Comparative Criminal Law 6. Defences

Transcription

1 Comparative Criminal Law 6 Defences

2 Content Defenses. Infringement. Guilt. Corporate responsibility.

3 Two, three or more elements? Actus reus and mens rea (-defenses) Actus reus, infringement of law, guilt Objective and subjective side and circumstances Responsibility as the fourth element?

4 Defenses Incapacititating Psychological Circumstantial Subjective excuses Objective justifications...

5 Consentment by victim Volenti non fit injuria Penal exclusions of the principle Euthanasia CanPC 14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. Sadomasochism GPC Section 228 Consent Whoever commits bodily injury with the consent of the injured person only acts unlawfully if the act is, despite the consent, contrary to good morals. Valid consent?

6 Order, permission by law FPC ARTICLE A person is not criminally liable who performs an act prescribed or authorised by legislative or regulatory provisions. A person is not criminally liable who performs an action commanded by a lawful authority, unless the action is manifestly unlawful. (cf Command responsibility)

7 Order, permission by law SPC Art. 14 Any person who acts as required or permitted by the law, acts lawfully even if the act carries a penalty under this Code or another Act.

8 Legitimate defense FPC ARTICLE A person is not criminally liable if, confronted with an unjustified attack upon himself or upon another, he performs at that moment an action compelled by the necessity of self-defence or the defence of another person, except where the means of defence used are not proportionate to the seriousness of the attack. A person is not criminally liable if, to interrupt the commission of a felony or a misdemeanour against property, he performs an act of defence other than wilful murder, where the act is strictly necessary for the intended objective the means used are proportionate to the gravity of the offence.

9 Legitimate defense SPC Art. 15 If any person is unlawfully attacked or threatened with imminent attack, the person attacked and any other person are entitled to ward off the attack by means that are reasonable in the circumstances. Art If a person in defending himself exceeds the limits of selfdefence as defined in Article 15 and in doing so commits an offence, the court shall reduce the sentence. 2 If a person in defending himself exceeds the limits of selfdefence as a result of excusable excitement or panic in reaction to the attack, he does not commit an offence.

10 Legitimate defense, state of necessity ARTICLE A person is presumed to have acted in a state of selfdefence if he performs an action 1 to repulse at night an entry to an inhabited place committed by breaking in, violence or deception; 2 to defend himself against the perpetrators of theft or pillage carried out with violence. ARTICLE A person is not criminally liable if confronted with a present or imminent danger to himself, another person or property, he performs an act necessary to ensure the safety of the person or property, except where the means used are disproportionate to the seriousness of the threat.

11 State of necessity SPC Art. 17 Any person who carries out an act that carries a criminal penalty in order to save a legal interest of his own or of another from immediate and not otherwise avertable danger, acts lawfully if by doing so he safeguards interests of higher value. Art Any person who carries out an act that carries a criminal penalty in order to save himself or another from immediate and not otherwise avertable danger to life or limb, freedom, honour, property or other interests of high value shall receive a reduced penalty if he could reasonably have been expected to abandon the endangered interest. 2 If the person concerned could not have been reasonably expected to abandon the endangered interest, he does not commit an offence.

12 Legitimate defense, state of necessity GPC Section 32 Necessary Defense (1) Whoever commits an act, required as necessary defense, does not act unlawfully. (2) Necessary defense is the defense which is required to avert an imminent unlawful assault from oneself or another. Section 33 Excessive Necessary Defense If the perpetrator exceeds the limits of necessary defense due to confusion, fear or fright, then he shall not be punished. Section 34 Necessity as Justification Whoever, faced with an imminent danger to life, limb, freedom, honor, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with. This shall apply, however, only to the extent that the act is a proportionate means to avert the danger.

13 State of necessity GPC Section 35 Necessity as Excuse (1) Whoever, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply to the extent that the perpetrator could be expected under the circumstances to assume the risk, in particular, because he himself caused the danger or stood in a special legal relationship; however the punishment may be mitigated pursuant to Section 49 subsection (1), if the perpetrator was not required to assume the risk with respect to a special legal relationship. (2) If upon commission of the act the perpetrator mistakenly assumes that circumstances exist, which would excuse him under subsection (1), he will only be punished, if he could have avoided the mistake. The punishment shall be mitigated pursuant to Section 49 subsection (1).

14 Minority FPC ARTICLE Minors able to understand what they are doing are criminally responsible for the felonies, misdemeanours or petty offences of which they have been found guilty, and are subject to measures of protection, assistance, supervision and education according to the conditions laid down by specific legislation. This legislation also determines the educational measures that may be imposed upon minors aged between ten and eighteen years of age, as well as the penalties which may be imposed upon minors aged between thirteen and eighteen years old, taking into account the reduction in responsibility resulting from their age.

15 Minority GPC Section 19 A Child's Lack of Capacity to be Adjudged Guilty Whoever upon commission of the act is under fourteen years of age lacks capacity to be adjudged guilty. England, Crime and Disorder Act 1988, Art. 34: ten years CanPC 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. Juvenile regimes TASK: study minors' penal responsibility in a country

16 Psychical condition CanPC 16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

17 Psychical condition FPC ARTICLE A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions. A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.

18 Psychical condition GPC Section 20 Lack of Capacity to be Adjudged Guilty due to Emotional Disorders Whoever upon commission of the act is incapable of appreciating the wrongfulness of the act or acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality, acts without guilt. Section 21 Diminished Capacity to be Adjudged Guilty If the capacity of the perpetrator to appreciate the wrongfulness of the act or to act in accordance with such appreciation is substantially diminished upon commission of the act due to one of the reasons indicated in Section 20, then the punishment may be mitigated pursuant to Section 49 subsection (1).

19 Psychical condition SPC Art If the person concerned was unable at the time of the act to appreciate that his act was wrong or to act in accordance with this appreciation of the act, he is not liable to prosecution. 2 If the person concerned was only partially able at the time of the act to appreciate that his act was wrong or to act in accordance with this appreciation of the act, the court shall reduce the sentence. 3 Measures in accordance with Articles 59 61, 63, 64, 67 and 67b may, however, be taken. 4 If it was possible for the person concerned to avoid his state of mental incapacity or diminished responsibility and had he done so to foresee the act that may be committed in that state, paragraphs 1 3 do not apply.

20 Psychical condition Psychopathy Intoxication Pathological intoxication, delirium tremens Measures applicable instead of punishment

21 Constraint, duress CanPC 17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

22 Constraint; error FPC ARTICLE A person is not criminally liable who acted under the influence of a force or constraint which he could not resist. ARTICLE A person is not criminally liable who establishes that he believed he could legitimately perform the action because of a mistake of law that he was not in a position to avoid.

23 Error... of fact; (issue of mens rea)... of principle; Nemo censetur ignorantem legem.... of law. NorPC