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Chapter F – Rules of liability for an offense (187-208) Print E-mail
Order regarding Security Provisions

Definition

187. In this chapter –

“Offense” – an action, omission or attempt punishable under law or security legislation

Double jeopardy

188. (A) In this section –

“Action” – including omission.

(B) A person may not be tried for an action for which he was previously acquitted or convicted of an offense in a ruling issued by a military court in the Area, or a held area or by a court in Israel; but if the action caused the death of [another] person, he may be tried for this even if previously convicted of a different offense related to the same action.

Offenses committed partly within the Area and partly outside the Area

189. A person who commits any part of an action that would be considered an offense if committed entirely within the confines of the Area, and is committed partly within the confines of the Area and partly outside of the confines of the Area may be tried and punished, as if the entire action was committed within the confines of the Area.

Ignorance of the law or security legislation

190. Ignorance of the law or security legislation does not serve as justification for any action or omission that otherwise would constitute an offense unless it is explicitly stated that the offender’s knowledge of the law or security legislation is one of the foundations of the offense.

Criminal liability of a minor

191. (A) A child shall not bear criminal liability for any action or omission.

(B) A person who committed an offense while he was a child, shall not be arrested or prosecuted in a military court for it.

Intention or motive

192. (A) Subject to the detailed directives in the law or in security legislation in regard to negligent actions or omissions, a person shall not bear criminal liability for an action or omission that occurred unintentionally, but due to an event that occurred by chance.

(B) Unless it is explicitly stated that the intention to cause a specific consequence is one of the elements of the offense which was committed entirely or in part by an action or omission, it is irrelevant whether or not the offender intended to cause this consequence by an action or omission.

(C) Unless it is explicitly stated otherwise, in all things pertaining to criminal liability, it is irrelevant what the motive is that drives a person to commit or omit or generate an intention.

Error in fact

193. A person who commits an action or does not commit it in the sincere and reasonable, though erroneous, belief in the reality of a certain state of affairs, shall not bear a greater extent of criminal liability for the action or omission than he would if the real state of affairs had been as he believed.

Assumption of lucidity

194. It is assumed that any person is of lucid mind and was of lucid mind at all possible times until proven to the contrary.

Insanity

195. A person shall not bear liability for an action or omission if at the time of committing the action or omission he was incapable of understanding what he did or of knowing that it was forbidden to commit the action or omission due to illness that impaired his lucidity. However, it is possible for a person to be criminally responsible for an action or omission even if his lucidity is impaired by illness if this illness does not truly engender one of the consequences cited above in regard to the particular action or omission.

Drunkenness

196. (A) For the purposes of this section, “drunkenness” shall include a state created by the use of intoxicating drugs.

(B) Except for the stipulations in this section, drunkenness shall not serve as a defense against any charge.

(C) Drunkenness shall serve as a defense against any charge if while committing the action or omission for which he is charged, the defendant did not know due to his drunkenness that the action or omission was improper or did not know what he did, and also –

(1) If his state of drunkenness was caused, without his consent, by an act of malice or negligence by another person: or
(2) If, due to his drunkenness, the defendant was, at the time of committing the action or its omission, a state of insanity as defined in Section 195.

(D) In a case where a defense in accordance with Subsection (C) is proven, if the matter falls within the domain of Paragraph (1) of Subsection (C), the defendant shall be released, and if the matter falls within the domain of Paragraph (2) of Subsection (C), the provisions of Section 194 shall apply.

(E) Drunkenness shall be taken into account when determining whether the defendant had a special or other intention without which he would not be guilty of the offense he committed.

Compulsion

197. Except for an act of murder and offenses subject to capital punishment, any action committed by a person who was compelled to do it because of threats at the time of the action which provided reasonable grounds to fear that the person, at that moment, be killed or suffer severe injury if he did not surrender to the threats – is not an offense; under the condition that the person who committed this act did not willingly place himself in the situation in which he was subject to such compulsion.

Necessity

198. A defendant shall be forgiven for an action or omission that would otherwise be considered an offense, if he can show that the action was committed or omitted only in order to prevent consequences that were impossible to prevent otherwise, and if these consequences had occurred, they would have caused damage or serious injury to his own body or dignity or property, or the body or dignity of other persons, which he had to defend, or to assets entrusted to him; under the condition that in doing this he did not do more than what was reasonably necessary to do for this purpose, and under the condition that the damage or injury caused by his action or omission is not greater than the damage or injury he sought to prevent.

Justification

199. (A) A person shall not bear criminal liability for an action or omission if he committed or refrained from committing the action for one of the following reasons:

(1) While carrying out security legislation or law.
(2) While obeying an order issued by an “authoritative” authority he is obligated to obey according to security legislation, unless the order is patently illegal.

(B) The question of whether or not an order is patently illegal is a question of law.

Coercion by husband

200. A married woman is not exempt from criminal liability for committing or failing to commit a particular action only due to the fact that the action or omission was committed in the presence of the husband.

Principal offenders

201. (A) If an offense is committed, each of the following persons shall be regarded as if they partook in the commission of the offense and shall be held guilty of the offense, and it is possible to charge them with the commission of the offense:

(1) Principal perpetrator - Any person who actually committed the action or one of the actions or who committed the omission or one of the omissions which constitute the offense;
(2) Accomplice - Anyone who commits or refrains from committing a particular action in order to enable another person to commit the offense or in order to assist him in committing the offense;
(3) Facilitator - Any person who aids another person in committing an offense, whether he is present at the time the offense is committed or is not present at the time the offense is committed.
A person is considered to have aided if he was present in the place where the offense was committed in order to overcome opposition or strengthen the decision of the real perpetrator of the offense or to ensure the execution of the offense that was about to be committed;
(4) Advisor or inducer- Any person advising or soliciting another person to commit the offense, whether he is present or is not present at the time the offense is committed.

(B) In the case noted in Paragraph (4) of Subsection (A), it is possible to charge the person with commission of the offense or advising or soliciting its commission.

(C) When convicting a person for advising another person or soliciting him to commit an offense, this conviction entails all of the consequences involved in a conviction for committing the offense itself.

(D) Anyone who solicits another person to commit or refrain from committing an action, and had he committed the action or omission himself it would have constituted an offense on his part, shall be charged with the same type of offense and shall be subject to precisely the same punishment as if he himself had committed the action or omission.

Offenses committed to attain shared objective

202. When two or more persons create a shared intention to promote an illegal objective, and while promoting such objective an offense is committed or offenses of a type whose execution is a possible consequence of promoting such objective, each of the persons present at the time when one of these offenses is committed shall be regarded as if he committed the offense or offenses.

The mode of execution is irrelevant

203. (A) When a person advises another person to commit an offense and the latter indeed commits an offense after receiving the advice, it is irrelevant whether the offense which was actually committed is the same offense he was advised to commit or a different offense, or whether the offense was committed in the mode he was advised to commit it or in a different mode; provided that for each of the aforementioned cases the facts constituting the offense actually committed are a possible consequence of carrying out the advice.

(B) In each of the aforementioned cases, the person who gives the advice shall be considered as having advised the other person to commit the offense that he actually committed provided that if a particular person solicited or advised another person in any way to commit an offense, and before it is committed he retracts and cancels the advice, he shall not be considered as having committed the offense if the offense is subsequently committed.

Attempts

204. Unless otherwise stipulated or implied by a statute all the provisions applicable to the commission of the entire offense shall also apply to an attempt to commit it.

Definition of attempt

205. (A) A person is regarded as attempting to commit an offense when he begins to carry out his intention to commit the offense via means appropriate for carrying out his intention, expresses his intention through an open act and does not carry out his intention to the point of completing the offense.

(B) It is irrelevant, except in regard to punishment, whether the offender does everything on his part to complete the commission of the offense or whether the complete execution of his intention was prevented by circumstances beyond his control, or if he refrained of his own accord from continuing to carry out his intention.

(C) It is irrelevant whether, due to reasons unknown to the offender, there was no actual possibility of committing the offense.

(D) A provision stipulating mandatory punishment or minimal punishment for an offense shall not apply to an attempt to commit it.

Attempts to solicit, seduce or incite to criminal act

206. A person attempting to solicit or seduce or incite another person to commit or not to commit, in the Area or elsewhere, an action or an omission of such type which if the action is committed or the omission occurs an offense would be committed according to law or according to security legislation by him or by the other person – he shall be charged of an offense of the same type and shall be subject to the same punishment as if he himself had attempted to commit the action or omission in the Area.

Offenses of corporation

207. If a corporation is convicted of an offense under the security legislation or the law, the person who was at the time of the offense the director or clerk of the corporation shall be regarded as guilty of the said offense unless proven that the offense was committed without his knowledge or that he took all reasonable measures to prevent the commission of the offense.

Burden of proof

208. A person charged with an offense under the security legislation bears the burden of proof that his matter is exempt, permitted or justified, or that he possessed a license, permit, approval or authorization.

 
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