Comparative Criminal Law (State of Mind - Mens Rea (wk4) (Several meanings…
Comparative Criminal Law
Transgression of Legal Norms
...to eliminate or reduce harm to persons other than the actor AND there is no other effective means to reach the same goal.
... to prevent serious offence to a person other than the actor
It is always a good reason in
support of (penal) legislation
or a legal prohibition ...
: ... that it probably
other persons than the person who is prohibited.
Liberty Limiting Theories
It is always a good reason in support of a legal prohibition that it is probably necessary to
prevent (any form of) harm to the actor himself
' Narrow sense'
It is morally legitimate to prohibit
, because it is
, although it does not cause harm nor offence to anyone.
It can be morally legitimate to prohibit types of actions that create harm nor offence to anyone, on the ground that
they cause other or 'free floating' evils.
The Liberal Position
The harm and offence principles are the only good reasons for a legal prohibition
... that it is probably necessary for the improvement of (A) citizens in general or (B) the very person whose liberty is limited.
Benefit-conferring Legal Paternalism:
.. that it probably
who is prohibited.
Fletcher - Nature of criminal law -
Three perspectives on the nature of crime
to another person
thwarting, setting back, or defeating of an interest (Feinberg Quote)
concrete physical manifestation observable by all
Role of prohibition in perception of harms?
Focus: on victim
- protection of human freedom
- purpose of punishment is to further interests of society
Focus: causing harm under particular circumstances
Thou shall not do X, while Y, Z or A,B,C. Context is important.
EX: driving while intoxicated, flying while drunk etc.
EX: Homicide - duty
not to kill
violated to another person, to society, to a sovereign or to God.
Leads to Kant: inherent wrong of transgressing against one's duties.
Problem: can/does lead punishment of violating a duty alone, without wrongdoing in the real world:
EX: fiduciary duties - commodity trading.
Focus: on actor
Human Conduct -
Functional Perpetration and Corporate Criminal Liability
Post War Developments
Iron Wire case - forgery of documents, only attributable to suspect, if (1) cat. of daily events. (2) would & could dispose
Context: Welfare society
Regulative criminal law: technical & teleological
Emphasis on negligence & omissions
Towards corporate criminal liability
Dispose and accept'
to corporate criminal liability
No soul to damn, no body to kick
Collective guilt problem
to corporate criminal liability
Corporation can act, has a 'general will' and maybe conscience?
Legal corporations have pockets: can pay fines.
Corporations can be suspended or dissolved
Sensitivity for loss of reputations
Corporate Criminal Liability in International Law
None: Art 25: natural persons
Vicarious Liability is a bad idea: blurred lines?
Complementarity: national systems have the first shot. Problem: they will not try own cooperations
Society cannot commit a crime (or be punished as a whole)
French proposal for introduction of CCR
Natural person has control within the organisation.
Crime fits the daily course of activities.
Offence committed by
on behalf of
Problem: war crimes happen at the top of the leadership chain...
: daily course of activities; position nat. person & principle; agreement & acceptance of activies; profits!?
Krupp concern - No Mens Rea & no inner circle hitler
Frans van Anraat: did he know? He made a profit at least & he had a strong position
Church vs. Talisman: laying down airstrips...
Omissions /= willed muscular contraction, thus no criminal responsibility
Lack of legal certainty (legality principle)
Problem: one can kill without a wilful act
Infringement of human freedoms
duty to act - What if you do not want to act?
Who is the addressee?
duty to act
Three varieties of culpable omissions
Direct liability for omissions
EX: Witness not coming to court
Direct liability for negligently causing harm
EX: Road traffic act
liability for failing to avert harm =
commission by omission
EX: Museum guard looking away from museum being robbed
: legality principle? Double jeopardy?
Human Conduct = willed muscular contraction
State of Mind -
Several meanings of '
Culpa / Schuld (NL)
Problem (Hart): how does strict liability work then?
Guilty of an offence (Art 27 DCCP)
Guilty in the mind (mens rea)
: Guilt as an element of crime? (common law)
Outside of guilt: being guilty (Kafka)
Inside of guilt 'feeling guilty'
Nulla Poena sine Culpa
EX: different translations of Dostojevski: Crime & punishment - Guilt & Atonement
Culpa in Causa
Intoxicated at moment of commission (still intent?) otherwise acquittal
You know the effects of intoxication: culpa to earlier moment
Dolus Eventualis (or Recklessness)
Civil law: Two models of acts & aims -
Act -- (intent) --> Effect -- (intent) --> Aim
EX: Van Bremerhaven (insurance fraud)
Act -- (effect 1) --> Offence
..... -- (effect 2) --> Aim
EX: Hoornse Taart (no intent, but side effect accepted)
Role for Judge: intent?
Common law: Recklessness
Knowning - 'concious negligence'
Level of knowledge easier to prove then will (jury?)
Mens Rea comparative &
in International Criminal Law
Comparative (Duress example)
Civil: full defence
Criminal offence committed
Common: not a full defence
EX: dudley vs. Stephens (rafts)
Proportionality (offence and averted danger)
No Culpa in Causa
No possibility to avoid harm
Immediate, Serious & irreparable Danger
EX: Erdemovic case (shot people to protect children) - Common law approach followed.
Intent (or Motive)
more than on
(makes crime also worse and punishment more severe)
Barbaric or cruel methods
Dangerousness for society
Surreptitiousness - covering up the crime
'Hooliganistic purpuse' (Sovjet)
Example: Qualified forms of Homicide
Concurrence with other offence
More severe punishment: two offences, one does not scare away from more crimes
Art 288 DPC: Homicide with terrorist aim 30 years or Fine of 5th cat.
EU Framework dec: intimidating a population, compelling a gov. or international organization to perform or abstain an act; destabilising or destroying fundamental, political, constitutional, economic or social structures of a country.
a Terrorist aim?
Do terrorist act -> create public fear -> reach political motive
-> create public fear
-> pressure the state
-> destruct society
Audience is needed, motives not clear
The Nature of criminal law -
Why do we punish?
Two theories of punishment
"Qua Peccatum Retribution"
Goals of punishment
Important Legal Philosophers
A person is
a means to an end. One cannot punish one, to make another better.. Retribution solely for the harm inflicted
Bentham (consequentialism) / utilitarianism
Morality of an act only judged by its consequences
EX: Janus Face
Looking into the sunlight: deterrence
Looking backwards: retribution
International Criminal Law
Commitment on a wide scale
State is involved
Adjudication of (very) serious crimes -
Often political & military leaders as purpetrators
Theories of punishment in International Criminal Law
Goering (in Nürenberg) - First offender, will never do this again.
Punishing Joseph Kony vs. his child soldiers?)
Conflict resolution - Wiedergutmachung
Rwanda: Hoetoe's & Tusi's genocide
Retribution (problem of proportionality)
- The Schreibtisch Mörderer
Hannah Arendt: Judge, stick to the law - rest is not in your job description
Durkheim, not on small scale (one society), but internationally
Right/Duty of international community to intervene
Two schools of thought (a historical perspective)
Modern school of thought
'victory of science'
Focus on perpetrator: 'make him better'
Comprehensive theories of
of criminal law
Founding father of sociology
Punishment repairs 'rupture' caused by infringement
Collective conscience restored
Crimes = infringement most basic norms
Criminal law = most cherished values of society
Punishment as ultimate form of social control
Ancient times (secret trial, open punishment) vs. modernity (open trial, 'secret'/closed punishment)
EX: Crucifixion (ancient)
EX: Bentham's Panopticon (modern?)
(away from public law)
- a disagreement between Durkheim & Foucault
to Crim. Law
Individual is important. Suspicion of the state = norm. A proportionate reaction is not self-evident.
High trust in State Authorities
Proportionality / subsidiarity (of state) implied
Roles for the victim
Participating in procedings
NL (art 12. crim procedure). US: prosecutor. Ge: legalities principle - no refusal
Classic school of thought
Principle of Legality:
"nullum crimen sine lege, nulla poena sine lege,"
The wrongful act
Proportionality between crime and punishment
Only repressive punishment
Ideal: human Freedom - Protect the individual against the state (French Revolution)
Expansion (of criminal responsibility):
Self standing forms of participation
Public Assault (DPC 141)
Mens Rea: intent or public character of assault
Cooperation: in association
Contribution: significant (single pressence not enough)
Organisation with purpose to commit crimes (DPC 140)
Contribution: having part / supporting conduct serving the realisation of the criminal purpose
Mens Rea: unconditional (no dolus eventualis)
Cooperation: belonging to sustainable alliance
Criminal law doctrines (in general)
Inducement (Instigator / solicitor)
Aiding and abbetting
Perpetrator(s) by means
Principals (instigate the crime)
Principle of accessority:
without offence, no perpetration
Actual contribution? (actus reus)
Perpetration & participation in int. Crim. Law
Lubanga Case - co-perpetration of war crimes (Art 25. Rome Statute) - enlisting child soldiers
Accused meant to conscript (etc) or was aware that this would happen
Awareness of essential contribution (intent to co-operate).
Awareness of Existence Armed Conflict (only war crime, when there is an armed conflict).
Agreement or Common Plan between Accused and at least one other Co-perpetrator
Perpetration by means of another person or by means of an organisation
EX: Eichman - used people, but they were interchangable, only function was important
Perpetration by means: direct perpetration is criminally liable
Perpetration by means and co-perpetration (participation in perpetration?)
Goal: norm expression
Case specific: using each others soldiers as commanders
Joint criminal enterprise (JCE)
Common Purpose of committing crimes
Plurality of persons
Concentration camp cases
EX: cleaners 'just did their job', perpetrators couldn't act differently
Actus reus & mens rea
Participant commits a crime outside of JCE
Co-perpetration cannot be used
All participants have same intent
EX: Dusko Tadic
In Dutch Law (DPC)
1st: Concious, narrow and complete perpetration
2nd: Jointly execute the crime
EX: Arson in Wormerveer, Joint robbery
EX: container theft, co-perpetrator absent
Perpetration by means (of another)
Direct perpetrator gets of scot free (
knowledge, error, violence, absence of quality)
EX: Terp Case (foreman induced others to dig from a terp)
Aiding & abbetting
Intentionally give opportunity, means or information for offence
Need not be the same intention as principal
EX: pickpocket gang, aided by a beautiful women diverting attention
EX: on the lookout
Cooperation - not requirement
Contribution: substantial effect - requirement
Inducer has initiative
Use of certain means
Decision to act
Cooperation not necessary
Expansion (of criminal responsibility):
Attempt in (Dutch) criminal law - moderately objectivist
Case: poging tot gasmoord - defendant took second step to kill
Case: Eindhovense brandstichting - burning house down to deceive insurance company
Case: Cito uitzendbureau - practicing robbery
Case: Heroin Transaction - Heroin not available
Case: Grenswisselkantoor - in the car ready to rob , but last step not completed
Videorecorder - Fraud/Deception
Sugar instead of arcen
Not enough arcen
Killing a dead person
Shooting a treetrunk
Preparation of terrorist offences (Art 96.2 DPC)
Crime needs to be proven
Attempt in the criminal law doctrine
Line between preparation and attempt?
Poisoning cases: sugar instead of arcene
Empty receptacle cases: empty receptable
Shooting cases: aim to kill, bad eyes
Receiving stolen property: but it's not stolen
Fletcher: Rational Motivation theory
Checking the motivation for the impossible attempt: was there intent to commit an offence
.>> Prep >> ... >>>>>>>>> Attempt >>>>>>>>> ... > Crime >
Attempt starts early in process
Dangerousness of the person - early intervention police?
.>>>>>>>>> Prep >>>>>>>>> ... >> Attempt >> ... > Crime >
Attempt starts late in process
Criteria / theories
'Last step' : ultra objectivist
Stages of commission
EX: rob a bank: buy a car, hire a lookout, buy a gun etc.
Criterion of danger
when acts are clearly a crime
EX: Rape, but: not always manifest + might reveal racial tensions in convictions etc.
Dangerousness of the Act - 'aptness' (bekwaamheid)
Problem of abandonment:
why is voluntary abandonment a [defence?]
Immunity for desister: thus attemptors encouraged to quit act
inference of non-dangerousness
Quitting act is proof that intent required for carrying out the act was not big enough
(rudimentaire) Crimes in International Law
Art. 25 Rome Statute - Crime of Genocide - Substantial step & abandonment
EX: ICTR - Media Case
EX: ICTR - Simon Bikindi - difference in who commits?
Contraction (of criminal responsibility):
Defences in International Criminal Law
Crimes against humanity: Duress / Mistake of law (excuse, no justification)
Subsidiarity: consequence refusal to obey?
Culpa in causa: military drafting
Garantenstellung: duty to obey?
Superior's orders (Art 33. Rome)
Obligation to abstain from war crimes
Military duty to obey
EX: ECHR - Kononov case - Sovjet Partizans - legality principle
Mental Disease as excuse (Rome Art. 31.1.a): No capacity to appreciate unlawfulness or capacity to control own conduct
Defences in General Law Doctrine
Is there (compliance with) criminal offence?
EX: Dutch Law - Grounds for excluding criminal liability
- Overmacht - 'force majeur as justification' - Theory of lesser evils (Art. 40.1)
EX: optician case
Self-Defence (Art. 41.1)
Absence of material wrongfulness
Duress (Art 40.2 DPC)
Excess of Self-Defence (Art 41.2)
Insanity (Art 39. DPC)
Unauthorised superior order
Absence of all culpability
Mistake of Law
Mistake of fact
'excusable force majeure aspects
have acted otherwise
A verification organisation/body
'Culpa in Causa'
Insanity and mental incapacity
Judge: last step - is attribution of offence to defendant possible? Judge vs. expert
3 Q's: (1) mental incapacity at time of offence (2) causal relationship incapacity & offence (3) offence be attributed?
duress and necessity
Force majeur as excuse
EX: Dudley vs. Stephens - pushing people of the raft. Common law - capital crimes does not fly, only reduction of punishment
mistake of fact and mistake of law
Don't know relevant facts
Don't know that facts are not allowed under the law
applicability of the legal norm to current sit.
Incorrect legal advice
General validity of the rule
proportionality: 'necessary self defence'
subsidiarity: 'requiered' defence
No culpa in cuase
3 ways to assess self-defence
Variation of lesser evils?
Vindication of autonomy?
EX: Goetze - subway shoorting &screwdrivers
Subsidiartiy: no other means?
Proportionality: Garantenstellung: holding defendant to a higher standard because of occupation or specific quality
Within Occupaional group: differences
Excess of self-defence
Intensive versus extensive (means of defence)
Prior sit. of self-defence
Actus Reus & Mens Rea (when = what?)
Hierarchy (Rome statute Art 28: effective command & control)
Knowledge (DPC 135: knowing of a criminal conspiracy)
Contractual Relations (Swimming pool)
Family bonds (duties of care for children/family)
Resolving: Welzel's Finale Handlungslere': Action = purposeful conduct, will/motive is visible in actions of the actor