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Forty Years of Criminal Law: Developments in Case Law Re The Requirement of Fault
Published online by Cambridge University Press: 16 February 2016
Extract
In the field of criminal law there is as yet no fully original Israeli code. The Penal Law, 1977, is a new version of the Criminal Code Ordinance, 1936, combined with the various amendments thereto introduced by the Knesset since the establishment of the State. Most legislative changes affect specific offences. The intervention of the Israeli legislator in the general part of the Law, has been most limited. The only context in which the Israeli legislator has laid down his own arrangements is in the application of the criminal law. Under the Criminal Code Ordinance (sections 6-7) its scope was territorial. However, in 1955 the Penal Law Revision (Offences Committed Abroad) Law, 1955 was passed by the Knesset, and this extended the provisions of the Ordinance to certain offences committed outside the territory of the State. In the course of the years, the extra-territorial scope of the criminal law has expanded.
- Type
- Criminal Law
- Information
- Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 560 - 579
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990
References
1 L.S.I. Special volume.
2 P.G. Extraordinary, Supp. No. 1, 14 Dec. 1936, no. 652, p. 285.
3 10 L.S.I. 7.
4 At present the provisions of Israeli penal laws apply to offences against humanity committed outside the territory of the State, by virtue of universal application (sec. 4 of the Penal Law); to acts committed outside the territory of the State intended to injure one of its vital interests (protective application — see sec. 5 of the Penal Law); as well as to acts against nationals or residents of the State committed outside its borders (the passive personal application — sec. 7(a) of the Law). Since 1978, when the amendment to the Extradition Law, 1954(8 L.S.I. 144), was passed, whereby Israel no longer extradites its nationals, the provisions of Israeli Penal Law apply to extraditable offences committed by Israeli nationals or residents outside the territory of the State (sec. 7(a) of the Law). For a comprehensive analysis of extraterritorial application of the criminal law, see Feller, S.Z., Elements of Criminal Law, Vol. I(Jerusalem, 1984, in Hebrew)Google Scholar.
5 Sec. 9 of the Criminal Code Ordinance provided that a minor under the age of nine years should not bear criminal responsibility; whereas a minor between 9 and 12 is liable to bear criminal responsibility if it is proved that he was capable of understanding that he was forbidden to commit the offence. By the Penal Law Amendment (No. 3) Law, 1978 (32 L.S.I. 182) the age of criminal responsibility was raised to 13 years; any minor who has not yet reached 13 years has no criminal responsibility at all. However, the Penal Law (Amendment No. 19) 1984 reduced the age of responsibility back to 12 years.
6 The proposal and commentary were published in (1980) 10 Mishpatim 203Google Scholar.
7 See “Criminal Code Bill — Preliminary and General Parts (Text and Brief Commentary)” (1984) 14 Mishpatim 127Google Scholar.
8 Mandelbrot v. A.G. (1956) 10 P.D. 281; 2 S.J. 116.
9 Mizan v. A.G. (1957) 11 P.D. 770.
10 M'Naghten case (1843) 8 E.R. 718.
11 Khalil v. A.G. (1942) 12 C.L.R. 29, at 31.
12 Supra n. 8.
13 Ibid., at 311; S.J. at 156.
14 At 313; S.J. at 157-158.
15 See views of Silberg J. at 340, before para. 6, and of Goiten J. at 344, para. 2. S.J.: Silberg J. at 194-195; Goiten J. at 200 (para. 2).
16 At 323-324; S.J. at 171-172.
17 At 325; S.J. at 173-174.
18 At 326; S.J. at 174.
19 At 333; S.J. at 184.
20 The section reads as follows: “15(a) A person is not criminally responsible for an act or omission which occurs independently of his will, or for an event which occurs by accident, unless criminal negligence is involved”.
21 For a different view, whereby sec. 11 of the Criminal Code Ordinance does not deal at all with voluntariness but with the mental element, see Feller, S.Z., “Is there no General Basis for the Mental Element of Crime in Israeli Law?” (1967) 23 HaPraklit 308Google Scholar.
22 The minority judges pointed out the difficulty in this conclusion: in sec. 11 of the Ordinance there is no hint of a reference to mental illness which is an essential condition — in the view of Agranat J. himself — for recognition of irresistible impulse. See p. 337, para. 6(b) (Silberg J.), p. 346, para. 6 (Goiten J.). S.J. at 190-191 (Silberg J.); 202-203 (Goiten J.).
23 The judgment, supra n. 9, was given on Feb. 24, 1956.
24 See the criminal codes listed by Feller in his above-mentioned book (supra n. 1) at 669, n. 42. In this spirit, it is provided in sec. 33 of the Proposal for a New General Part of the Penal Law (n. 6 above) that “no one shall bear criminal liability for an act that he has committed if, owing to illness or to a defect affecting his mind he was substantially unable —
(1)…
(2)to behave in a lawful way”.
25 State of Israel v. Rohan (1970) 68 P.M. 344.
26 Among the most prominent: A.G. v. Haham (1959) 13 P.D. 651, at 659; Zaneh v. A.G. (1962) 16 P.D. 841, at 843; Abu Rabieh v. A.G. (1963) 17 P.D. 2913.
27 See e.g., sec. 15 of the German Criminal Code, 1975; sec. 18 of the Swiss Criminal Code, 1937; sec. 19 of the Romanian Criminal Code, 1969; sec. 26 of the Greek Criminal Code, 1951. See also sec. 2.02(3) of the Model Penal Code of the United States.
28 Deutsch v. A.G. (1954) 8 P.D. 456; 2 S.J. 92.
29 The crime of manslaughter was defined in secs. 212 and 217 of the Criminal Code Ordinance — now secs. 298-299 of the Penal Law. On the difficulties raised by the interpretations adopted by the Court in the Deutsch case, see Kremnitzer, M., “On the Felony of Manslaughter in our Legal System” (1985) 36 HaPraklit 201Google Scholar.
30 Issan v. A.G. (1966) 20(iii) P.D. 102.
31 See discussion in Kremnitzer (supra n. 29) 210 and references in n. 30.
32 Maor-Mizrahi v. A.G. (1960) 14 P.D. 1882; 3 S.J. 266.
33 At 1890; S.J. at 275.
34 At 1889; S.J. at 273-274.
35 (1966) 20(i) P.D. 57Google Scholar.
36 Ibid., at 71.
37 Ibid.
38 Ibid.
39 Supra n. 6.
40 Ibid.
41 S.H. no. 1160, p. 31.
42 Sec. 1(a) of the Administrative Offences Law, 1985.
43 H.H. no. 1708, p. 59, at 61.
44 I have discussed elsewhere the argument that the Administrative Offences Law does not offer a proper solution for liability for public welfare offences. See Gur-Arye, M., “Absolute Liability for Public Welfare Offences — A Call to Exclude it from Criminal Law and Transfer it to Administrative Law” in Essays in Honour of Shimon Agranat (Jerusalem, 1986, in Hebrew) 241Google Scholar.
45 Secs. 13-15 of the Law.
46 Sec. 15 of the Law.
47 See survey of criteria in this context, in Lederman, A., “Absolute Liability in Criminal Law: The Problem and Modes of Solution” (1984) 3 Mehkarei Mishpat120, at 127–88Google Scholar; S.Z. Feller, supra n. 4, at 804-809.
48 (1983) 37(ii) P.D. 565Google Scholar.
49 Sec. 41 of the Courts Law, 1957 (11 L.S.I. 157) is now sec. 71 of the Courts Law [Consolidated Version] 1984 (38 L.S.I. 271).
50 Supra n. 48, at 586, end of para. 26.
51 For comprehensive criticism of the judgment, see Kremnitzer, M., “On Freedom of the Press and the Offence of Sub Judice Publication (Sec. 41 of the Courts Law)” in Criminal Law, Criminology and Police Science, Orion, G., ed., (Tel Aviv, 1986, in Hebrew) vol. 1, p. 165Google Scholar.
52 Supra n. 32.
53 The Azulai case, supra n. 48, at 583.
54 ibid., at 581.
55 For criticism in this spirit of the Azulai case, see Feller, S.Z., “The Establishment of Negligence Offence by Case-Law — An Alien Category” (1987) 12 Iyunei Mishpat 581Google Scholar.
56 (1958) 12 P.D. 1628Google Scholar.
57 Ibid., at 1642.
58 For a comprehensive critique of the application of joint liability of conspirators under Israeli law, see Feller, S.Z., “Criminal Responsibility Without Overt Act — on What Grounds?” (1973) 29 HaPraklit 19Google Scholar.
59 See Deutsch (supra n. 28) and Issan (supra n. 30) and adjoining text.
60 For criticism of the extensive scope of the offence of conspiracy, see Kremnitzer, M., “On Criminal Conspiracy and the Relationship Between Conspiracy and Incitement” (1984) 14 Mishpatim 231Google Scholar.
61 The section provides as follows:
“28. Where two or more persons associate to pursue an unlawful purpose, and in the course of its pursuit an offence is committed which by its nature is a probable consequence thereof, each of them present at the commission of the offence is deemed to have committed it”.
62 For an analysis of the conditions for imposing liability under sec. 24 of the Criminal Code Ordinance (sec. 28 of the Penal Law), see Dehan and Ben Harush v. State of Israel (1969) 23(i) P.D. 197; Feller, S.Z., “Section 24 of the Criminal Code Ordinance, 1936: Is It Designed for Aiding and Abetting?” (1976) 6 Mishpatim 275Google Scholar.
63 See in the same spirit Feller, supra n. 58.
64 A.G. v. Eichmann (1963) 45 P.M. 3; 36 International Law Reports (edited by E. Lauterpacht) 5.
65 Ibid., at 226-227; ILR, at 231-232.
66 See State of Israel v. Friedmann (1972) Daf LaPraklit 121; Ben Shoshan v. State of Israel (1976) 30(iii) P.D. 215, at 219; State of Israel v. Scharf (1977) 31(i) P.D. 68, at 74; Suzker v. State of Israel (1978) 32 P.D. 701, at 718; Muhammad Ali v. State of Israel (1983) 37(iii) P.D. 169, at 179; Albaz v. State of Israel (1984) 38(iv) P.D. 330, at 334.
67 Sec. 28 of the proposal (referred to supra n. 6) provides:
“A party to an offence shall bear criminal liability for an additional or different offence committed in the course of carrying out or attempting to carry out an offence, if it was within the scope of his actual expectation, or with regard to an offence of negligence — if it was within the scope of reasonable expectation”.
68 Formerly sec. 30 (3) of the Criminal Code Ordinance.
69 (1967) 55 P.M. 74Google Scholar.
70 An offence against regulation 3(1) of the Defence (Finance) Regulations.
71 For a comprehensive critique of this case, see Gur-Arye, M., “Impossibility of Completing the Crime and Its Influence on Punishment for the Attempt” (1978) 8 Mishpatim 310Google Scholar.
72 Siman-Tov case, supra n. 69, at 80.
73 State of Israel v. Siman-Tov (1967) 21(i) P.D. 340.
74 State of Israel v. Ben-Mamman (1974) 81 P.M. 534. For a detailed analysis of this case, see n. 71 supra.
75 Meisel v. State of Israel (1973) 27(ii) P.D. 421, at 427-428 — this view was cited by consent by the Supreme Court in Mosek v. State of Israel (1980) 34(i) P.D. 337, at 346.
76 (1986) 40(iii) P.D. 763Google Scholar.
77 An offence against sec. 7 of the Dangerous Drugs Ordinance [New Version], 1973 (3 L.S.I. [N.V.] 5).
78 Supra n. 76, at 773, para. 6.
79 For an extensive discussion on the grounds forming the basis of this view, see Kremnitzer, M., “The Punishability of Impossible Attempts” (1984) 19 Is.L.R. 340Google Scholar. For an analysis of the legal situation in Israeli law on this topic, see Feller, S.Z., “The Normative Basis of Criminality of the Failed Attempt under Israeli Law”, in Essays in Honour of Shimon Agranat (Jerusalem, 1986, in Hebrew) 215Google Scholar.