Murder and Attempted Murder

The Offense of Murder in Israeli Criminal Law

Introduction

Murder is considered the most serious crime in all cultures of the world. In Israel, the maximum penalty is life imprisonment, unlike various states in the United States, where the death penalty may be imposed. But even within this framework, Israeli law has created a complex hierarchy of homicide offenses, which underwent a substantial reform in 2019. Understanding this hierarchy, and the fine distinctions within it, is sometimes the difference between mandatory life imprisonment and a significantly reduced sentence.

Background: The Reform in Homicide Offenses

Until 2019, homicide offenses in Israel were based on the Mandatory Criminal Law Ordinance of 1936, and included only three categories: causing death by negligence, manslaughter, and murder. This crude division led to puzzling gaps; judges tended to convict of murder out of concern that they might miss the message of the sanctity of life, and in other cases overly lenient sentences were imposed for grave killings.

Following the report of the committee headed by Professor Mordechai Kremnitzer, submitted to the Minister of Justice in 2011, the Penal Law was amended by Amendment No. 137, and a new and more precise hierarchy of four homicide offenses was established, tailored to the severity of the act and the mental state of the defendant.

The Basic Murder Offense, Section 300 of the Penal Law

Section 300 provides: "A person who intentionally or with indifference causes the death of a person shall be liable to life imprisonment." The substantive innovation of the reform is that there is no longer any need to prove explicit intent; mere indifference is also sufficient for a murder conviction.

Indifference is defined in Section 20 of the law as "equanimity toward the possibility of causing the stated consequences," a lack of concern on the part of the defendant regarding the victim's life. In the judgment concerning the murder of Arieh Karp on Tel Baruch Beach, the court held that even if the attackers did not intend to kill, they were indifferent to the deceased's fate, and that is sufficient.

Intent, Section 20(b) provides that foreseeing the result as a near certainty constitutes a substitute for intent. The test is subjective: not what a reasonable person would have foreseen, but what the defendant himself personally foresaw.

It is important to note: the reform granted the judge discretion regarding the sentence; life imprisonment is a maximum penalty, not a mandatory one, in the basic offense.

Murder Under Aggravated Circumstances, Section 301A of the Penal Law

When one of the eleven aggravating circumstances set out in the section is present, life imprisonment becomes a mandatory sentence and judicial discretion is removed. The aggravating circumstances are:

Advance planning or substantial deliberation before the decision to kill; commission of the act in order to enable, facilitate, or conceal another offense punishable by at least seven years' imprisonment; killing a witness in a criminal proceeding or a judge with the purpose of frustrating an investigation or legal proceeding; a racist motive or hostility toward a group; a punitive act intended to impose fear and authority on a group; killing a spouse after systematic or prolonged abuse; commission of the act with special cruelty or while abusing the victim; the victim is helpless, a minor under the age of 14, or a minor for whom the offender is responsible; creating a real danger to the life of another person beyond the victim; an act of terror as defined in the Counter-Terrorism Law; commission of the act within the framework of a crime or terror organization.

The court is authorized, in exceptional cases where the circumstances indicate a degree of culpability that is not particularly severe, to convict only of the basic murder offense.

Causing Death Under Circumstances of Diminished Responsibility, Section 301B of the Penal Law

This is a new offense born of the reform, replacing the old possibility that existed to mitigate punishment in certain circumstances. It applies when all the elements of murder are present, but there are circumstances that justify more precise labeling and a reduced sentence.

The relevant circumstances include, among others: a situation in which the victim severely and continuously abused the defendant or his family members until causing severe mental distress; an impairment in the defendant's intellectual capacity or a severe mental disorder that substantially limited his ability to act otherwise.

The reform also redefined provocation, which previously served as a mechanism for negating "premeditation," as a circumstance of diminished responsibility. Not everything a defendant regarded as provocation will be considered provocation, but only acts that are inherently illegitimate from a social-moral perspective, and an appropriate relationship is required between the provocation and the impairment of self-control. In the matter of Yonatan Hilo (CrimA 746/14), it was held that there must be a trigger proximate to the act of murder. The case law also recognizes cumulative provocation, provocation that continued over a period of time, provided that the defendant did not decide in advance to kill.

Causing Death by Recklessness, Section 301C of the Penal Law

"A person who causes the death of another by recklessness shall be liable to twelve years' imprisonment."

The reform distinguished between two types of rashness: indifference, when the defendant acts with equanimity toward the possibility that the fatal result will occur, which is treated as murder; recklessness, when the defendant is aware of the risk but hopes to prevent the result and is unwilling to forgo the act, which carries a sentence of only 12 years' imprisonment. A person who took precautionary measures and in good faith believed he had neutralized the risk will not be considered rash. By contrast, someone who thought "it won't happen to me" satisfies the required element of awareness. Typical examples of this offense are playing with weapons, dangerous driving that caused a fatal accident, and construction contrary to safety conditions.

Causing Death by Negligence, Section 304 of the Penal Law

The least serious offense in the hierarchy, suitable for cases in which the defendant was not aware of the risk at all, but should have been aware of it. Unlike recklessness, here there is a complete absence of subjective awareness of the possibility of causing the result.

Why Is the Distinction Between the Offenses Important?

The difference between a conviction for murder under aggravated circumstances and a conviction for causing death under circumstances of diminished responsibility can amount to many years behind bars. The fine distinctions between indifference and recklessness, between recognized provocation and provocation that does not meet the legal threshold, and between premeditation and a spontaneous decision, are questions that many defendants are unable to identify on their own. Israel Arama, a former member of the Tel Aviv District Attorney's Office, manages homicide and murder cases with deep familiarity with the way the prosecution builds and classifies charges. The correct classification of the offense is sometimes the most significant defense that can be employed. If you or someone close to you is involved in a case of this type, contact us for an initial consultation with no obligation immediately.

Attempted murder

What is the offense of attempted murder?

Section 305 of the Penal Law, 1977, provides that a person who attempts to murder another person unsuccessfully, with premeditated intent, commits the criminal offense of attempted murder. Under the section, the offense is formed when a person "unlawfully does an act, or unlawfully refrains from doing an act that he is obligated to do, with intent to cause the death of a person, and the act or omission is by its nature liable to endanger human life." The penalty prescribed by law is up to 20 years' imprisonment, identical to the penalty for murder itself.

What is an "attempt" under the law?

Section 25 of the Penal Law defines attempt as follows: "A person attempts to commit an offense if, with the purpose of committing it, he performed an act that is not merely preparatory and the offense was not completed."

The distinction between the preparation stage and the attempt stage is critical, and sometimes very difficult to identify. Preparatory acts such as acquiring tools to commit the offense, recruiting accomplices, consulting, gathering knowledge, conducting surveillance, following the victim, or making initial contact with him do not in themselves constitute the offense of attempt. However, at a certain point the preparations are completed and a transition to the execution stage occurs, and then the law begins to operate.

In the Breuer judgment, Justice Edmond Levy held that the existence of an attempt offense would be proven by one of two alternative tests: the dangerous proximity test, an act was performed that was dangerously close to completing the offense according to the perpetrator's plan; the commencement of execution test, an act was performed that unequivocally reveals the defendant's intention to commit the offense, even if it had not yet reached dangerous proximity to its completion. These tests were created to prevent false arrests and the prosecution of innocent people.

Attempted murder versus impossible attempt

Section 26 of the law provides that "for the purpose of attempt, it is immaterial whether commission of the offense was impossible because of a state of affairs of which the attempter was unaware or about which he was mistaken." The meaning is: even when the offender's plan could not have succeeded from the outset, due to a factual mistake of which he was unaware, he may still be convicted. The difference between the two: a regular attempt under Section 305 deals with plans that had a real chance of succeeding and went awry; an impossible attempt under Section 26 deals with plans that had no chance of succeeding from the outset.

The mental element, the heart of the offense

Beyond the factual element, a mental element of intent is also required, and this is the highest threshold in criminal law. Recklessness is not enough, and mere foresight of the possibility of causing death is not enough. The defendant must intend to kill, or foresee the victim's death as a near certainty from a subjective perspective. A driver who drove recklessly and did not strike anyone will not be convicted of attempted murder, since recklessness does not reach the required threshold. This is why attempted murder cases are very complex to prove, and also why, when the threshold is proven, the punishment is severe accordingly.

Attempted murder versus murder, what is shared and what is different?

What the two offenses share is the mental element: the subjective intent to kill. This is why the legislature set the same maximum penalty, up to 20 years' imprisonment, for both offenses. The rationale is that a person who intended to kill but failed for reasons beyond his control is not morally less culpable than one who succeeded. However, in practice, the courts tend to impose a more lenient sentence for the offense of attempt compared with completed murder.

Precisely for this reason, when a person is injured in an attempted murder, it is essential to build a well-founded evidentiary case that proves intent and not merely an intent to injure: incriminating recordings, surveillance footage, character testimony indicating motive, all of these make the difference between a conviction for attempted murder and a lighter conviction for aggravated assault. A person who survived an attempted murder and is not represented by an experienced criminal lawyer may watch his attacker be convicted of an offense that does not reflect the severity of his acts.

Exemption due to remorse, when is it possible?

Section 28 of the law provides that a defendant who reached the attempt stage but desisted from committing the offense of his own free will may receive an exemption from criminal liability. Justice Joubran established several cumulative conditions:

The cessation of the act must be solely at the initiative of the defendant and not as a result of an external factor. A person who abandoned his plan because he saw a police officer approaching will not be entitled to an exemption. By contrast, a person who desisted after persuasion by the victim himself may be entitled, since the victim is considered an internal factor in the commission of the offense. The decision to repent must be made in the midst of the act and not afterward. The remorse need not stem from moral motives; even an economic or social motive is sufficient, so long as it is a voluntary act. The defendant need not be the sole factor in preventing the result; it is enough that he took substantial and effective steps to prevent it.

The case of Aviad Moshe, convicted of the attempted murder of Shira Isakov, illustrates this well: he expressed remorse for his actions, but did so after committing them, and not while they were being carried out. Therefore, he was not entitled to the exemption. Moreover, even if his remorse had been timely, the exemption would not have applied to the child abuse offense with which he was charged in parallel.

Legal representation in attempted murder cases

Attempted murder cases are among the most complex in criminal law, both from the prosecution's side, which is required to prove the mental element of direct intent, and from the defense side, which can challenge the question of intent, the preparation stage versus the attempt stage, and the very classification of the act. Israel Arama, a former member of the Tel Aviv District Attorney's Office, handles cases of this kind from both sides, both in representing victims and in defending defendants. Years of experience in the District Attorney's Office teach exactly where an indictment can be challenged and where it is strong. Contact us for an initial consultation without obligation.