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Par. 2. These provisions do not apply to the acts specified in Article 5.
Art. 10. A punishment executed abroad shall be deducted from a punishment subsequently imposed for the same offense by the Greek courts.
Art. 11, par. 1. If a Greek national was convicted abroad of an act which entails additional punishment according to Greek law, the Greek court may impose such punishment.
Par. 2. Likewise, the Greek court may impose security measures upon a Greek citizen who has been convicted or acquitted by foreign courts, if such measures are provided for by the Greek law.
Gafos, Helias. Poinikou Dikaiou (Criminal Law). Thessalonike, Theodozidi,
1948. 440 p. Heliopoulos. Systema tou Hellenikou poinikou dikaiou (System of the Greek
Criminal law). Athens, Delabrammatica, 1930. 613 p. Horafas, Nikolaos. Genikai archai tou poinikou dikaiou (General Principles of
Criminal Law), Athens, Sakkoula, 1962. 368 p. Konstantaras. Hellenikon poinikon dikoiou (Greek Penal Law). Athens, 1946.
463 p. Moschandreas Hermania tou poinikou kodikos (Interpretation of the Criminal
Code). Athens, 1951. 321 p. Staikos, Adonios. Hermeneia tou poinkov kodikos (Interpretation of the Crimi.
nal Code). Athens, Fragouli, 1954. 1091 p. Tzortzopoulos, Haralabos. Cusiastikon poinikon dikaiou (Substantive Criminal
Law). Athens, Pyrsos. A.E., 1936. 405 p.
1. The Indian Penal Code 1860 1 does not follow the tripartite division, as suggested by the proposed code. However, the Penal Code is divided into twenty three chapters each having grouped into it a number of similar offenses on the same subject. Thus, there is a subject division of the offenses in the Indian Penal Code. A reference to the contents in the attached Xerox copy will show how divisions are made.
Chapter I is formal, relating to the title and extent of operation of the Code. Chapter II contains an explanation of the terms used in the Code while Chapter III has the punishments provided in the Code. Those acts, commission of which constitutes no offense, are given in Chapter IV; abetment and abettor are dealt with in Chapter V, while the shortest Chapter V-A has the punishments for criminal conspiracy. Chapter VI through Chapter XXIII each deal with separate offenses, e.g., offenses against the State; offenses relating to the Army, Navy and Air Force; and offenses against the public tranquility, etc.
2. The Indian Penal Code has a continuous numbering system from section 1 through section 511. There are no blank numbers. Amendments in the future are likely to be either in the form of an addition to a section or by the substitution of a section. In the case of a substitution, the old section disappears from the Code; when a section is added, which is rather rare, a letter is added to the chapter number, e.g., chapter V-A and section 120-A, 120-B. Since the enactment of the Code in 1860, the amendments have been few and far between.
3. The Indian Code has no section corresponding to section 302 (1) of the proposed code. The different kinds of culpability, not separately defined but included within various sections of the code, are intentionally, knowingly, voluntarily, rashly, fraudulently and dishonestly. Of these, the expressions dishonestly, fraudulently and voluntarily are defined in sections 24, 25 and 39 respectively.
The principle of mens rea, as enunciated by the English law, is inapplicable to the Indian law since the Indian Penal Code and each of its sections provide all the ingredients required to be proved for bringing home the guilt of the defendant. According to Mayne: 2 "Every offense is defined, and the definition stati
recused must have done, but the state of his mind within
1 III India Code, Delhi, Government of India, Ministrs * John Dawson Mayne, Mayne's Criminal Law of India
doing it. It must have been done knowingly, voluntarily, fraudulently, dishonestly, or the like. And when it is stated that the act must be done with a particular knowledge or intention, the definition goes on to state what he must have known, or what he must have intended."
For instance, theft must be committed dishonestly, cheating must be committed fraudulently, murder must be committed either intentionally or knowingly.
Every man is presumed to intend the natural consequences of his act or acts, and intention has to be inferred from the facts and attending circumstances of each case. The Supreme Court of India, in the case of Bhikari v. the State of Uttar Pradesh 3 observed as follows:
"The burden of proving an offence is always on the prosecution; it never shifts. Intention when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances."
By virtue of section 32, the expression "act” includes also illegal omissions.
The defendant's state of mind determines the guilt and not the degree of guilt or the sentence. All that the prosecution has to do in India is to prove that a particular act committed by the accused answers the various ingredients of the offense in the particular section of the Indian Penal Code.
4. There is no section in the Indian Penal Code corresponding to section 305 in the proposed draft. Of course, participation of the defendant has to be established either alone or jointly with another or others.
Section 39 of the Code defines the expression "voluntarily” which, in fact. has reference to causation of effects and not to the doing of the acts from which those effects follow. The Indian Code makes no distinction between cases in which a man causes an effect designedly and cases in which he causes it knowingly or having reason to believe that he is likely to cause it. If the effect is a probable consequence of the means used by him, he causes it "voluntarily" whether he really meant to cause it or not.4
Writing about the causal relationship between the doer and the deed to be established, Gour sars: 5
"The question whether the effect produced was premeditated or known to ho probable by the author is, therefore, always a question of fact to be determinest according to the particular circumstances of each case. But whaterer the facts, the prosecution have to prove them with sufficient clearness so as to establish a causal relationship between the doer and the deed ***"
5. The defense of insanity is contained in section 84 of the Code (Xerox copr attached).
There are four kinds of persons who may be said to be non compos mentis (not of sound mind) under the defense of insanity in the Indian Code: (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a madman; and (1) one who is drunk. Under the section, if a defense of insanity is established by a defendant, he is exonerated from liability for his criminal act and no provision is made in the Code for giving him medical care.
(1) An idiot is one who is of non-sane memors from his birth, by a perpet. ual infirmity and without lucid interval. Those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their father or mothers, or the like.
(2) A person made non compos mentis by illness is excused in criminal cases from such acts as are committed by him while under the influence of his disorder. Sereral causes may be assigned to the disorder; sometimes from the distemper of the humours of the body: sometimes from the violence of a diseuse, as a ferer: sometimes from a concussion or harm to the brain; and, as it is more or less violent, it is distinguishable in kird or degree, from total alienation of the mind, or from complete madness.
(3) A lunatie is one who is, as described hr English writers, afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reasin. Such persons during their frenzy are criminally as irresponsible as those whose disorder is tired and perrianent.
(4) Insanity as a defense to criminal conduct, when caused by drunkenness, is as much a defense for eroneration as lunacy, etc. Insanity by drunkenness in fact opwrates in this section as an excertion to the rule contained in section
3719561 ." India Rptr., Supreme Court 458, 430.
85 of the Indian Code. Section 85 says drunkenness when voluntary will not be a defense to any criminal act of a defendant. However, under section 84 herein, if drunkenness causes a disease which produces such incapacity as to result in the defendant's mind failing to appreciate his actions, the defense of insanity by drunkenness, even though voluntary, is provided to the defendant. Such drunkenness creates intemperance as to lead to a total deprivation of self-control, or creation of delusions, as in delirium tremens. Insanity in such cases may have been caused by any means such as excessive drinking, habitual drinking, drugs, etc. It remains a question of fact for determination in each case.
The defendant must establish insanity and to obtain acquittal he must not only prove insanity but also the additional fact that at the time of the commission of the act, he was, in consequence of the insanity, incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. This principle, adopted by the law, was based on the well known McNaughten case.6
A plea of insanity under the Indian Code entitles the defendant to acquittal. As for the burden of proof, the onus on prosecution is to prove guilt beyond a reasonable doubt and it is then for the defendant to establish, by adducing evidence, his defense of insanity. Under section 45 of the Indian Evidence Act 1872,7 the opinion of an expert will be relevant in determining the question of the insanity of a defendant. Though such an opinion is neither conclusive nor binding on the court, it cannot be brushed aside lightly. The defendant's onus in proving his insanity plea is not as heavy as that of the prosecution to prove guilt since the burden is light and no more than the requirement in civil matters of proving the probabilities of the insanity. For onus of proof the Supreme Court of India in the case of Bhikari v. The State of Uttar Pradesh 8 observed as follows:
“The burden of proving an offence is always on the prosecution; it never shifts. Intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. For example, if a person deliberately, strikes another with a deadly weapon, which according to the common experience of mankind is likely to cause an injury and sometimes even a fatal injury depending upon the nature of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden resting upon it to establish an essential ingredient of the offence, namely the intention of the accused inflicting a blow with a deadly weapon.
"Section 84, Penal Code, can be invoked by the accused for nullifying the evidence produced by the prosecution. This he can do by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The prosecution need not establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. It is for this reason that S. 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him."
As is evident from reasoning in the aforesaid decision, the Court does not attempt to prove the defense of the defendant by calling a psychiatrist on its own for an examination. It is not for the courts to assist the defendant or make up for his deficiencies in ascertaining the plea of insanity by calling its own witnesses.
6. The law with regard to intoxication as a defense, though not similarly worded as section 503 of the proposed draft is included in sectionThe dian Penal Code. Section 502 of the proposed code corresponds read with 86 of the Indian Penal Code.
• 4 State Trials (N.S.) 847 (Central Criminal Court 1843).
IV India Code, Government of India, Ministry of Law, Delhi, 1965. $ 72 India Crim. L.J.R. 63, 65 (1965).
ance with the concept that defense is an independent means of protecting legal rights. Consequently, a person who acts to protect another from an unlawful assault, acts in defense even though the other person does not defend himself or ask for help.
Excessive Defense Self-defense is justified to the extent that it is necessary to avert an immediate assault. When it is excessive, it will be judged "in concreto” depending upon the type, the degree, and the nature of each case.
Article 25 provides that a person who exceeds the limits of self-defense or defense of another must be punshed. If the excessive self-defense is intentional, the perpetrator must be punished according to the provisions of Article 83 of the Criminal Code (mitigated punishment). If it is negligent, it is judged according to the provision on negligence (Article 28 of the Criminal Code). But the perpetrator must not be punished if he exceeds the limits of self-defense through fear or confusion.
Where a person provokes an assault by another, in order to act under the pretense of self-defense, in such a case, the provisions about self-defense are not applicable.
QUESTION 8 The offenses are classified as major crimes, minor crimes, and petty offenses. The purpose of this classification is significant both in the substantive criminal law and in criminal procedure. In substantive criminal law, these are the major points:
(A) Major crimes are never punished if negligently committed. Minor crimes which are negligently committed must be punished only where the law expressly provides. The petty offenses are punishable regardless of whether they are committed intentionally or negligently unless the law expressly requires intent.
(B) An attempt to commit a crime is punishable only in the case of major or minor offenses, never in the case of petty offenses.
(C) The accessories before the fact are punished only with regard to major and minor crimes; in the case of petty offenses only where the law expressly so prorides.
In criminal procedure: (a) the jurisdiction of a court over a crime will be determined according to the above-mentioned classification ; (b) the arrest and detention of a defendant is always called for in major crimes whereas in the other cases, it will depend upon the specific offense.
A court may order the execution of a sentence to be suspended if the defendant has not been convicted for a major or minor offense before, and the sentence imposed is not more than of one year's duration. The judge must consider the circumstances under which the offense took place as well as the personality and the conduct of the perpetrator after the act (Art. 100 of the Greek Criminal Code, hereafter assumed unless specified otherwise). The length of the suspension may not be less than three or more than five years (Art. 99).
Suspension of the imposition of the sentence is unknown.
The person so released is under no supervision, but if he commits a major or minor offense during the period specified in the decision of the court, and is convicted therefor, the suspension will be revoked. In such a case, the offender must serve both sentences consecutively (Art. 102).
The Code, as a rule, provides for determinate sentences of imprisonment. The limits set therein are mandatory for the judge. Indeterminate sentences are provided for in the case of recidivist offenders (Art. 90). The judge is required to specify only the minimum of the sentence which may not be less than 3 years.
Term provisions are extended for special offenders. If such an offender is regarded as dangerous to the public, the court may impose an indeterminate imprisonment term (Arts. 89 and 92).
A convicted person may be released on parole under the conditions and procedure set out in Articles 104 to 110 of the Criminal Code. It is required that two-thirds of the sentence have been served and that the convicted person have demonstrated good behavior during the time of his confinement. The court must scrutinize the history and character of the defendant and if special circumstances indicate that the parolee will lead a law abiding life, a parole will be granted. It is provided that certain obligations may be imposed on the parolee with regard to the place of residence, way of life, etc. The parole will be revoked if the parolee commits a crime during the time specified in the decision of the court.
Legal entities are not subject to criminal prosecution, nor is there an article equivalent to Section 3003. Article 117 of the Constitution and Article 510 (d) of the Code of Criminal Procedure require that all the decisions of the courts must be duly supported by reasons and pronounced in public sessions.
The standards set for the review of the sentences by higher courts vary. They depend upon the timing and standing of the appellant in each particular case. An appellate court may not raise the sentence (Art. 470 of the Code of Criminal Procedure).
In the case of multiple offenses, the perpetrator must, at the determination of the punishment, be sentenced to a compound punishment, consisting of an augmentation of the severest concurrent punishments (Art. 94). If any of the convictions is reversed, then the compound punishment must consist of an augmentation of the severest of the remaining punishments (Art. 94, par. 3).
Where a court imposes imprisonment not to exceed 6 months, it may, at its discretion, convert such punishment to a pecuniary one. The personality and criminal record as well as the financial condition of the defendant must be considered before any conversion is realized. A condition for the release of the convicted person is the payment of the fine imposed. If such a condition is not met, the convicted person serves the sentence. The amount of the fine is a combined consideration of both the gravity of the offense and the financial condition of the defendant.
QUESTION 10 Vistake of fact is a defense under the circumstances specified in Article 30 of the Criminal Code. The first part pro des that a person will not be responsible for an offense if he ignores or misunderstands the fact that his act constitutes the factual elements of a crime. The same provision applies in the case where a person mistakenly believes that the facts which constitute an affirmative defense exist, e.g., an impression that an assault is immediate. It is further specified that if such ignorance or misunderstanding is due to the person's negligence, he will be responsible according to the provisions thereof.
It is provided in the same article that the perpetrator will not be responsible with regard to an incident which increases the gravity of the crime if he ignores that incident or misunderstands it.
Mistake of law appears in two forms: (a) mistake as to whether an act is punishable, that is, whether a law exists and what the content of such law is, and (b) mistake as to the illegal character of an act.
As far as the first case is concerned, mistake of law is not a defense. In the second case, a distinction must be made as to whether the mistake is excusable or not. The mistake is excusable when the perpetrator not only does not know but cannot possibly know the illegal nature of his act. In that case, there is no responsibility. But if the person could have realized the illegal nature of his act, then that act is imputed as if intentionally committed.
QUESTIONS 11 AND 15
The Greek Criminal Code does not contain provisions analogous to the questions 11 and 15 due to the reason that there is only one jurisdiction overcrimes committed within the country.
It is provided in Article 115 that if two or more persons commit a crime each one of them shall be deemed as a principal. Two elements are required for the make-up of the above crime: (a) common intent, and (b) common act.. Common intent exists where all the participants want the factual elements of a crime to be perpetrated and also know that the other perpetrator, or perpetrators, have the intention of committing the same crime.