justification", section 49 treats six instances whichare almost invariably viewed as grounds for justification by German lawas well, although only some of them are actually regulated in the code:acts based on legal authorization or duty; the carrying out of an order,as long as the order does not plainly require the commission of anoffence; presumed consent in the case of actions that are necessary tosave life, bodily integrity and health; consent in cases of medical inter-vention and treatment; actions taken for educational purposes; andfinally, behaviour consistent with the rules of sports and games.

It is not possible for me to address all of these instances in detail;therefore, I will restrict myself to remarks that I hope will promotefurther thought.

Under German law (Military Penal Code § 5 I), the carrying out ofan order is only punishable if the actor recognizes "that an illegal actis involved or the illegality is obvious in light of the circumstancesknown to the actor". However, the legislature does not conceive of thisregulation as grounds for justification, but rather treats it unequivocallyas grounds for exemption from culpability - indeed, as a special caseof mistake of law.25 Viewed objectively, an act that consists of thecommission of an offence is always illegal. I believe that the German

23 Roxin, AT 1, § 15, Rn. 35 ff. with further citations.24 Roxin, AT 1, § 15, Rn. 4025 See Roxin, AT 1, § 21, Rn. 70

ISRAEL LAW REVIEW

regulation is more suitable to the case: to be sure, it can hardly becarried over into Israeli law so long as Israeli law does not recognize adistinct separation between justification and excuse.

Consent and presumed consent are not regulated in the GermanCriminal Code (except for the single provision § 226 a StGB). Never-theless, the statements made by the Israeli draft in this context arepraiseworthy and correspond to German judicial opinion and doctrine.The question remains, however, why the Israeli draft, since it doesaddress these matters, gives them such fragmented attention. Consentand presumed consent play a role not only in crimes against the personbut also in the realization of the elements of countless other offences,and it is certainly possible to make general statements in this area.26 Incases of medical intervention, on the other hand, so many specialproblems arise, such as the duty to inform the patient, that there issomething to be said for treating these cases in the Special Part, subjectto a specific rule.

As far as the section regarding activities in sports and games isconcerned, the lack of punishability, in my opinion, follows from section21(a)2: if the law and the rules of the game are upheld, the onlynegligent acts that could be considered here present a "reasonable risk"as defined by section 21.

h) Sections 50 and 51 are exceptions from the exemption from pun-ishment in cases of incapacity and necessity. Section 50 is concernedwith the culpable creation of incapacity or necessity and, for such cases,largely revokes release from punishment. On the whole, this corre-sponds to the provision concerning intoxication, so I can refer the readerto the comments made on section 45. All in all, the regulation is worthyof approval. In the case of necessity as excuse (§ 35 StGB), the Germanlegislature considers culpability in the creation of the situation; in thecase of necessity as justification (§ 34 StGB), however, this is notconsidered. This is a well thought out distinction. Due to the lack ofdifferentiation between the two instances of necessity, this distinctioncannot be realized in the Israeli draft.

Noteworthy is the fact that the Israeli draft regulation of self-defencedoes not provide any restrictions for cases where the situation callingfor self-defence was culpably created by the actor. German judicial

26 For an in-depth discussion of consent and presumed consent see Roxin, AT 1, §§ 13and 18 A.

[Is.L.R. Vol. 30


opinion has developed a complicated system of sozialethischeNotwehreinschrankungen (socio-ethical restrictions on self-defence) forsuch situations, as well as for cases where the initial aggression iscarried out by children or the mentally ill. Looking to the Israeli draft,section 52 could perhaps be of assistance here, if one were to conditiona finding of "reasonable means" of defence upon the fulfillment of certainrequirements. However, the fact that section 52 also applies to necessityargues against the validity of this suggestion, since there is a specialprovision that regulates the culpable creation of a situation of necessity(section 50).

i) Section 51, according to which the exemption from punishmentdoes not apply where the person concerned is obligated to face threat ordanger, is unproblematic. The German law contains the same provisionin § 35 Abs. 1 Satz 2 StGB. All the same, it is worth mentioning that,logically, section 51 applies only to necessity as excuse and not tonecessity as justification. This distinction has managed to make itselffelt to a certain extent without the assistance of the Israeli legislature.

j) Section 52 limits the exemption from punishment in cases of self-defence and necessity to the use of "reasonable" means of defence. I havealready discussed this provision in connection with justification andexcuse above, in part III and would like to reiterate here that it appearsto me too vague. For example, it is not clear if the defence should belimited to that which is "necessary" or that which is "proportional".

k) Section 53 is a very interesting provision. According to this pro-vision there is no criminal liability if, in view of all the circumstancesand in consideration of the public interest, the imposition of a criminalsanction appears to be inappropriate. Apparently the provision ismeant to exclude petty crime from punishment; the comment in themargin reads: "no liability for trifles". As regards its content thisprovision is worthy of approval. However, it seems to me that theprovision belongs not in the General Part of a Criminal Code but in theprocedural law because the circumstances upon which criminal liabilitydepends can only be determined by law enforcement agents -they arenot based on the law. Hence the corresponding provision in Germanyis located in the Code of Criminal Procedure (§ 153 StPO). The Israeliprovision is based on the somewhat careless blend of substantive andprocedural law which I pointed out in connection with the fundamentaldifferences in structure between the Israeli draft and the German law(part II). Indeed, one might consider unimportant the question of wheresomething is regulated. But even the Israeli draft accepts the principle

ISRAEL LAW REVIEW

of the certainty of law (section 1). How can this principle be reconciledwith the fact that in case of section 53 criminal liability is determinedby the judge?27

1) Finally, sections 54 and 55 constitute the doctrine of error. Section54 regulates mistake of fact and in such cases bars punishment forintentional acts. Apparently the provision covers mistake of fact as wellas mistaken assumption of the existence of justifying circumstances.This deserves unqualified agreement and also corresponds to the pre-vailing doctrine and judicial opinion in Germany. Furthermore, section54(b) is correct in banning punishment for offences of negligence for thecase "that the mistake is reasonable". The subsequent special regulationfor strict liability offences has already been discussed.

The following regulation of mistake of law (section 55), like § 17 ofthe German Criminal Code, exempts from punishment only unavoidablemistakes of law. In this area, the Israeli provision is better formulatedthan the German one, in so far as the exemption from punishment,rather than being dependent upon complete unavoidability, is extendedeven if "the mistake could not reasonably have been avoided". That is,no more than the law-abidingness of a reasonable person is required.This is a good solution. 2

It is remarkable that no mitigation of punishment is planned foravoidable mistakes of law. To be sure, this conforms with the severityof the Israeli law already apparent in the absence of a mitigation ofpunishment for limited accountability. Accordingly, I would like toargue for, at the very least, the addition of an optional mitigation ofpunishment provision. Even if one does not feel bound to the strictdemands of the principle of culpability, it appears to be appropriate,from a policy perspective, to consider the fact that an actor, acting undera mistake of law, is not flouting the law, i.e., is not consciously actingin a criminal fashion. It is possible that the Israeli draft has consideredthis point of view in the law of sentencing, to which, however, I do nothave access.

With this I have come to the end of my comparison. I have been ableto address many questions only superficially, but given the unusualbreadth of the material, and the limits of time and space, nothing morethan a general overview of the most important dogmatic aspects of the

27 The issue in German law is addressed by Roxin, AT 1, § 23, Rn. 56, 59.28 In this vein see Roxin, AT1, § 21, Rn. 38, 39, 50 ff.

[Is.L.R. Vol. 30


General Part was possible. Perhaps the mostly cursory nature of mynonetheless lengthy explanations will become tolerable in light of thefact that the most important matters will enjoy thorough discussion inthe following papers. My remarks were intended more as a sort ofintroduction to the discussion of the Israeli draft.

the dogmatic structure of criminal liability in the general part of the draft israeli penal code - a...

Documents