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Ido Disnz Magic
vs
State of Israel
Home - sitting as the Supreme Court - criminal appeals court
[12/3/1997]
Before President A. Barak judges A. Goldberg, A. Find
Minor's name appeared in an article published in the newspaper Maariv. From the article indicates that there is suspicion that the minor's father made her mother's death. The state accused the newspaper, the appellant - the main editor and reporter of violating the Section 24 (a) (1) of the Youth (Care supervision), Ts"c 1960. The paper admitted the facts and convicted - though he admits. House - Magistrate's Court convicted the appellant and the reporter. House - Court found that the Editor can be seen as having published the article, and as he has personal responsibility for its publication. more determined that criminal liability shall be imposed on the editor only if the mental element of criminal intent or negligence. House - Court ruled that appellant was negligent by failing to set guidelines that prevent publication of the name of a minor. appellant's appeal to - the district court declined majority Msnfsk that the editor responsible for criminal activity - which is essentially the responsibility vicariously - offenses paper. Mshorsha paper, enough to convict the editor in chief. Hence the appeal.
House - the Supreme Court ruled:
A.. (1) There is no dispute that the editor is a central organ in the paper, thinking and actions, within the role, are thinking and actions of the newspaper. That created the connection between behavior and the responsibility for the newspaper editor. But if Danan question is "inverted", ie the connection between responsibility and liability newspaper editor (197 B - C).
(2) the responsibility of running a corporation organized can derive two main sources: one, if the organ has, on - by his own behavior, the elements (factual and mental) of the offense. For this purpose, may be organized perpetrator (or jointly with another). You may, of course, is a party organized offense that operation, but wheedling or help. This responsibility is personal. Scope is determined by - the factual and mental elements set offense with which he was charged. There is a contingent of criminal responsibility of the corporation (197 c - e).
(3) The second source is the responsibility of the organ may be teaching - Law states that the organ will be responsible for criminal activity if the corporation is responsible for criminal activity. This responsibility is essentially a kind - Workshops: The organ itself is not personally responsible for criminal activity. Criminal responsibility rests on him because of corporate criminal responsibility. No criminal liability on the corporation, not the organ responsible for (the 197 - F).
At. (1) - according to Jewish law the verse, could be determined that the offense, her tongue does not take a position regarding the mental element is negligence offense. This law was on - by teaching section 19 of the Penal Code, 1977. Here is that the absence of provision of an offense under section 24 Youth Law (treatment supervision) that negligence is the mental element necessary to its inception, the required mental element of criminal intent is. There is no other place to establish a mental element of the negligence of an offense the "paralysis" as a state of mind. All silence should be interpreted requires criminal intent or strict liability (198 a - d).
(2) because not claimed responsibility for the appellant is strict liability, the required mental state of criminal intent. Mental state that is attributed to - the prosecution asked not attribute it to various courts - appellant. Hence that impose personal liability on the appellant in respect of advertising contrary to Section 24 Youth Law (treatment supervision) (198 d - f).
(3) The article was published before the change in law, and - according to the law which prevailed when released, it was possible to determine that the basic principle mental Youth Law Article 24 (Handling supervision) is negligence. But when he came into effect this patch, apply, where he was a stick, the making (Section 5 (a) of the Penal Code). In the absence of strict liability claim, the approach requires a mental element of criminal intent with which makes it easier on - the mental approach Hmstfkt basis of negligence (the 198 - F).
C. Placed on the appellant to a kind of responsibility - editor of vicariously offense committed - by the newspaper, teaching is required by law. Such provision is not available. Youth Law Article 24 (Handling oversight) does not determine that the advertiser's corporate officers responsible for the publication should not the responsibility of the corporation itself. There is also no place to determine liability in such judicial legislation. Determining such liability contravenes the principle of legality in criminal activity, and is not inconsistent with the law - Basic Human Dignity and Freedom (198 M - 199 A).
Primary legislation mentioned:
- Youth Act (treatment supervision), Ts"c 1960, Sections 24, 24 (a) (1).
- Penal Code, 1977, Sections 1, 5 (a), 19, 20, 21.
- Penal Code (Amendment 39) (some preliminary and general), 1994.
- Law - Basic Human Dignity and Freedom.
Rulings - Dean of the House - the Supreme Court mentioned:
[1] based on the 3027/90 Construction and Development Company Ltd. announce v. State of Israel, PD what (4) 364.
[2] based on 696/81 Azoulay v. State of Israel, PD Les (2) 565.
Authority appealed the ruling - Dino's House - District Court of Tel - Aviv - Jaffa dated 3.9.1995 given oral 1576/93 - by Vice President M. Tlgm judges Khader, D. Berliner which rejected an appeal the ruling - Dino House - Magistrate's Court in Tel - Aviv - Jaffa 1546/93 dated 16.8.1993 cooperation possible - by Judge N. Lidski. The appeal was received.
Yair Leibowitz - the name of the appellant;
Nava Ben - Or, director of the State Prosecution Criminal Department - named respondent.
Stopped - Dean
President A. Barak
1. Minor's name appeared in an article published in the newspaper Maariv. From the article indicates that there is suspicion that the minor's father made her mother's death. The state accused the paper (hereinafter - Maariv), the editor in chief (hereinafter - Disnz Magic) and the reporter of violating the Section 24 (a) (1) of the Youth (Care supervision), Ts"c 1960. The newspaper admitted facts and convicted on - According to his confession. before a court - Magistrate (Judge N. Lidski) continued to be handled in the matter of editor. factual groundwork has been laid before the house - the trial was published in a newspaper article of their messages Disnz Magic police reporter. They did not testify at trial. of the material was before the court - the court found that Disnz Magic did not see any story.
2. Home - Magistrate (Judge Lidski) convicted Disnz Magic and the reporter. Since the appeal before us is of Disnz Magic, will focus his conviction. Determined that the role of editor to take care of what is posted in the newspaper. Way to ensure that aura about him in other ways, normal activities of the newspaper. He is responsible - the paper's major organized - what happens
Him. He is responsible for criminal, who led the organizational hierarchy, passing offenses newspaper itself. Home - Magistrate's Court rejected the argument that to impose criminal responsibility on the editor in the absence of express provision determining criminal responsibility of the editor offenses committed on - by the newspaper. Also states that the Editor can be seen as having published the article, and as he has personal responsibility for its publication. Regarding criminal responsibility of the editor - the advertiser, it shall be imposed on him only if the mental element of criminal intent or negligence. Against this normative framework that the defendant stopped 2 (editor) responsible for criminal activity. Home - Court ruled that Disnz Magic was negligent by failing to set guidelines that prevent publication of the name of a minor.
3. Disnz Magic to appeal to - the district court. Appeal was rejected in most opinions. Vice President, Judge M. Tlgm, ruled that the newspaper editor responsible for criminal activity - which is essentially the responsibility vicariously - offenses paper. Mshorsha paper (about - the admission) sufficient to convict the editor in chief. The judge agreed to this approach Khader. Judge D. Berliner suggested that the absence of legal information, not to impose liability on the editor "Workshops" criminal offense of a newspaper. Judge Berliner indeed recognized the possibility to create responsible editor of vicariously criminal jurisdiction pursuant to law, however, she believed that the interest liability on a newspaper - the instruction Youth Law Article 24 (Handling supervision), there is no place this responsibility vicariously. Judge moved to examine the question, if there is no room to impose personal responsibility on the editor himself as the foundation holds regular offense Youth Law Section 24 (care supervision). Justice Editor can be seen as fulfilling the basic facts of publication. Mental element required, in her opinion, this offense is criminal intent or negligence. Burden in this matter would be laid on the prosecution. Burden that the prosecution was not on hand. On - yes there Disnz win the Magic.
4. The law, which - her mouth was convicted appellant, states:
"These are liable to imprisonment for one year:
(1) publisher's name is in a minor, or whose place of residence as defined in the legal guardianship training, Tsc"b 1962, is in Israel (hereinafter in this section - minor), or any other advertiser that may lead to the identification of a minor, or in circumstances that have to find that the minor was brought before the court or the welfare officer working for him under this Law, or that the minor attempted suicide or committed suicide, or that have to be attributed to a minor crime or corruption measures or imply that child, brother, sister, grandson or granddaughter attributed to him of a crime or corruption
Measurements or that have to find out a minor detail that links HIV detection test or examination, treatment or psychiatric hospitalization "(Section 24 (a) (1) of the Youth (Care supervision)).
The question facing us is, if this legal power to impose criminal responsibility on the chief editor of a newspaper, published an article in violation of the provisions of which section. For this purpose we assume that the paper itself is responsible for criminal activity. The question is whether you can impose criminal responsibility - and if so, under what circumstances - the managing editor of the newspaper. There is no dispute that the editor is a central organ in the paper, thinking and actions, within the role, are thinking and actions of the newspaper. That created the connection between behavior and the responsibility for the newspaper editor. But what the law when the question is "upside down". Namely, the connection between responsibility and liability newspaper editor?
5. In principle, the responsibility of running a corporation organized can derive two main sources: one, if the organ has, on - by his own behavior, the elements (factual and mental) of the offense. "People are running a corporation personally responsible for criminal activity, if they have the foundations of the norm" (based on 3027/90 announce Construction and Development Company Ltd. v. State of Israel (hereinafter - the case company announced [1]), p. 384) . For this purpose, may be organized perpetrator (or jointly with another). You may, of course, is a party organized offense that operation, but wheedling or help. This responsibility is personal. Scope is determined by - the factual and mental elements set offense with which he was charged. There is a contingent of corporate criminal responsibility. The second source is the responsibility of the organ may be teaching law states that the organ will be responsible for criminal activity if the corporation is responsible for criminal activity. This responsibility is essentially a kind - Workshops. The organ itself is not personally responsible for criminal activity. Criminal responsibility rests on him because of corporate criminal responsibility. No criminal liability on the corporation, not the organ responsible. Often determined a kind of law determining liability - Workshops of this kind, because the organ is not responsible if proven that he was negligent. Is it possible to attribute Ldisnz Magic, editor of the newspaper "Maariv", responsible for one of two main sources of these?
6. Opens personal responsibility. The question is whether Disnz Magic maintains the factual and mental elements of the offense fixed Youth Law section 24 (treatment supervision). We can leave to study the question of whether we can say that Disnz Magic "advertising" anything published in the newspaper. Even the answer to that question is yes - as mentioned, we do not take any position on this question - then you have the responsibility of Disnz Magic fundamental mental problem. What is
Required mental element of the offense - the Youth Law Article 24 (Handling supervision)? Section itself is silent on this matter. Must be criminal intent (as defined in Article 20 of the Penal Law, 1977) maintains the psychological element. The trouble is, not uploaded on - and proven by the prosecution - that was my hands Ldisnz Magic criminal intent. Remains the psychological element of negligence (Article 21 Penal Code). on - according to Jewish law the verse, could be determined that the offense, her tongue does not take a position regarding the mental element is negligence offense (see 696/81 based Azoulay v. State of Israel [2]). This law was on - by teaching section 19 of the Penal Code. This provision - inserted Penal Code Penal Code (Amendment 39) (some preliminary and general), 1994 - states:
"A person performs an offense only if Ashah thought criminal, unless --
(1) states the definition of the offense that negligence is the foundation of mind necessary to its inception; or
(2) the offense is a crime of strict liability.
Found that the absence of provision of an offense under section 24 Youth Law (treatment supervision) that negligence is the mental element necessary to its inception, the required mental element of criminal intent is. There is no other place to establish a mental element of the negligence of an offense the "paralysis" as a state of mind. All silence should be interpreted requires criminal intent or strict liability. Not loaded us - and that we stand down - that responsibility is closely. Found that required mental state of criminal intent. Mental state that is attributed to - the prosecution asked not attribute it to various courts - Ldisnz Magic. True, the article was posted before the change in law, and - according to the law which prevailed when released, it was possible to determine that the basic principle mental Youth Law Article 24 (Handling supervision) is negligence. But when he came into effect this patch, apply, where he was a stick, the making (Section 5 (a) of the Penal Code). In the absence of strict liability claim, the approach requires a mental element of criminal intent that makes it easier to access the underlying mental Hmstfkt of negligence. All in all: not to impose on Disnz Magic personal responsibility for the publication of the law contrary to Section 24 Youth (treatment supervision).
7. Imposed on Disnzi Jack kind of responsibility - Workshops committed a criminal offense - by "Maariv"? The answer to this question is negative. Order placed on the organ of the kind of corporate responsibility - Workshops such provision is required by law. Such provision is not available. Unlike the case of company matters discussed announce [1], Section 24 Youth Law (treatment supervision) does not determine that the advertiser's corporate officers responsible for publishing the forbidden
Responsibility of the corporation itself. There is also no place to determine liability in such judicial legislation. Determining such liability contravenes the principle of legality in criminal activity (Article 1 of the Penal Code), is inconsistent with the law - basic: Human Dignity and Liberty.
8. For these reasons, I am a lawyer believes that the appeal be accepted. Mshtzgno Bath - power state our position (paragraph 6 above) as regards the matter of negligence after the amendment in the Penal Code, is also believed that if this is indeed our position, then Dean appeal to be accepted.
9. Which - on - yes, obtain the appeal, revoke the rulings - the law of Kamma instances win the appellant of the offense attributed to him.
Justice A. Goldberg
I agree.
Justice A. Find
I agree.
Decided such decision - Dino's president.
Given today, G. Adar II תשנ"ז (12/3/1997).
Mini - Ratio:
* Youth - Care supervision - offenses
Publish the name of a minor way that could suggest he was a child of a crime attributed to him - psychological element of an offense - the need for proof of criminal intent - the imposition of criminal liability on a newspaper editor was advertising - a place where there has been no criminal intent Editor.
* Penalties - criminal responsibility - responsibility manager
Responsibility of corporate criminal organic - personal responsibility of the organ - a place where the organ has - by his conduct the factual and mental elements of the offense - as opposed to liability vicariously kind of organ - Cshaorgn not personally responsible for criminal activity but is responsible for corporate responsibility - the need for explicit teaching of law To impose such liability - Workshops on the organ - is derived from the principle of legality of criminal law - Basic human dignity and freedom - the responsibility of the editor for publication are not allowed.
* Penalties - criminal intent - presumption of vitality
Place where the offense does not take a position regarding the required mental element - the - according to Article 19 of the Penal Code, 1977 - formulated after the Penal Code (Amendment 39) (some preliminary and general), Tsn"d 1994 - - applicability of section anywhere stick with the defendant for offenses that were made before its enactment.
* Communication - violations - Forbidden Publications
Responsible editor must not publish the paper - personal responsibility - a kind of responsibility - Workshops - need explicit teaching about the law - to impose a responsibility on the editor - Workshops acts newspaper.
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ADVOCATE ISRAEL
