Seite 150 [150]
MORDECHAI KREMNITZER — KHALID GHANAYIM
(2) Manslaughter as the basic homicide, defined as killing with the mental
element of (spontaneous) intention or recklessness in the form of indifference
or rashness toward causing the death, and punished by 20 years imprisonment
as maximum sentence.
(3) Culpable homicide by negligence, punished by 3 years imprisonment as
maximum sentence.
THE NEW LAW
The new law includes 5 homicide offenses: Murder as basic offense, aggravated
Murder, homicide with diminished liability, homicide by rashness, and the offense
of homicide by negligence.
The new law seeks to serve and emphasize two principles: The first principle
is the special importance of the value of human life and its special severe
infringement; and the second principle is the culpability of the offender. It also
reflects an approach to the principle of legality, as to the division of labor between
the Legislator and the Judiciary, namely that the first is entrusted with the task
of making generalizations on degrees of severity and leniency up to the point of
hindering individual justice. Individual justice is entrusted in the hands of the
Judiciary. The principle of legality favored a list of aggravated circumstances anda
clear formulation of them avoiding ambiguous terms like bad or base motives. The
expressive function is served through the label murder and the stigma it carries, the
special severe punishments of life imprisonment and even more so — mandatory
life imprisonment. Focusing on murder (violating the value of human life) and
not on aggravated murder enables the legislator to express a clear view on the
importance of the protected interest of human life as such. A focus on aggravated
circumstances, on the other side, dilutes this message since the sanction expresses
not only the severity of life deprivation but also the aggravating circumstances.
The same spirit explains the relative heavy punishment provided for the cases
of homicide with diminished liability'* 20 years of imprisonment for three cases of
this category and 15 years for one.!* The same attitude is reflected in the 12 years
of imprisonment for killing by rashness.
The principle of culpability is expressed in the possibility of avoidance from
aggravated murder when the totality of the case-circumstances signifies a
13 On this offense, see below text belongs to note 24.
4 See Mordechai Kremnitzer — Khalid Ghanayim, Tötung des Haustyrannen: Minderschwere
Totung, in Marc Engelhart — Hans Kudlich — Benjamin Vogel (eds.) Festschrift fiir Ulrich
Sieber, Berlin, Dunker & Humblot, 2021, 244; Ghanayim, The Reform of Homicide Offences.
+ 148 «