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Forty Years of Criminal Law — Further Comments

Published online by Cambridge University Press:  16 February 2016

Mordechai Kremnitzer
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Extract

In the following lines, I shall attempt to expand somewhat the scope of the survey, as a supplement to Dr. Miriam Gur-Arye's excellent paper on the requirement of fault. In addition, I will refer to the principle of legality, and to legislation in the field of criminal law. I shall also indicate what I regard as the proper directions for future development, as well as point out novel and disturbing trends in the application and implementation of the law.

Although Agranat J. had the courage to advance Israeli law beyond English law, by recognizing irresistible impulse in the wake of developments in the field of psychiatry and by a non-historical interpretation of the law, contemporary Israeli case law has refrained from taking another step forward in the light of further development in that science.

Type
Criminal Law
Information
Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 580 - 591
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990

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References

1 Eisenberg v. State of Israel (1983) 37(i) P.D. 819, at 824.

2 Ibid.

3 Fano v. Attorney General (1962) 16(ii) P.D. 1105, at 1111, 1112.

4 Feller, S. Z., Elements of Criminal Law, Vol. 1(Jerusalem, 1984, in Hebrew) 671Google Scholar.

5 BGHST 11,20 (1957). See also Geilen, , “Zur Problematik des schuldausschliessenden Affekts” in Maurach - Festschrift (Karlsruhe, 1972) 173Google Scholar; Rudolphi, , “Affekt and Schuld” in Henkel - Festschrift (Berlin, 1974) 199Google Scholar; Kruempelmann, , “Motivation und Handlung im Affekt” in Welzel - Festschrift (Berlin, 1974) 327Google Scholar.

6 SSt 42, Nr. 25; OJZ 1972, EvBl. Nr. 329; SSt 44, Nr. 28; OJZ 1976, EvBl. Nr. 115; Moos, R., “Die Toetung im Affekt” (1977) 89 ZStW798, at 810–813Google Scholar.

7 Mandelbrot v. Attorney General (1956) 10 P.D. 281; 2 S.J. 116.

8 Mizan v. Attorney General (1957) 11 P.D. 770.

9 Feller, S. Z., “Factual Tests for Identification of Volitional Insanity” (1984) 19 Is.L.R.10, at 44, 45Google Scholar.

10 Hamis v. State of Israel (1976) 30(ii) P.D. 729, at 735-737.

11 Agranat J. repeated this twofold requirement in his article “Developments in the Criminal Law” (1986) 11 Iyunei Mishpat33, at 41, 42Google Scholar.

12 L.S.I. Special volume.

13 Although it is not certain whether the principle of fault can be adopted in the full sense without a fuller and more comprehensive development of preventive measures the resort to which is not dependent on fault.

14 Kariv v. State of Israel (1978) 32(ii) P.D. 729, at 758.

15 Jacobovits v. Attorney General (1952) 6 P.D. 514.

16 On the development of this theme see S. Z. Feller, supra n. 4, at 770-780; State of Israel v. Said (1984) 38(ii) P.D. 533; Feller, S. Z., “The Test of Foreseeability in Criminal Law - An Elucidation” (1984) 36 HaPraklit 460Google Scholar.

17 As to the approach of the case law, see, in particular, Attorney General v. Segal (1955) 9 P.D. 393; Beno v. State of Israel (1970) 24(i) P.D. 561; Schimdtmann v. State of Israel (1980) 34(i) P.D. 63; Siman-Tov v. State of Israel (1982) 36(ii) P.D. 253; for a critical approach see S. Z. Feller, supra n. 4, at 567-581; S. Z. Feller, “Premeditation” (Beno v. State of Israel)” (1970) 26 HaPraklit 465; Feller, S. Z., “More Concerning ‘Preparation’ as a Component of Premeditation” (1981) 33 HaPraklit 578Google Scholar; Kremnitzer, M., “Premeditation or Ordinary Intention in Premeditated Murder” in Criminal Law, Criminology and Police Science, Orion, G., ed., (Tel Aviv, 1986, in Hebrew) vol. 1, p. 9Google Scholar.

18 Abu Rabiyeh v. Attorney General (1963) 17(iv) P.D. 2913, at 2929; Han v. State of Israel (1980) 34(iii) P.D. 589. For criticism of this approach see Feller, S. Z., “Negligent Rape by Virtue of Obiter Dicta” (1980) 10 Mishpatim 373Google Scholar; S. Z. Feller, supra n. 4, at 515-532. Agranat J. also associated himself with this approach, supra n. 11, at 46-49.

19 Attorney General v. Aslah (1950) 4 P.D. 496, at 499; Shurakah v. Attorney General (1953) 7 P.D. 545, at 550; Agranat, supra n. 11 at 49, 50. For another view, see S. Z. Feller, supra n. 4, at 534-537.

20 Barak, A., “Interpretation and Adjudication: Elements of an Israeli Theory of Statutory Interpretation” (1985) 10 Iyunei Mishpat 467Google Scholar; Mizrahi v. State of Israel (1981) 35(iv) P.D. 421; Electric Company v. Farscht (1985) 39(iii) P.D. 1, at 6.

A blatant and serious infringement of the principle of legality - pointed out by Dr. M. Gur-Arye - is the application in Israel without any normative basis, of the doctrine of joint liability of conspirators. Agranat J. has shown in his article, supra n. 11, at 60-63, that this ruling is “based on the erroneous idea that the presumption that a person intended the consequence which naturally or probably resulted from his conduct is a conclusive presumption - or in other words a material rule - whereas according to the Supreme Court it is no more than a rebuttable evidentiary presumption … it follows that the American rule, known as the ‘Pinkerton Doctrine’ ignores the requirement of mens rea” (p. 63). Although Agranat J. expressed the opinion that there was only a remote prospect that the Supreme Court would alter this rule, he expressed the hope that in the course of time the severity of this exception would be modified, whether by legislation or by the Court (p. 65). We share that hope, for one can hardly realize the disappointment of first-year law students when the academic year, which opens triumphantly with emphasis on the place and significance of the principle of legality ends with an anticlimax - in the admission that there has been a blatant infringement of the principle, when the topic of conspiracy is taught.

21 See, e.g. Mizrahi, supra n. 20, and criticism thereof: Kremnitzer, M., “Escape from Lawful Custody, by Omission? - A Further Note” (1984) 10 Iyunei Mishpat 195Google Scholar; Azulai v. State of Israel (1983) 37(ii) P.D. 569 and criticism thereof: Kremnitzer, M., “On Freedom of the Press and the Offence of Sub Judice Publication” in Criminal Law, Criminology and Police Science, Orion, G., ed., (Tel Aviv, 1986, in Hebrew) vol. 1, p. 165Google Scholar.

22 Agranat, S., “The Contribution of the Judiciary to the Legislative Endeavor” (1984) 10 Iyunei Mishpat233, at 241, 247, 248Google Scholar; Feller, S. Z., “Escape from Lawful Custody, by Omission?” (1982) 8 Iyunei Mishpat 630Google Scholar; Lederman, A., “The Legislative Intent, the ‘Normative Umbrella’ and the Interpretation of Penal Statutes” (1987) 37 HaPraklit 159Google Scholar; Feller, S. Z., “With Intent to Injure, as an Ingredient of the Offence According to Sec. 6 of the Defamation Law, 5725-1965: An Interpretative Approach - Limits and Basis” (1987) 17 Mishpatim 439Google Scholar; Levy, Y., “Who is to Accomplish Criminal Law Reform: The Interrelationship between Parliament and Judiciary” (1987/1988) 22 Is.L.R. 424Google Scholar; Gur-Arye, M., “Forty Years of Criminal Law: Developments in Case Law Re the Requirement of Fault”, in this issue, p. 560Google Scholar, the passage between nn. 48-55; Kremnitzer, M., “Interpretation in Criminal Law” (1986) 21 Is.L.R. 358Google Scholar.

23 Feller, S. Z., “Is there no General Basis for the Mental Element of Crime in Israeli Law?” (1967) 23 HaPraklit 308Google Scholar.

24 Ladani v. State of Israel (1982) 36 P.D. 29, at 39; Agranat, supra n. 11 at 42; for a skeptical viewpoint, see Eisenberg v. State of Israel, supra n. 1, at 825.

25 For detailed reasoning on which this attitude is based, see Kremnitzer, M., Principles of Structure and System of the Specific Offences, Doctoral Thesis in Law (Jerusalem, 1980, in Hebrew)Google Scholar.

26 Ibid., at 320; and see Shachar, Y., “The Sources of the Criminal Code Ordinance, 1936” (1979) 7 Iyunei Mishpat 75Google Scholar.

27 17 L.S.I. 153.

28 Supra n. 25, at 14-27.

29 Ibid., at 45-48.

30 Ibid., at 11-13, 89-91.

31 Scandalizing court, under sec. 255 of the Penal Law, whereby, from the point of view of the objective element, a statement or writing concerning a judge or dayan (judge of a religious court) as to his office is sufficient, provided it is accompanied by intention to bring the administration of justice into suspicion or contempt; racial incitement under sec. 144B of the Penal Law, and in this regard, Witkon J. in Hayat v. State of Israel (1978) 32(ii) P.D. 127, at 133.

32 See secs. 298 and 299 of the Penal Law; also the definition of theft in sec. 383, and membership in an unlawful organization under secs. 145 and 147.

33 Cf., e.g., secs. 330 and 456 of the Penal Law.

34 See Feller, S. Z.and Kremnitzer, M., “Criminal Code Bill - Preliminary and General Parts (Text and Brief Commentary)” (1984) 14 Mishpatim 127Google Scholar.

35 See Kremnitzer, M., “Rethinking Criminal Process” (1987) 17 Mishpatim 475Google Scholar.

36 Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Jerusalem, 1988) 64Google Scholar, para. 3.19.

37 Granting permission for employing a moderate degree of physical pressure against terrorist suspects.

38 Mu'adi v. State of Israel (1984) 38(ii) P.D. 197, as summarized and stated in the Landau Report, supra n. 36, para. 3.19.

39 Public Buildings (Cold Water Drinking Devices) Law, 1986, S.H.no. 1199, p. 16Google Scholar.

40 Prevention of Terrorism Ordinance (Amendment No. 2) Law, 1986, S.H.no. 1191, p. 219Google Scholar.

41 Ibid.

42 I am aware that the expression “means of repression” is a harsh one. However, where people are deprived of the right of expression, organization and demonstration in the political sphere, and criminal machinery is operated against them for acts which normally come within the legitimate sphere of the realization of those rights, the term “repression” seems to me a suitable one, and I see no reason not to call things by their proper name.

43 Kremnitzer, M., “The Case of the Security Services Pardon” (1987) 12 Iyunei Mishpat 595Google Scholar.