Free_Law_Journal-Vol.. - Free World Publishing Inc.

More documents

Recommendations

Info

FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) special mental element is required for guilt of the offence charged, the possibility of excuse due to a mistake of fact not based on reasonable grounds must be studied in the light of this special requirement and the mistake itself. A mental element required for guilt of the particular offence, other than a specific intent in the true sense of the word, may be negatived by a bona fide belief resulting from an ill-grounded mistake of fact, depending upon the peculiarity of the required element. Thus an un-true statement under oath is not wilfully and corruptly false and hence not perjury if genuinely believed to be true, however great the carelessness which induced the belief. 13 An act is reasonable in law when it is such as a man of ordinary care, skill and prudence would do under similar circumstances. Requiring that the mistake be reasonable means that if the defendant is to have a defence, he must have acted up to the standard of an average man, whether the defendant is himself such a man or not. This is the application of outer standard to the individual. If the defendant, being mistaken as to material facts, is to be punished because his mistake is one, which an average man would not make, punishment will sometimes be inflicted when the criminal mind does not exist. Such a result is contrary to fundamental principles, and is plainly unjust, for a man should not be held criminal because of lack of intelligence. If the mistake, whether reasonable or unreasonable, as judged by an external standard, does negative the criminal mind, there should be no conviction. The requirement, that the mistake be reasonable in order to be a defence, at first sight appears the same as the rule that if the defendant be negligent his mistake will not avail. This similarity, however, only seems for the test of negligence in the criminal law is not whether the defendant used the care of a reasonable man but whether he used the care which appeared proper to him under the circumstances, that is “Did he do his best according to his own standard?” 14 V. WHAT IS MISTAKE OF LAW It is refused to accept ignorance or mistake of law as a defence. The proposition that mistake of law can never be a defence is usually overstated in most domestic law systems although where the lines lie between fact and law is sometimes hard to discern. It is, for example, surely no defence to deny knowledge of the illegality of destroying property belonging to one’s landlord. But it must be a defence to introduce belief that the property destroyed was one’s own and not the landlord’s. Another example is that it is no defence to bigamy to claim a belief that polygamy is lawful, but there is a defence for the actor who believes that the previous marriage had terminated in divorce. If an element of law enters into the mistake of defendant, such mistake is held to be no defence. There is, however, an exception to this general rule. When a specific criminal intent, as distinguished from the criminal mind, is a requisite element of the offence, and such intent is negated by ignorance or mistake, it is held that the defendant shall not be convicted, notwithstanding the rule. Although the writers 15 fully recognise that the courts enforce, and commentators approve, the general doctrine that mistake of law is no defence, nevertheless, it is suggested that on principle and analogy a different result may and should properly be reached in certain cases where a criminal act is committed under a misconception of the law. 16 13 PERKINS, p. 56. 14 KEEDY, pp. 84. 15 Austin, Jurisprudence, 496-501(1869); Holmes, The Common Law, 47-51(1881), J, Hall, Prolegomena to a Science of Criminal Law, 89 U. Of Pa. L. Rev. 549, 567 (1941); Kohler, Ignorance or Mistake of Law as a Defence in Criminal Cases, 40 Dick. L. Rev. 113 (1936). 16 KEEDY, p. 89. DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 25
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) Under what has been termed ignorance of law may be grouped two situations. The first is when a man does an act without giving any attention to the law as such, in what may be termed unconsciousness that the law governs such a case; the second, when he considers the law but believes that it does not govern the particular case. In each instance he does an act in ignorance that the law has made the act criminal. It is the contention at this point that there is a distinction, so far as legal effect is concerned, between the two classes of cases designated by the headings “ignorance of law” and “mistake of law”. This distinction is based upon the ground that ignorance of law does not negate the criminal mind, whereas mistake of law does. When a person, not insane, does an act, knowing its physical character, if the act is criminal the doer of the act has the criminal mind. Intending an act, which the law has made criminal, is the criminal mind. This is so even when the defendant has not the means or opportunity of knowing that the law exists which makes his act criminal, for example, when the act was committed so short a time after the passage of a statute that defendant could not possibly have known of it. The defendant has the criminal mind in such a case. It follows that the reason why ignorance of the criminality of the act does not excuse is that in such a case the defendant has the criminal mind. The rule of law embraced in the language of the maxim is the fundamental rule that criminality is determined by the criminal mind. 17 VI. MENTAL ELEMENTS IN THE ROME STATUTE Article 30 of the Rome Statute as it was indicated before, establishes requirements for the mental element valid for all crimes regulated by the Statute. Although it is the main one, Article 30 is not the only place where mental elements can be found as it is indicated by the words “unless otherwise provided”. Although strict liability in terms of founding criminal responsibility on the fulfilment of the objective elements of the crime is not explicitly excluded, the requirement of a mental element in Article 30 of the ICC Statute makes clear that the crime must also be subjectively attributable to the perpetrator, even if the crime definitions in Article 6 to 8 do not explicitly require a certain state of mind. In this respect, Article 30 in requiring the commission of a crime “with intent and knowledge” functions as a general and supplementary rule for criminal responsibility according to the Rome Statute. 18 This is not only true for the perpetration of the crimes of Articles 6 to 8 of the ICC Statute, but applies also to the various forms of perpetration and participation of Article 25(3) of the ICC Statute. This is because Article 25(3), when it doesn’t require a special state of mind at all, does not distinguish between perpetration and participation and, thus, presupposes intention and knowledge according to the general rule of Article 30 of the ICC Statute. According to article 30, paragraph 1 of the Rome Statute, for a crime within the jurisdiction of the Court, the material elements is committed with intent and knowledge. For a person who is not aware of a certain situation or a single material element, it is not possible to build the intent required for the mental element. A. Mental Elements: Intention There is a definition of intention in second paragraph of Article 30 of the Rome Statute. According to this, “a person has intent where, 17 KEEDY, p. 90. 18 ESER, p. 902. DEVRIM GÜNGÖR - MENTAL ELEMENTS AND MISTAKE OF FACT AND LAW IN ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 26
Page 1 and 2: FREE LAW JOURNAL IN THIS ISSUE : Vo
Page 3 and 4: FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 7 and 8: INTRODUCTION FREE LAW JOURNAL - VOL
Page 11 and 12: 2. PARTICULAR ISSUES FREE LAW JOURN
Page 15 and 16: entitlement to national participati
Page 23: FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 31 and 32: Free Law Journal - Volume 1, Number
Page 51 and 52: Issues Relating to Law of the Sea F
Page 55 and 56: FREE WORLD PUBLISHING Inc. HTTP://W
Page 65 and 66: y FREE LAW JOURNAL - VOLUME 1, NUMB
Page 75 and 76:
FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
show all

Free_Law_Journal-Vol.. - Free World Publishing Inc.

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?