Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-26T07:22:43.408Z Has data issue: false hasContentIssue false
  • English
  • Français

Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives

Published online by Cambridge University Press:  30 January 2013

Miriam Gur-Arye  and
Thomas Weigend
Get access

Abstract

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

Type
Articles
Information
Israel Law Review , Volume 44 , Issue 1-2: Symposium: Human Dignity and the Criminal Law , 2011 , pp. 63 - 89
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See, e.g., International Covenant on Civil and Political Rights, art. 14(1), Dec. 16, 1966, 999 U.N.T.S. 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6, Sept. 3, 1953, CETS No. 005 (hereinafter ECHR) (“fair and public hearing”). In Germany, the Basic Law of 1949 does not explicitly guarantee the right to a fair trial, but this right has been read into the “state based on the rule of law” clause of the Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. I, art. 20 § 3 (“The legislature is bound by the constitutional order, the executive power and the courts are bound by statutes and law”); see 38 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [Decisions of the Federal Constitutional Court] 105 (111) (1974); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Sept. 19, 2006, Strafverteidiger 1 (1–2), 2008. See also Gollwitzer, Walter, in 8 Löwe-Rosenberg: Die Strafprozessordnung und das Gerichtsverfassungsgesetz art. 6 EMRK/art. 14 IPBPR, marginal note 7 (Riess, Peter ed., 25th ed. 2005)Google Scholar; Schädler, Wolfram, in Karlsruher Kommentar zur Strafprozessordnung art. 6 EMRK, marginal note 23 (Hannich, Rolf ed., 6th ed. 2008)Google Scholar. In the United States, “due process of law” is guaranteed by the Fifth Amendment to the U.S. Constitution (“No person shall be … deprived of life, liberty, or property, without due process of law….”).

2 For Germany, see 45 BVerfGE 187 (259–60) (1977); 50 BVerfGE 5 (12) (1978); 54 BVerfGE 100 (108–109) (1980); 105 BVerfGE 135 (154) (2002). For Austria, see Strafgesetzbuch [StGB] [Penal Code], BGBl. No. 60/1974, § 32; Seiler, Stefan, Strafrecht Allgemeiner Teil II: Strafen und Massnahmen, marginal notes 4-7 (3d ed. 2005)Google Scholar.

3 See the Eighth Amendment to the U.S. Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” According to the European Court of Human Rights (ECtHR), the imposition of excessively harsh sanctions can violate article 3 of the ECHR, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” See T v. United Kingdom, App. No. 24724/94, Judgment of Dec. 16, 1999, § 99, available at HUDOC (http://www.echr.coe.int); Ülke v. Turkey, App. No. 39437/98, Judgment of Jan. 24, 2006, §§ 59-64, available at HUDOC (http://www.echr.coe.int).

4 See, e.g., 14 BVerfGE 254 (1962) (concerning Strassenverkehrsordnung ]StVO] [Street Traffic Rules], § 49); 78 BVerfGE 374 (1988) (concerning Fernmeldeanlagengesetz [FAG] [Telecommunication Installations Act], § 15(2)(a); 105 BVerfGE 135 (2002) (concerning StGB § 43(a): confiscation of the totality of an offender's assets).

5 The constitutional review of substantive criminal law in Canada is based on section 7 of the Canadian Charter of Rights and Freedoms, which provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.). In the case of Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, the Supreme Court of Canada rejected the view that the term “fundamental justice” should be narrowly interpreted as being limited to procedural issues and interpreted the term as encompassing issues of substantive criminal law. See van Dieen, Jodie, 20 Years under the Charter: The 20th Anniversary of the Charter: Developments in Criminal Law under Section 7 of the Charter, 21 Windsor Y.B. Access Just. 129 (2002)Google Scholar.

6 The US Supreme Court has not consistently followed up on a handful of judgments where it subjected criminal statutes to review under “substantive” due process aspects. Cf. Robinson v. California, 370 U.S. 660 (1962) (crime of being addicted to drugs violates the 8th Amendment to the Constitution); Lawrence v. Texas 539 U.S. 558 (2003) (sodomy law incriminating homosexual acts violates substantive due process). For the present status of the law on this issue, see Kadish, Sanford H., Fifty Years of Criminal Law: An Opinionated Review, 87 Calif. L. Rev. 943, 964–66 (1999)CrossRefGoogle Scholar; Dubber, Markus, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J. 509 (2004)Google Scholar. For Germany, see Lagodny, Otto, Strafrecht vor den Schranken der Grundrechte 164 et seq. (1996)Google Scholar.

7 39 BVerfGE 1 (1975).

8 Article 2(2) of the German Constitution provides: “Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.” See Deutscher Bundestag, Basic Law for the Federal Republic of Germany (Christian Tomuschat & David Currie trans., 2010), available at https://www.btg-bestellservice.de/pdf/80201000.pdf.

9 39 BVerfGE 1 (42–44) (1975).

10 88 BVerfGE 203 (251–52, 273) (1993).

11 Id. at 254-57. For a discussion of the abortion case law of the Federal Constitutional Court, see, for example, Eser, Albin, Schwangerschaftsabbruch—Reformversuche in Umsetzung des BVerfG-Urteils, 1994 Juristenzeitung 503Google Scholar; Eser, Albin & Koch, Hans-Georg, Schwangerschaftsabbruch—Auf Dem Weg Zu Einer Neuregelung (1992)Google Scholar; Hoerster, Norbert, Das “Recht auf Leben” der menschlichen Leibesfrucht—Rechtswirklichkeit oder Verfassungslyrik?, 1995 Juristische Schulung 192Google Scholar; Müller-Dietz, Heinz, Zur Problematik verfassungsrechtlicher Pönalisierungsgebote, in Festschrift für Eduard Dreher Zum 70Google Scholar. Geburtstag 97 (Hans-Heinrich Jescheck & Hans Lüttger eds., 1977); Starck, Christian, Der verfassungsrechtliche Schutz des ungeborenen menschlichen Lebens, 1993 Juristenzeitung 816Google Scholar.

12 The Federal Constitutional Court consists of 16 judges. Half the judges are elected by the Bundestag, and the other half by the Bundesrat (representative body of the German Länder). Judges must be at least 40 years old and must have passed the examinations necessary for serving as a judge in a German court. Because a person needs a two-thirds majority to be elected as a judge of the Federal Constitutional Court, the composition of the court reflects the consensus of the parties represented in parliament. The Federal Constitutional Court sits in two chambers of eight judges. For details, see Gesetz über das Bundesverfassungsgericht [BVerfGG] [Federal Constitutional Court Act], BGBl. I at 1823, as amended, §§ 1-8.

13 GG art. 93 § 1(2)—so-called abstract control of statutory law (abstrakte Normenkontrolle).

14 GG art. 100 § 1—so-called concrete control of statutory law (konkrete Normenkontrolle). Courts other than the Federal Constitutional Court have no authority to treat a statute as invalid. The Federal Constitutional Court has exclusive authority to declare a statute void because of its incompatibility with the Constitution.

15 GG art. 93 § 1(4a)—so-called constitutional complaint (Verfassungsbeschwerde).

16 See 1 BVerfGE 97 (101–102) (1951); 109 BVerfGE 279 (305–307) (2004); 115 BVerfGE 118 (137–38) (2006).

17 BVerfGE §§ 31(2) & 78. A defendant convicted on the basis of a statute that is subsequently found unconstitutional can demand a new trial, id. § 79.

18 See, e.g., 100 BVerfGE 313 (1999); 109 BVerfGE 279 (2004); 110 BVerfGE 33 (2004); 113 BVerfGE 273 (2005); 113 BVerfGE 348 (2005); BVerfG, Mar. 2, 2010, 1 BvR 256/08.

19 Gesetz über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten [Statute on the Convention for the Protection of Human Rights and Fundamental Freedoms], Aug. 7, 1952, BGBl. II at 685, § 2(1).

20 111 BVerfGE 307 (329) (2004); BVerfG, Sept. 19, 2006, Strafverteidiger 1 (2–3), 2008.

21 For recent controversial cases concerning holocaust denial and the glorification of the National Socialist regime, which are prohibited by section 130(3) & (4) of the Penal Code, see 90 BVerfGE 241 (1994); BVerfG, Nov. 4, 2009, Juristenzeitung 298, 2010, with critical comments by Christoph Degenhart & Tatjana Hörnle.

22 GG art. 2 § 1 declares that “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”

23 See 6 BVerfGE 32 (1957); Lagodny, supra note 6, at 116 et seq.; Starck, Christian, in 1 Kommentar zum Grundgesetz art. 2, marginal notes 8-13 (von Mangoldt, Hermann, Klein, Friedrich & Starck, Christian eds., 6th ed. 2010)Google Scholar.

24 See, e.g., 6 BVerfGE 32 (37–41) (1957); 103 BVerfGE 197 (215) (2001); 113 BVerfGE 88 (103) (2005).

25 6 BVerfGE 32 (41–43) (1957). For a brief discussion of this case law, see Starck, supra note 23, art. 2 § 1, marginal notes 30-31. See also infra text accompanying note 73.

26 See, e.g., 80 BVerfGE 367 (373–74) (1989) (in a judgment protecting private diaries from search and seizure, the court emphasized that the right to privacy was not subject to restriction under a proportionality standard because “the core of the personality is protected by the untouchable dignity of the person”). See also Huber, Peter Michael, in 1 Kommentar zum Grundgesetz art. 19 § 2, marginal notes 123-31 (von Mangoldt, Hermann, Klein, Friedrich & Starck, Christian eds., 6th ed. 2010)Google Scholar.

27 GG art. 2 § 2, third sentence. See also GG art. 19 § 2: “In no case may the essence [Wesensgehalt] of a basic right be affected.”

28 See supra note 4.

29 45 BVerfGE 187 (1977).

30 109 BVerfGE 133 (2004). In a later judgment, the Federal Constitutional Court held security detention as presently regulated to be unconstitutional, based on findings of the European Court of Human Rights. See BVerfG, May 4, 2011, 2 BvR 2365/09.

31 90 BVerfGE 145 (1994). See infra text accompanying note 74 et seq.

32 120 BVerfGE 224 (2008). The popular argument that intercourse between siblings leads to genetic disorders was not convincingly supported by the medical expertise before the court. Moreover, this argument would not prove much because there is no comparable ban on intercourse between persons with genetically based mental illness. On the other hand, the criminal prohibition of intercourse between siblings also applies when conception is impossible because of prior surgery or old age. See the persuasive dissenting opinion of Justice Hassemer, id. at 255-73; see also Hörnle, Tatjana, Das Verbot des Geschwisterinzests—Verfassungsgerichtliche Bestätigung und verfassungsrechtliche Kritik, 61 Neue Juristische Wochenschrift [NJW] 2085 (2008)Google Scholar.

33 See, e.g., 90 BVerfGE 145 (173) (1994); 120 BVerfGE 224 (240) (2008). See Lagodny, supra note 6, at 52-74, esp. 65-69.

34 Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391. For an official translation, see http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm.

35 Basic Law: Freedom of Occupation, 5752-1992, SH No. 1387, repealed by Basic Law: Freedom of Occupation, 5754-1994, SH No. 1454. For an official translation, see http://www.knesset.gov.il/laws/special/eng/basic4_eng.htm.

36 See Barak, Aharon, The Constitutional Revolution: Protected Human Rights, 1 Law & Gov't 9 (1992)Google Scholar [in Hebrew]; Deutch, Miguel, Protection of Obligatory Rights as “Property” Within the Framework of the “Constitutional Revolution” in Israel, 15 Tel Aviv U. Stud. L. 147, 148–49 (2000)Google Scholar; Barak, Aharon, The Constitutional Revolution: Bat Mitzva, in Zamir Book on Law, Government and Society 227, 271 (Dotan, Yoav & Bendor, Ariel eds., 2005) [in Hebrew]Google Scholar.

37 See 3 Barak, Aharon, Interpretation In Law: Constitutional Interpretation 477–81 (1994) [in Hebrew]Google Scholar.

38 See supra note 34.

39 See infra text accompanying notes 76-80.

40 See Barak, Aharon, The Constitutionalization of Israeli Law: The Basic Laws on Human Rights and Criminal Law, 13 Bar-Ilan Studies in Law 5 (1996) [in Hebrew]Google Scholar; Barak, Aharon, The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law, 31 Isr. L. Rev. 3 (1997)CrossRefGoogle Scholar; Parush, Adi, Moral Responsibility, Criminal Liability and the Value of Human Dignity—On Some Recent Developments in Israeli Criminal Law, 13 Bar-Ilan Studies in Law 87 (1996) [in Hebrew]Google Scholar; Kiemnitzer, Mordechai, Justified Deviations from the Requirement of Mens Rea, 13 Bar-Ilan Studies in Law 109 (1996) [in Hebrew]Google Scholar; Gur-Arye, Miriam, Deviations from the Requirement of Culpability, 13 Bar-Ilan Studies in Law 129 (1996) [in Hebrew]Google Scholar; Dan Bein, , The Basic Laws and Specific Offences, 13 Bar-Ilan Studies in Law 251 (1996) [in Hebrew]Google Scholar; Sheleff, Leon, Human Dignity in Legislation and Litigation, 13 Bar-Ilan Studies in Law 265 (1996) [in Hebrew]Google Scholar; Karp, Judith, The Constitutionalization of the Criminal Law in Light of the Basic Law: Human Dignity and Liberty, 42 Hapraklit 64 (1995) [in Hebrew]Google Scholar; Lavi, Shai, Corrective Justice—Reconsidering the Relationship Between Criminal Law and Constitutional Law, in Trends in Criminal Law—A Decade to the 39th Amendment of the Criminal Code 511 (Lederman, Eli, Shapira-Etinger, Keren & Lavi, Shai eds., 2010) [in Hebrew]Google Scholar.

41 CrimA 4424/98 Silgado v. State of Israel 56(5) PD 529 [2002].

42 The section reads in full: “This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.” See Basic Law: Human Dignity and Liberty, supra note 34.

43 Section 10 of the Basic Law: Freedom of Occupation, supra note 35, reads:

The provisions of any enactment which, immediately prior to this Basic Law would have been of effect but for this Basic Law or the Basic Law repealed in section 9, shall remain in effect two years from the commencement of this Basic Law, unless repealed earlier; however, such provisions shall be construed in the spirit of the provisions of this Basic Law.

44 AdminA 4436/02 The Ninety Balls Restaurant and Bar v. Haifa Municipality and Others 58(3) PD 782 [2004].

45 Id. para. 17 of Justice Grunis's judgment.

46 Section 4 of the Basic Law: Freedom of Occupation provides: “There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law.” See Basic Law: Freedom of Occupation, supra note 35.

47 Ninety Balls, supra note 44, paras. 19-26.

48 Id. paras. 27-28.

49 Section 34A of the Israeli Penal Law states:

(a) Where, incidentally to the commission of an offense, another or additional offense is committed, the possibility of the commission of which, according to the circumstances of the case, a reasonable person could have been aware:

(1) Liability for it shall be imposed on the co-principal; however, if the other or additional offense was committed with intent, the co-principal shall be liable for the offense as an offense of indifference only;

(2) The instigator or the abettor shall be liable for it as an offense of negligence, if there is such an offense.

(b) A court convicting a co-principal by virtue of subsection (a)(1) for an offense for which a mandatory penalty is prescribed, may impose a lighter penalty.

This section is in fact a modified version of the common law doctrine according to which conspirators will be held liable for any offense that is a natural and probable consequence of their common purpose. For the common law doctrine in this regard, see Sayre, Francis, Criminal Responsibility for Acts of Another, 43 Harv. L. Rev. 689, 697–98 (1930)CrossRefGoogle Scholar; Bloy, Duncan & Parry, Philip, Principles of Criminal Law 134–35 (4th ed. 2000)Google Scholar.

50 The relevant section provides: “300. (a) A person who does one of the following is guilty of murder and is liable to imprisonment for life and only to that penalty: … (3) willfully causes the death of a person in a commission of an offence or in preparing for or to facilitate the commission of an offence.”

51 It is interesting to compare the Israeli Supreme Court's ruling in the Silgado case with the rulings of the Canadian Supreme Court in R. v. Vaillancourt, [1987] 2 S.C.R. 636 and R. v. Martineau, [1990] 2 S.C.R. 633, whose facts were similar to those of the Silgado case. In both cases, the Canadian Supreme Court invalidated criminal law prohibitions that make it possible to assign liability for murder without a proper mental element. However, it should be noted that there is a difference between the relevant prohibitions under the Canadian Criminal Code and the Israeli Penal Law in this regard. Section 213 of the Canadian Criminal Code, R.S.C. 1985, c. C-46, preserves, in a modified way, the common law felony murder rule. Former section 231(d), which was declared unconstitutional in the Vaillancourt case, made it possible to assign liability for murder to a person who “causes the death of human being while committing or attempting to commit… robbery, if… (d) he uses a weapon and has it upon his person.” The Canadian Supreme Court found this prohibition unconstitutional because “it is a principle of fundamental justice that, absent proof … of at least objective foreseeability, there surely cannot be a murder conviction.” Vaillancourt, para. 28. In the Martineau case, the court went one step further and stated that “the principles of fundamental justice … demand that a conviction of murder requires proof of … subjective foresight of death.” Martineau, p. 15. The court therefore invalidated section 213(a) of the Canadian Criminal Code, which made it possible to assign liability for murder to a person who “causes the death of a human being while committing or attempting to commit… robbery, if (a) he means to cause bodily harm for the purpose of (i) facilitating the commission of the offence.” Under the Israeli Penal Law, on the other hand, section 300(a)(3), which defines murder in cases where the death was caused while committing another offense (see supra note 50), requires subjective foresight of death. It is section 34A of the Penal Law that makes it possible to assign liability for that offense to a co-principal on the basis of objective foreseeability.

52 In this regard, the Supreme Court adopted the arguments elaborated by Kremnitzer, supra note 40. For an elaborate and critical analysis of the various arguments underlying section 34A, see Ohana, Daniel, The Natural and Probable Consequence Rule in Complicity: Section 34A of the Israeli Penal Law, 34 Isr. L. Rev. 321–51 (Part I), 453–58 (Part II) (2000)Google Scholar.

For a critical evaluation of the Silgado case, see Dancig-Rosenberg, Hadar, Partnership Responsibility for an Unintended Crime: Thoughts Concerning Blame, Proportionality and an Alternate Balancing Test—A Deontological Analysis in Response to CrimA 4424/98, Silgado v. The State of Israel, in David Weiner Book on Criminal Law and Ethics (Rabin, Yoram, Arad-Ayalon, Dror & Vaki, Yaniv eds., 2009)Google Scholar; Lavi, supra note 40, at 538-52.

53 Silgado, supra note 41. The public defender's arguments are discussed in para. 7 of President Barak's judgment.

54 See supra note 34.

55 Silgado, supra note 41, para. 12 of President Barak's opinion.

56 See Basic Law: Human Dignity and Liberty, supra note 34, § 8 & text accompanying note 38.

57 The importance of the limitation clause with regard to the constitutionalization of criminal law in general was emphasized by Barak, supra note 40.

58 Silgado, supra note 41, para. 9 of Justice Strasberg-Cohen's judgment (translated by Miriam Gur-Arye).

59 For the wording of this section, see supra text accompanying note 54.

60 Silgado, supra note 41, para. 7 of Justice Strasberg-Cohen's judgment. One should further note President Barak's reference to section 7 of the Canadian Charter of Rights and Freedoms to show that in other legal systems substantive criminal law is subject to constitutional control, id. para. 23. However, there is a fundamental difference between his view that every criminal law prohibition imposing imprisonment infringes liberty and section 7 of the Charter, according to which a criminal law prohibition will be regarded as one that infringes the constitutional right to liberty if it contradicts “principles of fundamental justice.” See Canadian Charter of Rights and Freedoms, supra note 5. The Canadian Supreme Court has to consider the demands of principles of justice within the framework of analyzing the right of liberty itself. Only after the court arrives at a conclusion that a criminal law prohibition is inconsistent with the demands of principles of fundamental justice and therefore infringes section 7, will the constitutional validity of the prohibition be tested according to section 1 of the Charter, which permits infringement of rights and freedoms guaranteed under the Charter “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Id.

61 For a somewhat different assessment of the different opinions of the justices in the Silgado case, see Lavi, supra note 40, at 538-52.

62 Silgado, supra note 41, para. 9 of Justice Strasberg-Cohen's judgment (translated by Miriam Gur-Arye).

63 For an elaboration on the notion of “moral panic,” see Goode, Eric & Benyehuda, Nachman, Moral Panics: The Social Construction of Deviance (2d ed. 2009)CrossRefGoogle Scholar. The significant increase in the number of defendants charged with criminal offenses related to political speech in Israel following the assassination of the late Prime Minister Yitzhak Rabin could be seen as a moral panic response. For a discussion of the overuse of the criminal law in this context, see Gur-Arye, Miriam, Can Freedom of Expression Survive a Social Trauma—The Israeli Experience 13 Duke J. Comp. & Int'l. 155 (2003)Google Scholar.

64 See supra text accompanying note 37.

65 Silgado, supra note 41, para. 25 of President Barak's judgment (translated by Miriam Gur-Arye).

66 This will be more so when a new General Part of the Israeli Penal Law is eventually enacted, as the new General Part will not be immune from constitutional review. See supra text accompanying note 42.

67 See Introduction, supra.

68 See StGB § 15: “Only intentional conduct is punishable, unless the law expressly provides punishment for negligent conduct,” translated at http://www.iuscomp.org/gla/statutes/StGB.htm#15. A similar provision appears in section 19 of the Israeli Penal Law.

69 See Lagodny, supra note 6, at 587; Stratenwerth, Günter, Zur Legitimation von “Verhaltensdelikten,” in Mediating Principles 157 (von Hirsch, Andrew, Seelmann, Kurt & Wohlers, Wolfgang eds., 2006)Google Scholar; Wohlers, Wolfgang, Deliktstypen des Präventionsstrafrechts Zur Dogmatik moderner Gefährdungsdelikte (2000)Google Scholar. See also Gur-Arye, Miriam, Strict Liability Should Be Excluded from the Criminal Law, in ESSAYS IN HONOR OF JUSTICE SHIMON AGRANAT 241 (1986) [in Hebrew]Google Scholar (calling for the use of administrative rather than criminal sanctions to deal with “public welfare offenses”).

70 See supra note 68. Section 21(b) of the Israeli Penal Law further restricts criminal prohibitions on the basis of negligence: no “felony” should be based on negligence, and hence the punishment for criminal negligence cannot exceed three years' imprisonment.

71 Although the German Penal Code does not regulate the prerequisites of criminal negligence, German case law and doctrine agree that criminal negligence presupposes the actor's individual ability to foresee and avoid the harm: objective negligence is not sufficient. See Vogel, Joachim, in 1 STRAFGESETZBUCH. LEIPZIGER KOMMENTAR § 15, marginal notes 155-59 (Laufhütte, Heinrich-Wilhelm, Saan, Ruth Rissing-van & Tiedemann, Klaus, eds., 12th ed. 2007) with further referencesGoogle Scholar.

72 See supra text at note 22.

73 For an incisive analysis of the constitutional limitations on criminal legislation, see Appel, Ivo, Verfassung und Strafe 163 et seq., 558 et seq. (1998)Google Scholar. See also Lagodny, supra note 6, at 51 et seq. & 138 et seq.

74 90 BVerfGE 145 (1994).

75 Id. at 171-72.

76 Id. at 172. Article 2(2) of the German Constitution provides: “Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.” See supra note 8.

77 90 BVerfGE 145 (174–82) (1994).

78 Id. at 182-83.

79 Id. at 183. Justice Sommer dissented on this point, arguing that criminological research had not shown any beneficial effect of the criminal prohibition of marijuana possession, id. at 219-21.

80 Id. at 183-94.

81 Id. at 184.

82 Id.

83 Id. at 185-88.

84 Id. at 189-90.

85 See supra note 44.

86 For the differing views on the scope of protection, see supra text accompanying notes 26-27.

87 Under section 142 of the Penal Code, it is punishable for a person involved in a traffic accident to leave the scene of the accident before having declared his involvement and having enabled other interested persons to establish his identity, the identity of his vehicle and the nature of his involvement.

88 16 BVerfGE 191 (193) (1963).

89 But see Oberlandesgericht Hamm [OLG Hamm] [Hamm Higher Regional Court], Jul. 16, 1974, Neue Juristische Wochenschrift [NJW] 657, 1975: A fly entered a car through the open side window, and the driver “instinctively” tried to keep the fly from touching her eye by swatting at the fly with her hand, thereby causing the car to swerve and to hit an oncoming car, injuring two children sitting in that car. The driver was convicted of negligent wounding. The court argued that the movement of her hand may have been “instinctive” but was not beyond her control.

90 45 BVerfGE 187 (259–60) (1977); 54 BVerfGE 100 (108) (1980); 91 BVerfGE 1 (27) (1994).

91 See StGB § 17. For an overview, see Appel, supra note 73, at 515 et seq.; Vogel, supra note 71, marginal notes 45-48; see also Frister, Helmut, Schuldprinzip, Verbot der Verdachsstrafe und Unschuldsvermutung als Materielle grundprinzipien des Strafrechts (1988)CrossRefGoogle Scholar.

92 Whereas the sanction for murder, which is an intentional killing committed under aggravating circumstances (StGB § 211), is a mandatory life sentence, in cases of rape with fatal consequences (id. § 178) and robbery with fatal consequences (id. § 251), the court can impose a life sentence or a sentence of 10 to 15 years imprisonment (id. §§ 178 & 251). In both cases, the defendant has to be at least grossly negligent or reckless with respect to the victim's death.

93 StGB & 251 requires gross negligence (Leichtfertigkeit) with respect to the victim's death.

94 StGB § 250(1) & § 222. The fact that one participant in the robbery carries a weapon leads to aggravation. The sentence for this offense ranges from 3 to 15 years imprisonment.

95 Id. In that case, the sentence would range from 6 months to 15 years imprisonment.

96 See supra text accompanying note 53.

97 See Silgado, supra note 41, paras. 13-14 of President Barak's judgment & para. 13 of Justice Strasberg-Cohen's judgment.

98 Id. para. 15 of President Barak's judgment.

99 See supra note 49.

100 Id.

101 The punishment imposed by section 402(b) of the Israeli Penal Law is 20 years' imprisonment (maximum), as opposed to section 402(a), which imposes 14 years' imprisonment for ordinary robbery.

102 For a detailed discussion of this approach, see Gur-Arye, Miriam, Penal Law Preliminary and General Part Bill, 1992, 24 Mishpatim 9, 49–51 (1994) [in Hebrew]Google Scholar.

103 Such an arrangement had indeed been proposed in Israel, see Feller, Shneur-Zalman, Section 35 of the Draft Bill for a New Preliminary and General Part, 14 Mishpatim 127 (1984) [in Hebrew]Google Scholar. However, this proposal was later modified and the current version of section 34A of the Penal Law was adopted. It should be noted that, as opposed to the co-principals, section 34A(a)(2) limits the liability of both the instigator and the abettor for additional offenses: both will be held liable only for an additional “offense of negligence, if there is such an offense.” For the exact wording of this section, see supra note 49. The liability of the instigator and the abettor for additional offenses is imposed according to their culpability.

104 Defined as follows in section 304 of the Israeli Penal Law: “Causing death by negligence. A person who negligently causes death is liable to imprisonment for three years.”

105 See supra text accompanying notes 93-95.